Bipartisan Justice: Fixing America's Punitive Penal System Has Politicians Crossing Party Lines

By Gotsch, Kara | The American Prospect, January-February 2011 | Go to article overview

Bipartisan Justice: Fixing America's Punitive Penal System Has Politicians Crossing Party Lines


Gotsch, Kara, The American Prospect


Moments before landmark legislation to reduce prison sentences for low-level crack-cocaine offenses passed the House of Representatives in July, Rep. Lamar Smith, a Republican from Texas, issued a warning to the chamber: "The Democratic Party teeters on the edge of becoming the face of deficits, drugs, and job destruction." Smith hoped to play into the Democrats' decades-old fear that politicians who don't endorse tough punishments lose elections. As it turned out, Smith was the only member to speak in opposition to the bill in either the House or Senate.

When Smith finished, some of his Republican colleagues, including James Sensenbrenner of Wisconsin and Dan Lungren of California, both prominent members of the House Judiciary Committee and hardly "soft on crime," addressed the chamber. They joined members of the Congressional Black Caucus in endorsing the legislation. Libertarian-leaning Ron Paul also supported the bill, even arguing the reform was weaker than he had wanted.

The Fair Sentencing Act was signed into law by President Barack Obama in August. The bill reduced the quantity-based sentencing disparity between crack cocaine and powder cocaine from 100 to one to 18 to one and eliminated the five-year mandatory minimum sentence for first-time possession of 5 grams of crack cocaine. The sentencing minimum for selling crack cocaine is now triggered when a defendant has at least 28 grams of the drug.

That Smith stood alone shows how much the political climate has shifted since the 1980s and 1990s, when Republicans and Democrats both argued that lengthy prison sentences were critical to stopping drug use and limiting crime. The harsh Anti-Drug Abuse Acts of 1986 and 1988, which created the sentencing disparity between crack and powder cocaine and the stiff mandatory minimums associated with possession of crack cocaine, were enacted at a time of hysteria about drugs and crime. Two decades later, both parties agree that crack-cocaine sentences were excessive, disproportionately affected African Americans, and unfairly punished low-level crack-cocaine offenses. What led to such significant change?

In the 1980s, the emergence of low-cost crack cocaine in urban neighborhoods and the violent turf wars associated with its sale frightened the public. News accounts warned that crack cocaine was instantly addictive and that a generation of children born to addicted mothers would be permanently brain damaged and become a societal burden. The response to these reports was almost entirely punitive and investments in prevention and treatment were limited.

At the federal level, Congress intended to use long mandatory sentences to nab drug kingpins and traffickers. Yet, particularly in the case of crack-cocaine offenses, defendants who became entangled in the system were low-level street sellers, couriers, and lookouts. Because the possession quantity that triggered a mandatory sentence was set so low, law enforcement and prosecutors focused on racking up convictions had little incentive to go after the more challenging cases involving drugs trafficked across state lines or into the country.

Over the next decade, political leaders of both parties exploited the public's fear of crime and drug use at election time. Democratic presidential nominee Michael Dukakis was tarred as "soft on crime" by then-Vice President George H.W. Bush in their 1988 contest when the Bush campaign aired a television ad revealing that Dukakis, as governor of Massachusetts, had supported a weekend furlough program for prisoners. Convicted felon Willie Horton never returned from his furlough; he committed a horrific rape less than a year later. In 1992, then-Gov. Bill Clinton eagerly tried to convince voters that he would be tougher on crime and left the presidential campaign trail to oversee an execution in Arkansas, his home state. In 1994, the Clinton administration and the Democratic Congress passed an omnibus crime bill, which contained $8 billion for building new prisons and also included fiscal incentives for states to adopt harsh sentencing laws. …

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