Bob Hope and the illumaniti

http://en.wikipedia.org/wiki/Network_Solutions  (look up at the diagram and notice Network Solutions Inc.) 


http://www.amazon.com/Secret-Life-Bob-Hope-Unauthorized/dp/0942637747
Excerpt:

By 

Lyn McCloskey "Self-Appointed Arbiter" (Hoosierville USA) - See all my reviews

This review is from: The Secret Life of Bob Hope: An Unauthorized Biography (Hardcover)

The people who panned this book *clearly* have their shorts in a wad (that's a colloquial phrase for "cognitive dissonance") over having their shiny perceptual "Bob Hope" bubbles painfully burst after discovering the rather unsavory truth. Too bad, that's what you get for putting somebody up on a pedestal. Especially somebody who doesn't deserve it. I give the book five stars because it soundly draws a clear distinction between Bob Hope's carefully crafted public persona and what he was REALLY like, "behind the scenes"... a mean-spirited, self-aggrandizing, womanizing opportunist! In other words, he was a first-class spoiled brat and a major league hypocrite. This book would be a lot less interesting if the dichotomy that is Bob Hope wasn't a fact of life, and admittedly, it will not be very interesting to the people who don't remember him. But for those of us that do, it is an excellent biography. Pretty soon we'll all be dead too, but at least we'll kick off knowing the value of "belief" in terms of accepting uncritically and without question whatever is tossed one's way by the public relations machinery.... an object lesson which translates neatly not just for the entertainment business, but for media and government as well.

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12 of 15 people found the following review helpful:

4.0 out of 5 stars The Downside of a Legend, December 28, 2001

By 

Douglas Doepke (Claremont, CA United States) - See all my reviews
(TOP 1000 REVIEWER)    (REAL NAME)   

This review is from: The Secret Life of Bob Hope: An Unauthorized Biography (Hardcover)

Bob Hope, America's comedian -- at least among white middle-Americans of a certain age. But like any institution, and he is an institution, there is a downside to one of the country's favorite success stories. Arthur Marx pulls no punches in characterizing Hope's many flaws. Chief are the secretly promiscuous womanizing, the penny-pinching among staffers, the ceaseless self-promotion, and a generally curmudgeonly personality. Not really bad stuff, like mixing with gangsters or playing with drugs, the sorts of things Hollywood is generally prone to. But bad enough to tarnish a nurtured image as family man and patriot. Many readers will avoid a tell-all book like Marx's for that sort of defensive reason. Moreover, I get the feeling that like many in Hollywood Marx respects Hope the comedian at the same time he generally dislikes the man. Nonetheless, he is careful to point out Hope's many strengths as a performer -- his matchless ability with one-liners; his energy, verve and sass; his tireless dedication to servicemen,(which appears genuine); and his shrewd sense of the business. Additionally, Hope makes up for a lack of creative spark with a sound sense of comedy, which has helped him stay on top for a remarkable period. I like the way Marx has included excerpts from routines to provide period flavor. They furnish a sense of popular humor over time, and Hope was an expert purveyor of popular tastes until at least the 1960's when the unpleasant war-mongering side took over. Marx's style is easy and readable. Even so, as another reviewer has pointed out, there is a notable shortage of citations to back up fact. What there are consists of a list of persons interviewed for the book, which seems a little over general for a work of this type. Nevertheless, many allegations are also attributed by name from the list of interviewees. So, however you take it, be prepared for an eye-level approach to a legend who is also very much a flawed individual.

http://www.theforbiddenknowledge.com/hardtruth/english_reporter.htm
Excerpt:

http://www.time.com/time/magazine/article/0,9171,980446,00.html
Excerpt:

http://www.thetruthseeker.co.uk/oldsite/print.asp?ID=14
Excerpt:

http://www.freerepublic.com/focus/f-news/993980/posts
Excerpt:

http://en.wikipedia.org/wiki/List_of_people_pardoned_or_granted_clemency_by_the_President_of_the_United_States
Excerpt:

http://www.check-six.com/lib/Famous_Missing/Boggs.htm

John F. Kennedy

Democratic President John F. Kennedy pardoned, commuted or rescinded the convictions of 575 people during his term.^[9] Among them are:

• First-time offenders convicted of crimes under the Narcotics Control Act of 1956 - pardoned all, in effect overturning much of the law passed by Congress.

http://www.druglibrary.org/special/king/dhu/dhu16.htm
Excerpt:

The Drug Hang Up, America's Fifty-Year Folly

by Rufus King

Chapter 16

The Narcotic Control Act of 1956

EVEN TO THOSE who did not expect much of it, the way the Daniel Subcommittee wound up its work after the marathon hearings, was remarkable.  In January 1956 it produced a document of nine pages, submitted as its findings on the illicit narcotics traffic, and in April, a twenty-one-page report dealing with treatment and rehabilitation.  The United States had more addicts than any other Western nation, the Subcommittee concluded, with an alarmingly large percentage under twenty-one. The problem was growing at a startling rate, with incalculable
cost "in human lives shortened or destroyed."
Addiction was causing half the crimes committed in metro-politan areas, and a quarter of all reported in the entire nation.  Drug use was found to be "contagious" and addicts at large were spreading the habit "with cancerous rapidity."
With only 20 per cent of the known addict population in custody, the Subcommittee found it inevitable that "this con-tagious problem" would grow unless all addicts were removed from society for compulsory treatment, and if they could not be cured, "placed in a quarantine type of confinement or isolation." International smuggling activities aimed at the United States were declared to be increasing by leaps and bounds, and sub-version through drug addiction was found to be an established aim of Communist China, which was officially pushing the exportation of Chinese-manufactured heroin to enslave Ameri-cans at home and U.S. servicemen elsewhere in the free world,
American addicts were entering and leaving the country brazenly ("emphasized in the sworn testimony of one female addict who told the Subcommittee that she hid $1,000 worth of heroin in her vagina and smuggled it across the border at Nuevo Laredo each week for nearly a year").

http://www.famm.org/Repository/Files/11.FSR.21.1_55-68%5B1%5D.pdf

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 55

against drug trafficking and manufacturing; and provide

a more balanced scheme of penalties for drug crimes.

The final product, the comprehensive Drug Abuse Prevention

and Control Act of 1970, repealed mandatory

minimum drug sentences except in limited and serious

circumstances.

The Act was praised by both Republicans and Democrats

in Congress. Then-congressman George H. W. Bush

(R-Texas) spoke in favor of the repeal because it would

“result in better justice and more appropriate sentences.”

Supporting the repeal of drug mandatory minimums

exposed members of Congress to no political jeopardy.

Indeed, every senator, save one, and all but a handful of

House members who voted for repeal won reelection. There

is no evidence to suggest that any of the small number of

defeated members lost because of their vote for repeal.

In the mid- and late 1980s, Congress reinstated

mandatory minimum laws. This time, Congress was reacting,

in part, to the high-profile drug overdose of basketball

star Len Bias. The new laws were enacted without any

hearings, debate, or study.

Today, after twenty years of experience, it is clear that

the current mandatory minimums have failed as badly as

those enacted in the 1950s. The evidence leads to the following

conclusions about mandatory minimum

sentences:

• They have not discouraged drug use in the United

States.

• They have not reduced drug trafficking.

• They have created soaring state and federal corrections

costs.

• They impose substantial indirect costs on families

by imprisoning spouses, parents, and breadwinners

for lengthy periods.

• They are not applied evenly, disproportionately

impacting minorities and resulting in vastly different

sentences for equally blameworthy offenders.

• They undermine federalism by turning state-level

offenses into federal crimes.

• They undermine separation of powers by usurping

judicial power.

Correcting Course: Lessons from the 1970 Repeal of

Mandatory Minimums

MOLLY M.

GILL

Staff Attorney and

Special Projects

Director, Families

Against Mandatory

Minimums (FAMM)

Federal Sentencing Reporter,

©2008 Families Against Mandatory Minimums. Please direct requests for permission to photocopy or reproduce article content

to Families Against Mandatory Minimums: www.famm.org.

DOI: 10.1525/fsr.2008.21.1.55.

Vol. 21, No. 1, pp. 55–68, ISSN 1053-9867 electronic ISSN 1533-8363

These problems have caused many former prosecutors,

federal judges, and legal commentators to speak out

against mandatory minimums. A report by the nonpartisan

Federal Judicial Center, the education and research

arm of the federal courts, concluded by agreeing with the

findings of sentencing expert Michael Tonry, who said that

“[a]s instruments of public policy [mandatory minimums]

do little good and much harm.”

1

States are leading the reform effort with bipartisan

repeals of their own mandatory sentencing policies and by

turning to drug courts and other alternative solutions.

Today’s Congress, as the 91st Congress did in 1970,

should reform mandatory minimum sentencing. This

report presents two options: excise all mandatory minimums

for drug offenses found in the criminal code or

expand the existing “safety valve” to allow judges to depart

from the statutory sentence when that punishment would

be excessive. Either solution will result in better and more

cost effective criminal justice and pave the way for smarter

alternatives.

II. Introduction

“All men make mistakes, but a good man yields when he

knows his course is wrong, and he repairs the evil,”

Sophocles once wrote.

enough wise and good men and women to do something

unusual—repeal a tough criminal law that it had passed

twenty years earlier. By 1970, Congress had learned that

the mandatory minimum prison sentences it had passed

in the 1950s to combat drug trafficking crimes were a mistake.

These laws failed to reduce drug trafficking or drug

use, as their proponents had claimed they would.

A mandatory minimum sentence is a required minimum

term of punishment (typically incarceration) that is

established by Congress or a state legislature in a statute.

When a mandatory minimum applies, the judge is forced

to follow it and cannot impose a sentence below the minimum

term required, regardless of the unique facts and

circumstances of the defendant or the offense.

In 1951, Congress adopted the Boggs Act, named for its

sponsor, Representative Hale Boggs (D-LA), which

imposed harsh mandatory minimum sentences on those

convicted of drug crimes. Five years later, Congress added

even more punitive sentences, including the death penalty

for drug sales to a minor.

Over the next decade and a half, drug use soared. The

tough new laws did little to deter drug trafficking and

abuse, as both juvenile and adult drug usage rates

exploded during the 1960s. By the end of the decade, drug

use had moved out of the cities, into suburbia, and onto

campuses. Seemingly convinced that mandatory minimum

sentences for drug offenders were ineffective, a

broad, bipartisan majority in Congress voted to repeal

nearly all such sentences in 1970.

Today, federal lawmakers face the same dilemma that

their predecessors in the 91st Congress faced. In the

1980s, Congress responded to the media frenzy around

2 In 1970, Congress proved it had

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 56

the crack cocaine epidemic by enacting two antidrug

crime bills containing new mandatory minimum sentences.

Twenty years later, the results are in: the new

penalties have failed. These mandatory sentences are no

more effective than the similar sanctions adopted in the

1950s. The question now is simple: Will members of Congress

follow the example set by their predecessors in 1970

and eliminate mandatory minimums, or will they continue

to stand by a costly failed experiment?

To better educate members of Congress and the American

public about the choice at hand, this report presents

the history of the Boggs Act and its repeal. It then examines

the record of the mandatory minimums that were

enacted in the mid-1980s and finds that they have failed

for the same reasons as the mandatory sentences in the

Boggs Act. The report concludes that the current Congress

should follow the example of the 91st Congress in 1970,

correct course, and vote once again to reform mandatory

minimum sentences.

III. The Boggs Act: Congress Adopts

Mandatory Minimums

Since the founding of this nation, Congress has responded

to public concern about particular crimes by passing

tough mandatory sentencing laws. For example, as early as

1790, piracy triggered a mandatory sentence of life in

prison without parole. Many of these older mandatory sentences

are still on the books.

3

One noteworthy exception is the Boggs Act, which codified

tough mandatory drug sentences in 1951 and was

repealed in 1970. The history of these sentences and their

repeal is worth revisiting because it holds valuable lessons

for us today.

The Boggs Act of 1951 first codified mandatory minimum

sentences for the possession or sale of narcotics.

4

Findings from the heavily publicized hearings of the

Senate Special Committee to Investigate Organized

Crime in Interstate Commerce revealed a growing trend

in American society—drug addiction and trafficking

were increasing at alarming rates, particularly among

young people.

observed, “We need only to recall what we have read in

the papers this past week to realize that more and more

younger people are falling into the clutches of unscrupulous

dope peddlers.”

5 Representative Hale Boggs (D-LA)6

The Boggs Act attempted to curtail the use and distribution

of drugs with strict minimum sentences and fines

for violators. A first offense—even for simple possession

without intent to distribute—carried a minimum two- to

five-year prison term. A second offense carried prison

terms of five to ten years, and a third offense carried a sentence

of ten to fifteen years.

between drug users and drug traffickers for purposes of

sentencing.

Driving this and other antidrug laws adopted during

the period was Federal Bureau of Narcotics Commissioner

Harry J. Anslinger.

among juveniles, Anslinger argued that soft-hearted

judges were to blame. Long prison sentences, not rehabilitation,

were what young addicts needed.

described drug addicts as incurable, “spread[ing] addiction

wherever they are, … contaminat[ing] other persons like

persons who have smallpox.”

Anslinger said, would encourage, not deter, drug use by

young people. This was one of the few points Anslinger

made during his testimony that drew disagreement from

the investigating committee.

7 The act made no distinction8 Citing rising addiction and violence9 Anslinger10 Public education efforts,11

Anslinger’s answer to the growing abuse problem was

simple: Congress should pass lengthy mandatory minimum

prison terms for nearly all drug crimes.

when addiction was not well understood, Anslinger’s idea

proved popular, especially among members of Congress

who got a chance to show their constituents that they were

tough on crime. The Boggs Act passed easily.

12 At a time13

In 1955, four years after the Boggs Act became law,

another Senate subcommittee, headed by Senator Price

Daniel (D-TX), launched a nationwide investigation into

the traffic and sale of illegal narcotics.

investigation demonstrate the lack of understanding

many senators had about drugs. When asked by a member

of the subcommittee, Anslinger confirmed the “fact”

that marijuana users “ha[ve] been responsible for many

of our most sadistic, terrible crimes in this Nation, such

as sex slayings, sadistic slayings, and matters of that

kind.”

“[d]rug addiction is contagious. Addicts, who are not

hospitalized or confined, spread the habit with cancerous

rapidity to their families and associates.” The

solution was compulsory treatment, and, for those who

failed to respond to such treatment, “place[ment] in

quarantine type confinement or isolation.”

subcommittee’s investigation ended, it issued reports

finding that the United States had more drug addicts

than any other Western nation,

“contagious disease,” and “Red China” was attempting

to subvert American society by smuggling heroin into

the country.

14 Records of the15 The subcommittee’s report concluded that16 When the17 drug addiction was a18

The Narcotics Control Act of 1956 was a response to

both the Daniel Committee’s investigation and the growing

public outcry over escalating drug use. Sentences for

drug traffickers were increased to a five-year minimum for

a first offense and a ten-year minimum for all subsequent

violations. The act stripped judges of their ability to suspend

sentences or impose probation in cases where they

felt a prison sentence was inappropriate.

19

A. Evidence Shows Mandatory Minimums Ineffective

Far from stemming the rising tide of drug use among

America’s youth, the era of Anslinger, with its tough

mandatory sentencing laws, was followed by the Age of

Aquarius. The 1960s were a time when the popularity of

marijuana continued to grow on campus, and new hallucinogenic

drugs came on the scene. By 1967, use of

marijuana and psychedelic drugs was rooted in popular

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 57

youth culture, evidenced by the release of The Beatles’

album

replete with references to drug use.

Sgt. Pepper’s Lonely Hearts Club Band, which was20

When President Richard Nixon took office in 1969, he

decried the fact that the overall number of drug addicts in

America was in the “hundreds of thousands,” and the

number of college students using drugs was in the millions.

21

drug use had expanded beyond urban cities and into middle

and upper class neighborhoods.

He also said what many Americans saw firsthand:22

Instead of stimulating public pressure for even

stronger punishment for drug crimes, the grim statistics

convinced experts that harsh mandatory minimum sentences

were simply not working. Correctional

professionals agreed. In a poll conducted by the Senate

Judiciary Subcommittee on Juvenile Delinquency,

92 percent of federal prison wardens who responded

were opposed to the mandatory minimum sentence provisions,

and 97 percent were opposed to the prohibition

of probation or parole. Of the responding probation officers,

83 percent were opposed to mandatory minimums,

and 86 percent were opposed to the bar against probation

or parole. Of the federal judges who responded,

73 percent were opposed to mandatory minimums, and

86 percent were opposed to the absence of probation or

parole.

23

Federal policymakers began to search for a Plan B. In

1963, President John F. Kennedy convened the President’s

Advisory Commission on Narcotics and Drug Abuse to

address the public outcry over America’s illegal drug

addiction problem. The Prettyman Commission, as it was

known, studied drug use and the laws affecting those who

abused drugs.

The commission recommended rehabilitating individual

drug abusers and cautioned that where drug

possession penalties warranted imprisonment, “the

rehabilitation of the individual, rather than retributive

punishment, should be the major objective.”

24

“[P]enalties [should] fit offenders as well as offenses”

and “be designed to permit the offender’s rehabilitation

whenever possible.”

sentences were not effective deterrents: “persistence

of narcotics abuse, despite severe penalties for the possession

of narcotics, is persuasive evidence that the

abuser will risk a long sentence to get his drug,” the

commission concluded.

25 Stiff penalties and26

In addition to establishing the Prettyman Commission,

President Kennedy seems to have used his pardon

power to alleviate the impact of the mandatory minimums

created by the Narcotics Control Act of 1956.

1963, the annual report from the attorney general

revealed that “many long-term narcotic offenders who, by

statute, were not eligible for parole but whose sentences

were felt to be considerably longer than the average sentences

imposed for such [drug] offenses” received

commutations (reductions in their sentences) from the

president.

27 In28

When Attorney General Robert F. Kennedy learned

that the commutations of these drug offenders boosted

morale in prisons, he ordered the director of the Bureau of

Prisons to review cases with unequal sentences and to

present worthy cases to his office for recommendations in

favor of presidential clemency.

lengthy drug sentences imposed under the 1956

act was a signal to Congress that a policy change was

needed.

29 Interpreted broadly, commuting30

In 1966, President Lyndon B. Johnson established the

President’s Commission on Law Enforcement and Administration

of Justice, known as the Katzenbach

Commission, which produced a ten-volume study on federal

criminal justice. Among its recommendations was

that “[s]tate and federal drug laws should give a large

enough measure of discretion to the courts and correctional

authorities to enable them to deal flexibly with

violators, taking account of the nature and seriousness of

the offense, the prior record of the offender and other relevant

circumstances.”

31

B. Nixon and Congress Get Tough . . . and Repeal

Mandatory Minimums

President Nixon came to office in 1969 determined to curtail

the rampant drug problem. In a July 14, 1969,

message to Congress, the president called for drastic

changes to the federal drug control laws:

Within the last decade, the abuse of drugs has grown

from essentially a local police problem into a serious

national threat to the personal health and safety of millions

of Americans. … A new urgency and concerted

national policy are needed at the Federal level to begin

to cope with this growing menace to the general welfare

of the United States.

32

President Nixon’s prescription was not simply to lock

up drug addicts. In fact, speaking at a governors’ conference,

Nixon said that education and rehabilitation were

the best methods to counter drug abuse.

33

Nixon’s appointees also made clear that the Administration

did not see mandatory minimum sentences as a

cure-all for drug crime. Attorney General John Mitchell

testified before the Senate in support of “sentences which

are reasonably calculated to be deterrents to crime and

which also give judges sufficient flexibility.”

Egeberg, Assistant Secretary of Health, Education and

Welfare, decried mandatory minimums and called for

greater flexibility for sentencing judges in testimony he

delivered before the House.

34 Dr. Roger35

On July 14, 1969, Attorney General John Mitchell forwarded

to Congress the Administration’s proposed bill

calling for the reform of the laws governing drug use and

abuse.

the Comprehensive Drug Abuse Prevention and Control

Act of 1970, fundamentally altered the federal government’s

approach in dealing with drug abuse, drug

36 The final product that emerged from Congress,

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 58

manufacturing, and drug trafficking. Its purpose was

threefold:

• To address drug addiction through the rehabilitation

of drug users,

• To provide better tools for law enforcement’s fight

against drug trafficking and manufacturing, and

• To provide a “balanced scheme of criminal penalties

for offenses involving drugs.”

37

It sought to change the structure of all criminal penalties

for controlled substances to provide a “consistent

method of treatment of all persons accused of violations.”

38

mandatory minimum drug sentences, save one.

only mandatory minimum to survive repeal was for

offenders who participated in a “continuing criminal

enterprise,” a large-scale, ongoing drug operation that

earned significant profits.

Most significantly, it eliminated all of the39 The40

First-time violations of simple possession of a controlled

substance without the intent to distribute were

reclassified as misdemeanors carrying fines and probation;

judges could dismiss such charges without a finding

of guilt in instances where an offender did not violate the

terms of his or her probation and could expunge the

offense from minors’ records.

illegal drugs carried new punishments of

maximum of fifteen years’ imprisonment for a first violation,

and

for subsequent offenses or for adult dealers who sold

drugs to minors.

41 Manufacturing and distributingup to aup to a maximum of thirty years’ imprisonment42

Both Democrats and Republicans in Congress hailed

the act as a comprehensive reform that could counter

America’s growing drug problem by punishing drug traffickers

while rehabilitating drug abusers. Representative

George H. W. Bush (R-Texas) explained how reducing sentences

could actually reduce drug crime while increasing

fairness in and respect for the justice system:

[T]he complete overhaul of the existing Federal criminal

provisions applicable to drug related activities . . .

will improve law enforcement and foster greater

respect for the law. The bill eliminates mandatory

minimum penalties, except for professional criminals.

Contrary to what one might imagine, however,

this will result in better justice and more appropriate

sentences. . . . The penalties in this bill are not only

consistent with each other, but with the rest of the Federal

criminal law—something which cannot be said

for present drug laws. As a result, we will undoubtedly

have more equitable action by the courts, with actually

more convictions where they are called for, and

fewer disproportionate sentences.

43

Members from both parties argued that the mandatory

minimums then on the books limited judicial discretion,

were so harsh that courts and juries avoided applying the

sentences, and undermined respect for the laws in general.

Congressman John Glenn Beall, Jr. (R-Md.) argued

that “[ f ]ederal penalties for drug violations are inconsistent,

illogical, and unduly severe in some cases. [Repealing

mandatory sentences] would revamp the entire penalty

scheme, substituting a new and flexible system of penalties

which will enable courts to truly tailor the punishment

in any given case to fit the crime. Current penalties have

little or no deterrent value.”

(D-Va.) noted the “extreme difficulty in attempting to

dispense justice and in sentencing individuals who have

been convicted of violations where a minimum penalty is

required…[Repeal of minimum penalties] will afford our

courts greater latitude to the end that greater justice will

be served better.”

44 Congressman David Satterfield45

Members of Congress from both parties also cited the

support among law enforcement for reform: “It is the

opinion of most law enforcement people that the harsh

mandatory sentences in narcotics law have been a hindrance

rather than an aid to enforcement,” said

Congressman William L. Springer (R-Il.).

Edward Boland (D-Mass.) echoed these sentiments: “This

section on simple possession violations reflects the judgment

of most authorities that harsh penalties imposed on

the user have little deterrent value.”

(R-NY) observed that the Boggs Act “had a most severe

penalty—life imprisonment. That did not seem to dam up

the flow of narcotics nor the fast-spreading abuse of

drugs.”

46 Congressman47 Senator Jacob K. Javits48

Finally, members argued that targeting all offenders

with broad, unvarying sanctions was simply unfair,

whereas the changes made in the repeal would reserve

mandatory penalties only for the most serious drug

offenders: those involved in a “continuing criminal enterprise.”

49

under the new law, “persons established as professional

traffickers are exposed to appropriately severe penalties

with mandatory minimums—the only place in the penalty

scheme where these minimums are to be found.”

Senator Roman Hruska (R-Neb.) argued that50

Congress sent the 1970 act to President Nixon on October

14, and he signed the bill on October 27, mere days

before hotly contested midterm congressional elections.

President Nixon and Vice President Spiro Agnew campaigned

aggressively in key states and districts, and

frequent calls for “law and order” were a common feature

of many races.

all existing mandatory minimum drug sentences was not

in conflict with its pro-law enforcement campaign rhetoric.

51 To the Administration, repealing nearly

52

election was that every senator that voted for the 1970 act

and to repeal mandatory sentences was reelected, save one

who lost for completely unrelated reasons.

Perhaps the most noteworthy fact about the 197053

Likewise, all but only a handful of House members

who voted for the legislation were reelected, and none of

the losers appear to have been targeted over mandatory

minimums.

54

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 59

IV. Drug Mandatory Minimums Are Tried—and

Fail—Again

The popularity of recreational drug use continued to grow

in the 1970s. Marijuana and heroin use rose and cocaine

emerged as a fashionable drug among the professional

class. A handful of drug-related deaths suffered by young

rock-n-roll musicians, including Janis Joplin, Jimi Hendrix,

and Jim Morrison, stripped the veneer off the view

that drug use carried no danger, but it was not until the

1980s that public attitudes began to turn sharply against

drugs.

In the early 1980s a new drug, crack cocaine, emerged.

The drug was cheap and easy to transport,

of its use was viewed as “epidemic” in major cities around

the country.

increased drug-related violent crime,

of misperceptions about the addictiveness of the drug

and its effects on users.

to respond to mounting public fears and a media frenzy

surrounding crack,

to the news that basketball star and NBA first-round draft

pick Len Bias had died the night before from an overdose

from powder cocaine.

Congress wasted no time in responding to Bias’s highprofile

death with a display of political opportunism and

“tough on crime” stances that included no meaningful

reflection on the previous failure of mandatory minimums.

55 and the level56 The crack epidemic brought with it fears of57 along with a number58 As Congress was debating how59 Americans awoke on June 20, 198660 The tipping point was reached.

61

passed new antidrug penalties

The House Judiciary Committee drafted and62 in less than one week.63

The legislative history of this period reveals no hearings,

debate, or study preceding the adoption of these provisions.

64

Congress’s intent difficult, but one goal is clear: the

mandatory penalties were intended to apply to “serious”

and “major” traffickers.

minimums for simple possession of crack showed Congress’s

desire to fight use of the drug as well as drug

trafficking.

The lack of legislative history makes discerning65 In 1988, passage of mandatory66

These mandatory minimums came only a few years after

Congress, in 1984, created the U.S. Sentencing Commission.

67

Sentencing Guidelines, with the mandate that equally blameworthy

offenders get similar sentences.

the Guidelines also gave courts some flexibility to tailor sentences

to fit individuals or special circumstances.

This expert body wrote and implemented the U.S.68 At the same time,69

By 1994, harsh mandatory minimum drug sentences

had been imposed on thousands of minor drug offenders,

and stories of over-punishment were rampant. Congress

responded to mounting public pressure to change mandatory

minimums by enacting the “safety valve.”

“safety valve” permits courts to sentence certain nonviolent

drug offenders below the mandatory minimum if they

have a limited criminal history, did not play a leadership

role in the offense, did not possess a gun or use violence,

and provided the prosecution with all of the useful information

they had about the crime.

provides relief for about one quarter of federal drug

offenders annually, its terms are stringent, and a person

can easily fail to qualify for relief. For example, having

even one too many prior offenses on one’s record—even if

the offense is nonviolent or occurred when the person was

a juvenile—can be enough to fall outside the scope of the

safety valve’s protection.

70 The71 While the safety valve72

In light of Congress’s lack of deliberation when it created

the current mandatory minimums, it is not

surprising that the laws have failed just like their predecessors.

Current federal mandatory minimum penalties

have not curbed drug use or trafficking and have created a

myriad of other harmful side effects and costs. It is time

once again for Congress to end another costly, failed

experiment with mandatory minimums. The case for

doing so is much stronger now than it was in 1970, when

Congress first repudiated mandatory sentences, because

the hill of evidence has grown into a mountain. The evidence

supporting reform includes the following:

A. Mandatory Minimums Have Not Discouraged

Drug Use

While current mandatory minimums were targeted at

drug traffickers, Congress was also undeniably concerned

with reducing drug use.

would lock up drug traffickers, making drugs less

available and more expensive, thus resulting in reduced

drug use.

widely used measure of supply reduction effectiveness,”

and since 1981, the prices of both crack and powder

cocaine have dropped or remained consistently lower than

they were at the time mandatory minimums were

passed.

73 In theory, mandatory minimums74 The theory has not worked. Price is “the most75

Some of this price decline may be due to the fact that

the demand for drugs had already started to decline several

years

before mandatory minimums were enacted.76

Drug use dropped among all ages from its high of 14.1

percent in 1979 to 7.7 percent in 1988—a reduction of

nearly 50 percent.

sentences were attached not only to drug trafficking

offenses but also to simple possession of crack cocaine,

the new stiff penalties’ deterrent effect, if any, should manifest

itself in falling usage of that drug. Mandatory

minimums, however, did not decrease usage rates for

crack and powder cocaine; rather, use decreased when

negative media coverage increased the perception that

using the drugs was dangerous and socially unacceptable.

77 At a minimum, since mandatory minimum

78

increased.

When this perception decreased, usage of the drugs79

B. Mandatory Minimums Have Failed to Reduce

Drug Trafficking Offenses

80

Proponents of mandatory minimums point to reduced

national crime rates as evidence that the tough sentences

work. Despite more than fifty years of experimenting with

mandatory minimums, however, backers can point to no

conclusive studies that demonstrate any positive impact of

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 60

federal mandatory minimum sentences on the rate at

which drugs are being manufactured, imported, and trafficked

throughout the country.

statistics do not include these types of drug trafficking

offenses, so they cannot show whether mandatory sentences

are reducing drug trafficking activity.

from both the Federal Bureau of Investigation

Bureau of Justice Statistics

number of drug offenders arrested at both the state and

federal levels over the last decades, as well as increases in

the amount of drugs seized by law enforcement each

year.

enforcement of drug laws, or both, but there is no

definitive connection between mandatory minimums and

reductions in drug trafficking offenses.

Large numbers of drug addicts support their habits by

committing drug trafficking offenses. In 2004, almost 60

percent of federal drug traffickers reported using drugs in

the month before the offense; a third were using drugs at

the time of the offense.

of a federal drug offense committed their crimes to

get money to buy drugs.

offenders in 2004 met the official criteria for having a

drug abuse or dependence problem.

give drug addicts and drug traffickers lengthy

prison sentences but have failed to solve the drug abuse

problems that lead to possession and trafficking offenses.

81 National crime rate82 In fact, data83 and the84 show a steady increase in the85 This data could be proof of more drug activity, better86 A full quarter of all those convicted87 Over half of all federal drug88 Mandatory minimums

C. Mandatory Minimums’ Failure Comes with

Billions of Dollars in Direct Costs

Mandatory minimums apply to almost all federal drug

offenses, and the majority of people in federal prisons are

drug offenders. From 1990 to 2000, drug offenders

accounted for 59 percent of the growth in the federal

prison population.

were serving sentences for a drug offense.

number of drug convictions contributes to the growth in

the federal prison population. Between 2000 and the end

of 2006, the federal prison population grew by an average

of nearly 5 percent annually.

2008, the federal prison population passed the 200,000

mark, and more than half of these prisoners are serving

time for a drug crime.

largest category of federal convictions (almost 35 percent

of all 2007 convictions),

these offenders received mandatory minimums.

89 In 2000, 57 percent of federal prisoners90 The large91 The trend continues: in92 Drug offenses continue to be the93 and more than 65 percent of94

Because the U.S. Sentencing Commission has used

mandatory minimums as the starting point for calculating

other drug sentences under the Guidelines, almost all

drug sentences have gotten longer.

95

Greater use of prison sentences for drug crimes and

longer sentences required by mandatory minimums have

driven a dramatic increase in federal corrections costs. In

the five-year period from 1987 to 1992, during which the

1986 and 1988 mandatory minimums were fully implemented,

federal correctional spending increased by 266

percent. Between 1987 and 2007, federal correctional

spending increased 550 percent.

spent over $5.4 billion on federal prisoners.

96 In 2007, American taxpayers97

D. Mandatory Minimums Also Impose Substantial

Indirect Costs

Congress has determined that the long prison terms (and

corresponding isolation from society, families and

employment) of many of the 650,000 state and federal

prisoners released annually actually create a public safety

problem in the communities they reenter. In the Second

Chance Act, passed in 2008, Congress recognized that

high rates of recidivism are common among people who

reenter society after serving long sentences, as they usually

emerge from prison with few job skills and little

remaining social network.

98

Another indirect cost of long mandatory minimum

sentences is incurred by the families and children of the

prisoners, who lose breadwinners, spouses, and parents

when a loved one is incarcerated. At least 1.5 million children

have a parent in prison—an increase of more than

500,000 children since 1991. The majority of these children

are under ten years old.

risk of going to prison themselves without proper

support.

99 These children are at high100

E. Mandatory Minimums Create

Unwarranted Disparities

In 2007, blacks and Hispanics made up approximately 67

percent of all federal offenders sentenced

of all federal drug offenders,

about 28 percent of the United States’ population.

racial disparity is partly driven by mandatory minimum

sentences,

imposed on crack cocaine offenses than powder

cocaine offenses.

crack cocaine offenders were black,

of crack cocaine users were whites or Hispanics

101 and 72 percent102 but comprised only103 This104 particularly the far harsher mandatory sentences105 In 2007, over 80 percent of federal106 even though twothirds107

and blacks comprised less than 18 percent of the nation’s

crack cocaine users.

minimum sentences for crack cocaine were used as a

starting point for calculating the rest of the Guideline

ranges for other crack offenses in the U.S. Sentencing

Guidelines.

uniformly harsher than those for powder cocaine offenses.

In 2006, crack cocaine sentences (both mandatory terms

and those calculated under the Guidelines) were 44 percent

longer than powder cocaine sentences.

108 The five- and ten-year mandatory109 As a result, sentences for crack offenses are110

The way mandatory minimums are applied can also

undermine the principle that two equally culpable defendants

who committed the same crime should generally get

the same sentence. Two equally blameworthy defendants

facing the same mandatory minimum can, in fact, receive

very different sentences, depending on what they know or

which prosecutor they get. More culpable defendants can

get shorter sentences than their less culpable cohorts, too.

One of the only ways to be sentenced below the mandatory

minimum is to provide “substantial assistance” to the

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 61

prosecution by sharing information about the crime and

other offenders.

encouraged and necessary to expedite cases through the

system but can result in inequity when offenders are sentenced

more harshly than their equally culpable

codefendants solely because they have little or no valuable

information to offer.

is considered valuable, which influences whether a

person gets a reduction.

111 Offering assistance to the prosecution is112 Prosecutors decide what information113

F. Mandatory Minimums Undermine Federalism and

Separation of Powers

Mandatory minimum laws enacted against drug users

have federalized offenses that fall under state jurisdiction.

This federalization occurs because federal mandatory minimums

are being applied to a much larger group of

offenders than their proponents intended.

Designed to bring down “kingpins,” the whales of drug

trafficking,

also being used to prosecute the minnows. For example,

66 percent of federal crack cocaine offenders in 2005 had

only low-level involvement in drug activity, working as

street-level dealers, lookouts, couriers or other such positions.

114 the federal mandatory minimum laws are

115

a managerial or supervisory level, and less than a third (31

percent) were importers, high-level suppliers, organizers,

leaders, or wholesalers, the functions most consistent with

those Congress believed warranted high mandatory minimum

penalties.

Sentencing Commission, indicate a “failure to focus

scarce federal law enforcement resources on serious and

major traffickers,” and “exaggerate the culpability” of the

majority of crack cocaine offenders in terms of their trafficking

function.

mandatory minimum drug sentencing regimes.

Only 2 percent performed trafficking functions at116 These figures, according to the U.S.117 Similar effects are found across other118

State law enforcement is well equipped to handle the

local and community-level drug offenses perpetrated by

many offenders currently receiving federal mandatory

minimums. Federal resources should be limited to targeting

the people the states lack the resources and

jurisdiction to fight: large-quantity international drug

importers, producers, and suppliers.

119

The Constitution’s separation of powers is also violated.

Rather than allowing judges to use their intrinsic judicial

power of discretion to impose criminal sentences, mandatory

minimums have been a power grab by both the

legislative and executive branches. First, the legislative

branch dictated one-size-fits-all sentences that courts must

follow. Second, the executive, in the person of the prosecutor,

influences the sentence because prosecutors have

discretion to choose certain charges on the basis of the

penalties they carry.

For all of these reasons, there has been steadily growing

criticism of mandatory minimums by former prosecutors,

120

organizations.

(USSC) studied the impact of mandatory minimum

sentences.

minimums, finding that they too often result in sentences

out of proportion with an individual offender’s culpability,

that they discourage plea bargaining, and that they have the

greatest impact (in terms of length of sentence) on the least

serious drug crimes.

Center, the education and research agency for the

federal courts, summed up the judicial consensus on

mandatory minimums well: “federal mandatory minimum

sentencing statutes have not been effective for achieving the

goals of the criminal justice system.”

William H. Rehnquist said, “mandatory minimums . . .

frustrate the careful calibration of sentences, from one end

of the spectrum to the other, which the Sentencing Guidelines

were intended to accomplish.”

Kennedy, speaking at the 2003 annual meeting of the American

Bar Association, also condemned mandatory

sentences: “I can accept neither the necessity nor the wisdom

of mandatory minimum sentences. In too many cases,

mandatory minimum sentences are unwise and unjust.”

federal judges,121 and other commentators and122 In 1991, the U.S. Sentencing Commission123 In its report, the USSC criticized mandatory124 The 1994 report by the Federal Judicial125 Chief Justice126 Justice Anthony M.127

V. Time to Correct Course

It is time for Congress to correct course and bring its

failed experiment with mandatory minimum sentences to

an end, just as the Ninety-first Congress did in 1970. Congressional

action is now overdue, because other American

legislative bodies have led the way in reforms.

There is a strong, bipartisan mandatory minimum

reform and repeal movement at the state level. At the height

of their popularity in the mid-to-late 1970s to 1980s, mandatory

minimum drug sentences existed in forty-nine states.

128

State correctional spending increased from an aggregate $6

billion in 1982 to over $39 billion in 2003, an increase of

over 550 percent.

on state budgets, as well as an evolving understanding of

effective sentencing and punishment, many states have

revisited these policies.

their mandatory minimums, especially those covering

low-level, nonviolent drug offenses, or creating alternatives

to incarceration for these offenders.

129 In part because of the pressure this put130 States are reforming or eliminating131

Michigan, for example, under Republican Governor

John Engler, repealed nearly all of its mandatory minimum

drug sentences in 2003, replacing them with a more

flexible sentencing Guidelines system.

Louisiana repealed mandatory sentences for simple possession

of drugs and cut its minimum drug trafficking

terms by half.

mandatory minimum for first-time drug offenders, and

Connecticut allowed courts more freedom to disregard

mandatory penalties for drug possession or dealing when

“good cause” to do so exists, even if the offense occurred in

a “drug-free school zone.”

132 In 2001,133 The same year, North Dakota repealed its134

In addition to repealing mandatory minimums, states

are also finding smarter, more cost-effective ways to deal

with drug offenders. In 2007, Texas legislators replaced

prison sentences in low-level, first-time felony drug pos-

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 62

session cases with mandatory drug treatment. Since

2006, Kansas has revised automatic penalty enhancements

for second, third, and subsequent possession

offenses.

of Columbia now operate drug court programs, which are

alternative sentencing systems typically combining intensive

drug and mental health treatment with community

supervision arrangements.

that drug courts are cost-effective, reduce recidivism, and

lower crime rates, and the number of these courts has

increased as states have gotten the message.

Rick Perry described these programs as “help[ing]

break the cycle of addiction and crime by using the authority

of the court to promote accountability and enhance

motivation for treatment.”

there has been no evidence of electoral backlash against

the politicians who have backed these state-level reforms.

Unlike in 1970, reform of federal mandatory minimums

today would not initiate an ad hoc approach to

sentencing, thanks to the Sentencing Guidelines.

Guidelines give judges the ability to protect public safety

by sentencing harshly when it is deserved. An offender

with numerous prior convictions, a gun, or a role as a

manager or leader can often receive a Guideline sentence

that is longer (and sometimes much longer) than the currently

applicable mandatory minimum.

135 Jurisdictions in all fifty states and the District136 Studies continue to show137 Texas Governor138 Interestingly, as in the 1970s,139 The140

VI. Recommendations for Reform

The last twenty years, like the twenty years preceding the

repeal of the Boggs Act, have shown mandatory minimums

to be ineffective, expensive, and increasingly

abandoned by states that enacted them. Now is the time

for Congress to do as the 1970 Congress did and reform

mandatory minimum drug sentences. Reform could be

accomplished in several ways:

A. Excise Mandatory Minimums from the

Criminal Code

Congress could excise all mandatory minimums for drug

offenses found in Title 21 of the U.S. Code, while retaining

the existing statutory maximums and Sentencing

Guidelines for those offenses. The Guidelines, while

indexed to the mandatory minimums, are nuanced and

capable of accounting for important differences among

offenders. Allowing the Guidelines to stand alone would

give the courts flexibility to impose appropriate sentences

in all cases.

B. Expand the Existing Statutory Safety Valve

Congress could maintain the current mandatory minimum

sentences, but provide courts an opportunity to opt

out of them in certain cases by expanding the existing

statutory safety valve.

suspension of the mandatory minimum sentences in drug

cases when a judge finds the case meets certain criteria.

141 Currently, the safety valve allows142

When those strict criteria are met the court may impose a

Guideline sentence in lieu of the mandatory minimum

sentence.

Congress could expand the safety valve by permitting

courts to invoke it when, after looking at all the relevant

facts and circumstances of the case and considering the

purposes of punishment, imposing the mandatory minimum

sentence would violate the parsimony mandate

found in 18 U.S.C. § 3553(a). This provision directs judges

to impose a sentence that is “sufficient but not greater than

necessary to comply with the purposes” of sentencing.

143

This mandate is a longstanding, highly esteemed, and

uncontroversial feature of American sentencing law.

144

VII. Conclusion

Twice in the past half century, Congress has enacted

mandatory minimum sentencing laws to combat public

fears about drug abuse and drug trafficking. Both times,

the mandatory sentencing laws have failed to alleviate

these problems. Worse, the laws caused other serious

problems, including skyrocketing spending on corrections

at the state and federal level. In 1970, Congress and a new

Administration committed to reducing crime and drug

abuse wisely repealed the failed mandatory minimum

laws enacted in the Boggs Act of 1951 and the Narcotics

Control Act of 1956.

The current mandatory minimum laws, enacted during

the crack cocaine epidemic of the mid-1980s, have

imposed too many burdens with no corresponding benefit.

It is time once again for Congress to correct course and

eliminate mandatory minimum sentences for drug

offenders.

VIII. Acknowledgments

For their generous assistance, many thanks are due to

FAMM board member Eric Sterling and FAMM intern

Lenora Yerkes and to Leon Greenfield, Perry Lange, and

Edward Sharon of the Washington, D.C., law office of

WilmerHale. This report was designed by Lucy Pope at

202design and produced with the financial support of the

William D. Smythe Foundation and David H. Koch.

Notes

*

Gang Unit Law Clerk for the Hennepin County Attorney’s

Office in Minneapolis, Minnesota and later practiced corporate

and construction litigation. She has a law degree from

the University of Minnesota Law School and a bachelor’s

degree from Oral Roberts University.

Before working in sentencing reform, Molly served as the

1

Mandatory Minimum Prison Terms

(1994), at 32 (quoting Michael Tonry, ed.,

in

(1990)).

Barbara S. Vincent & Paul J. Hofer, The Consequences of, Federal Judicial CenterMandatory Penalties,16 CRIME & JUSTICE: A REVIEW OF RESEARCH 243-44

2

trans., Harcourt Brace 1939).

SOPHOCLES, ANTIGONE 233 (Dudley Fitz & Robert Fitzgerald

3

M

U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS:ANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE

S

www.ussc.gov/r_congress/MANMIN.PDF (last visited July 23,

2008) [hereinafter 1991 USSC R

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 63

YSTEM 5, 10, App. A (Aug. 1991), available at http://EPORT].

4

Act of Nov. 2, 1951, ch. 666, 65 Stat. 767 (repealed 1970).

5

S. REP. NO. 82-725, at 3 (1951).

6

97 Cong. Rec. 8198 (1951).

7

Act of Nov. 2, 1951, ch. 666, 65 Stat. 767 (repealed 1970).

8

(1972).

RUFUS KING, THE DRUG HANG-UP: AMERICA’S FIFTY-YEAR FOLLY 113

9

Before the Senate Special Comm. to Investigate Organized

Crime in Interstate Commerce

(1951) [hereinafter

Harry J. Anslinger).

Investigation of Organized Crime in Interstate Commerce: Hearings, 82d Cong., pt. 12, 663, 666-67Organized Crime Hearings] (testimony of

10

Id. at 665.

11

ultimately expressed its disagreement with Anslinger: “[L]ike

any disease [drug addiction] can be attacked with greater

vigor if brought out in the open and discussed in a forthright

manner. If by education the young people of the Nation can

be made aware of the true character of narcotic drugs and

the dangers of addiction, they will become strong fighters in

the campaign against the evil.” S. R

Id. at 663; King, supra note 8, at 118, 146. The committeeEP. NO. 82-725, at 29.

12

Organized Crime Hearings, at 664.

13

KING, supra note 8, at 113.

14

the Judiciary, Subcomm. on Improvements in the Federal Criminal

Code

Illicit Narcotics Traffic: Hearings Before the Senate Comm. on, 84th Cong. (1955).

15

user has been responsible for many of our most sadistic, terrible

crimes in this Nation, such as sex slayings, sadistic

slayings, and matters of that kind?”).

Id., pt. 4, at 18 (“Is it or is it not a fact that the marihuana

16

S. REP. NO. 84-1850, at 2, 20 (1956).

17

S. REP. NO. 84-1440, at 2 (1956).

18

Id. at 3-4.

19

(1954) (repealed 1970)).

Section 103, 70 Stat. 568 (codified at 26 U.S.C. §7237

20

(1985).

See MARTIN A. LEE & BRUCE SHLAIN, ACID DREAMS 179-182

21

and Dangerous Drugs

(July 14, 1969),

ws/index.php?pid=2126&st=&st1= (last visited June 17, 2008).

Richard Nixon, Special Message to the Congress on Control of Narcotics, The American Presidency Projectavailable at http://www.presidency.ucsb.edu/

22

Conference at the Department of State, The American

Presidency Project (December 3, 1969),

www.presidency.ucsb.edu/ws/index.php?pid=2353&st=&st1=

(last visited June 17, 2008).

Richard Nixon, Remarks at the Opening Session of the Governors’available at http://

23

Comm. on S. 2113, S.2114, S. 2152 and LSD and Marihuana

Use on College Campuses

(1966) (statement of Dean F. Markham) (from testimony

given by Markham at the 1962 White House Conference on

Narcotics);

Hearings Before a Special Subcomm. of the Senate Judiciary, 89th Cong., Exhibit 80, at 613Dodd Blasts Parole-less Drug Terms, WASH. POST

(Sept. 29, 1962), at C3.

24

THE PRESIDENT’S ADVISORY COMMISSION ON NARCOTIC AND DRUG

A

BUSE, FINAL REPORT 4 (Nov. 1963).

25

Id. at 3.

26

Id.

27

Pardons

Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential, 13 F. SENT. REP. 139, 142 (2001).

28

62-63.

Id. quoting Annual Report of the Attorney General, 1963, at

29

Id. at n. 23.

30

how clemency can be used systematically to create and

spur policy changes);

the President’s Pardon Power

(2007) (“In a more recent ‘systematic’ use of the power evidently

intended to send a message to Congress, Presidents

Kennedy and Johnson commuted the sentences of more than

200 drug offenders serving mandatory minimum sentences

under the Narcotics Control Act of 1956.”).

See Shanor & Miller, supra note 27, at 139, 142-43 (describingsee also Margaret Colgate Love, Reinventing, 20 F. SENT. REP. 5, 6

31

THE CHALLENGE OF CRIME IN A FREE SOCIETY: A REPORT BY THE PRESIDENT’S

C

OMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF

J

USTICE 223 (Feb. 1967).

32

Supra note 21.

33

Supra note 22.

34

Juvenile Delinquency of the Senate Judiciary Comm.

Cong. 216 (Sept. 15, 1969) (statement of Attorney General

John Mitchell); Jack Rosenthal,

Stand

Narcotics Legislation: Hearings Before the Subcomm. to Investigate, 91stNixon Aides Ease Marijuana, N.Y. TIMES (Oct. 14, 1969), at A1, A19.

35

Select Comm. on Crime

of Roger O. Egeberg); Rosenthal,

Crime in America: Views on Marihuana: Hearings Before the House, 91st Cong. 7 (Oct. 14, 1969) (statementsupra note 34, at A19.

36

H.R. REP. NO. 91-1444, pt. 1, at 2 (1970).

37

Id. at 1.

38

Id.

39

punishable by a mandatory minimum sentence of ten years

to life in prison.

required a mandatory minimum sentence of twenty years to

life.

Id. at 4-5. Engaging in a “continuing criminal enterprise” wasId. at 5. Second offenses under this provisionId. at 10.

40

at 21 U.S.C. § 848 (2007)).

See Pub. L. No. 91-513, 84 Stat. 1265 (codified as amended

41

H.R. REP. NO. 91-1444, pt. 1, at 11.

42

Id. at 5.

43

116 Cong. Rec. 33,314 (1970).

44

Id. at 33,313-314.

45

Id. at 33,313.

46

mandatory minimums made prosecutors reluctant to charge

and juries reluctant to convict).

Id. at 33,300; H. REP. NO. 91-1444, pt. 1, at 11 (noting how

47

116 Cong. Rec. 33,316 (1970).

48

Id. at 35,077.

49

criminal enterprise”).

See supra note 40 and accompanying text (explaining “continuing

50

116 Cong. Rec. 35,052 (1970).

51

1970 CQ Almanac, at 1071.

52

were based on an Administration proposal submitted to Congress.

According to Representative Clark MacGregor (R-MN),

“Title II of H.R. 18583 grew out of the Nixon administration’s

proposal, which came up last year, for a reorganization of all

existing narcotic and dangerous drug control laws…. Among

changes common to both proposals would be…. a complete

revision of the existing penalty structure, including making

any first-time simply [sic] possession offense a misdemeanor,

regardless of the drug involved, and easing penalties for second-

time possession offenses. Also, mandatory minimum

penalties would be eliminated, except for a special class of

professional offenders.” 116 Cong. Rec. 33,315 (1970).

In fact, the alternative penalty provisions in the 1970 act

53

lost his seat running as an independent against moderate

Republican House member Lowell P. Weicker, Jr.

The Senate had censured Dodd in 1967 for diverting funds

for his personal use, thus making it unlikely that he could win

a Senate nomination in a Democratic primary. Running as an

Independent, he ultimately split the Democratic vote, helping

the Republican win.

Supra note 51, at 1072. Senator Thomas Dodd of ConnecticutId. at 1076.Id. at 1072.

54

role in some of the elections in which party shifts occurred.

Id. at 1080. Local factors such as redistricting played a key

Id

with Nixon’s agricultural policies were significant

factors that led to losses of seats in other districts, particularly

in the Midwest.

. at 1077. Unemployment, recession, and farmer dissatisfactionId. at 1077, 1081.

55

cocaine sells for at least $100, two small pieces of crack, or

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 64

enough to get three people high can be purchased in almost

any American city for about $10.”) (statement of Rep.

LaFalce);

of a cassette tape, and make people into slaves.”) (statement

of Sen. Chiles).

See, e.g., 132 Cong. Rec. 22,993 (1986) (“While a gram ofid. at 26,447 (“[Crack] can be bought for the price

56

called crack is now becoming a major problem in many

cities.”) (statement of Rep. Traficant);

have an epidemic in this country with regard to all kinds of

controlled substances.”) (Statement of Sen. Biden).

See, e.g., id. at 22,667 (“A new form of freebase cocaineid. at 26,437 (“We do

57

in New York City is said by many law enforcement officials in

that city to have caused a rise in violent crimes last year.”)

(statement of Rep. Traficant);

robberies and other crimes committed in connection with

drug use or sales) (statement of Sen. Chiles).

See, e.g., id. at 22,667 (1986) (“The widespread use of crackid. at 31,329-30 (describing

58

(statement of Sen. D’Amato regarding S. 2580) (calling

crack “more addictive” than powder cocaine); 132 Cong. Rec.

31,329 (1986) (“[I]f you try it once, chances are that you will

be hooked. If you use it up to three times, we know that you

will become hooked, and it is the strongest addiction that we

have found.”) (statement of Sen. Chiles).

See, e.g., 132 Cong. Rec. S8092 (daily ed. June 6, 1986)

59

drug related deaths of several famous athletes “precipitated

a media blitz on the problem of drugs in America.”) (statement

of Rep. Traficant);

hearing the same things T

heard. It is the same thing N

heard. … [P]eople are fed up with drugs.”) (statement of

Sen. Chiles).

See, e.g., 132 Cong. Rec. 22,667 (1986) (describing howid. at 26,447 (“The politicians areIME magazine and NEWSWEEK haveIGHTLINE, NBC, and CBS have

60

Public Concern, Election-Year Sensitivity United Congress on

Issue

Rec. 26,453 (1986) (statement of Sen. Mattingly describing

how a “national outcry” arose from Len Bias’s death and the

resulting media coverage).

See, e.g., Edward Walsh, Bias’ Death Fueled Antidrug Fervor;, WASH. POST (Sept. 14, 1986), at A1; see also 132 Cong.

61

surrounding the recent tragedy stemming from drug abuse,

this issue has become fertile ground for political and Federal

hype.”) (statement of Rep. Weiss);

about a war [on drugs]. I love to use that term, because it

sounds tough; it makes good talk, good speeches.”) (statement

of Sen. DeConcini);

Senate is acting in response to a public outcry, and that we

may be acting with undue haste.”) (statement of Sen.

Specter);

an adequate opportunity to study this enormous package. It

did not emerge from the crucible of the committee process,

tempered by the heat of debate.”) (statement of Sen. Mathias).

132 Cong. Rec. 22,690 (1986) (“[B]ecause of the publicityid. at 26,440 (“We talkid. at 26,460 (“Some say theid. at 26,462 (“Very candidly, none of us has had

62

(1986).

H.R. 5394, 99th Cong. (1986); H. REP. NO. 99-845, pt. 1

63

Politics and Reform

how no committee hearings were held). “The careful,

deliberate procedures of Congress were set aside to expedite

passage of the bill.”

Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition, 40 VILL. L. REV. 383, 408 (1995) (describingId.

64

See id. at 408; see also U.S. SENTENCING COMMISSION, SPECIAL

R

EPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY

117 (Feb. 1995),

chap5-8.pdf (last visited August 27, 2008) (describing lack

of legislative history in passage of 1986 law).

available at http://www.ussc.gov/crack/

65

traffickers as “the manufacturers or the heads of organizations

who are responsible for creating and delivering very

large quantities” and serious traffickers as “the managers of

the retail level traffic, the person who is filling the bags of

heroin, packaging crack cocaine into vials . . . and doing so in

substantial street quantities.”).

H.R. REP. NO. 99-845, pt. 1, at 16-17 (1986) (defining major

66

Rec. H7,704 (daily ed. Sept. 16, 1988) (statement of Rep.

Hunter) (stating that crack cocaine “causes greater physical,

emotional, and psychological damage than any other commonly

abused drug.”).

See Pub. L. No. 100-690, 102 Stat. 4181 (1988); 134 Cong.

67

28 U.S.C. § 991 (2007)).

Pub. L. No. 98-473, 98 Stat. 2017 (codified as amended at

68

473, 98 Stat. 2019 (codified as amended at 28 U.S.C. § 994

(2007)) (describing the Commission’s duties and powers).

See 28 U.S.C. § 991(b)(1)(B) (2007); see also Pub. L. No. 98-

69

may be increased or decreased based on factors “not

adequately taken into consideration by the Sentencing Commission

in formulating the guidelines”).

See, e.g., U.S.S.G. § 5K2.0 (2008) (describing when a sentence

70

2199 Before the Subcomm. on Crime and Criminal Justice of

the House Comm. on the Judiciary

(1993).

See Federal Mandatory Minimum Sentencing: Hearing on H.R., 103rd Cong., 1st sess. 30

71

No. 104-294, 110 Stat. 3499 (codified as amended at 18

U.S.C. § 3553(f) (2007)).

Pub. L. No. 103-322, 108 Stat. 1985, as amended by Pub. L.

72

See id.; U.S. SENTENCING COMMISSION, 2007 SOURCEBOOK OF FEDERAL

S

ENTENCING STATISTICS Table 44 (2007), available at

http://www.ussc.gov/ANNRPT/2007/SBTOC07.htm (last visited

July 22, 2008) [hereinafter USSC 2007 S

OURCEBOOK].

73

about crack is that it has made cocaine widely available

and affordable for abuse among our youth.”) (statement of

Rep. Rangel);

crisis by attacking both the supply and the demand end.”)

(statement of Sen. Mattingly).

See, e.g., 132 Cong. Rec. 944 (1986) (“What is most frighteningid. at 26,453 (“The bill seeks to solve the drug

74

“drug pushers [were arrested] before they have the chance to

peddle their poison.”) (statement of Rep. Fields);

22,706 (describing how the threat of mandatory minimums

would deter drug traffickers, reducing drug use by “taking the

profit out of dealing.”) (statement of Rep. Jones);

22,993 (“Those that traffic in drugs do so for profit. It is big

business and if we are to have any success at all we must

alter the balance between the rewards, which are often vast,

and the punishment, which is often too slight to dilute the

attraction of the millions that can be made in the drug

trade.”) (statement of Rep. LaFalce);

See, e.g., id. at 22,688 (arguing that use would decrease ifid. atid. atsee also U.S. SENTENCING

C

OMMISSION, REPORT TO THE CONGRESS: Cocaine AND FEDERAL SENTENCING

P

C

the

traffickers or through the incapacitation of traffickers who

are integral to the cocaine market.”) (emphasis in original).

OLICY 64 (May 2002) [hereinafter 2002 USSCOCAINE REPORT] (“In theory, sentencing policies might reducesupply of cocaine through the deterrence of potential

75

2002 USSC COCAINE REPORT, supra note 74, at 65-67.

76

Id. at 72.

77

AND

NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE, SUBSTANCE ABUSEMENTAL HEALTH SERVS. ADMIN, DEP’T OF HEALTH AND HUMAN

S

(last visited June 30, 2008).The percentages used here refer

to those who reported having used drugs during the past

thirty days; this thirty-day usage window is the most commonly

used measure for charting drug use.

ERVS., available at http://oas.samhsa.gov/nhsda/98mf.pdf

78

U.S. D

N

14,

monographs/vol2_2005.pdf (last visited July 30, 2008).

NATIONAL INSTITUTE ON DRUG ABUSE, NATIONAL INSTITUTE OF HEALTH,EP’T OF HEALTH & HUMAN SERVICES, MONITORING THE FUTURE:ATIONAL SURVEY RESULTS ON DRUG USE, 1975-2005, VOL. II 12-available at http://monitoringthefuture.org/pubs/

79

Id.

80

only growing, manufacturing, buying, selling, supplying,

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 65

importing, exporting, and otherwise transporting or distributing

illegal drugs. This term does not include other crimes

committed while under the influence of drugs (i.e., murder,

assault) or crimes that do not involve drugs but are committed

to obtain money for drugs (i.e., burglary, robbery, petty

theft).

“Drug trafficking offenses,” as used in this report, includes

81

longer mandatory sentences and crime rates is difficult. Yet

the burden falls on the proponents of mandatory minimums

to provide evidence that they are working. The proponents

have shown none.

All sides in the debate agree that proving causality between

82

P

available at http://www.fbi.gov/ucr/2007prelim (last visited

June 17, 2008) (describing nation-wide statistics only for violent

crimes such as murder, robbery, rape, and arson, but not

for

collects regarding drug trafficking offenses is the annual

number of arrests for

See, e.g., FEDERAL BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE,RELIMINARY ANNUAL UNIFORM CRIME REPORT (June 9, 2008),federal drug trafficking offenses). The only data the FBIstate and local “drug abuse violations.”

83

C

www.fbi.gov/ucr/Cius_97/95CRIME/95crime4.pdf (last visited

Sept. 5, 2008) (“The 1995 drug abuse violation arrest

total was 7 percent above the 1994 level, 41 percent higher

than in 1991, and 65 percent higher than in 1986.”);

Table 29 with Federal Bureau of Investigation, U.S. Dep’t of

Justice, Crime in the United States Table 29 (2006),

at

visited Sept. 5, 2008) (showing an increase from 1,476,100

drug abuse violation arrests in 1995 to 1,889,810 such

arrests in 2006).

See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE,RIME IN THE UNITED STATES 207 (1995), available at http://cf. id. atavailablehttp://www.fbi.gov/ucr/cius2006/data/table_29.html (last

84

100,000 inhabitants) of drug-related arrests increased by

250% in the 1980s, from 66 per 100,000 (in 1980) to 231 per

100,000 (in 1989).

In cities with populations of over 100,000, the rate (perSee SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS

1991, U.S. D

EP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS

472, Table 4.32 (Timothy J. Flanagan & Kathleen Maguire eds.,

1992). This trend holds true for the 1990s and today.

See

B

UREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL CRIMINAL

J

USTICE TRENDS, 2003, at 1 (August 2006), available at

http://www.ojp.usdoj.gov/bjs/pub/pdf/fcjt03.pdf (last visited

June 18, 2008) (showing an average 4.4% annual increase in

the number of federal drug offense arrests between 1994 and

2003); B

S

Charged With Violation of Drug Laws in U.S. District Courts

at

(last visited Sept. 5, 2008) (showing steady increases in number

of federal drug defendants between 1985 (11,208) and

2007 (29,578)).

UREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,OURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, Defendants, availablehttp://www.albany.edu/sourcebook/pdf/t5372007.pdf

85

84, at 482, Table 4.40. Amounts of heroin and cocaine

seized by the federal Drug Enforcement Agency within the

United States increased dramatically from 160 pounds of

heroin and 1,139 pounds of cocaine (in 1979) to 2,464

pounds of heroin and 149,371 pounds of cocaine (in 1991).

See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1991, supra note

Id

.

86

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL

R

EPORT: DRUG USE AND DEPENDENCE, STATE AND FEDERAL

P

at

visited July 30, 2008).

RISONERS, 2004, at 5 (Oct. 2006) (revised Jan. 2007), availablehttp://www.ojp.gov/bjs/pub/pdf/dudsfp04.pdf (last

87

Id. at 6.

88

Id. at 7.

89

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CRIMINAL

O

FFENDER STATISTICS, Summary of Findings, available at

http://www.ojp.usdoj.gov/bjs/crimoff.htm#findings (last visited

June 18, 2008).

90

Id.

91

AT

pub/pdf/pim07.pdf (last visited July 30, 2008).

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISON INMATESMID-YEAR 2007, available at http://www.ojp.usdoj.gov/bjs/

92

BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, available at

http://www.bop.gov/about/facts.jsp#4 (last visited May 27,

2008).

93

U.S. SENTENCING COMMISSION, 2007 ANNUAL REPORT 31 (2007),

available at

ar07toc.htm (last visited July 22, 2008).

http://www.ussc.gov/ANNRPT/2007/

94

Id. at 32; USSC 2007 SOURCEBOOK, supra note 72, at Table 43.

95

U.S. SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING

49, 53 (Nov. 2004),

15_year/15year.htm (last visited July 22, 2008) [hereinafter

USSC F

available at http://www.ussc.gov/IFTEEN YEAR REPORT].

96

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JUSTICE

E

2006), at 3,

pdf/jeeus03.pdf (last visited June 18, 2008).

XPENDITURE AND EMPLOYMENT IN THE UNITED STATES, 2003 (Apr.available at http://www.ojp.usdoj.gov/bjs/pub/

97

Id.

98

and the President have taken is to enact the Second

Chance Act (Pub. L. No. 110-199, 122 Stat. 657) to authorize

funds to steer drug offenders toward treatment instead of

prison and for “reentry” programs that will provide rehabilitation

and job training to ease offenders’ transition from prison

back into mainstream life.

Signs H.R. 1593, the Second Chance Act of 2007

the Press Secretary, The White House (April 9, 2008),

at

04/20080409-2.html (last visited May 1, 2008). Little of the

authorized funding, however, will be spent on those in or leaving

federal prisons.

(enacted). Other studies have shown that offenders serving

lengthier sentences have slightly higher recidivism rates than

offenders serving shorter sentences, and that offenders who

serve prison sentences are more likely to recidivate than

offenders who are given a community-based punishment.

Paul Gendreau, Claire Goggin, & Francis T. Cullen,

Prison Sentences on Recidivism

H.R. Rep. No. 110-140, at 3-6 (2007). One modest step CongressSee Press Release, President Bush, Office ofavailablehttp://www.whitehouse.gov/news/releases/2008/See H.R. 1593, 110th Cong. (2007)Effects of, at 16 (1999), available at

http://ww2.ps-sp.gc.ca/publications/corrections/

199912_e.pdf (last visited July 30, 2008).

99

C

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, IncarceratedHILDREN AND THEIR PARENTS 1-2 (2000), available at

http://www.ojp.usdoj.gov/bjs/pub/pdf/iptc.pdf (last visited

July 22, 2008);

S

TO

see also W. WILSON GOODE, SR. & THOMAS J.MITH, BUILDING FROM THE GROUND UP: CREATING EFFECTIVE PROGRAMSMENTOR CHILDREN OF PRISONERS 1 (2005), available at

http://www.ppv.org/ppv/publications/assets/

185_publication.pdf (last visited May 19, 2008).

100

See GOODE & SMITH, supra note 99, at 1.

101

Supra note 93, at 27.

102

USSC 2007 SOURCEBOOK, supra note 72, at Table 34.

103

See U.S. CENSUS BUREAU, THE 2008 STATISTICAL ABSTRACT, THE

N

by Race, Age, and Sex: April 1, 2000 to July 1, 2006

Table 8 (May 17, 2007),

prod/2007pubs/08statab/pop.pdf (last visited Sept. 5,

2008).

ATIONAL DATA BOOK, Annual Estimates of the Resident Population, atavailable at http://www.census.gov/

104

F

1991 USSC REPORT, supra note 3, at 76, 80-81; see also USSCIFTEEN YEAR REPORT, supra note 95, at 90, 131 (Nov. 2004),

available at

visited July 22, 2008) (describing how mandatory minimum

sentences for both gun and drug offenses disproportionately

impact African Americans).

http://www.ussc.gov/15_year/15year.htm (last

105

grams or more of crack or 500 grams or more of powder

cocaine. There is a ten-year mandatory minimum for traffick-

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 66

ing 50 grams or more of crack or 5 kilograms or more of

powder cocaine. 21 U.S.C. § 841(b) (2007). Because it takes

100 times as much powder cocaine as crack cocaine to trigger

the same mandatory minimum sentence, this penalty

system is commonly called the “100-to-1 drug quantity

ratio.” U.S. S

C

at

(last visited July 22, 2008) [hereinafter USSC 2007 C

There is a five-year mandatory minimum for trafficking 5ENTENCING COMMISSION, REPORT TO THE CONGRESS:OCAINE AND FEDERAL SENTENCING POLICY 2-3 (May 2007), availablehttp://www.ussc.gov/r_congress/cocaine2007.pdfOCAINE

R

EPORT].

106

See supra note 93, at 32.

107

U.S. DEP’T OF HEALTH AND HUMAN SERVICES, SUBSTANCE ABUSE AND

M

2006

Table 1.34A (2006),

NSDUH/2k6nsduh/tabs/2k6tabs.pdf (last visited August 27,

2008).

ENTAL HEALTH SERVICES ADMINISTRATION, OFFICE OF APPLIED STUDIES,National Survey on Drug Use & Health, at Detailedavailable at http://www.oas.samhsa.gov/

108

Id.

109

USSC 2002 COCAINE REPORT, supra note 74, at 126.

110

See USSC 2007 COCAINE REPORT, supra note 105, at 12-13.

111

code and the Guideline use identical language and permit the

court to sentence an offender below the applicable

range

assistance” provision is limited in nature. First, only

the prosecution, not the defense, can move for a departure

for providing substantial assistance. Second, the assistance

given must be “substantial.” The Guidelines do not define

that term, so in practice there are potentially as many definitions

of the term “substantial” as there are prosecutors.

Third, the assistance given qualifies for a reduction only if it

concerns the investigation of others—a defendant’s full confession

of his own criminal involvement is insufficient. Finally,

there is no assurance to those who provide substantial assistance

that they will receive a reduction of any particular

magnitude, or that all who provide assistance receive the

same reduction. A reduction could be limited to a small percentage

or portion of the sentence; the amounts differ in

every case and every circuit.

John H. Kramer,

Gauging Equity in Current Federal Policy and Practice

(Jan. 1998),

5kreport.pdf (last visited July 30, 2008).

18 U.S.C. § 3553(e) (2007); U.S.S.G. § 5K1.1 (2007). TheGuidelineswhen a motion is brought by the prosecutor. The “substantialSee Linda Drazga Maxfield &Substantial Assistance: An Empirical Yardstickat 3-4available at http://www.ussc.gov/publicat/

112

assistance provision allows drug defendants with a more

involved role (and thus more information to trade) to receive

lower sentences than their less culpable counterparts.

Vincent & Hofer, supra note 1, at 21. Similarly, the substantialId.

113

below both the Guidelines range (which can be higher than

the mandatory minimum) and the mandatory minimum, the

prosecutor typically must bring both a motion under § 5K1.1

and a motion under 18 U.S.C. § 3553(e).

United States

to grant a reduction, courts must give substantial weight to

the government’s opinion of the value and truthfulness of the

offender’s assistance. U.S.S.G. § 5K1.1 App. Note 3 (2008).

18 U.S.C. § 3553(e) (2007). To receive a sentence reductionSee Melendez v., 518 U.S. 120 (1996). When deciding whether

114

See USSC 2002 COCAINE REPORT, supra note 74, at 6.

115

USSC 2007 COCAINE REPORT, supra note 105, at 21.

116

Id.

117

USSC 2002 COCAINE REPORT, supra note 74, at vii.

118

convicted under the mandatory minimum statutes in

fiscal year [19]92 were organizers or leaders of an extensive

drug operation. Over 85% did not manage or supervise trafficking

activity.”).

at 27-30 (describing how mandatory minimums are triggered

based only on drug type and weight and are not tailored

based on the offender’s role or function).

Vincent & Hofer, supra note 1, at 11 (“Only 5% of the offendersSee also 1991 USSC REPORT, supra note 3,

119

believes that the Federal government’s most intense focus

ought to be on major traffickers, the manufacturers or the

heads of organizations, who are responsible for creating and

delivering very large quantities of drugs.”).

H. REP. NO. 99-845, pt. 1 (1986) (“The Committee strongly

120

Assault on Judicial Sentencing Discretion

R

David M. Zlotnick, The War Within the War on Crime: The Congressional, 57 SMU L.EV. 211 (2004).

121

and the Drug Treatment Court Movement: Revolutionizing

the Criminal Justice System’s Response to Drug Abuse and

Crime in America

Michael Brennan,

Destroying Our Sense of Justice and Compassion?

Newsweek (Nov. 13, 1995).

Id. See also Peggy Fulton Hora, et al., Therapeutic Jurisprudence, 74 NOTRE DAME L. REV. 439, 458 (1999);A Case for Discretion: Are Mandatory Minimums,

122

Reform, available at

TheIssue/Voicesforreform.aspx (last visited June 18, 2008);

J

Minimums, available at

contentindex.asp?ID=321 (last visited July 22, 2008).

See, e.g., FAMILIES AGAINST MANDATORY MINIMUMS, Voices forhttp://www.famm.org/ExploreSentencing/USTICE FELLOWSHIP, Issues in Criminal Justice Reform: Mandatoryhttp://www.justicefellowship.org/

123

pursuant to Pub. Law No. 101-647, § 1703, 104 Stat.

4789 (1991)).

1991 USSC REPORT, supra note 3 (the 1991 report was prepared

124

Id. at 27.

125

Vincent & Hofer, supra note 1, at 1.

126

United States Sentencing Commission,

Inaugural Symposium on Crime and Punishment in the United

States

William H. Rehnquist, Luncheon Address (June 18, 1993),Proceedings of the286 (1993).

127

Annual Meeting

www.supremecourtus.gov/publicinfo/speeches/

sp_08-09-03.html (last visited Sept. 5, 2008).

Anthony M. Kennedy, Speech at the American Bar Association(Aug. 9, 2003), available at http://

128

1991 USSC REPORT, supra note 3, at 8.

129

BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JUSTICE

E

2006), at 3,

pdf/jeeus03.pdf (last visited June 18, 2008).

XPENDITURE AND EMPLOYMENT IN THE UNITED STATES, 2003 (Apr.available at http://www.ojp.usdoj.gov/bjs/pub/

130

Changing Attitudes? Sentencing and Corrections Reforms in

2003

Jon Wool & Don Stemen, Issues in Brief: Changing Fortunes or, Vera Institute of Justice 4 (Mar. 2004), available at

http//www.vera.org/publication_pdf/226_431.pdf (last visited

June 18, 2008).

131

Corrections Policy

18 (2003),

Files/82751_Positive%20Trends.pdf (last visited June 18,

2008).

Judith A. Greene, Positive Trends in State-Level Sentencing and, Families Against Mandatory Minimums 10-available at http://www.famm.org/Repository/

132

Id. at 11-12.

133

Id. at 15.

134

Id. at 14-15.

135

Id. at 13-14. See also THE PEW CENTER ON THE STATES, ONE IN

100: B

EHIND BARS IN AMERICA 2008 17-20 (2008), available at

http://www.pewcenteronthestates.org/uploadedFiles/

8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf (last visited

July 23, 2008) (describing how Texas and Kansas have created

alternatives to incarceration in an effort to cope with

rapidly growing prison costs).

136

Picture: A National Report Card on Drug Courts and Other

Problem Solving Court Programs in the United States

Drug Court Institute (May 2005),

www.ndci.org/publications/10697_PaintPict_fnl4.pdf (last

visited July 23, 2008) (describing current status of drug

courts and drug sentencing alternatives around the country).

FEDERAL SENTENCING REPORTER • VO L . 2 1 , NO. 1 • OCTOBER 2008 67

See generally C. West Huddleston, III et al., Painting the Current, Nationalavailable at http://

137

A National Report Card on Drug Courts and Other Problem Solving

Court Programs in the United States

Institute 6-8 (May 2008),

publications/PCPII1_web.pdf (last visited July 30, 2008).

See C. West Huddleston, III et al., Painting the Current Picture:, National Drug Courtavailable at http://www.ndci.org/

138

Abuse Treatment and Accountability through Drug Courts

Press Release, Perry Awards $3.4 Million in Grants to Support Substance

(Dec. 29, 2006),

divisions/press/pressreleases/PressRelease.2006-12-29.1043

(last visited June 18, 2008).

available at http://www.governor.state.tx.us/

139

Guideline sentence is no longer mandatory after the Supreme

Court’s decision in

(2005), the Court did mandate that lower courts consider the

Guidelines when sentencing and “tailor the sentence in light

of other statutory concerns.”

under the now-advisory Guidelines has been short,

courts have largely continued to follow them. Since Booker,

61 percent of federal cases were sentenced within the applicable

Guidelines range.

P

Table 1,

Gall_Report_July_08_Final.pdf (last visited July 30, 2008).

Twenty-five percent were sentenced below the Guideline range

upon motion of the government, usually in exchange for substantial

assistance to law enforcement. Id. The 1984 act

establishing the Sentencing Guidelines provided for judicial

review of a sentencing decision through an appeal filed by

either the defendant or the government, including “plainly

unreasonable” sentences and sentences where the Guidelines

were applied incorrectly. 18 U.S.C. § 3742(a)-(b). In

United States

Supreme Court held that a district judge’s sentencing decision,

whether inside or outside of the Guidelines range, is reviewed

under an “abuse of discretion” standard.

552 U.S. —, 128 S. Ct. 586 (2007) (No. 06-7949). Since

the proportion of cases where a judge departed from the Guidelines

has remained essentially the same as the post-

P

Vincent & Hofer, supra note 1, at 2. While imposition of theUnited States v. Booker, 543 U.S. 220Id. at 245-46. While the experienceSee U.S. SENTENCING COMMISSION,RELIMINARY POST KIMBROUGH/GALL DATA REPORT (July 2008)available at http://www.ussc.gov/USSC_Kimbrough_Gall v., decided the same day as Kimbrough, theGall v. United States,Gall,Booker rate.RELIMINARY POST KIMBROUGH/GALL DATA REPORT, Table 1.

140

Boyd, at

TheIssue/FacesofFAMM/MarcusBoyd.aspx (last visited May

19, 2008) (describing how Boyd received a sentence of over

fourteen years under the federal Guidelines, despite the fact

that the applicable mandatory minimum sentence was only

five years). Boyd’s sentence was so lengthy because his testimony

in his own defense was deemed to be obstruction of

justice and because his ten prior convictions for driving with

a suspended license produced a criminal history category of

III under the Guidelines, placing Boyd in a much higher

Guidelines sentencing range.

See, e.g., FAMILIES AGAINST MANDATORY MINIMUMS, Profile of Marcushttp://www.famm.org/ExploreSentencing/

141

See 18 U.S.C. § 3553(f) (2007).

142

See supra note 71 and accompanying text.

143

See 18 U.S.C. § 3553(a) (2007).

144

Minimums at 5-12,

128 S.Ct. 586 (2007) (No. 06-7949) (describing how the socalled

“parsimony principle” developed by Montesquieu,

Cesare Beccaria, and Jeremy Bentham influenced the Founding

Fathers and continues, to this day, to be a widely

accepted and uncontroversial Guideline for criminal sentencing),

See generally Brief of Amicus Curiae Families Against MandatoryGall v. United States, ___ 552 U.S. —,

available at

Gall_Amicus_Brief_(FINAL_FOR_FILING_—_July_26,_2007).pdf

(last visited Sept. 5, 2008). “[P]arsimony is not an eighteenth

century relic . . . To the contrary, it is now a Congressional

command” set forth in 18 U.S.C. § 3553(a).

http://www.famm.org/Repository/Files/Id. at 11-12.

I. Executive Summary

The United States has the largest prison population in the

world. Many of these offenders are not murderers, robbers,

or rapists, but drug users, addicts, or sellers. Every

year, thousands receive lengthy mandatory terms in federal

prisons for these drug crimes. The mandatory

sentences on the books today were designed to stop drug

trafficking, but they have not. It is not the first time in

American history that they have been used and failed.

In 1951, Congress established mandatory minimum prison

sentences for drug crimes. Named for its sponsor, Representative

Hale Boggs (D-La), the Boggs Act imposed two-to-five

year minimum sentences for first offenses, including simple

possession. The act made no distinction between drug users

and drug traffickers for purposes of sentencing.

The driving force behind the Boggs Act was a mistaken

belief that drug addiction was a contagious and perhaps

incurable disease and that addicts should be quarantined

and forced to undergo treatment. Just five years after the

Boggs Act, Congress passed the Narcotics Control Act of

1956. The new law increased the Boggs Act’s minimum

prison sentences for drug offenses.

Far from slowing the rise in drug use among America’s

youth, the strict antidrug laws were followed by an explosion

in drug abuse and experimentation during the 1960s. The

grim statistics during that period confirmed that mandatory

minimum sentencing laws were simply not working. Correctional

professionals, including prison wardens and

judges, expressed opposition to the mandatory sentences.

The Prettyman Commission established by President

John F. Kennedy and the Katzenbach Commission created

by President Lyndon B. Johnson were both created to

study ways to reduce drug use. They found that long

prison sentences were not an effective deterrent to drug

users, that rehabilitation should be a primary objective for

the government, and that courts should have wide discretion

to deal with drug offenders.

President Richard Nixon took office in 1969 determined

to curtail the growing drug problem. Rather than

add new arbitrary and harsh mandatory sentences, the

Nixon Administration and Congress negotiated a bill that

sought to address drug addiction through rehabilitation;

provide better tools for law enforcement in the fight