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December 2003
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Senator Paul Simon, R.I.P.

A picture named simon.jpgThe man with the bow tie died today. What a life!
Smart, honest, courageous – a delightfully geeky little man with enormous integrity and the ability to lead. I’m proud to say I had the opportunity to meet him and hear him speak.
We can still heed his words, like these remarks about sentencing in the drug war from an article he co-wrote with Dave Kopel in 1996 for the National law Journal:

Harsh laws and severe punishments, observed Confucius, are a sign that something is wrong with the state. But you don’t need to be a brilliant philosopher to recognize that America’s prisons are in a state of crisis.

Federal mandatory minimums have made a bad situation worse. In large part because the rigid minimums make no distinction among the circumstances of cases, today’s sentences for non-violent crimes lack any semblance of balance. If a man helps unload a boat of hashish just once to pay for his wife’s cancer treatments (an actual case), he is subject to the same minimum sentence as the mastermind of the whole scheme.

As a prime example of the irrationality of mandatory minimums, we should consider the sentencing disparity for users of different types of cocaine. Under the drug laws, five grams of crack cocaine draws the same mandatory minimum five-year sentence as 500 grams of powder cocaine. No scientific or crime-policy reason justifies the enormous 100-to-1 ratio. The gaping difference is particularly troubling because it has racially charged implications: Eighty-five percent of federal crack prisoners are African-American, while powder cocaine offenders are more likely to be white or Hispanic….

We suggest, however, that it might be more sensible to target the violence rather than the drug of use. As a result of present policy, more than 20 percent of federal prisoners are low-level, non-violent drug offenders. Various 1996 congressional bills proposing increases in the mandatory minimum penalties for powder cocaine, methamphetamine and other drugs continue to undermine efforts of the Sentencing Commission to maintain rationality in the administration of justice. Chief Justice William H. Rehnquist has noted that mandatory minimums “frustrate the careful calibration of sentences from one end of the spectrum to the other that the guidelines were intended to accomplish.”

Expensive as prison is, it can be a bargain when it keeps violent criminals from preying on the innocent. But loading our prisons with non-violent offenders, often for drug violations, means that there is less room for the more dangerous repeat criminals. The end result is that we have a higher percentage of people in prisons than any other nation on earth — South Africa being a distant second. And yet, although we have passed the dubious milestone of having more than a million Americans in prison, we feel less safe today than we formerly did….

The reason that we have highly-paid, experienced federal judges is to judge.

No sensible judge would send a young person to prison for five years without parole for a first offense involving possession of a small quantity of drugs. Judges can make the distinction between a person who makes a solitary mistake, and a person who directs a major criminal enterprise.

Yet, because of the congressionally imposed mandatory minimums, judges are prevented from taking the facts of a case into account during sentencing. Long ago, Plato wrote, “We should exhibit to the judges . . . the outline and form of the punishment to be inflicted . . . But when a state has good courts, and the judges are well trained and scrupulously tested, the determination of the penalties or punishments which shall be inflicted on the guilty may fairly and with advantage be left to them.” That wisdom still stands.

We’ll miss you.

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