Election Year Anti-Crime Posturing Could Derail Even Limited Sentencing Reform

LAST MARCH, Senate Judiciary Chairman Chuck Grassley spoke on the Senate floor against a bill aimed largely at reducing mandatory minimum sentences for nonviolent drug offenders. He decried the “leniency industrial complex” that would see too many low-level offenders released.

Just a few months later, in a seeming about-turn, he co-sponsored an albeit more limited bill, but with the similar aim of sentencing reform and a higher likelihood of success. “We need this,” said the archetypal tough-on crime Republican. Either, criminal justice reform has become a bipartisan political sine qua non, or Grassley’s reform bill was fiercely limited. Or, a bit of both.

Such was the landscape of allegedly historic shifts and realpolitikal compromise on criminal justice reform in 2015. All Democratic presidential candidates and most Republicans called for it, specifically but ambiguously citing the need to end mass incarceration. In December, the general counsel of Koch Industries met for the fourth time with White House officials to discuss support for bipartisan reform bills advancing through the House and Senate.

The House bill, the Sentencing Reform Act, and the Senate bill, the Sentencing Reform and Corrections Act, have passed their respective judiciary committees. Both reduce federal mandatory minimums for nonviolent drug offenses, lower the sentence for three-strike drug felons from life to 25 years and (importantly) would apply retroactively — so would be applicable to current prisoners to seek early release.

The bills’ passage would also make retroactive the 2010 Fair Sentencing Act, which undid a historically racist and classist disparity in sentencing severity between crack and powder cocaine.

That such legislation might reach the president’s desk does signal a shift in contemporary U.S. politics. Consensus support for any reform of this sort on Capitol Hill is significant in recent history, but that speaks mainly to decades of political intransigence on the issue. The legislation has limited reach, reducing harsh penalties for a select subset of drug offenders, and is also flawed; both bills introduce new mandatory minimums.

Credit for the modest progress the bills represent certainly belongs to a popular resistance movement powerfully asserting that U.S. criminal justice systematically decimates black life. In June, Politico published an article titled “Riots spur Senate look at sentencing reform.” It was a causal stretch for which I’ll blame the vagaries of clickbait, but it conveyed a kernel of truth. Riots have historically prompted placation-aimed reforms.

At the same time, decarceration efforts are now more palatable for tough-on-crime politicians, thanks to the existence of a vast nexus of technologies to surveil and control those deemed criminal, offering grim assurance that the carceral state is well-established beyond prison walls.

But as we head into 2016, an election year hinged on Trumpian racism and bombast could threaten to sideline even the most muted of criminal justice reform bills.

A spokesperson from Grassley’s office told The Intercept that the senator is in discussion with congressional leadership to see the bills put on this year’s truncated agenda.

“There’s a lot of desire and bipartisan support. It’s just a question of whether the calendar and the leadership give it time,” Molly Gill, government affairs counsel with Families Against Mandatory Minimums, told The Intercept. In other words, the proposals painstakingly welded to fit bipartisan accord last year may now need fighting for.

FOURTEEN PERCENT of the 2.2 million people currently incarcerated in the U.S. are in federal prison — half of federal inmates are imprisoned on drug or drug-related charges. For the thousands of inmates who might see their sentences dramatically reduced, the reform would be the very meaning of historic, in rewriting the cruelest fates twisted justice had handed them.

You may have heard of Weldon Angelos. The story of his 55-year federal prison sentence for selling weed worth about $1,000 while also possessing firearms made him a poster boy for the reform bills on the table. Angelos, music producer of some local fame in Utah, was arrested in 2002 at age 23. Drug-related mandatory minimum charges when firearms are involved (“involvement” given dangerously broad scope in cases like Angelos’) meant the judge was forced to punish him with five decades of time. The judge himself, Paul Cassell, called the sentence “unjust, cruel, even irrational.” The cost to the state would be $1.5 million. If passed, the sentencing reform bills could see Angelos, and others in similar circumstances, leave prison earlier, and judges might no longer have to hand down such “manifestly unjust” sentences, as Cassell put it.

Highlighting cases like Angelos’ is crucial. Cynically: politics needs its anecdotes. Politically: we have to tell prisoners’ stories if we want to undo a penal apparatus that turns millions of people into a silenced, isolated, invisible mass.

But if Angelos’ story illustrates the merits of proposed reform, others tell of its insufficiency. FAMM, which profiles numerous prisoners, raised the example of Mandy Martinson, currently serving 15 years in federal prison for helping her dealer-boyfriend in exchange for feeding her methamphetamine addiction — a sentence, the nonprofit group notes, longer than the average federal time handed to rapists and racketeers. Martinson’s judge explicitly said the young woman, a recovering addict, posed no reoffending risk.

Yet Martinson’s conviction for conspiracy to distribute 500 grams or more of methamphetamine and marijuana puts her in the high-level category untouched by the House and Senate bills. The reforms purportedly are aimed at alleviating excessive punishment for low-level offenders, while keeping “kingpins” and traffickers in check. Martinson’s case illustrates how conspiracy laws could continue to entangle minor players and drug users.

“She personally would not receive relief from the bill’s retroactive provisions, and a future offender who committed the same crime with the same facts today would get the same unjust, counterproductive mandatory sentence,” FAMM’s director, Julie Stewart, said of Martinson. “It is difficult to claim that any proposal that does not fix abuses like this represents meaningful reform.”

Alex Vitale, associate professor of sociology at Brooklyn College and author of City of Disorder: How the Quality of Life Campaign Transformed New York, told The Intercept that “such reforms won’t dismantle the war on drugs so long as the law enforcement apparatus is empowered to follow up on drug users.” Vitale’s view, shared by the Drug Policy Alliance among other decriminalization advocates, is that the use of drugs should be addressed outside the criminal justice system entirely.

And this is just to talk of drug offenses. Nine percent of the federal prison population is incarcerated for immigration-related offenses, and according to the Marshall Project, over half of federal criminal convictions last year were for illegal entry or re-entry.

As Marie Gottschalk, author of Caught: The Prison State and the Lockdown of American Politics, wrote:

Within the federal prison system, immigrants have been the fastest-growing population, and as a result, Latinos are now the largest population in federal prisons. Like mass incarceration itself, the criminalization of immigrants has simultaneously expanded the carceral capacity of the state and enabled private contractors to profit from the confinement of human beings.

The bills on the table do not scale back harsh measures for immigration crimes; there’s simply no political will in a climate of festering anti-immigrant rhetoric. This is no minor limitation.

In terms of the historic legislative structures affected, these reforms far from mark an end to mandatory minimum sentencing laws. The Senate bill creates two new mandatory minimums: five years for providing certain goods or services to terrorists and 10 years for “interstate domestic violence” resulting in death; the House bill increases the penalties for heroin offenses when the drug is mixed with fentanyl, a more potent opioid sometimes added to diluted heroin by dealers.

And one of the key promises of the bills, which would see mandatory minimums for low-level nonviolent offenders reduced from 10 to five years, would not be applied to “anyone who refused to give up information about the drug activities of others,” as Mother Jones highlighted. I don’t expect a congressional bill to align with the anarchist dictum of choice for such situations — “snitches get stitches” — but this cooperation detail shows that our lawmakers maintain an interest in using mandatory minimums as a coercive, as well as punitive, tool.

Mandatory minimums have undergirded a plague of prosecutorial abuse for years. Prosecutors extract plea bargains, leveraging against the risk of a possible guilty verdict at trial and a fixed, lengthy sentence. Around 95-98 percent of federal cases end with a plea, without trial. The central tenet of the rule of law — the right to a fair trial — becomes irrelevant if coercion renders a trial an unthinkable option. Mandatory minimums are that coercive tool, which the reform bills only slightly blunt in some cases, and sharpen in others.

AMORE INSIDIOUS FRAMEWORK also attends newly buoyant efforts to end mass incarceration. Social control mechanisms — mass surveillance, ankle tagging, coerced drug treatments, and probation systems, to name a few — add to the appeal of decarceration for even the most conservative defenders of a tough-on-crime approach. If prisons, as Michel Foucault suggested, embodied an age of discipline through which hierarchical power could control bodies, and identify “criminal” bodies to control, then contemporary technologies maintain these power relations without the need for brick and mortar.

The focus of current reform on drug offenses provides prime example. While the battle to decarcerate is only just beginning, non-prison “solutions” for offenders should be scrutinized. New Jersey Gov. Chris Christie’s comments around moving drug addicts out of prisons are the sort of discourse that pique concern. The presidential candidate has vowed to enforce federal marijuana prohibition in the unlikely event of his election. Yet, he said in November, with “drug addicts … we need to start treating them, not jailing them.”

There’s no inconsistency here: Christie would keep drug users in the realm of the “criminal,” thereby maintaining the persecuted and large subclass of people caught in the carceral system now. He would see them “treated” not “jailed” — an endorsement of coerced drug treatment programs, which may keep people out of cages, but are rife with problems.

As Michelle Chen noted in a piece for The Nation, “Reform initiatives like rehabilitation and employment programs focus on making ‘corrections’ less punitive. But they maintain the political framework of ‘redeeming’ bad people, rather than dismantling antisocial systems.” Chen points out how a “treatment industrial complex” could, and is already, replacing the prison industrial complex. She adds, “Many of the dollars expected to be ‘saved’ from shuttering prisons may simply be funneled into privatized ‘alternatives to incarceration’ like parole programs and halfway houses.”

Not only is this shift well underway, I’d submit it is among key conditions enabling the political will to reform prisons to arise. As Foucault said with haunting prescience in 1975: “Criminal psychiatry and psychology risk becoming the ultimate alibi behind which the prevailing system will hide in order to remain unchanged. They could not possibly suggest a serious alternative to the prison system for the simple reason that they owe their origins to it.”

Prison reform, even the abolition of brick-and-mortar prisons, is about the crucial goal of removing humans from cages. As an end, even this is insufficient if we are not in the business of setting people free.

Human rights and criminal defense attorney Moira Meltzer-Cohen told The Intercept that arguments for moving from a prison system to an apparatus of surveillance often place their rationale in the unfortunate fact that we are all surveilled, indiscriminately, already — as if totalized surveillance removed structural discrimination in the U.S. Meltzer-Cohen noted:

The people who are subject especially to this surveillance, disproportionately are not anyone and everyone, they are traditionally marginalized and over-policed working class communities of color who are funneled into the courts in the first place. And this layer of surveillance is then imposed upon them as though it is a kindness, a lenience or an act of generosity.

A crucial distinction is blurred and missed in the current moment of sentencing reform. Namely, prison reform and criminal justice reform are consistently used interchangeably — and for reasons that make absolute sense right now: Prisons are the leviathan apparatus through which criminal justice now functions.

If we truly are moving away from mass incarceration, we should remember that criminal justice does not rely on prisons to alienate and oppress. It relies more fundamentally on the category of “criminal,” and who gets to fall into it. It is a category that needs drastic undoing, not reforming.

Top photo: Prisoners from Sacramento County await processing after arriving at the Deuel Vocational Institution in Tracy, Calif., Feb. 20, 2014.