Attorney General Eric Holder's announcement — that low-level drug offenders with no history of violence and no ties to gangs will no longer face severe, mandatory federal prison sentences — is the first step in returning sanity and integrity to a justice system commandeered nearly 30 years ago by grandstanding, overzealous politicians. But it comes way too late for the 20-year-old drug slinger featured in one of Judge Andre Davis's war stories.
Davis, from Baltimore, sits on the U.S. Court of Appeals for the 4th Circuit. He has been saying for years what he heard Holder tell the American Bar Association on Monday in San Francisco — that mandatory minimum sentences, standards of the prosecutorial arsenal in the long and costly war on drugs, have given the U.S. the highest per capita rate of incarceration in the world while delivering little societal benefit.
"The wholesale use of mandatory minimum sentences," Davis says, "has been the source of immeasurable injustice in this country."
Some people might be shocked to hear an appellate judge condemn mandatory-minimums in public. But Davis has done so frequently. He often reaches back to his days on the U.S. District Court bench for examples of injustices. Here's a story he told at the University of Baltimore School of Law in April:
"Several years ago, I had a case of a man who, to my best recollection, was 20 years old when he was in front of me. Now, in the District of Maryland, unlike some other districts in this country, a 20-year-old defendant in federal court is rather unusual. We in Maryland are blessed with one of the best U.S. attorney's offices in the country. I say that with great pride, having been a member of that office in the 1980s. We don't see very many 20-year-old defendants in federal court ... and so I was really struck by this young man, brought before me in a drug conspiracy.
"On consecutive weekends, perhaps a few days apart, when he was 18 or 19 years old, he was arrested in Edmondson Village. He was a street corner drug slinger [with] small amounts of narcotics. ... This young man had been arrested by the same police officer on the same corner. The first arrest, he had 13 or 17 pieces of narcotics. Second arrest, he had a few pieces of narcotics. On each occasion, he marched into the Circuit Court for Baltimore City, pled guilty and got a time-served sentence.
"Unfortunately for him, his lawyer didn't get the two cases consolidated so they were treated by the state criminal justice system as two separate cases. So when he got arrested a third time, at about age 20 — because [selling drugs] was what he knew; he dropped out of school in the eighth grade and I believe his father was already serving time — he comes into federal court, and now he's facing a 10-year mandatory sentence in federal prison because he is a third-time drug felon.
"That case has stayed with me through all this time. There are other, similar cases. Even in a district such as Maryland, which has a great U.S. attorney's office, which usually goes after the violent, high-level dangerous drug conspiracies — rather than the low-level, addicted street-level sellers — these are the kind of cases that have come into federal court for far too long and which result in these extraordinarily long sentences."
Managers of large-scale drug operations — and not the small-time dealer-users who sell drugs to maintain their habits — were the original targets of the sentencing "reforms" enacted by a tough-and-dumb-on-crime Congress three decades ago. But many of the latter have taken up space in federal and state prisons anyway. It's the main reason we became Incarceration Nation.
"When a mandatory minimum is triggered, there is no room left for reason or justice," Jim Wyda, the federal public defender in Baltimore, said Monday. "It transfers the sentencing power to the prosecutor and away from the judges. These harsh sentences fall disproportionately on clients of color. On both moral and economic grounds, we can't afford this anymore. We have to be able to sentence smarter."
Holder is taking the first, long-overdue step toward that end.
Of course, state laws that send low-level drug dealers away for 10 years at a time won't be affected by the policy shift.
In Maryland, where the prison population has tripled since 1980, there was an effort in the 2007 General Assembly to make low-level drug dealers eligible for parole after a couple of years behind bars. The change would have applied only to nonviolent offenders. The idea was to give them some incentive for making an effort to get into drug treatment and staying clean.
The measure passed, though hardly a drastic reform. It would have made a second-time offender eligible for parole after serving half his 10-year sentence. After first claiming he supported the initiative, Gov. Martin O'Malley vetoed it, saying on a radio show that "drug-dealing is a violent crime" that needs to be punished.