Mandatory minimum sentencing has existed throughout U.S. history, at one time used to punish mostly treason and murder. But in the 1980s, Congress saw mandatory minimums as a way to tackle a different kind of crime: drug offenses. As part of the “war on drugs,” there was bipartisan support for tough sentences, rather than rehabilitation. Today, the pendulum might be swinging in the other direction. With a prison population soaring and budgets tightening, lawmakers from both parties are supporting ways to reform these sentences, and Attorney General Eric Holder is weighing in. Diane and her guests discuss the debate over mandatory minimum sentencing.

Guests

  • Paul Butler professor at Georgetown Law School.
  • Devlin Barrett reporter covering security and law enforcement for The Wall Street Journal.
  • William Otis former federal prosecutor and former special White House counsel for President George H.W. Bush.
  • Mary Price vice president and general counsel at Families Against Mandatory Minimums.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Washington is rife with partisanship, but there may be one area where consensus is emerging, reform of the criminal justice system, specifically mandatory minimum sentences which some critics say are overly harsh and unfair to racial minorities. Now, Atty. Gen. Eric Holder is calling attention to the issue.

  • 10:07:25

    MS. DIANE REHMHere to discuss sentencing reform and the debate over mandatory minimums: William Otis, a former federal prosecutor, Mary Price of Families Against Mandatory Minimums, Devlin Barrett of The Wall Street Journal and, joining us by phone from Las Vegas, Paul Butler of the University of Georgetown School of Law. And throughout the hour, I ask you to weigh in with your opinions, give us a call, 800-433-8850, send us your email to drshow@wamu.org, follow us on Facebook, or send us a tweet. And welcome to all of you.

  • 10:08:15

    MR. WILLIAM OTISThank you.

  • 10:08:15

    MS. MARY PRICEThank you so much, Diane.

  • 10:08:16

    MR. DEVLIN BARRETTThank you.

  • 10:08:16

    MR. PAUL BUTLERGreat to be here, Diane.

  • 10:08:18

    REHMThank you. And before we begin the conversation, let's hear the attorney general. This is a May 15 interview that Eric Holder did with NPR.

  • 10:08:36

    ATTY. GEN. ERIC HOLDERThe war on drugs is now 30, 40 years old. There have been a lot of unintended consequences. There's been a kind of decimation of certain communities, in particular communities of color.

  • 10:08:48

    REHMDevlin Barrett of The Wall Street Journal, I know you've been covering this for quite a while. Is the attorney general signaling a shift?

  • 10:09:00

    BARRETTYes. And in some ways, it's more of speeding up than an actual shift because he's talked about this for a long time, but what we're told is that early next week he's going to make a speech to the American Bar Association out on the West Coast. And in that speech, he's going to lay out a number of areas where he wants to try and reform or alter depending on your point of view the way in which the Justice Department pursues incarceration.

  • 10:09:26

    BARRETTAnd that's going to tackle basically the frontend, meaning prosecution -- prosecutorial discretion, which is how to much charge people and how much -- how long of a sentence you seek and also the back end in terms of re-entry into society, so that hopefully fewer and fewer of those people actually return to crime. But there's a number of areas he's trying to go at. And, you know, we don't know the specifics yet, but it seems like the mechanics are speeding up.

  • 10:09:54

    REHMTell me why.

  • 10:09:57

    BARRETTWell, there's a lot of whys. One of the big ones right now is budget. If you look at what's going on across the country both within states and within the federal government, everyone is looking to save dollars. And you see a lot of frankly Republicans in Southern conservative states actually doing a lot of work to reduce -- try and reduce their prison population, surely, purely as a dollar function, really.

  • 10:10:20

    BARRETTAnd that combined with a more traditional democratic and frankly minority voter interest in changing sentencing structures because -- that are viewed as being unfair to blacks, overly punitive to blacks as compared to whites. And, you know, a longtime complaint among many liberals that the system is just too punitive.

  • 10:10:44

    REHMDevlin Barrett, he's a reporter at The Wall Street Journal covering law enforcement. Paul Butler, how significant do you believe it is for Eric Holder to speak out?

  • 10:11:00

    BUTLERIt's a huge symbolic victory for people who've been describing the criminal justice system as the new Jim Crow because so many African-Americans are locked up. Actually, more black people are under the criminal justice system now than there were slaves in 1850. So for the attorney general of the United States who usually in that role people talk about being tough on crime, locking up more people, this is huge.

  • 10:11:35

    BUTLERThe reason my enthusiasm is somewhat moderated, Diane, is only about 10 percent of cases, criminal cases are brought by the federal government, 90 of cases are in state courts, and the attorney general has no jurisdiction over those courts.

  • 10:11:54

    REHMWhy and how is it -- because I've heard both you and the attorney general say this -- why is it that minorities have been more affected by these minimum sentencing law?

  • 10:12:12

    BUTLERBecause most of the mandatory minimum sentences involved drug crimes, and the interesting thing about drugs, Diane, is that's not a crime that black people or Latinos commit more than anybody else. According to the National Institute of Health, African-Americans, for example, are only about 13 percent of people who used drugs or sell drugs.

  • 10:12:35

    BUTLERBut if you go from NIH in D.C. to the Justice Department on who's locked up for drug crimes, over 60 percent of people who are locked up for drugs are black. So 13 percent of people who do the crime, 60 percent of people who do the time -- a lot of complicated reasons for that, mainly selective law enforcement by police. I'm not saying it's racist. Some of them are well-intentioned, but blacks are definitely disproportionate locked up for those crimes.

  • 10:13:04

    REHMPaul Butler, he's professor of law at the Georgetown University. William Otis, how do you see it?

  • 10:13:15

    OTISI have a somewhat different view from Paul's. It's always the case that one can improve the system, but I think we would do well to remember what is working right with the system now. Basically, mandatory minimum sentences reflect the view that there are some crimes so serious that the judge should be prevented from going below a rock-bottom minimum.

  • 10:13:40

    OTISI read about such a crime just this morning in The Washington Post, a very -- an unfortunate, tragic crime. I'll just read two paragraphs to be very short about it. The headline is, man held in boy's fatal beating sold pot afterward, police say.

  • 10:13:58

    OTISAnd what the story says -- a man upset when a 4-year-old who was babysitting rode his scooter on the wrong side of the street was charged Wednesday with beating the child, and police say, then went outside his Northwest Washington apartment to sell marijuana as the youngster died. D.C. police made the allegation in court documents. They charged Peter Ignatius Hendy with felony murder in the death of his girlfriend's child, Kamari Zavon Taylor.

  • 10:14:27

    OTISAccording to the documents, the suspect told detectives that Kamari was a "smart-mouth kid." Now, it seems to me the public could rightly believe -- and I think the great majority of the public will believe that a crime like that, a crime of cruelty, a crime that winds up with a death of -- with a beating death of a 4-year-old deserves a certain rock-bottom minimum and that it's perfectly within the province of the legislature, being Congress or state legislatures, to say we are going to insist on a rock-bottom minimum.

  • 10:15:01

    REHMWhen you talk about the death of a child, however, aren't you bringing another level of responsibility into the conversation if we're just talking about mandatory minimum sentencing, especially regarding the crime of drug use or sale of drugs? This sounds as though it was a level -- at least one level above that.

  • 10:15:34

    OTISThe concept of mandatory minimums is the one I'm trying to describe. The concept is simply that some crimes, the one I talked about involving murder of a child but other serious crimes as well. When we sell methamphetamine to a teenage addict, when you sell heroin, an extremely dangerous drug that winds up in overdoses, when you sell something like that, Congress could also consider that sufficiently serious to require judges to impose at least a rock-bottom minimum sentence.

  • 10:16:08

    OTISAnd one other thing that I might just add very briefly is that we've had mandatory minimum sentences at the federal level for about 20 years. They started off in the late '80s, early '90s, and kind of the untold story is how successful they have been. It's true, as Paul and others have said, that there is more and more incarceration.

  • 10:16:31

    OTISWe're incarcerating many people now more than we used to do. But what Paul neglected to say is that, partly on account of the increased incarceration, the crime rate has fallen by 50 percent. People are much safer today, and the economic cost of crime have gone way down.

  • 10:16:51

    REHMWilliam Otis, he's a former federal prosecutor, former special White House counsel for Pres. George H.W. Bush. And turning to you now, Mary Price, how do you see the issue of mandatory minimum sentencing?

  • 10:17:12

    PRICEWell I want to take issue with Bill Otis' statement about mandatory minimums because I believe and we believe at FAMM one of the problems with mandatory minimums isn't the problem necessarily of severe sentencing. If somebody does a very scary and very dangerous thing, they ought to go to prison for a very long time. Most judges realize that. Our problem is that particularly in the federal system where mandatory minimums are concentrated in really just four offenses and principally in drug offenses.

  • 10:17:42

    PRICEWhat happens is that judges end up not sentencing the person for what they did. They end sentencing the person for what they were convicted of. And that sounds a little bit like a distinction without a difference, but to draw it out, what Congress does when it establishes a preset automatic sentence for a class of people is that it sets up a proxy. It sets up one or two factors. So, for example, if you dealt X quantity of drugs, you are a kingpin, and you will get a sentence of 10 year or greater.

  • 10:18:18

    PRICEWhat it doesn't do is allow a judge to account for mitigating factors at sentencing. So if you are connected with X amount of drugs because your spouse or boyfriend was actually involved and you are peripherally involved but you still are associated with those, you get sentenced as a kingpin even though you are not anything like a kingpin.

  • 10:18:40

    REHMMary Price, she's vice president and general counsel for Families Against Mandatory Minimums. Short break. We'll be right back.

  • 10:20:04

    REHMAnd welcome back. We're talking about the issue of mandatory minimum sentencing, most especially as it pertains to the crime of drug use, drug sale, drug involvement. And we've heard Eric Holder, the attorney general, speak out on this. He is scheduled to make another speech next week before the American Bar Association in which we anticipate he will be more specific in outlining his plans.

  • 10:20:48

    REHMHowever, as we've heard from one of our guests, Paul Butler at Georgetown University School of Law, the minimum mandatory sentencing pertains to federal crimes and not to state crimes, so that's going to be a whole another can of worms. Mary Price, just before the break, we were talking about why all this has happened. The prison population has really exploded. William Otis has said crime has gone down, but the converse is that the prison population is now housing more people than budgets can afford. Do you see a direct corollary there?

  • 10:21:50

    PRICEAbsolutely. And I think that it has something to do with the new position of the Department of Justice over the last few years. One of the problems is that the Bureau of Prisons is severely overpopulated. It is straining at the seams at 138 percent capacity. And the inspector general of the Department of Justice recently called attention to this and said if something isn't done, we're going to be at 145 percent capacity in the Bureau of Prisons by 2018.

  • 10:22:27

    PRICEYou combine that concern with the fact that the Bureau of Prisons now consumes 25 percent -- one in every $4 that the Department of Justice spends on its missions, which are varied, it must spend on keeping people locked up. And in the Federal Bureau of Prisons, the people who are locked up are far and away -- the majority of them are drug offenders.

  • 10:22:54

    PRICENearly 50 percent of everybody locked up in federal prison is a drug offender, 85 percent of whom had no involvement with weapons and only 6 percent of whom had any kind of leadership role, as we were talking about earlier, with kingpins and so forth.

  • 10:23:09

    REHMMary Price is vice president, general counsel for Families Against Mandatory Minimums. How are prisons coping with these kinds of overcrowding situations, Devlin?

  • 10:23:25

    BARRETTWell, I mean, this is -- what we're talking about is one of the ways they're coping is they're trying to figure out ways to get people out of the system. And Mary's absolutely right. Just another statistic that may surprise some folks is that there are currently more employees -- more federal employees in the Bureau of Prisons than there are in the entire FBI. You know, it's an incredible cost, and it has been, for a long time, a manageable cost, but more and more people within the law enforcement community tell me that they don't think that it's long-term viable as a cost problem.

  • 10:23:57

    BARRETTAnd the sequester, frankly, is exacerbating and accelerating that concern. And, again, I think what you're seeing is you mentioned that only one in 10 prisoners in this country are actually in the federal system. But states are, in some ways, especially conservative-run states are actually ahead of the federal government on some of these issues because for them, cost -- for some of them, the cost is the most important thing.

  • 10:24:21

    REHMIs cost driving the discussion, Paul Butler?

  • 10:24:27

    PROF. PAUL BUTLERIt's a huge factor, Diane, because it's just so expensive. You -- if you think that it costs $25,000 at least a year to lock up one person, and in this country, we've got nearly 2.5 million people locked up, a lot of people are wondering if there is a way that we can safely reduce the number and still, you know, have people be safe and yet, what could we do. You know, there's a lot of other things we could spend that money on, so that's a really important reason. But there are other reasons as well.

  • 10:25:03

    PROF. PAUL BUTLERAgain, there's a racial justice problem if one in three young black men have a criminal case. A lot of faith-based conservatives are getting on board because they believe in redemption and second chances. And one of the problems with mandatory minimum sentences is that they don't let judges be judges. Judges are like computer data-entry operators, so a lot of broad coalition onboard here, Diane.

  • 10:25:29

    REHMAnd to you, William Otis, is there racial injustice that has developed because mandatory minimums?

  • 10:25:43

    OTISIt's true that proportionately many more blacks and, to somewhat a lesser extent, many more Hispanics are in prison proportion to their population. But that is not necessarily a result of discrimination. That's a result of the fact that blacks commit proportionately much more crime than whites. The statistics -- that's not something I like, but that's the truth. Blacks...

  • 10:26:10

    BUTLERBut that's not true about drug crimes. Don't tell that lie.

  • 10:26:15

    OTISWell, Paul, that's not a lie. What I said was that blacks commit proportionately more crimes than whites. As a matter of fact...

  • 10:26:23

    REHMBut is that true regarding drug crimes?

  • 10:26:27

    OTISIt's not true as regard to some, but it is true as regards to others. For example, marijuana crimes -- you generally find blacks not being in prison for marijuana crimes because what that is in federal jurisdiction is generally trafficking across the Mexican border. So the disproportionate number of people in federal prison for marijuana crimes are the Hispanics. On the other hand, crack is disproportionally a black crime.

  • 10:26:59

    OTISAnd yet, on another hand, methamphetamine is disproportionately a white crime. Methamphetamine also has severe mandatory minimum sentences. So it's not something that one can generalize about. Some called, you know, whites seem to be more into LSD and methamphetamines, blacks more into crack.

  • 10:27:19

    REHMAll right. And, Paul Butler, do you want to respond?

  • 10:27:24

    BUTLERYou know, I don't think it's racist in the part of police and prosecutors, but there's just no question, Diane, if you look at the statistics, the vast majority of people who are locked up in this country for drug crimes are African-Americans, and blacks don't disproportionately use drugs. So is there a racial justice problem? There absolutely is.

  • 10:27:42

    REHMDevlin, can you respond?

  • 10:27:44

    BARRETTWell, I think this gets it at the heart of why this issue hasn't really moved in a long time or at least, I should say, has moved slowly. And I do think that the net result, you know, there's a legal theory called disparate impact which means if the end result is very disproportionate, then by definition, there has to be something wrong with the process.

  • 10:28:07

    BARRETTI do think Bill is right that there are mandatory minimums, and certainly, the cocaine to crack disparity was resulted in a very distinct racial disparity in sentencing. They have worked to fix that. But, you know, in my own mind, I sort of wonder, and I don't know if there's good data on this frankly or not, but in my own mind, I wonder, as we move away from the crack cocaine sentencing disparity, do some of these numbers change?

  • 10:28:39

    BARRETTSo my question being, how much of the racial disparity in the sentencing in these outcomes was due to that and how much of it is due to the kinds of issues that Paul was talking about, I personally haven't seen any good data to suggest how much that specific disparity accounts for all of this.

  • 10:28:56

    REHMAll right. And, William Otis, what about the cost? What about the cost of incarcerating? Because of mandatory minimums, the overcrowding 145 percent in terms of prison capacity.

  • 10:29:19

    OTISI would say a couple of things about costs. Number one, anyone who pretends that justice can be had on the cheap is fooling himself. You know, we know not for a long time. Number two, I want to get back to something I was talking about earlier because it's directly relevant to your question about costs.

  • 10:29:40

    OTISSince mandatory minimums and the significant increase in imprisonment that mandatory minimums have help bring about, since that came into the law, there has been 50 percent less crime. Crime also has cost. They're not as visible on government ledgers, but it's the victims of crime who have to pay the costs.

  • 10:30:03

    OTISTheir money, the money that individual peoples and families have to spend to heal, to restore their savings that have been stolen, to put their kid in drug treatment plans, all that cost money too. And when we have so significantly reduce crime as we have over the last 20 years, for example, in -- according to the Bureau of Justice Statistics, in 1991, a little more than 20 years ago, we had over 14 million serious crimes.

  • 10:30:35

    OTISTwenty years later, in 2011, according to the same Bureau of Justice Statistics, we had a little over 10 million serious crimes. That's a reduction of four million crimes, a reduction of the expenses that individuals and families have not had to pay because they have not been crime victims are very significant, and they deserved to be considered as well.

  • 10:30:58

    REHMPaul Butler.

  • 10:31:00

    BUTLERYou know, Diane, I became a prosecutor because I wanted to keep communities safe. One of the things that I learned prosecuting drug crimes is when you have these harsh sentences and you take these young kids who have committed nonviolent drug crimes and lock them up with these hardcore thugs, that makes communities less safe.

  • 10:31:22

    BUTLERSo I think that's one of the reasons that the attorney general and so many politicians, law makers across the political spectrum are coming out against mandatory minimums is because they're concerned about community safety. Real quick, in New York, they have these harsh mandatory sentences, the Rockefeller Drug Laws, infamous laws. They got rid of those laws. And guess what, Diane, crime went down. The streets of New York are safer now because they made the punishment system more fair.

  • 10:31:53

    REHMDevlin.

  • 10:31:54

    BARRETTAnd, yeah, and that's a really good point as it happens. I started -- I was a crime reporter in Brooklyn in the '90s. And this discussion would never have been possible back then given where political opinions were on crime because everyone was trying to figure out -- Bill is exactly right, there has been a huge decline in crime in the last 15 to 20 years.

  • 10:32:14

    BARRETTAnd that has enabled this kind of discussion to even take place because 20 years ago, certainly in the places I covered, the only discussion was, how do we fix this? This is a nightmare. We are essentially under siege in our own communities. And I do think that we are able to have this conversation because crime has gone down.

  • 10:32:34

    BARRETTAnd -- but, you know, Brooklyn is a good example because in Brooklyn, they were one of the first communities in the country to start putting people into drug treatment versus prison. And the prosecutor did that at the time, took a bit of a risk and -- because that was not understood very well by the public at the time.

  • 10:32:50

    REHMAnd you're listening to "The Diane Rehm Show." Perhaps here, William Otis, we might make a separation between crimes of violence and crimes of nonviolence. You talked about the cost to families, huge, when violence occurs. Would you concede that perhaps crimes of nonviolence, strictly drug crimes, might be excepted from the mandatory minimum sentencing?

  • 10:33:35

    OTISWell, one thing I would note is that the Justice Safety Valve Act proposed by Sen. Leahy and Sen. Rand Paul does not exclude violent crime.

  • 10:33:47

    REHMI know. I know. Nonviolent crimes.

  • 10:33:50

    OTIS...which do not -- it does not exclude -- in other words, if enacted, it could apply to any crime, and the judge could simply walk past the mandatory minimum sentence for any crime.

  • 10:34:03

    REHMAnd that's something I want to know about. Mary Price, how are judges themselves affected? What do they say?

  • 10:34:15

    PRICEThe judges I've spoken to and heard from say that the hardest part of their job is sentencing, and the hardest, hardest part of their job is sentencing under mandatory minimums because they're faced with an individual who is much more complex than those one or two factors I spoke about earlier. They are a whole person with a whole background. There are circumstances of the offense.

  • 10:34:38

    PRICENone of the stories about those people can be told. A person is unable to speak in true mitigation when they're facing a judge who must impose a mandatory minimum. And I've read countless sentencing transcripts from judges saying, I wish I didn't have to do this. I wish my hands weren't tied. And they're not only judges sentencing people for nonviolent drug offenses. They're also judges who sentence people for being armed career criminals.

  • 10:35:07

    PRICEAnd this -- I want to take you back to what I said earlier, which is when Congress establishes a mandatory minimum, it does so to enforce as a person -- judge, rather -- to sentence somebody for the crime they committed, not the act that they committed. And I'll tell you a quick story. There was a gentleman who, in his youth, had committed a series of hand-to-hand drug sales in the state of Texas.

  • 10:35:32

    PRICEHe got three felony convictions for basically a month's worth of drug dealing. He did his time. He went home to Tennessee, became a law-abiding citizen, opened up a pool hall, and he had to deposit the proceeds of his pool hall and make sure that, you know, his employees were safe. And he decided he wanted -- and he had to do this at night. So he decided, I'm going to see if I can purchase a handgun.

  • 10:35:55

    PRICEAnd he went to his local pawnshop, and he got an ATF form, and the form said, you know, are you a prior felon? And he asked the pawnshop owner who said, oh, he was a lawyer also. And the pawnshop owner said, don't worry about that. It was more than 10 years ago, and it was. It was 15 years before he had these three sales. He purchased the gun. The gun was stolen, and he reported it to the police.

  • 10:36:19

    PRICEI mean, just to explain to you how little he understood. When it was discovered that he was what's called a felon in possession of a firearm, which the federal law prohibits, it was also discovered that he had three prior drug offenses. And that qualified him to be characterized as an armed career criminal. And he -- the judge did everything he could to not sentence him to the 15-year mandatory minimum that he was required to impose, but at the end of the day he had to.

  • 10:36:52

    REHMYou talked to judges, Devlin. What did they tell you?

  • 10:36:56

    BARRETTRight. Well, I don't think it'll come as a shock to anyone that judges dislike being told exactly how to do their jobs before they've even gotten a case in front of them. So most judges I know really dislike the mandatory minimums. But, frankly, most judges I know also don't really like the sentencing guidelines either.

  • 10:37:12

    BARRETTThe sentencing guidelines is this complicated federal -- it's essentially a point system, and it's pretty detailed, and it makes it difficult for folks like me to explain how much time people are going to get. But it -- it's -- you've got a whole mathematical system that's designed to add time to these crimes.

  • 10:37:29

    REHMDevlin Barrett, a reporter at The Wall Street Journal. We'll take a short break here. When we come back, we'll open the phones and hear your thoughts. I look forward to speaking with you.

  • 10:40:04

    REHMAnd welcome back. Time to open the phones first to Dallas, Texas. Michael, you're on the air.

  • 10:40:15

    MICHAELHi, Diane.

  • 10:40:16

    REHMHi there.

  • 10:40:18

    MICHAELThanks for having me. Yes, I have a question regarding -- it seems like we're talking about law enforcement and the punishing of people for violations of the law. But there was no talk with constitutionality and the history of the drug laws coming into place, starting back with Nixon and the white papers and things like that.

  • 10:40:40

    REHMAll right. Let's see what Paul Butler has to say, the constitutionality of these mandatory minimums.

  • 10:40:49

    BUTLERYou know, the concern is that they don't let judges provide individualized justice. So if you think about the mandatory minimums and the federal sentencing guidelines, it's kind of like doing your taxes for a judge, Diane. All there is is a form, and the judge inputs this data and out comes an answer. So should Congress be deciding individual cases, or should we let judges create individualized justice? You don't hear a lot of constitutional arguments against it, but there is a concern that it's just poor public policy.

  • 10:41:28

    REHMWilliam Otis.

  • 10:41:29

    OTISThe question directly was whether the Constitution has been found to forbid mandatory minimum sentencing, and the answer is no. It has not. I agree with Paul that given that the courts approve mandatory minimum sentencing, the question turns out to be one of policy. It seems to me the policy question we ought primarily to be asking is, what helps most of our people? Most of our people, of course, don't commit crimes and are not in prison.

  • 10:42:02

    OTISWhat we've seen is that we know what works and we know what doesn't work. What works as we've seen in the era of incarceration, although it works at a cost, is the jail works, that it reduces crime. There is a history to this. In the '60s and '70s, crime was not going down as it has been going down over the last two decades.

  • 10:42:25

    OTISIt was going way up and was going way up because of what Paul recommends, we let judges be judges. And judges believed in rehabilitation that we didn't know how to do, and there are sentences reflected this mistaken belief. As a result of that, crimes spiked in the '60s and '70s, and determinate sentencing, which includes mandatory minimums, became an effective answer.

  • 10:42:53

    REHMPaul.

  • 10:42:54

    BUTLERYou know, Diane, anyone who thinks that they know why crimes goes up or down is just fooling themselves. There are so many factors. One big one is how many young men there are in the population. When there's a demographic of more 15- to 25-year-old men, there's more crime. When that number goes down, there's less crime. So there are number of factors. But nobody thinks that the number of people were locked up here are way more than any country in the world. No one thinks that's an important explanation of why crime has gone down.

  • 10:43:25

    REHMAll right. To Nick in Baltimore, Md. You're on the air.

  • 10:43:30

    NICKHi. Well, in Baltimore, Md., where I work in the juvenile justice system as a monitor, we have, compared to last year, about a third fewer kids locked up in detention, and we have no rise in crime as a result. And I do agree that mixing kids who have a tendency towards violence with kids who are nonviolent and adults in the same situation only creates bigger problems. And mass incarceration, so far, has not been able to stop the cycle of incarceration itself.

  • 10:44:00

    NICKI also agree that judges and masters need to be trusted to do their job, as they are in every other kind of situation. The constant mentioning of violence being down due to mass incarceration, there's no real evidence to support that. I'd like to hear what the evidence would be. Alternatively, places that have used alternatives to incarceration show no rise in crime.

  • 10:44:23

    REHMDevlin.

  • 10:44:24

    BARRETTWell, this is sort of one of the age-old chicken and egg arguments that goes on around the decline in crime. Well, what's responsible for it? There's a school of thought that says, essentially a version of what Bill is saying which is that once you had people come in and advocate a broken windows theory, which is that you aggressively pursue all forms of law breaking, and that will not only change behavior but it will get the worse people off the street. And that will create momentum in the favor of less crime.

  • 10:44:55

    BARRETTYou know, I've also heard people say, look, another serious reason for the drop in crime is the proliferation of cellphones. If everyone has a direct line to the police, it's just harder to commit crimes and certainly street crime on a general basis. I'm not saying any one of those arguments is really the tell-all, but I think you can argue for days as to what really drives down crime.

  • 10:45:18

    REHMMary Price.

  • 10:45:19

    PRICEWhat I hear Eric Holder saying is that if we don't make some of these reforms, we're going to be less safe. In a letter recently to the United States Sentencing Commission, the Department of Justice says that if we keep spending the amount of money we're spending to lock up all of these offenders, including the majority of nonviolent drug offenders, we're going to have to start taking money away from public safety components.

  • 10:45:42

    PRICEAnd, you know, there's a very good example of this recently. Because of the sequester, the Department of Justice asked the appropriations committee to reprogram $150 million dollars so that the Bureau of Prisons wouldn't need to furlough staff and make prisons even less safe than they are today. Ninety million dollars of that reprogram came from the FBI. So the -- this is unsustainable according to the Department of Justice, according to Eric Holder, according to its own IG and has -- we have to be more intelligent about how we use these dollars.

  • 10:46:17

    REHMBill.

  • 10:46:18

    OTISI disagree with the idea that we just can't know what caused -- what has caused the reduction in crime. It's been studied. It's been studied by responsible scholars. There is, for example, one fellow named Steve Levitt at the University of Chicago whose findings were reviewed by the imminent criminologist, the late James Q. Wilson.

  • 10:46:39

    OTISLevitt found that a quarter or more of the reduction in crime in the last two decades was due to the increase in imprisonment. And you might recall that I said that we have 4 million fewer serious crimes now than we did 20 years ago. If a quarter of that is due to imprisonment, then there had been 1 million fewer victims of serious crime because we've had the confidence to put criminals in prison.

  • 10:47:09

    REHMPaul Butler.

  • 10:47:11

    BUTLERYou know, Diane, if you look at the countries in Western Europe, if you look at Japan, way fewer people locked up than we have and you're safer in those places. So this is really about public safety and it's about families. It's about children because, if you're a kid whose mom or dad is locked up, that dramatically increases the chances that you're going to be locked up as well. So it's about reducing risk factors that lead to mass incarceration and the good news is we'll all be safer.

  • 10:47:47

    REHMAll right. And here's a comment from Facebook, which says, "As a white guy who has been incarcerated for marijuana charges on both state and federal level, I can assure your misinformed guest that the system is 100 percent weighted against anyone darker than myself. I was sentenced lighter even with mandatory minimums and treated far better on a daily basis than my darker peers." Can you comment on that, Devlin?

  • 10:48:36

    BARRETTWell, I think -- I don't know that he is talking to anything I said, but I think what he's getting at is the common complaint you hear about offenders and particularly drug offenders, which is that the system tends to view black defendants more suspiciously and more punitively than white defendants.

  • 10:49:02

    BARRETTNow, I think there's whole range of issues that can play into that, one of them being mandatory minimums, one of them being the crack/cocaine disparity and others just being, you know, who is doing the sentencing and what do they see. What does a jury see and what does a judge see when those cases come to court.

  • 10:49:19

    REHMBut that's precisely what Eric Holder was getting into in his statement, was it not, Paul Butler?

  • 10:49:28

    BUTLERIt really was, Diane. And this was where I also think of the president and the attorney general's comments about Trayvon Martin because what George Zimmerman did to Trayvon Martin is what a lot of police officers do to African-Americans. They racially profile them. They think that they're guilty just because they're black.

  • 10:49:49

    BUTLERAnd, you know, if you're looking more with blacks than you are with whites, you're going to find more on blacks than whites even if blacks aren't disproportionately committing the crime. So it's a problem of inequality under the law. Unfortunately, that's not a new problem for African-Americans.

  • 10:50:07

    REHMTo Fort Lauderdale, Fla. Hi there, Rachel.

  • 10:50:12

    RACHELHi, Diane. Thanks for having me on.

  • 10:50:14

    REHMSure.

  • 10:50:16

    RACHELTo say that crime -- that we're protecting the public by locking up some of these nonviolent offenders is just ridiculous because what I see as a public defender down here is the majority of my clients that get arrested for drug trafficking are people with either minimal priors, maybe a couple misdemeanors when they were young, like DUIs or no priors at all, and often get caught up in a system where the police use informants to target people that are vulnerable, maybe addicted to drugs themselves.

  • 10:50:57

    RACHELSo, you know, cutting away, I have one client that is now doing 15 years for trading some of his oxycodones...

  • 10:51:05

    REHMRachel, you're sort of breaking up on us, but I wonder if you want to get to your specific point about mandatory minimum sentencing?

  • 10:51:19

    RACHELYeah, I mean, I guess my point is, is that we're not protecting anybody by, at least from what I see, by locking up people with no crime -- I mean, no prior criminal history. Because who are they going to hurt if they're out in the public if they haven't committed crimes before?

  • 10:51:36

    REHMAll right. Devlin.

  • 10:51:39

    BARRETTAnd this is I think a lot of what Holder is trying to speak to and tinker with, which is how you do you deal essentially nonviolent drug offenders. And a lot of people would argue that this is really the whole conversation...

  • 10:51:51

    REHMExactly.

  • 10:51:52

    BARRETT...that what you're really talking about for the bulk of this debate is what do you do with that group of people.

  • 10:51:57

    REHMBill.

  • 10:51:58

    OTISI never heard -- your caller is a public defender. In 18 years in which I was the -- in the U.S. Attorney's Office, I never heard a public defender say, oh, this sentence is too low. It's the job of a public defender to claim that sentences are too high. I would point out this as well, something that no one has mentioned today. Although we talk about a proposal for a new safety valve, federal law already contains a safety valve.

  • 10:52:24

    OTISBut unlike the proposed safety valve, the safety valve that we have now has some safeguards to it. It was proposed by then Sen. Joe Biden and enacted. And what it -- it does allow the judge to be a judge and to impose a sentence below a mandatory minimum, but there are some statutory requirements. One of them is that the defendant not have an extensive prior criminal history.

  • 10:52:51

    OTISOne of them is that he not have engaged in violence, that no one was injured or killed, that he not be a leader or organizer or a manager if it was a conspiracy events, and that he come clean about his own involvement and the involvement of others. Each of those, it's a perfectly reasonable -- it seems to me -- requirement in order for a judge to go below a mandatory minimum. But if they are met, the judge can do that.

  • 10:53:19

    REHMAnd you're listening to "The Diane Rehm Show." Mary Price.

  • 10:53:25

    PRICEAnd 80,000 people have benefitted from that statutory safety valve since it was enacted. It was actually also promoted by Sen. Hatch, who's still in the Senate and has said some interesting things I think about mandatory minimums. The problem with the safety valve -- it's been terrific but the problem with the safety valve is it doesn't go far enough.

  • 10:53:46

    PRICEAnd criminal history is an excellent point here because the way criminal history is calculated, lots and lots of petty crimes can add up very quickly to criminal history points. And what the statutes say is you can only have one criminal history point or two criminal history points, and after that, you're out. And judges have said repeatedly that criminal history frequently overstates somebody's actual seriousness.

  • 10:54:12

    REHMTo New York City. Hi there, Jess.

  • 10:54:16

    JESSHi, Diane. Thank you for having me on your call.

  • 10:54:18

    REHMCertainly.

  • 10:54:20

    JESSSo my comment is primarily directed to Mr. Otis. And generally, I think the problem with mandatory minimums is it eviscerates the ability of judges to act as a counterweight for what is otherwise or actually unfettered prosecutorial discretion. And if I can go back to the article that you mentioned earlier in this call, discussing a D.C. man charged in the death of a boy who then sold pot, it seemed to me that you didn't include the other details about the crime in which the man, who hit the boy, also took him into the apartment, gave him water, called his mother.

  • 10:54:55

    JESSAnd when he realized he wasn't responding, called 911. So it seems to me that there are mitigating factors for virtually any crime in any situation that should be considered. And simply by allowing the prosecution to decide how to charge the crime and thereby cut off any possibility of the judge considering those mitigating factors, you're giving far too much power to the prosecution.

  • 10:55:19

    REHMThanks for calling.

  • 10:55:20

    OTISI don't think so. A grown man who beats to death a 4-year-old boy because he's driving his scooter on the wrong side of the street comes to realize that the kid is in extreme danger of dying and then and only then, my goodness, takes him upstairs and gives him a glass of water. I don't consider that to be any serious mitigation (unintelligible).

  • 10:55:39

    BUTLERBut really, Diane, what the issue is, do we want Orrin Hatch and Dianne Feinstein in California to decide what happens to this man, or do we want a federal judge who knows all of the facts of the case to decide?

  • 10:55:51

    REHMHow do you respond to that?

  • 10:55:53

    OTISWe want a Congress that has the moral confidence to say that for some crimes like the one that our caller brought up, a man beating to death a 4-year-old, that for some crimes there is a rock-bottom floor below which we are not going to go. And it seems to me that the realistic question is not whether we should have a floor but what the floor should be. And that, it seems to me, is a subject for serious debate.

  • 10:56:21

    REHMPaul Butler.

  • 10:56:21

    BUTLERReally quickly, Diane. We're not talking about getting rid of mandatory minimums. I wouldn't mind having that conversation. But that's not what the Congress has proposed, that's not what the attorney general is going to be talking about next week. We're talking about a safety valve. So in those few cases in which judges think the punishment doesn't fit the crime, the judge will have the discretion to be fair.

  • 10:56:45

    REHMSo we shall await the attorney general's comments next week and certainly be listening in and talking about it. Thank you all so much for joining us. Paul Butler of Georgetown School of Law, Devlin Barrett at The Wall Street Journal, Mary Price for Families Against Mandatory Minimums, William Otis, a former federal prosecutor, former special White House counsel for George H.W. Bush. Thanks for listening, all. I'm Diane Rehm.

  • 10:57:26

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn and Danielle Knight. The engineer is Erin Stamper. Natalie Yuravlivker answers the phones.

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