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Passage of Fair Sentencing Act no guarantee of change

Eric Sterling [President, The Criminal Justice Policy Foundation]: "Thursday's passage of the Fair Sentencing Act proved that I have been very wrong about this legislation. I was wrong in not believing that fairness in sentencing, fairness for convicted African-American crack dealers, fairness for any criminal defendant, had any political traction. I was wrong in believing that the intrepid coalition of sentencing reform advocates, civil liberties, civil rights and human rights supporters, and criminal justice reformers had failed to adequately sell the legislation to conservatives as a necessary refocus of the Department of Justice on high-level cocaine traffickers.

I was sure that most House Republicans would fight this legislation. I doubted that the participation of Senator Jeff Sessions (R-AL) and Senator Orrin Hatch (R-UT) in crafting the Senate bill -- carefully developed and brilliantly shepherded by Senator Richard Durbin (D-IL) -- would stifle the temptation for House Republicans to attack what was fundamentally a civil rights, civil liberties, criminal defense, drug policy reform bill, as a soft-on-drugs, soft-on-crime bill, as Rep. Lamar Smith (R-TX) did so characteristically in his floor speeches. I was dumbfounded when former Judiciary Committee Chairman James Sensenbrenner (R-WI) spoke for of the bill, and realized when Rep. Dan Lungren (R-CA), former California Attorney General, spoke for the bill, that I had been completely wrong.

I had been wrong about the House Democratic leadership. I would have bet money that they would never risk a potential GOP attack, along the lines made by Rep. Smith, upon Democrats who would vote for the bill, and therefore would not bring the bill to the floor. But with a voice vote and no roll call, Democrats are free from such attacks. I would love for a good journalist or investigative political scientist to dig out the story of what really happened among the key players. Who actually spoke to whom? Was the letter from the 11 Senators (including 6 conservative Republicans) enough to defuse House Republicans? Did Senators call House Members? Did the Democratic leadership, in essence, do a whip check of the GOP? Where were Rep. Boehner, Rep. Cantor and other GOP conference leaders? At what point did Lungren and Sensenbrenner get on board the compromise and why and for whom?

For this long-awaited Act to be meaningful, we must see something in the U.S. Attorneys Manual or a memorandum from the Attorney General to the U.S. Attorneys that will change the practices of federal agents and prosecutors in choosing defendants and cases to investigate. My fear is that there will be no change. I believe informants -- those cutting deals and the paid professionals -- will simply change their stories about the quantities that were involved. Or perhaps agents will simply direct that there be another controlled buy or two. The egregious racial disparity among defendants will not change unless Justice changes its policies. We will not know if this law has any positive effect until the U.S. Sentencing Commission issues its FY 2011 report federal sentences.

In addition, we need both retroactivity and resentencing to relieve thousands of Federal prisoners -- clearly minor offenders -- of the injustice they are enduring, and the immediate and complete reorganization of the Pardon Attorney's Office so that the President can quickly begin making the many grants of commutation of sentences that justice demands, and that reflect the political cover the GOP has extended to him. The ball has been tossed to the President and the Attorney General. Will they change the practices of the Justice Department or will they content themselves with speeches? The record of the Drug Enforcement Administration and U.S. Attorneys in flouting the Attorney General regarding the October 19, 2009 memorandum on medical marijuana prosecutions in states with medical marijuana laws is very discouraging."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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