Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform

Testimony Crime and Justice

Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform

June 24, 2021 24 min read
John Malcolm
Vice President, Institute for Constitutional Government
John is Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies.
Criminal justice has a dramatic impact on the lives of real people—both the victims and perpetrators of crime and their families—and helps to shape how people view our criminal justice system in terms of its effectiveness and its fairness. People of goodwill from across the political and ideological spectrum approach these issues from different perspectives. Some believe the system should be changed because of systemic racism; others believe that we incarcerate too many people—often referring to this as “mass incarceration”—and that the economic and noneconomic costs associated with this are too high relative to any resulting public safety benefits; still others believe that we do not place enough emphasis and focus on rehabilitation and that we underestimate the capacity of those who violate our criminal laws to redeem themselves. The people who espouse these divergent viewpoints believe them passionately and sincerely. There is much agreement among the proponents of these viewpoints on measures that ought to be taken to improve our criminal justice system, even if there is broad disagreement about why those measures are warranted. Sadly, such measures often fail to get enacted either because people get caught up in the latter and don’t focus on the former or because they insist on an all-or-nothing approach with respect to the specific proposals they support.

Testimony before the Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security
U.S. House of Representatives

June 17, 2021

John G. Malcolm
Vice President, Institute for Constitutional Government
Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation

Chairwoman Lee, Vice Chair Bush, Ranking Member Biggs, and distinguished Members of Congress:

Thank you for the opportunity to appear before you today to discuss some of the various criminal justice reform proposals that you are currently considering. My name is John Malcolm. I am the Vice President of the Institute for Constitutional Government and the Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.REF I have also spent a good deal of my career involved in the criminal justice system—as an Assistant United States Attorney, an Associate Independent Counsel, a Deputy Assistant Attorney General in the Criminal Division at the U.S. Justice Department, and a criminal defense attorney.

A lot of my scholarship has focused on various aspects of our criminal justice system.REF In 2013, I had the privilege of testifying before the House Judiciary Committee’s Over-Criminalization Task Force,REF and I was an outspoken supporter of the First Step ActREF and other criminal justice reform proposals. Although I spent much of my career as a federal prosecutor and am a scholar at a prominent conservative think tank, I recognize that our criminal justice system is far from perfect and that, when it comes to creating new crimes or increasing sentences for new and old crimes, sometimes the pendulum can swing too far.

I am aware that you are currently considering a number of criminal justice reform proposals including the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act,REF the Reforming Alternatives to Incarceration and Sentencing to Establish a Better Path for Youth (RAISE) Act,REF the Community-Based Sentencing Alternatives for Caretakers Act,REF the First Step Implementation Act,REF and the Prohibiting Punishment of Acquitted Conduct Act,REF among others. Even though I have concerns about some of these proposals, I applaud you for debating these issues. All of you care about public safety, although I recognize that there may be disagreements among you about whether some of these proposals will enhance or hurt public safety in the long run.

These are particularly difficult issues in relation to the “war on drugs,” a phrase first used by President Richard Nixon in 1971 at a press conference where he identified drug abuse as “public enemy number one in the United States.” There is no question that this effort has entailed a high social and economic cost.

A complicating factor in any discussion about drug offenses is that while many consider drug dealing to be a nonviolent offense, there are others, myself included, who are uncomfortable with this label “since drug dealing is often carried out by gangs, and almost invariably involves the actual or threatened use of violence and the inherent risk of overdose.”REF It seems clear, though, based on recent efforts in many states to decriminalize or legalize the possession of certain drugs that are still prohibited under federal law, that many members of the public believe that we need to recalibrate how we tackle the drug problems that continue to plague our country, as evidenced, for example, by the current opioid epidemic.REF Many states have instituted drug courtsREF and other specialized courts. Sentencing reform at both the state and federal levels is, of course, part of that ongoing discussion.

The following are my thoughts on a couple of the proposals that you are considering.

The First Step Implementation Act

The First Step Act of 2018 modestly reduced the mandatory minimum penalties for certain repeat drug offendersREF and eliminated the ability of prosecutors to “stack” mandatory minimum sentences under 18 U.S.C. § 924(c) for using a firearm during a crime of violence or drug crime.REF The First Step Act made these changes applicable only to offenses committed after December 21, 2018, the effective date of the statute.REF

Section 101 of the First Step Implementation Act would enable offenders who committed their crimes prior to that date to petition a court for a reduction in sentence based on the new sentencing structure brought about by the First Step Act. It would also expand eligibility from those who committed a “felony drug offense” to those who committed a “serious drug felony or serious violent felony.”

Section 102 of the First Step Implementation Act would expand the current “safety valve”REF to allow a court to impose a sentence below a mandatory minimum if the judge “specifies in writing the specific reasons why reliable information indicates that excluding the defendant pursuant to [the limitations set forth in the current safety valve] substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”

Section 201 provides potential relief to juvenile offenders—defined as those who “committed and completed” their crimes before turning 18 years of age—who were “convicted as an adult” by providing a “second look” after the offender has served a minimum of 20 years in prison, thereby enabling a judge to reduce that offender’s sentence but only if the judge concludes that “the defendant is not a danger to the safety of the community and that the interests of justice warrant a sentence modification.” The defendant would not be permitted to file more than three applications for relief, with a minimum of five years having elapsed between applications.

In order to give certain juvenile offenders the opportunity to start with a clean slate upon reaching adulthood, Section 202 would facilitate the sealing or expungement of juvenile delinquency adjudications and juvenile criminal records for certain eligible, nonviolent offenders.REF It would also “prevent the unauthorized use or disclosure of [such records] and any potential employment, financial, psychological, or other harm that would result from such unauthorized use or disclosure,” subjecting those who intentionally violate this provision to potential criminal penalties.REF The section includes some sensible exceptions related to investigations conducted by, or potential employment with, certain federal agencies involved in law enforcement, national security, the military, and other designated “high-risk, public trust position[s]” within federal agencies. The section also includes an exception whenever a juvenile offender whose records have been sealed or expunged testifies “in a criminal or other proceeding if such disclosure is required by the Constitution of the United States, the constitution of a State, or a Federal or State statute or rule.”

Section 203 would require the Attorney General to establish and enforce procedures to ensure the accuracy of criminal records that are sought for employment-related purposes. This is important because such records, which are often inaccurate or incomplete,REF are routinely sought by would-be employers who are conducting background checks and can have a devastating effect on an individual’s employment prospects. Accordingly, this section provides a process for people to challenge or correct records regarding their criminal history (or lack thereof).

I wholeheartedly endorse and applaud any effort to ensure that all parts of the First Step Act are fully and effectively implemented, and there are several provisions in this bill that I support. That having been said, there are parts of this bill that give me some pause. For example, regarding Section 101, I question whether expanding eligibility for sentencing reconsideration to those who have been convicted of a “serious violent felony” makes sense during a time in which we have experienced a dramatic spike in violent crime in this country,REF although I do recognize that eligibility for sentencing reconsideration does not mean that such an offender will automatically, or even very often, get his sentence reduced.

I have similar concerns about Section 201 with respect to juvenile offenders who commit unspeakably violent crimes, but I recognize that such offenders would not be eligible for relief under this provision until they had spent over half of their lives behind barsREF and can only assume and hope that if this bill is enacted in its present form, judges will take seriously the directive that such offenders should not be released early unless the judge determines that the defendant no longer poses “a danger to the safety of the community….”

Regarding Section 102, while I expressed the view that the safety valve was too stringent prior to passage of the First Step Act,REF I am discomfited by the thought of expanding the safety valve to offenders who have more than four criminal history points—and have therefore made clear that they are recidivists—based on such subjective criteria as a judge’s belief that this record “substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” I do recognize, though, that the judge must specify the reasons why he or she has reached this conclusion based on “reliable information” (another somewhat nebulous and subjective term) and take comfort in the fact that defendants who commit “a serious drug felony or a serious violent felony” as those terms are defined under federal lawREF would be ineligible unless, of course, the defendant provides “substantial assistance” to the government.REF

The EQUAL Act

In 1986, Congress passed the Anti-Drug Abuse Act, which established many mandatory minimum penalties for drug offenses, including amending 21 U.S.C. § 841 to provide a 100-to-1 ratio in the quantities of powder cocaine and crack cocaine that would trigger a mandatory minimum penalty. For example, the law established a five-year mandatory minimum term of imprisonment for offenses involving 500 grams of powder cocaine or five grams of crack cocaine, and a 10-year mandatory minimum penalty for offenses involving five kilograms of powder cocaine or 50 grams of crack cocaine. In 2010, through the Fair Sentencing Act, Congress lowered the disparity to 18-to-1—an arbitrary number to be sure—so that the amount of crack cocaine was raised to 28 grams to trigger a five-year mandatory minimum penalty and 280 grams to trigger a 10-year mandatory minimum penalty while the amounts for powder cocaine remained unchanged. While the Fair Sentencing Act implemented this change on a prospective basis only, Section 404 of the First Step Act of 2018 made those changes retroactive, enabling many offenders who had been sentenced under the old 100-to-1 regime to petition a court for a reduction in sentence. While courts retain the discretion to grant or deny such relief, many offenders have in fact had their sentences reduced as a result of this change in the law.REF The EQUAL Act would eliminate the disparity altogether and apply this change retroactively.

From a pharmacological perspective, there is really no difference between powder and crack cocaine.

Cocaine is a hydrochloride salt in its powdered form, while crack cocaine is derived from powdered cocaine by combining it with water and another substance, usually baking soda (sodium bicarbonate). After cocaine and baking soda are combined, the mixture is boiled, and a solid forms. Once it’s cooled and broken into smaller pieces, these pieces are sold as crack.REF

According to pharmacologists, the major differences are how the drug is administered and its effects on the user. Although it can be injected, powder cocaine is usually snorted, while crack cocaine can only be smoked. When cocaine is injected or smoked, the drug takes effect more quickly, resulting in a more intense high of shorter duration.REF For this reason, as well as the fact that crack cocaine is much cheaper than powder cocaine, many believe that crack cocaine users are more likely to become addicted than powder cocaine users are. Moreover, while some believe that crack users are more prone to violent reactions than powder cocaine users are, others dispute this.REF

Additionally, regardless of the intent behind these laws, as has been pointed out many times, it is clear that the largest impact, both in terms of the devastation that drugs have wrought and in terms of the imposition of extremely long sentences on offenders, has been felt most keenly in communities of color.REF I further note that the vast majority of states do not treat crack cocaine any differently from powder cocaine in terms of sentencingREF and that this bill has attracted bipartisan supportREF as well as support from major prosecutorial and law enforcement organizations.REF While I do not have a settled view on whether it makes sense to completely eliminate the differential when it comes to sentencing, the current disparity between how crack cocaine offenders are treated compared to powder cocaine offenders does strike me as being excessive.

Retroactivity

Let me say a few words about retroactivity. Both the First Step Implementation Act and the EQUAL Act have retroactivity provisions that might enable offenders who committed their offenses prior to passage of these Acts to take advantage of some of the changes that these laws, if enacted, would bring about, leaving it to the court’s discretion whether to grant or deny a petition for relief.

There are many who object to the retroactive application of changes in sentencing laws. In addition to those who did not support the change in the first place, others object because it runs counter to the general principle of desiring finality in criminal cases,REF which can be particularly unsettling to victims and their families. Some have mentioned the need to conserve judicial resources and the burden that would be placed on judges who would be tasked with reconsidering sentences that were imposed long ago at the expense of attending to other matters.REF Others have noted that the original sentence that was imposed may have been the result of a plea bargain in which other, more serious charges were dismissed; enabling an offender to petition a court for a reduction in sentence could upset the “benefit of the bargain,” at least from the prosecutor’s perspective. One might also object that retroactivity is a one-way ratchet, in that an offender can petition a court for resentencing when a penalty is reduced by subsequent legislation, but a prosecutor cannot petition a court to resentence a defendant when a penalty is increased by subsequent legislation.REF

While I recognize the legitimacy of all of these arguments, I come down on the side that if society has made a judgment, as reflected through legislation passed by its elected representatives, that certain punishments are simply too harsh and therefore unjust, then the current sentiment presumably is that they were too harsh and unjust when they were originally imposed, at least theoretically. Enabling a judge to reconsider a sentence, taking into account all factors including the nature of the crime that was committed, the views of the prosecutor and any victim, and the offender’s record while incarcerated, as well as an assessment of the likelihood that the offender will recidivate upon release, is a smaller price to pay than allowing offenders to languish in prison for a period of time that society now deems to be excessive.

Conclusion

The work you do, most especially in the area of criminal justice, has a dramatic impact on the lives of real people—both the victims and perpetrators of crime and their families—and helps to shape how people view our criminal justice system in terms of its effectiveness and its fairness. Over the years, I have dealt with many people of goodwill from across the political and ideological spectrum who approach these issues from different perspectives. Some believe the system should be changed because of systemic racism; others believe that we incarcerate too many people—often referring to this as “mass incarceration”—and that the economic and noneconomic costs associated with this are too high relative to any resulting public safety benefits; still others believe that we do not place enough emphasis and focus on rehabilitation and that we underestimate the capacity of those who violate our criminal laws to redeem themselves.

Though I do not agree with all of these perspectives, I acknowledge that the people who espouse these divergent viewpoints believe them passionately and sincerely. In speaking to these thought leaders, I have often been struck by how much agreement there is on many of the measures that ought to be taken to improve our criminal justice system, even if there is broad disagreement about why those measures are warranted. Sadly, I have also often been struck by the fact that such measures fail to get enacted either because people get caught up in the latter and don’t focus on the former or because they insist on an all-or-nothing approach with respect to the specific proposals they support. As you continue your deliberations on these important issues, I would urge you to focus on your areas of agreement and not let the perfect be the enemy of the good.

I thank you for inviting me here to testify today and would be happy to answer any questions you might have.

*******************

The Heritage Foundation is a public policy, research, and educational organization recognized as exempt under section 501(c)(3) of the Internal Revenue Code. It is privately supported and receives no funds from any government at any level, nor does it perform any government or other contract work.

The Heritage Foundation is the most broadly supported think tank in the United States. During 2018, it had hundreds of thousands of individual, foundation, and corporate supporters representing every state in the U.S. Its 2018 operating income came from the following sources:

Individuals 67%

Foundations 13%

Corporations 2%

Program revenue and other income 18%

The top five corporate givers provided The Heritage Foundation with 1% of its 2018 income. The Heritage Foundation’s books are audited annually by the national accounting firm of RSM US, LLP.t

Authors

John Malcolm
John Malcolm

Vice President, Institute for Constitutional Government