A bipartisan panel charged with taming the decades-long proliferation of federal crimes today takes up the question of whether an offense, to qualify as a crime, should involve criminal intent.
The criminalization of behavior involving no criminal intent – mens rea, in legal parlance – is part of the reason the number of federal offenses on the books has swelled over the past three decades to a staggering 4,500, including many that are obviously unnecessary, and even absurd.
But if the Over-Criminalization Task Force, which began its work in June, is to be effective, it needs to tackle a more urgent issue: namely, the explosive growth in our federal prison population by an astonishing 790 percent since 1980. And it needs to squarely confront the No. 1 driver of that growth, which is not the profusion of new federal crimes but rather the normalization of excessively harsh prison sentences, especially for non-violent drug crimes.
During the tough-on-crime 1980s, Congress eliminated parole and increased the number of federal offenses subject to mandatory minimum prison sentences, including for federal drug offenders. Three decades later, three quarters of mandatory minimums in 2012 were for drug offenses, with the result that almost 50 percent of the federal prison population is now serving a sentence for drugs, compared to eight percent for robbery, burglary, and other property offenses. A third of drug offenders got a 10-year mandatory minimum.
When Congress enacted mandatory minimum sentences for federal drug offenders it intended those sentences to punish major traffickers and kingpins. But because the sentences are triggered by the type and quantity of drug involved in the offense and not by the offender’s role in drug hierarchies, even low-level offenders receive them, with judges powerless to exercise their traditional role of ensuring sentences are crafted to take into account the unique circumstances of each case.
For example, more than two-thirds of street-level dealers, defined as those who sell directly to users in quantities of less than once ounce per sale, received at least a mandatory minimum sentence, serving an average of almost 6-and-a-half years.
In the course of my research for Human Rights Watch, I have come across plenty of cases like these: from the 53-year-old Texas woman convicted in 2006 of intent to distribute 50 grams or more of methamphetamine and possessing a firearm (which she didn’t use in connection with her drug dealing) who was sentenced to 45 years; to the 20-year-old, small-time, street-level drug dealer’s assistant, who acted as a go-between in the sale of a total of 88 grams, or 3 ounces, of crack, earning himself $140, and was sentenced to a mandatory minimum of five years because two of his crack sales exceeded the threshold quantity of 28 grams; to the nursing assistant in North Carolina with no criminal history who, because she collected and counted money a handful of times for her drug-dealing brother, was sentenced in 2006 to 20 years in prison.
Sentences like these surely violate the core concept of proportionality – the principle that punishment should match the crime and culpability of the offender.
That’s partly why states across the country are revising their criminal codes and practices in recognition of the fact that prison is often an unnecessarily harsh and even counterproductive sanction for low-level offenders.
The Over-Criminalization Task Force has a unique opportunity to press Congress to recalibrate federal punishments for particular offenses so that they promote public safety, respect for the law, and the well-being of the country’s communities. To meet that opportunity, they should incorporate into its work an evidence-based review of the costs and benefits of mandatory minimum sentences for federal offenders.
Unfortunately, troubling early signs suggest the Task Force may shy away from tackling excessively harsh sentencing policies for nonviolent drug offenses. If so, Congress should take up the challenge, starting with passage of a promising new bill – the Safety Valve Act of Act of 2013, which would restore to federal judges the flexibility to issue sentences below mandatory minimums.
Reforming sentencing policy will have an enormous impact both on the lives of those who break federal laws and on their families. But more is at stake as well – above all, public faith in the integrity of the federal criminal justice system.
Fellner is senior advisor to the US program of Human Rights Watch.