Injustice—especially racial injustice—is written into our nation’s drug sentencing laws. It is embodied especially in laws that attach mandatory minimum sentences to certain categories of drug-related crimes. Thankfully, all three branches of the federal government seem to be awakening to this racial incoherence, and are critically assessing the issue in a more serious manner than they have in my lifetime (1986 marking the inception of both mandatory minimums and yours truly, I will proudly point out that I am two months the senior of Congress’ fear-induced brainchild). According to a December 17th New York Times article, however, a power struggle between legislative and judicial branches may bar concerted progress on the matter.
In this episode, the Supreme Court is arguing for more sentencing discretion on the part of appellate court judges, while Congress, although (probably, mostly) aware of the necessity for change, is hesitant to relinquish that discretion. Inter-federalist power struggles are in no way avoidable or even necessarily undesirable—they are the bedrock of our messy-yet-durable and mostly democratic government. But it is unfortunate that the medium for this particular power struggle is such an important issue. The issue of drug sentencing is not one that will benefit from this sort of federalist duel (think of it like Alexander Hamilton in that respect). Our 21-year experiment with mandatory minimums clearly demonstrates that America benefits when sentences are decided in the Judiciary.
In other words, regardless of which party is controlling Congress, the institution should not be calling the shots when it comes to prison time. This sounds illiberal; Congress is clearly the crown jewel of democratic accountability, whereas the federal court system is a democratic black hole where judges can be sent but not recalled, with relatively few disincentives to stampeding on the public interest while on the bench. I am tempted to just ask whether, if our congressionally-established sentencing policy were not so racially loaded, congressional oversight would be the way to go.
I can see two reasons why Congress is ill-fitted for sentencing decisions though. First, it is constantly shown that campaigns are the worst thing to happen to criminal justice in America; nothing sounds better than a harsh-on-crime platform, and the unlawful have few public advocates. It pains me to remind myself that mandatory minimums were a project of congressional Democrats. Second, good governance in the area of sentencing requires individualized deliberation. Congress is incapable of this, but a judge is not. Not only does face-to-face contact between defendant, judge, and jury decrease the chances of inhumane punishment, it simply allows for the consideration of mitigating circumstances in a way that mandatory minimums do not. To think that a legislative body can take into consideration all factors necessary for sentencing at any single moment, let alone be able to project those factors far into the future, is folly.
In this instance then, competence in criminal justice procedure will first involve Congress’ recognition of its own structural limitations.
Tim Krueger is a Sun columnist. He can be reached at [email protected].