FAMM’s Long Battle Against the Draconian Sentencing Regime

fammFamilies Against Mandatory Minimums (FAMM) is a nonprofit, nonpartisan organization that has been fighting for fair and proportionate federal and state sentencing laws that embrace judicial discretion while guarding public safety, since the early 1990s. With two million people in prison in this country FAMM has a lot of constituents to fight for. Add in the families of those two million plus and we are talking about a lot of people impacted by the federal drug laws and sentencing guidelines. FAMM has been in the trenches fighting the good fight for a long time and for those buried in the belly of the beast, under the sledgehammer justice of mandatory minimum sentences; FAMM has been a Godsend and a beacon of hope.

“As frustrated as I feel about the unbelievably long prison sentences people are serving, I know that the future is not all gloom and doom,” FAMM President Julie Stewart said. “In fact, it’s looking brighter than it has in a long time. Voices from across the political spectrum are calling for criminal justice changes.” Attorney General Eric Holder announced a plan to do away with mandatory minimum sentences that have condemned scores of non-violent offenders to lengthy federal prison terms. But he is not the only one.

Federal District Judge John Gleeson recently joined the chorus of commentators lamenting federal mandatory minimum sentencing statutes. And with tens of thousands of prisoners serving life without parole and decades of their lives for non-violent crimes, Gleeson has taken a stand. Judge Gleeson, who is neither naive nor sentimental, as a prosecutor he sent mobster John Gotti to die in supermax prison, knows that most defendants who plead guilty are guilty. He is however, dismayed at the use of the threat of mandatory minimums as sledgehammers to extort guilty pleas, effectively removing the right to a trial from the judicial process.

Ninety seven percent of federal convictions are obtained without trials, sparing the government the burden of proving guilt beyond a measurable doubt. Mere probable cause and the meager presentation required for a grand jury indictment suffices. “Judging is removed,” Gleeson said. “Prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “Some innocent people will plead guilty.”

The real work and importance of all modern mandatory minimum sentencing terms in the federal system exist to reduce the big burden on the government by making the risks of going to trial so severe that no one chooses to go that route. A Justice Department official was even quoted saying, “The 20 year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain. It’s been a really good negotiating tool.”

For those who favor a big federal criminal justice system having lots of power with limited burdens on a “tremendously efficient” means to scare “the dickens out of people so they cooperate” with government officials, the current operating structure and modern application of federal mandatory minimums are still working very well despite the setback that FAMM and other voices may represent for one of the most potent prosecutorial weapons in the drug war.

Conservative commentator Richard Viguerie recently wrote in the Wall Street Journal that, “It’s not just the excessive and unwise criminal justice spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is, therefore, also an issue of compassion.”

Compassion has far too often been absent in the conversations about sentencing policy, usurped by a thirst for retribution and plain old punishment. While that is still a common refrain among policy makers, a new chorus is taking shape. States across the country are passing bills that reduce punishments for nonviolent offenders and congress is taking note.

Prisons represent only one pillar of the costly justice system that FAMM has fought to dismantle, and roll back. Drug addicts swept up in the aftermath of the Rockefeller Drug Laws of 1973 and the federal Anti-Drug Abuse Act of 1986 are being treated as medical patients rather than criminals. Marijuana, once regarded as the gateway substance in the drug war, is increasingly being decriminalized. Stiff sentences for repeat offenders, meted out in dozens of states, have been eased, as has the application of solitary confinement. And FAMM has been instrumental in all of these.

The Obama administration’s Office of National Drug control Policy (ONDCP) proposed a new science driven plan based on evidence and reforms that will treat our nation’s drug problem as a health issue, not just a criminal justice issue. According to the ONDCP, the new policy plan “underscores what we all know to be true, we cannot arrest or incarcerate our way out of the drug problem.”

ONDCP said the new plan builds on past administration successes, including reducing the crack powder cocaine sentencing disparity and repealing a mandatory drug sentence for “the first time in 40 years.” President Obama, Attorney General Eric Holder and Senators Pat Leahy (D-VT) and Rand Paul (R-KY) are questioning the regime of mandatory minimum sentences, including recidivism enhancements that began with the Anti-Drug Abuse Act of 1986. For those who are suspicious of a big federal criminal justice system having lots of power, concentrated in executive branch officials not subject to the rule of law or really any regulation or review of how its power gets used, reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the constitution and the Bill of Rights. Meanwhile, the human and financial costs of mass incarceration mount.

“I am glad that the White House acknowledges that we cannot eliminate illegal drug use by simply building more prisons,” Stewart said. “This acknowledgement follows Holders recent admission that too many people go to too many prisons for far too long, for no good law enforcement reason. Of course the administration almost always says the right thing when it comes to combating prison overcrowding and reforming the mandatory minimum sentencing laws that contribute to it.      But after four and a half years of saying it wants smarter anti-crime policies, its time for the administration to prove it. I just wish it would happen quickly. But we are not there yet. We’re getting closer than we’ve been in the 22 years I’ve been doing this work. And one day, not too far away we’ll be free of the tyranny of sentencing laws imposed by out of touch leaders.”

Holder’s entry into the growing national discussion thrust the issue to the top tier of the Justice Department’s agenda. He has brought a national focus to the debate about punitive criminal justice policies that had been largely playing out in state capitals. But Holder is not the only high profile figure calling attention to inequities.

Bureau of Prisons director Charles Samuels testified before the Senate Judiciary committee that federal prisons are operating at 140 percent of their capacity, creating conditions that undermine prisoner rehabilitation and reentry and endanger inmates and staff alike.

“The administration should embrace the new bipartisan legislation introduced in the House and Senate to restore judicial discretion in cases where a mandatory minimum sentence is not needed to protect public safety,” Stewart said. “It’s time to take the next step by preventing misuse of the mandatory sentencing laws that remain on the books. The administration should embrace and champion this cause which has already been endorsed by individuals and organization from across the political spectrum, including tax reform advocates, religious groups and sentencing reform experts.”

The Smarter Sentencing Act was proposed in early 2014. It provides for retroactive application of the Fair Sentencing Act, a reform that reduced excessive penalties for federal crack cocaine offenses; reduces the 5, 10, and 20 year mandatory minimum sentences for many federal crimes to 2, 5 and 10 years respectively and expands the existing safety valve exception for drug offenses to apply to people who fall into criminal history categories 1 or 2 under the US Sentencing guidelines.

“More and more Republicans and Democrats agree that these one size fits all laws send too many nonviolent people to prison at a cost we can no longer afford,” Stewart said. “There is growing consensus that mandatory minimums may actually make us less safe by wasting our crime fighting money on the wrong people. No one should have to continue serving those old sentences now just because they were sentenced on the wrong date. It’s never too late to make this right. The need for mandatory minimum sentencing reform is dire and urgent.”

Julie-StewartFAMM and Julie Stewart have been singing the same song for over 20 years. It’s been a long battle, and it must be satisfying to the organization that operates on approximately $150,000 a year that lawmakers are finally starting to listen and come to their senses. As the foremost soldier in the fight, Julie Stewart has stayed strong, firm and resolute in her beliefs of what is right and what is wrong.

“We are in the business of making sure that whoever breaks the law, receives a sentence that fits his or her crime and role in it,” Stewart said. “We oppose all mandatory minimums. We do so because they eliminate the discretion of courts to impose a sentence that fits the individual who committed the crime and the unique circumstances of the crime. The politicians who draft mandatory sentencing laws cannot foresee every circumstance that might arise in the future. That’s why judges need the flexibility to make sure the punishment fits the crime and the offender.

“Despite our name, FAMM does not only oppose mandatory minimum sentences. Although that was my original focus, I quickly learned that mandatory minimum sentences had perverted the sentencing system so badly that we need to fight their harmful effects in other areas. For instance, drug and gun mandatory minimums passed by Congress caused the US Sentencing commission to increase the sentencing guidelines for drug and gun offenses.

Then to maintain parity between those and other offenses the guidelines were raised for lots of other crimes. Today, the sentencing guidelines are absurdly high for all kinds of crimes. Maybe out name shouldn’t be FAMM. Maybe it should be FASS, Families Against Stupid Sentences. But in the end our name isn’t important. What’s important is that we get the job done.” And in truth that is what FAMM and Julie Stewart have done, continuing to champion the cause of those buried in the belly of the beast.