The US Government Is Slowly Moving Toward Putting Fewer Drug Dealers in Prison

Photo via Flickr user goldenratio

The term Kafkaesque gets thrown around a lot these days when people talk about the US government—and it's easy to see why, given everything we've learned over the past few years about the scale of the Obama administration's drone warfare program and the NSA's global surveillance regime. Kafkaesque also happens to be pretty much the only word I can think of to describe America's drug laws, which have led to minorities being disproportionately targeted for low-level arrests and are responsible for about half of the approximately 216,000 people currently residing in the federal prison system.

But things are looking a bit less bleak now that the US Sentencing Commission (an independent governmental agency) has voted unanimously to revise its guidelines (which are treated like Leviticus by most federal judges), a change the commission says will cut the average sentence for drug trafficking by 11 months and help trim the population at federal prisons. Assuming lawmakers in our beloved Congress don't affirmatively take action to prevent the change—not impossible, but, I'm told, pretty damn unlikely—the new rules will go into effect on November 1.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” Judge Patti B. Saris, chair of the Sentencing Commission, said on Thursday. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

The vote comes after Attorney General Eric Holder took a surprisingly aggressive step of his own in August by instructing US attorneys to not necessarily seek the harshest sentence possible when going after mid-level drug traffickers. Of course, we've quickly started hearing stories about angry, old-school prosecutors who are pissed the government doesn't want to legitimize their rabidly authoritarian impulses anymore. Essentially, they argue that the threat of decades in jail is the only way to break up drug dealing networks, as low-level couriers who face the prospect of half a century behind bars tend to at least consider cooperating with the cops. But if the war on drugs ended, presumably a lot of those prosecutors would lose their jobs—pretty much everyone who isn't financially invested in our terrible drug policies thinks these moves are good news.

"Our country is slowly but steadily reversing the damage done by the failed, racially biased war on drugs," Jesselyn McCurdy, a senior legislative counsel at the ACLU, said in a statement.

I called McCurdy up to ask her how big a deal these revised sentencing guidelines were, and found her optimism tempered by a lot of realism. "It'll probably only affect 6,500 people," she told me, citing the Justice Department's estimate of the future reduction in the prison population.

Which is to say this is just one step in the long process of reining in the country's overly harsh drug laws. Notably, the new guidelines are not retroactive, so those languishing in jail with outsized prison terms are out of luck. More importantly, McCurdy said, was Holder's directive, and even more important than that is the Smarter Sentencing Act. That's the legislative response to the swelling penitentiary population crafted by Democrats, criminal justice groups, and libertarian-leaning Senate Republicans like Rand Paul and Mike Lee. Though it hasn't exactly gripped the national media, the bill is seen by lobbyists and sympathetic senators as having a solid shot at passage. It cleared the Senate Judiciary Committee in January, and could come up for a vote before the full Senate in a matter of months. In addition to rolling back mandatory minimums, the bill would make retroactive the reduction in the disparity in sentences handed out for crack and powder cocaine that passed in 2010.

So while we shouldn't exactly declare victory here—the war on drugs isn't going anywhere until someone gets elected president on an explicit promise to halt it—we are seeing the creaky gears of the federal law enforcement apparatus begin to show some signs of change.

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