No one embodies the emerging consensus on the excessive cruelty of mandatory drug sentencing quite like Mark Osler. He’s currently a law professor, but back in the Nineties he worked as an assistant U.S. attorney, prosecuting crack cocaine cases in his native Detroit. Tough punishment was routine: Five years for crack rocks the weight of two sugar cubes. Five more if the defendant happened to have a gun tucked in his belt. Sometimes, Osler could close out a case in the span of a morning. “I thought crack was harming the social fabric,” he says, “and strict sentences would deter people.”
Law enforcement efforts concentrated in Detroit’s urban neighborhoods, and of the dozens of drug defendants he put behind bars, the majority were young men who were poor and black. A public defender named Andrew Densemo represented many of them, and at sentencing the judge would ask, “Will you be making your futile speech?” Densemo would invariably say, “Yes,” then he’d stand and speak at length about the groundless 100-to-one sentencing disparity between crack and powder cocaine, the crippling consequences for first-time offenders, and the failure of the laws to actually stamp out trafficking. When he finished, Osler would remind the court that the sentence was mandatory, and the judge would have no choice but to send the defendant to prison.
But one afternoon in 1997, Densemo’s speech finally got to Osler. “In the gospels,” he explains, “We have Jesus walking up to a legal execution, saying, ‘You who are without sin cast the first stone,’ challenging the moral right of the crowd to stone the adulteress. I remember thinking, ‘I’m the guy with the rock.'”
Osler left the U.S. attorney’s office, and he’s spent the past decade fighting unforgiving drug sentencing though litigation and advocacy. “The mechanistic outcome seemed so scientific,” he says. “Here’s what the person did, match it up on the grid. But it reduced everyone to a number, and there was this overwhelming sense almost like you were stacking bodies up.”
Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders. Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors. Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while Osler says, prosecutors gained “a big hammer. The easy way of doing things is to threaten people with a lot of time, and then plead them out,” he says. “But easy and justice don’t go together very well.”
In 2011, he founded the country’s first federal clemency clinic, at the University of St. Thomas in Minnesota. With his law students, Osler works on behalf of inmates who’ve lost decades to unduly punitive terms, filing commutation petitions for early release with the Office of the Pardon Attorney. Until recently, commutation was a distant hope for applicants; President Obama has granted clemency more rarely than any modern executive. But in April, the administration unveiled plans to revive the pardon power, in what could be its most vigorous exercise since President Ford granted amnesty to Vietnam draft-dodgers. “One of the uses of clemency has been to address overzealousness in warfare,” Osler says. “This is in response to the War on Drugs.”
But while such advances mark a clear departure from the old alarmist ethos, the drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20. Every year, taxpayers shell out $51 billion for drug war spending. Meanwhile, 2.2 million people — or a quarter of the world’s prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color. Rates of illiteracy, addiction, and mental illness are disproportionately high.
Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers. Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process. More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled. At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust. The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.