Smarter Sentencing Act of 2013: Just as dumb as the Controlled Substances Act of 1970

The sponsors of the "Smarter Sentencing Act of 2013" may be forgiven for succumbing to the temptation to label their bill--and by association, themselves--as "smarter". A label does not change the nature of a bill, however. This labeling attempt should have been preceded by an attempt to make all our drug laws smarter.

Admittedly, the Controlled Substances Act of 1970 (CSA) was one of the stupidest laws ever written, unless the intent of the law was to imprison millions of Americans and give the prison industry an unfunded subsidy. CSA gave a subsidy to the prison industry by increasing the number of prisoners geometrically. The prison population of U.S. federal prisons (the prisons directly affected by CSA) has increased by 800% in the last 30 years. There are now 8 times as many people being held in federal prisons as there were in 1983, or about 2.3 million people total.

The authors of the Smarter Sentencing Act must have analyzed CSA and drawn the following conclusions:

• CSA was stupid because the determinate sentencing rules it established were too severe.
• CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.
• CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there year after year. Annual costs are now about $80 billion.

These conclusions are obviously valid; they are the issues addressed by the "Smarter" Act of 2013. The authors of this bill should not consider themselves "smarter" because they recognize these facts, however. The facts about prisons and incarceration are freely available to anyone who can read. They have been available for years. The statistics have gotten much worse, but the underlying facts remain the same.

True or false: CSA was stupid because the determinate sentencing rules it established were too severe

The sentences handed out under the determinate sentencing rules were too severe, but that wasn't the only problem, or even the most important problem. The law itself was fatally flawed. The rules required judges to sentence non-violent offenders to terms of many years in prison. Many of these offenders were not the habitual criminals that the law was intended to catch. Instead, they were individuals caught up in criminal activities because of ignorance, poverty, and lack of opportunity. Imprisonment did not help these people. In many ways imprisonment made their problems worse, because citizens returning from incarceration find it more difficult to find employment, housing, and opportunity than they ever did before.

These fundamental issues are not addressed by the new "smarter" act. Reducing determinate sentences by 50% may save money but it is a cruel hoax perpetrated on people who need our help.

True or false: CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.

The intent of the supporters of CSA was to put more people into prison. They knew this would cost more money, but they were pleased by that because they would be beneficiaries of the money spent on housing more prisoners. The stupid people were the backers of the law, who did not foresee the problems associated with it. These same people are now backers of this new, "smarter" law. They believe that they improve the law by tweaking it. They can't.

Meanwhile, the people who benefit from mass incarceration will still oppose any change to existing conditions.

True or false: CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there, year after year. Annual costs are now about $80 billion. 

Undoubtedly true. Whether we will see fewer people in prison by reducing their determinate sentence rules is not clear, however. If a person serves two years in prison instead of five years, will he or she have a better chance of staying out of prison? Returning citizens will face the same barriers to living normal lives as before, under the "stupid" CSA. They will still find it harder to get a job. They will still find it hard to pay off the extravagant fines imposed by CSA which are untouched by the "smarter" bill.

Under the CSA, a crime that deserves 15 years incarceration carries a fine of $25,000. Where will a returning citizen acquire such a sum? Only through more illegal activities, beyond doubt. CSA is stupid because it forces returning citizens into a life of crime to repay the fines it imposes on them. The "smarter" law does not address the issue of these fines and therefore is no smarter than CSA.

Racism in CSA and "Smarter" law.

Fifty percent of prisoners in the US are either African-American or Latino. An African-American male is 7 times as likely to be in prison as a white male. A Hispanic male is 2 1/2 times as likely to be imprisoned as a white male. These statistics strongly argue that there is a racial disparity in our justice system. A smarter sentencing law would recognize this disparity. A law that does not take into account this disparity cannot reasonably be considered smarter, no matter what its proponents call it.

ACLU support for "Smarter" law.

The ACLU supports the new, "smarter" law. This is a compromise position, no doubt. There is no compromise position between right and wrong, however. The ACLU should not support half-way measures, such as this  one, that only delay the institution of real reform.