104th Congress: the good and the bad
Crime remained a hot topic in Congress during the second half of the 1990s. In 1996, members of the 104th Congress passed the No-Frills Prison Act, which removed many privileges of prisoners, and the welfare reform bill, which prohibited those convicted of a drug felony offense from ever receiving food stamps and Aid to Families With Dependent Children (AFDC). In addition, Congress voted to deport criminal non-citizens convicted of felonies (including drug offenses) punishable by more than a year in prison. But, not all was bad. It considered - but failed to pass - bills that would have increased marijuana penalties and prevented prisoners from earning a year off their sentences by participating in a drug treatment program. It also rejected a bill to add a five-year mandatory sentence to those merely possessing a gun during a drug transaction or crime of violence (a decision that was revisited in the next Congress). 22
Drug penalties move to ballot box
In Arizona, focus turned to penalties imposed upon drug users. In 1996, voters passed Proposition 200, which diverts those convicted of first- and second-time drug possession from prison into drug treatment. It applies only to personal drug possession and not low-level drug sales or other drug-related crime.
Crack vs. powder cocaine: a stalemate
In 1997, the U.S. Sentencing Commission presented a recommendation to Congress that would lower crack cocaine penalties and raise powder cocaine penalties. The Department of Justice and the drug czar made a similar recommendation, which President Clinton supported. Congress responded with seven bills, six to raise the powder penalties, and one (H.R. 2031), by Rep. Charles Rangel (D-N.Y.) and 17 co-sponsors, to treat crack cocaine the same as powder cocaine for sentencing purposes. 23 None of the bills were enacted, but the introduction of bills continued. In the following years, former Sen. Spencer Abraham (R-Mich.) introduced crack bills (S. 2003 in 1998 and S.146 in 1999) that sought to make powder cocaine penalties stiffer while leaving crack sentences alone, and Rep. Rangel reintroduced his equalization bill as H.R. 939 in 1999. 24
Sentencing guidelines revisited
To mark the 10th anniversary of the 1987 enactment of federal sentencing guidelines, Rep. John Conyers Jr. (D-Mich.) and Sen. Edward Kennedy (D-Mass.) co-sponsored a symposium to evaluate the effectiveness of the federal sentencing system. The conclusion: the federal sentencing guideline system will never function properly without the removal of congressionally enacted mandatory sentences. Sen. Kennedy remarked that the guidelines had fallen short of their goal "to strike a fair balance between the need for flexibility to permit individual sentencing, and the need to ensure that defendants convicted under similar circumstances received similar sentences." Carmen Hernandez, assistant federal public defender, and FAMM president Julie Stewart testified that mandatory sentences derail the effectiveness of the guidelines by inflating federal drug sentences and removing what little sentencing flexibility judges retain under the guideline system.
Michigan moves forward
The state of Michigan, which had some of the most severe mandatory drug sentences, moved a step away from them in 1998 by rolling back its "650 lifer law." FAMM's efforts were instrumental in changing the 20-year-old law that mandated life in prison without parole for those convicted of delivery or conspiracy to deliver 650 grams or more of heroin or cocaine. The reform also made those serving life terms eligible for parole after serving 15-20 years in prison. JeDonna Young, whose boyfriend dealt drugs, had been one of the first persons sentenced under the 650-lifer law in 1979. Twenty years later, she became one of the first Michigan prisoners to benefit from the law change. 25
Adding to the problem
The 105th Congress, which ended in 1998, passed two bad sentencing bills before it adjourned. The first bill, introduced by Sen. John Ashcroft (R-Mo.) changed methamphetamine penalties to make them the same as those for crack cocaine. The second bill evolved from a 1995 Supreme Court decision that said mere "possession" of a firearm during a crime of violence or a drug-trafficking crime was not sufficient to trigger the five-year mandatory sentence (Bailey v. U.S.). Members of Congress were not happy with the decision and three years later passed a bill that created more mandatory minimum sentences for gun offenses: five years for possessing a firearm "in furtherance of a crime," seven years for brandishing one, and 10 years for discharging one. 26