‘Sentencing the Crime, Not the Person’

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Julie Stewart

When Julie Stewart launched Families Against Mandatory Minimums (FAMM) in 1991, after her brother was sentenced to a mandatory five years in prison on a federal marijuana charge, she figured her reform campaign would last five years. Despite what she says is ‘substantial progress’—over 300,000 individuals have received shorter sentences as a result of her organization’s work—she says there’s a lot more to do.

This Thursday, FAMM celebrates its 25-year anniversary with a Washington DC dinner for former inmates, their families, attorneys, and advocates. In advance of the dinner, she sat down with TCR Contributing Editor Ted Gest to discuss FAMM’s victories so far, the challenges ahead, and why she believes ‘a generational split’ is helping to win bipartisan support from legislators and the public for the goal of reducing unnecessarily long prison terms.

The Crime Report:  How did you get into the issue of sentencing reform?

Julie Stewart:  I knew nothing about sentencing until 1990, when my brother was arrested for growing marijuana. I was working at the Cato Institute in Washington, D.C. [and] got a call from my brother Jeff in the county jail in Spokane, Washington, where he had been arrested. He said he was in jail for growing marijuana. I thought that was stupid of him, but that “it’s only marijuana,” so he won’t get punished very much.

I didn’t know anything about the sentencing laws. I didn’t know that his case would go federal instead of being prosecuted at the state level, which would have made much more sense because he was growing marijuana in the garage. It wasn’t some major operation, and he didn’t cross state lines—there was no traditional federal nexus involved. That was my wake-up call on this issue.

TCR: How did this case lead you to form your organization?

JS: The federal judge handling my brother’s case had been on the bench for 25 years. At the sentencing, he said he didn’t want to give Jeff five years but he must because of the mandatory sentencing laws that Congress passed in the 1980s. He also railed against the prosecutor, who he saw as a kid who had come out of law school and was telling a judge who had been on the bench for a quarter-century what the sentence has to be.

I thought this was crazy, that this was not the way the American public thinks the justice system works. Most people think that if you are convicted of a crime, the judge weighs all the information he or she has learned and determines what the appropriate sentence should be. That’s not possible with mandatory minimums. I thought this was a travesty, that it was un-American, and that something needed to be done.

Jeff went to prison in October of 1990, and I started Families Against Mandatory Minimums (FAMM) in September 1991. It took about a year to put it together. I was trying to meet people in Washington who knew about sentencing law. This was before the Internet, and there was not a lot of information you could find at your fingertips. Scott Wallace, then at the National Association of Criminal Defense Lawyers, said he would ask his members to let families with loved ones people who were in prison know that there would be a meeting in Washington, D.C. in the spring to come talk about what could be done about mandatory sentencing laws.

About 20 people came from as far south as Florida and as far north as New Hampshire. It was a very eye-opening meeting at the offices of the House Judiciary Committee. It was sobering to hear people saying things like, ‘My son is serving 17 ½  years, my husband is doing 10 years, or my wife is doing five years.’ There were many decades of prison time represented. There was palpable pain in the room. People felt motivated to do something. No group at the time was advocating for reform of sentencing laws.

TCR: Did your first major effort involve what became a provision of the big 1994 federal crime law?

JS: Yes. In the summer of 1994, we changed a federal sentencing law. In retrospect, it was remarkable that it took only three years to get something accomplished. It was a “safety valve” that allows a judge to give a sentence below the mandatory minimum if five specific conditions are met.

I now know after 25 years how hard it is to change policy, especially statutory policy. I don’t think I appreciated at the time what a quick and easy win the safety valve was. FAMM should get 99 percent of the credit because we were the ones organizing the families to meet with legislators, bringing them photos of prisoners and their kids.

We saturated the media with stories of people serving decades in prison and were asked to testify before the House Judiciary Committee in 1993 and to suggest a prisoner to testify. We recommended Nicole Richardson, a young woman doing 10 years in prison for basically telling an undercover officer where to find her boyfriend, who had sold LSD. That hearing, and the media attention we attracted, helped lead to an awareness that low-level, nonviolent first time offenders shouldn’t be getting mandatory minimum terms.

TCR: Did the law work out just the way you wanted?

 JS:  No. The first time the bill was voted on, it included retroactivity of the safety-valve provision. That vote failed because the Congressional Black Caucus wasn’t happy with parts of the bills, such as “three strikes” and the death penalty for drug offenders; and the Republicans weren’t happy with the bill, largely because of gun control provisions in it.

In the following 10 days, the National Rifle Association (NRA) hired Charlton Heston to appear in ads saying that if the bill passed, tens of thousands of drug dealers would be let out on the street. It was a very strategic move on the part of NRA, and it worked because safety valve retroactivity was bargained away in the negotiations to get more Republicans to vote for the bill.

In hindsight, if the Black Caucus had supported the first version of the crime bill, a lot of people would have benefitted from shorter sentences and would have been released from prison much sooner.

TCR: What was the impact of the safety valve?

 JS: The U.S. Sentencing Commission says about 5,000 people per year have received terms lower than the mandatory minimum. To date, it has affected about 100,000 people.

TCR: Has the Sentencing Commission played a significant role in your work?

JS:  What I hadn’t realized when I started FAMM—but figured out pretty early— was that the commission has a huge impact on how much time people will serve in got to prison. The U.S. sentencing guidelines were mandatory at that point.[Ed.Note: The Supreme Court declared them advisory in 2005.]. We quickly began working with the commission and testified about some of the quirks that we thought should be corrected.

The most obvious one involved marijuana plant weight. To determine the drug weight for sentencing purposes, the commission counted each marijuana plant as one kilogram even though it might only be six inches tall, which was the case with my brother. He was charged with growing 360 kilos of marijuana, even though each plant was only six inches tall, and he and his friends hoped at the end of their growing operation that they would have 20 pounds of marijuana. The federal government’s marijuana grower from the University of Mississippi sent a letter to the commission stating that he could never grow a kilo’s worth of marijuana even under perfect conditions.

To its credit, the commission changed the way marijuana weight was calculated, from 1,000 grams per plant to 100 grams, and they made the change retroactive so prisoners could apply for reductions. That change affected about 900 prisoners. The same thing happened with the way drug weight was calculated for sentencing in LSD cases. You could have three sugar cubes with one dose of LSD each and get a longer sentence than if you had 100 doses on a piece of parchment paper because the sugar cubes weigh more. The commission recognized the inequity of these bizarre calculations, and assigned a standard weight to each dose of LSD.

Originally my focus was Congress, but I soon began to see it should be more than that—that it should include the Sentencing Commission, Congress and the states. One important benefit of focusing on the Sentencing Commission was that it has only seven members, so we had to convince only a majority—four people—of the need to change a sentencing guideline, in contrast to a majority of 535 members of Congress. It became evident that we could accomplish a lot more at the commission level.

TCR: What was happening in the states?

JS:  There was a dry period for sentencing reform in Congress after the safety valve passed in 1994. For the rest of the 1990s and early 2000s we spent time building our grassroots advocates and educating the public. We also became active in state sentencing reform. One focus was Michigan, which required sentences of life without parole for 650 grams of cocaine and heroin. The state had 240 people serving life sentences. In 1998, we succeeded in changing that law so they became eligible for parole in 18 or 20 years depending on their circumstances.

TCR: Do many other states have such laws?

JS: Yes. Many have “three strikes and you’re out” laws providing for life terms on conviction of a third offense. But many have tweaked them over the years because of budgetary—and some justice—concerns. In January of this year, we won an important victory in Florida when the legislature amended the state’s “10-20-life” gun law, which provides 10-year, 20-year, or life terms for various levels of gun offenses. Previously, people firing a warning shot in self-defense were convicted of aggravated assault and sentenced to 20 years in prison. Working with the NRA, we convinced the legislature to amend the law so [that] aggravated assault was no longer included in the list of crimes that triggers the 10-20-life sentencing laws.

About 450 people are serving sentences in Florida [who]  were convicted of aggravated assault under this law, many of whom merely fired a warning shot to protect themselves. The reform was not made retroactive,  so our work is not done there.

TCR: Back to Congress, you mentioned your early victory on the safety valve. How long did it take for another major reform?

JS: About 16 years. In 2010, Congress passed the Fair Sentencing Act, which reduced the disparity between crack and powder cocaine sentences. The original 1986 mandatory minimums required five- or 10-year mandatory prison terms for cocaine offenses involving crack quantities that were one-hundredth of powder cocaine quantities—the 100-1 ratio. Early on, this ratio was recognized as unjustified by the U.S. Sentencing Commission.

It tried to make the sentencing guidelines for crack offenses [fairer]  as far back as 1995, but Congress prevented that amendment from succeeding. The commission released three reports in 15 years, making clear there is really no difference between crack and powder. In 2007, the commission lowered crack penalties under the guidelines by two levels – retroactively—which FAMM was very involved in; and in 2010 Congress finally voted, nearly unanimously, in favor of changing the powder-crack ratio to 18-1. The Fair Sentencing Act included repealing the five-year mandatory minimum sentence for merely possessing crack cocaine. That was the first elimination of a mandatory minimum since the days of President Richard Nixon.

Julie Stewart

Julie Stewart

TCR: Why do we have mandatory minimum terms in the first place?

JS: Passing mandatory minimum sentences makes Congress feel like they’re doing something to stop crime. But the sentences are not very scientific; they are just the product of politics. If you read the list of federal mandatory minimums, they read like the “crime du jour,” including piracy in the 1790s and refusal to operate a telegraph line in 1888.

Whatever the public was concerned about, Congress responded by creating a mandatory penalty. There have been more than 100 mandatory minimums passed since the 1790s. There were federal mandatory minimums for drug crimes in the 1950s that were eliminated in 1970. Then in 1986, University of Maryland basketball star Len Bias died in Congress’s back yard, crack cocaine was rampant, it was an election year, and Congress responded to all of this by creating a rash of new mandatory minimums for drug and gun crimes.

TCR: Is your goal to eliminate mandatory minimums altogether?

JS: Yes. Mandatory minimums amount to sentencing the crime, not the person. The crimes that most often are subject to mandatory minimums are guns, drugs and child pornography, which has picked up in the last few years. There is no reason that legislators should tell judges what to do. You can cite crimes you think are terrible, but judges can still figure out the proper sentence.

TCR: What about cases in which it seems that a judge has imposed a very low sentence?

JS: The prosecution can appeal. That’s the best thing about our system: either side can appeal. If the sentence seems too harsh, the defendant can appeal; if it is too soft, the prosecution can appeal.  It’s not a done deal in federal courts, and many states allow similar appeals.Also, as with any policy, there will be “outlier” cases. Occasionally, some judge will do a seemingly crazy thing, but that that doesn’t mean you have to put the rest of the judges in a strait jacket.

TCR: Some public opinion surveys find that the public believes judges are not harsh enough.

JS:  I don’t think the public has any idea what sentences judges hand down day in and day out. The average sentence length has risen dramatically in the past 30 years. Judges have gotten a bad rap by Congress, and the media focuses on the rare case where a judge lets someone off lightly.

People’s answers to those surveys are not based on facts.

TCR: How would you rate your progress on getting mandatory minimum sentencing laws changed?

A  When I started FAMM, I thought it would take about five years to change these laws, and I would go on to do something else. Twenty-five years later, I’m still here. It’s depressing on one hand, but on the other, we have made progress in so many areas, including sentencing guidelines, which are now advisory on the federal level, Supreme Court cases, and some state reforms.

About 300,000 people have received shorter sentences thanks to the work that FAMM has done—and I think that’s a conservative estimate. We have made a big difference in many lives and that is very rewarding. I‘ve talked to people whose sentences have been reduced from life without parole to 30 years in prison—still a very long time—thanks to reforms we have championed. We hear these stories of shortened sentences from the federal prisoners we communicate with through the Bureau of Prisons email system. Currently, we communicate with about 35,000 federal prisoners.

TCR: Another debate is going on in Congress regarding  sentencing issues. How did that evolve?

JS: I think the origins of the current sentencing reform movement can be traced to the 2007 Sentencing Commission reduction in crack cocaine guidelines. Over 10,000 prisoners benefited from that reform and were released from prison early. The naysayers were quick to predict a wave of crime following those early releases.

They were wrong. That successful reform led Congress to pass the Fair Sentencing Act in 2010, reducing the disparity between crack and powder cocaine. The Sentencing Commission followed that reform and amended the sentencing guidelines retroactively, allowing another 10,000 prisoners to be released early. Again, the naysayers predicted an uptick in crime and, again, they were proved wrong. Also, importantly, members of Congress who overwhelmingly supported the Fair Sentencing Act, easily won reelection. In other words, voting for a sentencing bill that reduced sentences was not a death knell for reelection.

Now, there is a bipartisan consensus in Congress that current sentencing policies need to be reformed. And 77 percent of the public support repealing mandatory minimum sentences for nonviolent drug offenders. There is a general understanding across the country, that too many people are going to prison for too long, and that is a consensus that wasn’t there 10 years ago.

TCR: There are several bills pending in Congress now involving sentencing. How do you assess them?

JS: The bills I like best are, unfortunately, not the ones moving. The bill with the most traction is the Sentencing Reform and Corrections Act, which does offer improvements— but not big enough ones. And, it is getting watered down in an attempt to win support from more Republicans. One section in the bill, however, that I would love to see move through, even if the rest of the bill dies, is making the Fair Sentencing Act retroactive. It should have been done in 2010 when the bill was passed and 8,800 crack prisoners could have benefited.

Today, there are about 4,400 crack prisoners serving sentences that Congress has admitted are unjust, yet they have not allowed them to benefit from the new crack laws. That is patently unfair.

TCR: Still, a few senators are raising the issue that some of the changes could let dangerous people out of federal prison earlier than they deserve, such as Senator Tom Cotton of Arkansas.

JS: This Thursday, FAMM is commemorating its 25th anniversary with a dinner celebration that will be attended by at least 40 former prisoners. I would love Senator Cotton to meet these individuals. Some of them were commuted by President Clinton in 2001 and others recently by President Obama; some have benefited from sentencing policy changes we have won. All of them are law-abiding, taxpaying citizens. I don’t know if Senator Cotton has ever met a former federal prisoner, but I think he would be surprised at how non-threatening they are. While it’s true that many people released from prison return there, many of them don’t.

TCR: Are the politics of sentencing reform improving?

JS: I think so. There seems to be a generational split over crime and punishment. Generally, opponents of the current reforms pending in Congress are over 60 years old. The younger members of Congress are much more open-minded about reforms. Sen. Cotton is an exception to that rule, as is Sen. Ted Cruz of Texas, who voted for the Smarter Sentencing Act in January 2015, changed course and voted against the Sentencing Reform and Corrections Act last November. Now he, too, is an exception to the rule of younger members being more open-minded about sentencing reform. Today, candidates can take a principled position on sentencing reform and be re-elected. They don’t have to worry about being accused of being soft on crime. It’s a very safe time to take a principled position on sentencing.

TCR: Is this a partisan issue?

JS:  No. I don’t think it ever was. Both parties have been bad on sentencing issues over the years. I’m a libertarian, and have never seen this as a left or right issue. FAMM has a wide spectrum of supporters. They may have different viewpoints politically, but we agree on opposing mandatory minimums.

TCR: Does FAMM take a stand on how long sentences should be?

JS: That isn’t our mission, but we believe sentences are too long. When I was growing up, I thought that getting 20 years for murder was a long time. Now we give life-without-parole terms for much lesser offenses. Sentencing inflation has harmed public perception of punishment. When someone like Bernie Madoff gets 150 years for a financial fraud, there’s a feeling that other people can’t get less than 10 or 25 years for more minor crimes. The scale is skewed.

I think members of Congress and the public have no idea how much time one year in prison represents, let alone 5 or 10 years. Congress throws these numbers out there with ease and very little thought about what that amount of time actually means in the life of an individual. Very little thought is given to how much time is actually needed to deter someone, to teach them a lesson, or somehow to serve the purposes of punishment.

TCR: Are the states doing better on reform than is the federal government?

JS: Many states have recognized that long sentences are not sustainable for them financially, so they have been much more innovative in finding ways to deal with people who have addictions or need other interventions besides long prison terms.

Texas has been one of the models of effective criminal justice reforms, but that state does not have mandatory minimums, so it’s easier for a judge to put someone in treatment. They’re not bound by law to put a person in prison for five  or more years. In general, states have been more creative and flexible than the federal government has been.

TCR: Even though prison populations are not falling dramatically, what do you think is the future of reducing mandatory minimums?

JS:  I have considered myself an eternal optimist but I really believe that we won’t go backwards. As a nation, we’ve reached a point of understanding about criminal justice—that large numbers of people should not go to prison for relatively minor crimes – that will prevent us from reinstituting similarly harsh sentencing policies in the future. I think the general public has a better understanding of that than it ever has.  So many people know someone who has been in prison that we have reached a critical mass.

I think we’re headed in the right direction, but I don’t know how long it will take us to get there. and I do worry that with the bills moving in Congress, we’re taking baby steps now at a time we should be taking giant steps.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. He welcomes comments from readers.

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