1990s: the next phase
In the 1990 Omnibus Crime Bill, Congress responded to the late 1980s savings and loan scandals by enacting a 10-year mandatory sentence for organizing, managing, or supervising a continuing financial crimes enterprise - a "white-collar kingpin" law. But with emerging concern about the compatibility of mandatory minimums with the guideline system, Congress deleted a variety of other stiff mandatory minimums for drugs and guns from the bill, while retaining a provision mandating a sentencing commission study of the impact and effectiveness of mandatory minimums.
The commission's report, submitted to Congress in August 1991 and entitled Special Report to Congress: Mandatory Minimums in the Federal Criminal Justice System, became the most authoritative and thorough review of mandatory minimums to date. The sentencing commission found that the simultaneous existence of mandatory sentences and guidelines skewed the "finely calibrated ... smooth continuum" of the guidelines, and prevented the commission from maintaining system-wide proportionality in the sentence ranges for all federal crimes. The sentencing commission concluded, "The honesty and truth in sentencing intended by the guidelines is compromised [by mandatory minimums]."15
The United States Supreme Court weighed in on mandatory sentences in 1991. In a 5-4 decision in Harmelin v. Michigan, the court rejected a challenge to Michigan's mandatory "650-lifer" law as a violation of the Eighth Amendment prohibition against cruel and unusual punishment. By upholding Michigan, the Supreme Court interpreted the Constitution to allow extraordinarily long sentences because although the sentence may be "cruel," they are not "unusual." Justice John Paul Stevens, speaking before the University of Chicago Law School in 1992, said that the decision has "condoned the use of mandatory sentences that are manifestly and grossly disproportionate to the moral guilt of the offender."
Opposition mounts
After the Harmelin decision, and the sentencing commission's scathing report, individuals and groups began organizing opposition to mandatory minimums. Families Against Mandatory Minimums Foundation (FAMM Foundation) was founded in 1991 by judges, attorneys, and the families of prisoners serving mandatory sentences in state and federal prisons. Rep. Don Edwards (D-Calif.), a staunch opponent of the mandatory minimum laws, introduced the first bill to repeal all federal mandatory minimums in 1992 and reintroduced it in 1993. Janet Reno, the Clinton administration's attorney general, spoke publicly and often about the need to reform harsh mandatory sentences for low-level drug offenses when she first arrived in Washington. "I have a concern because there may be situations in which minimum mandatories are causing federal offenders to serve 10 or 15 years for being minor participants on a drug boat deal," Reno said in 1993.
Judicial revolt
By May 1993, 50 senior federal judges, including Jack B. Weinstein and Whitman Knapp, had exercised their prerogative and refused to hear drug cases. Many conservative, Reagan-appointed federal judges denounced the five- and 10-year mandatory minimums as draconian miscarriages of justice. Federal District Judge Stanley Marshall remarked, "I've always been considered a fairly harsh sentencer, but it's killing me that I'm sending so many low-level offenders away for all this time."16
After giving a West African woman 46 months for smuggling and a man with one previous drug conviction 30 years, federal District Judge Harold Greene said, "These two cases confirm my sense of depression about much of the cruelty I have been party to in connection with the war on drugs."
A Gallup poll of 350 state and 49 federal judges who belong to the American Bar Association found eight percent in favor of and 90 percent opposed to the federal mandatory minimums for drug offenses.17 The Judicial Conference of the United States, which represents federal judges, endorsed the repeal of mandatory sentences, as did each of the 12 Federal judicial conferences. Judge Spencer Williams, one of the senior federal judges who no longer heard drug cases said, "We have more persons in prison per thousand than any other country in the world. ...We're building prisons faster than we're building classrooms. And still the crime rates are up. The whole thing doesn't seem to be very effective."