Why Patrick Leahy Is Wary Of A Big, Bipartisan Breakthrough On Criminal Justice

Washington seems ready to seriously consider reducing mandatory minimum drug sentences, but Vermont Sen. Patrick Leahy has been here before and says all mandatory minimum sentences need to go.

WASHINGTON — Sen. Patrick Leahy, 75, is just about everything one would expect from a longtime progressive lawmaker. And when it comes to the criminal justice movement now reaching a fever pitch in Washington, that means he's a bit ornery, a bit skeptical, and a bit less ready to embrace the spirit of compromise breaking out all over town.

"The frustrating part, I find, are the kind of talks they're having now we've been having for years and felt kind of lonely," the Democratic senator told BuzzFeed News in a recent interview. "I'm glad to see people are paying attention, but we need to make sure it's real. You talk about mandatory minimums. You know, get rid of all of them."

Criminal justice is for Leahy, like many of the most prominent advocates in Washington, a life's passion. He started his political career as an elected District Attorney in his native Vermont and said the experience gave him a deep understanding of the system and its potential flaws. He was working on the issue for years before its current moment in the spotlight.

The modern criminal justice legislative advocacy movement is now all about young politicians crossing aisles and sloughing off the crime policy ideas of the past. Younger Republicans in Congress have led their party away from the tough-on-crime mindset of the 1980s and 90s. Older Democrats like Bill Clinton have apologized for their hand in creating the modern war on drugs, which research has shown focuses the toughest penalties on young, male, minority offenders.

Policymakers from both sides of the polarized political debate have been meeting at various high-profile summits across Washington, setting the stage, many say, for passing legislation by the end of the year that will reduce or maybe even eliminate some mandatory minimum federal drug sentences.

Leahy is now a central figure in the summits, in the Capitol Hill negotiations and in the rhetorical push for change in Washington. The veteran statesman, tempered by past disappointments and what he calls past mistakes, is quick to welcome conservative support to the cause of reexamining mandatory minimums, but in conversation he regularly warns advocates to look closely at whatever legislation emerges.

"What I say to people, don't just say 'I'm tough on crime.' There aren't too many elected officials who say, 'I'm in favor of crime.' Seriously, ask them, 'what are the real things you do to make the criminal justice system better and our country better?" he said. "Go beyond the bumper sticker."

When he chaired the Judiciary Committee the last time, from 2007 until the Republicans took over the Senate 2014, Leahy railed against mandatory minimum sentences and tried to unravel them. All of them.

It led to some politically delicate moments, such as the time in 2009 when he spoke out against a Republican amendment to add a mandatory minimum 10-year prison sentence for sexual assault. (A five-year sentence eventually passed.) A year later, he took on a Republican amendment to create one-year mandatory sentences for possession of child pornography, apologizing for his support for mandatory minimum sentences in the past.

"I would note incidentally that in the past I have voted for a number of mandatory minimums, and I just have in mind that a lot of them were mistakes, and I see a lot of states facing bankruptcy because of the costs of just handling a lot of mandatory minimums," Leahy said during debate over the new mandatory penalty at the time. "I have a real reluctance to see mandatory minimums."

He's saltier when he's not talking about mandatory minimums in a Senate hearing.

"They haven't worked," Leahy told BuzzFeed News. "People ought to stand up and say, 'Mandatory minimums don't work, they don't deter crime, they create problems for law enforcement, they're extraordinarily expensive, and you get nothing in return.'"

Leahy is quick to dismiss the policies of the past he says have failed, taking stances that are still politically dangerous (or at least dangerous as evidenced by how few politicians sound like him). For the past few years, he has declared the war on drugs "lost," joining the chorus who say the costs of trying to destroy the drug trade in the United States — as well as the costs associated with the resulting incarceration rates, especially among communities of color — are too high for what they say are meager results.

The racial implications of the ongoing war on drugs are the basis for Leahy's favorite mandatory minimum sentence political allegory: the tale of the coked-up, presumably white lawyer and the inner-city black crack user. Leahy tells this story a lot, and he offered a particularly rousing rendition of it in the recent phone interview with BuzzFeed News:

"You're a lawyer on Wall Street — well, I don't want to say Wall Street — you're in a prestigious law firm. Every Friday afternoon, your supplier comes by with $200 worth of powder cocaine. If you're caught, people say, 'my goodness, I can't imagine somebody, such a pillar of society [buying cocaine.] We're going to teach him a lesson. They're going to have to serve three weekends in a soup kitchen, working for the homeless,'" Leahy said. "If you're a black kid in the inner-city and you buy $200 worth of crack cocaine, you're going to go to jail. Tell me where you're going to get a job when you get out?"

More and more politicians have begun to come around to Leahy's feelings on the story, and that's led to the current high-tide moment for criminal justice advocates in D.C. But Leahy has seen the bipartisan fervor on criminal justice stall out in the toxic legislative mixture of floor votes and a rapidly approaching election.

Early in 2014, the Leahy-led Judiciary Committee advanced the Smarter Sentencing Act by a vote of 13-5, a vote that brought together an unusual cast of partisans. Sens. Ted Cruz and and Dianne Feinstein both voted to send the bill to the floor.

The bill was heralded by advocates for its breath: It would slash federal mandatory minimum sentences on drug offenders and make retroactive changes already passed to the crack-vs-powder cocaine minimum sentence disparity, giving thousands of federal prisoners the opportunity to have their sentences reviewed. It also included sweeteners for the tough-on-crime crowd like new mandatory minimums for sexual abuse, domestic violence and terrorism.

The Smarter Sentencing Act was not Leahy's first choice in mandatory minimum sentence reduction that cycle. He co-sponsored a bill with Sen. Rand Paul that would have allowed federal judges to ignore all mandatory minimum requirements if they determined cases merited it. In a nod to so-called back-end advocates, who want to reduce the prison population with programs aimed at cutting down on recidivism, he also co-sponsored the effort to reauthorize a 2008 law that bolsters reentry programs easing the transition back into society for prisoners. He held a high-profile hearing on the subject where he condemned mandatory minimums and invited the families of some prisoners serving what he said were unfair sentences to attend. He called for compromise.

Once he got it, though, there were still plenty of tough-on-crime Senators willing to cast the Smarter Sentencing Act as "dangerous," however, and as Democrats got into a cautious crouch ahead of the 2014 elections they would go on to badly lose, the bill never made it to the floor.

The experience led Leahy to be more wary of the chances for serious change this cycle than most, though he said he remains hopeful.

"When I saw us get a 13-5 vote, which is pretty substantial, and it didn't go anywhere, I get skeptical," he said. "But let's see what happens. As far as I'm concerned, we should push the envelope as far as we can because what we have now is a failure."

At yet another bipartisan criminal justice policy summit in Washington earlier this month hosted by #Cut50, a group with Van Jones and Newt Gingrich among its public faces, Leahy again said Congress has to undo the mistakes he said it made when it passed mandatory minimum sentences in the past. But he warned against too much compromise on the part of advocates.

"We must not squander this moment," he told the audience. "We must demand that the reforms be both measurable and meaningful."

Speaking to BuzzFeed News, Leahy praised the efforts of Republicans like Sen. Mike Lee and Democratic advocates like Deputy Attorney General Sally Yates in bringing the sides together with regular bipartisan meetings and negotiations, but said that there was no room for half-measures.

"We had progress last year, I'd hate to see us lose the process we had last year. I'm afraid if we do a really half-hearted attempt, that you're not going to see people willing to take the steps to get a final bill through. I may be wrong." he said. "If I get half a loaf, am I happy? No. I want to reduce mandatory minimums. We did that with a bipartisan bill last year. I think we should be doing at least that."