Those of us who have grown up attending church can recall at least a few familiar Biblical passages. For attorney and law professor Mark Osler, these passages have guided his life.
In 2011, he was a federal prosecutor in Detroit. His job was to send those accused of dealing, or even possessing, crack cocaine to prison, sometimes for life. Under the law, those with crack, usually African Americans, faced sentences 100 times greater than those, mostly Whites, with powder cocaine.
One day Osler remembered Jesus coming upon a group of pharisees who were about stone to death a woman caught in adultery. When they asked him what they should do, Jesus answered, “Let him who is without sin cast the first stone.” All the men present dropped their stones, and walked silently away. (John 8:7-8) In the courtroom, Osler realized, “I was the guy with the rock.”
Osler resigned his position and took a teaching job at Baylor Law School, where he and legal colleagues successfully challenged the 100 to 1 crack-to-powder disparity. In 2011, he moved to St. Thomas Law School in Minneapolis and founded the first law school clemency clinic in the United States. He was instrumental in the creation of the Clemency Initiative at the end of President Obama’s second term.
Osler’s work continues to attract national attention. Last week he spoke with Clergy for a New Drug Policy about the Obama Clemency Initiative and prospects for clemency under the Trump administration.
Q: Of the 1,715 individuals who received clemency under the Obama Clemency Initiative, how many of their convictions were in some way related to the draconian laws of the War on Drugs?
A: Nearly all of them.
Q: In light of this, what changes would you propose in our drug laws?
A: I would argue for changes in our tactics and strategy, as well as in our drug laws. One of the biggest drivers of unfair sentences is that we use the weight of the drugs at issue as a proxy for culpability.
That’s just wrong. If I hire somebody for $500 plus expenses to go down to Laredo and pick up some kilos of methamphetamine, I’m going to make tens of thousands of dollars once I sell those kilos. If we both get arrested, we are going to face the same sentence because we’re involved in the same activity. But we are not equally culpable, or anything close to it.
We should not be addressing people at all. When it comes to interdiction, the most we can hope for because of the laws of economics is to marginally and temporarily raise the street price of drugs. It’s supply and demand. As long as the demand is there the supply is going come back. Labor is especially easily replaced.
What they should go after is the cash flow because you’re never going to close down a business by sweeping up low wage labor but you can close down a business by denying them cash flow and credit. The FBI have become real experts at grabbing money going back to terrorist groups. We can apply that expertise to narcotics, and shut them down that way. This would demonstrate a whole new model: The guy who’s selling crack isn’t going to be in prison, he’s just not going have that job anymore.
Q: Concerning drug laws, I thought you would say that we need to get rid of mandatory minimums and three strikes.
A: Absolutely. The First Step Act is starting to move towards that.
Q: If we had proportionate, fair sentencing laws, would we still need clemency?
A: You wouldn’t need it as much, but we would still need clemency to take into account people who received long sentences, even if they had serious involvement in narcotics or other crimes, who have changed their lives, who aren’t the same person.
You take Rudy Martinez. That was not a case where someone got racked up for a minor role. He was transporting a lot of cocaine, but the person he was when he did that is fundamentally different than the person he is now. That idea of redemption is that there can be a transformation in a person’s life. You would always need clemency to account for those people whose lives have changed, whose souls, and hearts, and minds, are different.
Q: How does that argument apply to the hardest core crimes? Let’s take first degree murder. No matter how repentant, no matter how much one changes, isn’t there degree of retribution needed for some crimes?
A: Certainly there is a role for societal retribution. It helps to avoid vigilantism. As long as people are assured that the state is going to take an approach that ensures punishment, they are not going take action into their own hands. But, even for the worst crimes, we can’t rule out the possibility of redemption. King David was a murderer. Paul was a murderer in a conspiracy. They were redeemable. They were given a role.
We visit those in prison with the goal of there being a role, a vocation, even for those people who have done terrible things.
Q: The Obama Clemency Initiative chose to look only at individuals on a case-by-case basis. Are there categories he could have used? For example, the ACLU report A Living Death argues that we should review all non-violent offenders who have been given life sentences without parole.
A: You could look at people who received really long sentences before they were 22 years old. We know the brain science which tells us how much people change after that age. We are not serving public safety by spending millions of dollars to incarcerate those people.
One thing we could do is go to the warden of each prison and ask “Who doesn’t belong here?” They will tell you. My students go into the prison to interview their clients and the guards say, “This is the guy who should be getting out.”
Q: Mark Mauer of The Sentencing Project has argued for no sentences longer than 20 years.
A: I don’t think that’s politically feasible. We’re a long way from that. There’s an ongoing argument within the advocacy community: Do you go for incremental changes, or do you try to have everything change right now? Even the briefest analysis of our political history will tell you that everything’s incremental. That’s how things change. Look at the civil rights movement. There wasn’t a before and after. There was a movement toward what’s better. It’s that gradual arc towards justice.
Q: Are there other nations with better drug laws?
A: Portugal is a reasonable model to look at. It has decriminalized all drugs. But they also have treatment on demand. One thing that we have to take into account is that the United States is a much greater consumer of narcotics than a nation like Portugal. Our usage rates outstrip those of any other country. The social costs are significant. Most of us know someone who is consumed by opioids and the tragedy that goes with that. We’re going to have to put more resources towards treatment, for example, than a country with a lower rate of consumption.
Q: Why do we consume so much more?
A: I think it’s in part because of our individualism. We all believe that our lives have to be significant, important, and exciting. Drugs do that. In the same way that Americans all want to be on television, we all want to see things in an exciting way. Selling or doing drugs provides that.
Q: What is your assessment of the First Step Act brought forward and passed under the Trump Administration?
A: I wrote a piece in the Minneapolis Star Tribune supporting it.
It’s an incremental step and frankly, it’s a lot more than people expected to come from this administration. I think the response is, “That’s great. Let’s keep moving. Let’s get to that next step.”
Q: Who is going to implement it? Attorney General Barr does not seem sympathetic. In his first term as Attorney General, he said, “We have a choice between more prisons and more crime.”
A: I think that there is some real opportunity in this administration. In the past, the bar to reform has consistently been the Department of Justice. Politicians and presidents tend to defer to DOJ. This President does not. This brings a remarkable opportunity We saw that with the First Step Act.
The First Step Act includes a lot of things we did not get from the Obama Administration, and the reason was because DOJ said, “Don’t do that.” Well, Donald Trump doesn’t care what DOJ thinks. On that score, we’re better off. Also, there is a remarkable advocate for reform within the inner circle of this White House. That’s Jared Kushner. Because of the experience of his family due the incarceration of his father, I think he’s really motivated to take action in this area.
The third thing is that Attorney General Barr is a believer in the unitary executive theory: the president has to re-claim from the bureaucracy the power that is given to him or her by the Constitution. This is completely consistent with our argument on clemency: the president has to claim that power and take it back from DOJ.
Q: Our discussion thus far pertains to the 181,000 people in the federal prisons system. This is a small percentage of the over 2.1 million individuals in state prisons and jails. Is there anything federally that can affect what happens in the states?
A: Not directly. But hopefully, we will see some “leading by example.” It helps that there are some conservative Republicans leading the charge at the national level. This gives conservatives at the state level permission to do the same thing. When you’ve got Senator Mike Lee and the Koch Foundation arguing for this, it sends a signal to the states. Harsh punishment across the board is no longer entirely a core Republican belief. That’s a game changer.
Q: In the introduction, we commented on your Christian faith. Are there other scripture passages that have guided your work?
Micah 6:8 is common to a lot of people. I remember first coming across that when I was a prosecutor. On the surface, it seems almost glib. You have three values: justice, mercy, and humility. They are all good, but in criminal law they are in tension with one another.
If justice is viewed as treating similarly situated people the same way, it’s fairness.Mercy cuts into that. In a way, it is an argument for unfairness. What we learn is that the criminal justice system can’t be all mercy or all justice. It has to have aspects of both if it’s going to be principled.
Our tendency in the United States is to have all justice and no mercy. The active push from people who take those principles seriously has to be towards mercy because we are too far towards the other pole.
We also need to learn humility. Consider juvenile life without parole. We are saying someone is irredeemable. We are playing God when we have such certainty about something that is ultimately unknowable, namely the chance of redemption for someone we barely know.
Christ also told us, “When you visit those in prison, you visit me.” This is transformative for me. There is an imperative to visit all those in prison, not just innocent people, not political prisoners, not our friends, but all those who are in prison.
The power of that directive is shrouded until people actually do it. I have students who have generally had fairly privileged lives. My clinic students are required to go a prison and spend two days with a client. They come back transformed. Taking down someone’s life story as they sit in a cell is something that alters the way they see the world. That is exactly what Jesus is after when he tells us to visit those in prison.
Finally, those of us who are Christian usually believe Jesus’ life wasn’t just a series of random events. He was born into poverty so that we would understand the importance of poverty and that great things can come from poor people.
For that same reason, so much of what happens to Jesus, especially during the Holy Week, is about criminal law, being judged, being condemned, being convicted, and being executed. We are being told that this is important. The way we judge and sentence is crucial to the Christian mission just as the way we address poverty is important.
Q: What would you say to Jeff Sessions about clemency?
A: I would bring a Bible and say, “We have this in common, Mr. Sessions. Let’s start in these four Gospels and talk about justice and mercy and what it means.”
Having a common faith with people is an advantage because we are starting from the same place. I often talk to people about the need to go to conservative Christians to talk about these things because If we can convince them, we win.
[This interview has been edited for clarity and length]