Watch out, Mark Souder. While the self-described Christian conservative congressman from northeastern Indiana is the reigning champion of congressional drug warriors, this year he is getting some stiff competition from House Judiciary Committee Chairmen Rep. James Sensenbrenner (R-WI). While Sensenbrenner has long been a fan of anti-drug legislation and ever-harsher prison sentences, in past years he has shown a willingness to occasionally come down on the side of civil liberties instead of more policing.
Sensenbrenner has not always been Draco on the Hill, although his conservative bent has been consistent throughout his career. A year after finishing law school at the University of Wisconsin in 1968, the young heir to the Kimberly-Clark Kotex fortune won election to the state legislature with family money paving the way, and in 1978 began his career as a US congressman. He got off to a quick start, voting to block passage of a bill that would have helped judges around the country reform bail procedures, then joining the House Criminal Justice Subcommittee. In the late 1980s, amidst the congressional frenzy to pass ever more stringent drug bills, he served on the House Select Committee on Narcotics Abuse and Control. He has sponsored his own death penalty bill, and in 1994 he said that Jocelyn Elders had "forfeited her right to be surgeon general of the United States" after her remarks about legalization of drugs and condoms.
That seems to have changed in the last few years. "It's goofy, from 2000 to 2003 he was helpful in stripping drug war bills of their worst provisions and in fighting Ashcroft on surveillance of political dissent," said long-time Wisconsin activist and gadfly Ben Masel. "I don't get what flipped him."
And with this year's introduction of the "Safe Access to Drug Treatment and Child Protection Act (HR 1528), even some of Sensenbrenner's colleagues are wondering if he has flipped out. That bill, stalled for the moment, would make it a federal crime punishable by a two-year mandatory minimum sentence to fail to report certain drug crimes to the authorities. If people are using drugs in a home with children, you must snitch. If you know someone who has ever been in treatment and is seeking drugs, you must snitch. Even if they are members of your own family. But wait, there's more.
The bill also creates harsh new penalties for a variety of nonviolent drug offenses, including a mandatory minimum five years for anyone who passes a joint to someone who has ever been in drug treatment, five years for someone who has been in treatment who asks a friend to find them drugs, and ten years for mothers who have been in treatment who commit certain drug offenses at home -- even if their kids aren't there.
An April hearing on the bill in the Subcommittee on Crime, Terrorism, and Homeland Security was rushed to a vote by Chair Rep. Howard Coble (R-NC) after even Justice Department witnesses expressed reservations about it, said Criminal Justice Policy Foundation president Eric Sterling, who attended that highly unusual session.
"Astonishingly, in the middle of the hearing, Chairman Coble interrupted the witnesses and asked for a vote to report the bill to the full committee," Sterling told DRCNet. While Coburn was momentarily deflected by Rep. Dan Lungren (R-CA), who suggested the move was premature, 20 minutes later he again interrupted the proceedings to demand a vote. This time he got his way, even though two Republicans, Lungren and Texas Rep. Louis Gohmert voted present instead of voting for the bill. Then, surrealistically, the subcommittee resumed hearing witnesses even though it had already made its decision.
"In more than 25 years observing Congress, I have never seen nor heard of an instance in which a subcommittee interrupted a hearing on a bill, reporting it to full committee, before the subcommittee had completed hearing the testimony on the bill," said Sterling. "Sensenbrenner is willing to abandon the rules of the House of Representatives and common sense to move a bill that is only about portraying politicians as getting tough when law enforcement witnesses can't point to any instances in which the current law is insufficient to protect the public safety."
"Sensenbrenner has been busy this year, and there seems to be a change in the way he views things these days," said Bill Piper, director of national affairs for the Drug Policy Alliance. "I don't know whether that's because of 911 or he's got new staffers or what, but he just doesn't seem to care about civil liberties the way he used to. He got the national ID card passed, he backed down on tackling some of the reforms necessary in the Patriot Act, he shepherded that gang bill through the House, he authored the snitch bill, and he's been going after judges. That, I think, is the real driving force behind his actions -- he just really hates judges and judicial discretion."
Which brings us to Sensenbrenner's latest fit of pique, reported here last week, where the House Judiciary Committee chairman attempted to intimidate a federal appeals court into altering a drug case sentence he felt was not sufficiently harsh. In that case, the trial judge had sentenced the defendant to a term below the mandatory minimum, and while federal prosecutors could probably have gotten the sentenced increased with an appeal, they did not.
Sensenbrenner lit out after the appeals court that ruled on the case. They were wrong, Sensenbrenner wrote in a letter to the US 7th Circuit Court of Appeals, and needed to "promptly remedy" the error. But as the appeals court pointed out, it was Sensenbrenner who was wrong, and as countless commentators have pointed out, it was Sensenbrenner who committed an improper act by attempting to influence a pending court case.
"It is perfectly appropriate for the Congress to concern itself with instances of miscarriage of justice," said Sterling, citing cases where the Justice Department failed to act aggressively against corporate crime. "But when the chairman of the House Judiciary Committee sends a letter to a court trying to get it to change the outcome of a case, it violates the procedures the courts are to follow and is done with either an intent to improperly intimidate the court or with reckless disregard of its tendency to intimidate the court," said Sterling, who served as counsel to that committee from 1979 to 1989.
Sensenbrenner's effort to intimidate the federal courts comes in the context of a broader congressional offensive against the judiciary, a nearly two-decades long process manifested in numerous mandatory minimum sentencing bills removing discretion from judges, and most recently in the 2003 Feeney Amendment, which seeks to further tighten the straitjacket around federal judges by requiring the Justice Department to investigate any judge who issues sentences that depart downward from the sentencing guidelines.
Sensenbrenner's drug bill, with its mandatory minimum sentences, can be seen within that broader context as well, but it is so extreme it is running into problems. "It remains to be seen whether the snitch bill will move," said Piper. "Even among Republicans, there are real concerns about the bill, especially the sections that basically create mandatory minimum sentences for every federal offense. That section violated his promise to committee members not to get carried away about sentencing in the wake of the Supreme Court's Booker and Fan Fan decisions. On the other hand, we haven't heard any objections from any committee members about the snitch provisions," he told DRCNet.
"There is also a growing partisan tension in Congress, the Democrats and Republicans really seem to be at each other's throats, and Sensenbrenner seem to be caught up in that," Piper continued. "Our biggest fear is that he can usually move things quickly when he wants to. He got the national ID bill through despite objections from his own party, he passed the gang bill quickly, and he tried to move the snitch bill quickly, and only backed down in the face of objections from his own party."
Sensenbrenner would better serve the country by using his Judiciary Committee chairmanship to properly oversee the activities of federal branch executive agencies, said Sterling. "In numerous instances, Sensenbrenner and the Judiciary Committee are falling down on the job," he argued, pointing to several egregious examples.
"The profound misuse of federal funds in the Tulia drug task force case, and numerous similar cases, has not been examined by the committee, even though Sensenbrenner personally promised Rep. Conyers and other members of the committee he would hold hearings into the federal role in this," Sterling began. "The DEA witch hunt against physicians who are trying to conscientiously manage the pain of their most serious pain patients ought to be the subject of committee oversight hearings. The utterly inexplicable disproportionate prosecution of African Americans and Hispanics under the federal drug laws," he continued.
Some 70% of federal cocaine cases are against low-level offenders, and those offenders are overwhelmingly black or Hispanic, Sterling noted. "Looking at a single case, and ignoring the outcome of more than 10,000 federal cocaine cases a year, is preposterous!"
But so goes the Sensenbrenner drug war.