Pubdate: Thu, 08 Mar 2001
Source: Legal Times (DC)
Copyright: 2001 NLP IP Company
Contact:  1730 M St., N.W. Suite 802, Washington, D.C. 20036
Fax: (202) 457-0718
Website: http://www.legaltimes.com/
Author: Tom Schoenberg

GROUP WORKING TO CHANGE STRICT DRUG LAWS TAKES ON THE NEW CONGRESS, WHITE HOUSE

Decade-old Families Against Mandatory Minimums Expands Agenda

Pedro Riveiro waited anxiously at a federal prison in South Carolina for 
the news.

In 1989, the college graduate had briefly peddled drugs for his boss at a 
Miami cell phone business. He was arrested four years later, after his 
former boss snitched in exchange for a reduced sentence of 16 months.

On Jan. 20, Riveiro, six years into an 812-year sentence for cocaine 
distribution, learned he was one of 21 drug offenders whose sentences had 
been commuted by President Bill Clinton. "It was a shock, a total shock," 
says Riveiro, 34, who now lives in Key Largo, Fla.

It was also a coup for Families Against Mandatory Minimums (FAMM), a 
10-year-old organization that fights to undo draconian federal and state 
drug laws and sentencing practices and which lobbied on Riveiro's behalf.

"This was a window of opportunity that would open and close quickly, and we 
thought, let's try it," says FAMM President Julie Stewart.

Although Stewart says she had about 300 cases ripe for commutation, FAMM 
lobbied the White House for just a dozen, 11 of which were granted. Clinton 
also commuted sentences for six inmates from an earlier list that FAMM had 
sent him through Rolling Stone founder Jann Wenner.

It is that sort of selective advocacy that has made FAMM an influential 
player in sentencing reform, despite its push for a politically unpopular 
cause.

FAMM, whose core membership is made up of drug offenders and their 
families, may be best known for lobbying members of Congress and the U.S. 
Sentencing Commission. But the 21,000-member organization has broadened its 
agenda in recent years. It now regularly uses the courts to challenge 
sentences, and it plans to wage battle against mandatory minimum sentences 
for certain gun crimes where no violence occurred.

Given the change in the White House and in the GOP-controlled Congress, the 
group's mission may have just gotten tougher to achieve. And Attorney 
General John Ashcroft, for one, has not been one of the group's allies. As 
a senator, Ashcroft snuck a provision into a 1998 budget bill that made the 
penalties for methamphetamine the same as for crack cocaine. FAMM had 
previously convinced another lawmaker to put a hold on such a provision.

Stewart says she's used to facing opposition. "There has been no progress 
under Democratic administrations," she says.

According to Stewart, Democrats sometimes feel forced to support more rigid 
measures to combat a liberal reputation, while Republicans, because of 
their tough-on-crime image, can sometimes take a more flexible approach to 
sentencing issues.

HER BROTHER'S HELPER

In the early 1990s, Stewart was the public affairs director for the CATO 
Institute, a Washington think tank, when she learned that her brother had 
been arrested for growing marijuana in Spokane, Wash. He pleaded guilty and 
was sentenced under mandatory federal law to five years in prison.

Stewart says she was amazed to learn that many of the mandatory minimum 
laws were put together quickly and without much input beyond law 
enforcement. Some sentences were handed out regardless of the amount of the 
drug actually possessed by the defendant. For instance, one marijuana plant 
was considered one kilogram, regardless of the plant's size.

Stewart asked people at CATO and the National Organization for the Reform 
of Marijuana Laws about mandatory minimum sentencing. No one knew much 
about it, she says.

Stewart says she decided that she would advocate on behalf of those most 
affected by the mandatory minimum sentencing system -- the incarcerated and 
their families.

"My main idea was that in five years I could change these laws," Stewart 
says. "I didn't realize it would be so hard."

Stewart turned to the National Association of Criminal Defense Lawyers to 
identify some of the most compelling cases where mandatory sentences 
appeared excessive. Hundreds of cases flooded in, she says.

In the spring of 1991, Stewart put together a meeting of judges and 
families of incarcerated drug offenders. Some family members were willing 
to start chapters in their states. And Stewart says she received $25,000 
from one opponent of mandatory minimum sentences, which helped to 
jump-start the fledgling association.

The idea was to have family members testify before Congress and the U.S. 
Sentencing Commission and reach out to politicians whose families had 
brushes with the law.

The move paid off in 1994 when the House and Senate debated a mammoth crime 
bill. After convincing lawmakers that some people were spending too much 
time in prison for nonviolent drug crimes, FAMM successfully pushed for 
more judicial discretion in sentencing certain drug offenders facing 
mandatory minimums.

FAMM also successfully lobbied the Sentencing Commission to change the way 
it calculated penalties for marijuana and LSD, which were based on the 
amount of the drugs. Until 1993, the weight of LSD included the weight of 
the paper or the sugar cube that the drug was placed on.

For LSD, the commission established a standard dosage weight to define the 
total quantity.

John Steer, a longtime general counsel and now commissioner at the 
Sentencing Commission, says FAMM brought views to the sentencing panel that 
weren't represented before. The group, he says, has also been a formidable 
force in the drive to make sentencing laws more equitable and in ensuring 
that all offenders -- even those sentenced under old guidelines -- get the 
benefit of those changes.

"Having the perspective of family members is helpful to the commissioners 
... even though we don't always make the decisions that they want," Steer says.

TAKING IT TO THE STATES

In 1995, FAMM expanded its efforts beyond the federal arena by attacking 
sentencing laws in several states. Stewart hired a general counsel and the 
group established pro bono partnerships with several law firms, including 
Crowell & Moring; Zuckerman, Spaeder, Goldstein, Taylor & Kolker; and 
Mayer, Brown & Platt.

The group had hired Laura Sager to set up a coalition aimed at fighting 
harsh drug laws in Michigan, which had some of the toughest in the country, 
including a penalty of mandatory life without parole for offenders 
convicted of intent to distribute 650 grams of cocaine or heroin. By 1998, 
there were about 200 people who were serving this sentence.

Sager worked directly with Michigan state legislators and family members to 
change the law. At one point, the former governor who had signed the bill 
publicly stated that it was a mistake. And in 1998, Republican Gov. John 
Engler signed the law that made it possible for some of these lifers to be 
eligible for parole after serving 15 to 20 years. Stewart says four people 
were immediately freed.

FAMM also won a few impressive court victories, including a challenge to 
the U.S. Bureau of Prisons' failure to reduce the sentences of nonviolent 
drug offenders who completed treatment programs.

In 1998, FAMM prevailed in a case before the U.S. Supreme Court when a 5-4 
majority ruled that the Court had the authority to review lower court 
decisions denying habeas corpus petitions. Although this was a technical 
matter, it was the first FAMM case that reached the Supreme Court.

"We look for individual cases that would have a large impact on sentencing 
laws or their application," says Mary Price, who's been FAMM's general 
counsel since November. Price's predecessor, Kyle O'Dowd, is credited with 
putting the litigation project together.

FAMM now has an annual budget of about $650,000 and about 20 state 
chapters. It is a regular part of any sentencing reform bill or guideline 
change.

Last year, FAMM successfully lobbied the Senate Judiciary Committee to 
remove a provision of a crime bill that would have implemented mandatory 
minimum sentences for the drug ecstasy.

And it's currently putting together a team of doctors to testify at a 
Sentencing Commission hearing this month on the addictive properties of 
ecstasy. Stewart says the commission, which was directed by Congress to 
strengthen the penalties for the drug, has proposed placing it in the same 
category as heroin, which FAMM believes is too harsh.

Stewart says she is still trying to assess where the new administration 
will come out on sentencing reform. But she is confident that FAMM can 
persuade Congress to make the 1994 sentencing changes retroactive, which 
would allow people sentenced to mandatory minimum terms before the law was 
changed to have their sentences reduced.

Stewart points to Republicans such as Sen. Jeff Sessions, R-Ala., as being 
prime targets for FAMM's efforts. Last year, Sessions, a member of the 
Judiciary Committee, spoke on the Senate floor about how mandatory minimums 
have put too many nonviolent drug offenders away for too long while leaving 
dangerous criminals on the streets. A Republican Senate staffer says 
Sessions continues to support mandatory minimums and the Federal Sentencing 
Guidelines, but that the senator wants to ensure that the punishments under 
those schemes are proportional to the crimes.

Stewart has no problems with that approach.

"Republicans need someone, like Sessions, who is a former prosecutor, to 
put forth a bona fide plan," Stewart says. "Nobody questions him."
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