Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders. Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors. Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while Osler says, prosecutors gained “a big hammer. The easy way of doing things is to threaten people with a lot of time, and then plead them out,” he says. “But easy and justice don’t go together very well.”
In 2011, he founded the country’s first federal clemency clinic, at the University of St. Thomas in Minnesota. With his law students, Osler works on behalf of inmates who’ve lost decades to unduly punitive terms, filing commutation petitions for early release with the Office of the Pardon Attorney. Until recently, commutation was a distant hope for applicants; President Obama has granted clemency more rarely than any modern executive. But in April, the administration unveiled plans to revive the pardon power, in what could be its most vigorous exercise since President Ford granted amnesty to Vietnam draft-dodgers. “One of the uses of clemency has been to address overzealousness in warfare,” Osler says. “This is in response to the War on Drugs.”
But while such advances mark a clear departure from the old alarmist ethos, the drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20. Every year, taxpayers shell out $51 billion for drug war spending.