Mimesis Law
29 March 2017

Cross: Julie Stewart, Founder of Families Against Mandatory Minimums

August 24, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Julie Stewart, the founder and president of FAMM, who is retiring after spending 25 years leading the fight to for sentencing reform. Here’s FAMM’s 25-year anniversary video:

Q. In 1990, you were two years out of college and working as the Cato Institute’s public affairs director. How did you end up at Cato? Why Cato? Was it just a job or a cause? Then you got a call from your brother, who told you he’d been busted on charges of growing pot and learned he was being prosecuted by the feds and looking at a five year mandatory minimum. During those early years at Cato, were mandatory minimums on your radar at all? The War on Drugs? What about federal involvement in what was traditionally a relatively low-level state crime? You could have done nothing. What made you decide to take up arms on behalf of your brother and others like him? What’s wrong with mandatory minimums anyway? Isn’t it fair for Congress to determine the lowest sentence to be imposed for a crime?

A. In 1988, I graduated from Mills College in California with a BA in international relations and no idea what to do with myself. I was a “nontraditional” student – my “gap year” between high school and college lasted 10 years. So, at age 31, I moved to DC for a summer internship and ended up with a job at the Cato Institute.

I knew Cato’s president, Ed Crane, because he was a fraternity brother of my brother-in-law’s. But I knew very little about Cato’s philosophy when I started working there, even though I leaned libertarian in my thinking. At Cato, I was exposed to many new free-market ideas, though sentencing policy was not among them. The drug war was, though. Cato was an early and consistent opponent of the “war on drugs” and the discussions I had there deeply influenced my thinking about drug policy.

I didn’t fully appreciate the impact of America’s drug war until my brother, Jeff, was arrested for growing marijuana in his garage. While I thought Jeff was stupid for growing pot, I didn’t think his punishment would amount to much. That’s why I was so surprised when his case was given to the federal prosecutors and he faced a five-year mandatory prison sentence. I was incredulous that the judge who had been on the bench a quarter of a century could not give Jeff the sentence he thought was appropriate (two years). It defied my basic understanding of the justice system – that judges judge.

When I learned that members of Congress, who had never laid eyes on my brother, had predetermined his sentence based solely on the amount of marijuana he was growing (365 plants), I was appalled. Although Congress has the power to create sentences, that doesn’t mean they should. They are far too removed from the courtroom to know what the appropriate punishment should be for any given defendant.

My brother’s case was small potatoes compared to the thousands I’ve read since then, but it illustrates many things that are wrong with mandatory minimum sentences. Among them is the question of why someone arrested for growing marijuana in a garage in Spokane, Washington should be prosecuted by the federal government. This was clearly a crime that the state could handle. But it was 1990 and the drug war was in full swing and, although I can’t prove it, I suspect his case went federal because the sentence was longer than the state’s.

Everything I learned during Jeff’s ordeal made me mad enough to want to do something to change the law. I had the naïve notion that if members of Congress knew how their laws were being applied, they would smack themselves upside the head and say, “Wow! We need to change them!” Clearly, it hasn’t been that easy…

Q. Families Against Mandatory Minimums, FAMM, started off small. In 1991, just you and a couple of D.C. attorney friends. Your first act as founder was to convene a meeting with people from across the country whose loved ones were serving often incredibly lengthy prison terms as a result of mandatory minimums. What did you know about starting an organization, starting a movement? What came out of that first meeting? Did it crystallize your resolve or make you afraid of the scale of the undertaking? Did it make you realize that an emphasis on compassion might work, at a time when politicians from both parties, the media and the public were clamoring for ever higher, more draconian sentences? Did you think to yourself, “this is nuts”?

A. I started FAMM nine months after my brother went to prison. I didn’t intend to start an organization, but I couldn’t accept that my brother had to spend five years in prison and that there was nothing I could do about it. I’ve never been very good at taking no for an answer, so I suspect some of what drove me was the desire to prove that I could change Jeff’s sentence. (Unfortunately, I failed at that.)

I was also very motivated by the family members of prisoners I met at a meeting we convened in June, 1991. Their loved ones had it so much worse than my brother – many were spending decades in prison – and the pain in the room was palpable. By the end of the meeting, everyone agreed we needed to start an organization to change sentencing laws. Because I lived in Washington, DC, and had made some contacts by then, I was the natural person to get it going.

I knew nothing about starting or running a nonprofit. Thankfully, I had assistance from some wonderful attorneys, especially Scott Wallace and Eric Sterling, who gave me the guidance and contacts I needed to get started. That included steering me to an attorney at the law firm of Caplin & Drysdale, who filed our 501(c)3 paperwork pro bono. At no time did I ever think what I was doing was crazy. I am staunchly opposed to mandatory minimum sentences and believe that FAMM’s work increases sentencing justice. I’m also a huge optimist and have faith that the truth wins in the end. In retrospect, I think my idealism, and a certain amount of ignorance about how hard it is to change laws, were invaluable in starting FAMM.

Q. In the wake of that meeting, you worked out a double-pronged plan of attack: put a spotlight on the stories of sympathetic prisoners, typically those condemned to serve decades behind bars on a first-time drug offense, and work to change state and federal laws providing for mandatory minimums. Since you weren’t a lawyer, or even a lobbyist by training, how did you figure out your approach? Were you entirely self-taught, or did you have help? Did Cato provide any guidance or support? Where did the funding come from?

A. When I started FAMM, what I lacked in training I made up for in common sense. Basically, you’re selling a product so you need to believe in the product and know your audience. My product was sentencing reform and my audience was Congress. I needed to make members of Congress understand how their laws were being applied and to whom, so they would change them.

To do that, I had to appeal to their heads and hearts. That required solid data about the cost of incarceration and the numbers of people impacted, while humanizing mandatory sentencing laws. Humanizing the laws meant telling the prisoners’ stories and that of their families, clearly, simply, and with photographs, if possible. This was in the days before everyone trotted out a “victim” for their cause, so it was relatively innovative and caught people’s attention.

I also understood how important it was for family members of prisoners to meet with their legislators and share the stories of their loved ones in prison. Early on we held “lobby days” in Washington and encouraged people to visit their legislators in their districts. I also learned quickly that the media was FAMM’s best friend in circulating prisoner stories nationally. Within a month of starting FAMM, I heard from ABC News. They wanted to do a 3-minute piece on mandatory sentencing and asked me for prisoners and experts to interview. I was ready for them and thrilled that the piece aired so soon after launching FAMM. It generated national attention for FAMM, which brought more prisoners to us and more stories to tell.

One organizational decision I made from the get-go was that FAMM would not charge prisoners or their families any money for anything. Even though it cost us to produce and mail a quarterly newsletter (the FAMMgram) as well as run the office, I didn’t want to charge a membership fee because I felt so many of our members had spent their last dimes on attorneys. I wanted them to trust FAMM. I wanted them to know that FAMM existed only to help change the laws, not to make money off of them.

Of course, we have always sought donations from everyone because the biggest challenge to starting – and running – an organization is funding. When I left Cato, Ed Crane generously gave me the names of Cato’s supporters who were opposed to the drug war. That list provided FAMM with its seed money. One man deserves particular accolades – Rich Dennis – who sent FAMM a check for $25,000 (a huge sum of money then!) before he had any idea whether I could make a go of this start-up organization. His faith in me was inspiring. And, ultimately, it was justified.

Q. One of the first laws FAMM targeted was Michigan’s infamous “650-lifer” statute, which imposed a mandatory life sentence on anyone convicted of possessing, delivering or intending to deliver over 650 grams of cocaine or heroin. It proved a tough nut to crack; in 1998, after seven years of advocacy, you managed to persuade then-governor John Engler, a Republican, to reduce the mandatory minimum to 20 years after his predecessor publicly declared it a failure. Five years later, you turned that incremental success into a big one when Michigan enacted sweeping sentencing and parole reform in drug cases.

Was it your plan going in to take the long view, play the long game? Did you realize when you started FAMM how difficult and prolonged it would be to accomplish anything? Was it a matter of chipping away, or did you wait for less intransigent politicians to be elected and the national mood to change? Were you ever frustrated by the slow pace of things? Did you consider giving up?

A. Actually, the first laws FAMM targeted were federal drug mandatory minimum sentences. Just two years after starting FAMM, I was invited to testify at the first congressional hearing on sentencing since the early 1980s. My panel consisted of myself, the mother of a prisoner we profiled, and one of the prisoners whose story we shared widely: a 19-year old girl serving 10 years for telling undercover cops where her drug dealer boyfriend was. That hearing led to the introduction of the “safety valve,” which we lobbied hard for and was passed in August, 1994.

Unfortunately, retroactivity of the safety valve was bargained away in 11th hour negotiations of the 1994 crime bill. But, as imperfect as it is, the safety valve has provided shorter sentences for about 25 percent of those sentenced to federal prison for drug crimes each year (roughly 100,000 defendants since 1994). At the time, I had no idea how rare it was to win a sentencing reform so quickly. It was 16 years before we would see another statutory reform to federal drug sentencing; this time for crack cocaine. Had I known it would take so long to win another federal statutory reform, I probably would have been discouraged. But the good news was that sentencing policy reform could be accomplished elsewhere: at the U.S. Sentencing Commission and in the states.

Our sentencing victory in Michigan in 1998 was also relatively quick. In 1994, FAMM hired Laura Sager as our Michigan director to tackle Michigan’s 650 Lifer Law. Using our standard MO of collecting the data, telling the stories, gathering the families to lobby, and engaging the media, we successfully reformed Michigan’s 650 Lifer Law in 1998 so those serving life sentences became eligible for parole after 15-20 years. In Michigan, we also honed our skill at reaching out to unlikely allies. We worked with law enforcement groups and prosecutors to forge a bill that everyone could support. And we befriended the governor who signed the 650 Lifer Law in 1973, and no longer supported it.

I’ll never forget meeting the prisoners who were granted parole as soon as the law was signed. They were the first people who were given freedom as a result of FAMM’s work. And not just freedom but given back their LIVES – these people would have died in prison otherwise. That was unbelievably motivating! Once we had the 650 lifer win, it made sense to keep going and see if we could get further reforms to the lesser (but still severe) sentences in Michigan. In 2002, we succeeded in getting rid of almost all of Michigan’s drug mandatory minimums. The law became effective March 1, 2003.

When I started FAMM, I thought I could “fix” the sentencing problem in about five years and then go on to do something else with my life. Obviously, it didn’t work quite like that. But each year brought some progress and that progress kept me going. I’m a big believer in chipping away at a problem. Having said that, I never thought it would take this long.

Q. To work against state as well as federal mandatory minimum laws, you had to turn FAMM into a national organization. How did you find qualified people nationwide? Did you coordinate everything from a perch in D.C., or did you let the various branches of FAMM do their own things? In a time of superpredator rhetoric and near-universal crime panic, how were you able to attract enough volunteers and capital to not just survive, but grow and expand? How did you keep them motivated?

A. FAMM was national in scope from the very beginning because our members (prisoners and their families) lived all over the country. As FAMM became known, spouses and parents of prisoners would volunteer to become FAMM “coordinators” in their area and host meetings to introduce FAMM to others in their communities. This network of volunteers was hugely helpful in getting information to families and prisoners before the internet made information-sharing so accessible.

Most of these chapters looked for direction from FAMM headquarters, but some were very active without much input. That can be both good and bad because a renegade chapter could damage FAMM’s reputation. Luckily, we never had serious problems with that. By the time the internet took off, FAMM chapters faded away. They weren’t needed as much, although I missed the personal contact of seeing people at the monthly meetings we held in DC.

Today, interacting through social media, it is sometimes hard to keep FAMM members motivated because we’ve been asking them to do the same thing for so long: meet/email/call your legislators to tell them your story, or support or oppose a bill. That seemingly boring lobbying actually has an impact, but it’s hard to feel it when you’re sitting at home in front of your computer. Still, people are encouraged and hopeful by the sentencing changes that have been happening around the country for the past few years.

FAMM has never had a very big paid staff but we’ve had no trouble hiring. People who want to work at FAMM are true believers: they have to be, because no one is getting rich at FAMM. Fundraising is never fun, no matter the organization. But trying to raise money to change criminal sentencing laws to help guilty people get fairer sentences… is a real challenge. There were many years when I woke up in a sweat sometime around September, worrying that we would not have enough money to pay everyone for the rest of the year.

Our natural constituency for funds is the prisoners and their families. But I know they often have very little money. That’s why I am so humbled when grandparents send $20 with a note that says they are on social security and this is all they can afford but they really want to help me. Or prisoners send us stamps because that’s all they can afford. In contrast, I am also extremely grateful to FAMM’s very wealthy supporters who annually send us big checks. Among those are my favorite bedfellows: George Soros and David Koch. The growing interest in and national attention to sentencing reform has made fundraising much easier in the past few years. I sleep better at night, not that FAMM will ever be rich.

Q. You led FAMM through one of the darkest times for federal criminal defendants. From 1984 to 2005 (when the Supreme Court decided Booker), judges adhered to the Federal Sentencing Guidelines, which put enormous power in prosecutors’ hands to determine the length of sentences. While the Guidelines are now advisory, have they had a lasting impact on sentencing? Isn’t consistency in sentencing worthwhile? Would a Guidelines-inspired system providing for consistency be a good thing if the sentences were lower, or are there moral and civic reasons to oppose this kind of sentencing guidance?

A. The idea behind the sentencing guidelines was understandable: give similar sentences to similarly situated defendants. Unfortunately, human behavior doesn’t fit neatly into a grid. No two people are alike, no two crimes are alike, and no two sentences should automatically be alike. I would rather see justice delivered at sentencing than consistency. As my friend and FAMM board member Scott Wallace once argued, “Unwarranted uniformity in sentencing is no better than unwarranted disparity.” That judges are “departing” more post-Booker is a good thing. It means they are taking into account the myriad factors of each case and defendant, and determining the sentence that is most appropriate for that individual. If the sentence is wildly outside the norm, either side can appeal. That’s what a healthy sentencing system should look like.

I would also add that not long after starting FAMM, I realized that convincing seven U.S. Sentencing Commissioners to change sentencing guidelines was easier than persuading the majority of 535 members of Congress to change sentencing statutes. At a time when most advocates weren’t paying attention to the sentencing guidelines, FAMM was using prisoner stories to convince the Commission to change LSD and marijuana sentences, make the safety valve guideline retroactive, drop crack guidelines by two levels, and more.

The coup was the 2014 “drugs-minus two” retroactive guideline reform that led to over 46,000 drug prisoners becoming eligible for sentence reductions. We’ve heard from dozens of prisoners who were serving life sentences until that reform passed. Afterwards, their sentences were reduced to 30 years and, with good time credit, they were released. Those are the stories that make you know you’re doing something good.

Q. Beyond mandatory minimums and Sentencing Guidelines, the federal government and the states have other tools to ensure long and inflexible sentences. First, the feds eliminated parole. Then, in 1986, a 100:1 sentencing disparity for possession of crack vs. powder cocaine was passed, because reasons. You’ve been opposing that law for decades, first unsuccessfully in 1994 and then successfully in 2010, when Congress reduced the disparity to a mere 18:1. Is there reason to believe it will be corrected to 1:1? Are we doomed to keep repeating the mistake of formulating sentences based on hysteria rather than accurate information? Will empiricism in sentencing help or hurt?

A. I doubt seriously that Congress will change crack sentences to 1:1. If it happens, it will be decades from now. As much as I’d like to think we have learned from our sentencing mistakes, it is discouraging to see members of Congress continue to introduce bills with mandatory minimums. It’s as if they have no impulse control when an emotional crime occurs. Their Pavlovian response is to pass a stiff mandatory sentence.

The latest examples are “Kate’s Law,” introduced after the murder of Kate Steinle in San Francisco, and the “Back the Blue Act,” introduced after the murder of five police officers in Dallas. Both bills carry long mandatory minimum sentences. On the upside, not many bills with mandatory minimums make it through Congress. The last big batch was in 2006 (sex offenses). I credit this to the younger, more junior, more libertarian and liberal members of Congress who recognize that mandatory minimum sentences are an expensive failure. That number is growing while the old-time hard-liners are shrinking.

Q. In the past year, noises of reform have been heard from all quarters. What’s driving this sudden talk of reform? Is it purely a budgetary concern, because money is tight and prisons are expensive? Is it a small-government message? One of compassion? Or perhaps a pragmatic argument, that tough-on-crime has failed to live up to its promise? Despite all the talk and the coalitions favoring sentencing reform, not a lot has changed, even in Grassley-approved watered down versions. Is this reform talk real or will it fade away with the next wave of hysteria?

A. I think the main reason for progress is that people from different ideological backgrounds have begun to see prisoners as human beings. That might not sound all that exciting, but I really think that’s what’s happening. Until you believe people who break the law might not be that different than you or someone you know, you are not likely to care how long they are sent away, what kind of conditions they are kept in, and what happens to them when they are released. But the culture is shifting – finally – and so I think that has helped those of us pushing for reform.

As for the lack of progress, I think that only relates to Washington and, more specifically, Congress. The states are moving forward with reforms, including some fairly bold reforms, such as repealing drug mandatory minimums. Even in Washington, I think it would be a mistake to be disappointed that Congress won’t pass anything this year. First, election years are the times we usually see bad criminal justice ideas move, so it’s a sign of progress that those bad ideas – such as new mandatory minimums for opioids – aren’t going anywhere. In addition, keep in mind that the Grassley bill enjoys broad bipartisan support and would pass easily in any year but this presidential election year.

Q. When FAMM singles out somebody’s case as an example of why reform is needed, it’s usually a small-time drug offender: a nice kid caught in possession of a little coke and charged with conspiracy to distribute. In other words, someone a lot like our last two presidents, although they didn’t get caught. But Obama, like Bush before him, is a very unenthusiastic pardoner and commuter of sentences. FAMM helps highlight cases that deserve clemency. How do you do it? Are you responsive to the national mood – pro-drug reform and anti-gun, at least for the moment? And should the president do more, give clemency more often? Are you disappointed that over two terms of office, the president has accomplished almost nothing in criminal justice reform?

A. I have been outspoken in urging the president to act more boldly. I am impatient for change. But an honest assessment of the president’s record, even if he were to do nothing else, would have to give him credit for commuting more sentences than the last nine presidents combined.* His administration came out in strong support of eliminating the indefensible crack-powder disparity. His Justice Department is charging fewer mandatory minimums against low-level offenders, a unilateral move that reminds us of the important role prosecutors played in overfilling our prisons.

With regard to our profiles, I think you will see that we highlight cases that show exactly why mandatory minimums don’t work. We don’t pretend that the people involved were saints or innocent. These are all people who broke the law and deserve to be held accountable. Our goal is just to get people to see that even people who make bad mistakes deserve a punishment that fits their crime.

Q. Despite FAMM’s many successes, you’re retiring as head at a time when the national mood is precarious. Sentencing reform bills, like the tepid Fair Sentencing Act, languish in Congress and fail despite supposed bipartisan support. And thanks to “sexual assault on campus” hysteria and the outrage generated by things like the relatively mild sentence Judge Aaron Persky gave Brock Turner, mandatory minimums are very much back on the table for new crimes, even when the old ones have yet to go away. What can FAMM do to keep pushing things in the right direction? And with a well-deserved retirement to look forward to, what does Julie Stewart plan to do with all that free time?

A. I take your point. I am always worried that one high-profile crime could stop our progress. But for all the reasons I mentioned already, I think support for reform will stay high and continue to grow. We simply can’t and shouldn’t keep doing things the same way we did them 30 years ago. So we will continue to highlight the problems with our sentencing laws in a way that people can understand and hope we can motivate them to demand that policymakers act.

As for me, I sound like every disgraced legislator forced from office when I say I want to “spend more time with my family…“ But it’s true (other than the forced from office part). I really do look forward to savoring every moment before my two teenaged daughters tackle the world. I will also remain on the FAMM board as chairman and I suspect that after a time, I will probably get involved in criminal justice reform one way or another. After 25 years, sentencing reform is in my blood.

* President Obama, it should be noted, has granted fewer pardons than any other president.

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