MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, the discovery of an ancient sea under the Chesapeake and what it's helping scientists learn about the history of our continent and the history of climate change. But, first, why the winds may be blowing in a different direction now, when it comes to America's approach to law and order.

MR. KOJO NNAMDIThe movement to reform guidelines for mandatory minimum sentences for non-violent crimes appears to be gaining steam in Washington and across the country. According to a report issued last month by the American Civil Liberties Union, as of 2012, there were more than 3,000 prisoners across the country doing life without parole for crimes as seemingly mild as stealing tools from a shed or carrying drugs for an abusive boyfriend. Politicians from both major parties are pushing measures to give judges more discretion in how sentences for such crimes are issued.

MR. KOJO NNAMDIBut the history behind our current sentencing laws is long and complicated and moving away from it may not be that simple. Joining me in studio is Nicole Austin-Hillery. She is the Director and Counsel of the Washington D.C. Office of the Brennan Center for Justice at New York University School of Law. Nicole Austin-Hillery, good to see you again. Thank you for joining us.

MS. NICOLE AUSTIN-HILLERYGood to see you, Kojo. Thank you for having me.

NNAMDIJoining us by phone is Adam Liptak. He is the Supreme Court correspondent for The New York Times. Adam, thank you for joining us.

MR. ADAM LIPTAKHey, Kojo. Good to be here.

NNAMDIYou can join the conversation. Give us a call at 800-433-8850. Do you think harsh sentences for non-violent crimes deter people from engaging in illegal activity? Well, just what do you think? Give us a call. 800-433-8850. Or you can send email to kojo@wamu.org. The United States has a prison population of more than 2 million people, many of them serving life sentences for non-violent crimes, often sentences that are not even the -- that not even the judges who issued those sentences particularly agree with, but were mandated by law.

NNAMDIBefore we go any further, starting with you, Nicole, how do these mandatory minimum sentence guidelines currently work?

AUSTIN-HILLERYThe way they currently work is that judges have parameters that they have to follow with respect to certain crimes. And judges' hands are really tied by having to follow these parameters. It doesn't give them much discretion, if any, to take other factors into consideration, such as: were there extenuating circumstances that may have led someone to commit a certain crime, are there potential life experiences that may have impacted why a person was involved in a criminal justice issue?

AUSTIN-HILLERYSo what we're finding is that many people are being pushed into very long and draconian sentences, which is making it much more difficult for them to eventually move back into society and to take advantage of opportunities that we all enjoy, such as: educational opportunities, housing opportunities, the kinds of things that will allow them to reintegrate themselves into society, which is, as we know, the purpose of our justice system. It is to rehabilitate and then bring people back into our communities.

NNAMDIAs one prison official said: the purpose of corrections is to correct behavior. But it even has some judges complaining that they cannot do the jobs for which they were educated and trained, which is judging and having some discretion over the sentences they hand out.

AUSTIN-HILLERYExactly. You know, and that's what's so interesting about this debate, Kojo, that, you know, judges are law-and-order people. You know, they are put in place to ensure that our laws are adhered to. But they are extremely frustrated by the fact that they cannot use their own knowledge, intelligence and discretion to make what they think are the best decisions on a case-by-case basis with respect to those issues that are brought before them.

NNAMDIAdam Liptak, what was the philosophy behind the tough-on-crime mandatory minimum sentencing that took place several decades ago? How did we get to the system that's in place now? There's a history to this that apparently goes back to former University of Maryland basketball player, Len Bias.

LIPTAKWell, part of it was a real fear of the rise of crack cocaine and the kind of figment of the popular imagination of a super-predator sort of teenager. And that the only way to respond to this was through these very harsh mandatory sentences Nicole was describing. They have given rise, as you said, Kojo, a prison population that is completely out of scale by international standards. We have five percent of the world's population: 25 percent of its prisoners. And now, finally, there seems to be some recognition that non-violent, typically drug crimes, which put people in prison for very, very long times, are problematic.

LIPTAKThe other aspect of this that people sometimes overlook is that it's not that nobody in the criminal justice system has discretion. Nicole's quite right that judges have lost discretion, which is crazy. But that discretion just gets pushed back one step and it puts all of the discretion in the hands of prosecutors. And those prosecutors decide what crimes to charge, what crimes to threaten people with so they plead guilty rather than go to trial. And it really makes the entire criminal justice system a prosecutorial rather than judicial system.

NNAMDIDid part of this stem from the outrage over Len Bias' death, the former University of Maryland basketball star in 1985 or '86?

LIPTAKQuite right, yes. That's where the roots of the federal mandatory sentencing comes from.

NNAMDIWhere do these laws typically fit into the toolbox prosecutors use in cases, Adam?

LIPTAKProsecutors want to convict people. And they'd much rather convict them without going to trial. And if they have these sentence-enhancing mandatory minimum charges available to them, they can often put someone to a terrible choice. You can go to prison for five years or will take your chances about -- of going to prison for the rest of your life. And that may put even an innocent person to the rational choice of, I'll plead guilty rather than take my chances at trial.

NNAMDIWe're talking with Adam Liptak. He is the Supreme Court correspondent for The New York Times. He joins us by phone. Joining us in studio is Nicole Austin-Hillery, Director and Counsel of the Washington D.C. Office of the Brennan Center for Justice at New York University School of Law. You can call us at 800-443-8850. What concerns do you have about the growing population of incarcerated people in the United States? Do you think the Obama administration is wise to pursue sentencing reform measures? 800-433-8850.

NNAMDINicole, to what degree do judges have any checks on the power that prosecutors can wield by deciding to charge a defendant as aggressively as Adam just described?

AUSTIN-HILLERYYou know, they have very little, Kojo. You know, I want to point out a report that the Brennan Center did a few years ago called "Racial Disparities and Federal Prosecutions." What we did was we brought together a panel of former prosecutors -- federal prosecutors, to have a real frank and honest discussion about how prosecutorial discretion impacts the decisions they make and how it often can result in disparities -- many of those disparities being racial disparities.

AUSTIN-HILLERYAnd what we learned from those prosecutors is that it does rear its ugly head, that there is a lot of discretion that prosecutors have and that it is oftentimes unwieldy and it goes unchecked. There are people who have tried to -- you know, advocates, citizens -- who have tried to challenge that discretion that prosecutors have. But it's very, very difficult. It is a high bar that one must rise to and overcome in order to really show that prosecutors' discretion has gone above and beyond what it should be and to really challenge that and show that there's some harm that's resulted from that.

AUSTIN-HILLERYAnd I also wanted to point out, Kojo, that just today Human Rights Watch released a report documenting how the threat of extraordinarily severe and disproportionate prison sentences are forcing federal drug defendants into guilty pleas, which is something you were just talking about with Adam.

NNAMDIUm-hum.

AUSTIN-HILLERYSo it's really important that we look at how this discretion and the threat of these draconian sentences are really pushing people into positions where they're not necessarily using good judgment and making the best decisions on their behalves.

NNAMDISo, Adam, what were the implications of the case the Supreme Court ruled on earlier this year about the roles of juries and judges in cases involving mandatory minimum sentences?

LIPTAKThe court has tried to ensure that the juries retain their constitutional role in finding all of the facts that go into a sentence. But that doesn't really address the question we're talking about here. It merely says that a jury rather than a judge has to find the underlying facts. But one way or the other, if the fact is there -- if the drug weight is there, if the use of a gun in a crime is there, the mandatory sentence will kick in.

NNAMDINicole, as your comments just underscored, the racial disparities are vast. By some measures, blacks are 20 times more likely than whites to be sentenced to life without parole for non-violent crimes. Will adjusting mandatory minimum sentences help to minimize -- reduce racial disparities that exist?

AUSTIN-HILLERYWe certainly think so at the Brennan Center, as do many other advocates, because the disproportionate number of people that are finding themselves in the criminal justice system for drug charges. And really what statistics are showing us is that a large swath of the population that is currently within our federal criminal justice system is there because of drug charges -- many of them being low-level drug charges.

AUSTIN-HILLERYSo, if we change this mandatory minimum sentencing structure, that means that many of the individuals who are disproportionately impacted by these sentences will have opportunities to serve more reasonable sentences, will have more opportunities to become good members of our society by coming out sooner. And what we're also hoping will be tied to that, Kojo, is that the monies that are being spent on housing so many people in our prisons -- it's outrageous.

AUSTIN-HILLERYMany members of the public would rather see that money used to ensure that the individuals who are serving time are getting the proper treatment that they need, are getting the educational training that they need, such that once they come out of prison, they actually can become productive members of our society, which will eventually ensure that people will not find themselves, hopefully, back in the criminal system and will eventually help us to reduce this problem of mass-incarceration.

LIPTAKAdam Liptak, can we speculate that one of the pressures leading to the move to end mandatory minimum sentences or restrict mandatory minimum sentences has to do with the economic pressures that states around the country are experiencing because they're looking at budget cuts even as their prison populations are expanding?

LIPTAKExactly right. So we mostly think about the federal system where this is not a huge budget item for the federal government. But for most states it's, after Medicaid, the second biggest budget item. And in this era of austerity, they have to look at trying to cut back on some of these expenses. And where many of them are looking, are trying to figure out whether there are non-violent offenders who do not need to be placed in extraordinarily long sentences. People do age out of criminal conduct. It's basically young men who are violent criminals.

LIPTAKAnd some of our prisons around the country are becoming geriatric wards. And it's really not clear why you want old, old men getting free health care and free room and board, who are not dangerous to the community, continue to be housed under these extraordinarily long sentences.

NNAMDIOn to the phones. Here is Chris in Washington D.C. Chris, you are on the air. Go ahead, please.

CHRISI'd like to ask your panel of guests whether they feel that the racial disparities in the criminal justice system are caused by malfeasance on the part of officials or are a reaction to an empirical disparity?

NNAMDINicole?

AUSTIN-HILLERYI think that they are not caused by malfeasance. I think that they are reactions to some of the biases that individuals, themselves, carry and hold. You know, if you go on the Harvard website -- and your caller's probably familiar with this -- there's something called the implicit bias test. And I urge every American, actually, to take this test because it's illuminating. And what it really shows is that we all carry within ourselves some implicit biases that impact how we think and decisions that we make.

AUSTIN-HILLERYSo I certainly think that a great deal of what has to do with these disparities is a lack of understanding about communities, about differences in communities and about a lack of understanding of diverse populations. And I think that those biases often make even the smartest people, you know, make decisions and use judgment that is less than what we would have them to use and that eventually impacts individuals' lives.

NNAMDIWhat recommendations does the Brennan Center for Justice make for reducing the disparities and in general reducing the incarceration rate?

AUSTIN-HILLERYOh Kojo, we actually just released a new report just this past week. The Brennan Center's approach to dealing with this issue of mass incarceration is -- shows us looking at the nexus between economics and justice. Because we think that many decisions are made based on money and based on economics. For instance, many communities are able to employ members of their communities because there are large prison systems in those communities.

AUSTIN-HILLERYWell, we don't think that's a reason why we should be incarcerating people and we don't think that those economic needs should be what is causing or generating mass incarceration. So our report is looking specifically at a grant program that's administered by the Department of Justice called the Byrne JAG grant program which provides a huge pot of monies for jurisdictions across the country, police departments.

AUSTIN-HILLERYAnd we are suggesting that the way in which we should be measuring the successes of these police departments and the ways in which we should look at how they're using those monies should be judged against how those decisions and how the programs that they're putting in place are measuring up when it comes to racial disparities and how it's impacting different communities. And we think that if we start, for instance, looking at that nexus and looking at how decisions are made, that we can then be more thoughtful about whether racial disparities are actually impacting communities.

AUSTIN-HILLERYAnd when we're thoughtful about that then we can do a great deal to end racial disparities and thereby help to end, or at least cut down on mass incarceration.

NNAMDIAdam Liptak, congress is currently discussing prison reform legislation including the Smarter Sentencing Act and the Public Safety Enhancement Act. If passed, what do you think the impact of these measures would be?

LIPTAKOh, I think the impact could be quite significant but the if-passed caveat that you mentioned, Kojo, is not insignificant. You know, this is a congress that finds it very hard to get stuff done. It's a new day even to consider a measure that could be said to be soft on crime. But I think it's -- you know, all of this is an uphill fight. But I have to say that Attorney General Eric Holder really turned the page, to an extent, when he made his speech in August to the ABA urging reforms in this area. And also, in fairness, instructing his prosecutors to be much more thoughtful about the crimes they charge people with.

NNAMDINicole, will this new legislation impact prisoners already serving mandatory minimum sentences?

AUSTIN-HILLERYIt could possibly, Kojo. And I want to say this. When you talk about congress and what can get done, I think it's important to note that with respect to both of these bills, the Smarter Sentencing Act and the Justice Safety Valve Act, they have bipartisan support. I think that is hugely important in this era of government dysfunction that we all seem to be so very focused on. The Justice Safety Valve Act is being sponsored by Senators Leahy and Paul. The Smarter Sentencing Act is a bill that's being sponsored by Senators Durbin and Labrador, Scott and Lee. So I think that gives us great hope that there is this bipartisan support.

AUSTIN-HILLERYBut in terms of whom it can impact, it will certainly increase or expand upon what we now call the safety valve, which is a mechanism that would allow all federal crimes to be subject to mandatory -- that are subject to mandatory minimum penalties. It would allow judges to impose a sentence other than that which is statutorily designated. Currently that safety valve only covers a small amount of crimes. Under the Justice Safety Valve Act it would expand it so many more people would be impacted.

AUSTIN-HILLERYAnd it would also allow some of those individuals who have been previously sentenced to at least have the option to request that there be reconsideration with respect to their sentences. And I also want to say that, you know, the president has a role here, Kojo. It's not just congress. You know, the president has a role in terms of the power of the pen to pardon and commute sentences. You know, there are about 17,000 inmates who, after the Fair Sentencing Act...

NNAMDIThis is an administration that has not done a great deal of pardoning.

AUSTIN-HILLERYNo, it has not. But after the Fair Sentencing Act of 2010 was enacted, there were about 17,000 inmates for whom that act did not make a difference. So many people -- many advocates have been pushing for retroactivity with respect to that act. The president through the power of -- through the pardon power and the commutation power has the ability to make a difference in the lives of those 17,000 individuals. And that's something that we would urge too, that not only that congress takes a look at some of these reform efforts, but that the president take a look at what power is at his hand to make a difference in terms of these reforms.

NNAMDINicole Austin-Hillery is the director and counselor of the Washington, D.C. office of the Brennan Center for Justice at New York University School of Law. Thank you for joining us.

AUSTIN-HILLERYThank you, Kojo, for having me.

NNAMDIAdam Liptak is the Supreme Court correspondent for the New York Times. Adam, always a pleasure. Thank you for joining us.

LIPTAKIt's always nice to be here.

NNAMDIWe're going to take a short break. When we come back, the discovery of an ancient sea under the Chesapeake and what that is helping scientists learn about the history of our continent and about the history of climate change. I'm Kojo Nnamdi.