The Sentencing Matters Substack Interview: Former Presidential Candidate, Governor, DEA Administrator, Congressman, and U.S. Attorney Asa Hutchinson

Asa Hutchinson knows a thing or two about the intersection of crime, punishment, and politics.  He’s been living there for the past 40 years.  In 1982, at age 31, he was appointed U.S. Attorney for the Western District of Arkansas by President Reagan.  He served in that position for over three years and earned a reputation as an effective prosecutor, especially for his work and leadership on a number of high-profile cases.

After leaving the U.S. Attorney’s Office, Hutchinson entered what would be a four-decade long career in politics.  He lost races for the U.S. Senate and Arkansas Attorney General before being elected to Congress in 1996.  He served two full terms in the House, including as a member of the House Judiciary Committee.  In the House, he led efforts to crack down on trafficking of illegal drugs, particularly methamphetamine, which was then emerging as a significant public safety and health concern.  In the House, he also served as one of the managers of the impeachment trial of President Bill Clinton in 1998. 

Hutchinson was elected to a third congressional term in 2000, but in 2001, was nominated by President Bush and confirmed by the Senate as the Administrator of the Drug Enforcement Administration (DEA).  He later served in the Bush Administration as Under Secretary for Border and Transportation Security at the then-newly created Department of Homeland Security (DHS).  He left DHS in 2005.

In 2006, Hutchinson announced his candidacy for Governor of Arkansas.  He would ultimately run three times for governor, first losing to then-Arkansas Attorney General Mike Beebe in 2006, then defeating Mike Ross in 2014, and finally being reelected overwhelmingly in 2018.  He also served as Chairman of the National Governors Association.

In his positions as U.S. Attorney, Member of Congress, DEA Administrator, Homeland Security Under Secretary, and Governor, Hutchinson confronted many issues of crime and punishment, some of which we explore in the interview.  While Hutchinson would certainly identify himself as a conservative, he is an independent thinker who has taken positions contrary to his own party on crime and punishment matters and on matters of even greater consequence.

In addition to his public service, Hutchinson has had an active private sector career, among other things, representing criminal defendants and other clients at all stages of state and federal litigation.  He is currently CEO of Hutchinson Group LLC, a security consulting firm.

Hutchinson grew up on a small farm near Gravette, Arkansas.  He graduated from Bob Jones University and the University of Arkansas School of Law.  He and his wife, Susan, have four children and seven grandchildren. 

I met Governor Hutchinson this year in Cambridge, Massachusetts, where he is a resident fellow at the Harvard Kennedy School’s Institute of Politics. 

He and I spoke in mid-October.  The interview was lightly edited for clarity and brevity.

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Jonathan: Thank you so much for sitting down with me for this interview, Governor.  I’m curious how you are enjoying your time in Cambridge?

Governor Hutchinson: It’s great!  I’m taking classes.  I’m meeting with students.  Today I was out doing a little jog, and I saw some ROTC students out there.  They all stopped, said, “Governor Hutchinson!”  And we visited with them for a while.  One of them was from Arkansas.  It's just been a cool experience.

Jonathan: So, I mentioned to you that this interview is for a Substack some colleagues and I have started to explore sentencing issues.  So, we'll talk mostly about crime and sentencing.  But I do think we should start with your run for President. 

You were finishing up your term as Governor in 2023, and you decided to run for President.  I'm curious what was going through your mind when you made that decision, and what that experience of running for President was like for you.

Governor Hutchinson: Well, here’s what went into the decision.  Whenever I watched what happened on January 6^th and what led up to January 6^th, I would say to myself that Donald Trump should never be President of the United States again.  Part of it is my background as a lawyer.  I believe in the peaceful transfer of power.  I believe in following the law.  I saw all that being abused.

And so, I spoke out against it.  And when you speak out against something long enough, people say, well, you know, you need to put up or shut up.  And so, I jumped in the race.  I looked at it that not only did I have good reasons to do it because we needed an alternative, but also there's no one that could match the experience that I had.  It’s been such a wonderful experience – the time of my life – to be at the federal level in the Executive Branch, the Legislative Branch, to be Governor of Arkansas, and that kind of experience really puts you in a position to lead the country. 

In terms of the experience of running, being Governor of Arkansas was the best public service job I ever had.  But running for President of the United States is the most incredible experience, because there's nothing like it.  It’s really the only national elected office we have.  There's a reason most successful candidates have to run twice, because you learn so much the first time you do it. The overriding memory I have from running for President is that whether you're in Iowa, New Hampshire, or South Carolina, people care about the future of our country.  They might disagree on lots of things, but they care.  They're passionate about it.  They believe in our democracy, and that's encouraging.

Another aspect of the experience I loved was running into history.  I love history.  And for me, to be in Exeter, New Hampshire, at a town hall meeting on the same stage that Abraham Lincoln was on in 1860, was really special.  It was heaven for me just to have those kind of experiences.

Jonathan: Would you ever think about doing it again?

Governor Hutchinson: Well, I would think about it, but I don't think that opportunity is going to be there for a number of different reasons.  So, I’m probably turning the page and seeing what other opportunities are out there to serve.  And there are many.

Jonathan: What have you been doing since you dropped out of the presidential race?

Governor Hutchinson: It's been a great time.  First of all, I have a legal and homeland security consulting practice.  Then also, I have been on a lot of college campuses.  I’ve been at the University of Arkansas Law School, welcoming the students there.  I've been on the Duke campus, at Washington and Lee University, and here at Harvard.  It has been an extraordinary experience.  Students energize you, as you well know, and so I'm trying to give back with teaching and mentoring, but also continuing my business and law practice as well.

Jonathan: Let’s get to sentencing.  You were U.S. Attorney in the early eighties before the Sentencing Reform Act was enacted.  Do you have any memories of sentencing before there were sentencing guidelines?  Did you have any particular feelings about how sentencing played out in courts in Arkansas back then?

Asa Hutchinson: I do remember, and what’s stuck in my mind from then is the incredibly important role that federal probation officers played in sentencing.  As they would work on the presentence reports, they would interview the United States Attorney or the AUSA and other participants in the case.  Then they would go to the judge, and that private meeting with the judge is really where everything was determined.  The judge would convey his view of the case after getting all the information.  The presentence report would be shaped based upon those meetings.  Judges had a great deal of latitude, but I never saw them particularly abuse it.  At the same time, I welcomed the sentencing guidelines.

Jonathan: We spoke to Judge Wilkins, the first Chair of the Sentencing Commission, recently.  He also spoke about the importance of probation officers, both before and after the Sentencing Reform Act.  Were you a supporter of the guidelines back then, and what do you think of the guidelines today?

Governor Hutchinson: You know, I was probably fairly neutral in terms of the guidelines when they were passed, because I didn't have any particularly bad experiences as a federal prosecutor with the latitude that judges had in sentencing.  We had some incredibly good judges in Arkansas.  But when the sentencing guidelines came in, I think they worked very effectively.  So, while I was neutral at the time, I'm certainly a fan of the guidelines now.  I think they play an important role in our judicial system and the fairness that we are trying to accomplish.

Obviously, I understand that nobody wants authority taken away from them or discretion taken away from them.  When the legislature took power away from me as governor, I didn’t like it.  But I think the guidelines have been implemented well, and I think they’ve been a useful tool.

Jonathan: Arkansas has had its own experience with sentencing reform.  Can you talk a little bit about that?

Governor Hutchinson: Well, of course, as Governor, I appointed many of the people to the Arkansas sentencing commission.  I took their role seriously, and from my experience at the federal level, I knew how important it was.  Of course, there's a big difference between the state process and the federal system.  We have juries that issue sentences in state court, and that difference is difficult for a sentencing commission – or sentencing guidelines – to counteract. 

Our sentencing guidelines are not as tight as the federal guidelines are, and in some ways not as effective.  The judge is not going to be undermining the jury verdict in very many instances.  I actually tried to strengthen the guidelines as Governor by saying that if the judge is going to deviate from the guidelines, then they have to explain the reasons on the record.

Jonathan: Arkansas has one of the highest rates of incarceration.  Do you attribute that to the jury involvement in sentencing?  Or is it something else?  Do you think further steps should be taken to change that?

Governor Hutchinson: Well, you know, it’s a bit jaw dropping to see the level of incarceration per 100,000 people in Arkansas.  As to the reasons for it, there's always some uniqueness of states in the South, whether you're looking at high poverty rates, the incidence of welfare in our state and in the Delta particularly.  Poverty always is a factor, but also the tough sentencing that the legislature has mandated.  And there is the difficulty of moving away from the harsh sentences, even for many drug offenders who are nonviolent.

We have worked hard to change the landscape.  We've invested in drug treatment courts and mental health assistance.  We’ve tried to avoid the heavy incarceration model and just have imprisonment focused on violent offenders.  We’ve got a lot of work to do.

Jonathan: What are the lessons you take away from the Arkansas experience with drug courts?

Governor Hutchinson: Well, first of all, I've been a fan of drug courts since I was in Congress and then when I went to the DEA.  I’ve continued to advocate for them, and we partnered with them when I was at DEA.  I went to scores of drug court graduations from Illinois to California; I saw them at work.  I continue to believe that providing an alternative to incarceration for nonviolent individuals with an addiction problem makes sense.  It’s an alternative with consequences, with accountability.  These are tough programs.

And so, when I became Governor, we wanted to increase the use of drug courts in Arkansas.  And we did.  We found that the key factor in whether they're successful or not is the personnel involved.  If you have a judge who is committed and willing to put the extraordinary time and effort and perseverance into those programs, they'll be successful.

Drug courts take a lot of attention and constant monitoring.  It can be a drain on your probation officers who carry a lot of other responsibilities.  But I've seen the evidence of success.  I've witnessed it, and so I believe in them.  There's a lot of flexibility, but if they are set up right, I think they can be successful and lead to recovery for many addicts.

Jonathan: There's been a lot of attention given lately to the way drug sentencing is done in the federal system, which focuses, as you know, on the drug type and quantity involved in the offense.  There's been a lot of criticism of that sentencing framework.  Do you have any thoughts about the current federal sentencing structure for drug offenses, including the mandatory minimums that are also based on drug type and drug quantity?

Governor Hutchinson: I think it makes sense to distinguish drug types involved in drug crimes.  For example, right now we have an extraordinary challenge with fentanyl and people dying from it, and it's understandable that the legislature will increase penalties for fentanyl and distinguish it as extraordinarily dangerous.  So yes, I think that's understandable to distinguish fentanyl from other drugs, such as marijuana or cocaine.

If you go back to the original mandatory minimums that were established for crack cocaine, for example, at the time Len Bias had overdosed on cocaine, and there was a great expression of concern.  And so, Congress initiated the mandatory minimums in a very harsh way.  To me, it's understandable, as a former legislator, that Congress expressed the public angst about a drug that was causing death in society.

But the key is that you have to review those penalties constantly.  And so, we saw some unfairness in those mandatory minimums that needed to be changed.  I've advocated for those changes as we learned more and as we got more data.   

The other part of your question is on volume and quantity.  Here again, if you're a casual dealer or you're putting drugs out because you're trying to feed your own habit, that’s one thing.  But if you are hauling 60 pounds or kilos across the country, you're obviously doing it as a business.  If you have a large quantity of cocaine, it indicates you're in a criminal enterprise and not a casual dealer or a casual consumer.  So, to me, using quantity makes absolute sense, and this is where you can set tough standards.  But I recognize that judges have to be able to step in in the unusual circumstances and say, there's mitigating circumstances here, and we need to reduce the impact of a serious mandatory minimum sentence.

Jonathan: You mentioned cocaine sentencing policy.  You've been a leader seeking change in that area of sentencing policy since 2009, when you first testified in favor of equalizing the penalties between offenses for crack and powder cocaine.  Of course, you were the head of the DEA when the Bush Administration supported the 100-to-1 quantity ratio.  Deputy Attorney General Larry Thompson testified before the Sentencing Commission in favor of the 100-to-1 ratio.  What was your thinking then?  Were you involved in any of that?  How has your thinking evolved over time?

Governor Hutchinson: Well, that's a little bit of an inside story there.  As you know, while I was in Congress, I wrote op-eds and argued for reducing the 100-to-1 quantity ratio.  I ran headlong into Jeff Sessions in the Senate, who opposed reducing the ratio at all.  And as a side note, 20 years later, he changed his position and supported reducing that disparity from 100-to-1 down to 18-to-1.  It just took time.

Now when I went to the DEA, I didn't change my position.  I didn't change my view that we ought to reduce the crack/powder disparity and what I saw as unfairness.  I actually met with a lot of agents and talked to them about it.  I tried to make my case that the disparity undermines their credibility and the fairness of the justice system.   And when you undermine credibility, you undermine the ability to get cooperating witnesses and fair verdicts from the jury.  The agents understood that.  They understood the need for a change.  

I was prepared to go and testify before the Sentencing Commission.  But shortly before I was to testify, I was notified by the Department of Justice – Main Justice – that I was being substituted in favor of the Deputy Attorney General, who testified not to change the 100-to-1 quantity ratio at all.

Jonathan: I’d like to ask you about clemency.  As Governor, you were the one to review clemency petitions and make the ultimate decisions about whether to grant clemency.  How did you structure the decision-making for reviewing petitions?  And what were some of the toughest clemency decisions you had to make.

Governor Hutchinson: Well, first of all, I took it very seriously.  I took the pardon responsibility and the clemency responsibility seriously.  Every week I would be taking home boxes of files to the governor’s mansion to read at night.  I had a criminal justice staff, who would review the files initially.  They would get them organized for me with a recommendation to either accept or deny, and sometimes there was no position.  Then, I would review it myself. Most of them were pardon applications, and on those, it's usually been ten or more years since the conviction.  I looked at whether it was a nonviolent offense and a lot of different factors.  I issued a lot of pardons.

The clemency side was the more difficult part.  Of course, with clemency, you're releasing someone who is incarcerated or reducing their sentence, and that gets more public scrutiny.  But you're also putting yourself and the public at risk that they will get out of prison and they will go and do additional harm.  So, we looked at those very closely.

What I looked for in the petitions was unfairness in the system or where the person was overcharged or didn't get a fair trial or got an excessive sentence.  I'll give you one example.  I had someone who received an 80-year sentence for nonviolent drug dealing.  I was prepared to grant clemency to him; obviously I thought the sentence was excessive.  But when I looked at the file, I saw that he was still peddling drugs in prison.  I decided I was not going to release somebody who's peddling drugs in prison, even though he ought to have a reduced sentence.  I thought, someday they're going to get it.  But I had to send a signal that you need to change your behavior before I'm going to grant clemency.

I read all the information in the files, and I especially looked at the person’s rehabilitation in prison.  We had a trustee system in Arkansas, where prisoners with a life sentence who were behaving well in prison would provide services in the governor's residence.  We got to know these men, and I was convinced that they were not violent any more in any way.

I granted one of the trustees clemency, but I did not grant for two others.  All had committed extraordinarily heinous crimes.  For the two, I didn't see the reconciliation with a victim or an attempt to reach out to the victim.  To me, that was important.  Sometimes the victims are not going to forgive.  Sometimes the victims are not going to ever get over or understand it or agree to a clemency.  But the outreach to me was important, and so some of those steps had not been completed.

Jonathan: Let me ask you about the death penalty.  There was a particular moment while you were governor where four men were put to death in Arkansas in less than two weeks, which is very unusual.  Can you walk us through what happened and the process you undertook?  What were some of the decisions you had to make as these executions were coming up?

Governor Hutchinson: Well, first of all, it's a very tough time, one of the most difficult responsibilities for any governor, whether you agree or disagree with the death penalty.  The responsibility of the executive of the state is to faithfully execute the laws.  I saw that as my responsibility.  I do support the death penalty for certain heinous crimes, whether you're talking about the Boston bomber or Timothy McVeigh.  These are crimes that to me justify the death penalty.  But regardless, when I came into office, the death penalty had not been carried out in well over a decade.

The previous governor just never set any execution dates.  So, there was a huge backlog when I became governor of individuals on death row.  The attorney general is the official in Arkansas who sends death penalty cases over to me, noting that the persons have exhausted their appeals, and it is appropriate time to set the execution dates.  Around that time, I had eight cases sent over to me, and I set the dates for all eight.  That's a large number.  I knew that because of continued reviews and last-minute stays, some of those would be postponed or delayed.  In fact, of those eight, three were stayed, and in one, I granted clemency.  In that one case, the victim’s family was split.  Some came and said, “you know he should be executed.”  Others came and said “no.”  It was a youthful offense and there were some extraordinary circumstances.  So, I commuted that sentence.  And four were executed.

All I can say is, to me, that's the responsibility of the governor, to carry out the law and to do it in a fair way.  I looked at each of those cases.  I met with the defense attorneys.  They made their case for clemency.  To me, they made their case for whatever factual issue that they wanted to raise, and the courts reviewed them all, and in the end no stays were granted.

Now the process is very difficult.  We cancel everything for the day set for the execution, so that we're available for calls from the judges, calls from defense attorneys, calls from the prison system.  It always comes down to the very end.  And it really was amazing to me how the courts were responsive under these extraordinary circumstances, up to and including the United States Supreme Court.  They would get the last-minute petitions.  You wait an hour, and you'd get a fax back from the Supreme Court, either denying a stay, granting a stay, or whatever action they took.  And the same thing for the 8th Circuit Court of Appeals.  So, in a matter of hours, you'd go from district court to the Court of Appeals to the United States Supreme Court.  And every lawyer knows that they have to be just as prepared and be on standby in case of something extraordinary changing the outcome.

And then you've got, of course, the difficulty that the execution drugs are difficult to obtain.  The pharmaceutical companies are not releasing those, and they're trying to take every step possible to make sure that they're not used to carry out an execution.  And so that was an issue.  We didn't change our protocols because they had already been litigated, and the courts had found that the process had met due process standards.

It's all a very difficult process that I wouldn’t wish on anyone.

Jonathan Wroblewski: Finally, can you talk a bit about your work in Arkansas on justice reinvestment and reviewing the entire criminal justice system.  I know you were a big supporter of this process while you were governor.

Governor Hutchinson: I was.  Part of that process was getting our legislators involved in reviewing our criminal justice system.  We looked to see what could actually be done to increase fairness, to reduce incarceration, but at the same time keep people safe.  This was justice reinvestment.  A number of recommendations came from the process.  One of the recommendations was to better address the mental health issues of those that come in contact with the criminal justice system.

Based on that recommendation, we passed a law that I signed that required police officers to have crisis intervention training to identify mental health issues for those that might be engaged in wrongdoing.  And then, if it was appropriate, the officers would refer those people to crisis stabilization units that we established across the state.  Those people could have their criminal cases deferred in order to have their mental health stabilized at one of these crisis stabilization units.  This was one of our diversion programs from the justice system.  It’s been an example of one of our successful justice reinvestment initiatives; trying to address the mental health crisis with more treatment alternatives versus simply incarceration.

I’m a big supporter of the initiative.

Jonathan: Thank you, Governor, for your candor about everything I asked you about.  Thank you for taking time with us and sharing your experiences.  And thank you for your service to the country.