Federal Mandatory Minimum Sentences. Policy History, Present Status and Future Reforms

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1 Federal Mandatory Minimum Sentences Policy History, Present Status and Future Reforms Ann Hilton Criminal Justice 1010 Spring Semester 2014

2 Federal mandatory minimum sentences are the product of good intentions, but good intentions do not make good public policy. For a public policy to be a solid one, positive results also are necessary. Amending some components of our current federal mandatory minimum sentencing policies has bipartisan support, presently. Congress must decide with every crime, is justice better served in static statute based penalties? Or should Judges be left with the freedom to adapt mitigating and/or aggravating factors into each criminal case? This paper will explain the history of how federal mandatory minimums began, summarize criminal justice policy arguments both for and against mandatory minimums, and consider the future of mandatory minimums by evaluation of both the Justice Safety Valve Act and the Smarter Sentencing Act. The often harsh mandatory minimum sentences that are levied upon offenders have resulted in a huge prison population, today. Proliferation of crimes which now carry minimum sentencing punishments by law continues to swell. Many crimes that now convey a mandatory sentence are not considered violent criminal acts. Many legal challenges to federal mandatory minimums, a few of which cases have made their way up to the Supreme Court of the United States, have been made on the basis that, mandatory sentences amount to cruel and unusual punishment which is a violation of the 8 th Amendment to the United States Constitution. 1 As of the current date, the Supreme Court of the United States has upheld federal mandatory minimum sentencing, as of the current date. The question remains, though, whether mandatory minimum sentences makes sensible criminal justice policy. Currently, elected Democratic and Republican congressional members strongly advocate modifying our federal mandatory minimum sentencing statutes. Two bipartisan supported bills are currently in the congressional process. Senator Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced the Justice Safety Valve Act of This bill would allow Judges greater 1

3 flexibility for sentencing federal crimes in which a mandatory minimum punishment is considered unnecessary. Senator Dick Durbin (D-IL) and Mike Lee (R-UT) have sponsored the Smarter Sentencing Act, which is proposed legislation that would impact federal mandatory minimums for drug offenses. 3 Severe punishment for relatively minor and non-violent drug possession charges are one of the most costly and pressing issues related to mandatory minimum sentencing. Each bill has the potential to be valuable in advancing better criminal justice policy, but actual future impacts are always difficult to foresee. History: During much of the 19 th and 20 th centuries, federal trial judges fundamentally exercised unrestricted sentencing discretion. 4 Then in the 1960 s and 1970 s this judicial leeway began to be criticized by some influential political players. These politicians concluded that uncontrolled judicial sentencing discretion was resultant in sentencing inequalities within criminal cases parallel in nature. The scholarly debate within the legal and congressional community surrounding the unbridled discretion of judges to sentence criminals resulted in the Sentencing Reform Act of This law established the U.S. Sentencing Commission and directed it to distribute sentencing principles to guide judicial discretion in punishing criminals. 6 Congress also, at this time, decided to do something more governed about court discretion in leniency. Congress passed legislation that required courts enforce a mandatory minimum sentence for certain types of criminal offenses. An example of this shift is the Armed Career Criminal Act 7 which is part of a law that also contains the Sentencing Reform Act of The Armed Career Criminal act mandates that any felon who holds three prior convictions for a violent felony or a serious drug offense and who is in possession of a firearm 2

4 be convicted to a minimum of fifteen years imprisonment. 9 After the enactment of this statute, troubled by the appearance of the drug crack cocaine, congress also passed the Anti-Drug Abuse Act of The Anti-Drug Abuse Act levies mandatory minimum terms of imprisonment for a criminal violation of federally controlled substances. 10 In the beginning phases of these laws applications congress could have waited some and allowed the U.S. Sentencing Commission to devise appropriate punishments for offenses. Instead, however, congress forged ahead and preempted the Commission by directing that criminal offenders should serve statutorily defined mandatory minimum imprisonment terms upon conviction. The Anti-Drug Abuse Act of 1986 has two exceptions to mandatory minimum sentencing requirements. These exceptions are applied only in very limited circumstances. The first exception occurs when a defendant cooperates with the government, and a motion is filed with the court to depart downward from the crimes statutory minimum sentence. 11 The second involves what is called a safety valve in which a Judge is allowed to avoid application of federal mandated minimum sentences. This exception applies only to sentences imposed for non-violent drug abuse charges in which the offender meets incredibly specific mitigating criteria relating to criminal history, violence, lack of injury to others and leadership. 12 The Armed Career Criminal Act has no exception to authorize a court to impose a term of imprisonment less than the statutory requirement. The principal federal statutes that require mandatory minimum terms of imprisonment are the Armed Career Criminal Act and the Anti-Drug Abuse Act of These are by no means however, the only statutes that relate or regulate mandatory minimum sentence terms. Since 1991, the number of mandatory minimum statutes has doubled within the county. Criminal offenses such as child pornography to identity theft, etc. now routinely carry mandatory 3

5 associated statutory terms. The percentage of offenders convicted of violating a statute with a related mandatory minimum of a ten year sentence attached to the crime has increased. Arguments For and Against Mandatory Minimum Sentences: Against: Statutes imposing mandatory minimum sentences produce arbitrary and severe punishments that undermine public faith in the criminal justice system. Furthermore, it is not clear that mandatory terms of imprisonment reduce crime rates through incapacitation. Mandatory minimum sentences have shifted the potential punishment discretion from judges to prosecutors, thereby not eliminating sentencing disparities in criminal cases of a parallel matter. Prosecutors are under no legal obligation to charge a defendant with violating a law that carries a mandatory minimum sentence. Judges must impose the punishment that the law requires. Also Prosecutors have the ability to engage in plea bargaining with the defendant. In addition, a prosecutor has unreviewable discretion whether to ask the court to reduce a defendant s sentence due to his substantial assistance to the government. It could be asserted, that unchecked prosecutorial discretion is a greater evil than judicial discretion. Critics of mandatory minimum sentencing claim prosecutors, who stand to gain professionally from successful convictions under mandatory minimums, do not have sufficient incentive to responsibly exercise judiciousness when deciding what charges to bring against a defendant. It is not clear that mandatory terms of imprisonment do not clearly reduce crime rates through incapacitation. In many drug operations, if a low level wrongdoer is incarcerated another quickly takes their place. This consequence is known as the replacement effect. The theory is that in removing smaller drug offenders, who can be easily convinced to bargain or 4

6 make an agreement to provide the government with information on larger offenders, that law enforcement can move up the chain of drug operations. Statistically speaking, however, cooperation rates in cases that involve mandatory minimum sentences are comparable to the average in other federal cases. More often, though, it is the defendant closest to the top of the crime pyramid that is able to extract a substantial reduction in charges filed or prison time potential from the prosecution. The outcome is that sentencing reductions are given to serious offenders versus small scale underlings. The practice of giving reduced sentences for defendants who assist the government is deep-rooted in American law, but the quantity driven drug mandatory minimum terms are problematic because they can render low level co-conspirators accountable for the same quantity of drugs as the Kingpin. In drug cases prior criminal history is not a factor in punishment severity, only mandatory minimums factor into the sentencing of the offender. Lastly, mandatory minimum sentences are simply not cost effective. Arrest, prosecution, conviction, and punishment (meaning incarceration) all carry hefty costs to the taxpayer. Certainty of punishment has a greater effect than severity in criminal deterrence. This means that if a one year sentence has the same deterrent effect as a five year sentence, the additional years of incarceration inflict unnecessary pain on the imprisoned offender and also, economically speaking, impose a dead weight loss upon our society. Dead weight loss is an economics term. It is a cost that is charged to society, and occurs when there is a deficiency that results from inefficient allocations of funds. Mandatory minimums, therefore, force our justice system to waste scarce criminal justice resources. For: 5

7 On the other side of the mandatory minimum imprisonment argument are those that defend the use of mandatory minimum prison sentence terms. Mandatory imprisonment terms address two widely acknowledged problems within the criminal justice system: sentencing disparity and disproportionately lenient sentences. The existence of mandatory minimum sentences codified as law reflect a societal preference in which certain crimes demand a specific minimum penalty, thus ensuring that anyone who perpetrates such an offense cannot avoid a just (and uniform) punishment. Penal justifications for discipline of crimes include retribution, deterrence, incapacitation, education and rehabilitation. Mandatory minimums guarantee that sentences are uniform throughout the federal system and ensure that individuals are punished commensurate to their offense by joining the sentence to the law-breaking, not the person. The decision as to what penalty should be imposed upon a category of offenses requires careful contemplation. Legislatures, with democratically elected law and policy makers, are better positioned than politically appointed judges to make these assertions. 13 As elected officials, legislators are tasked by the public to codify into law ethical and practical decisions about how outlawed conduct should be punished. A bench of federal judges may not reflect the mixture of the vast viewpoints that the American public holds as well as an elected congress. Federal mandatory minimum sentences as codified by Congress are a solid attempt to eliminate any punishment inconsistencies that may be present in different zones of the United States. Mandatory minimum sentences also prevent crime. Certain and severe punishment inevitably will have a deterrent effect upon potential criminals and repeat offenders. Locking up offenders also incapacitates them for the term of their imprisonment and in so doing protects the public. It is likely that the drop in crime across all categories of offenses was a result of mandatory minimum sentences that were adopted as law the 1980 s. 6

8 It is a mistake to condemn the cost of imprisoning offenders. Opponents criticize the high cost of housing a large number of prison inmates for long-lasting periods of time. These critics point to other criminal justice programs such as the Public Defender s office, victim rights advocates, rehabilitation and reentry of offenders, etc. that could better use the scarce funds. However, the argument does not consider both sides of the data. Imprisonment reduces the number of future crimes and therefore reduces expenses to the taxpayer and society. Society is entitled to decide how it spends its funds. Efficiency based criticism mistakenly assumes congress will not increase budgets for criminal justice tools, such as prisons. As a law enforcement tool, mandatory minimum sentences are significant. They supply police and prosecutors often compulsory leverage to secure cooperation and testimony of low level offenders against their senior conspirators. 14 Evidence shows mandatory minimum terms, together with guidelines promulgated by the U.S. Sentencing Commission, have produced more cooperation and accomplice testimony in organized crime cases. Finally, the arguments against mandatory minimum sentences are at their core, just a sleight of hand. The principle objection to mandatory minimum sentences is not that they are mandatory, but that they are severe or that they are required for drug offenses. No one would object to a mandatory thirty day sentence for heroin possession or a one year sentence for rape. In fact, many (and probably most) would argue that these sentences are too weak or too short. Critics are concerned less about the mandatory nature of federal sentences than they are about their length and their application in drug cases. Potential reforms: The Justice Safety Valve Act and the Smarter Sentencing Act: 7

9 Both the Justice Safety Valve Act and the Smarter Sentencing Act have the common goal of ameliorating some of the harsh results that mandatory minimum sentencing laws have produced, although both bills differ slightly. The Justice Safety Valve Act contains a safety valve that allows judges to exempt certain offenders from mandatory minimum sentencing terms. This bill allows the judge to sentence as they deem appropriate, by entering a written description of the reasoning for the downward departure from the federal mandatory terms. The Smarter Sentencing Act is limited in function. It applies solely to nonviolent drug crimes in which mandatory minimum sentencing terms apply. Each bill grants greater court discretion for departure to lesser sentences, as judicially deemed appropriate, for mandatory minimum cases. The Justice Safety Valve Act could pose a risk of over correction by allowing judges to avoid imposing federal mandatory minimum sentences for select offenders at their discretion. It risks the return to discrepancy and unduly lenient sentencing, as seen prior to any reforms. The Smarter Sentencing Act addresses what most view as the most troubling aspect of mandatory minimums, which is their capacity to impose arbitrary and unduly severe sentences on relatively low level offenders especially in controlled substance cases. Perhaps, in the long term, the Justice Safety Valve Act might be the preferable policy. For now, however, such a sweeping reform may be too far too fast. The immediate and most urgent problem facing America s criminal justice system is that courts must impose unduly severe mandatory minimum sentencing for small scale drug offenders. The Smarter Sentencing Act focuses on remedying that problem while leaving open for the future deliberation and debate 8

10 the issue of whether there should be mandatory minimum sentencing imposed on violent criminals. The Smarter Sentencing Act takes a smaller step than the Justice Safety Valve Act toward adjustment of federal mandatory minimum sentencing laws. It is promising that the smaller step has the potential to enhance federal sentencing policy while avoiding some risks as mentioned above. Conclusion: Mandatory minimum sentences are the product of good intentions, but good intentions alone do not make good policy. Solid results are also necessary. Congress was accurate to be concerned about reducing sentencing disparity and ensuring that sentences are neither undeservedly lenient nor extremely harsh. Nonetheless, just as law should be tempered with equity so should rigid sentencing rules leave room for adjustment in certain cases - especially cases in which legislatively fixed sentences appear as unjust an unfit in application. No statue can account for every variable of every case scenario. Federal mandatory minimum terms have given rise to punishments (especially small scale drug possession offenses) that are completely out of whack with the intended purpose of the laws. The problem is however, remediable. Granting courts some additional limited sentencing discretion would improve the status quo by eliminating some unjust sentences without obviously undercutting the incapacitative, deterrent and educative benefits of criminal law. The Smart Sentencing Act seeks to mitigate the cliff effect of drawing a seemingly inconsequential line that has a huge effect when crossed, in the context of nonviolent drug offenses. Doing so could ameliorate some extremely harsh sentences that courts have imposed without taking away from the efforts that the government has made over the past four decades to advance public safety. 9

11 ENDNOTES: 1. See Ewing v. California, 538 U.S. 11 (2003) (upholding application of the California three strikes law); Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding mandatory sentence of life imprisonment for a drug offense). 2 The Justice Safety Valve Act of 2013, S.619, 113 th Congress (2013) 3 The Smarter Sentencing Act of 2013, S. 1410, 113 th Congress (2013). 4 See Mistrella v. United States, 488 U.S. 361, 363 (1989). 5 Sentencing Reform Act of 1984, Pub L. N. No , Ch.11, 98 Stat (18 U.S.C (2006)) U.S.C 991 (2006) (establishes the Commission and describes its duties) U.S.C. 924 (2006). 8 Both the Sentencing Reform Act of 1984 and the Armed Career Criminal Act were enacted as part of the Comprehensive Crime Control Act of 1984, Pub. L. No , 98 Stat (1984) U.S.C. 942(e).S 10 Anti-Drug Abuse Act of 1986, Pub. L. No , 100 Stat (1986). 11 Section 3553(e) of Title 18 provides that, (u)pon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant s substantial assistance in the investigation or prosecution of another person who has committed an offense Cong. Rec. 27, 842 (daily ed. Nov. 8, 1993) (Statement of Senator Hatch urging that a safety valve could restore a small degree of discretion to the courts for a small percentage of violent drug cases. ) 18 U.S.C. 3553(f). 13 Prepared Statement of David B. Mulhausen, Senior Policy Analyst, to the U.S. Sentencing Commission 9 (May 27, 2010) ( (M)andatory minimum sentences that establish long incarceration or death sentences for very serious and violent crimes can be justified based solely on the doctrine of just deserts. ) 14 Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences: Hearing Before the Senate Committee on the Judiciary, 113 th Cong. 3 (2013) (Statement of Scott Burns, Executive Director, national District Attorney s Assoc.) ( Mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, move up the chain and prosecute those at higher levels of sophisticated trafficking organizations. ) 10

12 Bibliography: Alschuler, A. W. (1978). Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for "Fixed" and Presumptive" Sentencing. 126 U. Pa. L. Rev., 550, 551. Beck, A. B. (1999). Population Growth in U.S. Prisons, Crime & Justice, 57. Becker, G. S. (1968). Crime and Punishment: An Economic Approach. 76 J. Pol. Econ. 169, Bjerk, D. (2005). Making the Crim Fit the Penalty: The Role of Prosecutorial Discretion Under mandatory Minimum Sentencing. 48 J. Law & Econ., 591, 622. Cassell, E. L. (2010). Mandatory Minimalism. 32 Cardozo L. Rev.. Eric Holder Mandatory Drug Minimums. (2013, 08). Retrieved from popehat: Frankel, M. E. (1972). Lawlessness in Sentencing. 41 U. Cin. L. Rev. 1. Fuchs, E. (2013, April 23). 10 People Who Recieved Outrageous Sentences for Drug Convictions. Retrieved from buisness insider: Jeffery T. Ulmer, M. C. (2007). Prosecutorial Discretion and the Imposition of Mandattory Minimum Sentences. 44 J. Res. Crim & Delinq., 427, 451. John C. geffries, J. &. (1995). The Federalization of Organized Crime: Advantages of Federal Prosecution. 46 Hastings L. J. 1095, Koh, K. S. (1993). The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines. 28 Wake Forest L. Rev., 223. Nagel, I. (1990). Structuring Sentencing Discretion : The New Federal Sentencing Guidelines. 80 J. Crim. L. & Criminology, 883, Nagin, S. N. (2011). Imprisonment and Crime: Can Both Be Reduced? 10 Criminology & Pub. Pol'y 13, Nauman, S. (2013). Brown v. Plata; Renewing the Call to End Mandatory Sentencing. 65 Fla. L. Rev., 855, Paul J. Larkin, J. (2013). Crack Cocaine, CongressionalInaction, andequal Protection. 37 Harv. J.L.& Pub. Pol'y, Reitz, K. R. (1993). Sentencing Reform in the States. 64 U. Colo. L. Rev., 645, 650 n.21. Schulhofer, S. J. (1993). Rethinking Mandatory Minimums. 28 Wake Forest L. Rev., 199,

13 Shinnar, S. S. (1975). the Effects of the Criminal Justice Systemm on the Control of Crime: A Quantitative Approach. 9 Law & Soc'y Rev., 581. U.S. Sentencing, C. (2011). Mandatory Minimum Penalties in the Federal Criminal Justice System