Mandatory Minimums and Sentencing Reform

Summary

Mandatory minimum sentencing laws force a judge to hand down a minimum prison sentence based on the charges a prosecutor brings against a defendant which result in a conviction -- usually a guilty plea. Many states have such laws. These laws take away from a judge the traditional and proper authority to account for the actual circumstances of the crime and the characteristics of the individual defendant when imposing a sentence.

The Federal drug laws, substantially revised by the Anti-Drug Abuse Act of 1986, carry very long maximum sentences -- up to 40 years for some quantities, and up to life imprisonment for somewhat larger quantities. Every significant Federal drug offender could get a very long sentence. The Anti-Drug Abuse Act of 1986 also required a minimum sentence of 5 years for drug offenses that involved 5 grams of crack, 500 grams of cocaine, 1 kilogram of heroin, 40 grams of a substance with a detectable amount of fentanyl, 5 grams of methamphetamine, 100 kilograms or 100 plants of marijuana, and other drugs (21 U.S.C. 841(b)(1)(B), P.L. 99-570). That law also required a minimum sentence of 10 years for drug offenses that involved 50 grams of crack, 5 kilograms of cocaine, 1 kilogram of heroin, 400 grams of a substance with a detectable amount of fentanyl, 50 grams of methamphetamine, 1000 kilograms or 1000 plants of marijuana, and other drugs.

In essence, Congress abandoned the idea that Federal judges -- appointed by the President and confirmed by the U.S. Senate -- have the wisdom and training to identify the most serious drug offenders and punish them appropriately. That authority had been limited by the Sentencing Reform Act of 1984 which was designed to eliminate the previous widespread disparity in sentencing across the country due to wholly unguided discretion. The Sentencing Reform Act authorized the development of sentencing guidelines for federal judges.  For over two decades beginning in 1987, the sentencing guidelines had a near-mandatory quality, and provided for sentences for drug quantities greater than the minimum trigger quantities in the drug statute (21 U.S.C. 841(b)(1)), and provided for sentences longer than the mandatory minimum sentence for that drug. The mandatory minimum drug laws and the sentencing guidelines have contributed to the dramatic growth of the federal prison system which has become the largest prison system in the United States.

Mandatory sentences have the effect of transferring sentencing power from judges to prosecutors. Prosecutors frequently threaten to bring charges carrying long mandatory minimum sentences and longer guidelines sentences. These threats are effective in scaring a defendant to plead guilty in exchange for a reduced sentence and  to give up every factual and legal basis for a defense. As a result, every year at least 95 percent of federal drug defendants plead guilty.  CJPF is pleased to have worked with the team that produced the movie, Incarcerating US, to reform mandatory minimums, as well as allies such as FAMM - Families Against Mandatory Minimums.

As Assistant Counsel to the House Judiciary Committee from 1979 to 1989, CJPF Executive Director Eric E. Sterling helped the Members of Congress he served to write the federal mandatory minimum sentences for drug (and gun) crimes. He and CJPF now oppose mandatory minimum sentences because they are antithetical to achieving justice in individual cases.

Mandatory minimum sentencing laws have been misused by the Department of Justice because they are very frequently directed against low-level offenders, contrary to the intent of Congress. Combined with sentencing guidelines, most of the sentences that have been imposed by federal judges in the past 30 years have been unjustly long for the conduct and culpability of the defendant. The justice system has been distorted by removing from judges the power to decide the proper sentence in their cases. The sentencing process now involves the rote consideration of a matrix of impersonal data dominated by often irrelevant drug quantities and other circumstances that can be shaped by the prosecutor's charging choices. The elimination of judicial discretion in sentencing has allowed prosecutors to acquire excessive power to impose sentences. Defendants who plan to assert a legal defense (guaranteed by the U.S. Constitution) are threatened by prosecutors that they will inform the court that the defendants are failing to "take responsibility." A finding of failing to take responsibility results in longer sentences. On the other hand, prosecutors negotiate more generously with defendants who can reveal information about other defendants or the location of the hidden proceeds of the crimes. Higher-level offenders with greater knowledge of the details of a criminal organization have the power to manipulate the system by trading what they know for a shorter sentence in contrast to lower-level offenders who have no such knowledge.

Introduction

Mandatory minimum sentencing laws are statutes that require judges to sentence offenders to a specified minimum prison term for a specific crime. For example, a minimum 5-year sentence (up to 40 years) must be imposed for distribution of 5 grams of methamphetamine, only a 5-day supply for a heavy user (see a complete list of federal mandatory minimums here). Mandatory minimums for drug offenses are generally triggered by the weight of the drugs. The weights of every transaction carried out by a defendant, or conspiracy, are totaled. In addition, weights that are boasted about or admitted to are counted as well as weights of drugs actually purchased or seized. The report of a witness or informant, even if not under oath, and easily exaggerated, of some number of transactions, or the size of a sale or shipment, gets counted for determining the weight that can trigger a mandatory minimum or high-level sentencing guideline penalty.

Unlike the complementary system of sentencing guidelines, which now provide a suggested sentence range after a computation of circumstances by the judge (and from which the judge can further deviate or depart from in response to all the circumstances), mandatory minimum laws allow no room for judicial discretion. As a result, each year tens of thousands of low-level state and federal defendants face harsh punishments that are often denounced by the judges forced to impose them at the time of sentencing.

A BLUNT tool of the drug war

Congress and the states have implemented mandatory minimums for a variety of offenses, but they are used especially frequently in drug cases. Federal drug cases usually involve more than one defendant and are often charged as conspiracies. In conspiracies, drug-related mandatory minimum punishments are based on the total weight of drugs of all the transactions all the persons who are part of the conspiracy are alleged to have carried out, and not on the individual defendant’s actual level of involvement. Thus, a single-trip drug courier faces the same penalty as the ringleader who arranged all the shipments of the organization. Not only are the terms of imprisonment much too high, but Congress also set the drug weight thresholds too low to identify true high-level offenders that should be the target of federal investigation. For methamphetamine, offenders face a minimum five-year sentence for distribution of five grams, the weight of five Sweet-n-Low(R)  packets, when a heavy user might go through a gram in a day. A genuine high-level trafficker arranges multiple shipments of hundreds of kilograms.

In addition, all the non-drug ingedients of a drug shipment are counted in the weight. 500 grams of 50% pure cocaine is counted as 500 grams of cocaine, not 250 grams. A dose of the psychedelic drug LSD might be 50 millionths of a gram -- such a tiny amount, it needs to placed on some kind of carrier such as a small piece of paper which, as light as it is is, weighs much more.  A sheet of paper weighs 4 or 5 grams. It could be divided into 100 doses of 50 micrograms each. The distribution of one gram of LSD carries a minimum sentence of 5 years. Therefore the possession with intent to distribute 100 doses of 50 micograms each on a sheet of paper triggers the mandatory minimum even though the total weight of the LSD is .005 grams.

Although Congress passed mandatory minimum laws in 1986 with the directive to the Justice Department to focus on "major drug traffickers," that has not been the case. In its most recent comprehensive study, the U.S. Sentencing Commission reported in 2011 that “high-level” suppliers or importers made up only 10.9% of federal defendants, wholesalers of any amount -- 21.2%, street-level dealers -- 17.2%, and couriers -- 23% sentenced for drug offenses. Only 2.2% were managers or supervisors. The rest of federal drug defendants were other low-level offenders, even marginally-involved friends and family of the accused.

A Waste of Money

Excessively long sentences are not only unjust but extremely expensive and wasteful. In FY 2015, the average cost of incarceration of a federal prisoner was just under $32,000. The federal prison budget has risen from less than $3.7 billion in 2000 and less than $5 billion in 2006 to  about $7 billion in 2017. This exceeds the $5.5 billion allocated by the federal government to care for all the homeless people in the U.S. (It was estimated that on a January night in 2014 there were more than half a million homeless people in America's shelters and streets.)

PROSPECTS FOR Reform

Mandatory minimum sentences have persisted for decades despite opposition by citizens and judges. But over the last few years, South Carolina and Rhode Island have eliminated at least some drug mandatory minimums completely, presenting a model for federal reform. CJPF has been educating the public about the need for reform for decades. In the summer of 2015, Criminal Justice Policy Foundation Executive Director Eric E. Sterling called on President Obama to address mandatory minimums during his remaining months in office. While hopes were high for reform to pass in the 114th Congress, President Obama's advocacy was inadequate and no legislation was enacted before Congress adjourned in 2016.

On October 4, 2017, Senator Chuck Grassley, the Chair of the Senate Judiciary Committee, with 10 other Senators introduced a new sentencing reform bill, S.1917.  Attorney General Jefferson B. Sessions, a career prosecutor before his election to the Senate, has been a prominent defender of mandatory minimum sentences. At the Department of Justice, he has brought into senior leadership others who share his view. Jared Kushner, son-in-law to President Donald Trump, has been meeting with Senators about sentencing reform. The position of the Administration at the end of 2017 on the new sentencing reform legislation has not been announced.

CJPF has been speaking out against mandatory minimums since our inception in 1989. 

Testimony Regarding An Act to Amend the Controlled Drugs and Substance Act, by Eric E. Sterling. Eric. E. Sterling was called to testify before the Standing Committee on Legal and Constitutional Affairs of the Canadian Senate. This testimony on mandatory minimums, drug treatment courts, cannabis policy, and public perception of crime was delivered remotely on October 28, 2009.

The Failed Politics of Sentencing Reform: Seriously Rethinking Federal Sentencing Policy, by Eric E. Sterling. This brief calling for an end to mandatory minimum sentences was presented at the United States Capitol on June 24, 2009.

Letters From Professors of Criminology, Sociology, Public Policy, and Law to the Leadership of the Senate and House Committees on the Judiciary. This petition called on the leaders of the Congressional Committees on the Judiciary to repeal the mandatory minimum laws imposed by the Anti-Drug Abuse Act of 1986. Signed by Eric. E. Sterling, 2006.

Undo This Legacy of Len Bias's Death, by Eric E. Sterling. This op-ed piece was printed in the Washington Post, the Sacramento Bee, Hartford Courant, Juneau Empire and The Spokesman Review. In this piece Eric E. Sterling calls for the repeal of mandatory minimums passed in response to Bias's death. June 17, 2006. 

Justice Roundtable Asks Congress to Address the Disparity in Crack and Powder Cocaine Mandatory Minimums. Eric E. Sterling spoke at the Rayburn House Office Building at the U.S. House of Representatives on behalf of the Justice Roundtable, a coalition of national criminal justice reform organizations, calling for an end to the disparate mandatory minimum sentences assigned to crack and powder cocaine. February 16, 2006.

Mistake with Drug Sentencing Guidelines Need to be Resolved, by Eric E. Sterling. The Greensboro, North Carolina News Record published this op-ed about the problems of mandatory minimum sentencing on the front page of its opinion section. April 3, 2005.

Sentencing is Perverse in the War on Drugs, by Eric. E. Sterling. This op-ed condemning the unequal application of justice in the War on Drugs appeared in the Chicago Sun-Times, April 30, 2000.

The Sentencing Boomerang: Drug Prohibition Politics and Reform, by Eric E. Sterling. This article in the Villanova University Law Review argues for an end to mandatory minimum sentences. January 1, 1999.