The Sentencing Law and Policy blog cites a recent ruling by a federal court judge in the case of a low-level drug offender — almost certainly black, though the ruling doesn’t say so — that hammered federal prosecutors, the DOJ and Congress for requiring him to hand down mandatory minimum sentences in such cases. The judge said:
This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” — to borrow a phrase from Attorney General Eric H. Holder, Jr. — because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.
There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by
- citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);
- citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and
- withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.
I respectfully urge the Attorney General to implement such a policy. It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair. The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one. Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.
There are several things at work here that illustrate how badly broken our criminal justice system is. First, that this case was tried in federal court at all. Prosecutors do this because federal drug laws carry harsher sentences than state drug laws, and they have total discretion on where to charge someone. And that discretion is used in a highly racist manner. In one case in California they examined 2000 cases in a district where cases involving crack were shifted from state to federal court; out of the 2000 cases, not one of the defendants was white. Not one.
Prosecutorial discretion is also involved in the issue of overcharging. These harsh mandatory minimum laws allow prosecutors to apply enormous pressure on defendants to plead guilty by threatening to charge them with crimes that carry very long sentences. That’s why over 95% of all criminal cases now end in plea deals. And again, this is done in a clearly racist manner; prosecutors consistently charge blacks with more serious crimes than whites even when the relevant facts are nearly identical.
This is not the first judge to speak out against mandatory minimums, which do enormous damage. I hope he’s not the last.
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michaeld
April 16, 2012 at 11:42 am (UTC -4) Link to this comment
And unfortunately our dumb as rocks canadian government decided to follow suit and bring in mandatory minimums.
gingerbaker
April 16, 2012 at 11:45 am (UTC -4) Link to this comment
I agree with all your points, Ed.
But, on the other hand, Congress, not the judiciary makes the laws, including the sentences and the resulting sense of justice. I wonder if it even proper for a judge to recommend, either to Congress or in this case to the AG, a scheme to reinterpret how a mandatory minimum law should be adjudicated. This seems to stink of an end run around a (thoroughly) questionable law. Congress’s point was to make certain sentences mandatory; here the judge is recommending the opposite.
Imagine if a Congressman though it was proper for him to advise judges on how their interpretations of the nuances of precedents should be shaded depending on the political party of the defendant. Or give recommendations to judges regarding the discretion that they DO have in sentencing, to follow the Congressman’s schema that Muslim men receive longer sentences.
If mandatory minimum laws suck, it is the laws which should be changed, isn’t it?
kraut
April 16, 2012 at 11:55 am (UTC -4) Link to this comment
“And unfortunately our dumb as rocks canadian government decided to follow suit and bring in mandatory minimums.”
Which will likely be thrown out by the supreme court after the first challenge(hopefully).
One thing I really learned to hate: using the justice system to further your parties ideology.
Justice is to me finding practical solutions to problems. Needle exchanges work, but our conservatives do not support them because of religious/ideological reasons. The same goes for the recent “reforms”.
christophepetroni
April 16, 2012 at 11:57 am (UTC -4) Link to this comment
Judges call on the legislature to change the law all the time. There’s nothing improper in doing so.
I didn’t get the impression that the judge refused to apply the law. He just didn’t like that he had to apply it.
D. C. Sessions
April 16, 2012 at 12:01 pm (UTC -4) Link to this comment
Turning over sentencing to courts will introduce the kind of regulatory uncertainty that is ruining our economy. One of our most important industries (incarceration) would suffer from an unpredictable revenue stream, with dire consequences.
ischemgeek
April 16, 2012 at 12:12 pm (UTC -4) Link to this comment
@Michaeld: All’s not completely lost here, yet: A judge found at least some of them to be unconstitutional. Though, I admit, it’s being appealed.
I just hope the mandatory drug minimums are soon to follow.
anandine
April 16, 2012 at 12:12 pm (UTC -4) Link to this comment
Kraut said, Justice is to me finding practical solutions to problems.
But our judiciary system is not designed to find justice. It is designed to pick a winner between two adversaries in a judicial event.
Bronze Dog
April 16, 2012 at 12:17 pm (UTC -4) Link to this comment
I can imagine a wingnut making that argument without sarcasm. It scares me.
d cwilson
April 16, 2012 at 12:18 pm (UTC -4) Link to this comment
@ D. C. Sessions:
True enough. Not surprisingly, one of the biggest lobbyists for harsher sentencing laws is the private prison industry, and industry should be very much illegal.
MartinM
April 16, 2012 at 12:24 pm (UTC -4) Link to this comment
I seem to recall reading a few years ago about an attempt to relax drug laws meeting with strong opposition from the prison guards’ union, which argued that not throwing people in jail for basically no reason would cost them jobs.
slc1
April 16, 2012 at 12:42 pm (UTC -4) Link to this comment
These mandatory sentencing laws were enacted in response to a perceived problem that soft hearted judges were letting dangerous criminals out on the street to terrorize innocent citizens. Of course, the only evidence for this was a few notorious cases; no evidence was provided to show that this was actually happening on a widespread basis.
This is all part of the approach to criminal law in the US that was best described by Mr. Brayton’s fellow Michigander, former Michigan Supreme Court Justice John Voelker, which he termed the mad dog theory of criminal justice, “lock ‘em up like a mad dog and keep ‘em locked up”.
slc1
April 16, 2012 at 12:45 pm (UTC -4) Link to this comment
Re Martin M @ #10
In many states, the prison guard unions are the most powerful unions in the state. This is particularly true in California where the main growth industry is prisons.
baal
April 16, 2012 at 1:38 pm (UTC -4) Link to this comment
The conservative approach (small c) would be to leave judges more room to develop a common law (like they did for most of the history of the US and elsewhere). Judges are uniquely positioned to adjudicate cases based on the facts before them and the precedent of prior decision. This is the definition of a judiciary.
The deviance is the legislatures ratcheting up jail terms, creating new classes of crime or adding harsh existing penalties to what were considered lesser crimes not meriting those penalties in the past.
Having judicial elections has only hastened the bizarre over criminalization of the US society.
marcus
April 16, 2012 at 4:39 pm (UTC -4) Link to this comment
Why does Holder hate black people?