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.