Mandatory Minimums: Time for a Change?

, New York Law Journal

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Alan Vinegrad and Jason Levine
Alan Vinegrad and Jason Levine

Mandatory minimum sentences have, for years, been the subject of complaints from the bench, the defense bar and academics. But this year, these criticisms are taking hold—and all three branches of the federal government are getting into the fray.

Some district court judges are in open rebellion against mandatory minimums and the Sentencing Guidelines that are tied to them. For example, in sentencing a defendant earlier this year for a drug trafficking crime, Judge John Gleeson of the Eastern District of New York rejected the guidelines-recommended range because the guidelines are tied to the quantity-driven mandatory minimums.1 Judge Jack Weinstein of the same district issued a 400-page sentencing memorandum, finding that the five-year statutory minimum for distributing child pornography constituted cruel and unusual punishment under the Eighth Amendment. Remarkably, only a few hours after the Second Circuit reversed Weinstein's sentence and required him to impose at least the five-year mandatory minimum, Weinstein issued a nine-page memorandum forcefully reiterating his view that the mandatory minimum sentence was unjust.2

To be sure, some judges have been railing against mandatory minimums for years. Judge Paul Cassell of the District of Utah lamented that the 55-year mandatory minimum sentence he was forced to impose on a 24-year-old first-time offender convicted of marijuana distribution and gun possession was "unjust, cruel, and irrational."3 Similarly, in sentencing a former FBI informant with a substance abuse problem to a mandatory life sentence for selling crack cocaine, Judge James Spencer of the Eastern District of Virginia said the sentence was "ridiculous" and "a travesty."4

The Supreme Court also recently chimed in, correcting its inconsistent treatment of statutory maximums and minimums by holding that any fact that increases a mandatory minimum sentence is an element of the crime that must be submitted to the jury and proven beyond a reasonable doubt.5

The Executive Branch has been equally bold. In August, Attorney General Eric H. Holder Jr. pronounced that the Justice Department would be "fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes."6 On the same day as his speech, Holder published a memorandum to all federal prosecutors mandating that, for drug-related crimes, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum if (a) the defendant's conduct did not involve violence, minors, death or serious injury; (b) the defendant is not a drug kingpin and does not have ties to a large-scale criminal organization; and (c) the defendant does not have a significant criminal history.

Finally, several bills have been introduced this year in Congress to address sentencing and correctional reform. Two of them would, to varying degrees, curtail mandatory minimums.

It is remarkable where we are now, compared to the 1980s and 1990s, when sentencing reform effectively meant more time for the same crime. The question now is: How far should Congress go to reform the mandatory minimum sentencing regime?

Overview

Some context about mandatory minimums is in order. Mandatory minimum penalties have been around since the founding of the Republic. From the late 18th century through the first half of the 20th century, Congress enacted mandatory minimum penalties to target the most serious crimes—for example, rape, murder, piracy and treason—and to address particular concerns, such as tax fraud during Reconstruction and the sale of alcohol during Prohibition. But they were a seldom-used weapon in Congress' fight against crime.

Beginning in the 1950s, however, Congress changed course, and mandatory minimums have increasingly been a penalty of choice. In 1951, in an effort to combat organized drug trafficking, Congress enacted the first mandatory minimums for drug offenses. Although Congress eliminated these mandatory minimums in 1970 in order to establish "a more realistic, more flexible, and thus more effective system of punishment and deterrence" of drug laws,7 it enacted new mandatory minimums for drug offenses in 1986 in response to the growing crack cocaine epidemic. Congress intended for these new mandatory minimums to target kingpins and major traffickers, but the mandatory minimums applied to drug traffickers generally based solely on the type and quantity of drug. Since then, other federal mandatory minimums have followed and currently there are nearly 200 on the books.

Unintended Consequences

The federal penal system now faces many problems, and the mandatory minimums of the 1980s are a contributing cause. The federal prison system has swelled from 24,000 (in 1980) to 219,000, an 800 percent increase, and is currently operating at 36 percent over-capacity. Half of today's prison population were convicted of drug offenses.8 The number of persons convicted of drug offenses carrying mandatory minimum penalties is notable—of the 20,037 persons convicted in 2012 of a federal offense carrying a mandatory minimum penalty, 15,577, or 78 percent, were convicted of drug offenses.9

As a result of this prison population explosion, the cost of federal prisons has ballooned. The Bureau of Prisons' budget request for fiscal year 2014 is $6.9 billion, accounting for more than 25 percent of the Justice Department's budget.10

Mandatory minimums also have heavily affected minorities. In 2010, for example, 69.8 percent of all offenders convicted of a federal offense carrying a mandatory minimum were either black or Hispanic.11

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