In his August 2003 speech at the American Bar Association (ABA) Annual Meeting, U.S. Supreme Court Justice Anthony M. Kennedy urged the association to speak out against mandatory minimums. His request was timely—Congress had just added new mandatory minimums to the criminal code, and others were in the works. Many observers warned that the federal sentencing guidelines soon might be little more than mandatory minimums, replete with the terrible inequities and disparities that characterize them.
The ABA first announced its opposition to mandatory sentencing in 1968. Standard 18-3.21(b) of the Standards for Criminal Justice on Sentencing Alternatives and Procedures unequivocally states, "A legislature should not prescribe a minimum term of confinement for any offense." Standard 18-3.21 is one of many announcing the ABA's commitment to guided judicial discretion, tailored sentencing, proportionate sanctions, individualized punishment, and consideration of aggravating and mitigating factors. By its very nature, mandatory minimum sentencing violates the core values expressed by these standards.
Federal Sentencing: Parallel and Incompatible Systems
In the mid-1980s, Congress began establishing the groundwork for a parallel sentencing system of guided judicial discretion. The U.S. Sentencing Guidelines were intended to replace unlimited and unreviewable judicial discretion with guided discretion, thereby also reducing unwarranted sentencing disparities, ensuring uniformity, and correcting leniency. For example, the sentencing guidelines for drug offenses employ a calibrated if rather rigid approach to sentencing, with base offense levels tied to drug quantity. Sentences are increased and decreased based on aggravating and mitigating factors, such as the defendant's role and criminal history and whether or not a weapon was used. Under the sentencing guidelines, discretion is guided, not eliminated. The system permits departures from the guidelines in certain situations, conceding that no sentencing system can account for every relevant consideration. This holistic approach accounts for the totality of circumstances-including even acquitted conduct-in the sentence calculation.
Mandatory minimums, on the other hand, take a charge-centered approach to the task. Conviction for a certain charged crime will result in a predetermined and, for the most part, inescapable sentence. Mandatory minimums were designed to deter would-be criminals and incapacitate violators; they were also intended to promote uniform punishment for similar offenders. Perhaps most importantly, policymakers hoped the threat of stiff and certain punishment would elicit cooperation with the government in investigating and prosecuting crimes.
The most recent federal experiment with mandatory minimum sentencing began in the mid-1980s with the enactment of laws targeting drug and firearms offenses. For example, Congress enacted the Drug Abuse Act of 1986 in response to criticism of indeterminate sentencing and to concerns about the perceived link between lenient penalties for drug offenders and increases in violent crime and drug abuse. Under the law, drug kingpins receive sentences of at least ten years for a first offense and twenty years for a second. Mid-level dealers and managers face five and ten years for first and second offenses, respectively. In 1988 Congress extended mandatory minimums to reach conspirators as well as principals, thereby ensuring that minimum penalties would apply with equal force to peripheral players found guilty of conspiracy.
Mandatory minimums trump the guidelines. Mandatory minimums substitute for sentencing guideline punishments whenever triggered, preventing any modification based on mitigating factors, a crucial element of judicial discretion. Although motivated by many of the same concerns, the two systems are, in the words of the Sentencing Commission, "structurally and functionally at odds." U.S. SENTENCING COMMISSION, MANDATORY MINIMUMS FOR PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (Aug. 1991).
Mandatory Minimums and Culpability
Mandatory minimum sentences are the sledgehammers of sentencing. Intended to punish harshly only the most serious offenders, they also reach the least culpable. This outcome offends the ABA Standards, which direct, "Sentencing courts should be permitted to take into account facts and circumstances concerning the offense or the offender that constitute aggravating or mitigating factors." Standard 18-2.6(a)(i). The result also deviates from the original intent of Congress to punish those most responsible for drug trafficking most severely. For example, when Congress established the ten- and five-year mandatory minimum sentences for drug offenses, the penalties were intended to apply to major drug manufacturers or distributors, with the triggering quantities indicating that the defendant operated on a large scale.
We now know that the type and quantity of drugs are poor proxies for culpability. Because they alone engage the trigger, very different offenders are equally subject to identical mandatory minimums. For example, 18 U.S.C. section 841 prohibits possession with intent to distribute a quantity of drugs and assigns mandatory minimums based on drug type and quantity. A finding of possession with intent to distribute five kilos of powder cocaine therefore sentences the low-level drug courier delivering that quantity exactly as it would the kingpin who directs the entire operation. In its purest form, the mandatory minimum means that while the kingpin's sentence may be somewhat increased for his role in the offense, the courier's sentence cannot be reduced below 120 months. In its 1991 study of mandatory minimums, the Sentencing Commission labeled the exaggerated role of drug quantity the "tariff effect" and criticized it for blocking traditional sentencing factors from consideration.
The injustice of relying on amount is exacerbated because the triggering quantities themselves are overstated. Nowhere is this more apparent than in the penalties for crack cocaine. The low thresholds (five grams triggers a five-year minimum and fifty grams, ten years) and long reach of mandatory minimums encourage prosecutors to pick off the small fry. According to the Sentencing Commission, over 25 percent of all crack prosecutions involved fewer than twenty-five grams, and those defendants received an average sentence of more than five years. Only 2.7 percent of powder cocaine defendants were sentenced for offenses involving less than twenty-five grams, and they served average sentences of just over one year. U.S. SENTENCING COMMISSION, COCAINE AND FEDERAL SENTENCING POLICY VI (May 2002). Five-year sentences for such small quantities are clearly inappropriate, particularly because such small quantities do not involve the kingpins that Congress intended to target.
Mandatory Minimums and Guideline Sentences
The sentencing guidelines and mandatory minimums are barely reconcilable but inextricably linked. Because mandatory sentencing sets a high bar, all drug sentences are very, very high. In the case of crack cocaine, guideline sentencing is anchored by the mandatory five- and ten-year minimums. Penalties increase above these as quantity increases. It is not difficult to find crack cocaine defendants subject to quantity-driven sentences in excess of twenty years. Sentences this high can be somewhat mitigated if defendants played a minimal role in the offense and accept responsibility for it, but such lengthy sentences often prompt defendants to plead guilty in hope of reducing charges or gaining consideration at sentencing. It is not hard to imagine even factually innocent defendants pleading guilty.
The unsuitability of mandatory minimums for sentencing is highlighted by anomalies like the "cliff effect." Stanley Sporkin, now retired from the D.C. district court, experienced this in a 1991 case involving a defendant accused of having dealt 5.309 grams of crack (minimum five-year sentence for five grams). Well aware of the five-gram implications, Judge Sporkin insisted that the government weigh the drug in his courtroom, and after some resistance it did. The crack weighed only 4.91 grams-well under the five-gram trigger. Judge Sporkin sentenced the defendant to less than the mandatory minimum. Had the crack weighed a mere nine-hundredths of a gram more, his hands would have been tied.
Defendants who fall below the mandatory minimum "cliff" can benefit from adjustments built into the sentencing guidelines for mitigating roles in the offense (anywhere from two to four levels) and for accepting responsibility (one to three levels). They also may receive a departure from the guideline sentence in rare situations. Defendants who trigger and may not otherwise avoid the mandatory minimum penalty, however, may not have their sentences reduced. That such extremes should turn on minute quantities of drugs is simply wrong.
The Discretion Shell Game
In a 2002 article for this magazine, Judge Nancy Gertner wrote about the "hydraulic" effect of limits on judicial discretion: when judges cannot exercise discretion, prosecutors' power to do so increases. Federal Sentencing Guidelines: A View from the Bench, HUMAN RIGHTS (Winter 2002). Mandatory minimums limit judicial ability to sentence below the floor and magnify the impact of the government's charging decisions. If the government chooses to charge under a mandatory minimum statute, the conviction operates like strict liability. But the mandatory minimum can be mitigated by the prosecutor's decision not to charge. For those cases that never go to trial-and in the federal system more than 96 percent of defendants plead guilty-a prosecutor's election to ignore the statute carrying the mandatory minimum for a lesser charge rules. The front-end disparity belongs to the government, and its discretion is unreviewable. The traditional power of prosecutors to charge thus is transformed into power to sentence. In untrained hands, it promises tremendous injustice.
Attorney General John Ashcroft recently ordered prosecutors to charge the most readily provable offense, including any statutory enhancements. "The most serious . . . offenses are those that generate the most substantial sentence under the sentencing guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence." While some predict that the order will generate more trials and longer sentences, others, including some prosecutors themselves, were swift to indicate that little would change. This is because prosecutors are not required to charge the most serious, readily provable offense "if the prosecutor has a good faith doubt, for legal or evidentiary reasons, as to the Government's ability readily to prove a charge at trial."
The Great Escape: Substantial Assistance to the Government
The government almost unilaterally controls the first of only two ways a defendant can escape a mandatory minimum sentence: the substantial assistance departure. In 2001 approximately 26 percent of all defendants sentenced for drug trafficking offenses received substantial assistance departures for the defendant's cooperation in other prosecutions. Nearly one half of all departures from guideline sentences are granted for cooperation. All departure decisions-other than a defendant's decision to inform and the judge's determination of how much to depart-are made by the prosecutor. The government chooses whether to accept and use the information, whether the information was useful, and whether to tell the court that the information was of such substantial assistance that the defendant deserves a break.
Combined with the power to choose the charge, control of substantial assistance departures significantly undermines judges' abilities to independently consider the facts of a case. The result of prosecutorial "under the radar" discretion is that similarly suited defendants can receive different treatment depending upon which U.S. Attorney they draw. Judicial power also can produce disparate outcomes, but judges' actions are reviewable. Prosecutorial charging decisions are unavailable for review.
The mandatory minimum regime places enormous power in the hands of the government and blurs the functional definitions of players whose roles should balance and check one another. It defeats the goals of sentencing uniformity and proportionality because deals are cut off the record. It also breeds excess and deception. Unseemly races to U.S. Attorneys' offices occur to be first with "substantial assistance." The allure of a reduced sentence undoubtedly drives some defendants to lie about the role of others.
The Other Way Out
The second provision for escaping a mandatory minimum grew from increasing congressional concern about the inherent inequities of mandatory minimum drug sentences. Alarmed that sentences designed to apply to kingpins condemned many of the least culpable to harsh prison terms, Congress created the "safety valve" provision to the Violent Crime Control and Law Enforcement Act of 1994. The provision provides a narrow opportunity for some defendants to escape the severe consequences of mandatory minimums. Unlike the much-maligned departures, the application of the safety valve is not a function of judicial discretion. If the defendant meets five statutory criteria (spelled out below), the judge must impose a sentence without regard to the mandatory minimum and need not depend on the permission of the prosecutor to act. If a defendant qualifies for safety valve relief, the judge may make adjustments recognized in the guidelines-including a two-level safety valve downward adjustment for qualifying defendants-and even depart from the guideline sentence to reach the appropriate sentence. The safety valve permits the judge to perform the traditional sentencing role.
Defendants seeking to employ the safety valve bear the burden of proving that they qualify for the safety valve: that they have little or no criminal history (as defined by the sentencing guidelines); did not use or threaten violence or possess a weapon in connection with the offense; and did not lead, manage, or supervise others or engage in a continuing criminal enterprise. The offense must not have resulted in serious injury or death. Finally, the defendant must have provided, no later than sentencing, truthful and complete information to the government concerning the offense or related offenses that were part of the same course of conduct or common scheme or plan. In contrast to the substantial assistance departure, the information need not prove useful to the government to meet the safety valve test.
Although the safety valve was used during 2001 in almost 22 percent of drug cases subject to mandatory minimums, it did not benefit all low-level defendants. In particular, it institutionalized disparities inherent in criminal history scoring that result from widely divergent sentencing practices in state courts. Moreover, by assigning criminal history points to convictions for relatively low-level offenses, such as bouncing checks and driving with a suspended license, the guideline calculation can eliminate defendants who otherwise should qualify for relief. The criminal history requirement also may eliminate minority defendants whose convictions might have been effected by arrest resulting from racial profiling.
Although imperfect, the safety valve nevertheless has lowered sentences for many defendants. It ameliorates, but does not eliminate, the problems caused by mandatory minimums. When it is used, it underscores how unjust mandatory minimums are and how well a system of guided judicial discretion can work when it is free to do so.
Justice Kennedy spoke movingly to the ABA about the enormous racial disparities in the prison population. Mandatory minimum sentencing guarantees inequalities, including racial disparity. And yet today, some in Congress are seeking to add more mandatory penalties and further limit judicial discretion. David Cole, honored in this issue, believes we accept these outcomes in part because minorities bear the burden of severe, but facially neutral, sentencing laws and practices. In the federal system, Congress repeatedly has resisted the efforts of the Sentencing Commission to correct even the glaringly obvious racial disparities of crack cocaine sentencing.
As the ABA considers mandatory minimums once again, I am confident that it will reaffirm the commitment made thirty years ago to oppose mandatory sentencing. Sentencing must reflect the values expressed in our sentencing standards: guided judicial discretion, tailored sentencing, proportionate sanctions, individualized punishment, consideration of aggravating and mitigating factors, and sentences that, in the words of Standard 18-6.1, are "no more severe than necessary."