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October 01, 2011

ABA Urges Committee to Reject Amendments to Add More Mandatory Minimums to Federal Law

The ABA urged the Senate Judiciary Committee last month not to attach amendments to a data security bill that would add mandatory minimum sentences for certain crimes under the measure.

The association specifically opposed an amendment offered by Sen. Charles E. Grassley (R-Iowa) to S. 1151 that would create a mandatory minimum sentence of three years for offenders who intentionally cause or attempt to cause damage to critical infrastructure computers, which store vital databases concerning national security, health, electric power, safety, banking, water supply, transportation or telecommunications.

The committee adopted the amendment by an 11-7 vote before approving the bill by a 10-8 vote on Sept. 22.

Emphasizing that the ABA recognizes the need to protect the nation’s critical computer-based infrastructure, ABA Governmental Affairs Director Thomas M. Susman wrote to the committee Sept. 14 that the association believes, however, that those who willfully damage critical infrastructure computers deserve to be punished to a degree commensurate with the severity of their crime and personal culpability.

“Mandatory minimum sentencing laws are blunt, inefficient tools for addressing criminal conduct,” Susman wrote. He added that “existing evidence does not support any significant public safety benefit resulting from increasing the severity of sentences by imposing longer prison terms.”

Rather than minimizing sentencing disparities among similarly situated defendants, as proponents claim, mandatory minimums are more likely to distort the process assessing an individual’s culpability by placing too much emphasis on a single factor, such as weight in drug cases or loss in fraud cases, Susman said. “In too many cases, sentencing uniformity is attained at the cost of ignoring more important factors that might dictate disparity,” he added.

He pointed out that mandatory minimum laws have caused social and economic harms that include propelling the five-fold increase in the federal prison population since the mid-1980’s. Such laws also have contributed, he said, to the racial disparities that plague federal sentencing and corrections by placing the decision whether to charge criminal conduct under a statute in the hands of the government. Prosecutors control which cooperating defendants are recommended for a waiver of the mandatory minimums for “substantial assistance,” and African Americans historically have received a lower rate of such substantial assistance motions from the government.

Mandatory minimums sentences also tend to over-punish and over-incarcerate, resulting in too many first-time non-violent offenders receiving prison terms in excess of 20 years. Federal prisons are operating at 137 percent of rated capacity, putting guards, prison personnel, and prisoners at real and imminent risk.

Susman also pointed out that opposition to mandatory minimum sentencing laws is growing with the realization that the laws remove all discretion from judges who are the most intimately familiar with the facts of a case and who are well-positioned to know which defendants need to be in prison.


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