The Debate Over Mandatory Minimums

November 2001
The Washington Lawyer
By Stephen Murdoch

Fifteen years have passed since Congress legislated mandatory minimum sentencing to combat drug crimes. Some argue it has done more harm than good.

Thirty years ago, in June 1971, President Richard Nixon declared that the United States was launching a “war on drugs,” and he promised that federal law enforcement agencies would “mount a frontal attack on our number one public enemy.” In the decades that followed, the demand for tough law enforcement became a staple of American political rhetoric, and mandatory minimum sentencing laws came to be viewed as a powerful weapon in the nation’s drug war.

By 1983, 49 state governments had passed mandatory sentencing laws, and in 1986 Congress passed the Anti-Drug Abuse Act, which established 5- and 10-year mandatory sentences for drug distribution and importation. Importantly, these sentences were determined by the weight of any “mixture or substance” containing a “detectable amount” of prohibited drugs. Thus, a defendant who was arrested with marijuana brownies would be charged on the basis of the weight of the brownies, not on the quantity of the drug.

Two years later, in the Omnibus Anti-Drug Abuse Act of 1988, Congress deemed that all conspirators in a crime should be penalized for drug distribution, importation, or exportation, regardless of their role. Therefore, even those on the periphery of a drug distribution ring—someone acting as a lookout, say—would become liable for the entire drug amount seized in the drug ring. Congress also created a mandatory minimum of five years for simple possession of more than five grams of crack and doubled the existing 10-year mandatory minimum for an offender convicted of engaging in a “continuing criminal enterprise,” which now carries a minimum 20-year sentence.

Proponents of the antidrug legislation argued that stiff mandatory minimum provisions were essential because drug traffickers deserved lengthy sentences. They felt that too many dealers, distributors, and importers were being returned to the streets after apprehension and conviction owing to the leniency of some judges. By denying all judges the discretion to impose light sentences for what Congress deemed a serious crime, proponents argued, society would be provided with an ironclad guarantee that such offenders would be given the severe punishment they deserved.

Supporters of mandatory sentencing legislation also saw other benefits. First, they believed that harsh penalties would act as a deterrent, and that fewer people would be inclined to risk involvement with drugs. Second, those convicted of drug trafficking would be incapable of committing further crimes because they would remain in prison for much longer periods of time. Third, in order to avoid extremely long prison sentences, those arrested would be more likely to cooperate with law enforcement, enhancing the ability of the government to put drug gangs and drug cartels out of business. Fourth, unfair disparities in sentencing would be eliminated: people who had committed the same crime would receive at least the same sentencing floor, the mandatory minimum.

At the time, federal legislators viewed these arguments as persuasive, and both the Anti-Drug Abuse Act of 1986 and the Omnibus Anti-Drug Abuse Act of 1988 passed Congress by overwhelming majorities in both the House and Senate.

Fifteen years have passed since the federal government mandated the employment of mandatory minimum sentences for a wide range of drug crimes. In that time mandatory minimum sentencing has become an intensely controversial topic. Proponents maintain that mandatory sentences have proven to be a fair and effective law enforcement tool, whereas critics allege mandatory sentences constitute a draconian policy that has done more harm than good.

In an attempt to assess the impact mandatory sentencing laws have had on our criminal justice system, The Washington Lawyer sought out the views of judges, defense lawyers, and prosecutors who have firsthand experience working on the front lines. What follows is their reflections based on their own personal experience.

Judicial Discretion It is no secret that mandatory minimum sentencing has been extremely unpopular among criminal court judges who sit on the federal bench. Many have been unusually outspoken in their opposition to mandatory minimums. Judge Joyce Hens Green of the U.S. District Court for the District of Columbia summed up the predominant feeling of her colleagues in her 1999 D.C. Bar “Legends in the Law” interview by saying, “As judges we talk about this incessantly. As a consequence of the mandatory sentences, we know that justice is not always done….[Y]ou cannot dispense equal justice by playing a numbers game. Judgment and discretion and common sense are essential.”

The loss of judicial discretion in sentencing has been a major sore point for judges who believe that it is vital to the pursuit of justice. “We need to deal with the drug problem in a much more discretionary, compassionate way. We need treatment, not just punishment and imprisonment,” says Judge Stanley Sporkin, who sat on the U.S. District Court for the District of Columbia for 14 years prior to his recent retirement.

In making sentencing decisions, says Sporkin, a distinction must be made between those people who pose a direct threat to society and those who do not, between violent offenders and nonviolent offenders. He notes that most of the defendants charged with crimes that involve mandatory sentences are nonviolent individuals who would be better served by treatment and/or work release programs.

“If I had a case where a defendant used a gun or committed a serious act of violence,” says Sporkin, “those people received stiff sentences. I felt no compassion for those people. But if I had a defendant who was an addict and was engaged in the drug trade so that he could feed his habit, yes, I was concerned about that person. I did feel some compassion. He wasn’t a violent offender. But with the mandatory minimums there’s no proportionality in sentencing.”

The loss of judicial discretion, Sporkin believes, has resulted in the incarceration of “people who are not a threat to society for an ungodly number of years.” Reliance on lengthy mandatory minimums, he says, has meant the pursuit of an “unconscionable” policy in which thousands of young lives are condemned to ruination through imprisonment rather than reclaimed through treatment.

Reflecting on a case he had during the first Bush administration, Sporkin recalls a speech given by President Bush from the Oval Office when the president used a bag of crack cocaine as a prop; holding it up in front of the camera, he claimed that the cocaine had been bought in Lafayette Park, directly across the street from the White House. The fact was that the 19-year-old arrested for selling the drugs had been lured to Lafayette Park by a federal agent working a government sting. As the presiding judge, Sporkin knew that this was the defendant’s first offense, and that he had never been involved in any sort of violent or gang-related activity. Nonetheless, the conviction carried a mandatory 10-year sentence.

At the time of sentencing, Sporkin recalled, “The kid fainted in my courtroom. He goes into prison at 19 and doesn’t get out until he’s 29. After the trial reporters wanted to know how I felt about it. Well, I didn’t feel good about it. Ashamedly, I said, ¬¨√•The law required me to impose that harsh sentence.’ “

As a defender of mandatory sentencing laws, William Otis readily concedes that “horror stories” of the sort relayed by Judge Sporkin are frequently heard about people who receive mandatory sentences. But he is quick to add, “What you don’t hear is the horror stories that are prevented because drug dealers are in prison. You don’t hear about the violent crimes and deaths that didn’t happen.” And those armed robberies, homicides, and overdoses were prevented, he maintains, because the bad guys were “put in jail for a long time.”

Otis, an assistant U.S. attorney for the Eastern District of Virginia from 1981 to 1999 who has also served on the attorney general’s Advisory Subcommittee on Sentencing, goes on to suggest that the loss of judicial discretion judges complain about so vociferously has been a small price to pay for the increase in public safety that has resulted from the imposition of mandatory sentences.

Rather than handicap the pursuit of justice, Otis believes, mandatory minimums have actually increased fairness by imposing a degree of uniformity on the criminal justice system. The system that predated the passage of federal legislation, he maintains, was inherently unfair and unjust.

“Congress had come to distrust the luck-of-the-draw sentencing that had become commonplace,” says Otis. “Prior to the introduction of mandatory minimums, a defendant in courtroom A might appear before a lenient judge who hoped the defendant would ¬¨√•straighten up and fly right’ if he or she was given a chance. Whereas a defendant in courtroom B charged with the same crime and possessing an identical criminal record might appear before a hard-line judge who would send him away for the max without any thought that he might benefit from a second chance. The result was you routinely had widely disparate sentences handed down for the same crime.”

Such a system, Otis argues, was unfair. “Mandatory minimums,” he says, “provide a remedy for disparate sentencing. They ensure a degree of consistency in sentencing for people who commit the same crime.”

And the only way to maintain a rough equality in sentencing is by placing reasonable limits on judicial discretion. Consequently, he suggests that a limit on judicial discretion is not a hindrance to the pursuit of justice, but a constructive tool that guarantees criminal defendants will be treated with a much greater degree of equality.
Prosecutorial Discretion Judge James Robertson of the U.S. District Court for the District of Columbia is not inclined to join his black-robed colleagues who have castigated Congress from the bench. Instead he matter-of-factly declares, “It doesn’t make much difference if I’m in favor of mandatory minimums or opposed to them. It is Congress that passes the laws. That’s their job, not mine. But I will tell you this, my experience with mandatory minimums is that they are not mandatory and they are not minimums.”

Rather than imposing an inherently uniform sentencing procedure on the courts, Robertson says, the loss of judicial discretion has been accompanied by a corresponding increase in prosecutorial discretion. “I think most judges will tell you that today the prosecutor has more power than ever because of the discretion that a prosecutor has in deciding what charge to bring. I’m not saying that’s a good thing or a bad thing. But it is something that needs to be understood. The point is that prosecutors have power at both ends—first to jack up the charges so that mandatory minimums apply, and then to dangle cooperation agreements before defendants that might reduce sentences below the mandatory minimums.”

Joseph DiGenova, former U.S. attorney for the District of Columbia from 1983 to 1988, agrees that mandatory minimums have imbued prosecutors with more power than they had before. “There’s no question that once the charging decision is made the sentence is pretty much set. You know exactly what it’s going to be. And so moving the sentencing function from a judge to a prosecutor is a pretty substantial skewing of the balance in the criminal justice system.”

Charge bargaining becomes sentence bargaining in mandatory minimum cases, DiGenova explains, much the same way that it does in death penalty cases. And that is a very powerful weapon in the hands of a prosecutor.

“I don’t know if it’s a good or a bad side to mandatory minimums,” says DiGenova. “What is important is that it’s a fact of life.”

But you won’t catch William Otis saying that mandatory minimums give prosecutors more discretion. He points out that the charging discretion is an executive branch function embedded in the Constitution, not something bestowed upon prosecutors by mandatory minimum statutes. “That discretion existed in the prosecutor starting in 1790. It has always been the case that the prosecutor has the right to decide what charges to bring.”

William Moffitt, a defense attorney in the Washington area since 1975, acknowledges that prosecutors have always had the role of charging crimes, but feels that by depriving judges of sentencing discretion, mandatory minimums have rid the system of important checks and balances. “Before, there was always some oversight, some neutral party looking over the sentencing process to make sure that it was done fairly and appropriately. Now there really isn’t any oversight from the judicial branch; judges are basically administrators on the issue of sentencing who no longer exercise discretion themselves.”

But Otis argues that prosecutors don’t control defendants’ actions. If a defendant chooses to place 10 kilograms of powder cocaine in the trunk of his car, which is later found by the police, it’s not a question of discretion. It’s a question of charging the crime that the evidence warrants.

“Charges don’t fall out of the sky,” says Otis. “They are based on the conduct that the prosecutor can prove to the jury beyond a reasonable doubt.”    He adds that prosecutors follow a 1989 memorandum from then¬¨‚â†attorney general Richard Thornburgh ordinarily requiring them to charge “ ¬¨√•the most serious readily provable offense or offenses consistent with the defendant’s conduct.’ “
Law Enforcement Tool According to Michael Levy, a former assistant U.S. attorney in the District of Columbia from 1995 to 1999, you don’t need mandatory minimums to ensure that drug kingpins get long prison sentences: the judges would see to that on their own. Rather, mandatory minimums, which can only be reduced on a motion by the prosecution, allow police and prosecutors to threaten couriers and low-level dealers with long prison sentences to elicit their cooperation. In a violent and secretive world, says Levy, it’s one of the few good ways to move up the hierarchy of criminal drug offenders.

“The general perception is that drug dealers are dangerous people,” says Levy. “If you were a drug courier, why would you want to cross them unless there was a very powerful reason for you to cooperate with the police? The very persuasive reason is the prospect of a mandatory 10 years or more in jail.”

Say the police arrest a courier taking a bus from Richmond to New York with packages of drugs. The police must be able to find out immediately to whom the courier is delivering, because if the courier doesn’t show up at the meeting point in New York, his contact will disappear. As Levy puts it, “A guy named Tony wearing a red shirt and Yankees cap will be awfully hard to find in Manhattan.” Moreover, it’s unlikely that the courier will know much, if anything, about anyone else in the drug ring. The threat of a lengthy mandatory sentence will often induce the quick cooperation needed by law enforcement.

Even so, Levy says that he is of mixed mind about mandatory minimum sentences. Clearly some people go to jail for a lot longer than their conduct or criminal history would warrant. “The question is, are those negative effects worth the benefits of forcing cooperation?”

It’s not a question Levy feels prepared to answer. We read stories in the press about couriers receiving draconian sentences, but in his experience drug rings have been broken up using these methods, too.

Lisa Kemler, a defense attorney in Alexandria, Virginia, since 1985, believes that prosecutors move down the drug chain as often as they move up. “They bust some of the high end of dealers and suppliers and work their way down the chain. A lot of times they’re just getting closures on cases. Really, prosecutors and government agents, their jobs are to make cases. That’s their job and they do it pretty well.”

Kemler says the possibility of long prison sentences dissuades 95 percent of her clients charged with drug offenses from going to trial. “We’ve created this whole system of snitches, and you can’t plead with dignity anymore. You can’t just accept your responsibility. You’ve got to point the finger at other people.”

Worse, she says, the system of cooperation for reduced sentences has undermined the honesty of our criminal justice system. Kemler believes that threatening young offenders with such long prison sentences encourages them to fabricate and exaggerate. The defendants “tweak” their stories a little, perhaps putting someone in a place where they weren’t, for instance, in the hopes of a substantial assistance motion from the prosecutor.

Judge Robertson says that whether or not you think mandatory minimums help law enforcement to arrest higher and higher drug dealers depends on your opinion of the drug war. “Yes, they move up the chain,” says Robertson. “The question is, how far up the chain, and can you ever get far enough up the chain to really affect drug supply?

“I think it’s arguable that occasionally they score somebody really big, but it’s also demonstrably true that the supply of drugs has not been seriously cut off, diminished, or retarded. You keep hearing that drug prices on the street are lower than they used to be. What does that tell you about supply?”

Robertson has a lot of respect for how the prosecutors have used their power and discretion in his courtroom. But he adds, “I occupy only one corner of this system. I don’t have all knowledge about all the other corners of the system.”

He also says that at times he expresses impatience in the courtroom when a defendant must wait to cooperate over long periods of time. Some cooperating defendants are locked up, while others are on the street. Some work, some don’t. But as Robertson puts it, they’re all “hanging fire,” hoping to help in the investigation or prosecution of other criminals in order to reduce their mandatory minimum sentence. The defendants “are literally at the beck and call of the government,” he says.

Sometimes these defendants are used in sting operations, which Judge Sporkin finds distasteful. He doesn’t mince words, calling the defendants nothing more than “live rabbits” and “slaves” with no pay for their services and no control over the operations.

William Moffitt sometimes worries about the physical safety of his clients in sting operations. “You don’t know what the hell is going to happen. You don’t know how that person is going to be protected. You don’t know anything.”

In the final analysis, Joseph DiGenova believes demanding cooperation from defendants works well, assuming prosecutors’ good faith. Nevertheless, he admits it is possible for prosecutors to abuse the promise of a reduced prison sentence for “substantial assistance.”

The Department of Justice, he says, should make a thorough study of such prosecutorial practices. “It doesn’t hurt anybody to have a look at how these particular sentencing practices are working. Whether these departures are being used fairly, unfairly, or in a discriminatory way.”
Decline in Violence To William Otis, most people are obeying the rules and lead lives peacefully and productively, but there’s a minority of people who, again and again, flout the system. They want to make a fast buck without having to work for it. They don’t think about who suffers from their misdeeds, and they are often violent. That’s why Otis is in favor of mandatory minimums: they remove dangerous criminals from society, for a long time.

“One quite important purpose of the law is to impose just punishment, but in my view that is not its primary purpose. It’s certainly not there to ruin the defendant’s life. It’s there to help ordinary people live in peace and safety,” he says.

Think of all the crimes that come with drugs, says Otis: gang violence, money laundering, robbery, sometimes murder. These crimes plagued society before Congress enacted mandatory minimums in the 1980s.

“Over the last six or seven years,” says Otis, “the crime rate has decreased every single year from what it was the year before. Now there could be a number of explanations for that, and there no doubt are, but I think it’s only common sense to believe that one of the explanations is that the people who had been committing crimes are no longer on the streets. They’re in jail. And the reason they’re in jail is that they are serving mandatory minimums.”

William Moffitt, however, believes the crime rate is hinged upon the economy, more than on any sentencing policy. “We’ve got the lowest unemployment rate since just after World War II. People are working and not committing crimes. Once the unemployment rate goes back up, you’re going to see the crime rate climb again, and it’s not going to be about mandatory minimums or any of those things.”

Moffitt believes that given the choice, people would rather be working than committing crimes. “What the government is trying to tell you is that there is this permanent criminal class. People don’t grow up in this society wanting to be criminal. They grow up in this society wanting the things that society is supposed to afford them. What ends up happening is that when society fails to do that, when it is unable to employ a good portion of them, people become disappointed and they turn to crime.”

Julie Stewart, who founded Families Against Mandatory Minimums in 1991, thinks it’s too simple to point to mandatory minimums as the primary reason for the drop in crime. “To a certain extent, if you incapacitate enough people, you are going to affect crime rate. But it’s not mandatory minimums alone that are reducing crime, and it’s not incapacitation alone that’s making crime rates change, either. It’s demographics, it’s an economy that’s been strong, it’s a lot of factors, it’s a soup-mix of ingredients.”

After years of mandatory minimums, Lisa Kemler notes that she has no lack of clients. “I don’t see a lack of prosecutions in the Eastern District of Virginia resulting from mandatory minimums. As soon as they arrest one group or conspiracy, there’s another one right behind them.”
Racial Disparities For years many criminal defense attorneys have felt that the crack cocaine mandatory minimums are unduly harsh to African Americans. At the heart of the matter is that crack cocaine arrests have a disproportionate impact in the African American community, as evidenced by a recent U.S. Sentencing Commission report that stated that 88.3 percent of federal crack cocaine defendants are black.

The problem is, the defense attorneys argue, crack is penalized at much lower amounts of possession than is powder cocaine, and drug amount determines the length of the prison sentence. It takes only 50 grams of crack to trigger a 10-year mandatory sentence, but 5,000 grams of powder cocaine for the same amount of time. That’s a ratio of 100 grams of powder cocaine to one gram of crack.

The weight disparity between crack and powder bothers William Moffitt, who believes that it is partly motivated by racism. Moffitt suggests that any thinking person would understand that the harsher treatment of crack cocaine would disproportionately affect African American communities, and he notes that 15 years of the crack laws has disenfranchised swaths of African Americans and sent tens of thousands of young black men to prison.

Moffitt compares Congress’s treatment of crack to its treatment of acid, which was popular with young middle-class whites in the mid-eighties. At that time prison sentences were calculated under the guidelines on the basis of the weight of the medium in which LSD was carried. Therefore, if someone was arrested with five hits of LSD attached to a blotter, the weight of the blotter, rather than the amount of drugs, would dictate that person’s sentence. This resulted in sentences much longer than defendants’ culpability would warrant. But unlike the crack mandatory minimums, the laws pertaining to acid changed.

“It’s hard for me as an African American to say that there aren’t elements of racism in these differences,” says Moffitt. “The community is still suffering.”

Michael Levy, however, believes that the different treatment of crack and powder cocaine is not racially motivated. “I think you can support disparities in sentencing crack versus powder, be aware of the racial disparities at the low end, and not necessarily be doing so for racially motivated reasons,” he says.

Levy argues that crack is more addictive than powder and that it is more harmful to society in general. “Crack created a lot more robberies and other related crimes to feed the cycle of addiction than powder did in Washington in the late 1980s and early 1990s.”

Crack dealing should therefore be punished more than powder peddling, not because of the race of the people who use it, but because of its societal harm. Levy can’t say if the hundred-to-one weight disparity between crack and powder is reasonable, but states, “There’s no question that some disparity is justifiable.”

“The fact of the matter is that crack cocaine is more dangerous than powder cocaine,” says William Otis. “It’s more addictive. It’s cheaper and therefore younger people can buy it. Younger people who would not be in the market for powder are in the market for crack. Also, crack cocaine is much more associated with gang violence than powder cocaine is.”
Outlook Opponents have expressed hope that the Bush administration is more likely to dismantle the mandatory minimum regime than was the Clinton administration, which might have been worried about seeming soft on crime. Certainly, the administration would have strong support from the federal bench if it decided to make such a push.

Most interviewees, however, agree that the chances of Congress significantly changing the mandatory minimum statutes in the foreseeable future are slim. According to James Robertson, there are two reasons for this. “The first is that it’s a one-way ratchet. I’ve never heard a politician say we ought to reduce the penalty for anything. And secondly, there is no constituency for reducing the penalty for any crime.”
Attorney Stephen Murdoch wrote about Cambodian jurisprudence for The Washington Lawyer in March.