Twenty years ago, I started Families Against Mandatory Minimums (FAMM) because I had come to the conclusion that the one-size-fits-all mandatory minimum sentences dictated by Congress were overly harsh and unevenly applied. Minor drug offenders were getting sentences of 10 years or more in federal prison. Blacks were more likely than whites to be sentenced to mandatory sentences. Judges no longer had the authority to consider factors that should have mattered at sentencing, including the role of the defendant in the offense. Much of my education came from talking with family members and from a 1991 report by the U.S. Sentencing Commission that exposed these flaws. On October 31, the Sentencing Commission released its long-awaited follow up to that report. The conclusion? Mandatory minimums produce the same injustices they did 20 years ago.
The release of the new report followed a comprehensive review by the Sentencing Commission into every aspect of how mandatory minimum sentencing laws are applied. It looked at who gets mandatory sentences, the length of sentences imposed, whether some ethnic groups are impacted disproportionately, and how these one-size-fits-all penalties operate in relation to the more fact-intensive sentencing guidelines. As it found in 1991, the Sentencing Commission concluded that the most frequently applied mandatory minimums are harsh, unfair, and expensive.
Among the 650-page report's many findings:
• "Mandatory minimum provisions typically use a limited number of aggravating factors to trigger the prescribed penalty, without regard to the possibility that mitigating circumstances surrounding the offense or the offender may justify a lower sentence. For such a sentence to be reasonable in every case, the factors triggering the mandatory minimum penalty must always warrant the prescribed mandatory minimum penalty, regardless of the individualized circumstances of the offense or the offender."
Of course, for sentencing reformers like FAMM, this has always been the chief complaint about mandatory minimums. One-size-fits-all sentences turn out to fit very few. Judges must have the discretion to make sure the time fits the crime (and the offender). Mandatory minimums serve as strait jackets that limit judges.
• "Black offenders convicted of an offense carrying a mandatory minimum penalty remained subject to a mandatory minimum penalty at sentencing at the highest rate of any racial group, in 65.1 percent of their cases, followed by White (53.5%), Hispanic (44.3%), and Other Race (41.1%)."
Original proponents of mandatory minimums once claimed that the inflexible sentences would help eliminate racial discrimination in sentencing. Based on the statistics in this report, it appears more likely that mandatory sentencing has exacerbated racial disparity.
• "The Commission's analysis of a 15 percent sample of fiscal year 2009 cases indicates that the mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended. Among all drug cases, Courier was the most common function, representing 23.0 percent of all offenders, followed by Wholesaler (21.2%), Street-Level Dealer (17.2%), and High-Level Supplier/Importer (10.9%). ...[T]he Commission's analysis revealed that the quantity of drugs involved in an offense was not closely related to the offender's function in the offense."
No surprise here. Mandatory sentences were purportedly designed to target sharks, but they have swooped up too many minnows. Sentencing reform advocates, including FAMM, have long argued that putting too much emphasis on the weight of drugs involved in a drug conspiracy can trigger long sentences for bit players.
The Sentencing Commission found that a main reason lower level players are not getting hit with even longer sentences is the "safety valve" that FAMM devised and Congress enacted in 1994. This escape hatch allows judges to bypass the harsh, mandatory sentences for first-time, low-risk offenders. Recognizing that unwarranted disparities still exist, the Commission report recommends expanding the safety valve.
The Commission correctly acknowledges the major role mandatory minimum sentencing laws are having on the federal prison population. Our federal prisons are already operating at 140 percent of their capacity. To slow this problem, the report urges Congress to avoid passing new laws that will waste expensive prison space on low-risk offenders. Specifically, the Commission says Congress should focus "increasingly strained federal prison resources on offenders who commit the most serious offenses."
Twenty years ago, the U.S. Sentencing Commission concluded that mandatory minimums were not the efficient, anti-crime tool their proponents had suggested. Over the past two decades, tens of thousands of families across the country have learned the hard way, watching fathers, brothers, and other loved ones sentenced to exceedingly harsh prison terms. The Sentencing Commission is back with a new report that echoes many of its original, strong criticisms. Maybe this time Congress will learn something -- and will move to repeal these unjust, ineffective laws.