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October 31, 2011

Trick or Treat?: What will new USSC report on mandatory minimums say and advocate?

ImagesAmong the exciting activities I have planned for today, the last day of October, is to start reading the US Sentencing Commission's new report to Congress discussing mandatory minimum sentencing statutes in the federal sentencing system.  This report has been in the works for two years, and is expected to be released later today.  

According to Judge Patti Saris, the Chair of the US Sentencing Commission whom I had the pleasure to hear speak at an event in Ohio on Friday, this report is going to run more than 600 pages.  Judge Saris also indicated that the report will assert that some mandatory minimum sentencing statutes apply too broadly and are too severe.  But she also suggested that the report will not categorically assert that all mandatory minimum sentencing provisions are bad policy in all circumstances.

Remarkably, it has been more than two decades since the USSC issued a report to Congress on mandatory minimum sentencing.  Way back in August 1991, the USSC produced this important document, titled "Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," which reached these important conclusions:

Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case.  This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity....

In 35 percent of cases in which available data strongly suggest that the defendant's behavior warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses carrying non-mandatory minimum or reduced mandatory minimum provisions.  Since the charging and plea negotiation processes are neither open to public review nor generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is compromised....

The disparate application of mandatory minimum sentences in cases in which available data strongly suggest that a mandatory minimum is applicable appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be sentenced, where defendants sentenced in some circuits are more likely to be sentenced below the applicable mandatory minimums than defendants sentenced in other circuits.  This differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce.

Whereas the structure of the federal sentencing guidelines differentiates defendants convicted of the same offense by a variety of aggravating and mitigating factors, the consideration of which is meant to provide just punishment and proportional sentences, the structure of mandatory minimums lacks these distinguishing characteristics.  Under the guidelines, offenders classified as similar receive similar sentences; under mandatory minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus appears that an unintended effect of mandatory minimums is unwarranted sentencing uniformity.

Our analyses indicate that the guidelines system established by Congress, because of its ability to accommodate the vast array of relevant offense/offender characteristics, and its self-correcting potential, is superior to the mandatory minimum approach....   Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums.  There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.

Of course, in 1991 the federal sentencing guidelines were mandatory; now they are advisory.  Nevertheless, I do not think this change in the formal legal status of the guidelines should radically change the themes and prescriptions concerning mandatory minimum statutes that the USSC set forth 20 years ago.  It will be interesting to just how the new MM report echoes or revises some of the conclusions stated the last time around.

October 31, 2011 at 08:38 AM | Permalink


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The way to deal with irrational disparity in executive branch charging decisions, assuming it exists, is scarcely to increase it in judicial branch sentencing decisions as well. That would pile perversity upon perversity. The answer is to decrease it in the executive branch.

I note that administrations of both parties have had the chance to do that, but thus far have not. Where was Janet Reno for eight long years on this front? Where was Alberto Gonzales, et al.? And most particularly, where is the incumbent, Eric Holder?

I'm absolutely for more transparency in charging decisions. Let the public see whether what we have is a bunch of Nazis ratcheting up charges as much as possible, or, instead, a bunch of overworked AUSA's who want to cut down on their caseload by resolving cases more quickly and easily with dumbed down charges too tempting for the defendant to pass up.

I am not, however, for allowing the judicial branch to make or supervise charging decisions, since, as the Supreme Court has said, charging is exclusively an executive branch funtion under the Constitution. It is no business of any component of the judicial branch.

Finally, what's getting missed here is that, with the increase in irrational disparity that has come about after Booker (something even the USSC admits has happened), Congress will be, as it should be, more reluctant than ever to add to the problem by relaxing MM's. Indeed, it will work the other way around: With mandatory guidelines out the window, the only mechanism Congress has left to tamp down on irrational disparity in sentencing is MM's.

Posted by: Bill Otis | Oct 31, 2011 10:07:33 AM

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