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April 12, 2005

DOJ advocacy for mandatory minimum sentencing

As detailed on this page from Families Against Mandatory Minimums and in this letter from the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member), numerous policy-makers, judges, researchers and other respected commentators have spoken out against mandatory minimum sentencing provisions.  But in today's hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), written testimony on behalf of the Justice Department from Jodi Avergun, DEA's Chief of Staff, makes a broad argument in favor of mandatory minimum sentencing.

Avergun's testimony is available here, and here are two paragraphs on mandatory minimum sentencing that caught my eye:

The Department of Justice supports mandatory minimum sentences in appropriate circumstances. In a way sentencing guidelines cannot, mandatory minimum statutes provide a level of uniformity and predictability in sentencing.  They deter certain types of criminal behavior determined by Congress to be sufficiently egregious as to merit harsh penalties by clearly forewarning the potential offender and the public at large of the minimum potential consequences of committing such an offense.  And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety.  Equally important, mandatory minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive to defendants to cooperate against the others who were involved in their criminal activity.

In drug cases, where the ultimate goal is to rid society of the entire trafficking enterprise, mandatory minimum statutes are especially significant.  Unlike a bank robbery, for which a bank teller or an ordinary citizen could be a critical witness, often in drug cases the critical witnesses are drug users and/or other drug traffickers.  The offer of relief from a mandatory minimum sentence in exchange for truthful testimony allows the Government to move steadily and effectively up the chain of supply, using the lesser distributors to prosecute the more serious dealers and their leaders and suppliers.  Mandatory minimum sentences are needed in appropriate circumstances, such as trafficking involving minors and trafficking in and around drug treatment centers.

The rest of Avergun's testimony is also an interesting read, though it does not address the Booker fix provisions of H.R. 1528 because they were tacked on at the last minute.  Notably, Avergun's testimony indicates that even DOJ considers some of the most draconian drug sentencing provisions of H.R. 1528 to be too severe.

April 12, 2005 at 05:15 PM | Permalink


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I'm noticing a pattern here, a technique if you will, you start with a relatively hefty and complicated legislation, nurse it through the process to the point of exhausting everybody, they don't want to see or hear about it any more, and at the very last minute tack on something you knew all along would never be accepted. The chances are they will swallow it however hesitantly. Throwing all that work that went into it would be such a waste. A technique it is, but honest legislative process it is clearly not.

Posted by: wg | Apr 12, 2005 9:00:01 PM

It's ironic that the Justice Dept. and the DEA don't trust the nation's appointed judges, when it should be the other way around.

Mandatory minimums are certainly the "easy" way to lock up everyone. Let's just pretend the last year didn't happen and the Constitution doesn't exist. Why bother thinking about guilt or innocence or their role. The government knows what's best for all of us. The best part is, they let you keep the little piece of brain they take out.

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