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November 18, 2011

"20 Years Later, Mandatory Minimum Sentences Are Still Mindlessly Draconian"

The title of this post is the headline of this new piece by Jacob Sullum over at Reason. Here are excerpts from an effective review of the US Sentencing Commission's recent report on federal mandatory minimums:

Twenty years ago, the U.S. Sentencing Commission issued a landmark report that highlighted the injustices caused by mandatory minimum penalties.  Since then several developments have helped mitigate those injustices. In 1994 Congress enacted a "safety valve" provision that allows low-risk, first-time offenders to escape mandatory minimums. In 2005 the U.S. Supreme Court held in U.S. v. Booker that the commission's sentencing guidelines (as opposed to mandatory minimums required by statute) should be treated as advisory because they hinged on facts that were not determined by a jury.  In 2007 the commission changed its guidelines to reduce recommended sentences for crack cocaine offenses. In 2010 Congress passed the Fair Sentencing Act, which shrank the senseless sentencing disparity between crack and cocaine powder.  Last month the commission issued a follow-up report on mandatory minimum sentences that reflects the improvements made by some of these changes but also shows that federal criminal penalties remain excessively harsh and rigid.

The report confirms that the safety valve, championed by Families Against Mandatory Minimums (FAMM), is having a significant impact.  In fiscal year 2010, drug offenders accounted for two-thirds of federal defendants convicted of offenses that carried mandatory minimums, but they qualified for shorter sentences about half the time. According to the report, "One-quarter (26.1%) of these offenders received relief through operation of the safety valve alone, 19.3 percent by providing substantial assistance to the government; and 9.0 percent through both the safety valve and substantial assistance provisions."...

Despite such modest progress, it's clear from the commission's report that federal sentences are still out of whack.  From interviews with prosecutors and defense attorneys, for example, "the Commission learned that inconsistencies in application of mandatory minimum penalties exist between districts, and often within districts, where individual prosecutors exercise their discretion differently.  In part, these differences may have developed to avoid the overly severe consequences that result from certain mandatory minimum penalties applying in individual cases."  In other words, prosecutors are exercising the discretion that once belonged to judges, effectively determining offenders' sentences by deciding how to charge them.

The commission also found that "mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended." The most common function among offenders subject to mandatory miniums was courier (23 percent), followed by wholesaler (21 percent), street-level dealer (17 percent), and high-level supplier/importer (11 percent). That breakdown suggests mandatory minimums continue to hit low-level offenders more often than "drug kingpins."

The irrationality is not confined to drug offenses. The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. And unlike drug offenders, they rarely qualify for lower sentences. Most sex offenders (72 percent in 2010) are charged with child pornography offenses, primarily (58 percent) possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years. "The Commission's preliminary review of the available sentencing data suggests that the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently," the report says.

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November 18, 2011 at 04:34 PM | Permalink


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When Congress adopted mandatory minimums for drug cases in 1986, the Judiciary Committee reported that they were designed to single out the people at the top of the drug organizations. Someone (i.e., the DEA and the DOJ) told them that individuals who possessed the amounts that triggered the minimums would be key players in the drug trade.

What's happened is that most of the people who face mandatory minimums are mules, couriers who are considered expendable by drug organizations. Moreover, due to the law of conspiracy, the minimums apply to anyone who participates in a conspiracy, no matter their role, thus negating the very purpose of establishing the minimums in the first place.

The "safety valve" provision, designed to give some relief to first-time offenders by relieving them of the mandatory minimum sentence, has limited value. Someone who has two misdemeanor DUI's, for instance, would not get the benefit of the safety valve, even though she might be the lowest rung player in the drug organiation.

But more than anything, 25 years of mandatory minimums have not stopped drug trafficking, they have not stopped drug use, and they have only exacerbated the already futile and dangerous war on drugs.

Posted by: C.E. | Nov 20, 2011 1:56:38 AM

This over-reaching is brazen rent seeking, a synonym for armed robbery.

Not just bad faith government self-dealing. Treason. This War on Drugs provides federal price supports to the war enemies of the US, the Taliban, Al Qaeda, and the Mexican Drug Cartels.

I want an investigation into the companies funding the drug warriors campaigns. If they are front organizations for these war enemies, the drug warriors should be arrested, tried, and executed for treason.

Posted by: Supremacy Claus | Nov 20, 2011 2:21:51 PM

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