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February 7, 2012

Highlighting how mandatory minimums produce sentencing disparity, not uniformity

This is often claims that mandatory minimum sentencing laws provides a means to limit the impact of judicial sentencing discretion and thereby ensure greater sentencing consistency. Serious student of sentencing policies and practices know, however, that these laws mostly just shift discretion to prosecutors at the charging and bargaining stages and thus can often produce much greater (though often also much more hidden) disparities than judicial sentencing discretion.

This lengthy article appearing in today's Philadelphia Inquirer does a very nice job discussing these realities. The piece is headlined "'Mandatory minimum' laws can mean grossly disparate sentences for gun crimes," and here are excerpts:

Laid off from his job, [Leroy] Smith went to his computer, copied out a list of 7-Eleven stores in and around Philadelphia, grabbed a gun, and started sticking them up.  The clerks and customers were terrified.  Smith fired his revolver once, by accident, and almost shot himself in the leg.

Police caught the former Marine eight weeks after his crimes had started in June 2007. Within hours, he confessed to a dozen robberies that netted him an unimpressive $2,510, plus cigarettes, chips, and soft drinks.

Then Smith made his really, really big mistake.  In 2009, he rejected a plea bargain to serve 25 years and went to trial.  A federal jury convicted him of 10 robberies.

Because Smith had been charged under a "mandatory minimum" law, the judge could not weigh the trial testimony or consider that Smith had no previous convictions.  Automatic penalties written by Congress kicked in.  So Smith was sentenced to two centuries, three decades, and two years.  The 232-year sentence was 10 times the average 2009 federal sentence for murder.

Critics call such extreme disparities a "trial tax," and say it amounts to a penalty for exercising the right to trial by jury.  "He needs to be punished," defense attorney Christopher D. Warren said in court, "but based on my experience, he hasn't done anything which requires him to die in a federal prison."...

The case of the former nightclub bouncer, 41, now in a maximum-security prison in Colorado, is one of an increasingly controversial group of federal cases involving laws that impose mandatory prison terms required by Congress.  Federal prosecutors in Philadelphia make aggressive use of the laws.

Legal scholars and critics say mandatory penalties mean that those prosecutors -- not judges -- end up determining how much prison time a defendant receives by deciding what charges are filed and what deal is offered before a trial.

Smith was arrested by local police and initially charged in state courts, where a conviction would likely have meant a 10- or 20-year sentence. Then the U.S. Attorney's Office picked up his case, charging him under a federal statute that makes it a crime to brandish or use a gun while committing another "crime of violence." That includes armed robberies in which no one is shot or injured.  Legal insiders refer to the law as "924c," its section in the federal criminal code....

Federal prosecution of what are typically state crimes stepped up more than a decade ago in reaction to drug and violent crimes that seem to overwhelm local courts. "I do not think of it as a trial penalty," said U.S. Attorney Zane D. Memeger, who runs the team of 120 federal prosecutors in the Eastern District of Pennsylvania.  Defendants are given a choice, he said, to plead and cooperate, or risk trial and a stiff sentence. "You have to make a decision. It's not my fault if you make a bad decision," Memeger said.  Critics "are not living in these communities where gunfire is rampant," he said....

Congress increased the severity of mandatory minimum sentences in the 1980s and 1990s. One of the few studies to analyze the effect of mandatory-minimum laws was released in October by the U.S. Sentencing Commission.  Its 2010 data showed Philadelphia leading the nation in convictions under the 924c law.  There were pleas or guilty verdicts against 134 defendants. Twenty were convicted of multiple counts, meaning they faced the tough 25-year add-on sentences.  Defendants who pleaded guilty in exchange for having all 924c charges dropped were not counted.

The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases.  In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years.  A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years. Defense attorney Vernon Z. Chestnut called the sentence "so disproportionate to the actual crimes that it is shocking to the conscience."

In another area case, two men were indicted by federal prosecutors in 14 armed robberies in Philadelphia at the same time as LaRue Smith was robbing 7-Elevens.  Christopher Sanders, then 22, and Theodore Kelly, then 29, opened negotiations with federal prosecutors.  Details of their case are unavailable because much of their plea agreements and other documents are under seal, an increasingly common practice when plea bargains are involved.  Prosecutors typically say they agree to such stipulations to protect cooperating witnesses.

What is public knowledge is that the two men received the benefit of cooperation. In Sanders' case, prosecutors dropped nine counts of the mandatory-minimum gun law, saving him from a 207-year mandatory sentence.  Instead, he got 20 years.  Kelly's sentence is not recorded in the public court record. Three counts under the gun law were dropped, and the federal Bureau of Prisons says he is due to be released in 2017.

Federal rules say that there should be similar penalties for similar crimes and that prison time should be no longer than necessary for fair punishment.  But that theory runs up against the messy reality of the nation's justice system.  Nationwide, only about 3 percent of federal defendants go to trial, and lawyers acknowledge the justice system would grind to a halt if that figure increased significantly.

Memeger, who took office in 2010, would not talk about individual cases ... [but] has little sympathy for defendants who commit violent crimes and then reject a deal from the government. "You have the ability to make an informed choice, and you blew it. Whose fault is that? Not the government's," he said....

Lifetime incarceration for crimes committed by inmates in their 20s and 30s means that taxpayers will be paying for housing, meals, and medical care for inmates in their 50s, 60s, and 70s and older.  That group will include Brinkley, the stickup artist with the 107-year sentence he received after rejecting a deal to serve 30 years.  His first trial ended in a mistrial, there was a hung jury in the second, and he was convicted in the third.

LaRue Smith, the 7-Eleven robber, admitted the crimes but tried to convince the jury that federal prosecutors had no right to try him for what are ordinarily considered state crimes. Higher courts have long rejected that argument.  At a 2009 hearing, then-U.S. District Judge Bruce W. Kauffman said he was "stunned" by Smith's decision to admit his guilt and insist on a trial.

Christopher Warren, Smith's attorney, said Smith's attitude toward a plea, combined with a long sentence, was not uncommon. "I have encountered this attitude a lot," Warren said. "They think that a 25-year (plea-bargain sentence), their life is effectively over," and go to trial, hoping lightning will strike.

"The reason for not taking it," Smith wrote in an e-mail from prison, "was the fact that I had not murdered or even attempted to murder anyone. . . . and the fact that I was a "FIRST-TIME-OFFENDER."... At his trial, Smith said he only robbed enough stores to pay his rent and provide for his fiancée and young son.

During cross-examination, Assistant U.S. Attorney Michelle Rotella asked Smith if he had the same concern for his victims.  "Did you ask your first victim, the one where you came around the counter and shoved the gun in his stomach . . . if he had kids or a family?"  No, Smith admitted.

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A guy who commits ten armed robberies at the age of 41 is an extreme danger to the community. His "defense" -- that the feds had no right to try him -- shows about the amount of regret he has for his conduct.

He's not young, he's not nuts, he's not non-violent (to say the least) and he's not any of the other things that usually get trotted out as excuses.

Allowing this guy back on the street, ever, is begging for trouble. My only problem with the case is that he was offered a bargain at all. I would not have given him the option of trial or no trial -- I would have forced him to trial. That is the method designated in the Constitution for the resolution of felony cases, and this fellow absolutely "earned" what the Constitution gives him.

Posted by: Bill Otis | Feb 7, 2012 12:35:55 PM

The difficulty Bill is that you oversimplify. Penalties (mandatory minimums) are set before the fact at a time when the problem is not fully knowable. Punishments are fixed after the fact, within a range that was set before the fact. After the fact the problem is fully knowable. People are penalized for crimes and punished for criminal offenses. A sentencing system should do both. We learn from the cognitive sciences that people make better choices when they think about problems in several different ways.

As for risk, that is another way of thinking about the problem.

Posted by: Tom McGee | Feb 7, 2012 1:29:53 PM

Tom McGee --

Why is it unacceptable for the legislature to determine that, once the prosecution has proved all the elements of Crime X, and the jury has so found, that the minimum under any circumstances is Punishment Y?

Suppose, for example, that the legislature has established a five year mandatory minimum for first degree murder? Is there a problem with that? Can the legislature not determine that a murder with malice aforethought, committed by an adult of sound mind, is ALWAYS serious enough to warrant a sentence of at least five years?

I agree that, in the great majority of instances, the law is better advised to take each case one at a time. But there comes a point -- and I believe my example makes that point -- at which society might properly say that some crimes are categorically so serious, and present such a grave danger, that anyone who commits it must do a stated minimum amount of time.

My experience is that the objection to MM's is more that the minimum is set too high, and less that there is never a case for SOME stated minimum.

Posted by: Bill Otis | Feb 7, 2012 2:05:34 PM

An interesting scenerio would be that no plea bargains are offered. We would have a very different criminal justice system.

Posted by: beth | Feb 7, 2012 2:34:29 PM

Before anyone cries ever again about judicial discretion causing disparity, can someone defend this:
"The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases. In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years. A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years."
I can imagine that some of you believe 107 years is appropriate for multiple armed robberies. So how do you defend a system in which others got 3 and 18 years for the same conduct?

Posted by: Thinkaboutit | Feb 7, 2012 3:28:02 PM


I don't defend it, that most offenders get unwarranted breaks is no reason to cry for the few who get what they deserve.

Posted by: Soronel Haetir | Feb 7, 2012 4:13:10 PM

Thinkaboutit --

"Before anyone cries ever again about judicial discretion causing disparity, can someone defend this:
[giving an example of substantial disparity caused by prosecutorial discretion."

1. Does misused prosecutorial discretion justify misused judicial discretion? Does it make the disparities caused by misused judicial discretion any better? How does that argument go?

2. "I can imagine that some of you believe 107 years is appropriate for multiple armed robberies."

Correct. Would you want to be in the next 7-11 this guy walks into? Would you want your kid to be in there? Ever?

3. Soronel hits the nail on the head: "[T]hat most offenders get unwarranted breaks is no reason to cry for the few who get what they deserve."

Posted by: Bill Otis | Feb 7, 2012 4:47:05 PM

I think that the point is that charging discretion causes sentencing disparity. It's not really about feeling sorry for those who go to trial and get long sentences. It's the fact that charging decisions and plea agreement decisions cause sentencing disparity.

Posted by: beth | Feb 7, 2012 5:13:31 PM

Bill, I do not object to penalties that are set before the fact when they are used as a threat to the public at large--commit crime X and you will be penalized. Penalties make sense to the extent that they are cost-effective.

What is objectionable are over simplified mandatory minimums that bundle multiple objectives together. Again, people are penalized for committing crimes; call them mandatory minimums if you wish. They are punished for committing criminal offenses. Criminal offenders who have a significant risk of committing another crime should be incapacitated and if possible that risk should be reduced when cost-effective. Crimes, criminal offenses and risk are separate provocations. The state has different objectives as to each. They should be responded to individually on their own.

Posted by: Tom McGee | Feb 7, 2012 5:15:16 PM

I believe much of the angst about disparity arises because decision-makers do not differentiate between provocations. Some offenses are fairly minor, but the offender may pose a significant risk. Conversely, serious offenders sometimes pose little risk.

Posted by: Tom McGee | Feb 7, 2012 5:36:17 PM

i think that we should be wary of claims like "most" get "unwarranted" "breaks." there is no objective standard by which to measure that. what is warranted probably varies greatly from case to case, and that, to me, is the flaw of mandatory minimums. it does not remedy or erase that flaw to say that some (or who knows, perhaps many) get "unwarranted" "breaks." similarly, if one believes that mandatory minimums are a good thing, they are not a good thing solely because some (or who knows perhaps many) get "unwarranted" "breaks." they are a good thing because they set punishments that are certain and significant (perhaps, at least in theory, sufficient to deter, not just punish and thus prevent, not just avenge, crime).

me, i am doubtful of most mandatory minimums, but willing to believe gun minimums may play a useful role in keeping us safer. that said, i think that the problem with 924 minimums is the interpretation the s.ct. gave the statute in deal.

Posted by: big bad wolf | Feb 7, 2012 7:04:15 PM

big bad wolf ,

Given that I believe most felons should be executed I am quite comfortable saying that the vast majority of offenders get unwarranted breaks.

Posted by: Soronel Haetir | Feb 7, 2012 7:31:07 PM

1. No, prosecutorial abuse of discretion does not make judicial abuse of discretion any better, but only one is done in public and reviewable by an appeals court. And my point was not that you can't complain about judicial abuse of discretion but don't leave out half (or more) of the problem when you talk about disparity or you risk losing credibility as someone concerned about making sure everyone "gets what they deserve."
2. No, I do not think a 107 year sentence is appropriate for every defendant who commits multiple armed robberies. For some, maybe. But I am not sure a 20-year-old robber who spends 20 years in jail can't change his ways. And you don't need to personalize it - I don't have one policy view for the public and another for my children. But since you asked, I know my kids have a much lower chance of getting held up with a gun than they do of getting killed in a car accident. Neither keeps me up at night.

Bottom line: I know of no judge who, on his/her own, would give 3 co-defendants sentences of 3, 18, and 107 years. That kind of grotesque and indefensible disparity could only be caused by a prosecutor.

Posted by: Thinkaboutit | Feb 7, 2012 7:37:50 PM

Thinkaboutit --

1. I was not intending to personalize it, and apologize if it came across in that way. I used "you" in the genaric sense. The sentence would read and mean the same if it said, "Would anyone want to be in the next 7-11 this guy walks into? Would anyone want his kid to be in there?"

And the answer is, "No way."

2. It is true that the use of judicial discretion at sentencing is subject to a publicy heard appeal, although after Booker, Gall and Kimbrough, the trial court's discretion is broad, and the standards of appeal extremely liberal in favor of the district judge.

Because prosecutors are part of the the elected branches, their charging discretion -- given them by the Constitution as a central part of the functioning of the executive branch -- is not subject to review by higher courts in the same way judicial discretion is. But this is hardly to say there is no check on it. Indeed, The Big Check is coming up in a bit more than eight months -- the election. If the voters dislike the charging decisions of the current Administration, they will have a chance to remove the entire crew running DOJ and the USAO's. That is a blunt instument, I admit, yet all the more powerful for its bluntness.

3. "No, I do not think a 107 year sentence is appropriate for every defendant who commits multiple armed robberies. For some, maybe. But I am not sure a 20-year-old robber who spends 20 years in jail can't change his ways."

But I never said it was appropriate for "every defendant" who commits armed robberies, nor was the criminal in this case anywhere near 20. But if a point be made of it, a person who's 20 knows full well that sticking a gun in someone's stomach in order to steal their money is immoral, reprehensible and very, very illegal.

It's just so much silliness for liberals to claim, as they do nonstop, that the people who do this stuff are Jean Valjean. In almost 20 years in the USAO, I never encountered a single Jean Valjean. They do this stuff out of greed, wanting money for their next hit, or to show how tough and macho they are.

4. Variations in both charging and sentencing are inevitable. They cannot be eliminated, and if they were, the defense bar would be screaming at a volume you could hear on Mars that "the human element has been drained from the criminal justice system."

The variations in the case you note do indeed seem out of line, but I do not know those cases in anything approaching enough detail to analyze them specifically.

Posted by: Bill Otis | Feb 7, 2012 8:19:43 PM

soronel, why do you take such a position? in the end, felony and felon are social constructs, i think. there is not an inherent reason to execute (or even imprison) "felons," which is not to say that there are not other reasons to do so. laws, as posner says, make dichotomous cuts in continuous phenomena, so exceution for being just slightly to the wrong side of what is permitted seems a bit extreme, even unreasoned. i could see, though not agree with, such a position for things closest to inherent crimes such as murder (though not all homicide) or rape or child abuse, but all felons strikes me as an unusually difficult position to defend. although perhaps there is some overriding supremacy clause take i am missing out on.

Posted by: big bad wolf | Feb 7, 2012 9:52:54 PM

Big Bad Wolf,

I come to the position I have because I believe those who commit felonious offenses have rejected the norms of society and therefore society should reject them. I believe my ideal execution rate of 75 to 90 percent of felons should leave ample room for the undeserving to escape that particular fate. There may be many such line blurring offenses, but my understanding is that those statutes are for the most part seldom used and that indeed the great bulk of convicts fall into traditional categories of criminal behavior.

Now, as I said on a similar topic on the VC yesterday, I do think much of what the federal government currently does is not within its legitimate grant of power, most drug enforcement for instance, or even this instant case. But were my ideal system in place the above case would still result in an execution, just by the state rather than the feds. So on that score my statements should be taken regarding the ideal fate of the offender rather than what layer of government should be responsible.

Posted by: Soronel Haetir | Feb 7, 2012 10:54:31 PM

That these cases are in federal court in the first place is absolutely ridiculous. These are state crimes and should have been tried as such. While that's not a defense to the crimes under the current constitutional jurisprudence doesn't make it any less true.

Posted by: Benjamin Danisek | Feb 8, 2012 1:03:52 PM

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