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January 22, 2017

Making the case again against mandatory minimums

Mark Holden has this new op-ed, given the headline "Mandatory minimums are a crime in themselves," which discusses the well-known case of Weldon Angelos and then articulates the effective arguments against mandatory minimum sentencing statutes generally. Here are excerpts:

America's criminal justice system is broken. Too many of our fellow citizens are rotting behind bars, unable to atone for their mistakes, contribute to their communities and lead lives of meaning and fulfillment. It's not just a crisis — it's a crime in and of itself.

If you don't believe us, just go to the Sundance Film Festival this weekend. There you'll see a trailer for a new documentary about Weldon Angelos and his firsthand experience with the criminal justice system.  As a lawyer with Koch Industries, I learned about Weldon Angelos when he became the poster child for the unfair and unjust sentences that are all too common, especially for low-level and nonviolent offenders....

Even though he was a first-time, nonviolent offender [convicted of multiple marijuana distribution and gun possession charges], Weldon Angelos received a staggering 55-year prison sentence with a release date of October 2051. He would have received a shorter sentence for being a murderer or terrorist....

Weldon's story, thankfully, has a happy ending. Last May, after 12 years in prison, a federal court granted him an immediate reduction to his sentence. In a show of true compassion, the federal prosecutor who prosecuted him in the first place initiated this effort. Weldon has since returned to his family and his life — a life that only months ago seemed would be spent behind bars.

Yet the laws behind such grossly unjust punishments are still on the federal books. So are many other mandatory sentencing laws. Rolling them back — or repealing them outright — is one of the most important reforms before Congress.

This is especially important for federal drug offenders, over 260,000 of whom have been sentenced under mandatory minimums. Distressingly, 86 percent of current drug offenders in federal prison committed nonviolent crimes, and the same number were low-level offenders.

The case against mandatory minimum sentencing laws is simple. While initially created with good intentions, they typically do far more harm than good. Mandatory minimums empower prosecutors to a dangerous degree. They alone have the power to bring charges against offenders — if they bring ones associated with high mandatory minimums, the judge has little choice but to accept it, even if other charges might be more appropriate. Nowhere else in America's criminal justice system are judges and juries so powerless.

And while they are supposed to lower crime rates, studies have shown that mandatory minimums have had only a minor effect at best. Hardened criminals — the real bad guys — are still usually able to get favorable deals, while low-level ones get stuck with the harshest possible sentences. Last but not least, mandatory minimums create perverse incentives for the police themselves. If authorities truly felt Weldon was a threat to public safety, they would have arrested him the first time he sold marijuana to the informant. Instead, law enforcement allowed him to sell drugs two more times to enhance the sentence. This is fundamentally unjust.

The evidence points to the inescapable conclusion that mandatory minimums must be reformed, and fast. Congress has an opportunity to make law enforcement jobs less dangerous, enhance public safety for all, bring communities together, and help countless people improve their lives — people like Weldon Angelos. It's time to restore justice to America's criminal justice system.

January 22, 2017 at 11:16 AM | Permalink


"Hardened criminals — the real bad guys — are still usually able to get favorable deals, while low-level ones get stuck with the harshest possible sentences."

I have been a state prosecutor in CA for nearly 20 years. This statement is blatantly false. While the article uses a federal prosecution as an example for
It's point, the lead sentence says America's criminal justice system.

Posted by: David | Jan 22, 2017 12:37:31 PM

Why does a non-violent offender need to carry a gun?

These mandatory minimums were enacted after a wild increase in murders from drug dealing competition in 1980's. They dropped crime 40% across the board. They added great value to the economy, by lowering the damage of crime. They may have an unknown factor in the real estate bubble. The crime drop was rapid after 5 years passed, the correct lag of effects of new laws. Other factors would have caused slower drops, such as aging of the population, or decreases in blood levels. No one has accounted for the rate of drops in the rates. It is consistent with a single event such as the spread of mandatory guidelines.

Their being made discretionary by the Supreme Court, under the leadership of Scalia, also had time lag. That lag is explained by a long term side effect, lawyer unemployment. If mandatory guidelines were unconstitutional, they were at the time of enactment, and not just 20 years later. Their repeal should be considered to be a pretextual, rent seeking tactic by the lawyers on the Supreme Court acting in bad faith, with irremediable professional economic conflict of interest.

We need some follow up. Angelos will be lucky to get a hard work job at $15 an hour, taxed. He will remember his prior no effort job, paying $150 an hour, tax free. Will he return to that more lucrative life? Will a competitor threaten his income, with no possibility of compromise? Will he then resume his job description task to be a serial killer of competitors?

Only the slightest decarceration has taken place. There have immediately been substantial increases in the murder rates in 20 large cities. The rate would have been even higher without the advances in trauma care learned in Middle Eastern wars. The economy is better. Lead levels are still dropping. Perhaps, the cause of murder is more offenders have been streeted.

I am going to guess, lawyer Holden is white. He lives in a neighborhood lower in crime than Japan or Switzerland. He does not care about the consequences to people who do not. No released drug dealer will be moving in next door.

Posted by: David Behar | Jan 22, 2017 12:46:50 PM

David. Are you an at will employee? Have you ever had a political appointee speak to you about your decision to prosecute someone?

Posted by: David Behar | Jan 22, 2017 2:29:11 PM

David. To the first question the answer is no. To the second the answer is also no as the DA is elected. Unless you consider the normal management structure political appointees.

Posted by: David | Jan 22, 2017 5:28:40 PM

David. That is good to hear. Holden argued that the an unaccountable prosecutor is overly empowered, as an unintended consequence of mandatory minimums. In the Delaware Valley (PA, NJ, DE), the prosecutor is an at will employee who has to think about his personal future if he exercises judgment to prosecute, when politically appointed supervisors disagree.

I do support the continued elections of district attorneys, and of judges. I do not support pressuring local prosecutors about discretion. Their careers should depend on success in court, short term (yearly), and on the crime rate, long term (over 5 years). Otherwise, you get Martha Stewart prosecuted for lying to FBI agents in an informal interview at her home, at a legal cost of $2 million to the tax payer. Then, illegal alien, Salvadoran gangs who behead adversaries are left to do as they please for years. One is easy, and gets the DA in the papers. The other is difficult and thankless, but of the greater value to the tax payer, especially to the impoverished, and legally weak neighbors of the gangs.

Posted by: David Behar | Jan 22, 2017 6:12:56 PM

It seems inconsistent to me to say that prosecutors should stand for popular election and become elected officials, but then be immune from public input on their exercise of discretion. I am an elected official, school board member, and welcome the input of my constituents in my decision-making.


Posted by: bruce cunningham | Jan 23, 2017 6:22:52 AM

Law enforcement, prosecution and incarceration have become an ever increasing per cent of local state and federal budgets. Mandatory minimums have lead to increasingly long sentences and enhanced the facility of the prosecution. We have a large, hungry and growing army of public employees filling these ever expanding government jobs.

Public employee unions are strong and wield great influence. They also have the capability of bankrupting government bodies with generous underfunded pension plans.

It's no wonder that free world marvels at the size of our prison population. When 30% of the population has an arrest record - perhaps we should reevaluate our criminal justice system. By the way, Weldon Angelos spent the week-end at the Sun dance Film Festival if I remember correctly.

Posted by: beth | Jan 23, 2017 5:26:30 PM

FYI- My lifelong friend Rick Wershe is another victim of mandatory sentencing. He was given a mandatory life sentence for a single non-violent drug offense. First offense, no weapons and he was a juvenile.

"Richard John Wershe Jr. is a political prisoner in America. The political component of his ordeal is local, it’s harsh and it’s vindictive.

Wershe, who grew up in Detroit, was sentenced to life in prison without parole for a non-violent drug crime committed when he was 17. The law was eventually changed to allow parole but that hasn’t made a difference for Wershe. He is Michigan’s last remaining juvenile non-violent drug offender, still behind bars after 29 years. Wershe, who has been described by a prison official as a near-model prisoner, was never charged with any drug-related violence, he was never charged with ordering any drug violence, he never operated crack houses, he was never charged with conspiracy because he never had a gang, he was never named as an unindicted co-conspirator in any narcotics case and he was never called as a witness in any drug trials. Yet, he’s been labeled a drug lord and kingpin." - http://www.thedailybeast.com/articles/2015/11/29/is-cocaine-legend-white-boy-rick-serving-life-for-busting-crooked-cops.html

Information, documents, links, etc related to Rick Wershe and his case:

Posted by: dave majkowski | Jan 23, 2017 8:41:06 PM

Bruce. I support election of district attorneys for the reasons you said, accountability to the public. I oppose their interfering with street prosecutor decisions for political purposes. I gave examples of politically motivated, wrongful prosecution decisions in my comment.

I also support ending all prosecutor immunities from professional tort liabilities. Although their work qualifies them for strict liability, allowing that would end all prosecutions. They may regulate themselves by liability under professional standards of due care. They may carry professional liability insurance as everyone is forced to do.

Such liability may require a constitutional amendment, since the Supreme Court has adamantly opposed any liability, even in the face of intentional misconduct.

Posted by: David Behar | Jan 24, 2017 12:21:12 PM

Beth. I marvel at the high crime rates allowed in Paris and London, and other cities in Europe. There is no punishment going on, so crime is immunized and exploded, despite the lying statistics of the governments.

I have said that if white people endured the crime victimization rates of black people, they would be screaming for the National Guard to patrol the city and to shoot to kill.

Here. It is happening in France. The military is guarding Fashion Week in France.


Posted by: David Behar | Jan 24, 2017 12:28:00 PM

Yes, but on the other hand, our justice system harshly prosecutes and incarcerates not only violent criminals but also nonviolent offenders where there are no victims. We don't distinguish. The war on drugs has ballooned the system.

Posted by: beth | Jan 24, 2017 2:59:05 PM

Beth. I doubt that drug dealers are non-violent. The murder epidemics of the 1980's and early 1990's were their serial killing of competitors. See the movie American Gangster, about the 18970's, then multiply by 10. I am not going to suggest that you try selling drugs in the territory of a released non-violent drug offender, because I care about your health. Try trespassing onto the farm of a Grateful Deadhead growing marijuana.

I am going to suggest that a researcher obtain a certificate of absolute immunity for survey information from the Department of Justice. Then, he should interview a representative sample of non-violent drug offenders, and ask, "How many competitors have you murdered?"

Posted by: David Behar | Jan 24, 2017 7:00:28 PM

When a nonviolent drug offender goes to trial and at sentencing the judge states there were no victims you can believe there are no victims. There are no charges dropped when you go to trial.

Posted by: beth | Jan 24, 2017 11:48:15 PM

Our local Judicial System is more corrupt then the people they put in Prison.

Posted by: LC in Texas | Jan 25, 2017 10:36:16 PM

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