Despite widespread recognition that mandatory minimums is bad policy, the politics of being 'tough on crime' precludes a more rational approach to sentencing
As a twenty-something federal prosecutor in Washington DC, during the crack epidemic in the late '80s, David M. Zlotnick realized that mandatory minimum sentences gave him more discretion than judges who had been on the bench for decades. Since the US attorney's office had the resources, it "prosecuted every five-gram crack-cocaine case." Zlotnick recalls how the poor black kids caught with these small quantities received "sentences of 10 to 15 years, as if they were kingpins of some sort, which seemed absurd to me. Cases involving similar amounts of powder cocaine, which disproportionately involved white defendants, got far less scrutiny.
After four years as a prosecutor, Zlotnick became the first litigation director of Families Against Mandatory Minimums (FAMM), a DC-based nonprofit founded in 1991 to challenge these sentences. And although FAMM was a relatively lonely voice at the time, a consensus has since developed among academics, judges, and others that mandatory minimums, which require specified prison sentences for particular offenses, represent a deeply flawed approach to criminal justice. Considering this, it's no wonder that officials at Roger Williams University law school, where Zlotnick is now a professor, had a hard time finding public comments in favor of mandatory minimums when they organized a symposium in October on sentencing rhetoric.
Laws prescribing mandatory minimums for certain crimes, usually drug offenses, originated to reduce sentencing disparities and to assure that offenders would receive equal time for the same crime. In the 1970s, New York and Michigan became the first states to institute such policies. New York's Rockefeller drug laws, for example, mandated a sentence of 15 years to life for selling or possessing two ounces of heroin or four ounces of cocaine.
Michigan's notorious "650 Lifer Law" consigned mid-level offenders convicted of delivering more than 650 grams of heroin or cocaine to prison for the rest of their years. By the mid-'90s, every US state had mandatory minimums or sentencing guideline laws. Rhode Island's somewhat flexible minimum sentences, codified in the state's Uniform Controlled Substances Act, date to 1988.
The current crop of federal sentencing laws was enacted in the Anti-Drug Abuse Act of 1986, which responded to the crack-fueled explosion of gun violence by instituting harsh penalties for trafficking small amounts of crack-cocaine. The most common minimums are based on the weight of the drug, or the presence of a firearm, since a defendant's position in a criminal enterprise cannot be uniformly codified.
Rather than serving as a deterrent, though, mandatory minimums have disproportionately landed low-level offenders in prison, resulting in considerable increases in the growth of America's prison population - -- and a growing racial disparity in the federal prison population -- while having little effect on the availability of drugs.
In fact, although the overall US crime rate has fallen since 1991, according to the Bureau of Justice Statistics, the number of people incarcerated has increased by 49 percent since then, largely as a result of changing sentencing laws. According to FAMM, the average federal drug sentence leaped from 65.7 months in 1984 to 95.7 months in 1991. (By 2003, Rhode Island's own prison population has grown 625 percent over the last 30 years, according to the state Department of Corrections, with the state now spending $130 million annually to keep about 3500 people incarcerated.)
These trends have aggravated budget crunches, leading some states to change course. Most notably, in Michigan, the Republican sponsor of the original mandatory minimum measure later turned against it. Activists have redoubled their efforts, joined by voices from across the political spectrum, including federal judges and US Supreme Court justices who question the wisdom of these draconian measures.
Yet even though mandatory minimums have been widely repudiated, and a number of states have started to diminish their reach, the reluctance of politicians to appear "soft on crime" commonly precludes progress. In speaking with about 100 Republican-appointed judges, Zlotnick says he has found only one who currently supports mandatory minimums. "I would say the only place you hear support for mandatory minimums is the [US] Department of Justice, which claims they need mandatory minimums to leverage cooperation," he says, "and from right-wing politicians in Congress, who think it sells in Peoria."
Case Studies In The System
On October 16, 1998, twin brothers Lamont and Lawrence Garrison were sent to jail for 19 and 15 years, respectively, in accordance with federal mandatory minimum sentencing guidelines, for allegedly possessing a small amount of powder cocaine and participating in a conspiracy to distribute larger quantities of crack-cocaine. Neither had a previous arrest, and both had worked part-time for five years to pay their way through Howard University. They lived with their mother, Karen, in Washington, DC, and were the first members of the family to go to college. "They never even stayed out all night," Karen Garrison recalls. "They never even missed school." Both had hoped to become lawyers.
The twins were ensnared in a larger investigation centered on a major player in 20-person cocaine-distribution ring in Maryland. The main target, however, began cooperating with the government, offering names and information in exchange for promises that his sentence would be reduced.
The prosecution argued that, because the brothers frequently called the main suspect's body shop, sometimes at odd hours, and occasionally his pager, they must have been involved in the distribution operation. Besides this evidence, the case was limited; no drugs were found on the Garrisons or at their house. Nor was there evidence that the brothers benefited materially from any drug trade -- each still had tens of thousands of dollars in college loans. Karen Garrison laments that a court-appointed lawyer failed to utilize crucial evidence and fell asleep during the trial.
Despite playing a key role in a major cocaine ring, the original suspect received a reduced sentence of three years for his cooperation. The Garrisons were not so fortunate. "When they said 'guilty', I passed out in the courtroom on the floor," Karen Garrison tells the Phoenix. "I couldn't believe it."
The brothers' case, one of many highlighted on the Web site of Families Against Mandatory Minimums, is a particularly horrid example of sentencing laws gone wrong. Most people sentenced under mandatory minimums, after all, are guilty of some crime. Still, the case of the Garrisons is not an anomaly. While federal mandatory minimums were meant to be a tool for bringing kingpins to justice, they were structured to allow high-level drug dealers the best chance of escaping a mandatory sentence, while clamping down on the mid-level and bit players.
Under such circumstances, John MacDonald, president of the Rhode Island Association of Criminal Defense Lawyers, says he would rather "take sentencing disparity any day over mandatory madness and uniformity."
MacDonald has two clients who recently entered guilty pleas and face mandatory minimum sentences in federal court. One is accused of delivering 50 kilograms of cocaine and is facing a 10-year minimum sentence, despite his "marginal culpability," according to MacDonald. Because of a prior arrest record, the other client is looking at a mandatory minimum sentence of 20 years for delivering a little more than five kilograms of cocaine.
For drug crimes like the ones for which MacDonald's clients are being tried, parity is achieved by basing sentencing on the weight of the drug possessed or distributed, a notion that strikes MacDonald as ridiculous, since "weight says nothing about culpability.
One particularly conspicuous example of weight-based sentencing is an amendment extending federal drug laws to include conspiracy to possess or distribute controlled substances, leading to an upsurge in what have been called "girlfriend" crimes. In this scenario, an unwitting or marginal accomplice who gives a friend a ride to drop off drugs or receives a phone call asking about buying drugs became subject to stiff mandatory minimums based on the weight of the drugs in question, even if they have never seen or handled them. While many offenders can plea down by offering assistance to prosecutors, "girlfriends" rarely can, and often end up serving longer time than more serious offenders.
The States Take The Lead
In 2002, Families Against Mandatory Minimums organized a broad-based coalition that overturned Michigan's most notorious mandatory minimum sentencing law, replacing it with guidelines that restored the ability of judges to consider various circumstances. The original author of the "650 Lifer Law," a Republican congressman, renounced it, and the measure was repealed with the support of a conservative legislature and governor.
Government officials in Michigan realized they were locking up first-time low-level offenders, not kingpins, explains Laura Fager, FAMM's national campaign director. The battle "for smarter sentencing" is happening on the state level, she says, largely because, "it's the states that feel the budget pinch first."
The results can be seen in places like Louisiana, which in 2001 repealed mandatory minimums for many drug possession offenses and lessened the minimums for trafficking by half, while also expanding treatment programs. California's "Three Strikes" law, which prescribes long prison terms for those convicted of a third felony, was amended in 2000 to allow some people charged with drug possession to enter treatment programs rather than receiving the mandated sentence of 25 years to life.
Similarly, Pennsylvania's Republican-controlled legislature voted in 2004 to give nonviolent drug offenders a combination of prison, treatment, and time in a halfway house. And although reformers say there's still a long way to go, the sentences for the most serious possession and distribution crimes in New York's infamous Rockefeller drug laws were shortened this year, from 15 years to life to between eight and 25 years.
A growing body of research has discredited mandatory minimums. In 1997, for example, the RAND Corporation reported, "Mandatory minimum sentences are not justifiable on the basis of cost-effectiveness at reducing cocaine consumption or drug-related crime." Meanwhile, Judy Greene, a policy analyst at Justice Strategies, a liberal New York nonprofit, believes legislators in different states have been emboldened by growing public support for treating, rather than incarcerating, low-level offenders whose nonviolent crimes were motivated by drug problems.
The spread of this perspective across the political spectrum has even reached the eminently conservative Heritage Foundation. David B. Muhlhausen, a senior policy analyst at the think tank, says, "Every time Congress or a state legislator gets upset about a particular crime, they can't just jack up the penalty for that crime." On the state level, he says, many officials are starting to realize that "prison bed space is a scarce resource. "
Closer to home, Rhode Island has two tiers of minimum penalties for drug crimes, both of which prescribe harsh sentences based on the weight of the drug in question. There remains plenty of room for improvement in creating what might be a more effective local response to crime. However, according to MacDonald and other legal observers, offenders tried at the state level almost never receive highly punitive mandatory minimum sentences. Typically, he says, a first-time offender caught possessing or delivering a small amount of marijuana is given probation; for cocaine or heroin, the sentence is usually around six months.
Zlotnick, the Roger Williams University law professor, affirms that the Superior Court, where most of the relevant drug cases are tried, has "thoughtful judges" who "try to calibrate the cases," based on the individual offender and the circumstances of the specific crime. Joseph Rodgers, the presiding Superior Court justice, flatly says, "There are no mandatory minimums in Rhode Island."
The Feds Get In The Way
In Washington, DC, however, the "tough on crime" ethos still dominates political rhetoric and legislation. For many people, drugs still equal crime, and politicians tend to capitalize on this perception. Continued support among congressional conservatives for the primacy of federal sentencing laws represents a disconnect between Washington and the states, as well as a departure from traditional conservative ideology, which supports states' rights on such issues.
In June, US Attorney General Alberto Gonzales criticized the Supreme Court decisions in the Booker and Fanfan cases, which made sentencing guidelines advisory, rather than mandatory, saying they will allow many criminals to receive light sentences. More federal mandatory minimum sentences, he suggested, could keep judges from "exercising their discretion to impose sentences that depart from the carefully considered ranges developed by the US Sentencing Commission."
Booker and Fanfan affect only the sentencing guidelines implemented by Congress in 1987, which have always been less restrictive than mandatory minimums, and mandatory minimums still take precedence in cases where both apply. Regardless, Gonzalez's rhetoric makes it difficult for alternatives to punitive policies to gain broader traction.
Because of the unique details of different cases, most judges dislike the inflexibility of mandatory sentences. In 2003, US Supreme Court Justice Anthony Kennedy said, "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust."
In the absence of flexibility, judges have frequently imposed mandatory minimum sentences against their will. Mary Lisi, a US District Court judge in Providence, recalls two fairly recent cases in which defendants with prior convictions were found guilty of possessing a large amount of crack-cocaine with intent to distribute. She had "absolutely no discretion at all, " and imposed a life term. "I look out there and I see a human being," she says. "I look to see what has he or she done until now . . . is there some reason why this person is engaging in this behavior? What prospects are there for rehabilitation?" In many cases, given the chance, Lisi says, she "would probably do something very different from what I'm required to do under the law."
This conflict can be seen in a dispute between federal prosecutors and two of Lisi's colleagues, US District Judge William E. Smith and Chief US District Judge Ernest C. Torres, over the disparity in sentencing for crack and powder cocaine. As the Providence Sunday Journal reported this week (see Judge Rails Against Drug Sentencing), the judges have backed a 20-1 powder-to-crack ratio in a few cases, while prosecutors insist on a 100-to-1 ratio. The ratios refer to the amount of drugs requiring mandatory minimums.
Thanks to a "safety valve" law passed by Congress in 1994, judges can reduce the sentences of first-time offenders with no prior felonies as long as the crime in question does not involve violence or the presence of a gun. Before Booker and Fanfan, the only other way to avoid a mandatory minimum was to provide the prosecutor with "substantial assistance" -- information that will help lead to the arrest of other, more culpable criminals.
In many federal cases, mandatory minimums have effectively transferred judicial discretion from judges to federal prosecutors, who decide which cases will be put on trial and what charges to make. These decisions are based on the likelihood of conviction, and the message, as then-AG John Ashcroft put it in a September 2003 memo, is to "generate the most substantial sentence or mandatory minimum. "
US Attorney Robert Corrente, Rhode Island's top federal prosecutor, suggests that mandatory minimums have had the desired effect in reducing sentencing disparities. "A lot of federal judges and others in the system have complained about the lack of flexibility that [mandatory minimums] affords them, " he told the Phoenix last year. "Some people see that as a good thing. Some people say, well, that's exactly the point."
Zlotnick, however, sees this federalization of crime as one of the worst impacts of mandatory minimums. "Crime in America is a local problem," he says. "At the country's founding there was treason, piracy -- those were federal crimes. Everything else was prosecuted at the state level."
The Road From Here
In May, the US House of Representatives passed HR1279, the "Gang Deterrence and Community Protection Act of 2005," on a 279-to-144 vote. The bill identifies a "criminal street gang" as a group of only three people who have committed two crimes together, one of which must be violent. It also applies mandatory minimums to gang crimes -- the shortest is 10 years to life -- and changes the definition of a violent crime to include some drug trafficking offenses that already carry mandatory minimums.
Meanwhile, the US House Judiciary Committee recently scratched an effort to lower the weight threshold of mandatory minimums in a new amphetamine law -- from five grams to three grams for five years, and from 50 grams to five grams for 10 years. When it comes to fighting mandatory minimums, "This is really a major victory," says Judy Greene of Justice Strategies, who hopes that "emerging rationality" is trickling up from the states to the federal level. "Some of us like to call it 'get smart,' " she adds, rather than 'get tough.' "
US Representative Patrick J. Kennedy, who voted against the gang deterrence bill, citing "unduly harsh and discriminatory minimum sentences," is less sanguine that Congress will back away from mandatory minimums. "I believe lawmakers should be cautious not to reduce the issue to specific instances and cases," he says, "but rather should take this opportunity to revisit the challenging balance between judicial discretion and uniformity and strengthen our justice system. "
Many observers are conflicted about the outlook, seeing progress at one end stonewalled and even reversed at another. While most cite a noticeable chasm between public opinion and the political landscape, they recognize that Americans unfamiliar with the criminal justice system tend to view mandatory minimums abstractly, despite their very specific effects.
Perhaps Corrente's view -- "I don't see the sentencing guidelines themselves going away any time soon" -- will prevail for some time since politicians have been so effective in equating virtue with harsh sentencing. On this, Zlotnick agrees: "Criminal justice policy plays out in the public in very simplistic ways: 'If you do the crime, you do the time.' " When it comes to a bipartisan effort to reform sentencing, he says, "It's going to take someone on the conservative side to make this issue their own."
In the interim, defense lawyer MacDonald, suspects that "each and every year there will continue to be different proposals for mandatory sentences, because they're nice, quick fixes." Such laws, he says, are "wonderful window-dressing for a society with a 30-second attention span."
Sidebar: Uphill Battle
Even In Rhode Island, Reforming Sentencing Laws Remains Difficult
Although Rhode Island lacks true mandatory minimum sentences, the state's minimum penalties still have a serious impact on the lives of those sentenced in accordance with them. People on probation are denied the right to vote, for example, and they often have trouble getting jobs.
The real problem, according to former state senator Tom Coderre, a recovering substance abuser who serves as a board member of Rhode Island Communities for Addiction Recovery Efforts (RI CARES), is how laws intended to "put serious drug dealers behind bars" disproportionately affect substance abusers who need treatment and other services to get their lives back on track.
In February, a nascent movement to reform the state's sentencing laws crystallized when state Representative Joseph Almeida introduced H5645, "Relating to Food and Drugs -- Uniform Controlled Substances Act." The bill would reduce the minimum sentences for a variety of nonviolent drug crimes. "A lot of people who are first-time offenders should not have to go to jail," says Almeida, a former police officer whose district includes Providence's South Side. "I'm not interested in the career criminal. I'm interested in the first-time offender. "
Forty percent of the state's 3400 inmates are serving time for nonviolent or drug offenses, according to "Political Punishment," a 2004 report by the Family Life Center (FLC), a Providence nonprofit that helps ex-offenders make the transition from prison to local communities. For Almeida and others of a similar mind, the state's budget problems, high rates of recidivism, and the comparatively low cost of treatment have made the current approach to sentencing untenable.
Ironically, an alternative model for sentencing does exist, in the world of juvenile courts, which maintains its traditional focus on treatment and rehabilitation. Jeremiah Jeremiah, chief judge of the Rhode Island Family Court, says mandatory minimums have never curtailed his discretion, allowing him to "take each juvenile as an individual, " and ask not how to punish offenders, but: "How we can make them better citizens?"
Almeida has seen the effects of aggressive drug laws firsthand, as urban communities like South Providence have been most devastated by the cycle of recidivism. Thirty-eight percent of Rhode Island's prison population comes from or returns to Providence, even though the capital represents only 17 percent of the state's population, according to the "Political Punishment" report. Noting that 40 percent of black men between 18 and 34 in Providence are incarcerated, on parole, or on probation, the report suggests that sentencing policy mirrors and even exacerbates the racial disparity in American prisons.
Though H5645 ultimately died in committee, the hearings on the bill earlier this year were promising and the bill faced little organized opposition in the House Judiciary Committee.
"There was interest in the bill," says Nathaniel Lepp, a Brown student and member of Students for Sensible Drug Policy, who testified in support. "In the very least, [there was an interest] in addressing sentencing laws. I didn't hear any voices in the room advocating mandatory minimums." He describes the current campaign as part of a larger effort to examine the state's criminal justice system as a whole, and to address the discrepancy between its purposes and its effects. (Voters will decide in November 2006 whether to make it easier for ex-offenders to regain their voting rights.) "What we have is a huge set of laws that cannot be reasonably enforced," Lepp insists. He describes the current laws as "a game of chicken" in which legislators ratchet up penalties without the expectation of them being universally enforced, "Not a serious attempt to offer a solution to a public problem."
FLC researcher Dan Schleifer sees the situation as a "barometer for the amount of money being thrown at the war on drugs in general." Rhode Island, he says, has a large drug problem and a need for treatment, but, "We're throwing money at [the problem] in a completely ineffective way that is not reducing consumption or abuse."
Carrie Blake, a recovering substance abuser who coordinates RI CARES, joined Coderre in offering joint testimony in support of Almeida's bill. She recalls being "busted for dealing when I was 18. " Instead of being jailed, she was put into a diversion program. "If I had gone to prison at 18," she says, "you'd be guaranteed a criminal." Coderre and Blake argued that the public "would be better protected by a program of a shorter incapacitating period followed by community-based intermediate sanctions," reminding the Judiciary Committee members, "Most of these inmates will return to our communities."
Remarking on the bill's failure in the last legislative session, Schleifer says, "The legislators involved didn't make this their number one priority." Almeida agrees, acknowledging a lack of organizational support or an effective educational campaign. "I have to take some of the blame for that, " he says. He maintains, though, "this particular bill is going to come back again," with increased organizational support and a larger public education campaign.