June 2010

Sentencing Commission Takes New Look at Mandatory Minimums

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The United States Sentencing Commission hears from a panel of witnesses during its daylong public hearing May 27 in Washington, D.C. The Commission is studying mandatory minimum sentences, required in more than 170 federal criminal statutes.

Mandatory minimum sentences—a successful and necessary crime-fighting tool in the federal criminal justice system, or the major obstacle to fair, effective, and efficient punishment for wrongdoers?

In a daylong public hearing on May 27, legal experts gave the U.S. Sentencing Commission those warring assessments and others somewhere in between, of the more than 170 federal statutory provisions requiring the imposition of a sentence of at least a specified minimum term of imprisonment for certain crimes.

The eight-member Commission, an independent agency in the federal Judiciary, has been directed by Congress to undertake a comprehensive review of mandatory minimum penalties and their effects on the federal sentencing system. Commission Chair William K. Sessions III, chief judge for the U.S. District Court for the District of Vermont, called the “extremely important” hearing “another step in the Commission’s information-gathering process.”

The Commission received testimony from witnesses in six panels representing law enforcement, defense attorneys, academia, public policy analysts, and advocacy groups.

The Commission, which last focused on mandatory minimum sentences in a 1991 report that was highly critical of such statutes, is expected to submit an updated report to Congress no later than October 2010. Congress said it wants to know what the Commission thinks about these topics:

• Effects of mandatory minimum sentencing on the goal of eliminating unwarranted sentencing disparity, the other goals of sentencing, and the federal prison population.
• Compatibility of mandatory minimum sentencing laws and the current federal guideline system.
• Interactions between mandatory minimum sentencing and plea agreements.
• Means other than mandatory minimums by which Congress can act in regard to sentencing policy.

At the hearing, U.S. Attorney Sally Quilian Yates from the Northern District of Georgia represented the Obama Administration, the U.S. Department of Justice, and federal prosecutors across the country in urging the “continued but judicial use of mandatory minimum sentencing statutes.”

“We recognize that some reforms… are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate,” she said. “Federal prosecutors do not support mandatory minimum penalties for all crimes… Rather, acknowledging our current advisory guidelines system and recognizing that mandatory minimum penalties provide critical tools for combating serious crimes, we support mandatory minimum sentencing statutes now for serious crimes.”

Also testifying in support of retaining at least some mandatory minimums was David Hiller, national vice president of the Fraternal Order of Police, who credited such penalties for playing a part in crime rates that “have reached historic lows in the past 15 years.”

“The fight against crimes involving firearms is an excellent example, with mandatory minimums applying to both initial and repeat offenses,” Hiller said. “The use of mandatory minimum sentences is crucial to eliminating gun violence and reflects the seriousness of using firearms to commit crimes.”

Federal Public Defender Michael Nachmanoff from the Eastern District of Virginia strongly disagreed while testifying on behalf of federal public and community defenders. “The guidelines system has vastly improved since the Supreme Court (in 2005) rendered the guidelines advisory… However, the problems with mandatory minimums that the Commission identified in 1991 not only remain, but have increased over time,” he said.

“Advisory guidelines do not reduce the problems created by mandatory minimums, nor do they make mandatory minimums any more necessary. There is no evidence that judges would impose unduly lenient sentences on serious and dangerous offenders without a statutory floor. There is, however, overwhelming evidence that mandatory minimums require excessive sentences for tens of thousands of less serious offenders who are not dangerous.”

The American Bar Association, represented at the hearing by Tampa, Fla., lawyer James E. Felman, also opposed mandatory minimums. “The United States now imprisons its citizens at a rate roughly five to eight times higher than the countries of Western Europe and 12 times higher than Japan. Roughly one-quarter of all persons imprisoned in the entire world are behind bars here in the United States. In the 25 years since the advent of the mandatory minimum sentences for drug offenses and the adoption of the Sentencing Guidelines, the average federal sentence has roughly tripled in length… The time has come to reverse the course of over-incarceration,” Felman said. “Sentencing by mandatory minimums is the antithesis of rational sentencing policy.”

The Judicial Conference of the United States, which sets policy for the federal courts, consistently and vigorously has opposed mandatory minimum sentencing. In testifying for the Conference before Congress last year, Chief Judge Julie Carnes (N.D. Ga.) said that opposition stemmed from “a recognition, gained through years of experience, that mandatory minimum sentencing provisions have created untenable results and that they simply do not hang together in any coherent or rational way.” The Conference did not participate in the Commission’s May 27 hearing.