The best Forensic ArticlesMandatory Minimums: Tipping the Scales of Justice
By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABPS, DAPA
During the 1980s, the criminal justice system in the United States underwent some of the most dramatic changes since its inception. In large part, these changes were spurred by the notable increase in the sale, use, and abuse of drugs (especially crack cocaine), combined with a related increase in drug-related homicides. At the same time, minorities were being sentenced to disproportionately long prison terms, as compared to white offenders. Finally, there was a growing pattern of undue judicial leniency for certain categories of serious crimes.
At the time, judges essentially had full discretion and, as such, some degree of variation between sentences across judges and jurisdiction was to be expected. Several studies focusing on judicial sentencing were conducted in the late 1970s and early 1980s. All found differences in judicial sentencing that were far more disparate than expected. (Forst & Wellford, 1981; Rhodes & Conly, 1981; Sutton, 1978; Partridge & Eldridge, 1974) In one (sponsored by the Federal Judicial Center), there was a difference of 17 years in the sentences imposed by judges on identical hypothetical cases (Partridge & Eldridge). In another, the Department of Justice presented 16 hypothetical cases to more than 200 federal judges who were asked to render appropriate sentences for each. In only 3 of the 16 cases were the judges unanimous regarding the imposition of a prison term. Within cases, there was significant variation in the length of the imposed sentences, which ranged from 13 to 180 months. (Rhodes & Conly; Sutton)
A growing consensus asserted that the comparatively harsh sentences minorities were being handed were due to differences in judicial experience and theoretical orientation (toward punishment and rehabilitation), judicial bias, and varying contextual and jurisdictional influences. Sentencing disparity was compounded by another reality: Although a judge would sentence the convicted defendant to a specific term, the actual time served was determined by the Department of Parole. According to the Bureau of Justice Statistics, between mid-1979 and mid-1980, inmates sentenced to 1 to 5 years served an average of 70% of the imposed term. Those sentenced to 5 to 10 years served approximately 50%, and those sentenced to more than 15 years served only 40%. (Sabol & McGready, 1999) In other words, although the offender might receive a 15-year sentence from the judge, he or she might be released by parole after only 5. As a result, judicially imposed sentences had no real meaning or effect.
Standardizing Sentencing
In response to the need for greater fairness and honesty in sentencing, the U.S. Congress passed the Sentencing Reform Act in 1984, which was part of the Comprehensive Crime Control Act. With the Sentencing Reform Act, Congress established the U.S. Sentencing Commission (USSC), an independent and bipartisan agency that would become a permanent component of the judicial branch of government. (Wilkins et al., 1991)
The original commission consisted of seven members who were appointed and confirmed by the Senate. It consisted of individuals who had demonstrated expertise in the field of criminal justice, some of whom were members of the judiciary. Appointed in 1985, the Commission submitted its first Sentencing Guidelines to Congress in April of 1987, and the guidelines became law in November of 1987. The constitutionality of the Guidelines was widely challenged, thereby precluding implementation nationwide until January 1989, when the U.S. Supreme Court decided the issue through Mistretta v. United States.
The USSC was tasked with creating a system of sentencing that would be applied in a uniform manner by judges across the county. With more than 2,000 federal offenses at the time, the USSC determined the appropriate type and length of sentence for each. The USSC categorized all federal offenses (and offender characteristics) and established a sentencing range for each category, ensuring the highest sentence in any given range would never exceed the lowest by more than 25%. With the Guidelines, a judge determines the facts of a case and the offender’s criminal history, assigns “points” for various elements of the crime, and imposes a sentence from the established range.
Although judges may choose a sentence from within the range, they are not allowed to depart from the Guidelines when sentencing a convicted criminal, except in atypical cases and only if the reasoning behind the departure is explained in the record (as departed sentences can be appealed). Not only did the USSC sharply curtail judicial discretion, it allowed Congress essentially to eliminate the Department of Parole’s ultimate control of sentencing. After implementation of the Guidelines, the time to which a criminal was sentenced would be the true time the criminal would serve. The expectation was that the Guidelines would make sentencing more just, more transparent, and more “blind.”
Mandating Sentences
It was from a different type of court—the basketball court—that one of the other important changes in America’s criminal justice system arose during the 1980s. A player with tremendous ability and promise, Len Bias, was the number-two pick by the Boston Celtics during the 1986 NBA draft. Tragically, two nights later, on June 19, 1986, Bias died of “cocaine intoxication” at the age of 22. Quite simply, Bias’ overdose had a dramatic and far-reaching impact on the way America perceived and policed recreational drugs.
Then Speaker of the House, Democrat “Tip” O’Neill (coincidentally from Boston, MA) saw an opportunity to challenge the Republican Party’s assertion during the 1984 election that Democrats were “soft on crime” by getting “tough on drugs.” In order for the Democratic Party to benefit politically during the 1986 election, an anti-drug bill would have to pass both Houses by late September or early October. To accomplish this goal, the committee that was to write the bill had to complete the associated work in under a month, before the August recess.
Just weeks before the November 1986 election, the Anti-Drug Abuse Act of 1986 was passed into law. It had been written without the usual hearings or input from the typical range of experts. That is, the Act was drafted (and passed) without any input from judges, representatives from the Bureau of Prisons, substance abuse treatment professionals, or other sources of relevant information. In brief, the law created the Office for Substance Abuse Prevention and allowed for the establishment of drug abuse prevention programs nationwide. It also set much stiffer sentences for select offenses (especially for those involving drugs and weapons) and for recidivist offenders.
Unlike the Sentencing Guidelines (which allow for departure based on unique or exceptional circumstances within a given case), these new sentences required that convicted offenders receive specific (and comparatively harsh) prison terms with virtually no variation. Judges were now required to deliver fixed sentences to those persons convicted of specific crimes. Judges were no longer free to consider mitigating factors (including those research has proven relevant to recidivism), such as the offender’s degree of culpability and amenability to treatment or rehabilitation. Historically, much of this information had been provided by forensic psychologists and psychiatrists.
Arising out of an effort to curtail the exploding drug trade, the new sentences (for drug crimes) were based on three factors: the type of drug involved, the actual or alleged weight of the drug (generally, the higher the weight, the longer the sentence), and the number of prior convictions of the offender. Different substances have different set quantities that trigger specific mandatory sentences, and prosecutors are not required to physically produce the specific quantity of drug(s) to “prove” the charged quantity (“proof” can be offered in the form of witness testimony).
These new sentences—dubbed “mandatory minimums”—were incorporated into the Sentencing Guidelines and had a dramatic, immediate impact. Before “mandatory minimums,” drug offenders (on average) received prison sentences of 22 months; after, the sentence for the average drug offense jumped to 66 months (USSC, 1995–2007a; Sabol & McGready, 1999). Although “mandatory minimums” were primarily intended for “high-level” traffickers or the heads of drug distribution networks, the law applied to everyone involved in the conspiracy to traffic legally controlled substances, regardless of how minimal the individual offender’s involvement. In other words, a runner at a given meth lab was now legally liable for all the meth ever sold (not just at the specific lab) by the organization that controls the given lab.
By 1991, Congress had created nearly 100 separate “mandatory minimum” provisions, resulting from approximately 60 legislative statutes. Of these 60, only four that deal with drugs and firearms frequently result in convictions (Wilkins et al., 1991). “Mandatory minimum” statutes generally came into existence as floor amendments, as part of political posturing around getting “tough on crime.” In fashioning these statutes, very little consideration is given to the impact they have on the Sentencing Guidelines as whole.
Legal Loophole
In the hopes of using the new and harsher sentences to the government’s advantage, a provision was included in the Sentencing Guidelines that would allow for downward departure from the “mandatory minimum” sentence. That is, a defendant may receive a sentence less than the minimum mandatory sentence if and when the offender provides “substantial assistance” with the investigation and prosecution of another offender’s criminal activities, and only upon motion by the prosecution.
Upon such a motion (often referred to as a “5K” provision, taken from the section number of the Sentencing Guidelines), the judge must consider the nature, extent, significance, truthfulness, and timeliness of the defendant’s assistance before imposing a sentence derived from the Guidelines. Judges are instructed to give “substantial weight” to the prosecution’s evaluation of the defendant’s information, cooperation, and assistance, and they must include their reasoning for the departure in the record (GAO, 2003). Again, if the prosecution does not file a “substantial assistance” motion, the judge is bound to sentence the defendant to the “mandatory minimum” or higher, depending on the elements of the case.
It was soon discovered that only 11% of federal drug defendants were the “high-level” drug dealers “mandatory minimums” were intended to punish, half of whom were involved with crack cocaine (Wilkins et al., 1991). Recognizing that “mandatory minimum” sentences were perhaps unjustly penalizing certain very “soft” criminals (in particular, those attached to drug crimes), Congress enacted a “safety-valve” provision in 1994. This new legislation allowed relief from the mandatory sentence for first-time offenders (with a minimal criminal history), who were not armed or violent and who were not “high-level” participants in the crime.
In January 2005, in U.S. v. Booker, the U.S. Supreme Court held that the Sentencing Guidelines are “advisory” rather than absolute, thereby restoring a degree of judicial discretion (Hinojosa et al., 2006). However, that discretion does not extend to those Guideline offenses that carry a “mandatory minimum” sentence. In order to receive a downward departure at sentencing, one of the two statutory provisions (“safety valve” or “substantial assistance”) must apply.
A Motive to “Snitch”
Whether it’s called providing “substantial assistance,” “cooperating,” “turning state’s evidence,” “ratting,” “flipping,” “whistleblowing,” or becoming an “informant,” to have any hope of avoiding a “mandatory minimum” sentence or of receiving a downward departure, the offender must “snitch.” In other words, the government offers a criminal a “reward” for information leading to the arrest and prosecution of another criminal. As mentioned, the reward may be avoiding prosecution altogether, a reduced charge (with no “mandatory minimum”), a reduction of the “mandatory minimum” sentence, a flat fee, a percentage of confiscated money resulting from the information, special services or preferential treatment if already incarcerated, or negotiated lenience for someone else.
Rewarding “snitches” for “substantial assistance” is sanctioned by law in criminal cases, but not civil (Harris, 2000). For example, 21 U.S.C. Section 886(a) (2000) authorizes the Drug Enforcement Agency to make “appropriate” payments to informers. 18 U.S.C. Section 3059B (2000) authorizes discretionary payments to informants of up to $100,000 that are not subject to judicial review. United States v. Boyd (833 F. Supp. 1277 (N.D. Ill. 1993)) allows for prison gang members who become informants to receive contact visits, illegal drugs, clothing, telephone privileges, and “gifts.”
Offering rewards for “substantial assistance” seems to have become the standard of practice, certainly in drug cases, but also in those involving insurance or Medicare fraud, gambling, money laundering, racketeering, bribery, murder, and antitrust crimes. By the early 1990s, the U.S. government was paying informants or snitches more than $100 million a year (Caulkins et al., 1997). Thousands of others were rewarded or paid with reduced sentences. In the last quarter of 2007, of all drug cases with an attached “mandatory minimum,” 52.4% received a “substantial assistance” downward departure (USSC, 2008a). Approximately 40% (whose criminal activity warranted a “mandatory minimum” sentence) were able to exchange information for the opportunity to plead to an offense with a lesser or no “mandatory minimum” attached.
The Benefits and Costs of Crime
It has primarily been the “high-level” drug offenders (the ones for whom the law was intended) who benefit from the “substantial assistance” provision. In 2005, of all those defendants facing federal charges associated with cocaine, approximately 10.6% were “high-level”; in contrast, 57.3% were “low-level” offenders (USSC, 2007a). Obviously, those at the top of drug-trafficking organizations have more valuable information to exchange with the prosecution for a reduced (or even no) sentence than do those at the bottom. Not only do they know everyone who works under them, they know those custom officials, law enforcement officers, etc., who facilitate their organization’s operation. More troubling is the fact that “high-level” drug dealers can essentially “pick and choose” what information they give, minimizing the effect on their network as a whole.
Although “high-level” drug offenders seemingly benefit from “mandatory minimums” as compared to “low-level” offenders, they often receive tougher sentences than do some violent criminals (in particular, those whose crime has no attached mandatory sentence). For example, during the last quarter of 2007, the mean/median federal sentences for manslaughter and assault were 44.5/31.5 and 35.8/27.0 months respectively (USSC, 2008a). In contrast, the mean federal sentence for drug trafficking was 80.6 months and the median, 60.0.
Not only do “mandatory minimums” skew sentences across categories of crime, they also skew sentences within categories, especially within drug crimes (USSC, 1991–2007a, 1991-2007b; Wilkins et al., 1991). A clear example exists in the disparity between sentences for crack versus powder cocaine (Hinojosa, 2008; USSC, 2007b). By late 2007, more than 35% of federal cases were for drug crimes; of those, 24% involved crack cocaine and 21.5%, powder cocaine (Hinojosa, 2008; USSC, 2008a; GAO, 2007). Yet it takes 100 times more powder than crack cocaine to trigger the same mandatory sentence. Referred to as the “100-to-1” ratio, it in no way reflects the actual comparative “dangerousness” of the two forms of cocaine.
Currently, possession of 5 grams of crack cocaine results in an automatic, “mandatory minimum” prison sentence of 5 years (even for first-time offenders); possession of the same quantity of powder cocaine is considered a misdemeanor and receives a maximum 1-year prison term (USSC, 2007b). Dating back to 1991, State and Federal Courts have found that quantity-based sentences are both irrational and prejudicial (see, for example, State of Minnesota v. Russell, 1991). Maintaining a historical trend, in 2006, just more than 80% of crack cocaine offenders were African-American. As such, it has been argued that African-Americans are unfairly penalized by the harsher sentence for crack cocaine. Despite this long-recognized disparity, it was not until April 2008 that Congress allowed the Guidelines to be amended to establish more fitting sentence ranges for cocaine-related crimes (USSC, 2008b).
Disparate Justice
Although “mandatory minimum” sentences and the “substantial assistance” provision were intended to reduce sentencing disparity, it appears the opposite has occurred. Historically, when offenders provide assistance, it is typically in the same category of crime for which they have been accused or convicted. As most drug users tend to buy from dealers of their own race, “snitches” typically provide the government with information on others within their own community.
This trend led to the contention that the disparity inherent in “mandatory minimum” sentences specifically targets minorities. In the mid-1980s, the average drug sentence for African-Americans was 11% higher than that for whites; by 1990, that figure had increased to just under 50% (McCurdy, 2006). Consistent with this, it has been demonstrated that 80% of all search warrants issued for predominantly African-American and Latino neighborhoods relied on confidential informants (Coker, 2003).
Along with racial disparities, “mandatory minimums” have also worsened gender disparities in sentencing. The number of women in prison for drug law violations increased by more than 420% between 1986 and 1996 (and by 800% for African-American and Hispanic women), resulting in 70% of the population of female prisoners being “low-level” and non-violent offenders (McCurdy, 2006; Snell, 1994). In 2003, of all female federal prisoners, 58% were convicted of drug offenses.
“Mandatory Minimums” and the Prison System
By 1998, 40% of all federal sentencing was for drug crimes, and federal prisons saw more than a 400% increase in the number of inmates sentenced on drug convictions (FBP, 2008; McCurdy, 2006). Between 1986 and 1991, drug offenders accounted for 44% of the increase in the state prison population. Today, more than half of federal prisoners are in on drug offenses and continue to be primarily “low-level” drug dealers. (FBP)
With the increase in prison terms associated with “mandatory minimums” and the increase in the number of inmates incarcerated for drug crimes, the total prison population has been swelling since the law was enacted in 1986. This, in turn, resulted in the need for additional guards and facilities to manage the growing inmate population, driving up tangible and intangible costs to both the prison system and to society.
To house an inmate in federal prison, it costs just under $2,000 per month (GAO, 2007). In 1986, the total budget for the federal Bureau of Prisons was $220 million. By 1997, that figure had escalated to $2.6 billion, and as of 2006, it had jumped to just under $5 billion. Again, a tremendous proportion of this money is being spent on non-violent, “soft” offenders, as the more “sophisticated” criminals often spend less time in jail as a result of the “substantial assistance” provision.
Drug cases have certainly flooded our criminal courts and prison system. Yet, this is not necessarily because the government has truly become “tougher” on drug crimes, but because drug cases have become easier and faster to process. As such, what was designed to be an adversarial process in search of justice has become an administrative process of expediency and appearances.
“Substantial Assistance” or “Testalying” for a Bribe
In order to earn the negotiated “reward” for providing “substantial assistance,” offenders are often required to testify during the trial of another criminal. Many law enforcement officers and inmates alike refer to this “arranged” testimony as “testalying.” Understandably, defense attorneys regularly assert these prosecution witnesses are committing perjury, willing to “say anything” to reap the rewards offered by the prosecution. Of note, there is no record of a federal “substantial assistance” witness being tried for perjury, although this may in no way reflect the actual occurrence of perjury.
The American Bar Association’s “Model Rules of Professional Conduct” make no distinction between prosecutors and defense attorneys when rules state a lawyer shall not “offer an inducement to a witness that is prohibited by law” (Section 3.4(b)). Yet, while defense attorneys are not permitted to “reward” witnesses, prosecutors may. It is generally believed that because prosecutors have the dual responsibility of obtaining a conviction and seeking justice, they will not abuse the power they hold or suborn perjury from any witness. Yet it has been shown that 20% of all proven wrongful convictions (and 45% of capital cases) involved “snitch” testimony (CWC, 2004–2005).
The “substantial assistance” provision is generally considered to be a “necessary evil” in the “war on crime.” A general trust is placed in prosecutors’ ability to weigh the social risks and benefits of giving one criminal a “pass” on their crime(s) in order to (hopefully) convict another. Informants (who are released with little or no time behind bars) are essentially given permission to continue in their illegal behavior and to reap the benefits without consequence and with reward. Albeit, along with the reward, the offender risks potential discovery by and consequences from those about whom he or she “snitched.”
To some, the “substantial assistance” provision sends the message that the government is not only tolerating and reinforcing crime, but actually encouraging recidivism. Others contend that without informants and “snitches,” the government would never be able to penetrate organized crime or drug networks. Still others assert that the provision has resulted in investigator “laziness,” as the information that the “snitches” provide cuts down on a lot of the “foot work” involved in catching criminals. This leads others to question whether “snitches” may be controlling some drug investigations, and whether prosecutors lose their independent decision-making ability when they build their cases on the “substantial assistance” of “snitches.”
Shifting the Balance of Power
Although the Sentencing Guidelines were intended to further justice by increasing objectivity in sentencing, “mandatory minimums” have severely diminished judicial discretion, the intended core of objectivity in the criminal justice system. At the same time, “mandatory minimum” and “substantial assistance” statutes have resulted in a tremendous expansion of prosecutorial power and control. In brief, they shifted discretion from judges to prosecutors.
As before, prosecutors determine what charges to file, which, since “mandatory minimums,” determines the sentence. As before, prosecutors decide whether to reduce a charge and whether to offer, accept, or deny a plea bargain. Since “mandatory minimums,” prosecutors have the authority to reward or deny a defendant’s “substantial assistance” or cooperation, thereby setting the final sentence.
Most significantly, unlike traditional plea bargains, “snitch” agreements are “secretive” and absent the legal safeguards that are protected by due process. The offender is not represented by counsel, and the agreement is not reviewed by a judge. Often the agreement is not formalized in writing and even those that are written are not legally enforceable by the offender. With full discretion and no public accountability, the prosecution is not bound to uphold its side of the agreement.
Open Analysis
In 1990, the Sentencing Commission was directed by Congress to research and report on the general effect of “mandatory minimum” sentences. In its 1991 report, the Commission voiced its opposition to “mandatory minimums,” along with that of the judiciary and the American Bar Association (including defense attorneys and prosecutors). Despite its best efforts to integrate “mandatory minimums” in the Guidelines in 1986, the Commission concluded, and maintains, that these sentences are “manifestly unjust.”
The Sentencing Commission, the Department of Justice, and the Criminal Justice Research Program of the Rand Corporation have found that the tougher “mandatory minimum” sentences fail to deter crime (Coker, 2003; Caulkins, Rydell, Schwabe, & Chiesa, 1997). A primary goal of imposing more severe penalties for select crimes was to enhance the deterrent effect of prison. Yet that goal is undermined by the uncertainty and disparity of sentencing inherent with the “substantial assistance” provision. In terms of obvious indicators, over the 10 years after “mandatory minimums” were enacted, the number of drug violations increased by just less than 50%. During that same time, there was a steady increase in the availability of controlled substances and a concomitant decrease in cost (Turner, 2000).
In part, the Sentencing Guidelines were developed in response to the increase in plea bargains and in an effort to increase the “transparency” and “truthfulness” of sentencing. Yet during the last quarter of 2007, 97.6% of federal drug cases were resolved through plea bargains (USSC, 2008a). Although the Sentencing Guidelines have been a positive step toward bringing more uniformity and transparency to sentencing, “mandatory minimums” and “substantial assistance” negotiations have worked in direct opposition. With Congress having ultimate authority over sentencing policies, as long as “mandatory minimums” remain politically popular, the criminal justice system will remain unbalanced.
References
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