By David Kopel
The National Law Journal, December 6, 1993, p. 15. More by Kopel on sentencing law.
SMOKE A JOINT and go to prison for a five-year mandatory minimum federal sentence? That would be one of the effects of new proposals for mandatory minimum sentences being discussed in Congress as possible amendments to the Democratic crime bill.
One proposed amendment would impose a five-year mandatory minimum for possession of a gun in violation of the Gun Control Act of 1968.
The new proposal would have no effect on people with criminal records who illegally buy guns. Those people have been subject to stiff mandatory minimums ever since 1986.
So who would be affected by the new proposal? The 1968 law makes it illegal to purchase a gun if the purchaser is a "user" of any controlled substance, including marijuana. So if someone smoked marijuana occasionally and then bought a 22 rifle for occasional use at a target range, that person would face a five-year minimum term.
Another set of amendments to the crime bill would require a 5- or 10-year mandatory minimum for delivery of a controlled substance to a minor. So when a college student gave her high school brother a marijuana cigarette, she would be required to serve 10 years in federal prison with no parole.
Are those harsh cases unlikely to materialize? The very purpose of mandatory minimums is to forbid the exercise of judicial discretion. And consider the kinds of cases that existing mandatory minimum laws already have generated:
* Terry McCabe was sentenced to 46 months in prison for selling $ 150 worth of LSD.
* Jeff Stewart was sentenced to five years for growing marijuana, while two of his friends (who had criminal records) received probation as their reward for turning him in.
* Actor Joe Renteria served 11 months in state prison for conspiring to buy marijuana and cocaine. After returning home, getting married and starting to write a script, he was prosecuted in federal court for the very same offense to which he already had pleaded guilty in state court. The judge had no choice but to sentence him to the five-year mandatory minimum, with no credit for time served in state prison.
Are those cases isolated? In 1992, according to a study that the U.S. Sentencing Commission prepared for Rep. Charles Schumer, D-N.Y., 3,189 non-violent, first-time offenders with no aggravating role in the offense were sentenced under the mandatory minimums: in other words, nearly 13 people each day the courts were in session.
Perhaps some of those 13 deserved a lengthy sentence, and there is little reason to doubt that the judiciary dominated by Reagan-Bush appointees would impose lengthy sentences when needed. But of those 13 people sentenced every day, there was not one for whom any federal judge could consider mitigating circumstances.
Half of all offenders entering the federal prison system for drug crimes are first-time offenders, according to the National Criminal Justice Association. And about 62 percent of federal prisoners are drug prisoners.
But for all their severity, mandatory minimums for drug offenses are doomed to fail in reducing drug trafficking. When a mugger or child abuser goes to prison, there is one fewer mugger or child abuser around to endanger the public. By contrast, incarcerating drug sellers does not reduce the number of people selling drugs.
As economic analysis suggests, demand creates its own supply. If one drug dealer is taken off a street corner, or even if a whole drug distribution network is sent to prison, another group of drug vendors rapidly comes to take its place.
The very structure of the mandatory minimums ensures that they fall most severely on the small-scale offender. Unlike criminals higher up the chain of command, the small-time criminal cannot inform on anyone else and thereby render "substantial assistance" to the government, which is the only way to avoid a mandatory minimum. As Chief Justice William H. Rehnquist wrote, "There is a respectable body of opinion which believes that these mandatory minimums impose unduly harsh punishment for first time offenders, particularly for mules who played only a minor role in a drug distribution scheme."
Significantly, the judges of every federal circuit court have enacted resolutions calling for repeal of the federal mandatory minimums. A Gallup survey of 350 state and 49 federal judges who belong to the American Bar Association found 8 percent in favor of and 90 percent opposed to the federal mandatory minimums for drug offenses. The Judicial Conference of the United States, which represents federal judges, has endorsed repeal of mandatory minimums, as have the American Bar Association and the Federal Court Study Committee (which was created by Congress).
While some resistance to mandatory minimums might be expected under any circumstances from a judiciary resistance to legislative encroachment on sentencing prerogatives, the nearly unanimous resistance from a bench dominated by Reagan-Bush appointees devoted to the "tough-on-crime" viewpoint is remarkable.
Short of repeal, there are two steps Congress could take to slow down, at least, the rush to enact even more poorly conceived mandatory minimums.
First, every mandatory minimum proposal should require a "prison impact assessment" to assess the fiscal impact of the mandatory minimum and the degree to which a new mandatory minimum would lead to release of violent offenders to make room for mandatory minimum offenders.
Second, all mandatory minimums, including existing ones, should be subject to a seven-year sunset review. After review, laws enacted at the height of congressional hysteria on a particular issue could be allowed to lapse quietly after the hysteria had run its course. And, of course, the sunset provision would allow the mandatory minimums to continue, if the reviewing Congress so chose.
Politicians know the public is fed up with the criminal justice system, and many seem to think that mandatory minimums will give them the "political cover" they need for re-election. They may be right about the politics, but mandatory minimums are only going to make a bad situation worse.