Policy opttions brief



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POLICY OPTTIONS BRIEF
TO: Rep. Jim Sensenbrenner, Chairman and Rep. Louie Gohmert, Vice-Chairman of the U.S. House Committee on the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations

FROM: Elias A. Baez

SUBJECT: Undoing the Financial and Social Burden Resulting From Mandatory Minimum Penalties for Drug Offenses

DATE: October 16, 2015


Executive Summary

Mandatory minimum sentencing laws require judges to punish certain crimes with a minimum number of years regardless of context. Federal mandatory minimums related to drug laws are usually triggered as a consequence of the amount of drugs involved in the offence. This memorandum briefly outlines the history and implementation of federal mandatory minimum sentencing laws specific to drugs, the weakened judicial process resulting from said laws, its direct link to an exponential rise of the prison population and federal spending, the disproportionate impact it has had on racial minorities, and the limitations of the current remedies implemented.

Federal mandatory minimum sentencing has a long established history in the United States. Initially, these mandatory sentences were reserved for a specific set of offenses. The 1950’s saw broadening in the application of mandatory minimums as Congress began to enact such laws outside of the realm of “treason, murder, piracy, rape, slave trafficking, internal revenue collection, and counterfeiting” (USSC Report, 22). Between 1950’s and the 1980’s, we see fluctuation in Congress position and attitude regarding mandatory minimums related to drug offenses and the length of the sentence imposed. The Narcotic Drugs Import and Export Act established a two year minimum for first time offenders and the 1956 amendments to this law saw an increase to a five year minimum for certain offenses (Quinn & McLaughlin, 619-620). These mandatory minimums saw a decrease in popularity throughout the 1960’s and were eventually replaced by the Comprehensive Drug Abuse Prevention and Control Act of 1970 which repealed generally all minimum sentencing in favor of context specific sentencing (USSC Report, 22; Quinn & McLaughlin, 619-620). We see another shift occurring in the 1980’s and early 1990’s as a result of changing socio-political and legislative attitudes. This shift was dominated by an escalating “War on Drugs” that received bipartisan support with a “tough on crime” attitude (LWT WJO). Due to heightened media attention and public sensitivity of the time, Congress was able to pass the Anti-Drug Abuse Act of 1986 without even having a hearing on the matter (USSC Report, 22; Sterling). This law established minimum sentences of 5 or 10 years, depending on the charge, and would have far reaching effects on federal sentencing policy for over 20 years.
Problem: Broken Judicial System, Increased Federal Spending, and the Disproportionate Effect on Minorities

Generally speaking, mandatory minimums have a negative effect on a judicial proceeding’s ability to dispense fair sentences. The effects are pervasive and have consequences on the judicial process at all levels. Federal mandatory minimums bind the hands of all federal judges as discretion is taken away from them in the sentencing phase irrespective of any mitigating circumstances they would have considered otherwise (Cassell & Luna, 219; Saslow; O’Mara). If the facts of a case trigger the mandatory minimum drug laws – and does not trigger one of the two relief measures discussed later in this memo – the judge is required to issue the minimum sentence established by said laws. In Saslow’s profile piece on U.S. District Judge Mark Bennett, Judge Bennett showed his exasperation at the fact that federal drug cases are reduced to an apply-if-it-fits model irrespective of the mitigating circumstances he would have taken into consideration otherwise. In one case involving such circumstances that required a ten year minimum sentence, the judge declared “I would have given him a year in rehab if I could… How does 10 years make anything better? What good are we doing?” Judge Bennett is not alone. A 2010 survey filled out by U.S. District Court judges showed that when considering all offences in which a statutory mandatory minimum was applicable, 62% thought the sentence was too high. For offenses related to crack cocaine, that number shot up to 76% (Sourcebook).


Aside from tying the hands of judges, mandatory minimums have another detrimental effect on the judicial process in that it essentially provides sentencing power to prosecutors. As prosecutors normally have the discretion of what charges they seek in any given case, there is concern over how often they leverage the threat of extreme minimum sentences to force defendants to take a plea deal or to provide “substantial assistance” for the prosecution of another offender (Cassell & Luna, 219; O’Mara; Segura, 7; Sterling). Segura looks at how potential drug sentences are enhanced by prosecutors using § 851 of the U.S. Code which allows prosecutors to use previous convictions to establish the use of minimum sentences – known as recidivist enhancements. The concern for such abuse was so pervasive that former Attorney General Eric Holder’s Justice Department memo on mandatory minimum sentencing instructs federal prosecutors to refrain from using such enhancements unless certain guidelines established within the memo are met (USDOJ Memo; Segura).
The effects of mandatory minimums are not limited to procedural failures and abuse. There is a real and measurable cost to mandatory minimums, especially those related to drug laws. These costs can be measured referencing two variables. The first variable is the federal prison population related to drug offences. There is no doubt that prisons are currently overcrowded. In his 2013 statement to the U.S. House of Representatives, the Director of the Federal Bureau of Prisons (BOP) indicated that federal institutions are operating overcapacity by an alarming percentage: higher security facilities at 54 percent over capacity and medium security facilities at 44 percent over capacity (Statement, 4). This overcrowding is the direct result of the federal mandatory sentencing regarding drug laws. This is verified when looking at the most recent statistics on offenses provided by the BOP. Of over 206,000 inmates housed in federal facilities 48.6% have been convicted of drug related offense (BOP Statistics). To put this into perspective, the population of inmates in the early 1980’s – prior to the enactment of tough on drug laws that started coming in 1986 – was approximately 24,000 federal inmates (Saslow).
The second variable is the fiscal cost. Current estimates calculate that the cost of keeping one inmate in prison is approximately $29,000 and that the federal prison system uses over 25% of the Department of Justice’s budget (Saslow; FAMM - Quick Facts). Based on the current prison population and the estimated cost, this puts the costs of maintaining the entire federal prison population at approximately $6 billion dollars. Considering that federal prisoners are required to serve 85% of their sentence, maintaining a federal prisoner serving a minimum 5 year sentence will cost a minimum of approximately $123,000 and that doubles for a 10 year sentence. To put this into context, we can look at the cost of a potential alternative that could be applied in place of a lengthy prison sentence for certain cases. The 2012 estimated costs for a full year of methadone maintenance treatment was less than $5,000 per person (HHS Publication, 13). Considering similar alternatives in place of mandatory minimums would have a substantial impact on federal spending for he BOP.
There is yet another level at which we can observe the shortcoming of mandatory minimums, and that is with respect to the consequence of racial inequality in sentencing. Take into consideration how the 1986 Act differentiated between cocaine base drugs and powder cocaine. The law created a 100:1 ratio between the quantities of the different forms to trigger a mandatory minimum of five years: whereas 500 grams of powder cocaine would trigger the sentence, only 5 grams of cocaine base drugs were required to trigger that same sentence (USSC Report, 25). Dahl summarizes the consequences of this law in the context of race based on 2010 statistics:
“Demographically, about half of all powder cocaine offenders are Hispanic, roughly a quarter are Black, followed by White offenders. However, over three quarters (78.6%) of crack cocaine offenders are Black, followed next by Hispanics who constitute 13% of all offenders.” (282)
These numbers highlight the disproportionate effect that mandatory minimums have on racial minorities due to the laws as they stood in 2010. Having passed the 1986 Act without a hearing, there is no clear guideline or reason to explain the distinction between the two forms of cocaine, which has led to repeated criticism especially in light of the racial inequity in sentencing.
In response to the rising costs of maintenance, the rise in the prison population, as well as the disproportionate rates of incarceration among certain racial minorities, Congress has enacted two remedies. The first of these remedies came in 1994 when Congress amended the U.S. Code with § 3553(f) Limitation on Applicability of Statutory Minimums in Certain Cases – colloquially known as the drug “safety valve” (USSC Report, 35; FAMM - Safety Valve). The effect of the safety valve was to create a narrow set of conditions by which a judge could avoid issuing a mandatory minimum: “it applies only to first-time, nonviolent drug offenders whose cases did not involve guns” (FAMM - Safety Valve). The second of the relief measures was implemented with the intended purpose of addressing the racial disparity of the drug laws – the Fair Sentencing Act (FSA). The FSA was passed by Congress in 2010 and reduced the 100:1 ratio down to 18:1 (USSC Report 29-31; ACLU – Fair Sentencing Act). More importantly, in 2011 the US Sentencing Commission voted to have the sentencing guidelines of the FSA apply retroactively (ACLU – Fair Sentencing Act). However, these measures have severe limitations. First, the safety valve is far too narrow as it is limited to one specific type of offender who has to meet all three of the qualifications established. Rather than setting up a scaled model that would take into account different factors to issue different sentences, if even one of those criteria is not met, it triggers the mandatory minimum. Dahl notes that the policy memo issued by Attorney General would expand the scope of the safety valve (296). But a policy memo is limited in application and can be overlooked by overzealous prosecutors. Though the FSA has much broader implications, its effects are still limited in scope as it cannot be retroactively applied to offenders who have been sentenced to a mandatory minimum prior to the FSA (ACLU – Fair Sentencing Act). This still leaves a large population of offenders that today would qualify for relief from mandatory minimums to serve sentence that Congress has already deemed excessive and unjust.
The following policy options would have substantial impact in ameliorating the problem areas discussed above:

Congressional Reform Policy Option 1: Reduce Mandatory Minimums

This policy option takes into consideration reducing mandatory minimums, particularly those related to nonviolent offenses where there has not been an incident of serious bodily injury or death. The reduction for each one can be up to by half in these specific cases. Consider the current minimum for a first time offense of manufacturing, distributing, or possessing with the intent to distribute 280g+ of crack where no death or serious bodily injury results. This scenario currently has a mandatory minimum sentence of 10 years; a second offence under the exact same conditions carries a 20 year sentence (FAMM – Federal Mandatory Minimums). Reducing the sentences respectively to a 5 year sentence and a 10 year sentence would instantaneously halve the current spending for this category of offenders.


Further consideration should be taken in evaluating the remaining sentence minimums to assure that such minimums are reasonable. For example, a second offense in the above scenario carries a 20 year minimum whereas a first offence that involves serious bodily injury or death also results in a 20 year minimum. It is unreasonable to have 20 years for a second nonviolent offence where that same minimum sentence would be issued for a violent crime. The instances where a life sentence is issued should also be reviewed to see whether or not they really serve the public interest.
Congressional Reform Policy Option 2: Narrowly Define Application of Mandatory Minimum

Aside from deterring drug sales and use, the intent and justification for mandatory minimums was to lead to the prosecution of high level drug offenders (FAMM – Drug Sentencing). However, most drug trafficking cases involve low level offenders (Sterling). As the mandatory minimums stand, the laws currently targets replaceable low level offenders and do little to effectively address the so called war on drugs:


“Among all drug cases, Courier was the most common function, representing 23.0 percent of all offenders, followed by Wholesaler (21.2%), Street-Level Dealer (17.2%), and High-Level Supplier/Importer (10.9%).” (USSC Report, 262)
There is a difference in applying a 10 year sentence to a first time nonviolent offender that is a courier and the same sentence to a high level supplier/importer. Narrowly defining such sentences according to the individual’s level within organized crime aligns with the interests of the “war on drugs” and organized crime while addressing the social disparity of having low-level offenders needlessly serving long sentences.
Congressional Reform Policy Option 3: Amend the Fair Sentencing Act

The FSA was intentionally implemented as a consequence of growing criticism that the mandatory minimums regarding crack disproportionately affected racial minorities. However, the law has two severe limitations. First, the ration for sentencing was dropped from 100:1 down to 18:1. Whereas the old laws established that 5g of crack gets the five year sentence as 500g of cocaine, the new law only raised the threshold to 28g of crack for that same sentence (FAMM – FAS FAQ). Although the law received bipartisan support, it still has the continued effect of setting different standards for essentially the same drug in a way that disproportionately affects minorities. Second, the law does not apply retroactively to cases where a mandatory minimum sentence was passed. This unjustly leaves thousands of federal inmates completing sentences they would not have to under the FSA (Greenhouse). Both issues can only be addressed through legislative reform: one that changes the amount of crack that triggers mandatory minimums on par with that of cocaine and another that applies the effects of the law retroactively to cases prior to August 2010.


Congressional Reform Policy Option 4: Expansion of Drug Safety Valve(s)

As previously mentioned, the current and only Drug Safety Valve “applies only to first-time, nonviolent drug offenders whose cases did not involve guns” (FAMM - Safety Valve). Different safety valves can create different sentencing guidelines for offenders who commit nonviolent drug offenses. The narrow definition of the only existing safety valve limits its applicability in sentencing guidelines. Additional safety valves with varying sentence lengths can be proposed for each of the criminal history categories established by the Sentencing Table of the Sentencing Commission:


“(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.

(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

(e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this subsection.” (USSC Manual)
Congressional Reform Policy Option 5: Expand Time Credit Programs

Since federal parole was abolished in 1984, one of the few ways offenders can reduce their sentence is through the “Good Time Credit” system (FAMM – Good Time Credit for Federal Prisoners). Currently, offenders can earn up to 47 days for each year they follow prison rules. New legislature to broaden sentencing computation could reform the system so that in addition to 47 days off for good behavior, additional time could be added for completion of GED, drug and alcohol abuse treatment, counseling, work programs, etc.


Conclusion

In the last 25 years, harsh mandatory minimum drug laws have led to the explosion of the prison population and unreasonable and wasteful federal spending. These laws have weakened the judicial process and have had a social set-back in causing disproportionate and unjustified racial inequities in sentencing. However, there are currently four bills awaiting review in Congress (see SAFE Justice Act, H.R. 2944; Sentencing Reform and Corrections Act, S. 2123; Smarter Sentencing Act, H.R. 920/S. 502; Justice Safety Valve Act, H.R. 706/S. 353). Each of these laws considers different combinations of the proposed policy initiatives – as well as other initiatives – to varying degrees. Studies of the Smart Sentencing Act show that the Justice Department could save over $3.28 billion over 10 years just by implementing three of the proposed policies to varying degrees: reduction of mandatory minimums, expanding drug safety valves, and making the Fair Sentence Act retroactive (FAMM – Benefits and Cost Savings). Serious consideration of these bills and policy initiatives would help reduce federal expenditure and begin to address the issues of social inequity and judiciary discretion.




Works Cited
Cassell, Paul G., and Erik Luna. "Sense and Sensibility in Mandatory Minimum Sentencing." Federal Sentencing Reporter 23.3 (2011): 219-27. Web. 12 Sept. 2015. .
Dahl, Alan. "Eric Holder's Recent Curtailment of Mandatory Minimum Sentencing, Its Implications, and Prospects for Effective Reform." The BYU Journal of Public Law 29.1 (2014): 271-97. Print.
"Fair Sentencing Act" [ACLU - Fair Sentencing Act]. American Civil Liberties Union. ACLU, n.d. Web. 15 Sept. 2015. .
"FAMM – Benefits & Cost Savings: The Smarter Sentencing Act of 2015." [FAMM – Benefits and Cost Savings]. Families Against Mandatory Minimums. FAMM, n.d. Web. 4 Oct. 2015.

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"FAMM – Federal Mandatory Minimums." Families Against Mandatory Minimums. FAMM, n.d. Web. 4 Oct. 2015.


"FAMM – Frequently Asked Questions: The Fair Sentencing Act of 2010." [FAMM – FSA FAQ] Families Against Mandatory Minimums. FAMM, n.d. Web. 4 Oct. 2015.


"FAMM – Good Time Credit for Federal Prisoners." Families Against Mandatory Minimums. FAMM, n.d. Web. 4 Oct. 2015.


"FAMM – Quick Facts." Families Against Mandatory Minimums. FAMM, n.d. Web. 12 Sept. 2015. .
"FAMM - Safety Valves." Families Against Mandatory Minimums. FAMM, n.d. Web. 12 Sept. 2015. .
Greenhouse, Linda. "Crack Cocaine Limbo." The New York Times. The New York Times, 05 Jan. 2014. Web. 4 Oct. 2015.


O'Mara, Mark. "Get Rid of Minimum Mandatory Sentencing Laws." CNN. Cable News Network. Turner Broadcasting System, Inc., 28 Jan. 2105. Web. 12 Sept. 2015. .
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Sourcebook of Criminal Justice Statistics Online. University at Albany School of Criminal Justice [Sourcebook]. Hindelang Criminal Justice Research Center, n.d. Web. 15 Sept. 2015. .
Statement of Charles E. Samuels, Jr. Director of the Federal Bureau of Prisons Before The U.S. House Of Representatives Committee On Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies[Statement], U.S. HOUSE OF REPRESENTATIVES Cong. (2013) (testimony of Charles E. Samuels, Jr.). Web. 12 Sept. 2015.

< http://appropriations.house.gov/uploadedfiles/hhrg-113-ap19-wstate-samuelsc-20130417.pdf>.
Sterling, Eric E. "Drug Laws and Snitching - A Primer." Frontline. WGBH Educational Foundation, n.d. Web. 12 Sept. 2015. .
Quinn, Thomas M., and Gerald T. McLaughlin. "The Evolution of Federal Drug Control Legislation." Catholic University Law Review 22.3 (1973): 586-627. Web. 12 Sept. 2015. .
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United States. U.S. Department of Justice. Federal Bureau of Prisons [BOP Statistics]. Federal Bureau of Prisons: Statistics. N.p., n.d. Web. 12 Sept. 2015. .
United States. Department of Justice [USDOJ Memo]. Office of Attorney General. MEMORANDUM TO THE UNITED STATES ATTORNEYS AND ASSISTANT ATTORNEY GENERAL FOR THE CRIMINAL DIVISION. By Eric Holder. N.p., 12 Aug. 2013. Web. 12 Sept. 2015. .
United States. U.S. Sentencing Commission. 2014 Guidelines Manual Guidelines Manual [USSC Manual]. N.p., Nov. 2014. Web. 4 Oct. 2015.


United States. U.S. Sentencing Commission [USSC Report]. Office of Public Affairs. Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. N.p., Oct. 2011. Web. 13 Sept. 2015. .


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