This account is supported by other scholars, as well as the reports of legal groups and former federal officials.65 Sensationalistic news coverage tends to increase the public salience of crime, generating fear and attendant calls for action.66 Even in areas where concern may be unfounded, populist pressures create incentives for lawmakers to enact new crimes and harsher punishments. Such legislation is readily grasped by constituents, produces few opponents, permits the public to vent its moral outrage, and most importantly, gives politicians the “tough on crime” credentials that can fill campaign coffers and garner votes at election time.67 As Professor Kadish mentioned, the process can be set off by a string of crimes or even a single traumatic episode that grabs news headlines and the public imagination. These events may trigger what social scientists have termed a “moral panic,” where intense outbursts of emotion impede rational deliberation, lead people to overestimate a perceived threat and to demonize a particular group, and generate a public demand for swift and stern government action.68 Although any resulting legislation will almost certainly be touted for its instrumental benefits, the law will serve as a symbolic gesture for politicians and their constituents, expressing condemnation of the relevant act and actors.69
Law enforcement also has an interest in the expansion of criminal justice. Although aspirational language may describe the prosecutorial function as an impartial “minister of justice,“70 there should be little doubt that American prosecutors see themselves as advocates in a sometimes brutally adversarial process.71 This role conception is exacerbated by prosecutorial incentive structures, where the success and career prospects of both lead and line prosecutors are typically measured by the rate of convictions and the aggregate amount of punishment.72 Naturally, over‐criminalization serves this incentive structure. The more crimes on the books and the harsher the punishments, the more power law enforcement can exercise throughout the criminal process.73 By raising the potential punishment through harsh sentencing schemes, for instance, or by charging multiple counts for a single course of conduct, defendants are given every reason to cooperate with the prosecution by providing information, entering into plea agreements, and waiving their constitutional rights. All of this enhances the power of prosecutors, who can obtain more and cheaper convictions via plea bargaining or, if that fails, deploy potent criminal provisions against their opponents at trial. As one former Justice Department official recently said, “[I]t is not surprising that the federal agency charged with preventing, solving, and punishing federal crimes is not aggressively attempting to shrink the federal code.“74
This understanding helps explain the rise and persistence of mandatory minimums. Chief Justice William Rehnquist noted that their enactment often does not involve “any careful consideration” of the ultimate effect. Instead, “[m]andatory minimums … are frequently the result of floor amendments to demonstrate emphatically that legislators want to … get tough on crime.’ ”75 In fact, federal lawmakers have explicitly used the phrase “tough on crime” in their support of mandatory minimums,76 with some of the most notorious mandatory minimum laws originating from symbolic politics. Consider, for instance, the enactment of 18 U.S.C. § 924(c) as part of the Gun Control Act of 1968 (which itself was part of the Omnibus Crime Control and Safe Streets Act of 1968). The legislation was a response to public fear over street crime, civil unrest, and the shooting of Martin Luther King, Jr. The day after the assassination of Robert F. Kennedy, § 924(c) was proposed as a floor amendment and passed that same day with no congressional hearings or committee reports, only a speech by the amendment’s sponsor about its catchphrase goal “to persuade the man who is tempted to commit a federal felony to leave his gun at home.“77 Since then, Congress has amended § 924(c) several times and converted it from a one‐year mandatory minimum to one of the nation’s most draconian punishment laws.78
Another example comes from the passage of the Anti‐Drug Abuse Act of 1986, the law that instituted the crack‐powder cocaine sentencing differential and created the basic structure of federal mandatory minimums for drug trafficking.79 The driving force behind these provisions was the cocaine overdose of basketball star Len Bias, which triggered a remarkable level of media attention and a moral panic about crack cocaine. Tellingly, the bill was enacted without hearings or input from the judiciary. “Much of the [standard] procedure was circumvented,” a House staff member recounted. “In essence, the careful, deliberate procedures of Congress were set aside in order to expedite passage of the bill.“80 The legislation was a blatant attempt to appease an electorate that was distraught over the death of a gifted athlete and hysterical about an alleged epidemic of crack.81 A Washington Post editorial suggested that in the prevailing can‐you‐top‐this atmosphere, “if someone offered an amendment to execute pushers only after flogging and hacking them, it probably would have passed.“82 Ironically, it was later determined that Bias died from ingesting powder cocaine, not crack.83 But by then, it didn’t matter.
3. THE PROSPECTS FOR REFORM
This general political dynamic has stymied efforts to reform mandatory minimums in Congress in the past. Even during periods of low crime, the public has expressed fear of victimization and a belief that criminals are not receiving harsh enough punishment. Lawmakers have responded in kind with new crimes and stiffer penalties, including mandatory sentences. Conversely, any reform efforts have carried the danger of being labeled “soft on crime.” As a result, no federal mandatory minimum has been repealed in the last forty years, with harsh sentencing provisions remaining politically popular well into the new millennium. As one U.S. Attorney noted in 2007, “[E]very Administration and each Congress on a bipartisan basis has … supported mandatory minimum sentencing statutes for the most serious of offenses.“84
There are, however, some promising signs. The need for reform has been recognized by practitioners, researchers, public interest groups, and prominent legal organizations like the American Bar Association and the American Law Institute.85 Likewise, a litany of federal judges has voiced their dismay at the excessive punishment they are required to dole out,86 including Chief Justice Rehnquist, Justice Kennedy, and Justice Stephen Breyer.87 But the most interesting and potentially influential opposition to mandatory minimums has come from the political branches and conservative commentators. At various times in their careers, the past three Presidents have all doubted the wisdom of long mandatory sentences.88 Likewise, federal lawmakers and even a former federal “Drug Czar” have disputed the justice of mandatory minimums.89
In a much publicized case involving a long mandatory sentence, dozens of former federal prosecutors and high‐ranking Justice Department officials (including former U.S. Attorneys General and a former Director of the F.B.I.) filed amici curiae briefs in support of the defendant.90 After the punishment was upheld on appeal and certiorari was denied, a conservative federal lawmaker “question[ed] some severe mandatory minimum sentencing laws, especially in the context of drug enforcement,” adding that “[i]n the long run, it may be just as important to provide rehabilitation and treatment programs, instead of imposing unreasonably harsh sentences.“91 A few conservative commentators have spoken out against mandatory minimums as well.92 Most importantly, the support of the American public for mandatory minimums has waned in recent times.93
Given changes in the Presidency and Congress, it is now appears that considerable interest exists in moving beyond a verbal critique of these laws to actually enacting statutory reforms. In fact, we may be approaching a sort of “tipping point” on mandatory minimums. Early indications include the formation of a Justice Department‐led working group to examine federal sentencing and correction policy and to make recommendations for reform; the bipartisan support for Senator Jim Webb’s “National Criminal Justice Commission,” which would conduct a comprehensive review of the criminal justice system;94 and the Senate’s passage of the Fair Sentencing Act of 2009, which would eliminate the mandatory minimum for simple crack possession and reduce the sentencing disparity between crack and powder cocaine.95 Needless to say, Congress’s direction to this body to submit a comprehensive report on mandatory minimum sentencing seems to bode well for reform efforts.96
My preference would be for federal lawmakers to eliminate mandatory minimums in one‐fell swoop. But given the aforementioned reality that Congress has yet to repeal a contemporary mandatory minimum, I fully recognize that every journey must begin with a first step. In a forthcoming article co‐authored with Judge Paul Cassell, we propose some reforms that are more minimalist in nature.97 The first proposal contains two parts: (1) a legislative authorization for the U.S. Sentencing Commission to set guidelines ranges where it deems them to be appropriate, without automatically being required to peg guidelines to existing mandatory minimums; and (2) a broader and more detailed “safety valve” provision that would permit federal judges to depart downward whenever the guidelines provide for the possibility of a lower sentence than a mandatory minimum. We also offer several changes that could build upon initial reforms, such as the elimination of the stacking function of 18 U.S.C. § 924(c), converting it into a true recidivist statute, and a limited revival of the U.S. Parole Commission to review sentences for inmates serving extremely long prison terms. An updated draft of the article will be submitted to the U.S. Sentencing Commission in a few weeks, and, of course, we would be happy to discuss these proposals with the Commissioners at their convenience.
But whatever the vehicle, the federal scheme of mandatory minimums needs to be reformed. To sum up my views, let me borrow a line from former federal Judge John Martin.98 Mandatory minimums are over‐inclusive, they’re unfair, and they can even be draconian. They transfer sentencing power from neutral judges to partisans in the criminal process. They make for poor criminal justice policy and raise all sorts of constitutional problems. Other than that, they’re a great idea.
Again, thank you very much for the invitation to testify today.
1. All opinions expressed and any errors herein are my own.
2. See generally ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES (2005); see also JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 52–54 (5th ed. 2009); JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDER, CRIMINAL LAW: CASES AND MATERIALS 28 (6th ed. 2008).
3. See U.S. CONST. amend. VIII (banning “cruel and unusual punishments”); see also Universal Declaration of Human Rights, art. 1, G.A. Res. 217A, U.N. Doc. A/810, art. 5 (1948) (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment.”); International Covenant on Civil and Political Rights, Dec. 19, 1966, arts. 7, 10, 999 U.N.T.S. 171; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/RES/39/708 (1984). Mosaic Law and the Code of Hammurabi formulated the principle as an “eye for an eye,” commonly understood as requiring that punishment be commensurate to the offense. See Exodus 21:24, THE HOLY BIBLE 97 (C.I. Schofield ed., Oxford U. Press 1945); MARTHA T. ROTH, LAW COLLECTIONS FROM MESOPOTAMIA AND ASIA MINOR 121 (2d ed. 1997) (translating Hammurabi’s Laws). In the Classical Age, Aristotle opined that it was the judge’s duty to impose punishment equivalent to the crime, see THE NICOMACHEAN ETHICS 179–82 (J.A.K. Thomson trans., 1976); while the Roman statesman and author Cicero proclaimed the maxim that “the punishment should fit the offense.” See CICERO, DE RE PUBLICA, DE LEGIBUS 513 (Clinton Walker Keyes trans., 1928). “[T]here are certain duties that we owe even to those who have wronged us,” Cicero averred, “[f]or there is a limit to retribution and to punishment.” CICERO, DE OFFICIIS 35 (Walter Miller trans., 1938). See generally Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning, 57 CAL. L. REV. 839, 844–47 (1969) (discussing historical limits on excessive punishment). Post‐Enlightenment scholars promoted the concept of proportionality as well. For instance, Montesquieu wrote that “[a]ll punishment which is not derived from necessity is tyrannical.” MONTESQUIEU, THE SPIRIT OF THE LAWS 357 (Thomas Nugent trans., 1914) (1748). Liberty is protected “when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decisions [when] the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing.” Id. at 222. Likewise, the first modern penologists argued for proportionality between crime and penalty. See, e.g., CESARE BECCARIA, ON CRIMES AND PUNISHMENTS ch. 6 (1764) (“Of the Proportion Between Crimes and Punishments”); JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION ch. 14 (1789) (“Of the Proportion Between Punishments and Offences”). Blackstone also argued for proportionality in punishment and decried excessive penalties as violating “the dictates of conscience and humanity,” being ineffective at “preventing crimes and amending the manners of people,” and evincing “a bad symptom of the distemper of any state, or at least of its weak constitution.” 4 WILLIAM BLACKSTONE, COMMENTARIES, at *10 — 19. Proportionality was enshrined in the Magna Carta, the English Bill of Rights, and British jurisprudence. See Solem v. Helm, 463 U.S. 277, 284–85 (1983); Trop v. Dulles, 356 U.S. 86, 100 (1958); see also Hodges v. Humkin, 80 Eng. Rep. 1015, 1016 (K.B. 1615) (“[I]mprisonment ought always to be according to the quality of the offence.”); RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 236 (1959) (describing “the longstanding principle of English law that the punishment … should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged”). The proportionality principle was carried over to America and codified in both colonial law and post‐revolutionary state constitutions. See, e.g., RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 107 (1959) (noting that the Maryland Charter of 1632 permitted punishment if “the Quality of the offense require[d] it”); PA. CONST. §38 (1776) (calling for punishments “proportionate to the crime”); S.C. CONST. §XL (1776) (similar).
4. Solem, 463 U.S. at 284–85. Admittedly, principles of proportionality and equality raise difficult issues in sentencing. In measuring the gravity of an offense for proportionality analysis, one might look to, inter alia, “the harm caused or threatened to the victim or society.” Id. at 288–93; see also Rummel v. Estelle, 445 U.S. 263, 275 (1980). Although harm is a notoriously tricky idea, see, e.g., Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109 (1999); most agree that basic criminal harms involve acts or threats of physical violence and the non‐consensual or fraudulent deprivation of other’s property. See, e.g., PAUL H. ROBINSON & JOHN M. DARLEY, INTUITIONS OF JUSTICE: IMPLICATIONS FOR CRIMINAL LAW AND JUSTICE POLICY (2007).
5. See, e.g., DAVID S. LEE & JUSTIN MCCRARY, CRIME, PUNISHMENT, AND MYOPIA (Nat’l Bureau of Econ. Research, Working Paper No. 11491, 2005); Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing its Best, 91 Geo. L.J. 949, 953 (2003); A. Mitchell Polinsky & Steven Shavell, On the Disutility and Discounting of Imprisonment and the Theory of Deterrence, 28 J. LEGAL STUD. 1, 4–7 (1999).
6. See, e.g., Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 CRIME & JUST. 65, 90–100 (2009) [Tonry, Mostly Unintended Effects]; JONATHAN P. CAULKINS ET AL., MANDATORY MINIMUM DRUG SENTENCES: THROWING AWAY THE KEY OR THE TAXPAYER’S MONEY’ (1997); BARBARA S. VINCENT & PAUL J. HOFER, THE CONSEQUENCES OF MANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS 11–16 (1994); U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (1991).
7. Mandatory minimums have also been criticized for their distortive impact on the federal sentencing guidelines. Justice Breyer, a former U.S. Sentencing Commissioner, has argued that mandatory minimums thwart the Commission in its fundamental duty: “the development, in part through research, of a rational, coherent set of punishments.” Hon. Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 FED. SENT’G REP. 180 (1999); see also Hon. Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 WAKE FOREST L. REV. 185, 194 (1993). Among other things, mandatory minimums may preclude the Commission from calibrating sentences based on normatively or empirically relevant factors, such as the defendant’s role or culpability in a crime. All offenders thus receive the same minimum sentence once the basic statutory predicates are met, regardless of very real and morally significant differences. What is more, mandatory minimums can distort sentences for an entire class of crimes. Given that the Commission seeks continuity and consistency among similar offenses, a mandatory minimum for one crime may generate a type of sentencing inflation, skewing punishment upwards for all related crimes.
8. Most recipients of drug mandatory minimums are couriers, mules, and street‐level dealers, not kingpins or leaders in international drug cartels. See, e.g., U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 20–21, 85 (2007).
9. See, e.g., United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004) (discussing use of mandatory guidelines to extract plea bargains); STEVE BOGIRA, COURTROOM 302: A YEAR BEHIND THE SCENES IN AN AMERICAN COURTHOUSE 37–48, 83 (2005) (describing trial tax in state context); see also Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005).
10. See, e.g., Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 723–24 (2005) [hereinafter Luna, Overcriminalization]; William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 519–20 (2001) [hereinafter Stuntz, Pathological Politics].
11. See, e.g., United States v. Fontes, 415 F.3d 174 (1st Cir. 2005); United States v. Williams, 372 F. Supp. 2d 1335, 1339 (M.D. Fla. 2005); United States v. Nellum, 2005 WL 300073 (N.D. Ind. 2005); United States v. Angelos, 345 F. Supp. 2d 1227, 1253 (D. Utah 2004).
12. See, e.g., United States v. Mercer, 472 F. Supp. 2d 1319, 1323 (D. Utah. 2007); David M. Zlotnick, Shouting into the Wind: District Court Judges and Federal Sentencing Policy, 9 ROGER WILLIAMS U. L. REV. 645, 674–75 (2004); Henry Scott Wallace, Mandatory Minimums and the Betrayal of Sentencing Reform, 40 FED. B. NEWS & J. 158, 161 (Mar./Apr. 1993).
13. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting); see also Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107, 1154–65 (2000).
14. Berthoff v. United States, 140 F. Supp. 2d 50, 63 n.24 (D. Mass. 2001).
15. Some works have challenged the assumption that the previous federal sentencing regime was rife with disparity. See, e.g., DOUGLAS MCDONALD & KENNETH CARLSON, U.S. DEP’T OF JUSTICE, BUREAU OF STATISTICS, SENTENCING IN THE FEDERAL COURTS: DOES RACE MATTER’ THE TRANSITION TO SENTENCING GUIDELINES, 1986–90, at 24–26 (1993); KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 105–42 (1998). Moreover, there is a lively empirical debate as to whether the guidelines have reduced sentencing differentials. Compare U.S. SENTENCING COMMISSION, DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE BOOKER REPORT’S MULTIVARIATE ANALYSIS (Mar. 2010), available at http://www.ussc.gov/general/Multivariate_ Regression_Analysis_Report_1.pdf.; and Ryan W. Scott, The Effects of Booker on Inter‐Judge Sentencing Disparity, 22 FED. SENT’G REP. 104 (2009); with JEFFREY T. ULMER ET AL., DOES INCREASED JUDICIAL DISCRETION LEAD TO INCREASED DISPARITY’: THE “LIBERATION” OF JUDICIAL SENTENCING DISCRETION IN THE WAKE OF THE BOOKER/FANFAN DECISION (Mar. 2010), available at http://papers.ssrn.com/sol3/papers.cfm’abstract_id=1577238.
16. See, e.g., THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (“all men are created equal … endowed by their creator with certain unalienable rights”); JOHN LOCKE, TWO TREATISES OF GOVERNMENT ch. 2, § 6 (1689) (denominating people as “all equal and independent”); A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 198 (8th ed. 1915) (the rule of law means “equality before the law, or the equal subjection of all classes to the ordinary law of the land”); JOHN RAWLS, A THEORY OF JUSTICE 53, 220, 266 (rev. ed. 1999) (arguing that the predominant principle in a just society requires that “[e]ach person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all”); WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY 5 (1990) (suggesting that moral equality establishes an “egalitarian plateau” for all modern political theories); FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 209–10 (1960).
17. Cf. NICOMACHEAN ETHICS, supra note 3. Of course, one can debate whether particular facts or circumstances should be relevant for purposes of equality in punishment. But as evinced by many modern sentencing schemes, there appears to be some concurrence on pertinent factors, such as the gravity of the offense, the defendant’s criminal history, and his prospects for reform or recidivism. Compare, e.g., 18 U.S.C. § 3553(a) (listing purposes of criminal sentences); with, e.g., AK. STAT. § 12.55.005 (same).
18. Defendants are not the only ones concerned about proportionality and equality in sentencing. When victims of actual violence notice that their assailant received a shorter term than imposed on a non‐violent offender via mandatory minimums, the message received is that their pain and suffering is less important than abstract governmental objectives, like winning the “war on drugs.” See Angelos, 345 F. Supp. 2d at 1251. Over the long haul, conscientious jurors might refuse to render guilty verdicts, not because they believe the defendant to be innocent or the allegations unproven, but out of fear that an unjust sentence will necessarily ensue. See id. at 1252.
19. See, e.g., U.S. GEN. ACCOUNTING OFFICE, FEDERAL DRUG OFFENSES, DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORY MINIMUM SENTENCES, FISCAL YEARS 1999–2001 (2003); Stephen Schulhofer & Ilene Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post‐Mistretta Era, 91 NW. U. L. REV. 1284 (1997); U.S. GEN. ACCOUNTING OFFICE, MANDATORY MINIMUM SENTENCES: ARE THEY BEING IMPOSED AND WHO IS RECEIVING THEM’ (Nov. 1993); Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices under the Federal Sentencing Guidelines, 66 S. CAL. L. REV. 501 (1992); BARBARA S. MEIERHOEFER, THE GENERAL EFFECT OF MANDATORY MINIMUM PRISON TERMS: A LONGITUDINAL STUDY OF FEDERAL SENTENCES IMPOSED (1992); SPECIAL REPORT, supra note 6, at 47–52; VINCENT & HOFER, supra note 6.
20. See, e.g., U.S. SENTENCING COMMISSION, STATISTICAL OVERVIEW FOR “MANDATORY MINIMUMS AND UNINTENDED CONSEQUENCES,” HEARING BEFORE THE U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY (2009), available at http://www.ussc.gov/MANMIN/man_min.pdf. Of course, there may be a correlation without causation — the disproportionate impact of mandatory minimums on minorities may be based on any number of factors other than race or ethnicity. Nonetheless, a relationship has emerged between mandatory punishments and people of color, which can have a profoundly harmful meaning and effect regardless of causation. See, e.g., Erik Luna, Race, Crime, and Institutional Design, 66 LAW & CONTEMP. PROBS. 183, 183–87 (2003).
21. See Stuntz, Pathological Politics, supra note 10, at 549.
22. Hon. Anthony M. Kennedy, “Speech at the American Bar Association Annual Meeting,” Aug. 9, 2003, available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx’Filen….