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12/7/2017

The Unintended Consequences of Mandatory Minimums

This blog post will re-examine the Sentencing Reform and Corrections Act (SRCA) and focus on mandatory minimums. For the purposes of this blog post, “mandatory minimums” refers to “when a person convicted of a crime must be imprisoned for a minimum term, as opposed to leaving the length of punishment up to judges.”[1] “Mandatory minimum sentencing forces judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors.”[2]

Although originally intended for violent offenders, mandatory minimums now impact non-violent offenders as well.[3] Mandatory minimums are often excessive and unjust, but this is not new.  In 1994, Congress created a “safety valve” for those offenders “who most warrant proportionally lower sentences” and “are least culpable”.[4] The safety valve allows federal judges to go below an otherwise applicable mandatory minimum sentence in low-level drug cases (“essentially non-violent, first time offenders.”)[5] If signed into law, the SRCA will go beyond the 1994 safety valve and reduce penalties for those who are non-violent repeat offenders. Further, under SRCA, federal judges will also gain discretion in the cases of low-level offenders below the 10-year mandatory minimum, and in sentencing those individuals who possess a firearm illegally, provided that the firearm was not brandished or discharged in relation to a crime of violence or drug trafficking.[6]

Earlier this year, Attorney General Jeff Sessions, released a memorandum on sentencing guidelines that is inconsistent with the goals of the 1994 safety valve and the proposed SRCA. These sentencing guidelines instruct federal prosecutors to “charge and pursue the most serious readily provable offense”—claiming that this method “affirms…responsibility to enforce the law, is moral and just, and produces consistency.”[7] In the memorandum, Sessions goes on to say, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences”[8]

Despite the influence of the Sessions memo, some of the federal judges (who enforce these mandatory minimums) are speaking out about the grave injustice mandatory minimums are creating. In an interview with Rachel Martin of NPR, Federal Judge Mark Bennett addressed the “consistency claim” suggested by Sessions’ memo by saying “mandatory minimums support unwarranted uniformity by treating everyone alike even though their situations are dramatically different.”[9] In the same interview, Bennett said “mandatory minimums are so incredibly harsh and they’re triggered by such low levels of drugs that they snare at the non-violent, low-level addicts…”[10] According to Judge Bennett, about 80% of the cases involving mandatory minimums are unfair.[11]

One case where Judge Bennett felt the mandatory minimum was too harsh involved 28-year-old Mark Paul Weller. In 2015, Judge Bennett issued a ten-year sentence in response to Mr. Weller’s guilty plea to two counts of distributing methamphetamine (“meth”) in his home town.[12] While Weller did have a brief criminal history, he had made significant efforts to improve his life.[13] Unfortunately, with an unexpected, emotional life event, he turned to drugs and alcohol.[14] This downward spiral led Weller to eventually sell meth.[15] Over the course of eight months, Weller had sold 2.5 kilograms of meth across state lines.[16] Weller had traded meth for his sister’s rent, a used car, gas money, and even an unregistered SKS rifle.[17] The unregistered rifle was still in the car when he was pulled over with 223 grams of meth.[18]

“Weller was charged with conspiracy to possess with intent to distribute and to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and distributing 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).”[19]

Because of Weller’s guilty plea to these charges, his mandatory minimum established by Congress was 10 years. Sadly, his entire sentence involved only the calculation of the following factors: victim impact, criminal history, cost of imprisonment, and the guideline sentence. The answers to this calculation were as follows:  no identifiable victim, minimal criminal history, $2,440.97 per month of imprisonment, and a suggested sentence of 151-188 months.

After sentencing Weller to 120 months, Bennett considered the result of this punishment: “one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent.” “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 noted, there were many mitigating factors in Mr. Weller’s case, like neglect and abuse by his mother, addiction, and remorse. Yet, even after consideration of those mitigating factors, he was forced to give Mr. Weller the 10-year sentence. Judge Bennett had absolutely no power to shorten or change the sentence type, i.e.: rehab instead of prison.[20], [21]

If passed, SRCA would scale back police and prosecutor power by restoring the use of judicial discretion.

Katie Parr is a law clerk at Cause of Action Institute.

 

[1] U.S. Legal, https://definitions.uslegal.com/m/mandatory-minimum-sentencing/

[2] See Id.

[3] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 126.

[4] Id. at 122.

[5] Id.

[6] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[7]  Memorandum from Jefferson B. Sessions, Att’y Gem., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Charging and Sentencing Policy 1 (May 10, 2017).

[8] Id.

[9] A Federal Judge Says Mandatory Minimums Don’t Fit The Crime, Rachel Martin, NPR (June 1, 2017), https://www.npr.org/2017/06/01/531004316/a-federal-judge-says-mandatory-minimum-sentences-often-dont-fit-the-crime

[10] Id.

[11] Mallory Simon, Sara Sidner, The judge who says he’s part of the gravest injustice in America, CNN, updated: (June 3, 2017).

[12] Against His Better Judgment, Eli Saslow, The Washington Post (June 6, 2017) http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better-judgment/?utm_term=.0adf2f2f412d

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Weller v. United States of America, No. CR-14-4059-1-MWB, 2015 U.S. Dist.

[20] See Luna supra, note 12 at 2.

[21] In addition to unfair sentencing, mandatory minimums may also help to maintain job security for prison guards. Some prison guard unions have sponsored and lobbied for harsher sentencing laws. supra note 3 at 131, at 1.

 

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11/29/2017

Inaccessible Criminal Codes and Their Domino Effects

On October 4, 2017, the Sentencing Reform and Corrections Act of 2017 (“SRCA”) was reintroduced in the Senate with bipartisan support. A version of the bill was first introduced in the Senate in October of 2015, but never received a vote. If signed into law, SRCA would reduce and restrict enhanced penalties for non-violent repeat drug offenders and eliminate the so-called “three-strike” mandatory life provision. SRCA also would apply to pending cases, “where the offense was committed before the date of enactment of this Act,” if a sentence has not been imposed as of the date of enactment,[1] and, would apply to past cases where, before the date of enactment, the defendant “was convicted of an offense for which the penalty is amended…and was sentenced to a term of imprisonment for the offense.”[2] Imprisonment terms may be reduced only if, “the defendant has not been convicted of any serious violent felony, and the sentencing court, after considering the nature and seriousness of the danger to any person, the community, or any crime victims, and the post sentencing conduct of the defendant, finds a reduction is consistent with SRCA and its amendments.”[3] This bill would also provide judicial discretion in the sentencing of certain low-level offenders below the 10-year mandatory minimum.[4]

The Sentencing Reform and Corrections Act is just the beginning of a much-needed conversation regarding reform of the criminal justice system. This post, the first in a series of posts on criminal justice reform, will focus on overcriminalization. For the purposes of this blog post, “overcriminalization,” means “the act of imposing unbalanced penalties with no relation to the gravity of the offense committed or the culpability of the wrong doer. It is the imposition of excessive punishment or sentences without adequate justification.”[5]

Over the past forty years, America has seen a dramatic increase in duplicative federal criminal laws.[6] While many have sought to enumerate federal crimes, the exact count remains unknown.[7] One estimate suggests that there are more than 4,000 federal criminal statutes.[8] Many of these statutes, include mandatory minimums.[9] With the use of mandatory minimums on the rise, the federal prison population has increased tenfold and the average federal sentence more than doubled since 1980.[10] The effects of overcriminalization do not end with the criminal code and excessive mandatory minimums; as many as 300,000 regulatory offenses now have criminal penalties that include prison time.[11]

If SRCA is signed into law, then the Attorney General will be required to submit a comprehensive list of “all criminal statutory offenses” to Congress, within one year.[12] Such a list will be the first of many tools available to begin reining in the ever-expanding criminal code and regulatory offenses.

Overcriminalization does not just affect those who end up behind bars, but also those who are unreasonably prosecuted. A few examples:

  • Bobby Unser, retired racecar driver was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and a friend got lost during a snowstorm and were seeking shelter or assistance.[13]
  • In a Ft. Lauderdale park, members of a Christian outreach group were arrested and prosecuted for feeding the homeless. Local rules restricted food sharing.[14]
  • Christian Stanfield, who suffers from ADHD and was a victim of extreme bullying at South Fayette High School, PA, was charged with disorderly conduct under a wiretapping statute, because he recorded the abuse and went to school officials. Charges were eventually dropped.[15]

As these examples show, current application of criminal statutes reaches even the most innocent and sympathetic of “offenders.” Surely the statutes that produced these prosecutions were not intended to criminalize self-protection or charitable acts, and yet they did.[16],[17]

Overcriminalization needs to be stopped and reversed. Legislation like the Sentencing Reform and Corrections Act is a good first step.

Katie Parr is law clerk at Cause of Action Institute.

[1] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Legal, https://definitions.uslegal.com/o/over-criminalization/

[6] Cato Institute, Cato Handbook for Policymakers, Chapter 17, Overcriminalization, 8th ed. 2017.

[7] See Ilya Shapiro, Not Everything Can Be a Federal Crime, Cato Institute (March 8, 2012), https://www.cato.org/blog/not-everything-can-be-federal-crime

[8] Overcriminalization, Right on Crime, http://rightoncrime.com/category/priority-issues/overcriminalization/

[9] FAMM, What are Mandatory Minimums?, http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf

[10] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 137.

[11] Supra note 6 at 1.

[12] Supra note 1, at 1.

[13] Cato, supra note 4 at 1.

[14] Id.

[15] Sasha Goldstein, Criminal charge dropped against Pennsylvania bullying victim with learning disability who recorded his abusers, New York Daily News (April 14, 2014), http://www.nydailynews.com/news/national/charge-dropped-penn-bullying-victim-recorded-abusers-article-1.1760448

[16] Luna, supra note 5 at 133.

[17] With overcriminalization on the rise, the potential for undercriminalization may also rise. As Douglas Husak put it, “some conduct that should not incur penal liability will be subject to it, and some conduct that should incur penal liability will not be subject to it.” 1, Douglas Husak, Reforming Criminal Justice, Introduction and Criminalization, Overcriminalization, 2017, at 28.

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10/19/2017

Congress should reject flawed Back the Blue Act

On May 16, 2017, Representative Ted Poe (R-Texas) introduced the Back the Blue Act in Congress.[1]  The bill has since been referred to the House Judiciary Committee.  The Back the Blue Act of 2017 (“BBA”) creates new federal crimes for killing and assaulting police officers—conduct that is already illegal under the law in all fifty states and has been punished in state courts for years.  The proposed bill goes further, and establishes mandatory minimum sentences for such crimes even though mandatory minimums have been proven to be ineffective at curtailing criminal conduct.  The BBA, as currently written, does not require that the defendant even knew he or she was assaulting a police officer, which means it lacks any mens rea, or “guilty mind,” requirement.

Because of its duplicative nature, adoption of mandatory minimums, and lack of any mens rea requirement, Congress should reject the current version of the BBA.  The lives and working conditions of police officers are at stake.  As a 34-year veteran of the Baltimore and Maryland State Police Departments put it, “the bill would make us less safe and less effective by worsening what is already the greatest threat to policing today: the downward spiral of police-community relations.”[2]

The Back the Blue Act attaches a mandatory minimum of ten years for the attempted killing of a law enforcement officer or for “conspiring” to kill a law enforcement officer.  The BBA also turns any assault on an officer that works for a state or local police department that receives federal funding into a federal crime.  Most definitions of assault make spitting on someone an act of assault, so the potential application of the new law is vast.  Under the BBA, if any injury occurs during the assault, the mandatory minimum sentence is two years.  And if “serious bodily injury” occurs, the defendant faces a mandatory minimum of ten years in prison.  Further, a twenty-year mandatory minimum sentence applies if a deadly weapon is used during the assault.

Mandatory minimums take away sentencing discretion from judges and give it to prosecutors.[3]  This results in arbitrary and severe punishments that undermine the public’s faith in America’s criminal justice system.[4]  Further, evidence shows that mandatory minimums do not deter criminal conduct.[5]

As mentioned, the lack of any mens rea requirement means that a person could be charged by federal prosecutors without even knowing that the person allegedly assaulted was a law enforcement officer.  This risk is particularly high for the charge of conspiracy to kill a law enforcement officer, which imputes liability for actions taken to any person involved in the alleged conspiracy, even if the actual act was not performed by that defendant.  Mens rea has been a key element of American criminal law for centuries.  As the Supreme Court has stated, “we must construe [an imprisonment] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”[6]  Requiring a “guilty mind” in addition to a “guilty act” protects someone who engaged in accidental or innocent behavior from criminal prosecution and it is at the center of our criminal jurisprudence.[7]

Since the bill is duplicative of laws already on the books in all fifty states and the District of Columbia, the Back the Blue Act would waste federal resources and threaten state autonomy.  State and local jurisdictions have the expertise to deal with issues involving their own law enforcement officers.  The “federalization” of their local policing efforts will only deter from their ability to meet the ever-changing needs of local police forces.  Moreover, as laid out by the Tenth Amendment to the U.S. Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.”[8]  Policing power is not one specifically delegated to federal government, therefore, it is reserved to the states.

The assault provision requires the federal prosecutor to “certify” that either the state lacks jurisdiction, has requested the federal government assume jurisdiction, the verdict obtained by the state left an “unvindicated” federal interest, or that prosecution by the federal government “is in the public interest and necessary to secure substantial justice.”  However, these certification requirements are vague and do not meaningfully limit federal intervention into state interests.

States like Virginia and Wisconsin, for example, have laws nearly identical to the Back the Blue Act except that they also include a mens rea element.  Virginia’s statute states: “if any person commits an assault…against another knowing or having reason to know that such other person is… a law-enforcement officer… such person is guilty of a Class 6 felony, and… the sentence of such person shall include a mandatory minimum term of confinement of six months.”[9]  Wisconsin’s statute uses similar language to also acknowledge the importance of mens rea.[10]

If signed into law, the Back the Blue Act would create waste in the judiciary and in society, deteriorate working conditions for law enforcement officers, and impose costly mandatory minimums unrelated to the severity of the crime.  It would also impede state and local efforts to protect police officers and fail to honor the punishment that a state has assigned for identical crimes on its own law enforcement officers.  For these reasons, Congress should reject the Back the Blue Act in its current form.

Katie Parr is a law clerk and Erica L. Marshall is counsel at Cause of Action Institute.

 

[1] Back the Blue Act of 2017, H.R. 2437, 115th Cong. (1st Sess. 2017).

[2] Neill Franklin, For the sake of police, don’t back the Back the Blue Act, The Hill (Aug. 30, 2017), available at http://thehill.com/blogs/congress-blog/politics/335815-dont-back-the-back-the-blue-act

[3] Paul Larkin, Evan Bernick, Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, The Heritage Foundation (Feb. 10, 2014), available at http://www.heritage.org/crime-and-justice/report/reconsidering-mandatory-minimum-sentences-the-arguments-and-against.

[4] Id.

[5] See Barbara S. Vincent & Paul J. Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings, Federal Judicial Center (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/$file/conmanmin.pdf.

[6] Staples v. United States, 511 U.S. 600, 605 (U.S. 1994).

[7] John Malcolm, Michael B. Mukasey, The Importance of Meaningful Mens Rea Reform, The Heritage Foundation (Feb. 17, 2016), available at http://www.heritage.org/crime-and-justice/commentary/the-importance-meaningful-mens-rea-reform.

[8] U.S. Const. amend. X

[9] Va. Code Ann. § 18.2-57(C) (2017).

[10] Wis. Stat. § 940.203(2)(a) (2017).

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