May 19, 2014

Getting Rid of Mandatory Minimums

What happens when a criminal defense attorney and a conservative United States District Judge offer comments on both mandatory minimum sentences and each other's position on mandatory minimum sentences? Surprisingly enough, they agree. Mandatory minimum sentencing has to go. Hear hear.

Anybody who has ever defended people charged with violating federal drug laws has plenty of horror stories to share about mandatory minimum sentences. For the uninitiated, these are statutory requirements that a minimum sentence (say, five or ten years) be imposed when a drug offense involves more than a certain amount of of weight, regardless of the surrounding circumstances. Minimum sentences are a different animal than sentencing guidelines, which are established by the Sentencing Commission. The way those work is simple: crimes are given a certain guideline number, based on severity, etc. Then the number is adjusted upward or down based on case specific factors, such as the dollar amount of the loss, the offender's relative role in the offense, whether anybody was physically injured, etc.

For instance, years ago, I represented a woman with a severe crack addiction. On two occasions, desperate for her drug of choice, my 30 year-old client begged her local dealer (who was part of a large, New Jack City style operation) for a handout. One one occasion, he had her pick up his lunch from a local restaurant and get his dry cleaning. The other time, he told her to help his workers pack crack cocaine for a few hours. Both times he paid her with about $35 worth of narcotics. Unfortunately, her conduct made her part of the larger conspiracy to distribute crack cocaine, which meant that she had to be sentenced to at least 10 years in jail. Luckily, she qualified for a safety valve exception and her sentence was a small fraction of that time. Many others were not so lucky.

Anyway, in a blog post a week ago, U.S. District Judge Richard Kopf, a conservative, republican jurist, wrote that he had come to the opinion that we should do away with mandatory minimums. A supporter of sentencing guidelines, Kopf argued that mandatory minimums needless create conflict and allow the legislative branch to insert itself into the sentencing business. This post -- you can find it here -- was based on Kopf's polite disagreement with several of his colleagues' public demand that the minimums not be abandoned.

Criminal defense attorney Scott Greenfield responded in a post on his blog, Simple Justice -- here -- that blasted Kopf for his continuing support for the guidelines. It is a no-holds-barred attack on the guidelines, and the judges that employ them, that ended,
Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.
Kopf responded here, suggesting that Greenfield hold off on his attack on the guidelines so that they could join forces, so to speak, in their attack on mandatory minimums. Greenfield agreed, in an update to his original post.

On the guidelines, I wholeheartedly concur with Greenfield. At the same time, the Kopf's reliance arguments in favor of the guidelines are problematic for a number of reasons. However, both are absolutely right that getting rid of statutory minimums is a good and just cause.

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