Much of the prison population explosion is due to mandatory minimum sentences imposed by Congress in 1987 for even the smallest federal drug violations; many states have adopted mandatory minimums as well.

The Original Culprit: Sentencing Reform Act

In 1984, Congress enacted the Sentencing Reform Act, perhaps the most significant change in sentencing policy in American history. To begin with, the act abolished parole in the federal prison system. In addition, the Sentencing Reform Act delegated to the US sentencing Commission broad discretionary powers to create a body of sentencing guidelines that the federal courts would be required to follow. The guidelines have been fully operative in the federal courts for several years.

The guidelines begin by assigning a base-level sentence to each type of crime. That sentencing level is then enhanced by aggravating factors (such as perpetrating the crime in an unusually brutal manner) and reduced by mitigating factors (such as acceptance of responsibility for the crime). The computation then provides the sentencing judge with a particular range within which he may sentence the defendant.

Sentencing guidelines have been criticized for their rigidity and severity. The defendant's personal characteristics are "not ordinarily relevant." That a person has been employed for the last 30 years, raised three children, and contributed thousands of volunteer hours to charity does not entitle her to any sentence reduction compared to a person who has never had an honest job or done anything for the community.

The 700 pages of federal sentencing guidelines are, in the words of Federal District Judge Jose Cabranes, "nearly unintelligible to victims, defendants, and observers, not to mention the lawyers and judges involved. Disparity is rife, though much of it is now hidden within the guidelines themselves and in the silent exercise of discretion by police officers and federal agents, prosecutors, probation officers and federal judges."

Sealing the Deal:
Mandatory Minimums

Today there are over 100 federal laws specifying mandatory minimum sentences. Although a few mandatory minimums have existed since 1790 (for piracy and murder), such sentences did not become widespread in the federal system until 1956, when they were enacted as part of federal efforts to control narcotics. The federal mandatory minimums were repealed in 1970, as Republican and Democratic members of Congress recognized flaws in the mandatory minimum approach.

But in 1984, Congress embarked on a process that continues today, adding vast new numbers of mandatory minimums, particularly for crimes involving drug or firearm offenses. In fact, 94 percent of federal mandatory minimum cases involve four laws covering drugs or weapons.

The mandatory minimums are extremely tough on drug offenses and made drug weight almost the sole factor in setting a drug crime sentence. For example, merely possessing more than five grams of crack cocaine requires five years in federal prison. (An individual packet of sugar in a restaurant weighs about one gram.) The only factors other than drug weight that may be considered in the sentencing are (1) if the defendant has prior convictions (in which case the mandatory minimum is raised) and (2) if the US Attorney makes a motion stated that the defendant has provided "substantial assistance" in obtaining the conviction of another drug criminal (in which case the court has discretion to sentence the defendant to less than the mandatory minimum).

In 1988, Congress added conspiracy to commit a drug offense to the list of crimes with mandatory minimums. Conspiracy charges enable prosecutors to cast a wide net in apprehending suspected drug offenders. For example, if a woman tells an undercover federal agent where to buy some LSD, and the agent then buys some LSD from a person who possessed five grams of LSD, the woman, as a "conspirator," is subject to the same mandatory minimum as is the person who actually possessed the LSD.

Beginning with New York's Rockefeller Law in 1973, almost every state has enacted its own mandatory minimums. The tremendous emphasis on imprisoning drug offenders has resulted in a corrections boom:

The combination of mandatory minimums and the sentencing guidelines results in severe sentences for first-time drug offenders. In 1990, 88.9 percent of all drug offenders in federal court who had no prior conviction for any offense were sentenced to prison. In contrast, 79.4 percent of first-time violent criminals were sent to prison. Drug offenders with no prior record were sentenced to an average prison term of 68.4 months, compared to 56.2 months for violent criminals with no record.

"Real Offense"
Sentencing &
Dual Prosecution:
Further Miscarriages
of Justice

Incorporated in the federal sentencing guidelines, real-offense sentencing is also used in New York and other states. Allegations about the supposed real offense may be based on hearsay, reputational evidence and other "evidence" that would not be admissible at trial. An actual example of real-offense sentencing involved a defendant who was acquitted of possessing a certain quantity of drugs and convicted of possessing a smaller quantity. The court sentenced him on the basis of the higher amount, even though he was acquitted.

Federal prosecution and imprisonment of a defendant who has already been prosecuted in state court is referred to as "dual prosecution." During the Reagan and Bush years, administrative guidelines on dual prosecutions were greatly relaxed. The double-jeopardy case of the Bill of Rights might be thought of as a protection against dual prosecution, but that clause, like the Fourth Amendment, is not nearly as powerful as it used to be, as interpreted by courts who confuse being tough on crime with being tough on the Constitution.

Thus, there are more and more cases like those of Rufina Canedo. Canedo pled guilty to possession of 50 kilograms of cocaine and was serving a six-year state sentence. Federal prosecutors came and demanded that she testify against her husband, which she refused to do. Her guilty plea in state court was usable evidence in federal court. And so she was sentenced to a federal 20-year mandatory minimum. Her state prison time is not credited against her federal sentence.

Judges:
No Friends of
Mandatory Minimums

By May 1993, 50 senior federal judges, such as Jack B. Weinstein and Whitman Knapp of New York, had exercised their prerogative to refuse to hear such cases. (Senior judges are allowed much more control over their dockets than are ordinary district judges.) Many conservative, Reagan-appointed federal judges have denounced the 5- and 20-year mandatory minimums as draconian miscarriages of justice. Federal District Judge Stanly Harris remarked, "I've always been considered a fairly harsh sentencer, but it's killing me that I'm sending so many low-level offenders away for all this time."

A Gallup survey of 350 state and 49 federal judges who belong to the American Bar Association found 90 percent opposed to the federal mandatory minimums for drug offenses. The sentencing guidelines did somewhat better: 27 percent of the judges thought they had worked well, while 59 percent thought they had worked poorly or not at all. Fifty-nine percent of the judges thought the federal sentencing guidelines should be scrapped, while 30 percent did not.

The judges of every federal circuit in the United States have enacted resolutions calling for repeal of the federal mandatory minimums, as have the American Bar Association and the Federal Court Study Committee (created by Congress).

The national incarceration budget is about $25 billion annually. This figure is about as high as that of the mach-maligned Aid to Families with Dependent Children program. Taxpayers have justifiably begun to ask whether the $25 billion spent on prisons is an intelligent response to a national drug epidemic.

[End]

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