WASHINGTON, DC (Nov. 1, 2011) – The National Association of Criminal Defense Lawyers (NACDL) has opposed mandatory minimum sentences for two and a half decades. The U.S. Sentencing Commission’s comprehensive report on mandatory minimum sentences, released yesterday, shows that statutory mandatory minimum penalties “apply too broadly, are set too high, or both, to warrant the prescribed minimum penalty for the full range of offenders who could be prosecuted under the particular criminal statute.” Nearly three out of four federal inmates serving a mandatory minimum sentence were Black or Hispanic. Moreover, the fixed penalties are costly to society at large. The report acknowledges that mandatory minimums have been a major factor in the tripling of the federal prison population over the past 20 years.
NACDL has long maintained that the goals of sentencing — retribution, deterrence, incapacitation, and rehabilitation — are not well served by inflexible and frequently disproportionate mandatory minimum penalties. Mandatory minimums for drug offenses focus on the amount of drugs to the near exclusion of all other factors relating to culpability. This has resulted in the imposition of disproportionately harsh sentences on those who are merely peripheral agents of drug kingpins and middlemen, a feature that has drawn harsh criticism by those within the criminal justice community and persistent calls for reform.
Perhaps even more important, the power to charge offenses carrying mandatory minimum penalties makes the federal prosecutor the most powerful entity in the federal criminal justice system. They allow a prosecutor to manipulate the system so that differently situated offenders are treated the same and similarly situated offenders are treated differently. The prosecutor – not the judge or the legislature – prescribes the punishment. For example, quantity-based drug penalties mean that a low-level courier street peddler may be punished as harshly as a kingpin – but in the discretion of the prosecutor, the kingpin may cooperate and receive a lighter sentence than any of his employees or coconspirators. This transfer of power from the judge to the prosecutor has upset our system of checks and balance by placing unchecked power in the hands of men and women whose decisions are made in the privacy of their offices, who are caught up in an adversarial role, and whose public function often serves as a stepping stone to higher political or judicial office.
NACDL President Lisa Wayne, speaking at a sentencing symposium last weekend at University of Pennsylvania Law School, said “At every stage of the criminal justice system there is ample evidence that mandatory minimums have a disparate impact on minorities. They encourage policing practices, investigative techniques, and prosecutorial strategies that are illogical, counterintuitive and, in the final analysis, arbitrary and abusive.”
Shamefully, the fact that 70% of federal prisoners serving mandatory sentences are Black (31.5%) or Hispanic (38.3%) underlines the basic unfairness of the current mandatory minimum scheme. These percentages have been fairly constant for the past two decades, and yet Congress has failed year after year to correct the disparities.
Although NACDL still believes in the abolition of all mandatory sentences in the U.S. Code, it stands by the Commission’s conclusions that many mandatory minimums are applied too broadly, are unnecessarily harsh, or both. Congress should not only stop enacting mandatory minimum, it should reassess and repeal mandatory penalties already on the books.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.