The Enforcement of Mandatory Minimums
Prepared Floor Statement for the Record of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
The Enforcement of Mandatory Minimum Sentences
Tuesday, September 17, 2013
Mr/Madam President, the Attorney General has recently announced that the Department of Justice will not charge certain drug offenders in a way that would trigger the imposition of mandatory minimum sentences.
Before outlining some of the concerns that I have with the policy and the statement that the Attorney General issued on the subject, I do want to note that I agree with a number of the points that he made.
These are the specific points with which I am in agreement with the Attorney General:
** The Department will coordinate with state, local, and tribal law enforcement to maximize the operation of federal resources in criminal prosecutions.
** The development of comprehensive anti-violence strategies by the United States Attorneys with input from state and local authorities.
** The designation by the US Attorneys’ offices of coordinators for prevention and reentry.
** Direct federal assistance to hot spots of violence and the new use of COPS grants for school resource officers.
** Creation of a new task force for violence experienced by Indian children.
** Providing support for survivors of sexual assault, domestic violence, and dating violence.
** Compassionate release of nonviolent inmates who are elderly and have served a long part of their sentences is wise.
** And I favor addressing unwarranted racial disparities in sentencing.
That is quite a bit of agreement. I am pleased that we share some common ground.
But there are other statements of the Attorney General that I cannot agree with.
And I think it is important to set the record straight.
Almost 30 years ago, the crime situation in this country was far different. From the 1960’s on, crime rates had risen rapidly.
One reason for that state of affairs was the way sentencing worked. There was often little relation between the length of sentence that was imposed and the actual time the offender served. Parole often led to release of criminals too soon, enabling them to repeat their crimes on other unsuspecting victims.
Judges had almost limitless discretion in sentencing within a broad range. Sentences imposed depended much more on which judge was giving the sentence than the nature of the offense or the criminal history of the offender.
Parole and excessive judicial discretion led to unwarranted disparities in sentencing. And so in 1984, Congress changed how federal sentencing operated. We adopted truth in sentencing. We added certainty by abolishing parole.
Now, federal sentences given are the time that is served. Disparities due to parole boards were eliminated. Sentencing guidelines were established. They reflected the nature of the criminal offense and the criminal history of the offender.
Those guidelines were normally binding on any federal judge in the country. So no longer would sentences turn on which judge a criminal appeared before.
The guidelines eliminated other disparities as well. Judges could not consider factors that often led to wealthier defendants receiving shorter sentences for similar crimes than less wealthy defendants. Racial bias in sentencing, conscious or unconscious, also was addressed through mandatory guidelines.
The legislation was passed by wide bipartisan majorities.
Nearly everyone agreed that some judges were too lenient in sentencing and that the excessive discretion they exercised produced various unfair disparities.
Congress, separate from the sentencing guidelines, also increased the number of mandatory minimum sentences. Since then, due in part to tougher federal criminal penalties, elimination of parole, increased numbers of inmates, better police practices, and other factors, crime rates have dropped significantly.
However, the Supreme Court undermined the excellent sentencing legislation that Congress passed. First, the Court created from whole cloth a novel interpretation of the Sixth Amendment. Second, the Court in a 2005 case called Booker unnecessarily extended that line of cases to mandatory sentencing guidelines and held them unconstitutional. Third, rather than then strike down the guidelines, the Court rewrote them.
In a particularly egregious example of judicial activism, they overrode congressional intent and made the guidelines advisory. It was only because the guidelines were clearly intended to be mandatory that Congress ever passed them in the first place.
Following Booker, Congress now has only one available tool to make sure that sentences are not too lenient and do not reflect unwarranted disparity.
That is mandatory minimum sentences.
Given this background, I do take issue with a number of the Attorney General’s statements. I do not agree with him that prisons today “warehouse and forget.” All kinds of programs and incentives exist for prisoners today to improve their behavior when they are released. Sentences can be shortened by completion of these programs. And I don’t think that the solution to a cycle that ends in incarceration is simply to incarcerate criminals for less time or to jail fewer criminals.
For the most part, it is not the case that too many Americans go to prisons for too long and for no good law enforcement reason. And the Attorney General just is not right when he says that “[w]idespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.” Increased incarceration has led to less crime.
I do see that for the first time in five years, the Obama Administration has finally found one area of federal spending that it wants to cut: prisons. But in the same speech, the Attorney General called on more spending on federal defenders. I do not agree with that. Federal defenders play an important role and often represent defendants well. But we should be encouraging more private attorneys, at lower cost, to represent defendants against the government. And we should consider requiring better training of these lawyers before they are allowed to represent defendants.
The Attorney General correctly notes that “unwarranted disparities are far too common.” He cited one report that shows that “black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes,” and that this is “shameful.”
But he overlooks the reason for those disparities. They exist not so much due to mandatory minimum sentences, which existed both before Booker and after. In fact, Congress has reduced mandatory minimum sentences since Booker. Rather, the disparities are due primarily to the Supreme Court’s Booker decision that made the sentencing guidelines advisory, rather than to mandatory minimums.
Since that 2005 ruling, the guidelines have been applied in fewer and fewer cases every year. Sentences imposed now turn on which judge the offender appears before. And more than before, the quality of the lawyer and the other factors that produced disparity before the Sentencing Reform Act are now creeping back into sentencing.
The Sentencing Commission, in that report that the Attorney General referred to, tracked racial disparities in sentencing. It compared sentences of African-American and White males at the time the guidelines were still mandatory compared to today, when they are advisory only.
For cases overall, when the guidelines were mandatory, African-American males served 11.5 percent longer sentences than white males. Now that the guidelines are advisory, African-American men serve 19.5 percent longer sentences than white males.
That is a significant difference.
There are various categories of crimes in which the rendering of the sentencing guidelines as advisory has increased disparity. For instance, in firearms case, African-American men received sentences that were 6 percent longer than white men when the guidelines were mandatory. Today, African-American men receive sentences 10 percent longer than whites for these crimes.
For drug trafficking, African-American men received sentences that were 9 percent longer than white men in 2005, but since the guidelines were made advisory, they now receive sentences that are 13 percent longer.
It is true that sentences overall are falling since the guidelines were made advisory. But as the Sentencing Commission concluded, “although sentence length for both Black male and female offenders and White male and female offenders have decreased over time, White offenders’ sentence length has decreased more than Black offenders’ sentence length.”
And in considering racial disparities in the criminal justice area, the race of the victims must also be considered.
Despite reductions in homicides nationwide in recent years to levels not seen since the 1960’s, this is not true for the number of homicides of African-Americans.
“The number of black male murder victims rose more than 10% from 2000 to 2010, to 5,942 from 5,307,” according to the Wall Street Journal.
Two areas that the Attorney General has said are criminal enforcement priorities also exhibit disparities. These are financial crimes and child pornography possession. As I have said many times before, I wish the Department would prosecute even one of the executives of the major financial firms whose criminal conduct contributed to the financial crisis.
These two criminal fields both tend to involve white male defendants. Too often, the sentences imposed are too lenient. In addition, these crimes do not carry mandatory minimum sentences. We should consider imposing mandatory minimum sentences for these offenses, both to reduce racial disparities and to give prosecutors additional tools to combat these serious crimes.
Since Booker, there have been press reports of people who have been convicted of financial fraud who have received very lenient sentences, far below the guidelines.
That is leading to disparity.
One report showed that there have been so many financial fraudsters in New York who have been sentenced merely to probation that lawyers for newly convicted fraudsters have argued that to avoid disparities, their clients must also receive probation.
Other press accounts have shown financial criminals who have persuaded judges that the financial benefits these criminals have provided to needy people should be considered to lighten their sentences. No poor defendant would be able to reduce his sentence based on using a portion of his ill-gotten gains to help others.
Another set of defendants who in the post-Booker world have received very lenient sentences is those who are convicted of child pornography possession. Too many judges are lenient in their sentencing. Too often we’re seeing that unless the defendant actually molested a child, a judge doesn’t impose a serious punishment.
More than other federal crimes, defendants in financial and child pornography cases tend to be white males. Too many judges have given these criminals only a slap on the wrist. After Booker, the only way Congress can control the abuse of discretion that judges are showing in these cases is through imposition of a mandatory minimum sentence.
The Attorney General announced a new policy of not charging certain defendants with crimes that carry mandatory minimum sentences. That raises concerns. Withholding quantities of drugs from indictments may not have the effect he desires, since the judge will know the quantity in any event when the presentencing report is received. The judge can still take that into account when sentencing.
Moreover, a dangerous precedent may be established by not charging the greatest offense that can be proved. All federal crimes now are typically prosecuted at the highest level that can result in a conviction, unless a plea agreement is reached. This reduces prosecutorial discretion and disparity in charging and sentencing. I hope that the new policy will not be applied or extended in a way that would increase disparity.
Mandatory minimum sentences are not new. The first Congress enacted mandatory minimum sentences in 1790. Nor are they as inflexible as they are often characterized. According to the Sentencing Commission, almost half of all offenders convicted of an offense carrying a mandatory minimum sentence are not given such a sentence. We hear over and over that mandatory minimum sentences are one size fits all. We hear that low level and first time offenders always receive harsh sentences. Not so. The safety valve provision requires judges not to impose mandatory minimum sentences for first time, low-level, nonviolent drug offenders, who have provided all information to the authorities. Mandatory minimum sentences are not imposed on many other offenders because they provide substantial assistance to the government in prosecuting more serious criminals.
Congress in 2010 also passed legislation reducing mandatory minimum sentences for certain crack cocaine offenses. Contrary to standard rules of statutory construction, that law has been interpreted to apply retroactively to people who committed their crimes before enactment of the law. We need to keep that in mind for any sentencing legislation we might enact.
The combination of mandatory minimum sentences and a reduction for substantial assistance provides investigative leads against bigger fish. It is a benefit of mandatory minimum sentences that is not always appreciated. Were we to meaningfully cut back on mandatory minimums, we would lose the ability to bring prosecutions against a large number of major criminals.
We should always consider what crimes should carry mandatory minimum sentences and what the length of those sentences should be. But for the reasons I have outlined, it would be a serious mistake to eliminate mandatory minimum sentences, either wholesale or for a class of drug offenses.
I am also troubled by a document the Attorney General released along with his speech entitled, “Smart on Crime.” In that document, the Department favors diversion and supervision, rather than incarceration for what it terms low-level, non-violent offenders. The Department says it encourages U.S. Attorneys to use “best practices” of diversion for non-violent offenders and supervision for more serious offenders.
The document says, “Examples of eligible defendants are those charged with non-violent bank robberies.” What bank robberies does the Attorney General think are non-violent? If a person hands the teller a note that says, “I have a gun, hand over the money,” but he does not actually have a gun, is that a non-violent offense? No, it is not. Robbery always involves violence or the threat of violence. There is no such thing as a non-violent bank robbery. Those who commit that crime should go to jail, not be released back into the community under supervision, as the Department is advocating.
There is a danger that some of what the Attorney General is proposing is unjustified leniency and would harm public safety.
So Mr./Madam President, I appreciate that the Attorney General has offered ideas on sentencing. I agree with some. Others are misguided, even dangerous. I will work with him where I can. But we cannot have a proper debate on sentencing reform without understanding how we have reached our current situation, why unwarranted disparities exist, and what changes in sentencing would improve rather than harm the situation.
The Judiciary Committee will hold a hearing on mandatory minimum sentences and proposed legislation on Wednesday. As I have stated, there are some common misunderstandings on this subject. I hope that more clarity will emerge as a result of the hearing.