ETHICAL PROBLEMS OF MANDATORY MINIMUM SENTENCES; CRIME & PUNISHMENT REVISITED

Crime & Punishment Revisited

In January 1992, Johnny Patillo was arrested for trying to send a package
containing 681 grams of crack cocaine from Los Angeles to Dallas. Patillo,
a twenty-seven-year-old African American, subsequently pleaded guilty. He
had a college education, a steady job, and no prior criminal record.
Patillo said that desperation over mounting debts had driven him to accept
$ 500 from a neighbor for sending what he knew was a drug-laden package,
though he hadn't known which drug or how much was involved. His punishment:
ten years in a federal prison, without possibility of parole.

Federal District Judge J. Spencer Letts, who imposed that sentence,
believed that it was wildly excessive. Patillo had a spotless prior record
and committed a nonviolent, low level drug offense, yet would serve more
time than many rapists and armed robbers. Judge Letts - a Republican
appointed by Ronald Reagan - candidly acknowledged having postponed
sentencing several times while vainly seeking some way to avoid this
"barbaric" sentence. But he could not avoid it, because Congress had made
the ten-year sentence the mandatory minimum punishment for anyone convicted
of trafficking in more than fifty grams of crack.

A mandatory minimum statute requires anyone convicted of the crime it
covers to receive at least the prescribed term of imprisonment if the
criteria specified in the statute are met, no matter what other factors are
present in the case. (In theory, death could be the prescribed mandatory
penalty, but contemporary Supreme Court decisions have essentially held all
mandatory death-sentence statutes unconstitutional.) The criteria that
trigger the mandatory sentence may be features of the crime (like the
amount of drugs sold), of the criminal (like prior convictions), or of the
victim (like the age of a person to whom drugs are sold). These statutes
are not new in American law: Congress, for example, adopted its first
mandatory minimum statute (aimed at piracy) in 1790. But mandatory minimums
were relatively rare until recent years. Their enormous importance in the
federal system today stems from the "War on Drugs" of the Reagan era. Of
some sixty-odd federal mandatory minimum statutes, a mere four account for
more than 90 percent of the federal cases where mandatory sentences are
imposed: those dealing with the manufacture and distribution, possession,
and importation of illegal drugs, and a statute mandating extra terms of
imprisonment for the use of a gun in committing a drug offense or a crime
of violence.

States, too, have shown increasing fondness for mandatory minimum statutes
in recent years, beginning with Nelson Rockefeller's anti-drug law in New
York in 1973 and spreading during the following ten years to fourty-nine of
the fifty states. In recent years "three strikes" statutes, mandating life
imprisonment for repeat offenders, have been adopted in more than a quarter
of the states.

The principal moral problem posed by a mandatory minimum statute is the one
that Johnny Patillo's case illustrates: the judge must impose a
predetermined sentence for the crime in question, ignoring any features of
the defendant's character, history, and circumstances that might call for a
lesser punishment. As Judge Letts put it, it would make no difference to
Patillo's sentence if the day before his crime he "had rescued fifteen
children from a burning building, or had won the Congressional Medal of
Honor while defending his country." To adopt such a statute seems like an
act of hubris - a declaration that we are certain, in advance, that anyone
who commits the offense it covers must deserve the harsh sentence the
statute mandates, regardless of any mitigating factors or extenuating
circumstances in an individual case. Alternatively, the statute could be
seen as a declaration that there are overriding reasons why anyone who
commits the specified offense should be given the mandatory sentence even
if it does exceed what he or she deserves.

This problem of "rigidity," as I will call it, must infect any mandatory
minimum statute. If a judge were free to reduce the sentence whenever
mitigating factors made such leniency appropriate, there would be no
"mandatory" minimum at all! Before examining the rigidity issue further,
though, we should observe that many mandatory sentencing laws generate
their own specific additional problems. Often, these laws draw strikingly
unfair or irrational distinctions. An example of unfairness is the
notorious "100-to-1" disparity in the treatment of powder and crack cocaine
in the federal drug laws. There is a mandatory minimum sentence of ten
years for trafficking in 5000 grams of powder cocaine or in 50 grams of
crack, and a five-year minimum for 500 grams of powder or 5 grams of crack.
Because 90 percent of federal crack defendants are black while almost half
of the powder cocaine defendants are white, this disparity has had a
greatly disproportionate impact on black defendants. Yet the 100-to-1 ratio
lives on, having survived legal challenges on equal protection grounds, the
United States Sentencing Commission's recommendation that it be abolished,
and recent research suggesting that there is little scientific basis for
the distinction.

As for irrationality, consider the sentencing of LSD traffickers. As with
other drugs, the mandatory minimum sentence for the sale of LSD depends on
the amount sold ten years for ten grams or more, five years for amounts
between one and ten grams. LSD, however, is so potent - the average dose
contains only .05 milligrams, or one twenty-thousandth of a gram - that it
is normally transferred to a carrier medium, like blotter paper, gelatin,
or sugar cubes, and sold by the dose rather than by weight. But the Supreme
Court has held that the applicable mandatory minimum statute requires
taking into consideration the combined weight of the carrier medium and the
LSD dose. Thus a person who sells six doses of LSD on sugar cubes (which
weigh more than 2 grams apiece) is subject to the mandatory ten-year
minimum sentence, while someone who sells 19,000 doses in pure form would
escape even the five-year minimum!

Further potential for unfairness and irrationality in the federal mandatory
minimum laws lies in the very limited exception that these laws permit.
Generally, a defendant convicted under one of these statutes can receive
less than the mandatory minimum only if the prosecution moves for a lower
sentence in return for "substantial assistance" in prosecuting others. This
bonus for aiding the government creates what federal appellate judge Frank
Easterbrook has called the prospect of "inverted sentencing": "The more
serious the defendant's crimes, the lower the sentence - because the
greater his wrongs, the more information and assistance he has to offer a
prosecutor." Nor is this just a theoretical possibility, as the case of
twenty-year-old Nicole Richardson of Mobile, Alabama illustrates.
Richardson told a government informant where to find her boyfriend to
finalize an LSD sale. With no information to trade for a sentence
reduction, she was convicted of conspiracy to distribute 21.19 grams of LSD
and drew the ten-year mandatory minimum. Her boyfriend was able to help
prosecutors - and his sentence was reduced to five years.

Yet problems like "inverted sentencing," the crack/powder differential, and
the LSD absurdity are not at the heart of the qualms many people feel about
mandatory minimum sentences. These problems, after all, could be eliminated
without abandoning mandatory minimums altogether. Indeed, "inverted
sentencing" may have become less likely since Congress enacted a "safety
valve" provision in 1994, making the most frequently applied mandatory
minimum drug statutes inapplicable to a carefully defined category of
nonviolent, low level offenders with little or no prior criminal records.

What cannot so easily be remedied is the problem I earlier called
"rigidity." Mandatory minimum statutes, by their very nature, compel us to
disregard highly relevant aspects of the individual defendant's case. If we
look more carefully at this problem, we will see that it creates a conflict
with very basic notions of justice.

One of the ideas most frequently singled out as central to the concept of
justice is this: like cases are to be treated alike, and unlike cases are
to be treated differently. The belief that this is a - even the - crucial
aspect of justice can be traced back to Aristotle. Mandatory minimum
sentences violate both parts of this precept: they mete out the same
treatment to greatly differing cases, while sharply distinguishing between
situations that are virtually identical.

Treating unlike cases the same: Smith, once a champion boxer, is now
brain-damaged and broke, having lost most of his considerable earnings to
crafty, dishonest hangers-on. He's tried running a restaurant but it
failed, and the loan shark who'd advanced him his start-up capital is
threatening violence unless he gets a payment at once. In desperation,
Smith yields to a friend's importunings and agrees, for $ 1000, to drive an
auto from Mexico into California. Smith is pretty sure the car must contain
drugs, though he asks no questions. He's caught coming over the border.
There is a kilogram of heroin concealed in the car.

Jones, like Smith, has no prior criminal record and agrees to drive a
drug-laden car over the border. Jones, however, is wealthy; he's doing this
not for money, but because he craves the excitement and enjoys the thought
of flouting the law. Moreover, Jones was explicitly told that there is a
kilo of heroin in the car. Indeed, he volunteered to drive the car to San
Diego after hearing this, purely for the thrill.

Surely these are extremely different cases. Is it right that Smith and
Jones should receive the same ten-year prison sentence?

Treating like cases differently: Mark has been convicted in federal court
of possessing a small quantity of crack cocaine for personal use, and so
has Michael - 5 grams of crack in Mark's case, 5.01 grams in Michael's.
These cases may seem almost indistinguishable, but the trifling difference
in what they possessed makes a big difference in sentencing. Michael must
go to prison for five years, but Mark is not subject to any mandatory
minimum, and can at most be sentenced to one year in prison!

Here is a third example, which some people will think illustrates "treating
like cases differently" while others may view it as differentiating between
unlike cases - but in precisely the wrong way. Peter and Paul are two
California criminals. Peter, penniless in Los Angeles at age eighteen, was
convicted of grand theft for picking an acquaintance's pocket and stealing
$ 500. After his probation for this offense, he was caught burglarizing a
neighbor's house. Shortly after he'd served his burglary sentence, Peter
held up a liquor store at gunpoint.

Paul's crimes are the same, but in reverse chronological order. He was
convicted of armed robbery of a liquor store at age eighteen, and he
burglarized a neighbor's home after serving time for the robbery. After his
second prison term, Paul seemed to settle down to lawful employment. But
several years later, during a recession, he lost his job and, as an ex-con,
couldn't find another. Destitute, he stole a wallet containing $ 500 from
the pocket of a coat hanging in a restaurant.

One might say that these criminal records are, given the facts cited, "the
same": chronology is irrelevant. Or one might say that Peter's is the more
serious record because it exhibits a progression from nonviolent theft to
potentially violent burglary to actual use of a gun, while Paul's final
offense seems the product of circumstances and desperation more than of a
settled "career criminal" pattern. Under California's "three strikes"
sentencing law, however, it is only Paul who must receive a mandatory
twenty-five-year-to-life sentence. The law requires such a sentence for any
third felony provided the two prior felonies were "violent" or "serious."
Paul's priors - robbery and burglary - both qualify, but Peter's first
felony (grand theft) is neither violent nor serious. Peter will probably
receive a sentence of twelve years or less.

Examples like those I have offered strongly challenge the justice, and even
the rationality, of mandatory minimum sentencing laws. Proponents of such
laws have various possible responses, but these seem unconvincing. They can
argue, for instance, that the Mark/Michael example proves nothing because
it doesn't really involve "treating like cases differently." The cases
differ in a respect - quantity of cocaine - made relevant by law. That it's
a very small difference merely confirms Justice Holmes's adage that
"Whenever the law draws a line there will be cases very near each other on
opposite sides." That is undoubtedly true, yet there's still something
unseemly if the consequences that turn on the line are grossly
disproportionate to the differences between the cases lying on either side
- - especially where one could so easily avoid such disproportion (as by
making the sentence vary more smoothly in proportion to the amount of crack
possessed, with no sharp "cliff" at five grams).

Ironically, when a defendant charged with murder in a capital-punishment
state is convicted, the life-or-death sentencing conviction must rest on an
individualized examination of all relevant considerations, and the
sentencer must be allowed to weigh any potentially mitigating feature of
the killer's character or record or the circumstances of the crime. Why,
then, should those guilty of lesser crimes be subjected to lengthy prison
terms without any regard to the individual, potentially mitigating features
of their cases?

An advocate of mandatory minimum sentencing laws could dismiss all of my
examples by appealing to the criminal-law goal of deterrence. She could
argue that these laws are aimed at crimes (or patterns of crimes) so
dangerous and harmful that there is an imperative social. need to deter
anyone from committing them. And the way to deter potential wrongdoers is
to send the message that those caught engaging in such conduct will do
serious jail time, regardless of any other considerations - including
whether the injunction to "treat like cases alike" is thereby violated. In
essence, this amounts to arguing that the need for deterrence and crime
control trumps the claims of justice in the individual's case.

There are two flaws in this argument, one empirical and one conceptual.
Empirically, the evidence that stiff mandatory minimums are effective
crime-control mechanisms is simply lacking. An extensive study of the
federal mandatory-minimum laws, undertaken by the federal Sentencing
Commission, concluded in 1991 that these laws are applied so unevenly as to
dramatically reduce the certainty of punishment. (The uneven application
stems from the prosecutors' largely unfettered discretion to choose whether
or not to charge defendants with offenses carrying mandatory minimums.)
Since deterrence depends on certainty perhaps even more than on severity of
punishment, the mandatory sentence laws are unlikely to attain their
deterrent goals. More. recently, the Rand Corporation's Drug Policy
Research Center, focusing on cocaine sentences, concluded that mandatory
minimums are not cost-effective methods of reducing cocaine consumption and
drug-related crime. Researchers studying state mandatory-minimum laws have
likewise cast doubt on their deterrent success.

More fundamental, however, is the conceptual question of whether it is
morally proper to allow the pursuit of the common good - here, crime
control - to override the requirements of justice. Suppose that harsh
mandatory minimum sentences did decrease the crime rate, but that we also
believed such sentences rode roughshod over some basic principles of
justice. Is the sacrifice an acceptable one? If so, just how much further
might the readiness to sacrifice justice extend? Do we risk defending our
society against criminals at the price of destroying its moral legitimacy?
These are questions that I believe anyone pondering the wisdom of mandatory
minimum sentencing ought to confront.

David Dolinko is a Professor of Law at the UCLA School of Law who has
written on the philosophical presuppositions of criminal law.

Checked-by: Mike Gogulski