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The Human Cost of Mandatory Minimums

Jay Rorty,
Drug Law Reform Project
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May 28, 2010

I sat down in front of the United States Sentencing Commission (USSC) yesterday afternoon to testify about the harmful effects of mandatory minimum sentencing. In 1991, the USSC delivered a report to Congress denouncing mandatory minimums and calling for their abolition. Nineteen years and thousands of prisoners later, Congress has once again directed the commission to provide a report on mandatory minimums.

“Mandatory minimums” are minimum sentences that Congress has attached to certain crimes. There are over 150 of these throughout federal criminal law. Many are hardly used, but the ones that are — mainly relating to drug crimes — can have devastating consequences for people’s lives. Mandatory minimum sentences reduce the sentencing discretion of judges, create racial disparities, and give prosecutors too much leverage, which they can use to strong-arm defendants out of their constitutional rights and force them to plead to harsh sentences.

In addition to all of this, the mandatory minimum penalties themselves are incredibly severe. Judges across the country have spoken out against mandatory minimums because they force them to impose harsher-than-necessary sentences. And now with the prisons overflowing and the country just recovering from financial crisis, we don’t have the money to keep thousands locked up unnecessarily.

The most moving aspect of yesterday’s day-long hearing was listening to the stories of how mandatory minimums affect individuals’ lives. Each one was a poignant reminder of why Congress should abolish mandatory minimums, as the ACLU and a host of other advocates and practitioners from across the political spectrum (from the National Association of Criminal Defense Lawyers to the Heritage Foundation) recommended today.

I told the commission the story of an ACLU client, Hamedah Hasan, who received a life sentence for a first-time, nonviolent drug offense under the most extenuating circumstances: she came to stay with her cousin in order to flee a physically abusive relationship, and the cousin roped her into running errands for his drug conspiracy. Despite her previously clean record, her sentencing judge found his hands tied by a combination of mandatory minimums for crack cocaine and the then-mandatory sentencing guidelines based on those minimums. Hamedah’s sentence has since been reduced from life to 27 years, but she still has 10 years left to go. Hamedah has three daughters and one granddaughter. She gave birth to her youngest child in prison, and because of the ripple effect of this sentencing structure, Hamedah’s children and grandchildren are growing up without her. The judge has publicly urged that her sentence be commuted (reduced) and the ACLU filed a petition three months ago asking President Obama to do so.

Another tragic story recounted today was that of Weldon Angelos, who was facing a sentence of 6-9 years for dealing marijuana — until the government added three gun charges carrying increasingly harsh minimums that the law requires to be “stacked,” that is, to be added on top of one another. Even though he never fired the gun or threatened anyone, the fact Weldon had the gun with him on several occasions was enough to increase his sentence to 55 years, in spite of his judge’s firm conviction that the sentence was unfairly severe. Listening to stories like this made me wonder how Congress could have let this state of affairs persist for so long and whether they will ever be serious about changing it.

But there were hopeful moments, too. An attorney representing the Justice Department acknowledged that some mandatory minimums are too harsh, called the resulting spike in the prison population “unsustainable,” and agreed that some reform was warranted. She urged the commission to take a look at the “stacking” provision that doomed Weldon Angelos, as well as several other provisions that are commonly used by prosecutors to lean on defendants, though she also maintained that using mandatory minimums to pressure defendants into plea bargains was a legitimate sentencing practice.

Still, I was pleased to hear the Justice Department’s representative express support for some of the reforms the ACLU and its allies have been advocating for years. Although there was disagreement on the details — we advocated outright abolition of mandatory minimums, for example, while the Justice Department seemed to think some mandatory minimums should be retained — I was heartened by the near-consensus among today’s 21 witnesses that some reform was necessary. And the commissioners were clearly engaged in the issue, asking thoughtful questions and pointing out specific categories of defendants (such as so-called “drug mules” who often do nothing more than carry drugs from point A to point B for money, with no knowledge of the scope of the operation) for whom mandatory minimum sentences are too harsh.

We’re hoping the very fact Congress called for another report on mandatory minimums could mean Congress will take a serious interest in reform, and the commission’s recommendations will not fall on deaf ears. There are already promising signs this Congress will take important steps to increase fairness in the criminal justice system by minimizing the notorious disparity between sentences for crack and powder cocaine offenses. The Fair Sentencing Act, which would reduce the 100:1 crack-powder ratio to 18:1, has passed the Senate and is awaiting action in the House. This bill wouldn’t eliminate the disparity entirely (as the ACLU has advocated) but it’s a big first step. Mandatory minimums could be next.

But first the sentencing commission has to use its expertise and clout to recommend that Congress do the right thing: abolish mandatory minimums, or if Congress cannot muster the political will to do so, at least restrict their application and effects. In my testimony today, I reminded the commission of its courageous stand in 1991 and urged it to stand its ground. After 19 years have shown how right the commission was to recommend abolition in the first place, this is no time for timidity. Our country simply cannot afford the financial, constitutional and, most heart wrenching of all, human costs of these unjust laws.