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Mandatory Minimum Penalties in Federal Criminal Cases: Changes Over the Years

Kish Law LLC

I am reviewing the Discovery (meaning the evidence) in a somewhat old federal criminal case that has ties to both Atlanta and North Carolina.  My client is accused of a drug crime, and from the indictment and other materials it appears that the prosecutors contend that there is a mandatory minimum penalty of 5 years in custody, and up to a potential maximum of life in custody.  Obviously, this is a very serious matter.  While this case and the potential penalty are each very serious, the possible sentence caused me to reflect on how far the federal criminal system has come in the 37 years I have been involved.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.”  Things began to change in the middle of the 1980’s. Drug crimes started getting more violent.  Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.”

Two years later came the absolutely horrible Anti-Drug Abuse Act of 1986.  In this despicable law, Congress began the regime of mandatory minimum sentences for drug crimes.  These mandatory 5, 10 and sometimes 20-year sentences applied based solely on the quantity of drugs that Congress basically picked out of thin air.  The penalty applied whether the person was a scared 18-year old first time offender or a seasoned criminal on his or third trip through the criminal justice system.  The dreaded “MM” applied to the drug kingpin who made millions while being in the business for many years, as well as the scared immigrant who one time for $500 foolishly let someone put a package in her luggage when she flew into the US.  From that point forward, an entire generation was subjected to these mandatory penalties.  Federal prison population boomed, which was great if you had a job designing, building or maintaining this system.  It was not so great for taxpayers or the families of first offenders caught up in this system.  Things got even worse with the 1988 Anti-Drug Abuse Act, and the horrible legislation signed by Bill Clinton, the 1994 Violent Crime Control and Law Enforcement Act.

Mandatory minimums also were inequitable for Judges and criminal defense lawyers.  Once a prosecutor decided to bring the charge containing a mandatory minimum penalty, the criminal defense lawyer was handcuffed, unless he somehow could win the case completely.  The same was true for the Judge.  Remember, under our system, these Judges are selected by the President of the United States and confirmed by the United States Senate, and after that arduous process, we trust them so much that they keep their jobs for the rest of their lives.  But, some young Assistant United States Attorney out to make a name for him or herself could name the penalty, even if the seasoned Judge thought that mandatory penalty was unfair.   I recall a story about a well-respected Judge when had been on the bench over 20 years fuming because, as the story was told to me, some “kid” prosecutor decided he knew better than the Judge what was was fair for a first-time offender.  A few federal judges even resigned in disgust.

Over time, taxpayers began to realize that they had been sold a bill of goods, and were stuck paying for overly lengthy incarceration.  Congress began creating little loopholes that somewhat alleviated the mandatory penalties.  The Supreme Court ruled that the dreaded Sentencing Guidelines were no longer mandatory and Judges are permitted to vary down to a lower sentence.  And, perhaps most importantly, prosecutors stopped feeling that their jobs were to bring cases in order to obtain absurdly long sentences that led to one of the world’s highest rates of incarceration.

So, my new case involves a potential mandatory penalty, but I also know that my client and I have a lot more room to maneuver than 25 years ago.  The “system” is no longer hell-bent on imposing the longest possible sentence.  It is far too early to tell if this is a case where we should fight or negotiate, but I am a somewhat relieved that our system is a bit better than it was previously.

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