Congress Needs to Act to Reduce Mandatory Minimum Sentencing

Mandatory Minimum SentencingThere has been much written on LA Progressive about various aspects of U. S. prisons and prison reform, especially in California. In August, there was a detailed article on Attorney General Eric Holder’s announced new policies intended to reduce the use of mandatory minimum sentencing in federal cases.

In this present article we focus on the problem of such sentencing and a bill presently being considered in committees of both houses of Congress, the Justice Safety Valve Act. Designed “to prevent unjust and irrational criminal punishments,” if enacted, it would allow judges more discretion in sentencing below the mandatory minimum for many federal crimes if they are convinced that doing so would not endanger public safety.

It is not a perfect bill. It would only apply to those charged with federal crimes that carry mandatory minimum sentences, and it would not affect most sentencing because most incarcerations are not for federal crimes. Furthermore, it would not help anyone currently incarcerated. But the bill is at least a step in the right direction.

One of us (Walter) has often written on this site about the need for congressional bipartisanship and political pragmatism in order for Congress to serve the common good. The other (Thomas) has been a Florida public defender and is now a municipal attorney in Florida. Like Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.), who are co-sponsors of the Senate legislation, we have our political differences. But the need for doing something about our ridiculously overcrowded prisons is so great and so obvious that it presents a rare opportunity for people of different political views to come together to support the Leahy-Paul bill.

How bad is the current situation? The words that most readily come to mind are those of Kurtz in Joseph Conrad’s Heart of Darkness and repeated by the colonel in Vietnam played by Marlon Brando in Apocalypse Now, “the horror. . . the horror.” The USA has less than 5 percent of the world’s population but almost 25 percent of its prisoners. A 2012 New Yorker essay summed up the problem concisely:

Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. . . .

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education.

Mandatory minimums undoubtedly contribute to the problem of mass incarceration. By definition and design, they divest judges of much of their sentencing discretion—often relegating them to bystanders during the crucial end-stage of the criminal justice process. As mandatory minimums push judges aside, prosecutors step in to fill the void. And when they do, they bring with them perhaps the most powerful tool in the criminal justice system—authority to file charges. While a judge is generally powerless to deviate below a mandatory minimum for a deserving defendant, prosecutors can effortlessly navigate sentencing guidelines to pick and choose who gets 20 years and who walks out the front door of the courthouse.

Prosecutors are empowered with unlimited discretion to charge or not charge, to pick and choose charges, to reduce or upgrade charges, and to drop and refile charges. Defendants who “play ball” with the government, or have lawyers, or family or friends, with the right connections can escape mandatory minimum sentences by a simple change in the charge. Whatever a defendant actually did to initiate a charge carrying a mandatory minimum sentence can be “rewritten” to delete that element, thus making the mandatory minimum disappear into thin air.

The American justice system is an adversarial process. Prosecutors and defense lawyers battle it out in court. Judges are supposed to be impartial referees. Prosecutors are not neutral and objective, and they are not supposed to be. They are obligated to fight for convictions. Defense lawyers balance the scales by pushing back against the government to ensure prosecutors do not overstep their bounds. It follows then that prosecutors and defense lawyers in the real world do not focus much on lofty ideals like fairness and justice. They do not need to. If both do their jobs and judges keep the fight fair, justice should emerge.

With the foregoing in mind, why would we want one side to be in charge of the severity of a sentence? A defendant who has done nothing to ingratiate himself to the government, either because he does not have the right connections, the right information to “play ball,” or simply because the prosecutor does not like him, faces an uphill battle. The charge will certainly not be dropped or reduced. The facts of the case will not be rewritten. If and when convicted, the judge will have no choice but to impose the mandatory minimum. And even though the judge imposes the sentence, one side, that of the prosecutor, is the one that actually chooses the sentence. In an adversarial system, neither side should have that much power. Restoring discretion to judges is a step in the right direction

A Huffington Post article quoted a knowledgeable source as stating, “Our justice system’s overreliance on mandatory minimum sentencing is a major reason our prison system incarcerates more people than any other industrialized nation in the world. . . . In fact, our overcrowded prisons are almost entirely the result of the mass incarceration of nonviolent drug offenders, who make up nearly half of all federal offenders, not violent criminals.”

This same article, written shortly after the Senate bill was first introduced in late March, provides some idea of how ideologically diverse the support for the measure has been. Democrat Sen. Leahy issued a statement in which he said:

“Our reliance on mandatory minimums has been a great mistake. I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them. A one-size-fits-all approach to sentencing does not make us safer.”

His press release quoted Sen. Paul as saying:

“Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates . . . our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer. This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

The Huffington piece also referred to bipartisan support for the bill from civil rights activists and fiscal conservatives and quoted from an op-ed piece on The Hill blog by Julie Stewart, president of the Families against Mandatory Minimums (FAMM) Foundation, and Grover Norquist, president of Americans for Tax Reform. Stewart began her organization in 1991 after “her brother Jeff received a five-year federal mandatory minimum sentence for growing marijuana,” and it has compiled an excellent document about the bill, which it contends would prevent “lives and money from being lost down the drain.”

In June two more conservatives, columnist George Will and Richard Viguerie, chairman of, urged conservatives to support prison reform. Will concluded that “the Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.” Although Viguerie did not speak as specifically about the proposed bill, he did write that “conservatives should lead the way on prison reform,” and did mention favorably the Leahy-Paul proposal.

Of course, conservatives, libertarians, liberals, and progressives often have different reasons for supporting prison reform. But we should not get sidetracked by our differences. As Dorothy Day, the pacifist anarchist woman now being considered by the Vatican for sainthood, once reminded us, “We must always be seeking concordances, rather than differences.” After the death of his friend Senator Ted Kennedy in 2009, conservative senator Orrin Hatch of Utah wrote more specifically about the need for Congressional bipartisanship:

“With the loss of such a liberal legislative powerhouse who spoke with conviction for his side of the aisle but who was always willing to look at an issue and find a way to negotiate a bipartisan deal, I fear that Washington has become too bitterly partisan. I hope that Americans in general and Washington politicians in particular will take a lesson from Ted’s life and realize that we must aggressively advocate for our positions but realize that in the end, we have to put aside political pandering, work together and do what is best for America.”

Despite such pleas for bipartisanship and the rationality of the Leahy-Paul bill, its chances of ever becoming law, even in some amended form, are not good. According to, “one of the world’s most visited government transparency websites,” the Senate bill now in committee has (as of 10/12/2013) only a “30% chance of getting past committee” and a “12% chance of being enacted.” Also according to, the House version of the Justice Safety Valve Act, which was sent to committee in late April, has only a “27% chance of getting past committee” and a “16% chance of being enacted.”

As useful as odds and are, however, members of Congress do pay some attention to their constituents, though perhaps not as much as to powerful lobbyists. If ever there was a time for average citizens to contact their members of Congress, even this Congress with all of its recent acrimony, this is the time.

thomas-walter-moss-2Not only would passage of the Justice Safety Valve Act prevent (in the words of FAMM) “lives and money from being lost down the drain.” It would also demonstrate to politicians and average citizens in this time of ideological rigidity that Congress still can, at least occasionally, come together to work for the common good.

 Thomas P. Moss and Walter G. Moss

Saturday, 12 October 2013



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