On September 11, 2015, 75-year-old Lee Carroll Brooker, a disabled war veteran with chronic pain, received the news he had been dreading for months; his Supreme Court petition, challenging his life sentence for growing three dozen marijuana plants, had been denied. “[If the court] could sentence you to a term that is less than life without parole, I would,” said trial Judge Larry Anderson of the draconian sentence. But, as Judge Anderson’s comments indicate, he could not. His hands were tied by an Alabama state law that imposed a mandatory minimum sentence of life in prison for anyone caught with more than 2.2 pounds of marijuana who had been previously convicted of a felony. That was the case for Brooker, who had been convicted of a felony more than three decades prior. In contrast to Brooker’s sentence, on October 12, 2016, Martin Joseph Blake was sentenced to 60 days in jail for repeatedly raping his 12-year-old daughter.
This shocking comparison offers an illuminating insight into the convoluted nature of the United States criminal justice system: a nonviolent marijuana grower with no ties to gangs or drug-trafficking organizations, merely growing the plant for his own personal use, can receive a sentence exponentially longer than a man who caused irreversible trauma to an innocent young girl. The issue at hand is mandatory minimum sentencing laws, standards set by legislative bodies that require a minimum number of years in prison for people convicted of certain crimes. In the US, the most controversial examples of these laws apply to drugs. Mandatory minimums effectively strip the judge of any discretion he or she might have to impose a sentence that is proportionate to the crime committed, and that is “sufficient, but not greater than necessary” to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense.
The modern story of drug-related mandatory minimum sentencing in the United States began with the passage of the Anti-Drug Abuse Act of 1986. In the wake of the cocaine overdose death of Len Bias, the second overall pick in the 1986 NBA draft, Congress swiftly passed the act, bypassing the usual deliberative steps of committee hearings. Although the “War on Drugs” began rhetorically with President Nixon in 1971, the Anti-Drug Abuse Act of 1986 marked the first major legislative effort since his declaration to give teeth to this claim. The basic premise of the Act was to make the punishment for drug-related crimes harsher, which, in turn, would deter the proliferation of drug abuse throughout the Country. The legislature did this by introducing mandatory minimum sentences. In so doing, Congress changed the nature of drug related criminal justice from rehabilitative to punitive.
Over the years, Congress has passed a variety of legislative initiatives modifying these mandatory minimums, changing the number of years required for certain quantities and particular drugs. One of the most punitive of these laws was Section 851 of United States Code 21, which allows for a person charged in federal court to face an enhanced mandatory minimum sentence if he or she has a prior felony conviction, and the prosecutor chooses to file what is known as a “prior felony information” or “PFI.” This is an extremely powerful tool for prosecutors. A first-time marijuana grower facing 5 or 10 years might decide to try his luck at trial. But that same man with a prior felony, facing the threat of 20 years or life, might have a different viewpoint. The use of PFIs became so prolific that in 2013, then-Attorney General Eric Holder released a memo instructing federal prosecutors to use PFIs only in the most severe cases, where the defendant has exhibited violent behavior, is among the leadership of a gang or drug trafficking organization, or has a significant criminal history.
Examples of the harsh effects of mandatory minimum sentencing laws are not hard to find. On May 9, 1999, Tyrone Taylor sold $20 of crack cocaine to an undercover officer. Unfortunately, Taylor had been caught selling the drug twice earlier in his life, and was required to serve a life in prison. Joseph Tigano III, a non-violent man living peacefully in rural Western New York, was caught operating a marijuana grow house, for which he received a mandatory minimum 20-year sentence based on a prior conviction, more than a decade earlier, for growing 10 marijuana plants. Indeed, the judge described the sentence as “much greater than is necessary” and lamented that she had “no choice.”
Mandatory minimum sentencing for non-violent drug infractions turns the criminal justice system into a machine for chewing up and spitting out those who suffer from addiction, punishing them instead of rehabilitating them. Rather than treating those affected by their toxic grasp as enemy combatants to be thrown in prison in a “war on drugs,” drug addiction should be treated as a public health problem, and treatment given to those affected by it. Legal scholar Mark Osler frames the situation well: “If we take a rapist away from society and stop him from raping women, that is a good thing. If we take a very low-level crack dealer out of the society and imprison him for life, that’s not solving any problem because it’s a market. And you don’t solve a market problem by sweeping up low-wage labor.”
Fortunately, unlike many controversial and partisan issues that tend to split Congress and the nation, public opposition to mandatory minimum sentencing is strong, with 77 percent of citizens stating they were against it in 2015. It is also generally agreed upon as an ineffective deterrent to crime. A report from the Federal Judicial Center stated, “Trends in criminal victimization rates and drug availability for the periods before and after the mandatory minimums took effect fail to demonstrate any reduction in crime that can be attributed to the mandatory minimums.”
Regrettably, Congress has been incapable of passing the necessary criminal justice reform to put an end to this issue. The Sentencing Reform and Corrections Act of 2015, a bill presented to Congress in the fall of 2015, would have been a step in the right direction, reducing many of the mandatory minimums for many drug related crimes. Unfortunately, the Republican party has been heavily split on the issue. Spearheading the movement against the bipartisan push for criminal justice reform is Senator Tom Cotton (R-AR), a graduate of both Harvard College and Harvard Law School, who argues that, despite the United States having the largest prison population in the world, “we have an under-incarceration problem.” He rejects the notions that those convicted of crimes should be given sympathy, also stating “As for the claim that we should have more empathy for criminals, I won’t even try to conceal my contempt for the idea.” Sadly, to date, the bill has yet to pass. Cotton’s efforts, collaborating with others, have succeeded enough to cause majority leader Mitch McConnell (R-KY) to not yet make a commitment to bring the issue onto the table, and key authors of the bill like Senator Richard Durbin (D-IL) have declared it to be “over.”
Given this legislative inaction, it’s important to consider the role and powers of the executive. Former Attorney General Holder took the right step by asking prosecutors to pursue mandatory minimums enhancements only in the most severe cases. In addition, the President has the power to commute or pardon federal prisoners. President Obama has already begun to take the necessary steps towards reversing the injustice caused by mandatory minimum sentences by making use of his clemency power more than any other President before him. Thus far, he has commuted the sentences of 673 inmates – 325 in this August alone. But that is not enough. Directives need to be given to law enforcement to shift focus away from petty drug crimes. The United States boasts an exorbitant 192,170 inmates in its federal prison system alone, with 46.4 percent jailed for drug offenses. While certainly not all of these inmates deserve exoneration, many of them are unjustly serving sentences that they would not even receive if they were sentenced today.
With the 2016 election looming in the foreground, the future of clemency initiatives is uncertain. President Obama has taken good first steps, but momentum for progress could be lost if the next administration scales back clemency efforts. Secretary Clinton has come out in favor of reforming mandatory minimum sentencing laws, which would both continue to give presidential support for Congressional action and would indicate that she would be amenable to continuing President Obama’s actions on clemency. Donald Trump has emphasized law and order, and has expressed support for mandatory minimum sentencing laws for immigrants convicted of illegal entry. These combine to suggest that Trump is unlikely to a partner with those who seek to reduce or eliminate mandatory minimums for drug crimes
Above all, one thing is clear: until the legislature can unite to address this issue, the executive remains the most effectual branch in producing change on mandatory minimums. Across the country, judges’ hands are tied as they are forced to hand severe sentences that bear no relation to the crime committed. With only a few weeks until the 2016 election, voters should keep criminal justice policy central in their minds as they consider for whom to vote up and down the ballot. As this administration has shown, executive action can have some positive impact, but it cannot provide a structural fix to this problem. This election has so far only stalled progress on what was once a promising effort to address this irrevocable injustice; it would be a welcome turn of events for the results of this election to harken a new era of bipartisan criminal justice reform that restores justice into our perhaps inaptly-named “justice system.”
Special thanks to Attorney Andrew Gladstein of Schulte Roth & Zabel LLP for his professional perspective and advice.