by Llewelyn Engel
In 1984, Congress created the United States Sentencing Commission, which writes sentencing guidelines for all federal crimes. Congress was hoping to correct widespread sentencing disparities that existed between races, genders, localities, and judges. The guidelines were created to ensure that similar defendants who committed similar crimes received similar sentences.
The guidelines take into account many factors, including the criminal history of the defendant, the nature of the crime, and other defendant-specific criteria. These factors are then weighed by a judge to determine the appropriate sentence. Originally the guidelines were mandatory, prohibiting judges from administering a sentence that deviated from the prescribed range. However, the 2005 Supreme Court in United States v. Booker found the sentencing guidelines unconstitutional if mandatory but allowed them to continue to act as general parameters. Now judges are permitted to depart from the guidelines.
The guidelines, however, are not the only mechanism for prescribing particular sentences. For certain offenses, judges’ sentencing discretion is eliminated by what are known as mandatory minimums, which are permissible under Booker. Congress may pass statutorily-mandated minimum sentences, which supersede the discretionary guideline range. In 1986 Congress passed the first drug related mandatory minimum sentences. Mandatory minimums remain a popular tool in Congress for assuring certain and uniform punishment in categories of offenses deemed particularly reprehensible by the public.
In 1986 Congress was reacting to a perceived national drug epidemic. They wanted to appear tough on drugs and to combat what was viewed as serious sentencing disparities among various judges and courts. The goal of mandatory minimums was to correct sentencing disparities. However, while mandatory minimums produce similar sentences for similar charges, similar defendants may still face disparate outcomes. Mandatory minimums shift discretion away from judges, whose job it is to be impartial, to prosecutors, whose job is to get a conviction. The intended uniformity of mandatory minimums depends entirely on uniformity in the charging of defendants. The sentencing guidelines created a matrix of factors to be considered and weighed, leading to a proportional sliding scale determining the defendant’s sentence. By contrast, mandatory minimums prescribe a sentence based only on the crime charged. This results in an uneven system where possession of an extra ounce of drugs can result in a dramatic five year sentencing increase.
One group in particular has been disproportionately affected by mandatory minimums: African American males. According to the ACLU, African Americans are four to five times more likely to be convicted for drug possession, even though whites use drugs at a higher rate. A recent study by Sonja B. Starr and M. Marit Rehavi detailed in an article in the Yale Law Journal entitled Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker explores why sentences for African American male defendants are on average around 10% longer than sentences for white male defendants even when taking into account the arrest offense, criminal history, and other prior characteristics. Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker, 123 Yale L.J. 2 (2013). The article points to mandatory minimums as a root cause for racial disparities in sentencing. “[W]e find that prosecutors file mandatory minimums twice as often against black men than against comparable white men.”
The Starr and Rehavi study found that racial disparity in sentencing stems primarily from prosecutors’ charging choices. The study also found that expanding the discretion of judges alleviates some of the disparity. After Booker, there was an increase in the charging of crimes carrying mandatory minimums. Mandatory minimums became a substitute for mandatory guidelines and were used most heavily in charging African American men with drug crimes.
The social and economic effect of mandatory minimums is hard to quantify, but currently one of every nine African American men under the age of 35 is incarcerated, and one in three can expect to be imprisoned at some point in his life. These rates are far higher than for any other demographic; African American men are incarcerated at nearly seven times the rate of white males. While Booker removed mandatory guidelines, it did not increase judicial discretion for sentencing in drug crimes. Rather, Booker led to an increased in mandatory minimum charges. By returning discretion to judges, the disparity in sentencing could be alleviated.
In Congress, two bills aim to restore judicial discretion to sentencing. The first, the Justice Safety Valve Act, would permit judges to depart from mandatory minimum sentences if certain conditions are met. The second, the Smarter Sentencing Act, would among other things lower the drug mandatory minimum for certain non-violent drug crimes while also giving judges more discretion to depart from mandatory sentences. These bills aim to restore judicial discretion and reduce the country’s rapidly growing prison population. Judges would still be required to consider factors like public safety and deterrence, but would be permitted to inject their personal expertise to administer a sentence that fit the defendant not just the crime.
Mandatory minimums stripped judges of the ability to carefully evaluate the defendant based on the variety of factors accounted for by the sentencing guidelines. Shifting discretion in sentencing back to judges would combat the increasing sentencing disparity between African American men and other offenders. The Justice Safety Valve Act and the Smarter Sentencing Act both aim to correct the disparity. Rand Paul, who cosponsored the Justice Safety Valve Act, compared the high rate of incarceration for African American men resulting from the “war on drugs” to Jim Crow laws. He called for a safety valve allowing judges to administer a sentence below the statutory minimum. While the legislation is not the only way to combat the increasing racial discrepancy in sentencing, it would ensure defendants are sentenced on a case-by-case basis.