The Drastic Overuse of Mandatory Minimum Sentences: A Judge’s Plea to Prosecutors

May 30, 2012

by Nicole Flatow

When it comes to mandatory minimum sentences for drug offenders, judges’ hands are tied. Prosecutors, on the other hand, have discretion to implement the law, and a New York federal judge is calling on the Department of Justice to start using that discretion to curb the mass overuse of minimum sentences.

“This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences,” writes U.S. District Judge John Gleeson in a recent opinion accompanying the sentencing of low-level offender Jamel Dossie, whom Gleeson had no choice but to sentence to five years in prison.

As The New York Times’ Adam Liptak points out in a column highlighting the opinion, Gleeson is no softy on crime. In fact, he led the team of prosecutors that sentenced John J. Gotti to life in prison.

But mandatory minimums, Gleeson writes in the opinion, do not just capture the managers and strategists that the Anti-Drug Abuse Act of 1986 intended to punish. The ADAA, enacted after the overdose of college basketball star Len Bias, now ensnares some 74 percent of crack defendants, including many “low-level, substance abusing defendants” like Jamel Dossie, whose role in several drug deals was simply to ferry money between the buyer and the dealer.

In his opinion, Gleeson makes a compelling case that although the ADAA was intended to impose harsh punishment on the higher-level masterminds, it poorly captured that population by using quantities and types of drugs and as proxies.

In just the first six years after the ADAA was passed, the prison population related to drug charges spiked 300 percent, Len Bias biographer Dave Grady pointed out during a recent American Constitution Society panel discussion on sports and the war on drugs.

But it’s not just the over-sentencing that Gleeson takes up in his 19-page opinion. He also laments the dismal lack of due process in such proceedings, in which a prosecutor charges a defendant with a crime based on a quantity of a particular drug, defense counsel argues only that the defendant should not get an even higher sentence (because a lower sentence is not an option) and no facts of the case relevant to the severity of the sentence are even considered.

Gleeson is not the first judge to lament the alarming shift of discretion from judges to prosecutors in mandatory minimum cases. U.S. Court of Appeals for the Fourth Circuit Judge Andre M. Davis wrote in a Baltimore Sun op-ed in December that these laws have “inappropriately shifted sentencing authority to prosecutors through their charging decisions,” and U.S. District Court Judge William G. Young wrote in a recent decision cited by Liptak, “Prosecutors run our federal justice system today.”

Gleeson proposes that the DOJ use its discretion to impose harsh sentences only on those fewer than ten percent of defendants who play supervisory roles, enabling the rest of the defendants who demonstrate remorse, promise for rehabilitation, a limited role in the crime and other mitigating factors the opportunity to again contribute to society --  or at least to make their case before a judge.

As author Gregory Jordan writes in a recent ACSblog post, Willie Mays Aikens got that chance when he was released early, and is now a contributing American citizen.

As Aikens travels the country talking about his experience, he asks, “in so many words”:

don’t you think those men and women, mostly addiction free now, mostly ashamed and begging for love and so, so, so eager to give love, don’t you think they would be contributing American citizens today, too?