The delusion of mandatory sentencing; the wrong approach to fighting crime.

Public distress concerning crime has justifiably reached a crescendo, calling on the law enforcement community to devise effective means to promote fair and effective law enforcement. For reasons described below, mandatory minimum sentencing is not such a means. The judiciary is virtually unanimous on that point, permitting me to testify before the Subcommittee on Crime of the House Judiciary Committee on July 28, 1993, "I am here to express the complete and unmitigated opposition of the federal judges of this country to mandatory minimums."

Counterproductive panaceas such as mandatory minimum sentencing can only be overcome if wise solutions are suggested as alternatives--even if they are controversial and require further discussion. Alternative means must include more effective methods of investigation, not relying on use of unreliable informants or confessions during coercive interrogation but using other options that can and must be developed.(1) Alternatives must include corrections that discourage irresponsible behavior and encourage growth of responsibility while one is in prison.(2) They may well include an expanded role of citizen self-defense against crime.(3) And perhaps most crucial of all, they must involve challenging jobs that would permit productive elements of society to compete with criminal elements for the allegiance of new members of that society.(4)

Recognizing the urgency of anticrime efforts, we should examine the helpful or harmful role of mandatory sentencing laws. I am convinced that mandatory sentencing represents a siren song for legislators and candidates for office because it gives a false appearance of promoting the following important goals:

* to take an effective step toward combating crime, particularly violent crime;

* to combat revolving-door justice; and

* to prevent use of undue leniency as a device to move court calendars.

Mandatory sentencing furthers none of these objectives. Passage of mandatory sentencing laws vents and wastes public anger without furthering the goal of that anger--effective action against crime. In fact, these laws paradoxically impede rather than promote effective law enforcement practices.

Mandatory minimum sentencing does nothing to increase the likelihood that a criminal will be tracked down, arrested, or convicted. To the contrary, during the first experiment with mandatory sentencing in the 1960s, limited at that time to narcotics offenses, the number of reversals on procedural grounds spurted up because of distaste for harsh sentences against minor offenders. Recognizing the futility of the mandatory sentence as an antidote to crime, Congress repealed the law in 1970.(5)

Even a rule that after a certain number of "strikes" (violent crimes) a malefactor is permanently incarcerated--or, as the British call it, "potted"--is delusionary. Most violent criminals escape arrest or conviction.

Moreover, not all crimes are equally unprovoked. Both courts and juries become reluctant to convict if sympathy is generated by any extenuating circumstances--if, for example, a person strikes out against a fleeing criminal or an abusive spouse. The same members of the public who call for blood as citizens often acquit obviously guilty defendants if a sympathy factor, however delusionary, can be injected into the proceedings. Pretending that folklore fails to inform jurors about the consequences of verdicts is tunnel vision at its most myopic.

It is also naive to believe that mandatory minimums keep criminals locked up. As put by one legal commentator, "Where mandatory penalties are perceived as inappropriately severe, the legal system will try, subject to institutional constraints, to prevent or reduce the frequency of their imposition."(6)

Mandatory minimum sentencing increases the tendency of prison authorities or political decisionmakers--who would have to find money to deal with more and more prisoners--to tell judicial administrators, police, prosecutors, and judges that they must find ways to release many dangerous offenders because of prison overcrowding. According to some frequently denied but reliably reported information, judges in quite a few jurisdictions are ordered informally to give a certain number of "free walks" to a narcotics peddler before considering imprisonment.

It is an equally dangerous myth that mandatory minimums avoid unduly lenient sentences. Instead, the decision for leniency is merely moved to the earlier plea bargaining phase. Although statistically it may not appear that criminals are sentenced lightly for heinous offenses, the criminal so favored is never charged with the offense actually committed but with a lesser one. The incentives for this sleight of hand are twofold.

First, some prosecutors use the carrot of a lighter charge combined with the stick of the mandatory minimum associated with a realistic charge to coerce defendants into "cooperating" with the authorities. Often the most serious offenders are induced to report on or testify against others who may or may not be guilty. This improves the statistical catch of law enforcement and reduces the effort needed for independent investigation and prosecutorial evaluation of the facts.(7)

Second, plea bargaining to move court calendars--despite its drawback in coercing pleas by defendants who may not be guilty and rewarding worse offenders willing to "cooperate"--is difficult or impossible to eradicate, certainly by fiat.(8) However, the practice of using these enticements is often less necessary than assumed. A defendant may benefit by avoiding having a trial place the details of the crime graphically before the sentencing judge. This means a defendant has an inherent incentive to plead guilty to the original charge to avoid trial and hope for a lesser sentence.

Parading evidence of a crime before the sentencer is a far more potent promoter of substantial sentences than paper minimums, which can readily be avoided by dismissing the case on one ground or another if the result is sufficiently offensive to the trial or appellate court. Use of this natural deterrent to frivolous insistence on trials where there is no defense avoids the many nefarious aspects of the current reliance on bargaining to clear court dockets.

Mandatory minimum sentencing, on the other hand, requires plea bargaining as the only way to avoid imposing excessive sentences on minor offenders. At the same time, it creates an often irresistible temptation for prosecutors to use the stick of potential minimum periods of incarceration to forcibly recruit informants or cooperating witnesses of dubious credibility.(9)

Harmful Side Effects 

Mandatory sentencing hurts effective law enforcement by wasting jail space where minor malefactors happen to meet a wooden textual description of an offense. This phenomenon occurs when numerical factors of crimes determine sentences. For example, one may be far more dangerous brandishing a weapon that adds merely a short time to one's sentence while stealing $10 from a bank than when entering a safe to steal $1 million. Yet the latter offender receives the harsher penalty. A sophisticated drug operative caught with one-tenth of an ounce of a controlled substance may be far more hazardous to society than a lower-echelon carrier of 10 ounces, but the carrier is punished more severely.

Indeed, minor offenders can be ruined for life. A peripheral figure pressured or duped into participating in an illegal activity may meet statutory criteria for commission of a crime calling for lengthy mandatory imprisonment. The results may include not merely loss of time, worthwhile opportunities, and ability to meet family responsibilities; they may include inability to obtain future employment, development of lifelong resentment, and acquisition of criminal skills in a taxpayer-supported school for crime.

Less obviously but just as surely, mandatory sentencing denigrates the independence of the judiciary, which is treated as a robotic rather than intelligent branch of government. Indeed, one distinguished state jurist resigned rather than obey an appellate mandate to implement a wooden minimum.(10)

Such sentencing also deprives the court of options that may lead to rehabilitation, such as ordering the defendant to go to "boot camp," leave the area, or submit to close supervision by family or other trusted people. This kind of rigidity is based on the unexamined assumption that the statutory description of a crime contains all the information needed for wise disposition of the offender--a form of what Justice Oliver Wendell Holmes, Jr., called "delusive exactness."(11)

The weed dies hard, however, because it has superficial appeal. It gives the public a false sense that something effective is being done about crime, diverting attention from meaningful steps that urgently need to be taken. These include developing more effective means of law enforcement and dealing with underlying factors like the lack of adequate job opportunities for many who are attracted by criminal gangs or syndicates. These important issues take the back seat to misinformed crusading for tough mandatory sentencing.

Combating the Evil

The simplest means of extirpating the bane of mandatory sentencing is the direct one used by Congress in 1970 when it repealed the first mandatory sentencing law. This best solution is difficult, of course, because the political sector will have to eat a very large amount of crow to do it.

Although desirable and, indeed, critical, repeal alone provides no inoculation against recurrence of the disease. Mandatory minimum sentencing is often reinvented as a suddenly discovered anticrime panacea. It is quite likely to reemerge no matter how many times it is proven unsuccessful.

Fortunately, a second approach has been developed. Federal law authorizes judges to depart from the Federal Sentencing Guidelines whenever factors are present that were not "adequately taken into consideration by the Sentencing Commission" when preparing the guidelines.(12) This permits courts to take into account any of the purposes of sentencing set forth in 18 U.S.C. [section]3553(a), including prevention of further crime by the defendant, rehabilitation if possible, and deterrence.(13)

The same approach can be adopted with regard to mandatory sentences. This could most easily be achieved by statutory amendment. But where a particular sentence is egregiously unfair, interpretation of the purpose of the law may also offer a remedy. As stated by Chief Justice Harlan Stone in a constitutional context: "To decide, we turn to the words ... read in their historical setting as revealing the purposes of [the] framers, and search for admissible meanings of ... [the] words which, in the circumstances of their application, will effectuate those purposes."(14)

As Hamilton stated in The Federalist:

[I]t is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard ... [against] injury ... by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.(15)

Article III of the Constitution, in creating an independent judiciary, may include Hamilton's conception of its role and thus mandate use of purpose interpretation where called for by the circumstances.(16) When interpretation does not suffice to avoid injustice, the Eighth Amendment's guarantee against cruel and unusual punishment may be invoked.

Relevant Factors

Some of my own decisions departing from the Federal Sentencing Guidelines may illustrate the kinds of factors that may be relevant to departure from mandatory minimums as well, whether permitted by statutory amendment, purpose interpretation, or adherence to the Constitution:

* Instances in which a family or closeknit religious or other community will provide detailed backup for supervision of a good candidate for rehabilitation, when the guideline sentence was necessary as a deterrent to others.(17)

* Cases where "boot camp" may offer a combination of punishment and rehabilitation that is better for society than long-term imprisonment.(18)

* Instances where a sentence would otherwise be ratcheted to a higher level because of prior events not of a heinous nature and not taken seriously in the geographic area where they occurred.(19)

* Cases in which a small-time operation not posing a significant threat to the public was involved and the prosecution arguably was brought chiefly for statistical reasons.(20)

* Situations in which arrest and conviction decisively prevent further crime of the only type a defendant is likely to commit,(21) but not those where merely one means has been eliminated.(22)

* Situations in which upward departures are important to protect the public from further criminal activity--especially involving violence or threats of violence, large-scale activity, or retention of ill-gotten gains.(23)

For appropriate departures to be encouraged where indicated, sentences should be considered not an ordinary question of law but a matter subject to review only for abuse of discretion. Appellate review could be limited to instances where the appellate court grants leave--akin to a grant of a petition for certiorari--because of reason to believe that a particular sentence was substantially excessive or inadequate.

Hidden Benefits

According to an aphorism attributed to Walt Whitman, some evils have value because of the disputes they cause. That cannot be said of mandatory minimum sentencing because of the human tragedy wreaked by this bulldozing of people that results from looking only at the statutory description of a crime and not at any mitigating factors in deciding how a defendant should be treated.

Despite the massive tragedy continuing to unfold, some benefit can be derived if the public begins to recognize that panaceas are often counterproductive. People may learn that the judiciary should not be robotized and that even entrenched errors can be corrected. Moreover, the justified anger at criminal behavior that is now siphoned into illconsidered pressure for mandatory minimum sentences can be rechanneled into more productive efforts to deal with both the real weaknesses of law enforcement and the factors tending to promote crime.

Notes

(1)See Measures Relating to Organized Crime, Hearings Before the Subcomm. on Criminal Laws & Procedures of the Sen. Comm. on the Judiciary, 91st Cong., 1st Sess. 219-29 (1969).

(2)See generally WILLIAM GLASSER, REALITY THERAPY (1965); see also Vincent L. Broderick, Pretrial Detention in the Criminal Justice Process, 57 FED. PROBATION 4 (1993).

(3)See Jackson v. Senkowski, 817 F. Supp. 6, 7 (S.D.N.Y. 1993).

(4)See Toliver v. Sullivan Diagnostic Treatment Ctr., 818 F. Supp. 71, 74-75 (S.D.N.Y. 1993); see also Stewart v. United States, 817 F. Supp. 12, 13 (S.D.N.Y. 1993).

(5)21 U.S.C. [section]174, 84 Stat. 1291 (repealed 1970).

(6)Stephen Calkins, Summary Judgment, Motions to Dismiss and Other Examples of Equilibrating Tendencies in the Antitrust System, 74 GEO. L.J. 1065, 1139 (1986); see also Larimore v. Comptroller, 789 F.2d 1244, 1250 (7th Cir. 1986).

(7)Use of cooperating malefactors is, of course, necessary at times, but not nearly to the extent commonly assumed. All too often it is merely an easier way to conduct a less reliable investigation. See Michael L. Bender, New Federal Sentencing: Blurring the Constitutional Role of the Judge and Giving Breaks to Big-Time Offenders, 6 CRIM. J. 1 (A.B.A. 1991).

Other methods of investigation include videotaping of many locations of potential crimes, more aggressive use of search warrants, electronic surveillance, tracking of laundered or other suspect funds, and use of planted professional agents.

(8)See Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037 (1984); Stephen J. Schulhofer, Justice Without Bargaining in the Lower Courts, 1985 AM. B. FOUND. RES. J. 519; Maise Berger, The Case Against Plea Bargaining, 62 A.B.A. J. 621 (1976); Albert W. Altschuler, Plea Bargaining and Its History, 79 COLUM. L. REV. 1 (1979); Teresa W. Carns & John A. Kruse, A Re-Evaluation of Alaska's Plea Bargaining Ban, 8 ALASKA L. REV. 27 (1991).

(9)See Solis v. Walker, 799 F. Supp. 23, 25 (S.D.N.Y. 1992).

(10)See Forer, Justice by Numbers: Mandatory Sentencing Drove Me form Bench, WASH. MONTHLY, Apr. 1992, at 12.

(11)Truax v. Corrigan, 257 U.S. 312, 342 (1921) (Holmes, J., dissenting).

(12)18 U.S.C. [section]3553(b) (1988).

(13)For further development of my views, see Vincent L. Broderick, Perspectives on Sentencing, INTERGOVERNMENTAL PERSP., Spring 1993, at 14; see also Testimony Before the U.S. Sentencing Commission, March 22, 1993, 6 FED. SENTENCING REP. 76 (1993); Judicial Conference Testimony, Feb. 25, 1992, 4 FED. SENTENCING REP. 319 (1992).

(14)United States v. Classic, 313 U.S. 299, 317-18 (1941). See also Tedla v. Ellman, 19 N.E.2d 987, 991 (1939); Edward N. Peters, The Process of Responsible Decision: Observations on the Jurisprudence of Professor [Harry W.] Jones, 28 CATH. LAW. 199 (1983). According to Paul Tillich, "Justice is expressed in principles and laws none of which can ever reach the uniqueness of the concrete situation.... Every decision which is based on the abstract formulation of justice alone is essentially and inescapably unjust." PAUL TILLICH, LOVE, POWER AND JUSTICE (1954).

(15)THE FEDERALIST No. 78, at 397-98 (Alexander Hamilton) (Gary Wills ed., 1982) (emphasis added).

(16)See Oestereich v. Selective Serv. Sys. Local Bd., 393 U.S. 233, 238 (1968).

(17)United States v. Neiman, 828 F. Supp. 254 (S.D.N.Y. 1993).

(18)United States v. Martin, 827 F. Supp. 232 (S.D.N.Y. 1993).

(19)United States v. Stevenson, 829 F. Supp. 99 (S.D.N.Y. 1993). See also Vincent L. Broderick, Local Factors in Sentencing, 5 FED. SENTENCING REP. 314 (1993).

(20)United States v. Caruso, 814 F. Supp. 382 (S.D.N.Y. 1993).

(21)United States v. Gaind, 829 F. Supp. 669 (S.D.N.Y. 1993).

(22)Lieberman v. United States, 839 F. Supp. 263 (S.D.N.Y. 1993).

(23)United States v. Bryser, 954 F.2d 79, 89-90 (2d Cir.), cert. denied, 112 S. Ct. 2939 (1992); see also Stewart, 817 F. Supp. 12, 14.