First, empirical research has demonstrated that mandatory minimum sentencing fails to achieve the intended goal of a reduction in criminal offending.
Secondly, this twenty-year experiment with mandatory sentencing has had catastrophic consequences for law enforcement in the criminal court system. We strongly recommend that this committee look to the United States as a cautionary example of the perils of resorting to mandatory minimum sentences to address criminal conduct.
In the interest of time, I would like to focus my oral remarks upon the second conclusion. In August 2003, the United States Supreme Court Justice Anthony Kennedy called for wholesale reform in the American system of criminal sentencing. He stated that our “resources are misspent, our punishments too severe, our sentences too long”.
Justice Kennedy, referring to the mechanisms of conviction and sentencing as “the hidden world of punishment”, was particularly critical of mandatory minimums as a primary catalyst for fundamental inequities and flaws in the American federal court system. He said that he “can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.” Justice Kennedy was referring both to the ineffectiveness of mandatory minimum sentences, as well as to the impact they have had on the criminal justice system and the community.
The consequences of mandatory minimum sentencing on criminal case processing have been significant, often in unintended ways. Legislatively mandated sentences undermine the independence of judiciary and shift the authority of crafting appropriate sentences from judges to legislators.
Judges are trained to consider the accumulated facts and circumstances of a criminal event, the characteristics of the defendant, and to use their institutional wisdom to develop a suitable sentence. The independence of the judiciary is a hallmark of the American system of checks and balances among the three branches of government. The discretion reserved to judges permits the consideration of such relevant factors as a defendant's personal and criminal history and his or her role in the offence, which can help an independent arbitrator determine just culpability.
However, mandatory minimums, in which legislators take on the role of judges and determine culpability largely by single factors, such as the weight of a drug or the presence of a handgun, usurp this independence and threaten the carefully orchestrated balance between the governing branches. Moreover, mandatory sentences frequently expose defendants to punishments substantially disproportionate to the charged conduct.
Mandatory minimum sentences also threaten the independence of the United States Sentencing Commission, an agency in the executive branch. In the Sentencing Reform Act of 1984, the legislature created and charged the commission with developing a comprehensive set of federal sentencing guidelines, using evidence-based analysis to calibrate a punishment adequately reflecting the seriousness of the criminal event.
However, the passage of numerous mandatory minimum sentencing laws has created a situation in which the more punitive statutory punishment trumps the suggested guideline range. Thus, defendants of lesser culpability, who might have faced a shorter guideline sentence, are subjected to the statutory minimum.
By exposing less serious offenders to punishments equal to more serious offenders, mandatory sentencing creates disproportionality that subverts the commission's underlying goal to craft just and fair sentences that accurately reflect the seriousness of the offence. Moreover, the commission has been compelled to adjust the guideline ranges upward to link the lower bound of the guideline range to any applicable mandatory minimum sentences. In doing so, the commission is adjusting sentence length, not according to evidence-based research but to the political will of the legislative branch.
The quintessential example of mandatory sentences resulting in disproportionate punishment is the recent case of Weldon Angelos. Mr. Angelos was arrested in 2002 after undercover agents made two controlled purchases of one-half pound of marijuana. An informant reported that during each of these purchases, Angelos had a firearm present. Although he never brandished the weapon, it was reported to be present in the automobile during the first purchase and in an ankle holster during the second purchase. When agents searched Angelos’ home, a handgun was found in a bag containing cash.
The presence of the handgun at the two controlled buys and at the house exposed Angelos to federal mandatory minimum sentence enhancements that are triggered when guns are present during a drug transaction, whether or not they're used. Each instance in which a firearm is present is counted separately. Consequently, Angelos faced a five-year mandatory sentence for the first controlled purchase and then two consecutive 25-year mandatory minimum sentences as a result of the second purchase and the firearm found during the search of the house. Bound by law to apply the 55-year sentence, the judge called the punishment “unjust, cruel, and even irrational”.
The Angelos case highlights fundamental flaws in mandatory sentencing, as defendants frequently are exposed to severe sentences out of proportion to the conduct with which they have been charged, while judges sit powerless to consider the circumstances of the offence and amend the punishment accordingly.
Mandatory minimum sentences are generally triggered automatically by a single element of a criminal act. For example, drug mandatory sentences are triggered solely by the weight of the substance. Potentially mitigating evidence addressing the sophistication of the role the defendant plays in the drug enterprise cannot be considered in determining whether a mandatory minimum sentence applies. In the case of a handgun enhancement, the mere presence of a weapon is sufficient to warrant a mandatory sentence. In cases such as these, the prosecutor's determination of what conduct to charge and how to charge that conduct is the single most important element in a criminal proceeding. Prosecutors, in making a charging decision, have the discretion to alter the outcome before the proceedings begin. This is an unconscionable tilting of power in an adversarial system that functions on the premise that equally situated parties are necessary to adjudicate a case fairly.
An additional problem raised by mandatory minimum sentencing is evidenced by prosecutors' arguments that these sentences are an important tool in pretrial negotiations with a defendant's counsel. A prosecutor has significant leverage in conducting negotiations and eliciting a plea bargain if the defendant is facing a statutorily mandated five-year sentence. This permits a prosecutor to use the proverbial carrot-and-stick approach: offering a plea deal to a lesser charge associated with less serious conduct, or threatening a mandatory minimum sentence should the defendant choose to exercise his or her right to trial.
This inequity in negotiating posture, exacerbated by the potential exposure to a mandatory sentence, perverts criminal case processing in two ways. First, defendants frequently do not face sentences that are reflective of their actual conduct. This is tragic in a criminal court system that is supposed to be premised on rationality and predictability. Instead, mandatory sentences create uncertainty and disparity in outcomes. A governing principle behind the Sentencing Reform Act of 1984 was to institute fairness in sentencing and equality between two similarly situated defendants. This goal is undermined by mandatory sentences.
Secondly, approximately 95% of the 70,000 annual federal cases are handled via plea bargain. However, the likelihood of being offered a plea is dependent on where a case is adjudicated and the type of offence with which a defendant has been charged. Moreover, the race of the defendant has been demonstrated as a significant factor in determining whether an individual receives a mandatory minimum or is offered a plea bargain. African American defendants are more likely to receive a mandatory minimum sentence and less likely to benefit from a substantial assistance or safety valve departure. The unchallenged discretion of the prosecutor makes it increasingly difficult to combat these inequities in sentencing, and mandatory minimums have only complicated matters.
Plea bargaining also reduces the likelihood that issues of innocence or misconduct by law enforcement during arrest will receive an airing before the court. Tactics of investigation and apprehension by law enforcement officers raise critical issues of constitutional protections regarding arrest, interrogation, and the procurement of evidence. Determining the legality of one’s arrest requires skilled representation of counsel and can often result in prolonged pretrial proceedings. Moreover, it is at this point where a defendant’s innocence may face its test before a judge. However, in order to litigate any of the aforementioned issues, a defendant frequently must decide to forgo an offer of a plea bargain and face a potentially more severe mandatory sentence in order to pursue his or her constitutional right to trial. A defendant seeking to pursue a court decision as to the validity of an arrest faces a trial penalty, in which the spectre of a longer mandatory minimum sentence will be the result of exercising this right. This fact often leads defence counsel to advise clients to accept the plea deal rather than challenge their arrest—yet another situation in which mandatory sentences thwart the guiding principles of fairness and equity in the criminal court system.
Mandatory minimum sentences have been shown to have a disproportionate impact on African American defendants. A study by the United States Sentencing Commission found that African Americans were 21% more likely to receive a mandatory minimum sentence than white defendants facing an eligible charge. The most egregious example of the racially disparate impact of mandatory sentences is federal cocaine sentencing, in which the possession of five grams of crack cocaine, about the weight of two sugar packets, can result in a five-year mandatory sentence, while possession of the same quantity of powder cocaine, a pharmacological equivalent, amounts to misdemeanour possession and no sentence to incarceration. Despite the fact that approximately two-thirds of regular crack cocaine users are white or Latino, 81% of persons sentenced in the federal system for a crack cocaine offence were African American.
These disturbing trends reflect differential patterns of law enforcement in which the war on drugs has been pursued disproportionately in communities of colour. As if this fact was not pernicious enough, the imposition of mandatory minimum sentencing exacerbates the impact of these practices by codifying racially disparate arrest patterns in federal statutory law.
I'd like to conclude by saying mandatory minimum sentences are a counter-productive approach to combatting criminal offending. They have been demonstrated to have little impact on rates of crime while having detrimental consequences to the operation and fairness of the American criminal justice system.
Moreover, with stiff penalties already residing within statute as well as within the federal--and state, where appropriate--guidelines, there is little need for the additional enhancement of a mandatory sentence.
Regarding firearm offences, the United States Sentencing Commission reports that the average time served for firearm trafficking and possession has doubled since the implementation of the sentencing guidelines in the mid-1980s. This increase in punitiveness has resulted independently of mandatory minimums. Thus, it is clear that a legislature can respond firmly to criminal offending and levy stiff sentences via sentencing guidelines while also preserving the independence of the judiciary and the integrity of the criminal court process.
On a personal note, I have lived and worked in the United States all my life, and I have worked on this issue. I do find it very disturbing to see a lot of the criminal justice practices that we have adopted over the last thirty years, despite the really extensive documentation of the failures and the costs...to see other countries picking up this language and picking up these practices. As if it's not tragic enough, the consequence to the American public, being responsible for exporting these practices internationally would add an additional burden, and it would be something that I really hope you take into very strong consideration.
Thank you.