Drug Sentencing: The Law of Unintended Consequences

Mandatory minimums put first-time offenders in jail for life and lets drug kingpins bargain for their freedom

Attorney General Janet Reno with President Bill Clinton in 1993. Credit: J. DAVID AKE/AFP/Getty Images

Tonya Denise Drake, a 28-year-old mother of four, mailed a package for a man she met in a parking lot, earning $47.40 and a 10-year jail sentence. Jason Cohn, 19, was sentenced to a decade in jail for shipping 12 grams of blotter paper containing LSD for a fellow Deadhead who, unknown to Cohn, had been busted by the feds. Michael Irish, a 44-year-old carpenter from Portland, Ore., spent three hours helping to unload hashish from a truck and was sentenced to 12 years in prison. Keith Edwards, 19, sold crack cocaine to a federal informant, who then set up four more buys to accumulate enough crack to qualify Edwards for the 10-year sentence he is now serving.

A decade into our nation's most recent infatuation with mandatory minimum sentences for drug possession, the horror stories continue to pile up. In 1993, 60 percent of the 87,000 people in federal prisons were serving time on drug convictions, up from 22 percent in 1980. Like Drake, Cohn, Irish and Edwards, half of these prisoners were first-time offenders. Had they chosen to rob a bank or rape someone or even murder someone, their sentences would probably be less than the mandatory no-parole sentences Congress has been writing into law since 1984.

Nor are mandatory minimum sentences limited to the federal government. Forty-nine states have their own mandatory laws, such as Michigan's "650 Lifer" law, which requires life sentences for possession of more than 650 grams of cocaine. In that state, some 150 people are sitting in prison for life for cocaine possession, perhaps half of them first offenders like Gary Fannon Jr., now 25 and seven years into the life sentence he got for a drug transaction that he merely helped to arrange. (See RS 638 and RS 664.)

Compulsory drug sentencing is kept alive by fear-mongering. After creating the first set of harsh mandatory-drug-sentencing laws, the infamous Boggs Act, in the 1950s, then repealing them as unworkable in 1970, Congress plunged back into mandatory minimums with the Comprehensive Crime Control Act of 1984. Since then, stiffening or adding to the mandatory minimums has been an election-year ritual, with the Anti-Drug Abuse Acts of 1986 and 1988 and the 1990 crime bill. The 1992 crime bill died at the end of the congressional session only because of the gun-control controversy.

New to her job, Attorney General Janet Reno appeared to have taken a position on mandatory minimums based on common sense and experience. Unwisely, she spoke up: "We are not going to solve the crime problem by sending everyone to prison for as long as we can get them there and throwing away the key." Apparently chastened by the administration, she has backed off. Her office now insists: "Attorney General Reno never was against mandatory minimum sentences. She said we need to look at them and determine who they're affecting. She is still saying the same exact thing."

President Clinton declined an invitation to talk to Rolling Stone on mandatory minimums, and members of the Senate and House judiciary committees, fearful of being called soft on crime, tend to be reluctant to discuss the subject publicly. Of 10 key members polled for their opinion for this article, only Orrin Hatch, the ranking member of the Senate Judiciary Committee, responded. "He's recognized the problem of inflexibility when dealing with drug cases," a spokesman said. "He's willing to try to give the judges some measure of flexibility. The problem is, people can't agree on a definition."

The original purpose of mandatory minimums was to eliminate discrepancies between the sentences given for the same drug crimes in more liberal and more conservative areas of the nation. But in guaranteeing that liberal regions punish criminals adequately, Congress couldn't resist the opportunity to proclaim its moral indignation. So it created particularly punitive mandatory sentences –– five years in prison for possession of a gram of LSD or five grams of cocaine, 10 years in prison for growing 1,000 marijuana plants or selling a kilogram of heroin.

Most would agree a kilo is a lot of heroin, and the guy who peddles it in a schoolyard should probably go to prison for a decade. But in real life, the situation is seldom so clear. Under the law, the guy who sells the heroin to schoolchildren and the buddy who watches out for the police are guilty of the same crime. The girlfriend who gives a DEA informant the boyfriend's phone number and the mook who lets the kilo sit in his locker overnight for $10 are also guilty of the same crime. Whereas previously a judge might vary their sentences to reflect varying degrees of culpability, under mandatory minimums, that latitude no longer exists, and federal judges are incensed about it.

"Without any elbow room, you cripple the whole system," says Judge William J. Bauer of the U.S. Court of Appeals for the 7th Circuit. Milton Shadur, senior U.S. district judge in Illinois, concurs: "In a word, mandatory minimum sentences, as they operate in the federal system, particularly in drug cases, are a disaster."

At least one federal judge, J. Lawrence Irving, resigned from the bench rather than impose the sentences. "It's insanity," says Irving, now a private mediator. "We're putting young people in prison for 10 years on their first offense without possibility of parole, a longer sentence than is served in many states for murder... I couldn't in good conscience impose sentences I felt were Draconian."

Despite growing opposition, mandatory minimums have cast a widening net. In 1984, 10 percent of federal defendants were subject to mandatory minimum sentences; by 1990, 20 percent were.

The single loophole judges can use to impose a sentence lower than the mandatory one is cooperation. Prosecutors praise this as a tool for cracking the most tight-lipped felons. But in real life, it rewards people for higher levels of involvement in the drug trade. The former hippie with 1,000 marijuana plants growing in his basement and no drug ring to rat on gets the full decade in prison, while the savvy dealer bringing in boatloads of pot from south of the border can finger a few friends and be out in half the time. Supporters of mandatory sentencing tend to look at the big picture. "The only way to get a real hammer effect on some crimes is to set a floor below which the judge cannot go," former attorney general William P. Barr has said. "The drug problem is a national scourge."

The most comprehensive indictment of mandatory minimums comes from the U.S. Sentencing Commission, which, at the request of Congress, issued a lengthy study on the subject in August 1991. Calling the sentences "single-shot efforts at crime control intended to produce dramatic results," the commission found a host of major flaws in the system: •

  • Mandatory minimums fail to make sentencing more uniform, because the sentences are not applied uniformly. More than a third of the defendants subject to mandatory sentences plea-bargain instead. Thus disparities are not eliminated. Rather, discretion is shifted from judges, who exercise it publicly from the bench, to prosecutors, who exercise it secretly. As Judge Terry J. Hatter Jr. of the Central District of California puts it: "I, as a sitting lifetime judge appointed by the president and confirmed by the Senate, have less authority now than 30 years ago, when I was an assistant U.S. attorney."
  • •Mandatory minimums are invoked more often with black defendants than white ones. Blacks make up 28.2 percent of the federal prison population but 38.5 percent of mandatory-minimum defendants. • While sentencing guidelines seek 'a smooth continuum,' mandatory minimums result in 'cliffs,' or major differences in the sentence based on tiny changes in the crime. For example, the difference of one milligram of crack cocaine can change the sentence from a maximum of one year in prison to a minimum of five years. •
  • Consideration of prior records is broad and often bizarre in federal cases. "A single prior conviction for a felony drug offense doubles the mandatory minimum sentence," the commission wrote. "It is the same whether the conviction occurred 20 years ago or a month ago; it is the same if the prior conviction occurred in state court for the same conduct."

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All sorts of strange provisions are included in mandatory-minimum bills. The Senate's pending crime bill would double the penalty for selling drugs if the sale occurs within 1,000 feet of a truck stop or rest area. The 1988 crime bill included a provision that made the amount of crack cocaine needed to trigger a mandatory sentence 100 times less than its powdered variant. The intent was to address crack's impact on the inner city, but the effect has been to divide mandatory sentences along racial lines: Blacks make up 90 percent of the defendants in crack cases but only 25 percent in the less harshly punished powder-cocaine cases. A federal judge –– Lyle E. Strom of Omaha, Neb. –– ruled in one case that blacks convicted in crack cases "are being treated unfairly in receiving substantially longer sentences than Caucasian males, who traditionally deal in powder cocaine."

The good news, if it is not premature to call it that, is that some members of Congress have begun to try to undo the damage. Last month, Rep. Charles Schumer, D-N.Y., working with Rep. Henry Hyde, R-Ill., managed to get the House Judiciary Committee to approve a "safety valve" provision. It would permit a judge to drop the mandatory five-year sentence for simple drug possession to two years – if the offender wasn't violent, didn't use a gun and had not been sent to prison previously for more than 60 days.

The safety-valve provision would be retroactive. That aspect of the proposal drew the most complaints from the Justice Department, which expressed concern that freeing prisoners serving excessively harsh sentences would clog the courts and create paperwork. Several members of Congress expressed astonishment at the Justice Department's position. "The notion that this might inconvenience the Justice Department is distressing," said Rep. Barney Frank of Massachusetts.

There is also hope for action on the state levels. Even in Michigan, legislators were holding hearings last month on adding safety valves to the 650 Lifer law to give nonviolent first-time offenders such as Gary Fannon a way out.

"There's a lot of good things happening right now," says Fannon, who was transferred in October to the medium-security prison in Coldwater. "A lot of big names are involved: the Michigan attorney general, some federal judges and state judges. The 650 Lifer law could be amended to give the judge discretion to impose life with parole when dealing with first-time nonviolent offenders who don't have any high misdemeanors."

But any hope for change remains just that –– hope. The Senate crime bill is still packed with all sorts of new punishments, such as mandatory life sentences for a second conviction of selling drugs to a minor or for any three drug convictions. Sen. Bob Dole of Kansas is also trying to smash the gang problem by creating whole new categories of federal crimes and mandatory sentences to fit them, from persuading someone to join a gang (five years) to belonging to a gang that commits murder (life). The Dole proposals could have staggering implications –– hundreds of people could be jailed for life based on the commission of a single crime by a fellow gang member.

To deal with the flood of new prisoners, the Senate bill sets aside billions for the construction of more prisons and voids all previous court-ordered prison-population caps. So not only would more drug offenders be dropped into prison for longer periods of time, but those prisons would be crowded beyond what was once considered the point of inhumanity.

It may be the cost of the crime bill –– each new cell could cost up to $100,000 –– that helps bring an end to Congress' infatuation with mandatory minimums. "The economics of the thing can't be avoided," says Adam Kurland, a law professor at Howard University, in Washington, D.C., and also a former assistant U.S. attorney. "When the taxpayers realize they have no money for schools and all they're doing is building more prisons, it encourages people to resist mandatory minimums and their consequences."