Rolling Back Mandatory Minimums for Drug Crimes

Attorney General Eric Holder has announced the federal government will not be pursuing drug charges with harsh mandatory minimum sentences when the defendant is a low-level non-violent offender. There is bipartisan support for this, largely due to the massive expense of incarcerating people, compared with alternate sentences like probation, community service, and treatment. Alternate sentencing strategies have many more arguments in their favor, in terms of fairness and effectiveness, but the opportunity to do right and save money is the key to progress in this area.

The problem is much more severe in the federal system than the state systems: this L.A. Times story notes an almost 800% increase in the federal prison system since 1980 and the onset of the war on drugs, compared with a roughly 30% increase in the nation’s overall prison population. The explanation lies in the mandatory minimum sentences for drug crimes that the federal government enacted, and that states such as Colorado (though note New York and California as exceptions) have generally avoided.

As Holder noted in his speech, harsh and inflexible sentences do a disservice in more ways than just ballooning an unmanageable, overcrowded and expensive prison system. They prevent a judge from tailoring an individual’s sentence to the individual’s conduct and character– no two crimes, and no two people are the same. And when courts are forced to sentence people out of proportion to their conduct, it breeds disrespect for the law and the legal system. The ultimate disrespect– though welcome– comes when the nation’s prosecuting entity, the Attorney General, declares that the Department of Justice will not be enforcing some laws as written, at least in certain cases. It begs the question of when those laws will be changed so that the Department of Justice does not have to use this workaround to get just results in cases involving low-level drug offenders.

In Colorado state courts, there are plenty of mandatory minimum sentences, but not to the extent of the federal system and not as much with respect to drugs. But they are there, and they give prosecutors enormous leverage in how they charge and plea bargain cases. Prosecutors can effectively take a judge, the defense lawyer, and mitigation out of the sentencing calculation for an arguably low-level offender, by creating a choice of a harsh stipulated sentence set by the DA, or of taking a chance at trial with an even harsher mandatory minimum sentence if the defendant is convicted. What if the person is innocent, but there is a 20% risk of conviction at trial due to some bad but misleading evidence? (which is not uncommon at all). Does a defense lawyer advise that person to plead guilty to a stipulated sentence of 12 months to avoid the risk of a mandatory 5 years? What if the defendant, victim, community and judge would agree that probation would be an appropriate sentence in a case, but the DA uses mandatory minimum laws to keep that off the table, due to personal feelings about a case?

The criminal justice system is rife with unjust and undesirable results caused by mandatory minimum sentences. As a criminal defense lawyer who sees these results up close, it is encouraging to see the Department of Justice taking action.