A Justified Legal Reform: The Elimination of Mandatory Minimums

Grace Nguyen
Professor Wender
LSJ 375: Crimes, Politics and Justice
29 May 2014

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The average United States citizen enjoys a criminal justice system that contains many
checks and balances on the power the state can wield against her. One of the strongest weapons
the state can use is the incarceration of an individual. This weapon, with fierce, unforgiving
totality, separates the individual from their freedom. The use of incarceration as a reaction to the
breaking of laws by the United States has been implemented far beyond a reasonable scope and
has forced many average citizens into a cycle of poverty, penalty, and crime. The legal
tradition of mandatory minimum sentencing in response to drug crimes is a tragic one that must
be eliminated due to their consequences of stripping discretion from judges, their nature of
unfairly discriminating against racial minorities, and their overall contribution to the ineffective
deterrence theory of crime. The legislation passed and the activists groups formed to bring issues
about mandatory minimum sentences to light and to closure must be encouraged in order for true
justice to be able to be achieved in American society.
Since the creation of mandatory minimums, it has been impossible for judges to fairly
interpret their standards of the law and apply them to cases, because of the transition of
discretion from the judges to the prosecuting parties. Mandatory minimum sentencing was
created largely in part by the focus on the War on Drugs in the 1980s and the passing of the AntiDrug Abuse Act of 1986, which required minimums for drugs from crack to marijuana (Vincent
4). Despite a declining trend in crime post the 1990s, the aftermath of the War on Drugs and the
mandatory minimums have led to the U.S. leading the world as the country with the highest
incarceration rates, with over 2.2 million incarcerated individuals as of 2012 (Sentencing Project
1). This is because individuals convicted of drug-related crimes account for over 47% of those
incarcerated (Sentencing Project 3). The extensive set of policies designed by mandatory
minimums create non-negotiable guidelines that dictate how long a person is to serve a prison

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sentence according to the nature of their crime (The State of Connecticut). The implementation
of mandatory minimums completely removes the ability for judges to look at each case of drug
possession or drug trafficking individually, and forces them to concurrently charge the
individual, stacking offenses together to create higher sentences in a practice known as 924(c)
stacking (Angelos). It also eliminates the judges consideration to all relevant circumstances,
such as the possibility that drug rehabilitation might be a better sentence that incarceration, and
forces them to adhere by guidelines that might not be applicable to the case.
This practice can be seen in action in the case of Weldon Angelos, a man convicted of
dealing marijuana, who was sentenced to 55 years in prison because, though he had no criminal
record, his drug deals included the possession a firearm, though it was not used in anyway during
the deal (Angelos). Judge Paul Cassell, stated with frustration that Angeloss sentence was
disproportionate to his crime and was, far in excess of the sentence imposed for such serious
crimes as aircraft hijacking, second-degree murder, espionage, kidnapping, aggravated assault,
and rape (Abramsky). Mandatory minimum sentencing required that Judge Cassell disregard his
interpretations of the law and placed that power into the hands of the state prosecutor, Robert
Lund, who made the decision regardless to lock Angelos up for the rest of his life (Abramsky).
The discretionary power in cases commonly lies with the prosecutor, because due to the cost of
trial and the fact that many of those who are charged with drug felonies are impoverished, plea
bargains are the only way these cases can be handled (Alexandra 85). It is the fear of the great
length of the sentence of mandatory minimums against the lesser sentence given to those who
plead guilty that not only boosts the popularity of the plea bargain, but the power of the
prosecutor to charge the defendant with whatever they see fit. This form of sentencing that
created such a distorted version of innocent until proven guilty makes it difficult to discern

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between a non-violent small-time drug dealer and a violent, destructive criminal. It fails to allow
proportionate punishments according to crimes, thusly eliminating the opportunity for justice to
be delivered and silencing the voices that should have had a say in its delivery.
It is not only in this one prominent case that the discretion has been taken from judges
which has caused the obvious absence of justice. In Connecticut, a judges discretion singularly
lies in adding to a minimum sentence presented by the prosecutors, not detracting from it (The
State of Connecticut). Comparing the discrepancy in the logic between violent and non-violent
crimes in the minimum sentence these judges have to work with, for example the difference
between the minimums of the 1st degree rape of a minor under 16 (5 years) and that of a firsttime drug-dealer to a minor under 18 (15 years), is only one of the demonstrations of the doomed
situation judges have to work with from the beginning (The State of Connecticut). However,
positive steps for reform, such as the case of Alleyne v. United States, which mandates that a jury
must approve the layered offenses that add on to these minimums to make them high in the first
place, with guilt beyond a reasonable doubt and that these charges must first be included in the
indictment (Alleyne). In the Opinion of the Supreme Court, the decision was require the jury to
approve the minimum, thereby taking the power away from just the prosecutor who presented
and the judge who was forced to approve it, in order to [preserve] the historic role of the jury as
an intermediary between the State and criminal defendants (Alleyne). Movements like this, to
include more than one party in have discretional power in sentencing, and that respond to public
accusations of abuses of power by the state, are paving the way for the elimination of mandatory
minimum sentencing, and thusly a more individualistic and just approach to punishment.
Attempts like this to instill the original power of the judges and maintain the original intent of
discretion are exceptionally important and should be supported. Other attempts by Supreme

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Court judges to voice their opinions, such as Judge Jack Weinstein, who refused to take any
more drug cases and who stated I [have a sense of] depression about much of the cruelty I had
been a party to in connection the war on drugs should also be supported, because they
demonstrate the judges natural ability to distinguish between the brand of justice that is
impersonal and wrong, and their natural moral responsibility. Supreme Court Judges should work
harder to create an environment of legal naturalism, and should restore the power to pass
judgment over a mans life back to the interpretive decision of the judge and juries, away from
the blind nature of mandatory minimums.
The nature of mandatory minimums against drug crimes undeniably turns a blind eye to
the individual and treats all offenders the same, and yet it also creates severe disadvantages for
those who are impoverished or of racial minorities. Due to the large volume of cases dictated by
mandatory sentencing for drug crimes (a 1100% percent increase from 1980), many lawyers do
not have the time or resources to represent every person processed through the system, and
thusly, with 80% of criminal defendants unable to hire a lawyer, and the large volume of cases
public defenders are presented with, those who are being brought to court are underrepresented
or not represented at all (Alexander 84). A system that cannot provide adequate representation
and forcing people into the jails through plea-bargaining and building on their fear of mandatory
minimums is one that punishes the poor for being poor. Combined with the common practice of
holding off mandatory minimums in exchange for information (snitching), it is a system that
not only punishes poverty, but punishes association with poverty or unsavory individuals,
because then officers have the opportunity to search in accordance with the information and lock
up more individuals (Alexandra 87). Additionally, mandatory minimums for drug crimes are
discriminatory against non-white individuals for racial reasons, not just financial ones. The

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minimum amount of crack that can lay down a 5 year sentences can be up to 100 times the
amount required for the selling of cocaine to have that same sentence, and thusly, because
blacks are more likely to be prosecuted for crack offenses and whites for powder cocaine
offenses, the long sentence lengths for smaller amounts of crack lead to longer sentences for
blacks (Vincent). The streamlined inequality of charging poor African-Americans or Hispanics
with drug crimes that have heinous consequences, underrepresenting them or plea-bargaining
them, and then herding them into jail is a cycle of injustice caused by minimum sentencing.
Though there have been measures taken to reduce the racial and economic prejudices
mandatory minimums present, more steps should be taken to reform sentencing language. In
response to the overwhelming need for reform, the Fair Sentencing Act of 2010 was enacted, to
reduce ratio from 1:100 to 1:18 to make up for the difference between the charges of crack and
cocaine (Fair Sentencing Act 2010). This not only creates a greater sense of equality between the
sentencing for possessing and dealing what is commonly a black street drug and a white
upper-class drug, but also allows for prisoners who are incarcerated for crimes related to crack
to seek an earlier release date and a generally lighter sentence. Congress should go beyond that,
however, and eliminate mandatory minimum sentencing overall, in order to create an even
greater culture of equality and respect for individual circumstances per case. So far, there has
been an attempt to a reform called The Smarter Sentencing Act 2013 by the Attorney General in
2013 and the Department of Justice to remove minimum sentencing for those who committed
low-level, nonviolent drug offenses, who have no ties to large-scale cartels and the Safety Valve
Act 2013 to give judges the power to make exceptions to sentencing (The Department of
Justice). The effect of Smart on Crime would especially focus on the reducing of sentences for
those with non-violent charges as well (The Department of Justice). Congress needs to take these

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suggestions seriously and expedite the legislation necessary at the federal to give back parts of
the lives it has stolen over the past thirty years of minimum sentencing.
The lives stolen were largely considered necessary evils in order to fight the general
culture of crime through the deterrence theory. This theory is based on the idea that by raising the
cost of crime (with harsher, swifter, longer penalties) those who would normally commit crime
would be turned off by the idea and continue to be normal, law-abiding citizens. It seeks to raise
this cost of crime also by making an example of those who do commit crime, in the case of the
United States, it is to mercilessly sever the freedom from the individual and put them on display
in state prisons. However, it is clear in a variety of studies that neither deterrence nor mandatory
minimums have any lasting positive effect on the decline of crime, because they fail to address
the proper roots of crime.
There are many cases that represent a time when the need to follow the tough on crime
attitude of deterrence popularly presented in the 1980s by politicians and judicial officials
overrides the moral obligation to understand that every sentence deals with a unique, delicate
life. There are also times, when judges realize this moral obligation in touching and powerful
moments, but are unable to do anything with this new found realization, due to an unforgiving
legal tradition. This was the case of U.S. District Judge William, a man not known as a light
sentence who was choked with tears as he anguished over sentencing Richard Anderson, a first
offender Oakland longshoreman, to ten years in prison without parole for what appeared to be a
minor mistake in judgment in having given a ride to a drug dealer for a meeting with an
undercover agent (Alexandra 91). Both these men, the judge who must forgo his moral courage,
and the victim unable to speak up against a crisp, cold sentences are representatives of
casualties of the drug war, accidents who, in response to everything from the three strike

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penalty or harsh laws for the association with drug deals, have lost their lives to minimum
sentencing (Alexandra 90).
A strong recommendation from those who wish to salvage something from the
battlegrounds of minimum sentencing suggest that they be turned into guidelines. These
guidelines, as studied by Barbara Vincent and her colleagues and as recommended by the editors
of the Federal Sentencing Reporter suggest simple reforms, such as narrowing those who can be
charged with certain drug offenses so that mischarges cannot occur or providing more flexible
mandates to deal with changing situations (Vincent 32). This correlates with the idea that the
higher the severitythe less proportionate it will be to applicable cases and that judges should
always have factual record in order to charge offenders. Reforms, in the language of
mandatory minimum sentencing should be an immediate priority to slowly whittling away at a
disease that has been eating at American justice for decades.
Throughout the decades, however, the main counterargument that has developed to
keeping minimum sentencing alive at the expense of the individual is a protection of its
effectiveness and about the role of the politician and judicial system in civilian life. In terms of
its effectiveness they argue that mandatory minimum sentencing creates a coercive network of
cooperation from informants in order to destroy larger organizations of drug cartels and that the
sentencing does create a deterrence effect in the general public. However, a counterargument,
succinctly presented by Neil McBride, the former attorney for the Eastern District of Virginia, is
that Former Mexican drug lord Chapo Guzman and some low-level street dealer in Richmond
simply dont pose the same existential threat to society (Horwitz). Blunt, blind sentencing does
not differentiate clearly between dealers and drug lords in a meaningful way that would help the
operation. In fact, it can even deter the operation, by overcrowding the jails, spending resources

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on incarceration rather than investigation, and spending a lot of time concentrating on nonviolent addicts. Some might argue, contrastingly, that the role of politicians and judges in
everyday life is to keep any disorderly figure off the streets and away from the citizens, in a
proactive attempt to demonstrate that they have the power to decrease crime (Goode). Politicians
are praised for cleaning up the streets, and in the tragedy of the power they possess, cannot
seem to balance the idea that men who break the law are still men who require protection from
the law. This approach, that it is required for the legislative and judicial branches to be strict and
ruthless on their attack on crime fails to recognize the deeper origins of crime in cycles of
poverty and socializing, that can be attacked by removing the mandates and giving criminals a
second chance at life.
In the words of Supreme Court Justice Anthony Kennedy, the United Statess resources
are misspent, our punishments too severe, our sentences too loadedin all too many cases,
mandatory minimum sentences are unjust (Alexandra 91). Responsible legislation that
continues the progressive reform of creating guidelines rather than mandatory minimums, such
as The Smarter Sentencing Act 2013 and the Safety Valve Act 2013, and gives those who have
been incarcerated opportunities to be released earlier, especially on non-violent charges, should
be immediately passed by Congress, and the Supreme Court should continue to set precedents
that are morally conscientious and considerate toward their fellow man (Bernick). Public
attitudes are changing, and the current reforms are working better on crime rate decline than
harsh sentencing ever could (Goode). Mandatory minimum sentences represent an
ineffectiveness to properly respond to a culture of crime that desperately needs reform and
attention, and should be abolished immediately and entirely for drug crimes, in order to preserve
what dignity and humanity the American legal culture has left.

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Bibliography
Abramsky, Sasha. The Dope Dealer Who Got 55 Years. The Progressive 31 May 2006. Web.
30 May 2014.
Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New
York: The New Press, 2010. 58-91. Print.
Allen Ryan Alleyne, Petitioner v. United States. 11-9935. The United States Supreme Court.
2013. 28 May 2014.
Bernick, Evan, and Paul Larkin. "Reconsidering Mandatory Minimum Sentences: The
Arguments for and Against Potential Reforms." Legal Issues. The Heritage Foundation,
10 Feb. 2014. Web. 28 May 2014.
Facts about Prisons and People in Prisons. The Sentencing Project. The Sentencing Project, 1.
Jan. 2014. Web. 28 May 2014.
Fair Sentencing Act 2010. Pub. L. 111220. 124 STAT. 2372. 3 August 2010. Web. 29 May
2014.
Goode, Erica. U.S. Prison Populations Decline, Reflecting New Approach to Crime. The New
York Times 15 July 2013. Web. 27 May 2014.
List of Mandatory Minimums. Families Against Mandatory Minimums. Families Against
Mandatory Minimums, 6 Aug. 2012. Web. 30 May 2014.
Horwitz, Sari. Some Prosecutors Fighting Effort to Eliminate Mandatory Minimum Prison
Sentences. The Washington Post 13 Mar. 2014. Web. 27 May 2014.
The Department of Justice. Smart on Crime: Reforming the Criminal Justice System of the 21st
Century. The Department of Justice. The United States. Aug. 2013. Web. 28 May 2014.
The State of Connecticut General Assembly. Mandatory Minimum Sentences. The State of

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Connecticut Studies. The State of Connecticut. General Assembly, n.d. Web. 23 May
2014.
United States v. Weldon Angelos. 04-4282. United States Court of Appeals, Tenth Circuit.
2006. FindLaw. Web. 27 May 2014.
Vincent, Barbara S., and Paul J. Hofer. The Consequences of Mandatory Minimum Prison
Terms: A Summary of Recent Findings. Federal Judicial Center Publications. Federal
Judicial Center, 1994. Web. 28 May 2014.