Mandatory Minimums a Monstrous Miscarriage of Justice

Mandatory-minimum sentences are designed to prevent high-level offenders from getting off easy with good lawyers. Instead they often make it easier for the bad guys to avoid hard time while crucifying the least culpable and the innocent. How can this monstrous miscarriage of justice be?

Instead of forcing judges to impose stiffer sentences, mandatory minimums have almost completely taken juries and judges out of the justice process. In the hands of ambitious prosecutors who want the highest body count in the shortest time, mandatory minimums quickly became a cudgel to browbeat defendants into taking a plea agreement and turning in as many other people as possible. For 97 out of every 100 people charged, their constitutional right to a trial by jury and sentencing by an experienced and considerate judge is denied them and replaced with a prosecutor whose motivation is racking up numbers to feed the prison industry.

Here's how it works in the federal system. A drug user/dealer is arrested and charged, facing a long mandatory-minimum sentence. If he fights the case with a jury trial, he faces only a one in twelve chance of success. Juries and judges are blindered, prevented from hearing personal history, character witnesses, extenuating circumstances, or anything other than the essential, mechanical facts of the charge. Did he possess the substance? Did he sell it? It is made clear to the defendant that he has virtually no hope of winning in court. The pressure to plea is extreme, and includes the very real threat of sentencing enhancement if a plea is refused. The defendant has little choice other than negotiating a plea agreement with the prosecutor.

Now the body-count game begins. If the defendant wants any reduction in sentence, he must name names. The public, well versed in fantasy police and court procedure on TV, believes the prosecutor will work his way up the ladder to catch the bigger fish. That happens, but it is a difficult journey, met with increasing resistance and fear of retaliation the higher one goes, subject to a law of diminishing returns. And the top of the ladder is rarely reached due to rampant corruption. Why struggle to catch one big fish when you can catch three or four lesser fish in a system that counts all fish equal?

Consequently, as much and often more effort is expended in going laterally or down the ladder. "Tell me everyone you know who uses drugs" is a common opener. When a dealer does turn in his source, that person usually faces an even longer mandatory sentence, resulting in even more cooperation. Downstream, however, lesser users and participants, often facing the same penalty as their dealer, feel unfairly charged and are more likely to insist on a trial. All too often, a chain of drug busts results in a grotesque inversion of justice, where the top players get the least time while the small fry get stuck with the lengthy mandatory minimums.

And thanks to massive, enthusiastic misapplication of the organized-crime RICO statutes, anyone else who was in the room or even knew about the transaction can be charged with the same crime in the form of conspiracy. An otherwise uninvolved girlfriend who happens to be in the house or takes a phone message can be charged with the entire chain of crimes of all players as co-conspirator. Facing ten or twenty years with no one left to "cooperate" on, she is most likely to take it to court, naively believing in the justice system to find her innocent. The for-profit prisons house many of these relative innocents doing hard, long time while the top criminals that mandatory minimums were designed to punish are often out free, maybe wearing a wire and sometimes getting paid big bucks to turn in more bodies for the count.

The "FIRST STEP" act currently in the Senate is a mostly cosmetic attempt at justice reform that only slightly reduces mandatory minimums and gives inmates a chance to earn a little more good time off, but does nothing to correct the monstrous miscarriage of justice that mandatory minimums create by putting all the power of jury and judge in the hands of prosecutors with virtually no accountability.