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The Revival of Mandatory Minimums

The Trump Administration is committed to change numerous policies implemented under the Obama Administration, including criminal justice reform. A recent change has been Attorney General Jeff Sessions’ directive to federal prosecutors. Setting the tone for the Trump Administration, Sessions issued a two-page memo on May 10, 2017 to all federal prosecutors calling for strict adherence to the mandatory minimum sentencing guidelines.

Mandatory minimums are binding prison terms for certain crimes. The most controversial sentences involve drug offenses, as they commonly impose long prison terms. For example, a first time, non-violent drug offense involving one kilogram of heroin or five kilograms of cocaine requires a sentence of 10 years, while a second offense mandates a 20 year sentence. A second or third offense involving violence requires life in prison.

These mandatory minimums for drug offenses were implemented in the 1980s as an attempt to advance the war on drugs. The punishment for these drug offenses may seem harsh when compared to other minimum sentences such as sex trafficking (requiring a minimum term of 15 years in prison) or murder (mandating a life term).

In recent years, criminal justice reform, particularly the removal of mandatory minimums, has been a key issue. The Obama Administration focused on reducing the number of low-level, non-violent drug offenders serving long prison sentences. President Obama even commuted the sentences of many non-violent drug offenders. These policies sought to reduce the overpopulation of prisons and give many offenders a second chance.

The former Attorney General, Eric Holder, encouraged prosecutors to avoid bringing charges that triggered mandatory minimum sentences. In an August 2013 memo, he advocated that “charges should always reflect an individual assessment and fairly represents the defendant’s criminal conduct.” He suggested that prosecutors decline to charge the quantity of drugs necessary to trigger the mandatory minimum, unless the defendant met certain criteria, including significant criminal history, significant ties to or leadership in a drug trafficking organization, or violence. Holder’s policies encouraged the discretion of prosecutors – that every case should be analyzed according to its facts and the defendant’s circumstances.

In contrast, Sessions’ brief but powerful memo specifically rescinds Holder’s policies and seeks to limit prosecutorial discretion and focus on consistent application of the law. He advocated for two core principles: (1) prosecutors should pursue “the most serious readily provable offense ... the most substantial guidelines sentence, including mandatory minimum sentences,” and (2) prosecutors must disclose all facts that may affect sentencing guidelines or mandatory minimum sentences. Any exception to this strict charging policy must be justified. Further, any recommendations for departures or variances (prosecutorial tools that can reduce a defendant’s sentence) require supervisory approval.

Sessions’ mandate is clear. Offenders should be prosecuted to the full extent of the law with no prosecutorial consideration of individual circumstance. Sessions’ policies advocate for a cattle-herding approach; all offenders are treated the same.

With these policies, Sessions hopes to create a safer America. No one can argue with that goal, but the disagreement arises in the means to such an end. While consistency is a noble and important directive, it is hard to balance that with the real life consequences of mandatory minimums: long prison terms, family hardship, overcrowded prisons, high costs to the state and taxpayers, and the lifelong impact created by the label of “convicted felon.”

In addition to his mandate on mandatory minimums, Sessions has also issued a memo calling for more harsh prosecution of illegal immigrants arrested while crossing the border. These extreme and hardline policies of prosecutorial enforcement cannot be the solution. There must be a middle ground that imposes sufficient punishment, but allows the offender to be rehabilitated – a key principle of the prison system. Punishments should fit the crime and our law and enforcement methods should support that policy not seek to be unduly punitive.