PRISONER OF THE STATUS QUO

Despite widespread recognition that mandatory minimums is bad policy,
the politics of being 'tough on crime' precludes a more rational
approach to sentencing

As a twenty-something federal prosecutor in Washington DC, during the
crack epidemic in the late '80s, David M. Zlotnick realized that
mandatory minimum sentences gave him more discretion than judges who
had been on the bench for decades. Since the US attorney's office had
the resources, it "prosecuted every five-gram crack-cocaine case."
Zlotnick recalls how the poor black kids caught with these small
quantities received "sentences of 10 to 15 years, as if they were
kingpins of some sort, which seemed absurd to me.O Cases involving
similar amounts of powder cocaine, which disproportionately involved
white defendants, got far less scrutiny.

After four years as a prosecutor, Zlotnick became the first
litigation director of Families Against Mandatory Minimums
(www.famm.org), a DC-based nonprofit founded in 1991 to challenge
these sentences. And although FAMM was a relatively lonely voice at
the time, a consensus has since developed among academics, judges,
and others that mandatory minimums, which require specified prison
sentences for particular offenses, represent a deeply flawed approach
to criminal justice. Considering this, it's no wonder that officials
at Roger Williams University law school, where Zlotnick is now a
professor, had a hard time finding public comments in favor of
mandatory minimums when they organized a symposium in October on
sentencing rhetoric.

Laws prescribing mandatory minimums for certain crimes, usually drug
offenses, originated to reduce sentencing disparities and to assure
that offenders would receive equal time for the same crime. In the
1970s, New York and Michigan became the first states to institute
such policies. New York's Rockefeller drug laws, for example,
mandated a sentence of 15 years to life for selling or possessing two
ounces of heroin or four ounces of cocaine. Michigan's notorious "650
Lifer Law" consigned mid-level offenders convicted of delivering more
than 650 grams of heroin or cocaine to prison for the rest of their
years. By the mid-'90s, every US state had mandatory minimums or
sentencing guideline laws. Rhode Island's somewhat flexible minimum
sentences, codified in the state's Uniform Controlled Substances Act,
date to 1988.

The current crop of federal sentencing laws was enacted in the
Anti-Drug Abuse Act of 1986, which responded to the crack-fueled
explosion of gun violence by instituting harsh penalties for
trafficking small amounts of crack-cocaine. The most common minimums
are based on the weight of the drug, or the presence of a firearm,
since a defendant's position in a criminal enterprise cannot be
uniformly codified.

Rather than serving as a deterrent, though, mandatory minimums have
disproportionately landed low-level offenders in prison, resulting in
considerable increases in the growth of America's prison population
- -- and a growing racial disparity in the federal prison population --
while having little effect on the availability of drugs.

In fact, although the overall US crime rate has fallen since 1991,
according to the Bureau of Justice Statistics, the number of people
incarcerated has increased by 49 percent since then, largely as a
result of changing sentencing laws. According to FAMM, the average
federal drug sentence leaped from 65.7 months in 1984 to 95.7 months
in 1991. (By 2003, Rhode Island's own prison population has grown 625
percent over the last 30 years, according to the state Department of
Corrections, with the state now spending $130 million annually to
keep about 3500 people incarcerated.)

These trends have aggravated budget crunches, leading some states to
change course. Most notably, in Michigan, the Republican sponsor of
the original mandatory minimum measure later turned against it.
Activists have redoubled their efforts, joined by voices from across
the political spectrum, including federal judges and US Supreme Court
justices who question the wisdom of these draconian measures.

Yet even though mandatory minimums have been widely repudiated, and a
number of states have started to diminish their reach, the reluctance
of politicians to appear "soft on crime" commonly precludes progress.
In speaking with about 100 Republican-appointed judges, Zlotnick says
he has found only one who currently supports mandatory minimums. "I
would say the only place you hear support for mandatory minimums is
the [US] Department of Justice, which claims they need mandatory
minimums to leverage cooperation," he says, "and from right-wing
politicians in Congress, who think it sells in Peoria."

Case Studies In The System

On October 16, 1998, twin brothers Lamont and Lawrence Garrison were
sent to jail for 19 and 15 years, respectively, in accordance with
federal mandatory minimum sentencing guidelines, for allegedly
possessing a small amount of powder cocaine and participating in a
conspiracy to distribute larger quantities of crack-cocaine. Neither
had a previous arrest, and both had worked part-time for five years
to pay their way through Howard University. They lived with their
mother, Karen, in Washington, DC, and were the first members of the
family to go to college. "They never even stayed out all night,"
Karen Garrison recalls. "They never even missed school." Both had
hoped to become lawyers.

The twins were ensnared in a larger investigation centered on a major
player in 20-person cocaine-distribution ring in Maryland. The main
target, however, began cooperating with the government, offering
names and information in exchange for promises that his sentence
would be reduced.

The prosecution argued that, because the brothers frequently called
the main suspect's body shop, sometimes at odd hours, and
occasionally his pager, they must have been involved in the
distribution operation. Besides this evidence, the case was limited;
no drugs were found on the Garrisons or at their house. Nor was there
evidence that the brothers benefited materially from any drug trade
- -- each still had tens of thousands of dollars in college loans.
Karen Garrison laments that a court-appointed lawyer failed to
utilize crucial evidence and fell asleep during the trial.

Despite playing a key role in a major cocaine ring, the original
suspect received a reduced sentence of three years for his
cooperation. The Garrisons were not so fortunate. "When they said
'guilty', I passed out in the courtroom on the floor," Karen Garrison
tells the Phoenix. "I couldn't believe it."

The brothers' case, one of many highlighted on the Web site of
Families Against Mandatory Minimums, is a particularly horrid example
of sentencing laws gone wrong. Most people sentenced under mandatory
minimums, after all, are guilty of some crime. Still, the case of the
Garrisons is not an anomaly. While federal mandatory minimums were
meant to be a tool for bringing kingpins to justice, they were
structured to allow high-level drug dealers the best chance of
escaping a mandatory sentence, while clamping down on the mid-level
and bit players.

Under such circumstances, John MacDonald, president of the Rhode
Island Association of Criminal Defense Lawyers, says he would rather
"take sentencing disparity any day over mandatory madness and uniformity."

MacDonald has two clients who recently entered guilty pleas and face
mandatory minimum sentences in federal court. One is accused of
delivering 50 kilograms of cocaine and is facing a 10-year minimum
sentence, despite his "marginal culpability," according to MacDonald.
Because of a prior arrest record, the other client is looking at a
mandatory minimum sentence of 20 years for delivering a little more
than five kilograms of cocaine.

For drug crimes like the ones for which MacDonald's clients are being
tried, parity is achieved by basing sentencing on the weight of the
drug possessed or distributed, a notion that strikes MacDonald as
ridiculous, since "weight says nothing about culpability.O

One particularly conspicuous example of weight-based sentencing is an
amendment extending federal drug laws to include conspiracy to
possess or distribute controlled substances, leading to an upsurge in
what have been called "girlfriend" crimes. In this scenario, an
unwitting or marginal accomplice who gives a friend a ride to drop
off drugs or receives a phone call asking about buying drugs became
subject to stiff mandatory minimums based on the weight of the drugs
in question, even if they have never seen or handled them. While many
offenders can plea down by offering assistance to prosecutors,
"girlfriends" rarely can, and often end up serving longer time than
more serious offenders.

The States Take The Lead

In 2002, Families Against Mandatory Minimums organized a broad-based
coalition that overturned Michigan's most notorious mandatory minimum
sentencing law, replacing it with guidelines that restored the
ability of judges to consider various circumstances. The original
author of the "650 Lifer Law," a Republican congressman, renounced
it, and the measure was repealed with the support of a conservative
legislature and governor.

Government officials in Michigan realized they were locking up
first-time low-level offenders, not kingpins, explains Laura Fager,
FAMM's national campaign director. The battle "for smarter
sentencing" is happening on the state level, she says, largely
because, "it's the states that feel the budget pinch first."

The results can be seen in places like Louisiana, which in 2001
repealed mandatory minimums for many drug possession offenses and
lessened the minimums for trafficking by half, while also expanding
treatment programs. California's "Three Strikes" law, which
prescribes long prison terms for those convicted of a third felony,
was amended in 2000 to allow some people charged with drug possession
to enter treatment programs rather than receiving the mandated
sentence of 25 years to life.

Similarly, Pennsylvania's Republican-controlled legislature voted in
2004 to give nonviolent drug offenders a combination of prison,
treatment, and time in a halfway house. And although reformers say
there's still a long way to go, the sentences for the most serious
possession and distribution crimes in New York's infamous Rockefeller
drug laws were shortened this year, from 15 years to life to between
eight and 25 years.

A growing body of research has discredited mandatory minimums. In
1997, for example, the RAND Corporation reported, "Mandatory minimum
sentences are not justifiable on the basis of cost-effectiveness at
reducing cocaine consumption or drug-related crime." Meanwhile, Judy
Greene, a policy analyst at Justice Strategies, a liberal New York
nonprofit, believes legislators in different states have been
emboldened by growing public support for treating, rather than
incarcerating, low-level offenders whose nonviolent crimes were
motivated by drug problems.

The spread of this perspective across the political spectrum has even
reached the eminently conservative Heritage Foundation. David B.
Muhlhausen, a senior policy analyst at the think tank, says, "Every
time Congress or a state legislator gets upset about a particular
crime, they can't just jack up the penalty for that crime." On the
state level, he says, many officials are starting to realize that
"prison bed space is a scarce resource. "

Closer to home, Rhode Island has two tiers of minimum penalties for
drug crimes, both of which prescribe harsh sentences based on the
weight of the drug in question. There remains plenty of room for
improvement in creating what might be a more effective local response
to crime (see "Uphill battle"). However, according to MacDonald and
other legal observers, offenders tried at the state level almost
never receive highly punitive mandatory minimum sentences. Typically,
he says, a first-time offender caught possessing or delivering a
small amount of marijuana is given probation; for cocaine or heroin,
the sentence is usually around six months.

Zlotnick, the Roger Williams University law professor, affirms that
the Superior Court, where most of the relevant drug cases are tried,
has "thoughtful judges" who "try to calibrate the cases," based on
the individual offender and the circumstances of the specific crime.
Joseph Rodgers, the presiding Superior Court justice, flatly says,
"There are no mandatory minimums in Rhode Island."

The Feds Get In The Way

In Washington, DC, however, the "tough on crime" ethos still
dominates political rhetoric and legislation. For many people, drugs
still equal crime, and politicians tend to capitalize on this
perception. Continued support among congressional conservatives for
the primacy of federal sentencing laws represents a disconnect
between Washington and the states, as well as a departure from
traditional conservative ideology, which supports states' rights on
such issues.

In June, US Attorney General Alberto Gonzales criticized the Supreme
Court decisions in the Booker and Fanfan cases, which made sentencing
guidelines advisory, rather than mandatory, saying they will allow
many criminals to receive light sentences. More federal mandatory
minimum sentences, he suggested, could keep judges from "exercising
their discretion to impose sentences that depart from the carefully
considered ranges developed by the US Sentencing Commission."

Booker and Fanfan affect only the sentencing guidelines implemented
by Congress in 1987, which have always been less restrictive than
mandatory minimums, and mandatory minimums still take precedence in
cases where both apply. Regardless, Gonzalez's rhetoric makes it
difficult for alternatives to punitive policies to gain broader traction.

Because of the unique details of different cases, most judges dislike
the inflexibility of mandatory sentences. In 2003, US Supreme Court
Justice Anthony Kennedy said, "I can accept neither the necessity nor
the wisdom of federal mandatory minimum sentences. In all too many
cases, mandatory minimum sentences are unjust."

In the absence of flexibility, judges have frequently imposed
mandatory minimum sentences against their will. Mary Lisi, a US
District Court judge in Providence, recalls two fairly recent cases
in which defendants with prior convictions were found guilty of
possessing a large amount of crack-cocaine with intent to distribute.
She had "absolutely no discretion at all, " and imposed a life term.
"I look out there and I see a human being," she says. "I look to see
what has he or she done until now . . . is there some reason why this
person is engaging in this behavior? What prospects are there for
rehabilitation?" In many cases, given the chance, Lisi says, she
"would probably do something very different from what I'm required to
do under the law."

This conflict can be seen in a dispute between federal prosecutors
and two of Lisi's colleagues, US District Judge William E. Smith and
Chief US District Judge Ernest C. Torres, over the disparity in
sentencing for crack and powder cocaine. As the Providence Sunday
Journal reported this week, the judges have backed a 20-1
powder-to-crack ratio in a few cases, while prosecutors insist on a
100-to-1 ratio. The ratios refer to the amount of drugs requiring
mandatory minimums.

Thanks to a "safety valve" law passed by Congress in 1994, judges can
reduce the sentences of first-time offenders with no prior felonies
as long as the crime in question does not involve violence or the
presence of a gun. Before Booker and Fanfan, the only other way to
avoid a mandatory minimum was to provide the prosecutor with
"substantial assistance" -- information that will help lead to the
arrest of other, more culpable criminals.

In many federal cases, mandatory minimums have effectively
transferred judicial discretion from judges to federal prosecutors,
who decide which cases will be put on trial and what charges to make.
These decisions are based on the likelihood of conviction, and the
message, as then-AG John Ashcroft put it in a September 2003 memo, is
to "generate the most substantial sentence or mandatory minimum. "

US Attorney Robert Corrente, Rhode Island's top federal prosecutor,
suggests that mandatory minimums have had the desired effect in
reducing sentencing disparities. "A lot of federal judges and others
in the system have complained about the lack of flexibility that
[mandatory minimums] affords them, " he told the Phoenix last year.
"Some people see that as a good thing. Some people say, well, that's
exactly the point."

Zlotnick, however, sees this federalization of crime as one of the
worst impacts of mandatory minimums. "Crime in America is a local
problem," he says. "At the country's founding there was treason,
piracy -- those were federal crimes. Everything else was prosecuted
at the state level."

The Road From Here

In May, the US House of Representatives passed HR1279, the "Gang
Deterrence and Community Protection Act of 2005," on a 279-to-144
vote. The bill identifies a "criminal street gang" as a group of only
three people who have committed two crimes together, one of which
must be violent. It also applies mandatory minimums to gang crimes --
the shortest is 10 years to life -- and changes the definition of a
violent crime to include some drug trafficking offenses that already
carry mandatory minimums.

Meanwhile, the US House Judiciary Committee recently scratched an
effort to lower the weight threshold of mandatory minimums in a new
amphetamine law -- from five grams to three grams for five years, and
from 50 grams to five grams for 10 years. When it comes to fighting
mandatory minimums, "This is really a major victory," says Judy
Greene of Justice Strategies, who hopes that "emerging rationality"
is trickling up from the states to the federal level. "Some of us
like to call it 'get smart,' " she adds, rather than 'get tough.' "

US Representative Patrick J. Kennedy, who voted against the gang
deterrence bill, citing "unduly harsh and discriminatory minimum
sentences," is less sanguine that Congress will back away from
mandatory minimums. "I believe lawmakers should be cautious not to
reduce the issue to specific instances and cases," he says, "but
rather should take this opportunity to revisit the challenging
balance between judicial discretion and uniformity and strengthen our
justice system. "

Many observers are conflicted about the outlook, seeing progress at
one end stonewalled and even reversed at another. While most cite a
noticeable chasm between public opinion and the political landscape,
they recognize that Americans unfamiliar with the criminal justice
system tend to view mandatory minimums abstractly, despite their very
specific effects.

Perhaps Corrente's view -- "I don't see the sentencing guidelines
themselves going away any time soon" -- will prevail for some time
since politicians have been so effective in equating virtue with
harsh sentencing. On this, Zlotnick agrees: "Criminal justice policy
plays out in the public in very simplistic ways: 'If you do the
crime, you do the time.' " When it comes to a bipartisan effort to
reform sentencing, he says, "It's going to take someone on the
conservative side to make this issue their own."

In the interim, defense lawyer MacDonald, suspects that "each and
every year there will continue to be different proposals for
mandatory sentences, because they're nice, quick fixes." Such laws,
he says, are "wonderful window-dressing for a society with a
30-second attention span."

[Sidebar]

Uphill battle

Even In Rhode Island, Reforming Sentencing Laws Remains Difficult

Although Rhode Island lacks true mandatory minimum sentences, the
state's minimum penalties still have a serious impact on the lives of
those sentenced in accordance with them. People on probation are
denied the right to vote, for example, and they often have trouble
getting jobs.

The real problem, according to former state senator Tom Coderre, a
recovering substance abuser who serves as a board member of Rhode
Island Communities for Addiction Recovery Efforts (RI CARES), is how
laws intended to "put serious drug dealers behind bars"
disproportionately affect substance abusers who need treatment and
other services to get their lives back on track.

In February, a nascent movement to reform the state's sentencing laws
crystallized when state Representative Joseph Almeida introduced
H5645, "Relating to Food and Drugs -- Uniform Controlled Substances
Act." The bill would reduce the minimum sentences for a variety of
nonviolent drug crimes. "A lot of people who are first-time offenders
should not have to go to jail," says Almeida, a former police officer
whose district includes Providence's South Side. "I'm not interested
in the career criminal. I'm interested in the first-time offender. "

Forty percent of the state's 3400 inmates are serving time for
nonviolent or drug offenses, according to "Political Punishment," a
2004 report by the Family Life Center (FLC), a Providence nonprofit
that helps ex-offenders make the transition from prison to local
communities. For Almeida and others of a similar mind, the state's
budget problems, high rates of recidivism, and the comparatively low
cost of treatment have made the current approach to sentencing untenable.

Ironically, an alternative model for sentencing does exist, in the
world of juvenile courts, which maintains its traditional focus on
treatment and rehabilitation. Jeremiah Jeremiah, chief judge of the
Rhode Island Family Court, says mandatory minimums have never
curtailed his discretion, allowing him to "take each juvenile as an
individual, " and ask not how to punish offenders, but: "How we can
make them better citizens?"

Almeida has seen the effects of aggressive drug laws firsthand, as
urban communities like South Providence have been most devastated by
the cycle of recidivism. Thirty-eight percent of Rhode Island's
prison population comes from or returns to Providence, even though
the capital represents only 17 percent of the state's population,
according to the "Political Punishment" report. Noting that 40
percent of black men between 18 and 34 in Providence are
incarcerated, on parole, or on probation, the report suggests that
sentencing policy mirrors and even exacerbates the racial disparity
in American prisons.

Though H5645 ultimately died in committee, the hearings on the bill
earlier this year were promising and the bill faced little organized
opposition in the House Judiciary Committee.

"There was interest in the bill," says Nathaniel Lepp, a Brown
student and member of Students for Sensible Drug Policy, who
testified in support. "In the very least, [there was an interest] in
addressing sentencing laws. I didn't hear any voices in the room
advocating mandatory minimums." He describes the current campaign as
part of a larger effort to examine the state's criminal justice
system as a whole, and to address the discrepancy between its
purposes and its effects. (Voters will decide in November 2006
whether to make it easier for ex-offenders to regain their voting
rights.) "What we have is a huge set of laws that cannot be
reasonably enforced," Lepp insists. He describes the current laws as
"a game of chicken" in which legislators ratchet up penalties without
the expectation of them being universally enforced, "Not a serious
attempt to offer a solution to a public problem."

FLC researcher Dan Schleifer sees the situation as a "barometer for
the amount of money being thrown at the war on drugs in general."
Rhode Island, he says, has a large drug problem and a need for
treatment, but, "We're throwing money at [the problem] in a
completely ineffective way that is not reducing consumption or abuse."

Carrie Blake, a recovering substance abuser who coordinates RI CARES,
joined Coderre in offering joint testimony in support of Almeida's
bill. She recalls being "busted for dealing when I was 18. " Instead
of being jailed, she was put into a diversion program. "If I had gone
to prison at 18," she says, "you'd be guaranteed a criminal." Coderre
and Blake argued that the public "would be better protected by a
program of a shorter incapacitating period followed by
community-based intermediate sanctions," reminding the Judiciary
Committee members, "Most of these inmates will return to our communities."

Remarking on the bill's failure in the last legislative session,
Schleifer says, "The legislators involved didn't make this their
number one priority." Almeida agrees, acknowledging a lack of
organizational support or an effective educational campaign. "I have
to take some of the blame for that, " he says. He maintains, though,
"this particular bill is going to come back again," with increased
organizational support and a larger public education campaign.