Under the current sentencing structure, the sentencing guidelines are only advisory. Judges must calculate the relevant guidelines correctly and take them into account, but they are only advisory. But the command of the statute is that the court "shall impose a sentence sufficient, but not greater than necessary" to comply with the four purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) namely to reflect the seriousness of the offense, provide adequate deterrence and protection of the public, and provide the defendant with various forms of treatment. I have always thought that was one of the wisest laws that Congress has passed.
While it may not be easy to determine, the law commands us to impose a sentence that is not greater than necessary to accomplish the four major goals of sentencing, the so-called parsimony clause. If we impose a sentence that is greater than necessary we are, quite simply, violating the law. While it may not be easy to make that determination, ultimately we must be satisfied that the sentence is the minimum sentence that will satisfy the goals.
The statute also requires us to consider other factors, including the nature and circumstances of the offense and the history and characteristics of the defendant. Again, if we fail to do that, we are violating the law.
A few additional observations on the standards. The statute provides that the sentence shall be sufficient but not greater than necessary to afford adequate deterrence to criminal conduct. It is plain that the sentence should be sufficient to deter the defendant from committing other crimes, but it would be very difficult to take into account what effect a sentence on an individual defendant might have on deterring the criminal conduct of others, and there is a substantial question whether that should be a valid consideration. How could we measure whether an individual sentence will really deter anyone else? And why is it appropriate to use a criminal defendant for a more general societal purpose? We wouldn't think of mistreating a defendant to accomplish some greater societal good. Why do we think it is all right to increase the punishment for a defendant beyond that which is sufficient for that defendant in the hope that it will deter others from committing a crime?
Sufficient but not greater than necessary. What is sufficient? I am reminded of a defendant in a major drug conspiracy case before [former Southern District Judge] Edward Weinfeld, while I had the privilege to clerk for the judge. The judge sentenced the middle-aged defendant to 25 years in prison. Afterward, the defense lawyer remarked that another judge might have sentenced the defendant to 50 years the maximum and asked whether there was some way that the judge could have found another basis to increase the sentence.
Sufficient but not greater than necessary. What is sufficient? In one white-collar case, the Court of Appeals reminded us: "Twenty-five years is a long sentence for a white-collar crime, longer than the sentences routinely imposed by many states for violent crimes, including murder, or other serious crimes such as child molestation." And the Court of Appeals also noted the dangers of the possibilities of such long sentences: "Even the threat of indictment on wafer-thin evidence of fraud may compel a plea."
While not one of the four parsimony factors, the statute also commands that we take into account the nature and circumstances of the offense and the history and characteristics of the defendant. I am reminded of a sentence that Judge Weinfeld imposed on an elderly white-collar defendant. The judge had a practice that he almost invariably sentenced white-collar defendants to some jail time because he thought that the deterrent effect of the jail door closing behind a defendant was important. But on one occasion, the judge was sentencing a white-collar defendant who had performed numerous anonymous works of charity throughout his life, not just post-indictment works of charity. At sentencing, the judge sentenced the defendant to a nonjail sentence and explained that: "The bread you have cast upon the waters now returns to you."
While the parsimony factors are part of one of the wisest laws, mandatory minimums are surely some of the most troublesome laws. Modern mandatory minimum sentences resurfaced in the Comprehensive Crime Control Act of 1984 for certain firearm and drug-related offenses. Since then, the number of statutes with mandatory minimums has more than doubled with new offenses added such as child pornography and sex abuse crimes. In fiscal 2015, 22.2 percent of all federal convictions involved a mandatory minimum, although through various exceptions such as cooperation and application of the safety valve, the mandatory minimum was only applied to 13.5 percent of federal offenders. Two-thirds of the offenses were drug-related; firearms offenses represented 15.4 percent of those cases; and child pornography offenses were 8.8 percent of the total of the mandatory minimum offenses.
Mandatory minimums drastically increased the sentences actually imposed. For the offenses subject to a mandatory minimum where the mandatory minimum was imposed, the average sentence was 138 months. For those cases eligible for the mandatory minimum where there was an exception so that the mandatory minimum was not applied, the average sentence was 66 months, less than half; and for those offenses where there was no mandatory minimum, the average sentence was only 28 months.
The Sentencing Commission attributes mandatory minimum sentences for the substantial increase in the prison population over the last two decades. The number of offenders in prison who were convicted of offenses with mandatory minimums increased from 40,104 in 1995 to 111,545 in 2010, an increase of 178.1 percent.
Let me give you a specific example. In one Hobbs Act conspiracy case, all of the defendants pleaded guilty except one defendant who was by no means the most culpable. He refused to plead guilty and went to trial. As a result of various mandatory minimums applicable to the drug and firearm offenses, the jury returned a verdict that would have resulted in a mandatory minimum sentence of 37 years in prison, even though no firearm was ever discharged and no homicide was even contemplated, a sentence far higher than that for all of the other defendants who pleaded guilty. To its credit, the government eventually agreed to a post-verdict disposition that resulted in a mandatory minimum sentence of 17 years' imprisonment.
This system is deplorable on so many levels.
To name a few: First, it is contrary to the wise judgment of Congress that a sentence should be sufficient but not greater than necessary to achieve the legitimate goals of sentencing. Mandatory minimums act as a blunt instrument not calculated to achieve a just result in each case. The disparity between the sentences imposed when the mandatory minimum is applied compared to when it is not is some indication that judges do not believe that the mandatory minimum sentences are justified in all of the cases in which they are required to be imposed.
Second, the fact that mandatory minimums produce longer sentences increases the prison population with all of the human costs that imprisonment entails without any showing that it is justified in the individual cases.
Third, mandatory minimums give to the prosecutor an enormous bargaining tool to induce a guilty plea. By adding various firearm counts, a prosecutor can threaten to increase a sentence by five, 10, or 25 years consecutive to any other sentence. By filing a prior felony information, the prosecutor can increase the mandatory minimum for drug offenses. And by charging increased amounts of drugs, the prosecutor can increase the amounts of mandatory minimums. All or some of these mandatory minimums might go away if the defendant pleaded guilty to some lesser offense. All of this exerts a hydraulic incentive on the defendant to plead guilty. That decreases the number of trials and in turn deprives the defendant of the right to a jury trial and deprives the public of the right to observe the process of justice.
Most troubling, perhaps, the incentive to plead guilty in cases where defendants might otherwise go to trial raises the specter that an innocent person might plead guilty in order to avoid draconian mandatory minimum penalties. My colleague, [Southern District] Judge Jed Rakoff, tells us that criminologists estimate that between 2 percent and 8 percent of defendants who have pleaded guilty are actually innocent.
Judge Rakoff is quick to add that the spread indicates the imprecision of the figures. But the very possibility that any number of innocent people might plead guilty because of the threat of excessive punishment should be enough to cause us to avoid using this device. After all, our system of procedural safeguards and the proof beyond a reasonable doubt standard are based on the proposition that it is the ultimate failure of our system if any innocent person is convicted.
So, what is to be done? As judges, we are extremely limited. Mandatory minimums, by definition, deprive us of discretion. It does not help for us to tell a defendant that we think the sentence we are imposing is too high. That provides little comfort to a defendant as the defendant spends years in prison.
The immediate solution rests with defense lawyers and prosecutors: defense lawyers who can argue what is reasonable in an individual case and prosecutors who can exercise their good judgment to conclude that less than a mandatory minimum is justified and that mandatory minimums and prior felony informations should never be used as bargaining chips to produce a guilty plea. There is an enormous range of penalties that might be charged, but the highest available charge will not necessarily be the most appropriate one.
The principle should always be a sentence that is sufficient but not greater than necessary to accomplish the legitimate purposes of sentencing.
