Mandatory Sentences Loom as Issue

The three branches of government are jockeying to gain control over criminal sentencing should the Supreme Court change or even strike down the current system of federal guidelines.

The Supreme Court is set to hear arguments Monday in two cases that the Justice Department maintains show that federal sentencing guidelines are constitutional.  Enacted in 1987, the guidelines designate factors judges must consider in sentencing defendants.  They have served as a model for criminal sentences ever since.

The high court threw the sentencing system into turmoil in June.  In a case from Washington state, it rules that any factor that increases a criminal sentence under the guidelines—other than a prior conviction—must be admitted by a defendant in a plea bargain or proved to a jury beyond a reasonable doubt.

That ruling has left lawyers, judges and legislators uncertain about the validity of federal sentencing guidelines.  It also has prompted speculation that Congress will impose mandatory sentences for a raft of crimes, from minor offenses to major felonies, leaving judges no latitude to allow for individual circumstances.  The Supreme Court in 2002 affirmed the legality of mandatory minimum laws enacted by Congress.

The emerging battle lines address a central question over the assumed separation of powers between the legislative and judicial branches:  Who has control over the sentencing?  Judges long have held undisputed authority, but tough-on-crime politicians during the past 20 years have steadily eroded the discretion of judges through sentencing guidelines and a steady increase in mandatory minimum sentences.  More than half of those sentenced annually for drug offenses receive mandatory minimums.  Of the 49,965 defendants sentenced for drug charges in 2001 and 2003, 56.9% received five-or 10-year mandatory minimums.

If the federal sentencing guidelines are struck down, “the last work will come from Capitol Hill, which is champing at the bit” to enact legislation, says U.S. District Judge Ruben Castillo, one of three judges on the U.S. Sentencing Commission, which promulgates the federal guidelines.

The House Judiciary Committee could as early as today approve a bill to raise mandatory minimum sentences for some crimes, such as drug trafficking near video arcades, and to create new mandatory minimums for drug trafficking near drug-treatment facilities and day-care facilities.  It also curbs some protections that low-level, nonviolent offenders can receive against longer sentences.

The proposed bill was introduced in early June by House Judiciary Committee Chairman F. James Sensenbrenner (R., Wis.) and approved last week by a Judiciary subcommittee.  That bill stemmed partly from lobbying by the Justice Department to lessen the likelihood that low-level, nonviolent offenders would be treated leniently.  In addition to creating new mandatory minimums, the bill increases the penalties for use of a firearm while committing a drug crime.  It also imposes a mandatory life sentence for three-time drug offenders.

Approval of the bill is considered likely, as legislators don’t want to be seen as being soft on crime in an election year.  Moreover, Mr. Sensenbrenner wields considerable cloud; he is credited with aggressively pushing through a law last year that restricts the ability of judges to grant more-lenient sentences than guidelines allow, an action known as downward departures.  That bill, known as the Feeney amendment, and the child-protection bill to which it was attached, marked the first time Congress had directly amended the sentencing guidelines.

Though mandatory minimums initially were intended to target only the most violent drug offenders, Congress in recent years has broadened mandatory minimums to include defendants convicted of identity theft, crack-cocaine possession and Internet pornography.

The Justice Department has attempted to aid the momentum.  In op-ed articles drafted by the Justice Department and published in local newspapers across the nation, a number of U.S. attorneys have backed mandatory minimums.  Such minimums require judges to issue stiff sentences, without discretion, for a variety of crimes and prohibit them from departing downward from the minimums, unlike the guidelines.  Supporters believe mandatory minimums help lower crime rates.

“Mandatory minimum sentences are a critical tool to protect our communities,” wrote Jim Vines, U.S. attorney for Middle Tennessee, in an Aug. 3 article in Nashville’s Tennessean newspaper.  “We need mandatory minimum sentences, and we must resist the misguided calls for their repeal.”

In an interview, Mr. Vines said it was coincidence that his article resembled two others that later ran. “I took materials the DOJ gave me and constructed my own op-ed,” he says.  Mr. Vines says that while he was encouraged by the Justice Department’s public-affairs unit to publish a piece supporting mandatory minimums, he believes in these laws and credits them for the decline in the national crime rate.

In Utah, an influential federal judge has concocted a creative way to highlight—and protest—what he views as a draconian mandatory-minimum system.

On a single day in November, U.S. District Judge Paul G. Cassell, who has written extensively about the inequities of mandatory minimum sentencing laws, has scheduled three sentencing hearings.  They involve a carjacker who took a car from an 18-year-old female college student at knife-point, a man who killed an elderly woman and dumped her body in a river, and a rap-record producer who sold several hundred dollars of marijuana while carrying a gun.

The carjacker, who was convicted of two prior violent felonies, faces a mandatory life sentence, but will be eligible for release at age 70.  The killer faces a sentence of as much as 20 years under federal sentencing guidelines.

The 25-year-old producer, Weldon Angelos, who is a first-time offender, faces a mandatory minimum of 63 years with no chance for early release.  Had Mr. Angelos chosen to plead guilty instead of going to trial, he would have received a sentence of 16years, according to a plea-bargain offer made in January that was reviewed by The Wall Street Journal.

Some jurists believe that with federal sentencing guidelines under scrutiny, the Supreme Court may want to revisit mandatory minimums.  In the case of Mr. Angelos, Judge Cassell has asked defense and government lawyers to brief him on the constitutionality of mandatory minimum sentences.  Jerry Mooney, the lawyer representing Mr. Angelos, calls Judge Cassell’s sentencing plan “very creative.”

The judge, a conservative former academic who was nominated to the federal bench by President Bush, has ample support for his concern about mandatory sentences.  Twenty-nine former federal and appellate judges and U.S. Attorneys have written a brief urging Judge Cassell to find that the mandatory minimum sentence in the rap-record producer’s case is cruel and unusual punishment, and thus unconstitutional.

Among those signing the brief are former U.S. Attorney General Nicholas Katzenbach and U.S. attorneys from New York, Mississippi, Tennessee, Florida, Michigan, Pennsylvania, New Jersey, Ohio and Massachusetts.