Survey: Many judges think mandatory minimums lengthy

A survey released June 9 from the U.S. Sentencing Commission shows that a majority of federal judges think mandatory minimum sentencing produces prison terms that are too lengthy.

The survey results indicate also that the judges think the so-called “safety valve” needs to be expanded, and that the current advisory guidelines system works well. 

The commission received survey results from 639 federal judges. The number of federal judges is always in flux, but Mary Price, chief counsel of Families Against Mandatory Minimums, a Washington, D.C.-based advocacy group, said that figure represented two-thirds of the approximately 950 Article III judges on the bench when the survey was distributed.

Price said she and FAMM were gratified by the strong survey response from judges who were responsible for sentencing 79 percent of the 146,511 people convicted in federal courts in 2008 and 2009. 

“There are people who face criminal defendants almost every day, if not every day,” Price said in a phone interview Wednesday. “They do have strong opinions. It’s a validation of the state of criminal sentencing.”

The results reveal that 62 percent of judges thought mandatory minimum sentences were too high for all crimes—especially those involving crack cocaine—and that 71 percent thought the mandatory five-year prison term for child pornography receipt was too harsh in some cases. Sixty-nine percent of judges strongly agreed or somewhat agreed that the “safety valve” exception to drug mandatory minimums should be expanded to apply to all crimes with mandatory sentences.

The safety valve refers to a 1994 Congressional response to exempt first-time, nonviolent drug offenders who satisfied certain criteria, and 71 percent of judges strongly agreed or somewhat agreed that it should be expanded to apply to receipt of child pornography crimes, and 66 percent of judges strongly agreed or somewhat agreed that the safety valve should be expanded to apply to all drug trafficking crimes with mandatory sentences.

Price said while the Justice Department acknowledged during U.S. Sentencing Commission hearings last month that mandatory minimums extracted a “very heavy price” but then said it was “carefully” considering asking Congress for new mandatory sentences for certain white collar offenses.

Price, who sat through the hearings, said it was even stranger that Attorney General Eric Holder has repeatedly said that prosecutors should make “an individual assessment of the facts and circumstances of each particular case.”

“This commonsense instruction — to consider the facts of each case and the culpability of each defendant — is wholly appropriate and should better promote the purposes of sentencing,” Price wrote on the Main Justice website. “Mandatory minimum sentences, on the other hand, are designed and operate to eliminate such individual assessments from the hands of judges.”

Price told The Daily Record that the Justice Department is simply talking about, but not signaling any intent to repeal some of the more egregious injustices with mandatory minimums. She added that in addition to the white collar crimes — she called them “economic crimes” — the Justice Department wants to beef up mandatory penalties for child porn crimes.

This is a form of prosecutorial grandstanding, as it’s easy to point fingers at people who engage in reprehensible sexual behavior or those responsible for the recent shady financial dealings that almost swamped the nation’s economy, Price said.

A problem with handing out five-year mandatory minimums for receipt or possession of child porn is that, though it’s almost universally agreed to be repulsive, stacking up porn charges seems excessive.

Price talked about U.S. v. Dorvee, in which a New York man received a 20-year sentence for child porn possession. Justin K. Dorvee had an extensive child pornography collection but did not have sex with a minor, though he had arranged to meet with an undercover police officer posing on the Internet as a 14-year-old boy. In addition, the court, after hearing testimony of Dorvee’s psychological makeup, agreed that he would never “go out and drag some little boy off the street and rape him and murder him.”

“The problem with this type of child pornography sentencing is how do you distinguish someone like him from the really scary people?” Price said.

The survey also showed just 16 percent of judges thought considering “acquitted conduct” at sentencing was appropriate.  The “acquitted conduct” rule allows judges to sentence a defendant for criminal conduct that he was charged with, but not convicted of, along with crimes he was actually convicted of by a jury.

The commission also asked judges to pick the sentencing system that best achieves the purposes of punishment. They could choose from: rehabilitation, deterrence, public safety and just punishment.

Seventy-five percent picked the current advisory guidelines system; only 3 percent opted for the mandatory guidelines system that existed before the decision in U.S. v. Booker made the guidelines advisory in 2005. 

Price said that a guideline system must be in place but the problems in the current system need to be addressed. The crack cocaine mandatory minimums guidelines have often been criticized for being racially discriminatory as the vast majority of those convicted are black.

“They are the most severe,” she said. “You get five years for a mere five grams. This creates a strong disparity in sentencing that’s unsupportable. It leads people to believe the justice system is not fair.”