Explain It To the Gap Guys

The United States Sentencing Commission issued an extensive  report that ripped that hated mandatory minimum sentences.  As described in a New York Times editorial :

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.” That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.


Nothing warms my heart more than a official recognition of the obvious that took a mere 24 years. 


This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus. The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity.

Of course it put prisons over capacity. That was the point of the mandatory minimums, to allow politicians to prove to voters how tough they were on crime on the backs of every hated miscreant in the system and usurping the function and authority of judges, who couldn’t be trusted anyway since they have life tenure and don’t need to be re-elected. 

It’s not to criticize this report at all, but to wonder how it could have possibly taken all this time to figure out what the rest of us knew decades ago?  But as all people who screw up royally like to say, let bygones be bygones.  Let’s not hold anyone responsible for the hundreds of thousands of lives, plus all the family members, children and spouses, that suffered for mandatory minimums.  Let’s not demand that anyone be held accountable for the misery, since it was just a political decision, like so many truly bad political decisions, that seemed efficacious at the time. 

And, I can’t help but wonder, if the economy was stronger, whether maintaining mandatory minimums would continue to serve its very important purpose of demonstrating how tough our politicians can be in the name of protecting us from evil mommy drug mules whose children need to eat every day, even though it’s a huge and unjustifiable expense to the public that serves no purpose whatsoever.

With this report from the folks who are supposed to know best, if last, about the functioning of the federal criminal justice system, there is a real expectation that Congress will pay attention to the polls and rid of these mandatory minimums.  The New York Times thinks they should:


The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

That’s great. Voters are much more concerned this election cycle with the economy than with the War on Drugs, so it’s the perfect time to toss out this bit of insanity, especially now that the politicians can blame it on the Sentencing Commission and won’t have to take any heat themselves should any constituent bark.

But what of the people in the gap, between the time this insanity began and the time Washington woke up and learned that they really shouldn’t screw with the lives of hundreds of thousands of people to win a handful of votes?  For the defendants whose sentences are served, tough luck.  They’ll never get those years back, the extra seven on a 121 month sentence when a 36 month sentence would have been more than sufficient.

The ones now serving their sentences will be throwaways too.  And the ones in the system now will have a gun pointed at their heads, the government doing everything in its power to flush out their pleas before any change in mandatory minimums can be made effective.  Given the astounding manpower and money that went into these cases that would have been run of the mill state court prosecutions in another lifetime, the government won’t be satisfied having them serve a few years when they had decades in mind.

Don’t be surprised when some pimply-faced lawprofs, whose sentencing sensibilities were developed during the guidelines years because they weren’t born in the olden days when judges actually exercised individualized discretion, start complaining about inconsistency and undue leniency.  After all, these scholars, whose only real-life experience consists of a couple of years clerking for federal judges where lawyers kissed their baby-powdered butts for fear they would wreak havoc with their client’s lives and gave them the impression that they are omnipotent and their opinions were deeply valued by all, never experienced a system where sentences that weren’t calculated in triple digit months were sufficient.

Undoing the craziness of the War on Drugs, the Tough on Crime politics, the insanity that infected our federal legal system, leaves plenty of dead bodies in its wake.  We lack the ability to raise the dead, to undo the damage inflicted on so many when our harshest impulses rules the criminal justice system, but at least we can remember that 24 years later, we finally came to the realization that this was one monumental screw up and not do it again.

And maybe, in the process of undoing the damage, someone in Washington will think about the people sitting in prison who, but for their policies, should be home with his children.  Explain to them why they had to suffer a ten year mandatory minimum, now seen for the ridiculously harsh and pointless mistake it was.

3 thoughts on “Explain It To the Gap Guys

  1. Alex Bunin

    I don’t bother reading Commission reports, and not only because I no longer practice in federal court. They are great at stating what will impress the NYT, but not anyone who actually represents persons charged with federal crimes. I’m sure it fails to highlight that (since its inception), the Commission has always blindly followed mandatory minimums as a basis for setting guidelines. Even Congress did not demand they do that. Therefore, the recommended guideline range was always consistent with the mandatory minimum, even when no mandatory minimum applied in that case, or a departure was allowed.

  2. SHG

    I can’t let go of how the Guidelines got here and what they did to the system, and all those poor schmucks who were arrested on “federal day” way back when.  But Alex, people don’t remember anymore what life was like before the guidelines and mandatory minimums. The prosecutors and lawprofs weren’t alive then.  Half the judges didn’t practice before ’87. 

    And none, if I may be a bit hyperbolic, seem bothered by the fact that it’s accomplished nothing, but caused massive structural damage.  But you can only see it if you aren’t part of the generation that sees guidelines and mandatory minimums as the norm.

  3. AH

    You can also see it if you come from a state court criminal background. It is absolutely shocking to me that federal judges (pre-Booker) had no real sentencing discretion whatsoever; that a defendant has no right to a bench trial; that appellate courts routinely increase sentences on appeal; that the constitution allegedly gives you all of these rights but if you dare exercise one, the sentencing guidelines will crucify you.

    I practice only civil law in federal court. For all of my cynicism, I don’t want to be reminded that something as evil as the federal criminal justice system exists inside a democracy like the US. I respect you guys for the work that you have done to protect the people.

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