Friday, March 22, 2013

Are Mandatory Minimums Really a Thing of the Past?

Snitch[1], a movie dealing with mandatory minimum sentencing was released on the big screen last month.  The movie was based on true events surrounding the lives of James Settembrino[2] and his son Joey Settembrino[3].  The movie depicts a situation where eighteen year old Jason Matthew was an unwilling participant in a drug operation.  Jason’s friend set him up by sending him a large amount of illegal drugs through the mail.  When Jason retrieved the package he was arrested and charged with the distribution of narcotics.  Jason was facing up to thirty years in prison.  John Matthews, Jason’s father, agreed to become a snitch and set up drug dealers for the government in order to reduce his son’s sentence.  While the movie arguably involved bad acting and a poor portrayal of our criminal justice system, it did create a platform for the discussion of mandatory minimum sentencing.

The Anti-Drug Abuse Act of 1986 implemented mandatory minimum sentencing for certain drug offenses.  The mandatory minimum sentencing guidelines removed the judge’s discretion in sentencing.  Thereby, removing the judge’s ability to use individualized sentencing based on mitigating factors.  Mitigating factors are facts or circumstances that lessen the culpability of a defendant such as the absence of a prior criminal record, minimal involvement in the crime, the defendant’s age, and past abuse or neglect.   For example, in the movie Snitch, the teen was charged with a certain weight of drugs which carried a mandatory minimum sentence of ten years.  Therefore, regardless of the teen’s level of involvement in the drug operation, the judge would have to sentence him to a minimum of ten years in prison.

Judges were eventually given their sentencing discretion back when the Supreme Court of the United States rendered the federal sentencing guidelines advisory in its 2005 decision for United States v. Booker.[4]  However, judges rarely utilize this power.  Instead, judges continue to use the federal sentencing guidelines.[5]

There are two reasons why Booker has not made mandatory minimum sentences a thing of the past: first, judges are still required to calculate sentences based on the guidelines and second, there is an appellate presumption that the sentence calculated based on the guidelines is reasonable.  Only after the judge calculates the sentence based on the guidelines can the judge determine whether to depart from the guidelines in light of the circumstances and facts presented in the case.  In Rita v. United States[6], the Supreme Court of the United States held a federal appellate court can apply a presumption of reasonableness to sentences that are within the sentencing guideline range and the Court admitted that this presumption may encourage judges to sentence within the guidelines.  After calculating the sentence based on the guidelines and with the knowledge of the appellate presumption of reasonableness, judges are more inclined to just sentence the defendant within the guidelines that they just calculated.

The only available protection to defendants like Jason is the Safety Valve.  The Safety Valve is currently the only sure way for a person under similar circumstances to avoid a harsh sentence. The safety valve provision allows a judge to ignore statutory minimum sentences if a defendant meets five requirements.  The defendant must (1) not have more than one criminal history point; (2) not have used violence or possessed a firearm during commission of the offense; (3) not have killed or seriously injured another person; (4) not have been a leader or manager in the offense or be involved in a continuing criminal enterprise; and (5) have truthfully provided the government with all information.  The fifth element is generally the only contested element. 

Meeting the fifth requirement under the Safety Valve[7] can be extremely problematic for people in Jason’s situation because they generally lack information about the drug operation.  The obligation of truthful and complete disclosure under the safety valve provision includes all information, even information that is not relevant or useful.  This provides no guidelines regarding the level of information a person must provide; thereby, making it easy to unfairly deny eligibility for the safety valve for failing to provide irrelevant and unrelated information.  Additionally, under the safety valve, the defendant has an obligation to volunteer information even if the government does not question them about that specific information.  Moreover, fear does not excuse a defendant’s obligation of full disclosure under the safety valve provision.  There are no exceptions for defendants that refuse to give up information about co-conspirators out of fear for their safety.

Even though the federal sentencing guidelines are now considered advisory, harsh sentencing for first time non-violent drug offenders remains a problem and sadly there are numerous teens, young adults, and women that are currently serving harsh prison sentences due to situations similar to the one depicted in the movie.  Unfortunately, most of these people do not have a father willing to work with the government as a snitch to reduce their sentences.  Instead, after exhausting all possible post-conviction relief efforts with the courts their only hope is clemency. 

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