Mandatory Minimalism

Washington and Lee University School of Law Washington and Lee University School of Law

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2010

Mandatory Minimalism Mandatory Minimalism

Erik Luna

Washington and Lee University School of Law

, [email protected]

Paul G. Cassell

University of Utah

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Recommended Citation Recommended Citation

Eric Luna and Paul G. Cassell,

Mandatory Minimalism

, 32 Cardozo L. Rev. 1 (2010).

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LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

MANDATORY MINIMALISM

Erik Luna

∗

& Paul G. Cassell

∗∗

INTRODUCTION

Lengthy mandatory prison sentences in the federal system are

under heavy fire. The basic critique of these “mandatory minimums” is

well known and becoming more widely accepted: A mandatory

minimum deprives judges of the flexibility to tailor punishment to the

particular facts of the case and can result in an unduly harsh sentence.

In the past, it was perhaps unsurprising to find federal judges—

including Justices Stephen Breyer and Anthony Kennedy, and the late

Chief Justice William Rehnquist

—voicing dismay at the excessive

sentences they were required to pronounce and affirm.

But the most

∗

Professor of Law and Law Alumni Faculty Fellow, Washington and Lee University School

of Law. Many thanks to Amy Baron-Evans and Troy Booher for thoughtful comments, and to

Katherine Brings for excellent research assistance.

∗∗

Ronald N. Boyce Presidential Professor of Criminal Law, University of Utah S.J. Quinney

College of Law. This Article is the result of a discussion that began earlier this year. See

Symposium, Judicial Discretion: A Look Back and a Look Forward Five Years After Booker, 22

ED. SENT’G REP. 297 (2010). We appreciate the Cardozo Law Review’s publication of our

Article on short notice and an abbreviated schedule.

See Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting (Aug.

9, 2003) [hereinafter Kennedy Speech] (transcript available at http://www.supremecourt.gov/

publicinfo/speeches/viewspeeches.aspx?Filename=sp_08-09-03.html); Stephen Breyer, Federal

Sentencing Guidelines Revisited, 11 F

ED. SENT’G REP. 180 (1999); William H. Rehnquist,

Luncheon Address (June 18, 1993), in U.S.

SENT’G COMM’N, DRUGS AND VIOLENCE IN

AMERICA 283, 287 (1993); see also Carol J. Williams, Justice Kennedy Laments the State of

Prisons in California, U.S., L.A.

TIMES, Feb. 4, 2010, at AA5.

See, e.g., Marcia Coyle, Judges Give Thumbs Down to Crack, Pot, Porn Mandatory

Minimums, N

AT’L L.J., June 16, 2010, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=

1202462736591; Mandatory Minimums and Unintended Consequences: Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th

Cong. 34-66 (2009) [hereinafter Mandatory Minimums Hearing] (statement of Hon. Julie E.

Carnes, Chair, Criminal Law Comm. of the Judicial Conference of the U.S.), available at 2009

WLNR 13897800; David M. Zlotnick, The Future of Federal Sentencing Policy: Learning

Lessons from Republican Judicial Appointees in the Guidelines Era, 79 U.

COLO. L. REV. 1

(2008); John S. Martin, Jr., Why Mandatory Minimums Make No Sense, 18 N

OTRE DAME J.L.

ETHICS & PUB. POL’Y 311 (2004); Jack B. Weinstein, Every Day is a Good Day for a Judge to

Lay Down his Professional Life for Justice, 32 F

ORDHAM URB. L.J. 131 (2004); Michael Edmund

O’Neill, Surveying Article III Judges’ Perspectives on the Federal Sentencing Guidelines, 15

ED. SENT’G REP. 215 (2003); Gerard E. Lynch, Sentencing Eddie, 91 J. CRIM. L. &

CRIMINOLOGY 547 (2001); MOLLY TREADWAY JOHNSON & SCOTT A. GILBERT, FED. JUDICIAL

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2 CARDOZO LAW REVIEW [Vol. 32:1

interesting, and potentially influential, response to mandatory

minimums has come from the political branches.

At various times in their careers, the past three presidents have

doubted the wisdom of long mandatory sentences.

Likewise, some

federal lawmakers, prosecutors, and even a former “Drug Czar” have

disputed the justice of mandatory minimums.

In a much-publicized

case, dozens of former federal prosecutors and high-ranking Justice

Department officials filed amici curiae briefs in support of the

defendant, who was facing a 55-year mandatory sentence for relatively

minor marijuana deals and related conduct.

After the appellate court

upheld the sentence and the Supreme Court denied certiorari, a

conservative federal lawmaker “question[ed] some severe mandatory

CTR., THE U.S. SENTENCING GUIDELINES: RESULTS OF THE FEDERAL JUDICIAL CENTER’S 1996

SURVEY (1997); Marc Miller & Daniel J. Freed, Editors’ Observations: The Chasm Between the

Judiciary and the Congress over Mandatory Minimum Sentences, 6 F

ED. SENT’G REP. 59 (1993);

see also infra note 5; cf. Erik Luna, Drug Exceptionalism, 47 V

ILL. L. REV. 753, 799-802 nn.218-

29 (2002) (providing citations to judicial criticisms of drug-related sentences).

See Senator Barack Obama, Address at the Howard University Convocation (Sept. 28,

2007) [hereinafter Obama Address] (transcript available at http://www.barackobama.com/2007/

09/28/remarks_of_senator_barack_obam_26.php); Frank Davies, Drug Czar Vacancy Exposes

Policy Divide in GOP, M

IAMI HERALD, Feb. 23, 2001, at A29 (quoting CNN interview with

President-elect George W. Bush); Interview by Rolling Stone Magazine with President William J.

Clinton (Nov. 2, 2000) (transcript available at http://clinton6.nara.gov/2000/12/2000-12-07-

interview-of-the-president-by-rolling-stone-magazine-a.html). Moreover, President George H.W.

Bush expressed opposition to mandatory minimums in 1970 while serving in Congress. See 116

ONG. REC. H33314 (Sept. 23, 1970) (statement of Rep. George H.W. Bush) [hereinafter Bush

Speech], reprinted in 3 F

ED. SENT’G REP. 108 (1990).

See, e.g., Press Release, Rep. Bob Inglis, New Poll: Americans Oppose Mandatory

Minimums, Will Vote for Candidates Who Feel the Same (Sept. 24, 2008), available at

http://www.famm.org/NewsandInformation/PressReleases/CorrectingCoursereportandpollrelease.

aspx; Mandatory Minimum Sentencing Laws–The Issues: Hearing Before the Subcomm. on

Crime, Terrorism and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 1

(2007) (statement of Rep. Bobby Scott), available at http://judiciary.house.gov/hearings/printers/

110th/36343.PDF; Christopher S. Wren, Public Lives: A Drug Warrior Who Would Rather Treat

Than Fight, N.Y.

TIMES, Jan. 8, 2001, at A12 (quoting former U.S. Drug Czar Barry McCaffrey);

Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission,

Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System,

28 W

AKE FOREST L. REV. 185, 192-95 (1993); see also Jiles H. Ship, Second Vice President,

Nat’l Org. of Black Law Enforcement Execs., Testimony at Public Hearing Before the U.S.

Sentencing Commission (May 27, 2010) (transcript available at http://www.ussc.gov/

AGENDAS/20100527/Hearing_Transcript.pdf); U.S. Conference of Mayors, 2006 Adopted

Resolutions: Opposing Mandatory Minimum Sentences, 47-48 (2006), http://www.usmayors.org/

resolutions/74th_conference/resolutions_adopted_2006.pdf; infra note 16 and accompanying text

(referencing support for reform of crack cocaine law).

The group included four former U.S. Attorneys General and a former Director of the F.B.I.

See Brief for 145 Individuals, Including Former United States Attorneys General et al. as Amici

Curiae Supporting Petitioner, Angelos v. United States, 549 U.S. 1077 (2006) (No. 06-26), 2006

WL 3090058; United States v. Angelos, 433 F.3d 738, 738-39 (10th Cir. 2005) (listing amici

curiae); United States v. Angelos, 345 F. Supp. 2d 1227, 1256 & n.136 (D. Utah 2004) (same). In

the interest of full disclosure, the Angelos case was decided by Cassell while a U.S. District Court

Judge for the District of Utah. Luna served as appellate counsel for Mr. Angelos in seeking to

have Cassell’s decision overturned. Cf. Erik Luna & Troy L. Booher, Op-Ed., Mandatory

Minimums Sound Good But Are Unjust, D

ESERT MORNING NEWS, Dec. 21, 2006, at A22.

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2010] MANDATORY MINIMALISM 3

minimum sentencing laws, especially in the context of drug

enforcement,” adding that “[i]n the long run, it may be just as important

to provide rehabilitation and treatment programs, instead of imposing

unreasonably harsh sentences.”

Conservative commentators and organizations have spoken out

against mandatory minimums as well.

Moreover, opinion polls

suggest that opposition is growing within the general public. A recent

survey found that a majority of those polled opposed mandatory

minimums for non-violent offenses and stated that they would vote for a

congressional candidate who supports ending such sentences.

Given

changes in the political branches, it now appears that considerable

interest exists in moving beyond a verbal critique of these laws to

enacting statutory reforms.

After noting that then-President George W. Bush had been

skeptical of lengthy sentences for first-time drug offenders, then-

Senator Barack Obama stated: “I agree with the President. The

difference is he hasn’t done anything about it. When I’m President, I

will. We will review these sentences to see where we can be smarter on

crime and reduce the blind and counterproductive warehousing of non-

violent offenders.”

Shortly after taking office, Attorney General Eric

Holder created a working group to examine federal sentencing policy

and to make recommendations for reform.

In addition, Congress has

Robert Gehrke, Drug Deals Costly: 55 Years, SALT LAKE TRIB., Dec. 5, 2006, available at

http://www.sentencing.nj.gov/downloads/pdf/articles/2007/Jan2007/news25.pdf (quoting Sen.

Orrin Hatch).

See, e.g., Mandatory Minimums Hearing, supra note 2, at 66-70 (statement of Grover

Norquist, President, Americans for Tax Reform), available at 2009 WL 2027216; id. at 117-19

(statement of David A. Keene, Chairman, American Conservative Union) [hereinafter Keene

Testimony], available at http://judiciary.house.gov/hearings/printers/111th/111-48_51013.pdf;

Timothy Egan, The Nation: Hard Time; Less Crime, More Criminals, N.Y.

TIMES, Mar. 7, 1999,

§ 4, at 41 (quoting Ed Meese, former U.S. Attorney General and Senior Fellow at the Heritage

Foundation); David B. Muhlhausen, Senior Policy Analyst, The Heritage Found., Testimony at

Public Hearing Before the U.S. Sentencing Commission (May 27, 2010) (transcript available at

http://www.ussc.gov/AGENDAS/20100527/Testimony_Muhlhausen.pdf); see also infra note 16

and accompanying text (referencing support for reform of crack cocaine law).

See, e.g., Families Against Mandatory Minimums, Omnibus Survey (2008),

http://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf [hereinafter

Omnibus Survey]; see also E

AGLETON INSTITUTE OF POLITICS CENTER FOR PUBLIC INTEREST

POLLING, NEW JERSEY’S OPINIONS ON ALTERNATIVES TO MANDATORY MINIMUM SENTENCING

(2004), available at http://www.famm.org/Repository/Files/NJ%20Eagleton%20Poll.pdf; P

ETER

D. HART RESEARCH ASSOCS., OPEN SOC’Y INST., CHANGING PUBLIC ATTITUDES TOWARD THE

CRIMINAL JUSTICE SYSTEM (2002), available at http://www.prisonpolicy.org/scans/CJI-Poll.pdf;

Survey Finds Support for Drug Law Reform, N.Y. L.J., Mar. 29, 1999, at 1; cf. Julian V. Roberts,

Public Opinion and Mandatory Sentences of Imprisonment: A Review of International Findings,

30 C

RIM. JUST. & BEHAV. 483 (2003).

Obama Address, supra note 3.

See Sally Quillian Yates, U.S. Att’y, N. Dist. of Ga., Testimony at Public Hearing Before

the U.S. Sentencing Commission (May 27, 2010) (transcript available at http://www.ussc.gov/

AGENDAS/20100527/Testimony_Yates_DOJ.pdf); Eric Holder, U.S. Att’y Gen., Remarks at the

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4 CARDOZO LAW REVIEW [Vol. 32:1

directed the U.S. Sentencing Commission to submit a comprehensive

report on mandatory minimums by the end of October 2010.

The most recent events also augur well for reform. On August 3,

2010, President Obama signed into law the Fair Sentencing Act of 2010,

which reduces the sentencing disparity between crack and powder

cocaine offenses.

Previously, possession with intent to distribute 50

grams (less than 2 ounces) of crack cocaine resulted in a 10-year

mandatory sentence, while it would take 5000 grams (approximately 11

pounds) of powder cocaine to generate the same mandatory minimum.

And while possession with intent to distribute 500 grams of powder

cocaine is still necessary to trigger a 5-year mandatory term, simple

possession of 5 grams (about a teaspoon) of crack cocaine used to carry

a 5-year mandatory federal sentence.

The Fair Sentencing Act eliminated the mandatory minimum for

simple possession of crack cocaine—the first time a federal mandatory

minimum had been repealed since the Nixon Administration—and it

reduced the crack/powder disparity, from 100:1 to 18:1, by upping the

required amount of crack cocaine to trigger a mandatory sentence.

Lauded as “a courageous and historic step” toward fairness in the

federal criminal justice system,

the law received broad bipartisan

support, including the backing of conservative lawmakers and

commentators, as well as prominent law enforcement organizations.

Both authors of this article believe that reforming the federal

mandatory minimum scheme would be good for the country. At the

same time, however, there are substantial political barriers to making

any change. Although public support for mandatory minimums has

waned in recent times, it is still possible to paint a legislator who votes

to repeal mandatory minimums as being “soft on crime.” For example,

2009 ABA Convention (Aug. 3, 2009) (transcript available at http://www.justice.gov/ag/speeches

/2009/ag-speech-090803.html).

See National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 4713,

123 Stat. 2190, 2843-44 (2009).

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (to be codified in

scattered sections of 21 and 28 U.S.C.).

See 21 U.S.C. §§ 841, 844 (2006).

In other words, it now takes 28 grams of crack cocaine to trigger a 5-year mandatory

sentence and 280 grams of crack cocaine to generate a 10-year mandatory sentence.

See Editorial, Crack Breakthrough: The Fair Sentencing Act Corrects a Longtime Wrong

in Cocaine Cases, W

ASH. POST, Aug. 3, 2010, at A14; see also Editorial, Compromising on

Cocaine, L.A.

TIMES, July 31, 2010, at A24; Editorial, Matter of Conviction, DALLAS MORNING

NEWS, July 29, 2010, at A20.

See Families Against Mandatory Minimums, The Fair Sentencing Act of 2010,

http://www.famm.org/FederalSentencing/USCongress/BillsinCongress/TheFairSentencingActof2

010.aspx (last visited Aug. 31, 2010) (providing support letters from U.S. Senators, conservative

commentators and organizations, the National District Attorneys Association, the Federal Law

Enforcement Officers Association, and the National Association of Police Organizations, as well

as press releases from federal lawmakers and the U.S. Attorney General).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 5

when then-presidential candidate Obama called for reexamination of

mandatory minimum sentences, he was attacked as “oppos[ing]

mandatory prison sentences for sex offenders, drug dealers, and

murderers.”

No reform is immune from criticism, of course, and even the new

crack cocaine law had its detractors. Among others, the ranking

Republican on the House Judiciary Committee, Lamar Smith, argued

that history and experience justified the mandatory minimum.

“Reducing the penalties for crack cocaine offenders could expose our

neighborhoods to the same violence and addiction that caused Congress

to act in the first place.”

Along the way, Rep. Smith posed a series of

rhetorical questions:

• “[W]hy do we want to make it more difficult to take drug traffickers off

the streets and easier for them to peddle their lethal product?”

• “[W]hy should we reduce the [punishment] for defendants who are more

violent, more likely to have criminal records[?] Why are we coddling

some of the most dangerous drug traffickers in America?”

• “Why enact legislation that could endanger our children and bring

violence back to our inner-city communities?”

The speech referenced an earlier House version of the crack

cocaine bill, which would have eliminated the sentencing disparity

altogether (i.e., a 1:1 ratio), emphasizing that the bill was reported over

Republican opposition. “Mr. Speaker, the Democratic Party teeters on

the edge of becoming the face of deficits, drugs, and job destruction,”

Rep. Smith concluded. “I cannot support legislation that might enable

the violent and devastating crack cocaine epidemic of the past to

become a clear and present danger.”

The effectiveness of such arguments has yet to be determined, but

one could imagine similar rhetorical questions being posed in

opposition to further changes in mandatory minimum law. Some might

dismiss this as a game of polemics, merely intended to stir the political

base or prod the electorate at large. To be fair, however, arguments

made in support of the status quo deserve thoughtful consideration,

either because of the truth they may contain or the popular and political

See Fact Check: Does Obama Oppose Mandatory Prison Sentences for Violent Criminals

and Drug Dealers?, CNN.

COM, Oct. 23, 2008, http://politicalticker.blogs.cnn.com/2008/10/23/

fact-check-does-obama-oppose-mandatory-prison-sentences-for-violent-criminals-and-drug-

dealers/?fbid=eYid2oTJ1AX.

156 CONG. REC. H6197 (daily ed. July 28, 2010) (statement of Rep. Lamar Smith), 156

Cong Rec H6196-01, at *H6197 (Westlaw).

Id. at H6197-98.

Id. at H6198.

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6 CARDOZO LAW REVIEW [Vol. 32:1

sentiment they represent.

Regardless of the merits, the current

environment may not be conducive to the broadest vistas of sentencing

reform.

Although the new crack cocaine law is momentous, it directly

impacts only one type of prospective federal defendant—the crack

cocaine offender—leaving all other mandatory minimums in place.

The ultimate legislation also eschewed the reformers’ desired 1:1

sentencing parity for crack and powder cocaine offenses, a change that

would have faced powerful opposition. Moreover, the law itself

demanded greater sentencing enhancements for all drug offenses—a

provision that was specifically, and positively, referenced by law

enforcement officials.

In general, advocates of further reforms will face long-standing

political hurdles. Even during periods of lower crime rates, the public

has expressed fear of victimization and a belief that criminals are not

receiving harsh enough punishment.

Lawmakers have responded in

For instance, powder and crack cocaine are pharmacologically identical, but the method of

ingestion, sniffing versus smoking, may have different effects on the user.

Although oral cocaine use might produce the same magnitude increase in dopamine as

that of cocaine that is smoked or used intravenously, the rapid change in dopamine

levels that occurs by these latter routes is more reinforcing. That is why smoking

[cocaine] has greater abuse liability than snorted or oral routes of administration.

Margaret Haney, Neurobiology of Stimulants, in T

HE AMERICAN PSYCHIATRIC PUBLISHING

TEXTBOOK OF SUBSTANCE ABUSE TREATMENT 143, 144 (Marc Galanter & Herbert D. Kleber

eds., 4th ed. 2008) (citation omitted); see also David A. Gorelick & Jennifer L. Cornish, The

Pharmacology of Cocaine, Amphetamines, and Other Stimulants, in P

RINCIPLES OF ADDICTION

MEDICINE 157, 161, 166 (Allan W. Graham et al. eds., 3d ed. 2003). Likewise, it has been

argued that crack cocaine has a devastating effect on poor, mostly minority communities. See,

e.g., United States v. McMurray, 833 F. Supp. 1454, 1467 (D. Neb. 1993) (“[I]f ‘crack’ cocaine is

as dangerous as Congress believes it to be, and poor people in general, and poor blacks in

particular, are victimized more frequently by the sale of ‘crack’ than whites, the social costs of

‘disproportionate’ prosecution of African Americans might be deemed acceptable precisely so

that other poor people, including poor blacks, are afforded some protection from the scourge of

‘crack.’”); see also Drew S. Days III, Race and the Federal Criminal Justice System: A Look at

the Issue of Selective Prosecution, 48 M

E. L. REV. 179, 184-93 (1996); Randall Kennedy, The

State, Criminal Law, and Racial Discrimination: A Comment, 107 H

ARV. L. REV. 1255 (1994).

But see, e.g., infra note 70 (discussing socially harmful effects of racial discrimination, real or

perceived); Impact of S. 1789, The Fair Sentencing Act of 2010, F

AMILIES AGAINST

MANDATORY MINIMUMS, 1 (Aug. 2, 2010), http://www.famm.org/Repository/Files/S1789

%20impact%20factsheet%203.pdf (referencing benefits of new crack cocaine law); cf. infra notes

46-65 and accompanying text (discussing arguments against mandatory minimums).

The changes are not retroactive—in other words, they do not apply to offenders who were

already serving a federal sentence or to those whose offenses occurred before the bill was signed

into law. Cf. infra note 366.

See supra note 16 (referencing law enforcement letters). Moreover, the law increased

criminal fines. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 4, 124 Stat. 2372, 2372-

73 (to be codified at 21 U.S.C. §§ 841, 960).

See, e.g., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SOURCEBOOK OF

CRIMINAL JUSTICE STATISTICS ONLINE tbl.2.39.2009 (2009), http://www.albany.edu/sourcebook/

pdf/t2392009.pdf [hereinafter S

OURCEBOOK ONLINE]; BUREAU OF JUSTICE STATISTICS, U.S.

DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 140-41 tbl.2.47

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 7

kind with new crimes and stiffer penalties, including mandatory

sentences.

Conversely, proposals for comprehensive reform have

carried a career-ending risk for supporters, who could be labeled soft on

crime by allegedly providing the means for dangerous criminals to

escape with lenient sentences. This political dynamic has stymied

previous efforts in Congress to reform mandatory minimums.

For these and other reasons, there may be insufficient political

support for an across-the-board repeal of federal mandatory minimums.

To date, systemic reform proposals have had little traction

and appear

unlikely to be adopted in the near term. Ironically, the congressional

directive calling for a review of mandatory minimum sentencing itself

contained a new mandatory minimum, and several recent bills would

extend federal mandatory sentences.

As a practical matter, then, any

meaningful reform might have to be done in a careful, focused way to

create a broad bipartisan consensus surrounding the changes. With this

in mind, the two of us have considered how to modify the federal

mandatory minimum scheme so as to ameliorate its most draconian and

unfair expressions.

One of us (Cassell) is a former federal judge nominated by

President George W. Bush, now a “conservative” scholar whose work is

often supportive of law enforcement, the death penalty, and the rights of

crime victims.

The other (Luna) is a “libertarian” who tends to be

suspicious of government and adamant about abuses of power,

including those by police and prosecutors, and his scholarship has

expressed the need for wholesale criminal justice reform (especially in

(Ann L. Pastore & Kathleen Maguire eds., 2003) [hereinafter SOURCEBOOK 2003], available at

http://www.albany.edu/sourcebook/pdf/t247.pdf.

See, e.g., Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703 (2005)

[hereinafter Luna, Overcriminalization].

See infra note 239 (referencing bills).

See National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 4712,

123 Stat. 2190, 2842-43 (2009) (to be codified at 18 U.S.C. § 1389) (setting mandatory minimum

for battery of a United States serviceman); see also infra note 68 (referencing bills that would

create additional mandatory minimums).

See, e.g., DOUGLAS E. BELOOF, PAUL G. CASSELL & STEVEN J. TWIST, VICTIMS IN

CRIMINAL PROCEDURE (2d ed. 2006); HUGO BEDAU & PAUL G. CASSELL, DEBATING THE

DEATH PENALTY: THE EXPERTS FROM BOTH SIDES MAKE THEIR CASE (2004); Paul G. Cassell,

The Guilty and the “Innocent”: An Examination of Alleged Cases of Wrongful Conviction from

False Confessions, 22 H

ARV. J.L. & PUB. POL’Y 523 (1999) [hereinafter Cassell, The Guilty and

the “Innocent”]; Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year

Perspective on Miranda’s Effects on Law Enforcement, 50 S

TAN. L. REV. 1055 (1998); Paul G.

Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects

of Miranda, 43 UCLA

L. REV. 839 (1996); Stephen J. Markman & Paul G. Cassell, Protecting

the Innocent: A Response to the Bedau-Radelet Study, 41 S

TAN. L. REV. 121 (1988); see also

Dickerson v. United States, 530 U.S. 428, 441 n.7 (2000) (noting the Court’s invitation to Cassell

to argue against the Miranda rule).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

8 CARDOZO LAW REVIEW [Vol. 32:1

the federal system).

If we could find common ground on ways to

modify federal mandatory minimums, we hoped that policymakers

might share this agreement, perhaps sowing the seeds of further

reforms. Whether or not modest congressional action spurs greater

feats, however, our proposal is far from death defying. It is instead a

fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of

mandatory minimum sentencing, including arguments for and against

mandatory minimums and an analysis of their enactment in the federal

system. Part II considers the resilience of mandatory minimums from a

behavioral science perspective and then sketches a potential process of

reform in light of the relevant phenomena. Part III discusses the

concept of minimalism in philosophy and legal theory, proposing the

idea of “political minimalism” as a justification for reform efforts that

seeks consensus on basic principles accompanied by small legislative

steps. Part IV provides specific changes to federal law consistent with a

minimalist approach to statutory modification. Finally, Part V offers

some suggestions for further reforms, with the hope of inspiring

dialogue on the propriety of legislatively compelled, judicially

unavoidable punishment.

SOME BACKGROUND ON MANDATORY MINIMUMS

Enacted by statute, mandatory minimums set the lower limits for

sentencing particular offenses and particular offenders. If a defendant is

convicted of a given crime or has a certain criminal history—typically

measured by objective criteria (e.g., the quantity of drugs possessed or

the number of prior felony convictions)—then he must be sentenced to

at least the legislatively prescribed prison term.

Some of the best

examples in the federal system involve drug-related crimes. If a

defendant possessed and intended to distribute 500 grams of

See, e.g., Erik Luna & Marianne Wade, Prosecutors as Judges, 68 WASH. & LEE L. REV.

(forthcoming 2011); Erik Luna, Criminal Justice and the Public Imagination, 7 O

HIO ST. J. CRIM.

L. 71 (2009) [hereinafter Luna, Public Imagination]; Erik Luna, Drug Détente, 20 FED. SENT’G

REP. 304 (2008); Erik Luna, Traces of a Libertarian Theory of Punishment, 90 MARQUETTE L.

REV. 263 (2007); Erik Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 J.

CRIM. L. & CRIMINOLOGY 25 (2005) [hereinafter Luna, Gridland]; Erik Luna, System Failure, 42

M. CRIM. L. REV. 1201 (2005); Luna, Overcriminalization, supra note 25; Erik Luna, Race,

Crime, and Institutional Design, 65 L.

& CONTEMP. PROBS. 183 (2003) [hereinafter Luna,

Institutional Design]; Erik Luna, Drug Exceptionalism, 47 V

ILL. L. REV. 753 (2002); Erik Luna,

Principled Enforcement of Penal Codes, 4 B

UFF. CRIM. L. REV. 517 (2000) [hereinafter Luna,

Principled Enforcement]; Erik Luna, Transparent Policing, 85 I

OWA L. REV. 1107 (2000); see

also Erik Luna,

http://www.cato.org/people/erik-luna (last visited Aug. 31, 2010).

Mandatory minimums may also be triggered by victim characteristics, such as selling drugs

to someone under the age of eighteen. See 21 U.S.C. § 861 (2006).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 9

methamphetamine, he must be sentenced to at least 10 years

imprisonment.

As a general rule, mandatory minimum sentencing

schemes follow a type of austere syllogism, where a defendant found

guilty of X—the trigger, such as distributing a certain amount of

contraband or carrying a firearm during a drug transaction—must then

receive at least Y sentence (e.g., 5 years imprisonment).

Federal mandatory minimums have existed throughout the nation’s

history, stretching back to 1790 with the enactment of life sentences for

murder and piracy, and a 10-year minimum prison term for causing a

ship to run aground by using a false light.

Since then, Congress has

continued to add fixed sentencing floors to federal law, with dozens of

such provisions in effect today.

Due to the number of mandatory

minimums in the U.S. Code, a broad array of conduct might be eligible

for inexorable levels of punishment. Nonetheless, most federal cases

carrying mandatory minimums involve drugs, guns, or both—with, for

instance, nearly two-thirds of all drug sentences subject to mandatory

minimums.

A. Basic Arguments

Mandatory minimum sentencing schemes have been the focus of

relatively straightforward arguments—both on their behalf

and in

See id. § 844(b)(1)(A)(viii).

See, e.g., 18 U.S.C. § 924(c)(1)(A)(i) (2006).

See id. § 1111 (murder); id. §§ 1651-1653, 1655 (piracy); id. § 1658 (false light); see also

U.S.

SENTENCING COMM’N, SPECIAL REPORT TO THE CONGRESS: MANDATORY MINIMUM

PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 6-11 (1991) [hereinafter SPECIAL

REPORT], available at http://www.ussc.gov/r_congress/MANMIN.PDF (providing history of

federal mandatory minimums).

See Federal Mandatory Minimum Statutes, FAMILIES AGAINST MANDATORY MINIMUMS

(Feb. 23, 2010), http://www.famm.org/Repository/Files/FEDERAL%20MANDATORY%20

MINIMUMS%202.23.10.doc; S

PECIAL REPORT, supra note 33, at app. A (listing statutory

provisions requiring mandatory minimum terms of imprisonment).

See, e.g., Mandatory Minimums Hearing, supra note 2, at 124-55 [hereinafter Statistical

Overview], available at http://judiciary.house.gov/hearings/printers/111th/111-48_51013.pdf

(statistical overview report from the U.S. Sentencing Commission).

See, e.g., Maxwell V. Jackson, Chief of Police, Harrisville City, Utah, Testimony at Public

Hearing Before the U.S. Sentencing Commission (May 27, 2010) (transcript available at

http://www.ussc.gov/AGENDAS/20100527/Testimony_Jackson.pdf); David Hiller, Nat’l Vice

President, Grand Lodge, Fraternal Order of Police, Testimony at Public Hearing Before the U.S.

Sentencing Commission (May 27, 2010) (transcript available at http://www.ussc.gov/

AGENDAS/20100527/Testimony_Hiller_FOP.pdf); Mandatory Minimums Hearing, supra note

2, at 71-78 (statement of Michael J. Sullivan, Partner, Ashcroft Sullivan, LLC), available at 2009

WLNR 13385871; Mandatory Minimum Sentencing Laws–The Issues: Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th

Cong. 104 (2007) (statement of Richard B. Roper, U.S. Att’y, N. Dist. of Tex.), reprinted in 19

ED. SENT’G REP. 352 (2007) [hereinafter Roper Statement]; Jay Apperson, The Lock-‘em-Up

Debate; What Prosecutors Know: Mandatory Minimums Work, W

ASH. POST, Feb. 27, 1994, at

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10 CARDOZO LAW REVIEW [Vol. 32:1

favor of their repeal.

The following provides some of the more

frequent claims that have been made over the years.

1. For Mandatory Minimums

Proponents of mandatory minimums point to the problems raised

by the former federal sentencing system, which professionals and

politicians of all political stripes described as “lawless”

and a major

source of public cynicism. Historically speaking, federal trial judges

had unguided discretion in determining sentences within broad statutory

ranges. This discretion purportedly generated intolerable (even

C1; Michael M. Baylson, Mandatory Minimum Sentences: A Federal Prosecutor’s Viewpoint, 40

ED. B. NEWS & J. 167 (1993); Robert S. Mueller, III, Mandatory Minimum Sentencing, 4 FED.

SENT’G REP. 230 (1992); cf. Debate: Mandatory Minimums in Drug Sentencing: A Valuable

Weapon in the War on Drugs or a Handcuff on Judicial Discretion?, 36 A

M. CRIM. L. REV. 1279

(1999) (debate between Rep. Asa Hutchinson and U.S. District Court Judge Stanley Sporkin);

PECIAL REPORT, supra note 33, at 13-14 (listing purported goals of mandatory minimums);

supra notes 18-20 and accompanying text.

See, e.g., Michael Nachmanoff, Fed. Pub. Defender, E. Dist. of Va., Testimony at Public

Hearing Before the U.S. Sentencing Commission (May 27, 2010) [hereinafter Nachmanoff

Testimony] (transcript available at http://www.ussc.gov/AGENDAS/20100527/Testimony_

Nachmanoff.pdf); Cynthia Hujar Orr, President, Nat’l Ass’n of Criminal Def. Lawyers,

Testimony at Public Hearing Before the U.S. Sentencing Commission (May 27, 2010) (transcript

available at http://www.ussc.gov/AGENDAS/20100527/Testimony_Hujar_Orr_NACDL.pdf);

Stephen A. Saltzburg, Professor of Law, George Washington Univ. Sch. of Law, Testimony at

Public Hearing Before the U.S. Sentencing Commission (May 27, 2010) [hereinafter Saltzburg

Testimony] (transcript available at http://www.ussc.gov/AGENDAS/20100527/Testimony_

Saltzburg.pdf); Stephen J. Schulhofer, Professor of Law, N.Y. Univ. Sch. of Law, Testimony at

Public Hearing Before the U.S. Sentencing Commission (May 27, 2010) [hereinafter Schulhofer

Testimony] (transcript available at http://www.ussc.gov/AGENDAS/20100527/Testimony_

Schulhofer.pdf); Erik Luna, Testimony at Public Hearing Before the U.S. Sentencing

Commission (May 27, 2010) [hereinafter Luna Testimony] (transcript available at

http://www.ussc.gov/AGENDAS/20100527/Testimony_Luna.pdf); Marc Mauer, Exec. Dir., The

Sentencing Project, Testimony at Public Hearing Before the U.S. Sentencing Commission (May

27, 2010) [hereinafter Mauer Testimony] (transcript available at http://www.ussc.gov/

AGENDAS/20100527/Testimony_Mauer_Sentencing_Project.pdf); Julie Stewart, President,

Families Against Mandatory Minimums, Testimony at Public Hearing Before the U.S. Sentencing

Commission (May 27, 2010) (transcript available at http://www.ussc.gov/AGENDAS/20100527/

Testimony_Stewart.pdf); Jay Rorty, Dir. of the Drug Law Reform Project, Am. Civil Liberties

Union, Testimony at Public Hearing Before the U.S. Sentencing Commission (May 27, 2010)

(transcript available at http://www.ussc.gov/AGENDAS/20100527/Testimony_Rorty.pdf);

Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of

Consistent Findings, 38 C

RIME & JUST. 65 (2009); Symposium, Mandatory Minimums and the

Curtailment of Judicial Discretion: Does the Time Fit the Crime?, 18 N

OTRE DAME J.L. ETHICS

& PUB. POL’Y 303 (2004); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the

Effectiveness of Determinate Sentencing Reform, 81 C

AL. L. REV. 61 (1993); Hatch, supra note 4;

Henry Scott Wallace, Mandatory Minimums and the Betrayal of Sentencing Reform, 40 F

ED. B.

NEWS & J. 158, 161 (1993); SPECIAL REPORT, supra note 33; see also supra notes 1-17; infra

notes 70-74 and accompanying text.

See, e.g., MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973);

Marvin E. Frankel, Lawlessness in Sentencing, 41 U.

CIN. L. REV. 1 (1972).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 11

unconstitutional) disparities among defendants, with sentences turning

on the temperament of a given judge or irrelevant factors like race and

class. Mandatory minimums help eliminate these inequalities,

proponents argue, by providing uniformity and fairness for defendants,

certainty and predictability of outcomes, and a higher level of truth and

integrity in sentencing.

Mandatory minimums allegedly serve the theoretical goals of

punishment as well, guaranteeing that criminals receive the punishment

they deserve (i.e., retribution) and are effectively deterred and

incapacitated.

According to proponents, the ostensible subjects of

mandatory minimums—high-level offenders who perpetrate violent and

serious crimes—can only be assured of receiving their just deserts

through long, compulsory sentences. Taking into consideration ordinal

and cardinal scaling of punishment in America, few retributivists would

balk at a life sentence for a serial murderer, for instance, and most

mandatory minimums imposed for serious crimes of violence (e.g.,

forcible rape) will fall within the rough boundaries of deserved

punishment. Without mandatory minimums, proponents thus claim,

judges might issue undeservedly lenient sentences for these violent

offenders.

With respect to deterrence, mandatory minimum sentences are

sometimes justified as sending an unmistakable message to criminals.

The certain, predictable, and harsh sentences forewarn offenders of the

consequences of their behavior upon apprehension and conviction.

Many mandatory minimums employ clear, often formulaic terms,

giving them a bumper-sticker quality. “Use a gun, go to jail” is a

classic example,

with the requisite punishment aimed at discouraging

the convicted offender from ever using a firearm again (specific

deterrence), as well as dissuading other people from committing gun-

related crimes in the first place (general deterrence).

Proponents contend that mandatory minimums also incapacitate

the most incorrigible criminals, particularly those with long rap sheets

and no apparent hope of rehabilitation.

Anti-recidivist provisions,

such as “three strikes” laws in various states, fall within this category.

In California, an individual previously convicted of two serious or

violent felonies who then commits another felony is literally

For overviews of major punishment theories and criticisms, see JOHN KAPLAN, ROBERT

WEISBERG & GUYORA BINDER, CRIMINAL LAW: CASES AND MATERIALS 29-75 (6th ed. 2008);

Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice,

2003 U

TAH L. REV. 205, 207-42 (2003) [hereinafter Luna, Punishment Theory].

See, e.g., CAL. PENAL CODE § 1203.06 (West 2010).

As far as we know, no plausible argument has been made that mandatory sentencing serves

rehabilitation, the other major utilitarian goal of punishment.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

12 CARDOZO LAW REVIEW [Vol. 32:1

incapacitated,

often put behind bars for the rest of his life and thereby

prevented from committing crimes against the law-abiding public.

Another plausible argument for mandatory minimums is their

ability to induce guilty pleas and cooperation. The threat of long,

obligatory sentences tends to encourage plea bargaining, which, if

successful, averts the substantial costs associated with trial. In fact,

ninety-five percent of all federal prosecutions terminate by guilty plea,

with mandatory minimum sentences helping to keep that figure

extremely high. Moreover, the possibility of a long sentence provides a

powerful incentive for members of a criminal group to provide

information to law enforcement and to assist in the prosecution of other

offenders. Low-level participants can avoid mandatory minimums by

fingering bigger players,

allowing prosecutors to move up the chain of

command.

Some organized criminal enterprises may be impossible to unravel

and eventually put out of business, supporters argue, unless the

government has the leverage provided by severe punishment. Mob

prosecutions provide a standard example, where much information and

trial evidence might be unattainable without the stick of long sentences

(and the carrot of immunity grants). The same obstacles may apply in

other forms of concerted criminality, from violent street gangs to

sophisticated white-collar offenders. Aside from its pragmatic benefits,

a defendant might earn a form of moral credit through his willingness to

cooperate with law enforcement. The provision of information and the

acceptance of responsibility may demonstrate genuine remorsefulness

on the part of the offender and a willingness to help redress the harm

that he may have caused.

Finally, prosecutors can temper mandatory minimums through the

sound exercise of discretion, foregoing charges that would produce

excessive punishment. According to supporters, federal law

enforcement focuses on sophisticated, violent, long-term conspiracies,

sometimes with international dimensions, meaning that the recipients of

mandatory minimum sentences will be major players in such schemes

or serious recidivists who use deadly weapons to further their illegal

aims. Harsh federal sentences also complement state criminal justice

systems, proponents claim, providing a backstop of sorts in cases of

concurrent jurisdiction. When an offender would get off easily under a

See CAL. PENAL CODE §§ 667(e)(2), 1170(c).

See U.S. SENTENCING COMM’N, 2008 ANNUAL REPORT fig.C (2008) [hereinafter 2008

NNUAL REPORT], available at http://www.ussc.gov/ANNRPT/2008/FigC.pdf.

See, e.g., infra note 72.

See infra text accompanying note 373 (mentioning moral relevance of defendant’s

assistance).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 13

state regime, federal prosecutors can employ mandatory minimums to

ensure an appropriate sentence.

2. Against Mandatory Minimums

Opponents of mandatory minimums sometimes challenge the

image of vast disparity in punishment prior to the enactment of

determinate sentencing in the federal system.

Even accepting the

historical accuracy of the conventional narrative, however, mandatory

minimums may have done little to eliminate punishment discrepancies

among similarly situated defendants. Inconsistent application of

mandatory minimums has only exacerbated disparities, opponents

argue, expanding the sentencing differentials in analogous cases.

According to most critics, the source of this problem is manifest:

Mandatory minimums effectively transfer sentencing authority from

trial judges to federal prosecutors, who may pre-set punishment through

creative investigative and charging practices, producing troubling

punishment differentials among offenders with similar culpability.

Mandatory minimums may also conflict with the notion that a

judge should ensure that the punishment fits the crime and the criminal,

a precept “deeply rooted and frequently repeated in common-law

jurisprudence.”

They eliminate judicial discretion to impose a prison

term lower than the statutory floor, making case-specific information

about the offense and offender irrelevant, at least to the extent that these

facts might call for a below-minimum sentence. For this reason,

opponents believe it is far from obvious that mandatory minimums

ensure an offender receives his “just deserts” or any other retributive

formulation. All theories of retribution require that the punishment be

proportionate to the gravity of the offense, and any decent retributive

theory demands an upper sentencing limit.

Mandatory minimums are

indifferent to proportionality concerns, however, and can pierce

retributive boundaries with preordained punishment.

They may not fulfill consequentialist goals either, opponents

continue, rejecting the idea that mandatory sentences provide

meaningful deterrence or incapacitation.

Clarity and certainty of

punishment are not synonymous with deterrence, which requires that a

defendant not only know the rule, but also believe that the costs

See infra note 70 and accompanying text.

See supra note 37 and accompanying text; infra note 70 and accompanying text.

Solem v. Helm, 463 U.S. 277, 284-85 (1983).

See generally ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE

SENTENCING: EXPLORING THE PRINCIPLES (2005); see also JOSHUA DRESSLER,

UNDERSTANDING CRIMINAL LAW 52-54 (5th ed. 2005).

See infra note 71 and accompanying text.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

14 CARDOZO LAW REVIEW [Vol. 32:1

outweigh the benefits from violating the law and then apply this

understanding to decision-making at the time of the crime. As

opponents note, however, most offenders neither perceive this balance

of costs and benefits nor follow the rational actor model.

Incapacitation is only effective if: (1) the imprisoned person would

otherwise be committing crime, and (2) he is not replaced by others.

Mandatory minimums prove problematic on both criteria, opponents

contend. Offenders typically age out of the criminal lifestyle, with long

sentences requiring the continued incarceration of individuals who

present little danger of further crimes.

Moreover, certain offenses

subject to mandatory minimums can draw upon a large supply of

potential participants; with drug organizations, for example, an arrested

dealer or courier is quickly replaced by another.

Aside from the goals of punishment, there is a genuine question as

to the propriety of extracting information and guilty pleas through the

threat of mandatory minimums. Opponents claim that such practices

impose a “trial tax” on defendants who exercise their constitutional

rights to trial by jury, proof beyond a reasonable doubt, and other trial-

related guarantees—the tax being the mandatory minimum sentence that

otherwise would not have been imposed.

Sometimes maximum

leverage is obtained through a process known as “charge stacking” (or

“count stacking”), whereby the government divides up a single criminal

episode into multiple crimes, each carrying its own mandatory sentence

that can then be stacked, one on top of the other, to produce heavier

punishment.

This practice seems particularly troubling when the government

procures further crimes through its own actions, as when law

enforcement arranges a number of controlled drug buys in order to

For discussions on the irrationality and myopic behavior of criminals, see, for example,

David S. Lee & Justin McCrary, Crime, Punishment, and Myopia (Nat’l Bureau of Econ.

Research, Working Paper No. 11491, 2005); Paul H. Robinson & John M. Darley, The Role of

Deterrence in the Formulation of Criminal Law Rules: At its Worst When Doing its Best, 91 G

EO.

L.J. 949, 953 (2003); A. Mitchell Polinsky & Steven Shavell, On the Disutility and Discounting

of Imprisonment and the Theory of Deterrence, 28 J.

LEGAL STUD. 1, 4-7 (1999).

See, e.g., David P. Farrington, Age and Crime, 7 CRIME & JUST. 189 (1986); Travis Hirschi

& Michael Gottfredson, Age and the Explanation of Crime, 89 A

M. J. SOC. 552 (1983). It has

also been argued that prisons serve as “colleges for criminals,” where offenders learn new anti-

social skills, for instance, and come out more likely to recidivate. See, e.g., Luna, Punishment

Theory, supra note 39, at 220.

See, e.g., Alfred Blumstein & Allen J. Beck, Population Growth in U.S. Prisons, 1980-

1996, 26 C

RIME & JUST. 17, 57 (1999). Moreover, arguments for incapacitation inevitably

disregard crime committed in correctional facilities.

See infra note 119 and accompanying text.

See, e.g., Luna, Overcriminalization, supra note 25, at 723-24; William J. Stuntz, The

Pathological Politics of Criminal Law, 100 M

ICH. L. REV. 505, 519-20 (2001) [hereinafter

Stuntz, Pathological Politics].

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 15

achieve a lengthy sentence.

In multi-defendant cases, there is also an

issue of fairness when disparate punishment is the result of a “race to

the prosecutor’s office,” with the defendant who pleads first—

sometimes the one who has the savviest or most experienced defense

counsel—avoiding a long mandatory sentence.

Reasonable opponents do not doubt that federal law enforcement is

well intentioned in most cases. However, they believe it is naïve to

assume that prosecutorial discretion will prevent the misuse of

mandatory minimums, with experience showing that governmental

good faith will not always suffice. Although serious and violent

offenders may have inspired some mandatory minimums, the statutes

themselves are not tailored to these criminals alone and instead act as

grants of power to federal prosecutors to apply the laws as they see fit,

even to minor participants in non-violent offenses.

Opponents

emphasize that prosecutors are influenced by the ordinary human

motivations that may at times cause a loss of perspective—path

dependence, career advancement, immodesty, and occasional

vindictiveness

—leading to the misapplication of mandatory

minimums.

To check potential abuses of executive power, American law has

historically entrusted the courts with certain fundamental criminal

justice decisions.

Among the issues properly assigned to the

judiciary, opponents argue, is the appropriate sentence for a given

offender. Under the current regime, however, no viable judicial check

prevents the misapplication of mandatory minimums, which leads to

several unsettling consequences. For instance, mandatory schemes can

have a “tariff” effect, where some basic fact triggers the same minimum

sentence regardless of whether the defendant was a low-level drug

courier or instead a narcotics kingpin.

Opponents claim that the tariffs

are often levied on the least culpable members in a criminal episode.

Unlike those in leadership positions, low-level offenders often lack the

type of valuable information that can be used as a bargaining chip with

prosecutors.

In addition, mandatory minimums can have a “cliff” effect,

drawing seemingly trivial lines with huge consequences. The most

striking examples often involve illegal drugs, where offenders face

steep cliffs at quantity cutoffs. Someone caught with, say, 0.9 grams of

LSD might receive a relatively short sentence—but add on a fraction of

a gram and a half-decade in federal prison necessarily follows, with the

See, e.g., United States v. Angelos, 345 F. Supp. 2d 1227, 1253 (D. Utah 2004).

See, e.g., Stuntz, supra note 55, at 549.

See infra note 115 and accompanying text.

See infra notes 203, 218 and accompanying text.

See, e.g., United States v. Brigham, 977 F.2d 317 (7th Cir. 1992).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

16 CARDOZO LAW REVIEW [Vol. 32:1

defendant falling off the metaphorical cliff.

Moreover, the mechanical

nature of mandatory minimums can entangle all criminal justice actors

in an oxymoronic process where facts are negotiable, from the amount

of drugs to the existence of a gun. The participants figuratively

“swallow the gun” in order to avoid a factual record that would require

a mandatory sentence.

Opponents might level two final objections against mandatory

minimums, one skeptical of federal criminal justice and the other

supportive of the national system. The former is concerned with federal

encroachment on state prerogatives and the implementation of policies

that appear to conflict with local choices. Most drug and weapons

crimes amenable to federal mandatory minimums are actually

prosecuted in state courts pursuant to state laws carrying much lower

sentences.

It is hardly disputed, however, that the possibility of severe

punishment can influence the choice of whether to pursue a federal or

state prosecution. For some, this prospect raises serious questions about

the propriety of bringing charges in federal rather than state court,

particularly where the prosecution is pursued, not because the case

implicates a special national interest, but because it jacks up the

potential punishment.

Those who believe in broad federal powers may resist mandatory

minimums for a different reason—the distortive impact on a system of

federal sentencing guidelines that they see as finely tuned. Justice

Breyer, a former U.S. Sentencing Commissioner, has raised objections

on this precise ground, arguing that mandatory minimums thwart the

Commission in its fundamental duty: “the development, in part through

research, of a rational, coherent set of punishments.”

Mandatory

minimums can preclude the Commission from calibrating sentences

based on normatively or empirically relevant factors, such as the

defendant’s role or culpability for a crime. All offenders thus receive

the same minimum sentence once the basic statutory predicates are met,

regardless of very real and morally significant differences. Opponents

also point out that mandatory minimums distort sentences for entire

classes of crimes.

Given that the Commission seeks continuity and

See 21 U.S.C. § 841(b)(1)(B)(v) (2006).

See infra note 302 and accompanying text.

See, e.g., SOURCEBOOK ONLINE, supra note 24, at tbls. 5.17.2004, 5.38.2008, 5.44.2004,

http://www.albany.edu/sourcebook/tost_5.html; United States v. Snyder, 954 F. Supp. 19 (D.

Mass. 1997); Wallace, supra note 37.

Breyer, supra note 1; Hatch, supra note 4, at 194.

For example, the “penalty gap” between fraud and drug cases was used to pressure the

Commission to amend U.S. Sentencing Guideline § 2B1.1. Although major corporate scandals

provided the impetus for change, the resulting increase in sentences for all fraud offenders had the

effect of limiting or precluding non-prison alternatives for many low-level offenders. See Frank

O. Bowman, III, Pour Encourager Les Autres? The Curious History and Distressing Implications

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 17

consistency among similar offenses, a mandatory minimum for one

crime may generate a type of sentencing inflation, skewing punishment

upward for all related crimes.

B. The Rise and Persistence of Mandatory Minimums

The two of us often disagree on criminal justice issues. As

mentioned earlier, one of us (Luna) is suspicious of government activity

on principle and especially concerned about abuses of power in the

criminal justice system, while the other (Cassell) tends to have more

favorable views of law enforcement and is most concerned about the

rights of crime victims. But we both agree that mandatory minimums

can produce patently unjustifiable sentences and that some type of

safeguard is necessary for such cases.

We are not alone. The need for reform has long been recognized

by practitioners, researchers, public interest groups, and prominent legal

organizations like the American Bar Association and the American Law

Institute.

The growing opposition to mandatory minimums goes

beyond the usual suspects (e.g., judges, legal scholars, criminal

defenders, and civil liberties groups) and includes conservative

commentators, politicians, and the general public. This developing

consensus and loose political coalition would seem to portend

significant reforms, presumably by Congress explicitly repealing some

or all mandatory minimum sentences currently on the books.

Until recently, however, Congress had retained all mandatory

minimum laws it had passed since 1970. In fact, mandatory sentencing

remained politically popular well into the new millennium. “Every

Administration and each Congress on a bipartisan basis has . . .

supported mandatory minimum sentencing statutes for the most serious

of offenses,” a U.S. Attorney noted in 2007,

a position that continues

to this day. Despite rising opposition to unduly severe punishment and

inflexible sentencing regimes—epitomized by the passage of the new

crack cocaine law—all federal mandatory minimums (save one) still

of the Criminal Provisions of the Sarbanes-Oxley Act and the Sentencing Guidelines Amendments

That Followed, 1 O

HIO ST. J. CRIM. L. 373, 387-435 (2004).

See, e.g., James E. Felman, Am. Bar Ass’n, Testimony at Public Hearing Before the U.S.

Sentencing Commission (May 27, 2010) (transcript available at http://www.ussc.gov/AGENDAS

/20100527/Testimony_Felman_ABA.pdf); Tonry, supra note 37, at 65-66; see also Thomas W.

Hillier, II, Member, Sentencing Initiative Blue Ribbon Comm., The Constitution Project,

Testimony at Public Hearing Before the U.S. Sentencing Commission (May 27, 2010) (transcript

available at http://www.ussc.gov/AGENDAS/20100527/Testimony_Hillier.pdf); Jeffrey B.

Steinback, Practitioner’s Advisory Grp., Testimony at Public Hearing Before the U.S. Sentencing

Commission (May 27, 2010) [hereinafter Steinback Testimony] (transcript available at

http://www.ussc.gov/AGENDAS/20100527/Testimony_Steinback_PAG.pdf).

Roper Statement, supra note 36, at 352.

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18 CARDOZO LAW REVIEW [Vol. 32:1

exist and are likely to stay on the books, we suspect, at least for the near

term. Last year, for instance, several bills would have created

additional mandatory minimums,

demonstrating that the political

penchant for strict punishment remains in effect.

1. Dissonance of Mandatory Minimums

Michael Tonry recently wrote that “[t]he greatest gap between

knowledge and policy in American sentencing concerns mandatory

penalties.”

So what accounts for this dissonance? For the most part,

existing research tends to undercut the principal arguments supporting

mandatory minimums, namely, that they serve the goals of punishment,

prevent sentencing disparities among defendants, and are necessary for

law enforcement to obtain cooperation from offenders.

For example, a number of studies suggest that the use of federal

mandatory minimums has tended to generate disparate sentences among

similarly situated offenders.

The claim of crime reduction has been

See, e.g., Powder-Crack Cocaine Penalty Equalization Act of 2009, H.R. 18, 111th Cong.

(2009); Illegal Immigration Enforcement and Social Security Protection Act of 2009, H.R. 98,

111th Cong. (2009); Respect for the Law Act of 2009, H.R. 128, 111th Cong. (2009); Internet

Stopping Adults Facilitating the Exploitation of Today’s Youth Act of 2009, H.R. 1076, 111th

Cong. (2009) (same as S. 436, 111th Cong. (2009)).

Tonry, supra note 37, at 65.

See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO-04-105, FEDERAL DRUG OFFENSES:

DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORY MINIMUM SENTENCES, FISCAL

YEARS 1999-2001 (2003), available at http://www.gao.gov/new.items/d04105.pdf; Stephen

Schulhofer & Ilene Nagel, Plea Negotiations Under the Federal Sentencing Guidelines:

Guideline Circumvention and its Dynamics in the Post-Mistretta Era, 91 N

W. U. L. REV. 1284

(1997); B

ARBARA S. VINCENT & PAUL J. HOFER, FED. JUDICIAL CTR., THE CONSEQUENCES OF

MANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS (1994); Mandatory

Minimum Sentences: Are They Being Imposed and Who is Receiving Them?: Hearing Before the

Subcomm. on Crime and Criminal Justice of the H. Comm. on the Judiciary, 103rd Cong. (1993)

(statement of Henry R. Wray, Director, Administration of Justice Issues, General Accounting

Office), available at http://archive.gao.gov/d45t15/149743.pdf; Ilene H. Nagel & Stephen J.

Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices

under the Federal Sentencing Guidelines, 66 S.

CAL. L. REV. 501 (1992); BARBARA S.

MEIERHOEFER, FED. JUDICIAL CTR., THE GENERAL EFFECT OF MANDATORY MINIMUM PRISON

TERMS: A LONGITUDINAL STUDY OF FEDERAL SENTENCES IMPOSED (1992), available at

http://www.fjc.gov/public/pdf.nsf/lookup/geneffmm.pdf/$file/geneffmm.pdf; S

PECIAL REPORT,

supra note 33, at 47-52; Statistical Overview, supra note 35, at 2-4.

Particularly disturbing is the appearance, if not reality, of disparities along racial or ethnic

lines. See, e.g., id. In a report by NYU’s Brennan Center for Justice, a former U.S. Attorney

recounted the following story:

I had an [Assistant U.S. Attorney (AUSA) who] wanted to drop the gun charge against

the defendant [in a case in which] there were no extenuating circumstances. I asked,

“Why do you want to drop the gun offense?” and he said, “He is a rural guy who grew

up on a farm. The gun he had with him was a rifle. He is a good ol’ boy, and all the

good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.” But he

[was] a gun-toting drug dealer, exactly.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 19

contested as well, with most researchers finding no deterrent effect from

mandatory sentencing laws.

The statistics also seem to belie

categorical assertions of government necessity. The rate of cooperation

(or “substantial assistance”)

in mandatory minimum cases is

comparable to the average in all federal cases,

while most recipients

BRENNAN CENTER FOR JUSTICE, RACIAL DISPARITIES IN FEDERAL PROSECUTIONS 11 (2010)

(alterations in original), available at http://www.brennancenter.org/page/-/Justice/Prosecutorial

Discretion_report.pdf. In that case, “the question of whether to dismiss a gun charge carrying a

statutory mandatory minimum sentence turned on the prosecutor’s perception of the defendant’s

culpability, which was in turn informed in part by race.” Id. Of course, there may be a

correlation without causation; in other words, the disproportionate impact of mandatory

minimums on minorities may be based on any number of factors other than race or ethnicity.

Nonetheless, a relationship has emerged between mandatory punishments and people of color,

which can have a profoundly harmful meaning and effect regardless of causation. See, e.g., Luna,

Institutional Design, supra note 29, at 183-87.

It might also be noted that some works have challenged the assumption that the previous

federal sentencing regime was rife with disparity. See, e.g., D

OUGLAS C. MCDONALD &

KENNETH E. CARLSON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SENTENCING

IN THE

FEDERAL COURTS: DOES RACE MATTER? THE TRANSITION TO SENTENCING GUIDELINES,

1986-90 (1993); KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING

GUIDELINES IN THE FEDERAL COURTS 104-42 (1998). Moreover, there is a lively empirical

debate as to whether the guidelines have reduced sentencing differentials. Compare U.S.

SENTENCING COMM’N, DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES: AN

UPDATE OF THE BOOKER REPORT’S MULTIVARIATE ANALYSIS (2010) [hereinafter

EMOGRAPHIC DIFFERENCES], available at http://www.ussc.gov/general/Multivariate_

Regression_Analysis_Report_1.pdf, and Ryan W. Scott, The Effects of Booker on Inter-Judge

Sentencing Disparity, 22 F

ED. SENT’G REP. 104 (2009) [hereinafter Scott, The Effects of Booker],

with Jeffrey T. Ulmer et al., Does Increased Judicial Discretion Lead to Increased Disparity? The

“Liberation” of Judicial Sentencing Discretion in the Wake of the Booker/Fanfan Decision (Mar.

23, 2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract

_id=1577238.

See, e.g., JONATHAN P. CAULKINS ET AL., MANDATORY MINIMUM DRUG SENTENCES:

THROWING AWAY THE KEY OR THE TAXPAYER’S MONEY? (1997); VINCENT & HOFER, supra

note 70, at 11-16; S

PECIAL REPORT, supra note 33; Tonry, supra note 37, at 90-100; see also

NDERSTANDING AND PREVENTING VIOLENCE 6-7 (Albert J. Reiss, Jr. & Jeffrey A. Roth eds.,

1993). To be clear, we are making a limited point here about the lack of unique deterrence from

mandatory minimum sentences, not from criminal penalties generally. Cf. Paul G. Cassell, In

Defense of the Death Penalty, in B

EDAU & CASSELL, supra note 28, at 189-200 (discussing

evidence supporting a deterrent effect from capital sentences).

See 18 U.S.C. § 3553(e) (2006):

Upon motion of the Government, the court shall have the authority to impose a

sentence below a level established by statute as a minimum sentence so as to reflect a

defendant’s substantial assistance in the investigation or prosecution of another person

who has committed an offense.

See also U.S.

SENTENCING GUIDELINES MANUAL § 5K1.1 (2010).

See Statistical Overview, supra note 35, at 131-32 (stating that 19.5% of federal defendants

subject to mandatory minimums were eligible for substantial assistance departures due to a

government motion, with 13.8% receiving the departure); U.S.

SENTENCING COMM’N, 2008

SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl.27 [hereinafter 2008 SOURCEBOOK]

(reporting that 13.5% of all federal defendants received a substantial assistance departure). In

drug trafficking cases, where mandatory minimums are widely available, substantial assistance

departures were granted in 25.9% of cases in 2008. The rate was comparable or even higher,

however, in many types of cases without mandatory minimums: 79.2% in antitrust cases, 20% in

arson cases, 28% in bribery cases, 26.1% in civil rights cases, 28.6% in kidnapping cases, 25.9%

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

20 CARDOZO LAW REVIEW [Vol. 32:1

of federal drug minimums are couriers, mules, and street-level dealers,

not kingpins or leaders in international drug cartels.

Despite this and other evidence, federal lawmakers—even those

who might like to eliminate some or all mandatory sentencing laws—

face a seemingly intractable problem in American democracy: the

dysfunctional relationship of politics and criminal justice. Some have

argued that Congress suffers from a sort of legislative schizophrenia on

sentencing reform. “One side is dispassionate and learned, deliberating

for decades in search of a rational, comprehensive solution. The other

is impulsive, reckless, driven by unquenchable political passions, and

impatient with its plodding alter-ego.”

When it comes to mandatory

minimums, federal lawmakers can both recognize their flaws and still

vote in their favor.

2. Over-Criminalization

As a conceptual matter, congressional support for mandatory

minimums can be viewed as a troubling instance of a larger trend: over-

criminalization and, more specifically, over-federalization. Over-

criminalization refers to the continual expansion of criminal justice

systems, through the creation of novel crimes, harsher punishments,

broader culpability principles, and heightened enforcement, often in the

absence of moral or empirical justification and without regard for

statutory redundancy or jurisdictional limitations.

For decades, scholars have discussed the phenomenon and its

negative consequences, such as the greater potential for arbitrary

enforcement by police and prosecutors. In his 1967 critique, Sanford

Kadish warned that until over-criminalization is “systematically

examined and effectively dealt with, some of the most besetting

problems of criminal-law administration are bound to continue.”

in money laundering cases, 25.7% in racketeering/extortion cases, and 19.9% in tax cases. Id.;

see also Nachmanoff Testimony, supra note 37, at 15.

See, e.g., U.S. SENTENCING COMM’N, SPECIAL REPORT TO THE CONGRESS: COCAINE AND

FEDERAL SENTENCING POLICY 20-21, 85 (2007) [hereinafter COCAINE AND FEDERAL

SENTENCING], available at http://www.ussc.gov/r_congress/cocaine2007.pdf. Moreover, it has

been suggested that mandatory minimums may be counterproductive by producing a “cooperation

backlash,” where people may be less likely to report suspicious behavior or cooperate with law

enforcement out of concern that their neighbors may receive excessive punishment as a result.

See Schulhofer Testimony, supra note 37, at 16-18; see also infra notes 304-305 and

accompanying text.

Wallace, supra note 37, at 158.

See, e.g., Hatch, supra note 4, at 193.

See generally Luna, Overcriminalization, supra note 25.

Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. &

SOC. SCI. 157 (1967); see also Sanford H. Kadish, Some Observations on the Use of Criminal

Sanctions in Enforcing Economic Regulations, 30 U.

CHI. L. REV. 423 (1963).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 21

the ensuing years, lawmakers have relentlessly added to American penal

codes, in the face of equally relentless criticisms by scholars and public

interest groups.

Much of this expansion has taken place at the state level,

but

arguably the most virulent form of over-criminalization—and certainly

the most criticized

—is in the federal system. Congress has slowly but

surely obtained a general police power to enact virtually any offense,

adopted repetitive and overlapping statutes, criminalized behavior that

is already well covered by state law,

created a vast web of regulatory

offenses,

and extended federal jurisdiction to almost any sort of

deception

or wrongdoing,

virtually anywhere in the world.

At last

count, there were about 4500 federal crimes on the books,

with the

largest portion enacted over the past four decades.

See, e.g., Luna, Overcriminalization, supra note 25, at 703-11, 712 nn.48-51.

See, e.g., Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of

American Criminal Codes, 56 H

ASTINGS L.J. 633 (2005). But see, e.g., Darryl K. Brown,

Democracy and Decriminalization, 86 T

EX. L. REV. 223 (2007).

See, e.g., ABA CRIMINAL JUSTICE SECTION, REPORT OF THE ABA TASK FORCE ON THE

FEDERALIZATION OF CRIMINAL LAW 59-78 (1998) [hereinafter ABA CRIMINAL JUSTICE

SECTION] (providing bibliography).

For instance, Congress enacted a “carjacking” statute that dealt with conduct fully

addressed by existing state crimes (e.g., robbery and kidnapping). See 18 U.S.C. § 2119 (2006)

(imposing federal criminal liability on those who take motor vehicles by force, violence, or

intimidation and “with the intent to cause death or serious bodily harm”); Commonwealth v.

Jones, 591 S.E.2d 68, 70 (Va. 2004) (detailing Virginia’s definition of robbery, which prohibits

the taking of any property of another by violence or intimidation); Spencer v. Commonwealth,

592 S.E.2d 400, 402 (Va. Ct. App. 2004) (“[C]arjacking is a species of robbery.”).

See United States v. Park, 421 U.S. 658, 663-64, 670-73 (1975). See generally Paul

Rosenzweig, The Over-Criminalization of Social and Economic Conduct, H

ERITAGE FOUND., 3-

12 (Apr. 17, 2003), http://s3.amazonaws.com/thf_media/2003/pdf/lm7.pdf.

See 18 U.S.C. § 1001(a)(2) (2006) (criminalizing false statements made pursuant to “any

matter” within any branch of the federal government); id. § 1341 (proscribing various fraudulent

transactions utilizing the Postal Service or private interstate mail carriers); id. § 1343 (prohibiting

similar fraudulent transactions over interstate wire, radio, and television signals); id. § 1346

(defining “scheme or artifice to defraud” under § 1341 and § 1343 as including a plan to “deprive

another of the intangible right to honest services”); see also Jeffrey Standen, An Economic

Perspective on Federal Criminal Law Reform, 2 B

UFF. CRIM. L. REV. 249, 289 (1998) (citing

over three hundred federal proscriptions against fraud and misrepresentation).

See, e.g., United States v. Welch, 327 F.3d 1081, 1090-1103 (10th Cir. 2003) (upholding,

inter alia, a federal felony indictment for violation of Utah’s commercial bribery statute, a

misdemeanor under state law).

See, e.g., Pasquantino v. United States, 544 U.S. 349 (2005) (affirming a defendant’s

federal conviction for violating Canadian tax law through the use of interstate wires); United

States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (upholding federal conviction for violation of

Honduran fishing regulations); Ellen Podgor & Paul Rosenzweig, Bum Lobster Rap, W

ASH.

TIMES, Jan. 6, 2004, at A14 (criticizing the McNab prosecution and noting that the Honduran

government believed that its laws had not been violated and had filed an amicus curiae brief in

support of the McNab defendants).

See John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes, HERITAGE

FOUND. (June 16, 2008), http://s3.amazonaws.com/thf_media/2008/pdf/lm26.pdf.

See ABA CRIMINAL JUSTICE SECTION, supra note 81, at 7.

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22 CARDOZO LAW REVIEW [Vol. 32:1

Like the growing opposition to mandatory minimums, over-

federalization has been criticized by a broad band of organizations and

by politicians on both the left and the right.

Indeed, mandatory

minimums constitute a species of over-criminalization and over-

federalization.

They are part of a punishment spree of unprecedented

proportions that, along with other obligatory sentencing schemes in the

states, have helped make America the single most punitive Western

nation and the world’s imprisonment leader.

Since 1980, for instance,

the federal prison population has increased tenfold, while the average

federal sentence has doubled and the average federal drug sentence has

tripled, due in no small part to mandatory minimums.

So what is the cause of over-criminalization, over-federalization,

and overly broad and harsh mandatory minimums? Some thirty years

after his original critique, Professor Kadish suggested a

commonsensical explanation for the “creeping and foolish federal

overcriminalization.”

Some dramatic crimes or series of crimes are given conspicuous

media coverage, producing what is perceived, and often is,

widespread public anxiety. Seeking to make political hay, some

legislator proposes a new law to make this or that a major felony or

to raise the penalty or otherwise tighten the screws. Since other

legislators know well that no one can lose voter popularity for

seeming to be tough on crime, the legislation sails through in a

breeze. That the chances of the legislation working to reduce crime

are exceedingly low, and in some cases the chances of it doing harm

are very high, scarcely seems to be a relevant issue.

See, e.g., Adam Liptak, Right and Left Join Forces, N.Y. TIMES, Nov. 24, 2009, at A1.

See, e.g., Over-Criminalization of Conduct/Over-Federalization of Criminal Law: Hearing

Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the

Judiciary, 111th Cong. 52-67 (2009) (statement of Stephen A. Saltzburg, American Bar

Association).

See, e.g., Adam Liptak, More Than 1 in 100 Adults Are Now in Prison in U.S., N.Y. TIMES,

Feb. 29, 2008, at A14; Michael Tonry & David P. Farrington, Punishment and Crime Across

Space and Time, 33 C

RIME & JUST. 1, 6 (2005); Alfred Blumstein et al., Cross-National

Measures of Punitiveness, 33 C

RIME & JUST. 347 (2005); see also SENTENCING AND SANCTIONS

WESTERN COUNTRIES (Michael Tonry & Richard S. Frase eds., 2001); JAMES Q. WHITMAN,

HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND

EUROPE (2003).

See, e.g., Heather C. West & William J. Sabol, Prisoners in 2007, BUREAU OF JUST. STAT.

BULL. (U.S. Dep’t of Justice), Dec. 2008, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/

p07.pdf; S

OURCEBOOK 2003, supra note 24, at 519 tbl.6.57, available at

http://www.albany.edu/sourcebook/pdf/t657.pdf; U.S.

SENTENCING COMM’N, FIFTEEN YEARS OF

GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE

SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM ch. 2 (2004); Paul J. Hofer &

Courtney Semisch, Examining Changes in Federal Sentence Severity: 1980-1998, 12 F

ED.

SENT’G REP. 12 (1999).

Sanford H. Kadish, Comment: The Folly of Overfederalization, 46 HASTINGS L.J. 1247,

1248 (1995) [hereinafter Kadish, Overfederalization].

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 23

Other scholars support this account, bolstered by the reports of

legal groups and former federal officials.

Sensationalistic news

coverage tends to increase the public salience of crime, generating fear

and attendant calls for action.

Even in areas where concern may be

unfounded, populist pressures create incentives for lawmakers to enact

new crimes and harsher punishments. Such legislation is readily

grasped by constituents, produces few opponents, permits the public to

vent its outrage, and most importantly, gives politicians the tough-on-

crime credentials that can fill campaign coffers and garner votes at

election time.

As Professor Kadish mentioned, the process can be set off by a

string of crimes or even a single traumatic case that grabs news

headlines and the public imagination. These events may trigger what

social scientists have termed a “moral panic,” where intense outbursts of

emotion impede rational deliberation, lead individuals to overestimate a

perceived threat and to demonize a particular group, and generate a

public demand for swift and stern government action.

Although any

resulting legislation will almost certainly be touted for its instrumental

benefits, the law will serve as a symbolic gesture for politicians and

See, e.g., THE 2009 CRIMINAL JUSTICE TRANSITION COAL., SMART ON CRIME:

RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS 1-12, 30-74 (2008),

available at http://2009transition.org/criminaljustice/index.php?option=com_docman&task=doc_

download&gid=10&Itemid=; Rachel Brand, Making it a Federal Case: An Inside View of the

Pressures to Federalize Crime, H

ERITAGE FOUND., (Aug. 29, 2008), http://s3.amazonaws.com/

thf_media/2008/pdf/lm30.pdf; Edwin Meese III, The Dangerous Federalization of Crime, W

ALL

ST. J., Feb. 22, 1999, at A19. In the words of former U.S. Attorney General Ed Meese,

Because crime, particularly violent or street crime, concerns virtually every citizen,

congressional candidates and officeholders find such legislation politically popular.

Likewise, Congress frequently criminalizes crimes after notorious incidents that have

received extensive media attention. This type of “feel-good” legislation often causes

the public to feel that “something is being done” and creates the illusion of greater

crime control.

Id.

Professor Beale’s scholarship has been particularly enlightening on the influence of the

media (and other non-legal factors) on criminal justice policy. See, e.g., Sara Sun Beale, The

News Media’s Influence on Criminal Justice Policy: How Market-Driven News Promotes

Punitiveness, 48 W

M. & MARY L. REV. 397 (2006); Sara Sun Beale, Still Tough on Crime?

Prospects for Restorative Justice in the United States, 2003 U

TAH L. REV. 413 (2003) [hereinafter

Beale, Still Tough on Crime?]; Sara Sun Beale, What’s Law Got to Do with It? The Political,

Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal)

Criminal Law, 1 B

UFF. CRIM. L. REV. 23 (1997); see also Robert Reiner, Media-Made

Criminality: The Representation of Crime in the Mass Media, in T

HE OXFORD HANDBOOK OF

CRIMINOLOGY 302 (Mike Maguire et al. eds., 4th ed. 2007); Luna, Public Imagination, supra

note 29.

See, e.g., Luna, Overcriminalization, supra note 25, at 719-24.

See, e.g., Luna, Public Imagination, supra note 29, at 81-85. See generally STANLEY

COHEN, FOLK DEVILS AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS (1972)

(articulating a theory of moral panics).

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24 CARDOZO LAW REVIEW [Vol. 32:1

their constituents, expressing condemnation of the relevant act and

actors.

3. Application to Mandatory Minimums

This understanding of federal lawmaking helps explain the rise and

persistence of mandatory minimums. Chief Justice Rehnquist noted

that their enactment often does not involve “any careful consideration”

of the ultimate effects. Instead, mandatory minimums “are frequently

the result of floor amendments to demonstrate emphatically that

legislators want to ‘get tough on crime.’”

In fact, federal lawmakers

have explicitly used phrases like “tough on crime” in their support of

mandatory minimums,

100

with some of the most notorious sentencing

laws originating from symbolic politics.

Consider, for instance, the enactment of 18 U.S.C. § 924(c) as part

of the Gun Control Act of 1968 (which itself was part of the Omnibus

Crime Control and Safe Streets Act of 1968). The legislation was a

response to public fear over street crime, civil unrest, and the shooting

of Martin Luther King, Jr. The day after the assassination of Robert F.

Kennedy, § 924(c) was proposed as a floor amendment and passed that

same day with no congressional hearings or committee reports, only a

speech by the amendment’s sponsor about its catchphrase goal “to

persuade the man who is tempted to commit a federal felony to leave his

gun at home.”

101

Since then, Congress has amended § 924(c) several

times and converted it from a one-year mandatory minimum to one of

the nation’s most draconian punishment laws.

102

See, e.g., Erik Luna, The .22 Caliber Rorschach Test, 39 HOUS. L. REV. 53, 61-72 (2002)

[hereinafter Luna, Rorschach Test]; Luna, Principled Enforcement, supra note 29, at 537-40; cf.

OSEPH R. GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN

TEMPERANCE MOVEMENT (2d ed. 1986) (discussing the symbolic politics underlying alcohol

prohibition).

Rehnquist, supra note 1, at 287.

100

See, e.g., infra note 110 and accompanying text; Rachel E. Barkow, Institutional Design

and the Policing of Prosecutors: Lessons from Administrative Law, 61 S

TAN. L. REV. 869, 873

n.14 (2009) (quoting federal lawmakers).

101

See 114 CONG. REC. 22,231 (1968) (statement of Rep. Poff).

102

See Gun Control Act of 1968, Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1223-24 (codified

as amended at 18 U.S.C. §§ 921-928 (2006)); Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, § 1005, 98 Stat. 2028, 2138 (codified as amended at 18 U.S.C. § 924(c)); Firearms

Owners’ Protection Act, Pub. L. No. 99-308, § 104(a), 100 Stat. 449, 459 (1986) (codified as

amended at 18 U.S.C. § 924); Act to Throttle Criminal Use of Guns, Pub. L. No. 105-386, §

1(a)(1), 112 Stat. 3469, 3469 (1998) (codified as amended at 18 U.S.C. § 924); see also United

States v. Angelos, 345 F. Supp. 2d 1227, 1233-35 (D. Utah 2004) (discussing legislative history

and judicial interpretation of § 924(c)); J

ONATHAN SIMON, GOVERNING THROUGH CRIME: HOW

THE

WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF

FEAR (2007) (discussing background of the Omnibus Crime Control and Safe Streets Act of

1968).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 25

Another example comes from the passage of the Anti-Drug Abuse

Act of 1986,

103

the law that instituted the crack/powder cocaine

sentencing differential and created the basic structure of federal

mandatory minimums for drug trafficking. A driving force behind these

provisions was the cocaine overdose of basketball star Len Bias, which

prompted a remarkable level of media attention and a moral panic about

crack cocaine.

104

The bill was pushed forward in a headlong, result-

oriented surge, enacted without hearings or input from experts.

105

Some

lawmakers conceded that the legislation attempted to appease an

electorate that had become hysterical over an alleged epidemic of crack

cocaine,

106

which was fed in part by inflammatory claims about the

drug.

107

At the height of the Bias incident, a Washington Post editorial

gibed that in the prevailing can-you-top-this environment, “an

amendment to execute pushers only after flogging and hacking them”

might have been enacted by Congress.

108

“The problem is that we have

an epidemic,” one senator argued.

109

“We have an enemy. We talk

about a war [on drugs]. I love to use that term, because it sounds tough;

it makes good talk, good speeches.”

110

Ironically, it was later revealed

103

Pub. L. No. 99-570, 100 Stat. 3207; see, e.g., William Spade, Jr., Beyond the 100:1 Ratio:

Towards a Rational Cocaine Sentencing Policy, 38 A

RIZ. L. REV. 1233, 1250-56 (1996).

104

See, e.g., 156 CONG. REC. H6202 (daily ed. July 28, 2010) (statement of Rep. Dan

Lungren), 156 Cong Rec H6196-01, at *H6202 (Westlaw).

[A]s someone who helped to write the Drug Control Act of 1986 that we seek to

amend, I’d like to make a few observations to set the record straight. It is indeed true

that the death of basketball star Len Bias served as an exclamation point concerning the

threat posed to our Nation by the scourge of illegal drug use. The fact that someone

who seemed bigger than life could fall prey to the growing cocaine epidemic brought

home the reality of the danger to every home with a television set that had tuned into

the University of Maryland basketball games. And that reality was not lost on this

body.

Id.; see also 132 C

ONG. REC. S13741-01 (1986), 132 Cong Rec S13741-01 (Westlaw); MOLLY

M. GILL, CORRECTING COURSE: LESSONS FROM THE 1970 REPEAL OF MANDATORY MINIMUMS

18, 34 n.60 (2008), available at http://www.famm.org/Repository/Files/8189_FAMM_BoggsAct

_final.pdf; Wallace, supra note 37, at 159 (quoting Rep. Robert Dornan).

105

“Much of the [standard] procedure was circumvented,” a former House staff member

recounted. “In essence, the careful, deliberate procedures of Congress were set aside in order to

expedite passage of the bill.” Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition,

Politics and Reform, 40 V

ILL. L. REV. 383, 408 (1995); see also COCAINE AND FEDERAL

SENTENCING, supra note 74, at 117; GILL, supra note 104, at 18, 34 n.61 (statement of Sen.

Mathias).

106

See, e.g., GILL, supra note 104, at 18, 34 nn.59-61.

107

See, e.g., id. at 18, 34 n.58 (quoting Sen. D’Amato and Sen. Chiles); see also id. at 34 n.66

(quoting Rep. Hunter).

108

Wallace, supra note 37, at 159 n.30.

109

132 CONG. REC. S13741-01 (1986), 132 Cong Rec S13741-01 (Westlaw) (statement of

Sen. DeConcini).

110

Id.

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26 CARDOZO LAW REVIEW [Vol. 32:1

that Bias died from ingesting powder cocaine, not crack.

111

But by

then, it did not matter.

The resulting inequities were ameliorated in part by the recent

crack cocaine law, including the elimination of the mandatory minimum

for simple possession. As mentioned, however, federal law still

maintains a sentencing disparity between crack and powder cocaine,

and the reform law itself called for new enhancements for all drug-

related crime. Moreover, the reforms that were achieved took nearly a

quarter-century to be enacted, despite, for instance, repeated attempts by

the U.S. Sentencing Commission to persuade lawmakers to eliminate

the crack/powder sentencing differential.

112

Law enforcement also has an interest in the expansion of criminal

justice. Although aspirational language may describe the prosecutorial

function as an impartial “minister of justice,”

113

there should be little

doubt that American prosecutors see themselves as advocates in a

sometimes brutally adversarial process.

114

The adversarial role

conception can be exacerbated by prosecutorial incentive structures,

where the success and career prospects of both lead and line prosecutors

are sometimes measured by the rate of convictions and the aggregate

amount of punishment.

115

For fairly obvious reasons, these motivations

111

See, e.g., Marc Mauer, The Disparity on Crack-Cocaine Sentencing, BOSTON GLOBE, July

5, 2006, at 7.

112

See, e.g., Gary Fields, Sentencing Guidelines Face New Scrutiny, WALL ST. J., Dec. 26,

2006, at A4 (“The commission has tried since 1995 to bring the penalties for crack crimes more

in line with powder cocaine but the Republican-controlled Congress has ignored past attempts.”).

For the Sentencing Commission’s opposition to the crack/powder sentencing differential, see U.S.

SENTENCING COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING

POLICY 91 (2002), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf.

113

See, e.g., MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt. 1 (2007).

114

See, e.g., ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW

61-96 (2001); see also Michael Asimow, Popular Culture and the Adversary System, 40 L

OY.

L.A. L. REV. 653 (2007); Elizabeth G. Thornburg, Metaphors Matter: How Images of Battle,

Sports, and Sex Shape the Adversary System, 10 W

IS. WOMEN’S L.J. 225 (1995); William T.

Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative

Criminal Procedure as an Instrument of Reform, 54 O

HIO ST. L.J. 1325 (1993).

115

See, e.g., Richard T. Boylan & Cheryl X. Long, Salaries, Plea Rates, and the Career

Objectives of Federal Prosecutors, 48 J.L.

& ECON. 627 (2005); Richard T. Boylan, What do

Prosecutors Maximize? Evidence From the Careers of U.S. Attorneys, 7 A

M. LAW & ECON. REV.

379 (2005); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in

Criminal Adjudication, 93 C

AL. L. REV. 1585, 1599-1600 (2005) [hereinafter Brown, Decline of

Defense Counsel]; Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 H

ARV. L.

REV. 2463, 2470-76 (2004); Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004

IS. L. REV. 837, 902-03; MICHAEL TONRY, THINKING ABOUT CRIME: SENSE AND SENSIBILITY

AMERICAN PENAL CULTURE 207 (2004) [hereinafter TONRY, THINKING ABOUT CRIME];

Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of

Innocence, 84 B.U.

L. REV. 125, 134-35 (2004); Todd Lochner, Strategic Behavior and

Prosecutorial Agenda Setting in United States Attorneys’ Offices: The Role of U.S. Attorneys and

Their Assistants, 23 J

UST. SYS. J. 271 (2002); Edward L. Glaeser et al., What Do Prosecutors

Maximize? An Analysis of the Federalization of Drug Crimes, 2 A

M. L. & ECON. REV. 259

(2000); David T. Johnson, The Organization of Prosecution and the Possibility of Order, 32 L

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 27

are served by over-criminalization: The more crimes on the books and

the harsher the punishments, the more power law enforcement can

exercise throughout the criminal process.

116

In the words of a former Justice Department official, “it is not

surprising that the federal agency charged with preventing, solving, and

punishing federal crimes is not aggressively attempting to shrink the

federal code.”

117

Of particular relevance here, the Justice Department

has frequently lobbied Congress for tougher sentences, including

mandatory minimums.

118

Again, this should not be surprising,

considering the incentive structure of federal prosecutors. With drastic

increases in potential punishment, sometimes by charging multiple

counts for a single course of conduct, defendants are given every reason

to cooperate with the prosecution by providing information, entering

into plea agreements, and waiving their constitutional rights. All of this

enhances the power of prosecutors, who can obtain more and cheaper

convictions via plea bargaining or, if that fails, deploy against their

opponents the potent weapon of unavoidable sentences.

Several years ago, a federal trial judge wrote about “the essential

key to an understanding of federal sentencing policy today.”

[The Justice] Department is so addicted to plea bargaining to

leverage its law enforcement resources to an overwhelming

& SOC’Y REV. 247 (1998); DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL

FIXES, AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE (1996); Tracey L.

Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with

Financial Incentives, 64 F

ORDHAM L. REV. 851 (1995); Stanley Z. Fisher, In Search of the

Virtuous Prosecutor, 15 A

M. J. CRIM. L. 197 (1988). Moreover, many young attorneys stay in a

prosecutor’s office only for a few years, seeking to build their resumes and credentials as a means

to achieve a high-paying job in the private sector. See, e.g., T

ONRY, THINKING ABOUT CRIME,

supra, at 208.

116

William Stuntz’s work has been especially insightful on these issues. See, e.g., Stuntz,

Pathological Politics, supra note 55; William J. Stuntz, Plea Bargaining and Criminal Law’s

Disappearing Shadow, 117 H

ARV. L. REV. 2548 (2004); William J. Stuntz, The Political

Constitution of Criminal Justice, 119 H

ARV. L. REV. 780 (2006).

117

Brand, supra note 94, at 1-2.

118

See, e.g., Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child

Protection Act of 2004: Hearing on H.R. 4547 Before the Subcomm. on Crime, Terrorism, and

Homeland Security of the H. Comm. on the Judiciary, 108th Cong. 6 (2004) (statement of

Catherine M. O’Neil, Assoc. Deputy Att’y Gen.), available at http://frwebgate.access.gpo.gov/

cgi-bin/getdoc.cgi?dbname=108_house_hearings&docid=f:94636.pdf (arguing in favor of

increased mandatory minimums for drug crimes, which allow the government to move

“effectively up the chain of supply using lesser distributors to prosecute larger dealers, leaders

and suppliers”); Drug Mandatory Minimums: Are They Working?: Hearing Before the Subcomm.

on Criminal Justice, Drug Policy, and Human Resources of the H. Comm. on Gov’t Reform,

106th Cong. 62 (2000) (statement of John Roth, Chief, Narcotic & Dangerous Drug Section,

Criminal Div., Dep’t of Justice) (stating that mandatory minimum sentences for drug crimes

provide “an indispensable tool for prosecutors” to induce defendants to cooperate); see also

Barkow, supra note 100, at 880 (“Representatives from the Department of Justice and the various

United States Attorneys’ Offices often argue before Congress that legislation with inflated or

mandatory punishments should be passed or retained because those laws give prosecutors the

leverage they need to exact pleas and to obtain cooperation from defendants.”).

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28 CARDOZO LAW REVIEW [Vol. 32:1

conviction rate that the focus of our entire criminal justice system

has shifted far away from trials and juries and adjudication to a

massive system of sentence bargaining that is heavily rigged against

the accused citizen.

119

As a result, a fraction of federal cases go to trial—roughly 5%

since 2002—of which only a small percentage result in acquittal. In

other words, the prosecutor wins virtually every case he pursues.

120

The

threat or imposition of mandatory minimums helps ensure that the

prosecutor’s choice of punishment prevails in court.

121

II.

REFORMING MANDATORY MINIMUMS

With this background, the question becomes how reform efforts

might be pursued. The courts provide one possible forum, particularly

since the judiciary is considered a primary safeguard against political

excesses, at least to the extent that the action in question raises serious

constitutional concerns. In the present context, extreme mandatory

sentences might conflict with the Eighth Amendment’s prohibition of

“cruel and unusual punishment.”

122

Such a ruling could be based on a

relatively broad, liberal interpretation of constitutional judicial review,

where the courts vigorously scrutinize the punitive tendencies of the

political branches. A more sophisticated approach might rely upon,

inter alia, political process theory.

123

One might argue that the

dysfunctional politics of mandatory minimums renders them impervious

to the usual “channels of political change,”

124

for instance, or that the

laws result from prejudice against “discrete and insular minorities,”

which curtails the protections usually provided by the political

process.

125

In reality, however, the Supreme Court’s jurisprudence in this area,

described by some as an abandonment of the field, makes clear that

judicial review will not provide much of a check on excessive

119

United States v. Green, 346 F. Supp. 2d 259, 265 (D. Mass. 2004). To be clear, the judge

was discussing prosecutorial behavior under the pre-Booker mandatory guidelines regime.

However, his words apply to mandatory minimums with equal, if not greater, force.

120

See, e.g., Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal

Justice, 154 U.

PA. L. REV. 79 (2005).

121

Some defense attorneys claim that the threat of mandatory minimums is regularly used to

dissuade defendants from filing motions to suppress evidence, or to waive their rights to appeal

the sentence, attack it collaterally, move for resentencing pursuant to 18 U.S.C. § 3582(c)(2)

(2006), and forego arguments for a lower sentence under § 3553(a).

122

U.S. CONST. amend. VIII.

123

See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL

REVIEW (1980).

124

Id. at 103.

125

See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 29

punishment. Except for death penalty cases, Eighth Amendment

challenges to criminal sentences are rarely successful. Much of the

judicial reluctance might be attributed to the lack of clear-cut standards

to assess when a term of imprisonment becomes unconstitutional: What

makes a sentence “cruel and unusual” anyway?

126

As a conceptual

matter, the requisite finding of gross disproportionality might be

informed by the punishments available elsewhere—asking whether the

present jurisdiction is out of line with the others and, if so, by how

much—an inquiry that would seem to have at least some basis for

objectivity.

127

But as a matter of contemporary practice, only one

Supreme Court decision and a handful of lower court decisions have

ever invalidated an adult prison term as cruel and unusual

punishment.

128

This means that significant reform will come, if at all,

by Congress.

This presents quite a challenge for the very body that created

mandatory minimums to begin with and maintained them despite

evidence of ineffectiveness and abuse. Federal lawmakers have often

struggled with the more general problem of how to save Congress from

itself and prevent the passage of foolish and harmful laws. When all is

said and done, however, “the principal protector against bad laws is the

political branches themselves,” Justice Elena Kagan argued during her

recent confirmation hearing.

129

With this in mind, the following

considers whether the long-standing adherence to mandatory minimums

might change under the right conditions, with Congress itself remedying

the injustices of obligatory punishment.

A. Behavioral Science and Mandatory Minimums

As seen in the previous Part, mandatory minimums provide a

fascinating (though disquieting) case study on the influences and

incentives in political decision-making on issues of criminal justice. To

a large extent, official support for mandatory minimums is compatible

126

Harmelin v. Michigan, 501 U.S. 957, 998-1000 (1991) (Kennedy, J., concurring); see also

infra notes 193-194 and accompanying text (discussing the “countermajoritarian difficulty”).

127

See Ewing v. California, 538 U.S. 11, 23-24 (2003); Harmelin, 501 U.S. at 1001 (Kennedy,

J., concurring); Solem v. Helm, 463 U.S. 277, 292 (1983).

128

See Solem, 463 U.S. 277 (striking down non-violent recidivist’s sentence of life

imprisonment without possibility of parole for uttering “no account” check); Ramirez v. Castro,

365 F.3d 755 (9th Cir. 2004) (striking down defendant’s 25-years-to-life sentence for his third

shoplifting offense); see also Graham v. Florida, 130 S.Ct. 2011 (2010) (striking down juvenile

offender’s sentence of life imprisonment without the possibility of parole).

129

Continuation of the Nomination of Elena Kagan to be an Associate Justice of the Supreme

Court of the United States Before the S. Comm. on the Judiciary, 111th Cong. (2010), 2010

WLNR 13149042; see also Adam Liptak, Kagan Reminds Senators: Legislation is Your Job,

N.Y.

TIMES, July 2, 2010, at A16.

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30 CARDOZO LAW REVIEW [Vol. 32:1

with the rational choice model of microeconomics and its assumption of

methodological individualism. This model maintains that individuals

are the only relevant agents of human behavior, where “man is a

rational maximizer of his ends in life,” that is, his self-interest.

130

The

application of economic principles to politics—typically referred to as

public choice theory—leads to a number of somber conclusions about

the self-interested behavior of politicians and the uninformed nature of

the electorate.

131

Although criminal justice issues may not (ordinarily) implicate

political manipulations like “log-rolling” and “rent-seeking,” decision-

making about mandatory minimums does seem to follow the rational

actor assumption. As just discussed, lawmakers can appear tough on

crime and can mollify fits of public anxiety by enacting harsh

sentencing provisions, which also serve the interests of law enforcers by

increasing their plea-bargaining leverage and thus the rate and amount

of convictions. While the passage of mandatory minimums can enhance

a representative’s prospects for reelection, efforts to reform such laws

may be perceived as a political liability, allowing an opponent to assail

the incumbent as being soft on crime.

To be sure, politicians may genuinely believe in the case for

mandatory minimums, regardless of evidence undermining the principal

arguments. Research in cognitive psychology suggests that individuals

experience intellectual boundaries that systematically impede rational

decision-making.

132

People adopt rules of thumb to deal with

unmanageable or incomplete information, and their decisions can be

shaped by subtle but powerful prejudices. Although wholly speculative,

one could imagine how various biases and heuristics may impact the

decisions politicians make about mandatory minimums. Consider, for

instance, the following:

• An official might overestimate the necessity of harsh punishment, based

on a less-than-rigorous case analogy or the mental availability of a high-

profile incident that would seem to call for a mandatory sentence.

133

130

RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3 (7th ed. 2007); see also GARY S.

BECKER, THE ECONOMIC APPROACH TO HUMAN BEHAVIOR (1976).

131

See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF

CONSENT (1962); ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957).

132

See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L.

REV. 1471, 1477 (1998); Roger G. Noll & James E. Krier, Some Implications of Cognitive

Psychology for Risk Regulation, 19 J.

LEGAL STUD. 747, 748 (1990). See generally JUDGMENT

UNDER UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman et al. eds., 1982) [hereinafter

UDGMENT UNDER UNCERTAINTY].

133

See, e.g., Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175, 1188-90

(1997) [hereinafter Sunstein, Behavioral Analysis] (discussing availability and case-based

heuristics); see also Jolls et al., supra note 132, at 1518-20; Cass R. Sunstein, Selective Fatalism,

27 J.

LEGAL STUD. 799, 806 (1998) [hereinafter Sunstein, Selective Fatalism]; Timur Kuran &

Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 S

TAN. L. REV. 683 (1999);

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 31

• Government actors may be unrealistically optimistic about the ability of

such laws to reduce crime or prevent future tragedies, preferring the

strictness of a mandatory minimum that supposedly eliminates all risk of

further offending, rather than a more nuanced and economically sensible

option that reduces, but does not eliminate, the perceived danger.

134

• Once adopted, official positions on a mandatory minimum may be

difficult to change, even when confronted with new information and

experiences. Politicians may simply alter their attitudes and beliefs to

minimize any dissonance between the goals of mandatory sentencing and

the law’s actual effects.

135

• Moreover, the sentencing status quo might be seen as preferable, if not

inevitable,

136

while the perceived costs of eliminating mandatory

minimums may appear ominous and far greater than any benefits,

particularly if the costs (e.g., reduced prosecutorial leverage) will accrue

sooner than the benefits (e.g., lower prison expenses).

137

JUDGMENT UNDER UNCERTAINTY, supra note 132, at 11-14, 163-208; Itzhak Gilboa & David

Schmeidler, Case-Based Decision Theory, 110 Q.J.

ECON. 605 (1995).

134

See, e.g., Sunstein, Behavioral Analysis, supra note 133, at 1182-84, 1191 (discussing

over-optimism, certainty, and ambiguity); see also Christine Jolls, Behavioral Economic Analysis

of Redistributive Legal Rules, 51 V

AND. L. REV. 1653, 1658-63 (1998); Jennifer Arlen, The

Future of Behavioral Law and Economics, 51 V

AND. L. REV. 1765, 1773-75 (1998); Sunstein,

Selective Fatalism, supra note 133, at 807-09; Neil D. Weinstein, Optimistic Biases About

Personal Risks, 246 S

CIENCE 1232 (1989); Craig R. Fox & Amos Tversky, Ambiguity Aversion

and Comparative Ignorance, 110 Q.J.

ECON. 585 (1995).

135

See, e.g., Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV.

1129, 1146-47 (1986) (discussing cognitive dissonance). See generally ELLIOT ARONSON, THE

SOCIAL ANIMAL (7th ed. 1995); JON ELSTER, SOUR GRAPES (1983); LEON FESTINGER, A

THEORY OF COGNITIVE DISSONANCE (1957).

136

See, e.g., Sunstein, Behavioral Analysis, supra note 133, at 1185, 1191-92 (discussing

hindsight and status quo biases); see also Sunstein, Selective Fatalism, supra note 133, at 809;

Russell Korobkin, The Status Quo Bias and Contract Default Rules, 83 C

ORNELL L. REV. 608

(1998); Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U.

CHI. L. REV. 571 (1998); Marcel Kahan & Michael Klausner, Path Dependence in Corporate

Contracting: Increasing Returns, Herd Behavior and Cognitive Biases, 74 W

ASH. U. L.Q. 347,

359-62 (1996); William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Making,

1 J.

RISK & UNCERTAINTY 7 (1988).

137

See, e.g., Sunstein, Behavioral Analysis, supra note 133, at 1179-81, 1184-85, 1193-94

(discussing endowment effect, loss aversion, inter-temporal utility bias, and hindsight bias); see

also Arlen, supra note 134, at 1771-72; Colin Camerer, Individual Decision Making, in T

HANDBOOK OF EXPERIMENTAL ECONOMICS 587, 665-70 (John H. Kagel & Alvin E. Roth eds.,

1995); R

ICHARD H. THALER, THE WINNER’S CURSE: PARADOXES AND ANOMALIES OF

ECONOMIC LIFE 63-78 (1992); RICHARD H. THALER, QUASI RATIONAL ECONOMICS (1991);

Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias,

5 J.

ECON. PERSP. 193, 203 (1991); Daniel Kahneman et al., Experimental Tests of the

Endowment Effect and the Coase Theorem, 98 J.

POL. ECON. 1325 (1990); Daniel Kahneman &

Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 E

CONOMETRICA 263,

274-89 (1979); Daniel Kahneman, New Challenges to the Rationality Assumption, in

THE

RATIONAL FOUNDATIONS OF ECONOMIC BEHAVIOR (Kenneth Arrow et al. eds., 1996); Jolls et

al., supra note 132, at 1538-41; David Laibson, Golden Eggs and Hyperbolic Discounting, 112

Q.J.

ECON. 443 (1997); George Loewenstein & Richard H. Thaler, Intertemporal Choice, in

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32 CARDOZO LAW REVIEW [Vol. 32:1

• If a mistake is to be made—comparing the potential costs and benefits

from repealing mandatory minimums versus retaining them—lawmakers

may well prefer the error of omission and keep the laws on the books.

138

The history of federal crack cocaine law exemplifies some of these

concerns. As mentioned, the original legislation was propelled forward

by a single tragic case, the death of Len Bias. The quarter century of

congressional inaction that followed, in the face of new empirical

evidence and calls for change, demonstrated a collective risk aversion

and status quo bias, consistent with the conventional wisdom on harsh

punishment. As Rep. Smith put it, “Why do we want to risk another

surge of addiction and violence by reducing penalties?”

139

In general,

conscientious lawmakers might agree that mandatory minimums can

produce injustices in particular cases and yet balk at explicit legislative

repeal or any large-scale reforms.

A broader understanding of the rise and persistence of mandatory

minimums would also take into consideration powerful social

influences on individual behavior. Sociological theory teaches us that

humans may be moved by more than their economic self-interests; they

may act in pursuit of social status, for instance, and they may be guided

or inhibited by conventions, customs, habits, ideas, attitudes, and so

on.

140

These “social norms” can be both descriptive (i.e., what most

people do) and prescriptive (i.e., what people ought to do);

141

they can

be effected by appreciation of duty, desire for social approval, or fear of

reprobation;

142

and they may be shared by a peer group, a community, a

geographic region, or even an entire nation.

RESEARCH ON JUDGMENT AND DECISION MAKING: CURRENTS, CONNECTIONS, AND

CONTROVERSIES 365 (William M. Goldstein & Robin M. Hogarth eds., 1997).

138

See, e.g., Robert A. Prentice & Jonathan J. Koehler, A Normality Bias in Legal Decision

Making, 88 C

ORNELL L. REV. 583, 589-94 (2003) (discussing omission bias); see also Sunstein,

Behavioral Analysis, supra note 133, at 1180 n.22; Ilana Ritov & Jonathan Baron, Reluctance to

Vaccinate: Omission Bias and Ambiguity, 3 J.

BEHAV. DECISION MAKING 263 (1990).

139

156 CONG. REC. H6197 (daily ed. July 28, 2010) (statement of Rep. Lamar Smith), 156

Cong Rec H6196-01, at *H6197 (Westlaw).

140

See, e.g., Melvin A. Eisenberg, Corporate Law and Social Norms, 99 COLUM. L. REV.

1253, 1255 (1999); Richard H. McAdams, The Origin, Development, and Regulation of Norms,

96 M

ICH. L. REV. 338, 350-52 (1997) [hereinafter McAdams, Regulation of Norms]; Cass R.

Sunstein, Social Norms and Social Roles, 96 C

OLUM. L. REV. 903, 914 (1996) [hereinafter

Sunstein, Social Norms]; Eric A. Posner, Law, Economics, and Efficient Norms, 144 U.

PA. L.

REV. 1697, 1699 (1996); Dennis Chong, Values Versus Interests in the Explanation of Social

Conflict, 144 U.

PA. L. REV. 2079, 2079 (1996); Lawrence Lessig, The Regulation of Social

Meaning, 62 U.

CHI. L. REV. 943 (1995); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW

NEIGHBORS SETTLE DISPUTES 128-31 (1991).

141

See, e.g., Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585, 587

(1998).

142

See, e.g., Robert Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947, 955-

57 (1997); Richard H. McAdams, Comment: Accounting for Norms, 1997 W

IS. L. REV. 625, 634-

35.

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2010] MANDATORY MINIMALISM 33

For present purposes, social norms can be defined as a group’s

expectations of its members, in terms of their attitudes and conduct,

producing generally followed, non-legal obligations backed by informal

sanctions.

143

They represent an important constraint on individual

behavior, particularly when one’s peer group generates the norm. As

social animals, humans naturally seek the affection and respect of those

people who are most significant in their lives.

144

An individual adopts

the group’s norms in pursuit of social acceptance, with his perception of

peer beliefs, values, and conduct thereby influencing his own actions.

145

Social norms can also serve as a signaling device, where an individual

may behave consistent with a norm to indicate that he is a “good type”

of person, someone with whom others would want to associate and

cooperate.

146

When the relevant act is political, it can symbolize a group’s

perspective, enhance the members’ status, and affirm their particular

worldview.

147

As suggested above, mandatory minimums are pervaded

by symbolism. This is nothing new—criminal law has historically been

used to legitimize prevailing norms, delineating the “ins” from the

“outs” in a political community and providing a basis for social

cohesion. Moreover, a symbolic act and the resulting divide between

groups, even if failing to modify conduct directly, can have political

consequences.

For instance, a person’s reaction to an official gesture often

indicates (correctly or incorrectly) his traits, ethics, and lifestyle. For

the politician, a vote for mandatory minimums can signal that he is

tough on crime, an advocate of law-and-order policies, a friend of the

law-abiding community, a foe of social deviants, and a team player with

like-minded officials. In contrast, a politician’s failure to endorse harsh

sentencing laws may be perceived by others as opposition to (or at least

insufficient deference for) the underlying anti-crime symbol.

All told, the politics of mandatory minimums may involve a

confluence of economic, sociological, and psychological phenomena.

Moreover, the continued support for these laws has itself become a type

of norm for federal officials, both as a positive description and as a

matter of expectations. Congress not only enacts and maintains

mandatory minimums, but its members seem to believe that they ought

143

See, e.g., Luna, Institutional Design, supra note 29, at 199-200; Richard A. Posner, Social

Norms and the Law: An Economic Approach, 87 A

M. ECON. REV. 365, 365 (1997).

144

See, e.g., McAdams, Regulation of Norms, supra note 140, at 355-75.

145

See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L.

REV. 349, 350-53 (1997); Luna, Institutional Design, supra note 29, at 200.

146

See, e.g., ERIC POSNER, LAW AND SOCIAL NORMS (2000).

147

See supra note 98 and accompany text.

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34 CARDOZO LAW REVIEW [Vol. 32:1

to support such laws.

148

This norm is “sticky” to the point of near

reflexivity for some lawmakers, who might be resilient to new

information about the negative consequences of mandatory minimums

and therefore unlikely to engage in a meaningful reexamination of the

laws or consideration of the alternatives.

B. Theories of Change

Although for years the laws and supporting arguments have been

imbedded in political agendas, several factors make the prospects for

change somewhat less daunting. Because public opposition to

mandatory minimums appears to be growing—consistent with the

opinion of virtually all criminal justice scholars and policy analysts, and

an increasing number of commentators and officials—careful reforms

would neither fly in the face of legal and empirical studies nor be met

by uniform hostility from pundits and the populace. Moreover, such

reform efforts may be bolstered by three considerations: (1) some norms

may be more amenable to change through small moves than sweeping

transformations; (2) small changes to a social norm can have rapid and

dramatic effects; and (3) politicians can be agents of change for reasons

other than self-interest.

1. The Value of Small Moves

Social norms have a stabilizing function for interpersonal

relationships, providing conventions for individual behavior and a ready

means to assess the bona fides of others. When the norms generally

result in appropriate judgments (at least as measured by some external

standard like economic efficiency), individuals may act without

constantly reassessing the propriety of that behavior. Instead, they may

focus their attention on more significant, complex, or rare issues.

149

just noted, however, some social norms may persist well after they have

been disputed by empirical studies and denounced by scholars and

policy analysts. This stickiness makes it difficult to alter beliefs and

attendant behaviors, despite good reasons to do so. People may

continue to abide by an obsolete norm regardless of its inefficiency or

148

Cf. Samuel W. Buell, The Upside of Overbreadth, 83 N.Y.U. L. REV. 1491, 1523-26

(2008).

149

See, e.g., Amitai Aviram & Avishalom Tor, Overcoming Impediments to Information

Sharing, 55 A

LA. L. REV. 231, 250-51 (2004).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 35

immorality, sometimes out of habit but also due to lingering fears of

social disapproval.

150

Several years ago, Dan Kahan explored the problem of sticky

norms in the context of enforcing socially contested crimes.

151

Where

society is divided over the wrongfulness of the underlying conduct,

criminal justice decision-makers may be ambivalent toward the crime

and attached penalty but nonetheless willing to apply the law based on

their desire to carry out their legal duties. However, if lawmakers

determine that the behavior is not only wrongful but merits greater

condemnation, a substantial increase in punishment may have a

perverse effect in practice. “[T]he decisionmaker’s personal aversion to

condemning too severely will dominate her inclination to enforce the

law,” and her unwillingness “will strengthen the resistance of other

decisionmakers, whose reluctance will steel the resolve of still others,

triggering a self-reinforcing wave of resistance.”

152

A legislative “hard shove,” as Professor Kahan calls it, might only

entrench the norm that lawmakers were seeking to change. Statutory

reforms intended to crack down on socially contested criminal behavior

may be nullified by the case-based decisions of police, prosecutors, and

courts.

153

In contrast, if lawmakers make only incremental changes in

condemnation through a “gentle nudge” of criminal liability, criminal

justice actors may apply the new law consistent with their civic duties,

and by doing so, strengthen the predisposition of their colleagues to

enforce the law.

154

Although Kahan focuses on legislative expansions

of liability, this basic pattern can be seen in other areas as well.

155

150

See, e.g., id. at 251-52; see also Jeffrey J. Rachlinski, The Limits of Social Norms, 74 CHI.-

ENT L. REV. 1537 (2000).

151

See Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67

CHI. L. REV. 607 (2000) [hereinafter Kahan, Gentle Nudges].

152

Id. at 608.

153

As examples, Professor Kahan discusses statutory changes concerning date rape, domestic

violence, and drunk driving. See id. at 608-09, 623-25, 628-31, 633-34; see also Dan M. Kahan,

Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases,

158 U.

PENN. L. REV. 729 (2010) (employing cultural cognition theory to examine debate over

rape law reform).

154

According to Professor Kahan, the incremental transformation of anti-drug laws in the

early twentieth century from a taxation and orderly marketing scheme to an outright prohibition

provides an example of how an initial legislative nudge can lead to major changes in the criminal

justice system. See Kahan, Gentle Nudges, supra note 151, at 631-33.

155

For instance, successful litigation strategies may pursue incremental changes to legal

decisions that embody and even protect problematic social norms. While a comprehensive frontal

assault at the outset might only reaffirm anachronistic case law, small challenges that draw upon

shared experiences and principles may, over time, lead a court to reevaluate the norm and

eventually reject its prior decision. The best example is provided by the NAACP Legal Defense

Fund’s brilliant litigation strategy to overturn Plessy v. Ferguson and the Jim Crow system of the

South, culminating in the Supreme Court’s decision in Brown v. Board of Education and its

progeny. See generally R

OBERT J. COTTROL ET AL., BROWN V. BOARD OF EDUCATION: CASTE,

CULTURE, AND THE CONSTITUTION (2003); JAMES T. PATTERSON, BROWN V. BOARD OF

EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001); MARK V.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

36 CARDOZO LAW REVIEW [Vol. 32:1

importantly, there is no theoretical barrier to applying the concept to

moderations of criminal liability.

2. The Nature of Tipping Points

This leads into the second point: Small changes to a social norm

can have rapid and dramatic effects. The basic idea draws upon

epidemiological models of disease transmission and sociological

theories on the propagation of ideas and social customs. When a

“tipping point” is reached—more or less, a threshold of affected

individuals—a virus will spread at a nonlinear rate and an innovation or

norm will be adopted suddenly by a large number of people. The

impetus for this type of movement, what makes something tip, can be a

relatively marginal change. In the mid-1950s, sociologist Morton

Grodzins coined the term tipping point in suggesting that when a

community’s minority population reaches a certain percentage, most

white residents will leave the neighborhood.

156

In the following years,

scholars, policymakers, and jurists discussed this issue of “white flight”

and debated the validity of measures enacted to prevent neighborhoods

from tipping.

157

Although racial segregation has been a primary topic, tipping point

analysis applies to all sorts of trends, from fads of fashion and restaurant

popularity to crime rates and the incidence of suicide. When a

sufficient number of individuals are behaving in a particular way—what

economist Thomas Schelling described as a “critical mass”

158

—large

groups of people may suddenly adopt that behavior. In 2000, author

Malcolm Gladwell popularized the tipping point in his best-selling book

of the same name, applying the concept to a wide and seemingly

disparate variety of social phenomena that nonetheless follow a similar

pattern.

159

“Ideas and products and messages and behaviors spread like

viruses do.”

160

Because behavior is contagious, Gladwell argues, little

TUSHNET, THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950

(1987); R

ICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION

AND

BLACK AMERICA’S STRUGGLE FOR EQUALITY (1975).

156

See Morton Grodzins, Metropolitan Segregation, SCI. AM., Oct. 1957, at 24.

157

See, e.g., Rodney A. Smolla, Integration Maintenance: The Unconstitutionality of Benign

Programs that Discourage Black Entry to Prevent White Flight, 1981 D

UKE L.J. 891; Bruce

Ackerman, Integration for Subsidized Housing and the Question of Racial Occupancy Controls,

26 S

TAN. L. REV. 245 (1974); Gautreaux v. Chi. Hous. Auth., 503 F.2d 930 (7th Cir. 1974); Otero

v. N.Y.C. Hous. Auth., 484 F.2d 1122 (2d Cir. 1973).

158

See THOMAS C. SCHELLING, MICROMOTIVES AND MACROBEHAVIOR 94 (1978).

159

MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG

DIFFERENCE (2000).

160

Id. at 6. Gladwell’s examples include the surprising popularity of Hush Puppies and the

precipitous decline in violent crime in New York City. Id. at 1-9, 19-22, 133-51.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 37

changes can have huge effects and social epidemics can be triggered at a

single dramatic moment.

Scholars have characterized these types of rapid changes as

“bandwagon,” “snowball,” and “cascade” effects, all of which might

help explain remarkable shifts in social norms.

161

Once again, norms

may be so entrenched that they remain in effect well beyond their

usefulness, even if they are recognized as dysfunctional or immoral.

These norms might maintain only a thin, uninformed allegiance,

however, making them susceptible to swift change once a tipping point

is reached. An “informational cascade” may occur when a critical mass

of people begin to act in a particular way, signaling to others that the

behavior is well informed and appropriate under the circumstances.

162

In a similar manner, if a sufficient number of individuals appear to

endorse a belief through their words and deeds, people may join a

“reputational cascade” in order to curry the favor of others or avoid their

censure.

163

Small shifts in social norms can thus produce large, rapid

changes as more and more people alter their views and behaviors.

164

Any number of events might provide an exogenous shock that

pushes a norm to a tipping point—like a natural disaster or, as

mentioned earlier, a horrifying crime or series of crimes

165

—generating

a cascade throughout a population. But oftentimes change is only

possible through the facilitation of specific types of individuals,

variously known as “change agents,” “opinion leaders,” and “norm

entrepreneurs,” whose native abilities and social positions can

encourage others to adopt a new norm.

166

They may have extensive and

diverse personal relationships that allow the rapid spread of new ideas.

They may have knowledge about a vast array of issues or a technical

expertise that gives credibility to the information and opinions they

161

See generally Kuran & Sunstein, supra note 133; TIMUR KURAN, PRIVATE TRUTHS,

PUBLIC LIES: THE SOCIAL CONSEQUENCES OF PREFERENCE FALSIFICATION 250-60 (1995);

David Hirshleifer, The Blind Leading the Blind: Social Influence, Fads, and Informational

Cascades, in T

HE NEW ECONOMICS OF HUMAN BEHAVIOR 188 (Mariano Tommasi & Kathyrn

Ierulli eds., 1995); Sushil Bikhchandani et al., A Theory of Fads, Fashion, Custom, and Cultural

Change as Informational Cascades, 100 J.

POL. ECON. 992 (1992); Harvey Leibenstein,

Bandwagon, Snob, and Veblen Effects in the Theory of Consumers’ Demand, 64 Q.J.

ECON. 183

(1950); Sunstein, Social Norms, supra note 140; S

CHELLING, supra note 158.

162

See, e.g., Bikhchandani et al., supra note 161, at 994.

163

Scholars have pointed to myriad examples of norm cascades in effect, including socio-

political revolutions like the sudden demise of European communism some two decades ago.

See, e.g., Kuran & Sunstein, supra note 133, at 685-87.

164

See, e.g., KURAN, supra note 161, at 261-88; Sunstein, Social Norms, supra note 140, at

929-30; Kuran & Sunstein, supra note 133.

165

See, e.g., supra notes 95-97 and accompanying text; Robert C. Ellickson, The Evolution of

Social Norms: A Perspective From the Legal Academy, in S

OCIAL NORMS 49-51 (Michael

Hechter & Karl-Dieter Opp eds., 2001).

166

See, e.g., EVERETT M. ROGERS, DIFFUSION OF INNOVATIONS 26-27 (4th ed. 1995);

Ellickson, supra note 165, at 51-52; Sunstein, Social Norms, supra note 140, at 909, 929-30;

LADWELL, supra note 159, at 30-74.

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38 CARDOZO LAW REVIEW [Vol. 32:1

provide. They may be especially convincing in their arguments and

possess a high “social intelligence”

167

that lets them recognize the value

of change. Or they may have a combination of these and other

attributes.

3. The Existence of Statesmen

Which brings us to the third point: Politicians can be change agents

and may act for reasons other than self-interest. Some of the most

successful political actors recognize the problems with specific norms

and have the ability to persuade others to adopt new ones. As Cass

Sunstein notes, these actors “can exploit widespread dissatisfaction with

existing norms by (a) signaling their own commitment to change, (b)

creating coalitions, (c) making defiance of the norms seem or be less

costly, and (d) making compliance with new norms seem or be more

beneficial.”

168

Especially talented political leaders will use their

communication skills to bring attention to issues, and even to reframe

them in a way that resonates with their audience, changing how the

underlying norms are viewed. Of course, politicians may seek to

change a social norm to serve their own self-interests, as predicted by

public choice theory. Worse yet, they may appeal to prejudice and base

emotions, their demagoguery inflaming the public to support change

that might otherwise be rejected as unjustifiable.

What is interesting is not that lawmakers may use their political

skills toward their own ends, however, but that history is marked by

officials who have disregarded or downplayed their self-interests to do

what is best for society. Often referred to as “statesmen” (or

“stateswomen”), they take positions that could be perceived as

unpopular and politically dangerous, and then seek to change the views

of others through sensible lines of reasoning supported by reliable

evidence.

169

“What the statesman is most anxious to produce,”

Aristotle opined, “is a certain moral character in his fellow citizens,

namely, a disposition to virtue and the performance of virtuous

actions.”

170

Compared to other politicians, this type of leader is less

self-centered or short-sighted in his decision-making process and

ultimate judgments. Rather than acting solely for future elections and

167

See, e.g., Ellickson, supra note 165, at 45.

168

Sunstein, Social Norms, supra note 140, at 929.

169

See, e.g., Charles Rowley’s Blog, http://charlesrowley.wordpress.com/2010/01/15/the-

statesman (Jan. 15, 2010, 09:41 EST).

170

THE ETHICS OF ARISTOTLE 31 (J.A.K. Thomson ed., 1953).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 39

partisan victories, he is interested in the success of the nation and the

welfare of subsequent generations.

171

The statesman thus demonstrates what has been described as

“bounded self-interest.”

172

Studies suggest that people are concerned

about fairness and the well-being of others, including those with whom

they have no intimate or personal contact; and their political choices

may be purely altruistic and in pursuit of collective aspirations.

173

some, this behavior might demonstrate the limits of the rationality

assumption, with individuals sometimes contravening their own

economic self-interests and acting “nicer . . . than the agents postulated

by neoclassical theory.”

174

Others might argue that, in microeconomic

terms, these individuals’ utility functions place a stronger emphasis on

the pursuit of truth and doing what they believe is right, for example,

and might include genuine concerns about the legacies they leave.

175

By either explanation, however, the statesman defies cynical

expectations, going beyond what is perceived to be in his own narrowly

drawn political self-interests, and in doing so, encouraging his

colleagues to do the same.

C. Application and Limitations

Together, these points offer a vision of how mandatory minimums

might be reformed. For the reasons discussed in the previous Part, a bill

that explicitly and completely purges mandatory sentences from the

federal system is likely to be a political nonstarter in Congress. In

contrast, a modest proposal that draws upon common principles and

values may be less likely to provoke soft-on-crime anxieties among

lawmakers or a backlash from federal prosecutors.

176

In other words,

this type of limited reform offers a gentle nudge toward a new norm that

challenges the propriety of excessive punishment. A congressional

statesman might forward the proposal, persuading his colleagues and

171

Cf. THE NEW DICTIONARY OF THOUGHTS: A CYCLOPEDIA OF QUOTATIONS 476 (C.N.

Catrevas & Jonathan Edwards eds., Standard Book Company 1944) (1877) (“A politician thinks

of the next election; a statesman of the next generation. A politician looks for the success of his

party; a statesman for that of his country. The statesman wishes to steer, while the politician is

satisfied to drift.” (quoting nineteenth-century theologian and scholar James Freeman Clarke)).

172

See Jolls et al., supra note 132, at 1479.

173

See, e.g., id.; Sunstein, Social Norms, supra note 140, at 960; see also Joseph Henrich et

al., In Search of Homo Economicus: Behavioral Experiments in 15 Small-Scale Societies, 91

AM.

ECON. REV. 73 (2001); Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the

New Behavioral Law and Economics Movement, 34 L

AW & SOC’Y REV. 973, 979 (2000).

174

Jolls et al., supra note 132, at 1479.

175

See, e.g., Charles Rowley’s Blog, supra note 169.

176

Such values may be akin to law enforcement’s general desire to enforce the law and fulfill

it civic obligations. See supra text accompanying notes 151-53.

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40 CARDOZO LAW REVIEW [Vol. 32:1

constituents through sound arguments about the ineffectiveness of

mandatory minimums, the glaring injustices they produce, and the

minimal nature of the reform itself.

As in the past, supporters may have to contend with the

conventional wisdom about the pro-punishment politics of criminal

justice. The task might be far less difficult than assumed, however,

given the potentially tenuous hold of the long-standing norm favoring

harsh punishment. In fact, this norm might be reaching a tipping point,

as evidenced by growing opposition to mandatory minimums among the

public and political class. If so, a small reform backed by an influential

change agent might trigger an informational and reputational cascade in

Congress, with more and more representatives hopping on the

bandwagon in support of the proposal. If the initial change proves

successful, other reforms might follow as officials come to embrace a

new norm regarding crime and punishment.

Admittedly, this is only a theory of how the process might take

place. Such speculation is largely unavoidable considering the dearth of

congressional reductions in criminal liability. Not unlike the new crack

cocaine law, however, earlier reforms were enacted in a tough-on-crime

political environment. Largely due to a moral panic about drugs,

Congress passed the Boggs Act of 1951,

177

which imposed a series of

harsh mandatory minimums for federal drug crime.

178

A decade and a

half later, Richard Nixon swept into office on an anti-crime platform,

including a call for tougher punishment, echoed by federal

lawmakers.

179

But in the first year of his administration, President

Nixon changed course and suggested that severe sentences were not the

inevitable solution to America’s crime problems.

Bolstered by conservative proponents, Congress sought to

eliminate almost all mandatory minimum penalties as part of a

comprehensive drug reform bill.

180

Lawmakers argued that mandatory

sentences were “inconsistent, illogical, and unduly severe in some

cases,” and had “little or no deterrent value.”

181

Speaking in favor of

the proposed law, then-Congressman George H.W. Bush made the

following comments on the House floor:

Contrary to what one might imagine, [a repeal of mandatory

minimums] will result in better justice and more appropriate

177

Pub. L. No. 82-235, 65 Stat. 767 (1951) (codified as amended at 21 U.S.C. § 174)

(repealed 1970); see, e.g., G

ILL, supra note 104, at 12-17.

178

See, e.g., Wallace, supra note 37.

179

See, e.g., Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56

TAN L. REV. 1211, 1265-66 (2004) [hereinafter Miller, Domination].

180

See, e.g., id. at 1267. See generally Comprehensive Drug Abuse Prevention and Control

Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified as amended at 21 U.S.C. § 801

(2006)).

181

116 CONG. REC. 33,313-14 (1970) (statement of Rep. Beall).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 41

sentences. For one thing, Federal judges are almost unanimously

opposed to mandatory minimums, because they remove a great deal

of the court’s discretion. . . . As a result [of this bill], we will

undoubtedly have more equitable action by the courts, with actually

more convictions where they are called for, and fewer

disproportionate sentences. Mr. Chairman, these penal reforms have

been a long time in coming. Now that we have them, let us not delay

in moving them to the President’s desk.

182

Ultimately signed by President Nixon, the law attempted to address

criticisms of mandatory sentencing that sound eerily similar to those

heard today, forty years later.

Mandatory minimums remain sticky, as suggested by decades

without repeal and the quarter-century resilience of the crack/powder

cocaine differentials in mandatory sentencing. But while attempts to

completely eliminate the later disparity were unsuccessful, more modest

changes were enacted with widespread support that crossed political

lines, including a unanimous vote in the Senate.

183

So although an

across-the-board elimination of mandatory minimums may be

impracticable today, this history seems to suggest that it is not

altogether impossible to achieve some measure of reform. A moderate,

principled proposal, supported by influential political actors, might

receive bipartisan support and set the stage for further change.

Some important caveats should be mentioned about the premises of

this undertaking, however. To begin with, the behavioral sciences have

no normative agenda. They cannot tell you what is right or good, only

what is and what could be. “Social meaning does no work on its own,”

philosopher Martha Nussbaum notes.

184

Instead, “it offers an invitation

to normative moral and political philosophy.”

185

This invitation

presents both conceptual and practical perils for those who wish to use

economic, sociological, and psychological theories in pursuit of a

particular end. The fact that we can regulate social norms or respond to

biases and heuristics to support government action does not imply that

we ought to do so. It can be argued that such interference is inherently

illiberal, a newfangled social engineering that manipulates its audience

toward particular choices, in service of the engineer’s own conception

of the good.

186

Wielded by government, the tools of the behavioral

sciences are available to both the benevolent and the exploitative.

182

Bush Speech, supra note 3.

183

See, e.g., supra notes 12-23 and accompanying text.

184

Martha Nussbaum, “Whether from Reason or Prejudice”: Taking Money for Bodily

Services, 27 J.

LEGAL STUD. 693, 696 (1998); see also Russell Hardin, Magic on the Frontier:

The Norm of Efficiency, 144 U.

PA. L. REV. 1987, 2014 (1996); Lessig, supra note 140, at 1101;

Kahan, Gentle Nudges, supra note 151, at 640-41.

185

Nussbaum, supra note 184, at 696.

186

See, e.g., Lessig, supra note 140, at 1016-19; Posner, supra note 143, at 367; see also Tibor

Machan, The Scope of Public Choice Theory, T

HE FUTURE OF FREEDOM FOUND. (Sept. 1, 2008),

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42 CARDOZO LAW REVIEW [Vol. 32:1

Besides the “darker side”

187

to this enterprise, there are questions

as to whether behavioral insights can be effectively harnessed to serve a

particular goal, or whether attempts at norm management might

backfire and only make things worse. Scholars who have utilized these

insights have been criticized for, among other things, an alleged lack of

scientific rigor, the manipulation of ambiguous terms, the absence of a

distinct analytical methodology, the exploitation of anecdotes and trivial

findings, the facile logic of policy prescriptions, and the inattention to

moral and constitutional theory.

188

We do not mean to enter into this important debate here. Instead,

drawing upon theories of economics, sociology, and psychology, we

sought an explanation for the enactment and retention of mandatory

minimums, which exist today despite empirical refutation and growing

public and political opposition. The behavioral sciences offer such an

account, but we do not deny that some other story might fit just as well.

We also try to provide a plausible understanding of how reform might

take place given current conditions (or at least perceptions thereof).

Most importantly, we are not trying to modify the preferences and

behaviors of the general public. Instead, the ultimate target is the

people’s representatives, in the hope that lawmakers will do what is

supported by research, legal and moral analysis, and the people

themselves. For this reason, we believe that the posited process is not

only conceivable as a descriptive matter, but also normatively justified.

If it turns out that our understanding of the relevant facts and

values is incorrect, then the process and its conclusions are also flawed

and may well be irrelevant. This discussion is moot, for instance, if it

turns out that the opposition to mandatory minimums is so

overwhelming, categorical, and politically effective that it forces

lawmakers to immediately eliminate the laws in one fell swoop.

Conversely, if the perceived opposition turns out to be illusory or weak,

a key predicate is absent and the likelihood of reform substantially

undermined. And if the public and political class believe that

mandatory minimums are an unmitigated good, well, this entire project

is simply wrongheaded and a nonstarter from the outset. But if the

opposition is real and growing and normatively justified, and if reform

http://www.fff.org/comment/com0809a.pdf; The New Chicago School: Myth or Reality?, 5 U.

CHI. L. SCH. ROUNDTABLE 1, 20-22, 26 (1998) (comments of Richard Epstein); Edna Ullmann-

Margalit, Revision of Norms, 100 E

THICS 756, 764 (1990).

187

See Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 691 (1998).

188

For critiques of social norms scholarship, see, for example, Robert Weisberg, Norms and

Criminal Law, and the Norms of Criminal Law Scholarship, 93 J.

CRIM. L. & CRIMINOLOGY 467

(2003); Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U.

PA. L.

REV. 1363 (2000); Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms,

86 V

A. L. REV. 1603 (2000); Mark Tushnet, “Everything Old Is New Again”: Early Reflections

on the “New Chicago School,” 1998 W

IS. L. REV. 579 (1998).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 43

efforts are currently inhibited by a sticky but fragile norm among

federal lawmakers, the process we describe might provide a reasonable

means of change. What is more, the initial minimalist proposal

discussed below will have beneficial effects in and of itself, even if it

does not generate further reforms.

In the following pages, we will not engage in the perilous task of

naming potential norm entrepreneurs in Congress, except to say that we

are confident that such statesmen and stateswoman exist. Nor will we

offer suggestions on how to promote reform in the media and halls of

Congress, other than to describe those principles that inform our

specific proposal. The difficult questions of public relations are best

left to interested organizations and the lawmakers themselves. Instead,

we will focus on an overarching theory of minimalist reform, the

principles that could inform such efforts and provide grounds for

consensus, and a specific legislative proposal that could achieve the

reform objectives.

III.

MINIMALISM

The idea of minimalism has been a topic of debate in both political

philosophy and legal theory, motivated by the very nature of liberal

society and its institutions. As a philosophical question, how can

governments that anticipate, protect, and even encourage diverse

worldviews nonetheless ensure stability, harmony, and sound public

policy? Liberal constitutional democracies like the United States are

often composed of a citizenry profoundly divided by incompatible, even

incommensurable ideologies. A case in point is the wide range of

reasonable sentencing justifications, both consequentialist and non-

consequentialist. As recounted by Justice Breyer, the diversity of views

made it impossible for the U.S. Sentencing Commission to construct a

single theoretically grounded punishment scheme: “We couldn’t

because there are such good arguments all over the place pointing in

opposite directions.”

189

In general, then, how are we to get along and

act collectively for the betterment of society?

The object here is not just a political compromise, which tends to

provide only a temporary modus vivendi and can carry significant error

costs. In the worst-case scenario, a compromise on moral principles can

be counter-productive, especially if antagonists engage in “face-

smashing”

190

operations along the way, leaving open wounds and scores

189

Jeffrey Rosen, Breyer Restraint, NEW REPUBLIC, July 11, 1994, at 19, 25 (quoting Breyer).

The resulting compromise by the Commission has been roundly criticized by some scholars,

including one of us. See Luna, Gridland, supra note 29, at 45-46.

190

See, e.g., Luna, Rorschach Test, supra note 98, at 61-74.

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44 CARDOZO LAW REVIEW [Vol. 32:1

to settle and setting the stage for further conflict. If any of the political

camps wants to gain the high ground, they may simply abandon the

agreement to improve their position. Moreover, political horse trading

is an infrequent vehicle of broad social agreements and unlikely to

provide principles for further progress on the issue in question. In the

present case, meaningful sentencing reform with a realistic prospect for

further improvements may require a political consensus grounded in

mutually agreed upon principles.

A. Minimalism—Philosophical, Judicial, and Political

In his book, Political Liberalism, John Rawls developed the idea of

an “overlapping consensus” as an answer to the plurality of reasonable

but incompatible theories in a liberal society.

191

Obviously, advocates

of different moral and religious doctrines will not agree all the way

down, so to speak. But consistent with their respective worldviews,

they may nonetheless concur on certain constitutional principles that

together comprise a conception of justice.

192

People will agree on these

principles for their own reasons, affirming, rather than compromising,

their espoused comprehensive doctrines. This provides the best

motivation to support, defend, and act upon the principles within the

overlapping consensus, without disparaging or denying the theoretical

commitments of others. The overlapping consensus thus suggests that

highly particularized conflict among comprehensive doctrines can be

overcome through abstraction and principled agreement on a

constitutional structure, which can then provide the basis for political

action.

In contrast, minimalism in legal theory has focused on the specific

role of the courts within a constitutional democracy. The problem

posed by judicial review of the political branches is well known—the

“countermajoritarian difficulty,” as Alexander Bickel called it—with

politically unaccountable judges able to thwart the will of the majority

as expressed through elected officials.

193

This great power must be

tempered with prudence, Bickel argued in the early 1960s, in order to

sidestep unnecessary conflicts with the political branches. By using a

variety of jurisprudential techniques, the Supreme Court could avoid

deciding problematic cases, or at least the substantive issues they

191

See JOHN RAWLS, POLITICAL LIBERALISM 133-72 (1993); see also John Rawls, Reply to

Habermas, 92 J.

PHIL. 132 (1995).

192

For Rawls, this conception is “justice as fairness.” See generally JOHN RAWLS, A THEORY

JUSTICE (1971).

193

ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE

BAR OF POLITICS 16 (1962).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 45

presented.

194

As a result, the Justices neither legitimized a dubious

political act nor placed the Court at odds with the political branches and

the public, thereby providing time for reflection while gathering

information and resources for future review should the issue not be

resolved through democratic means.

Cass Sunstein offers a contemporary account of judicial

minimalism, based on his notion of “incompletely theorized

agreements.”

195

Like Rawls, Sunstein seeks an approach to deal with

conflict among reasonable views, in particular, theories of judicial

interpretation. Aficionados of originalism, textualism, political process

theory, precedent, natural law, moral reading, and so on, entertain deep

disagreements over interpretive methodology and even the Supreme

Court’s raison d’être. Nonetheless, judges with different worldviews

can still agree on an appropriate decision in the case before them

without assenting to a single theory that justifies that outcome.

The result is an incompletely theorized agreement, a small step that

is consistent with but does not invoke any jurist’s grand theory. The

decision is shallow in that it leaves foundational issues unanswered, and

it is narrow by resolving the precise issue before the Court while putting

off related issues for another day. This judicial minimalism facilitates

decisions where more ambitious judgments would be impossible.

Minimalist decisions can also reduce error costs in the face of limited

information, show respect for those who embrace rival theories, quiet

social controversy while promoting incremental change, and inspire

discussion and further reform through the democratic process.

We would like to suggest that philosophical and judicial

minimalism could have a cousin of sorts, what might be called “political

minimalism.” The relevant body is not the entire populace of a liberal

society à la Rawls, although the public is a critical audience for the

ensuing decisions. Federal judges will be the ones directly applying any

resolution to specific cases—but in contrast to the theories of Bickel and

Sunstein, courts are not the primary focus. Instead, national

representatives are the crux of political minimalism. They are the ones

who will be the subject of an overlapping consensus on basic principles

and can bring about small but critical steps in the reform of mandatory

minimum sentencing. Unlike Rawls’s hypothetical interlocutors,

194

See id.; Alexander M. Bickel, Foreword: The Passive Virtues, 75 HARV. L. REV. 40

(1961). The techniques include discretionary denial of jurisdiction, doctrines such as vagueness

and political question, and case or controversy requirements. But see Gerald Gunther, The Subtle

Vices of the “Passive Virtues,” 64 C

OLUM. L. REV. 1 (1964) (providing a devastating critique of

Bickel’s thesis).

195

See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE

SUPREME COURT (1999); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L.

REV. 4 (1996); Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733

(1995).

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46 CARDOZO LAW REVIEW [Vol. 32:1

federal officials have to get down to details if decisions are to be made.

It is not enough to just agree on a conception of justice. And unlike

Bickel and Sunstein’s minimalist judges, lawmakers have explicit

political platforms and constituents. They will have to run for office

again, and opponents may try to skewer them on their legislative record.

Political minimalism nonetheless draws upon the wisdom offered

by scholarly advocates of theoretical and judicial minimalism. As

Rawls notes, abstraction to constitutional principles “is a way of

continuing public discussion when shared understandings of lesser

generality have broken down.”

196

To connect particularized conflicts

and concerns with something recognizable and indispensable, we must

turn to “the fundamental ideas implicit in the public political culture.”

197

Per Bickel, prudential moves can avoid unnecessary clashes by

sidestepping large substantive issues that might put a decision-maker at

odds with the citizenry. In the meantime, the relevant body can gather

data and resources for further action. Likewise, shallow and narrow

decisions in the Sunsteinian model facilitate small but otherwise

unattainable agreements, which allow each participant to maintain their

theoretical commitments, minimize the societal costs of error and the

professional costs of public backlash, and establish the groundwork for

further action.

As we see it, political minimalism may involve at least three steps:

(1) articulating mutually agreed upon principles that can inform and

justify a political decision; (2) locating the appropriate vehicles and

materials for the decision; and (3) operationalizing the decision into the

language of law. For the reform of mandatory minimums, the first two

steps will be discussed immediately below, and the third step will be the

topic of Part IV.

B. Principles for Political Minimalism

In searching for principles to support minimalist decision-making

on mandatory sentencing, the objective is to find constitutional or socio-

political concepts that receive widespread support among lawmakers

and their constituents. It is not necessary for politicians and the public

to agree on particular conceptions of these principles. For example,

virtually all Americans endorse the concept of free speech despite

disagreement on its application to commercial advertising, pornography,

campaign contributions, and so on. But as long as a decision is truly

minimalist—a small, consciously under-theorized step that skirts any

196

RAWLS, supra note 191, at 46.

197

Id.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 47

larger controversy—such differences need not hinder the process. Each

participant can remain true to their chosen ideology and credibly argue

that the decision is consistent with highly valued principles.

The minimalist approach hopes to provide justification for the

many officials who, we believe, could support at least some reform of

mandatory sentencing. Each lawmaker can point out that the new law

affirms the separation of powers doctrine, for instance, and the value of

proportionality in sentencing, given that reasonable conceptions of these

principles are in harmony with the reform we propose in the next Part.

Presumably, constituents would be inclined to adopt the position of their

respective representatives, whose interpretations of constitutional

principles are likely to be shared by those within his or her home district

(or even state). Whatever conception comes to mind is likely to be

positive (e.g., the virtuous images associated with the term “equality”)

and consistent with minimalist action.

As will be seen below, lawmakers concerned about campaign

consequences can note that the reform is not a legislative repeal of

mandatory minimums but instead a narrow exception applied in extreme

circumstances. Since the laws remain on the books, die-hard supporters

of mandatory sentencing can still rely on the purported advantages of

such schemes (e.g., deterring potential offenders and providing

prosecutorial leverage in serious cases). Nonetheless, criminal justice

actors will recognize that a minimalist law can still serve as a decision

rule in a particular case, presenting a psychological and, if necessary, a

practical check on abusive deployment of mandatory minimums. In

turn, those who oppose mandatory minimums in any form can view this

as the first step and a foundation for future reforms.

Most importantly, the basic principles might offer grounds for

consensus among all groups. Here are some possible principles that

could inform a minimalist proposal and animate discussion about

reforms to mandatory sentencing:

• Separation of Powers. One of the central concerns of liberal society is

the arbitrary, oppressive authority that stems from the accumulation of

too much power in too few hands. The traditional solution is to create a

system of checks and balances, distributing power across government

institutions in a manner that precludes any entity from exercising

excessive authority and sets each body as a restraint on the others.

198

Along these lines, the U.S. Constitution employs a pair of structural

devices, the first being the separation of powers among co-equal

198

See, e.g., BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. XI, ch. 6 (Thomas

Nugent trans., 1914) (1748), available at http://www.constitution.org/cm/sol.txt; T

FEDERALIST NO. 47 (James Madison).

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48 CARDOZO LAW REVIEW [Vol. 32:1

branches—the legislative, executive, and judicial

199

—each having

“mutual relations” in a series of checks and balances.

200

• Constitutional Roles. Within this framework, prosecutors and judges

occupy distinct but overlapping roles in the criminal justice system. The

prosecution has the discretionary authority to instigate charges against a

defendant, amass evidence of crime, and seek convictions as an adversary

in the trial process. The prosecutor has a personal stake in the

outcome,

201

however, and cannot be described as an ordinary party,

considering the vast power he wields and the principal he represents.

202

In contrast, the function of the judge is to serve as a neutral arbiter and

dispassionate decision-maker in individual cases. Moreover, an

independent judiciary was meant to protect individuals from the

prejudices and heedlessness of lawmakers and executive officials.

203

• Federalism. The division of power between national and state

governments provides the second structural device to prevent the

arbitrary, repressive tendencies of concentrated authority. Grounded in

the text and context of the Constitution,

204

federalism limits the powers

of national government and prevents federal interference with the core

internal affairs of the states.

205

One of the areas that the Framers sought

to reserve to the states was “the ordinary administration of criminal and

civil justice.”

206

Although there are various arguments in favor of

federalism, such as pluralistic decision-making and local

experimentation,

207

“the principal benefit of the federalist system” is the

199

U.S. CONST. arts. I-III.

200

THE FEDERALIST No. 51, at 263 (James Madison) (Ian Shapiro ed., 2009).

201

See supra notes 114-14 and accompanying text.

202

See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935); see also Robert H. Jackson, The

Federal Prosecutor, 31 J.

AM. INST. CRIM. L. & CRIMINOLOGY 3 (1940).

203

See, e.g., THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 200, at 405-06; see

also Johnson v. United States, 333 U.S. 10, 14 (1948).

204

Specifically, federalism was enshrined in the U.S. Constitution by expressly enumerating

the powers of the federal government, see U.S.

CONST. art. I, §8, and by declaring that all other

powers were “reserved to the States respectively, or to the people.” Id. amend. X; see also T

FEDERALIST NO. 45 (James Madison), supra note 200, at 292-93.

205

See, e.g., THE FEDERALIST NO. 45 (James Madison), supra note 200, at 292-93.

206

THE FEDERALIST NO. 17 (Alexander Hamilton), supra note 200, at 120. The Constitution

mentioned only a handful of crimes in its text, all of which were consistent with the design and

limits of federalism. See U.S.

CONST. art. I, §8, cl. 6 (counterfeiting); id. art. I, § 8, cl. 10 (piracy,

felonies on the high seas, offenses against the law of nations); id.

art. III, § 3 (treason).

207

See, e.g., Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U.

CHI. L. REV. 1484 (1987). In a pluralistic society, citizens in different communities are likely to

have distinct views on the substance and process of criminal justice. State and local decision-

makers are more likely to be attuned to such preferences, given their closeness to constituents and

the greater opportunity for citizens to be involved in state and local government, including the

legal system. Unencumbered by national dictates, states may even become laboratories of

experimentation in criminal justice. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a

single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country.”).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 49

protection of individual liberties by preventing the concentration of

power and the ensuing danger of government overreaching.

208

• Proportionality. Among the restraints liberalism places on the criminal

process is a prohibition on excessive sentences.

209

As explicated in

current doctrine, t

his limit concerns not only barbaric penalties but also

punishment disproportionate to the underlying offense.

210

For many, the

idea of proportionality between crime and punishment expresses a

universal principle of justice and a restriction on government power that

has been recognized throughout history and across cultures.

211

Proportionality analysis naturally takes into consideration the gravity of

the offense and the severity of the punishment. The assessment might

also look within and without the relevant criminal justice system by

examining how the jurisdiction punishes arguably more serious crimes

and how other jurisdictions treat the same offense.

212

• Equality. The concept of equality—that all people are equal before the

law and that any legal distinction requires justification—is embedded in

liberal thought and considered fundamental to a just society.

213

Equality

in the Aristotelian sense requires decision-makers to treat like cases alike,

208

See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (“Just as the separation and

independence of the coordinate branches of the Federal Government serve to prevent the

accumulation of excessive power in any one branch, a healthy balance of power between the

States and the Federal Government will reduce the risk of tyranny and abuse from either front.”);

see also United States v. Lopez, 514 U.S. 549, 566 (1995).

209

U.S. CONST. amend. VIII (banning “cruel and unusual punishments”); Universal

Declaration of Human Rights, G.A. Res. 217A (III), ¶ 5, U.N. Doc. A/810 (Dec. 10, 1948) (“No

one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment.”);

International Covenant on Civil and Political Rights, G.A. Res. 2200A, ¶¶ 7, 10, U.N. GAOR,

21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 19, 1966), reprinted in 999 U.N.T.S. 171

(similar); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/708 (Dec. 10, 1984) (similar).

210

See, e.g., Solem v. Helm, 463 U.S. 277, 284 (1983).

211

See Luna Testimony, supra note 37, at 1 n.3.

212

All of these considerations are part of the Supreme Court’s Eighth Amendment test to

determine whether a term of imprisonment amounts to cruel and unusual punishment. In Solem v.

Helm, the Court held “as a matter of principle that a criminal sentence must be proportionate to

the crime for which the defendant has been convicted.” Solem, 463 U.S. at 289. According to the

Solem Court, “proportionality analysis under the Eighth Amendment should be guided by

objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the

sentences imposed on other criminals in the same jurisdiction, and (iii) the sentences imposed for

commission of the same crime in other jurisdictions.” Id. at 292. This three-part test was later

adopted by Justice Kennedy in his concurrence in Harmelin v. Michigan, in which he concluded

that the Eighth Amendment forbids “extreme sentences that are ‘grossly disproportionate’ to the

crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring). The

Solem-Harmelin three-part analysis is now the governing Eighth Amendment standard for terms

of imprisonment. See Ewing v. California, 538 U.S. 11, 23-24 (2003) (noting that “Justice

Kennedy’s concurrence [in Harmelin] guide[s] our application of the Eighth Amendment”). As

mentioned above, however, the test has been essentially toothless in the courts.

213

See Erik Luna, Cuban Criminal Justice and the Ideal of Good Governance, 14

RANSNAT’L L. & CONTEMP. PROBS. 529, 590 n.246 (2004).

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50 CARDOZO LAW REVIEW [Vol. 32:1

and just as importantly, to treat dissimilar cases differently.

214

It would

thus be a violation of equality for relevantly similar offenders to receive

disparate sentences and for relevantly dissimilar offenders to receive

analogous sentences.

• Truth & Transparency. All decent criminal processes are concerned

about honesty and openness. The pursuit of truth presents a primary,

commonly understood goal of the American trial process.

215

Indeed,

truth-seeking appears to be a cross-cultural criterion of legitimacy in

criminal justice, to the point that justice is considered largely

unachievable without truth.

216

Likewise, transparency is not only a well-

established norm of American public law, but also a background

assumption of representative democracy. Open government is widely

regarded as a necessary condition to effectively monitor and assess

official actions, and it provides an important basis for trust between

citizen and state.

217

Although the full meaning and appropriate application of these

principles can be debated ad nauseam, a consensus may still be reached

regarding the core values of each principle. Consider, for instance, the

separation of powers and the role of the judiciary. As a matter of

history and experience, an autonomous court system under the guidance

of impartial jurists has proven to be an indispensable aspect of

American constitutional democracy.

218

The trial judge stands as the

only experienced decision-maker in a federal courtroom without a

personal interest in the outcome of a case. For this reason, the trial

court’s central functions have traditionally included dispositive criminal

justice issues that demand evenhanded judgment, among them, the

appropriate sentence in particular cases.

Coming from judges themselves, this position on court

prerogatives would not be altogether unexpected. But similar (if not

stronger) attitudes have been expressed by some conservative

commentators, who oppose mandatory minimums based on an

originalist interpretation of the separation of powers doctrine and the

role of the courts in sentencing.

219

What is more, the vast majority of

214

Cf. ARISTOTLE, THE POLITICS 97 (Carnes Lord trans., 1984).

215

See, e.g., WAYNE R. LAFAVE ET AL., 1 CRIM. PROC. § 1.5(b) (3d ed. 2009).

216

See, e.g., Thomas Weigend, Is the Criminal Process About Truth?: A German Perspective,

26 H

ARV. J.L. & PUB. POL’Y 157, 172 (2003).

217

See, e.g., Luna, Transparent Policing, supra note 29.

218

See, e.g., LEARNED HAND, THE SPIRIT OF LIBERTY 172-82 (1952); Robert M. Howard &

Henry F. Carey, Is an Independent Judiciary Necessary for Democracy?, 87 J

UDICATURE 284

(2004).

219

See, e.g., Keene Testimony, supra note 7, at 117-18:

[M]y opposition to mandatory minimums . . . is rooted in conservative principles;

namely, reverence for the Constitution and contempt for government action that

ignores the differences among individuals. . . . James Madison, for one, believed that a

clear separation of powers was more vital to protecting freedom than the Bill of Rights.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 51

Americans, both Democrat and Republican, believe that courts are

generally the proper bodies to be making sentencing judgments in

individual cases.

220

Reflection upon the other principles would yield comparable

conclusions. Although the federal government was not provided a

general police power in the Constitution,

221

Congress has assumed such

authority in criminal matters, occasionally with a nod to an enumerated

power, usually the regulation of interstate commerce. Whether or not

this arrogation of authority is constitutional, it is surely here to stay.

This does not mean, however, that politicians, courts, and commentators

have been or should be oblivious to considerations of federalism. At

times, both liberals and conservatives have expressed such concerns

about government policies.

222

Although political partisans may not

invoke federalism in the same cases, they appear to agree on its core

value.

Admittedly, the principles of proportionality and equality raise

difficult issues in sentencing. In measuring the gravity of an offense for

proportionality analysis, one might look to, among other things, “the

harm caused or threatened to the victim or society.”

223

Although harm

is a notoriously thorny idea,

224

most agree that the basic criminal harms

involve acts or threats of physical violence and non-consensual or

fraudulent deprivations of others’ property.

225

Another difficult issue

Yet mandatory minimums undermine this important protector of liberty by allowing

the legislature to steal jurisdiction over sentencing, which has historically been a

judicial function. The attempt by legislatures and the Congress to address perceived

problems in the justice system by transferring power from judges to prosecutors and

the executive branch violate these principles and have, in the process, given

prosecutors unreviewable authority to influence sentences through their charging

decisions and plea bargaining power.

Id.

220

See Omnibus Survey, supra note 8.

221

See, e.g., United States v. Lopez, 514 U.S. 549, 566 (1995); Brown v. Maryland, 25 U.S.

419, 443 (1827).

222

See, e.g., Jonathan R. Macey, Federal Deference to Local Regulators and the Economic

Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 V

A. L. REV. 265,

265 (1990); Kadish, Overfederalization, supra note 93, at 1247; see also infra note 309 and

accompanying text (citing and quoting court cases).

223

Solem v. Helm, 463 U.S. 277, 288-93 (1983); see also Rummel v. Estelle, 445 U.S. 263,

275 (1980).

224

Consider, for instance, the scholarly debate regarding Mill’s theory of the liberal state and

his famous “harm principle.” See J

OHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 13

(Stefan Collini ed., 1989) (1859) (“[T]he only purpose for which power can be rightfully

exercised over any member of a civilised community, against his will, is to prevent harm to

others.”). The theory elides the difficulties in distinguishing between “self-regarding” and “other

regarding” harm; moreover, Mill acknowledged that “offences against decency” could provide a

basis for criminalization. See id. at 98. See generally Bernard E. Harcourt, The Collapse of the

Harm Principle, 90 J.

CRIM. L. & CRIMINOLOGY 109 (1999).

225

See, e.g., PAUL H. ROBINSON & JOHN M. DARLEY, INTUITIONS OF JUSTICE: IMPLICATIONS

FOR

CRIMINAL LAW AND JUSTICE POLICY 1 (2007).

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52 CARDOZO LAW REVIEW [Vol. 32:1

concerns the facts or circumstances that should be relevant to equality in

punishment. As evinced by many modern sentencing schemes,

however, there appears to be some concurrence on pertinent factors,

such as the gravity of the offense, the defendant’s criminal history, and

his prospects for reform or recidivism.

226

At this level of abstraction,

proportionality and equality could receive broad political consensus.

There are obvious limits to the principles of truth and transparency.

Although truth is a core value in the criminal justice system, it is

sometimes trumped by other concerns, such as privacy, autonomy, and

human dignity. Under current jurisprudence, courts may exclude from

trial reliable evidence probative of the truth,

227

and weighty

considerations may also limit the level of openness of law

enforcement.

228

Nonetheless, reasonable exceptions do not undermine

the general rule that government action should be transparent and the

criminal process should pursue the truth. When the issue is punishment,

a legitimate system would not allow fictions to be presented as facts

through an obscure process.

All of these principles might be evident in the new crack cocaine

law, although considerations of equality (and proportionality) tended to

dominate the debate. Of particular relevance were the issue of racial

disproportionality in drug sentencing and the concomitant distrust of

law enforcement. For instance, five prominent conservatives argued

that the law “will increase confidence in the criminal justice system by

reducing the perception of racial bias.”

229

According to analyses by the U.S. Sentencing Commission, the

disparity between crack and powder cocaine sentences has had a

disproportionately negative impact on African Americans. Blacks

use crack at about the same rate as whites but nearly 80 percent of

federal crack defendants in 2009 were African American, and crack

sentences were, on average, over two years longer than sentences for

powder cocaine offenses. Law enforcement and criminal justice

226

Compare, e.g., 18 U.S.C. § 3553(a) (2006) (listing purposes of criminal sentences), with

LASKA STAT. § 12.55.005 (2006) (same).

227

Evidence may be suppressed if, for instance, government agents violated a defendant’s

protection against unreasonable searches and seizures, his privilege against self-incrimination, or

his right to an attorney. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961). It should be noted that

one of us (Cassell) has been a leading opponent of the exclusionary rule. See supra note 28

(listing work in opposition to Miranda); see also Paul G. Cassell, The Mysterious Creation of

Search and Seizure Exclusionary Rules Under State Constitutions: The Utah Example, 1993

TAH L. REV. 751 (1993).

228

For example, law enforcement may not disclose information about ongoing criminal

investigations in order to prevent the destruction of evidence and witness intimidation, as well as

to ensure that suspects do not flee the jurisdiction. See, e.g., Luna, Transparent Policing, supra

note 29, at 1165.

229

Letter from Pat Nolan et al., to Hon. John A. Boehner, House Minority Leader (May 25,

2010), available at http://www.famm.org/Repository/Files/BOEHNER%20LETTER.pdf.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 53

experts say that these discriminatory effects undermine trust in the

criminal justice system, especially in minority communities.

230

In the end, the reform was minimalist in scope, reducing the

crack/powder differential and eliminating the 5-year mandatory

minimum for simple possession. A few lawmakers called for broader

reforms,

231

while others said they would not have supported a major

transformation.

232

However, most officials described the new law as a

step in the right direction and a potential foundation for further

change.

233

C. Vehicles and Materials for Political Minimalism

Accepting the need for legislative modification, informed by the

aforementioned principles (or others like them), we can now turn to the

vehicle for a minimalist approach. Again, the goal of political

minimalism is to take a small step that limits the impediments to reform,

offering a change that lawmakers may espouse on principle and

providing a potential starting point for further reforms. In contrast to

maximalist strategies, such as directly repealing mandatory minimum

punishments en masse, the minimalist approach to reform might create

exceptions to obligatory sentences when reasons exist to believe that

such punishment would be unjust in a particular case. One means is to

fashion a “safety valve” that permits a judge to sentence a defendant

below a mandatory minimum when certain criteria are met. A few

states have such provisions to prevent injustices under their mandatory

sentencing laws

234

—and, in fact, the federal system contains a safety

valve as well.

The current federal provision allows judges to go below an

otherwise applicable mandatory minimum sentence in low-level drug

cases involving essentially non-violent, first-time offenders who have

230

Id.

231

For instance, Congressman Ron Paul referred to the law as “the Slightly Fairer Sentencing

Act” and advocated the repeal of all federal drug crimes. 156 C

ONG. REC. H6202-03 (daily ed.

July 28, 2010) (statement of Rep. Ron Paul), 156 Cong Rec H6196-01, at *H6202-03 (Westlaw);

see also id. at H6198-202 (bill proposed by Rep. Sheila Jackson Lee).

232

See, e.g., id. at H6202 (statement of Rep. Dan Lungren).

233

See, e.g., id. at H6197 (statement of Rep. Bobby Scott).

234

See, e.g., CONN. GEN. STAT. ANN. § 29-37(b) (West 2010) (stating that any person guilty

of carrying a gun without a permit “shall be imprisoned not less than one year or more than five

years” but allowing a reduction of the one-year mandatory minimum if there are “mitigating

circumstances as determined by the court”); M

E. REV. STAT. ANN. tit. 17-A, § 1252(5-A)(B)

(2010) (creating an exception to mandatory minimum sentences for certain drug crimes if the

court finds, inter alia, that imposing the mandatory minimum “will result in substantial injustice

to the defendant”); M

ONT. CODE ANN. § 46-18-222 (2010) (listing exceptions to mandatory

minimum sentences); O

R. REV. STAT. § 137.712 (2010) (same).

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54 CARDOZO LAW REVIEW [Vol. 32:1

disclosed all relevant information to the government.

235

The provision

is commonly seen as a successful means of preventing unjust

punishments without hampering the general objectives of sentencing.

But the current federal safety valve is rather limited and applicable only

to certain drug crimes.

236

In fact, some prosecutors may charge non-

covered drug offenses in order to preclude the court from applying the

safety valve to potentially eligible defendants.

237

Moreover, the safety

valve requires that each criterion be met, drastically narrowing the pool

of defendants who qualify for relief. An offender might be ineligible

because he possessed (but did not brandish) a firearm, his criminal

history precludes his classification as a first-time offender, or he is

charged under mandatory sentencing laws unrelated to drug crime.

A minimalist reform could expand the application of the safety

valve so that it is more generally available to defendants who might

otherwise receive an excessive prison sentence.

238

The tricky point, of

course, is identifying those cases in which a mandatory minimum

sentence would be unjust. Most agree that at least some offenders who

receive mandatory minimums have committed sufficiently serious

crimes to merit those sentences. An overly broad safety valve provision

would be politically vulnerable to the charge that it effectively repealed

all mandatory minimum sentences, creating a loophole for the worst-of-

the-worst offenders.

239

As it turns out, however, federal law already has

235

18 U.S.C. § 3553(f) (2006); U.S. SENTENCING GUIDELINES MANUAL § 5C1.2 (2010).

236

Specifically, it only applies to defendants convicted under 21 U.S.C. §§ 841, 844, 846, 960

and 963. See 18 U.S.C. § 3553(f).

237

See, e.g., Nicholas T. Drees, Fed. Pub. Defender, N. & S. Dists. of Iowa, Testimony at

Public Hearing Before the U.S. Sentencing Commission, at 8-9 (Oct. 21, 2009) (transcript

available at http://www.ussc.gov/AGENDAS/20091020/Drees_Testimony.pdf).

[The safety valve] does not include 21 U.S.C. § 860, which prohibits drug activities

within 1000 feet of schools, playgrounds, and other protected locations. Thus,

defendants convicted under this statute cannot obtain safety valve relief. In districts

where substantial portions of small towns and cities fall within protected zones,

prosecutors can, and some do, charge violations of 21 U.S.C. § 860 for the purpose of

preventing safety valve relief for low-level offenders with little or no criminal history

who would otherwise qualify. In the Northern District of Iowa, prosecutors often

include a violation of 21 U.S.C. § 860 among the other charges in an indictment. The

Southern District does not follow this practice. Based on my survey of Defenders,

similar manipulations occur in four other districts.

Id.

238

See, e.g., Cory L. Andrews, Wash. Legal Found., Testimony at Public Hearing Before the

U.S. Sentencing Commission, at 5 (May 27, 2010) (transcript available at http://www.ussc.gov/

AGENDAS/20100527/Testimony_Corey_Andrews_WLF.pdf) (advancing such a proposal).

239

Two congressional bills would allow a court to “impose a sentence below a statutory

minimum if the court finds that it is necessary to do so in order to avoid violating” the purposes

of punishment. See The Common Sense in Sentencing Act, H.R. 2934, 111th Cong. (2009); The

Ramos-Compean Justice Act of 2009, H.R. 3327, 111th Cong. (2009). Although Luna generally

supports these bills, given his aversion to many mandatory minimum sentencing laws, he

recognizes that the proposals are likely infeasible as a political matter.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 55

a possible method to identify situations where mandatory minimum

sentences may be excessive.

In 1984, Congress created the U.S. Sentencing Commission as an

expert agency that would promulgate a set of sentencing guidelines for

every federal offense. These guidelines, which came into effect in

1987, were designed to consider all relevant issues and provide a

recommended sentence. When a defendant’s punishment under the

guidelines is lower than that required by a statutory minimum, there

may be good reason to believe that the application of the mandatory

sentence would be excessive. For many, this belief would be justified

by the composition of the Commission and the general convergence

between public opinion and guidelines sentences.

240

Legal scholars and jurists have debated the merits of the

Sentencing Commission and its guidelines for nearly two decades.

Some have questioned the alleged expertise of the Commission, the

mechanical and sometimes incomprehensible nature of guidelines

calculations, and the machinations by practitioners to avoid otherwise

inevitable sentences—not to mention doubts about whether the

guidelines provide uniformity in any meaningful sense or serve the

consequentialist and non-consequentialist goals of punishment.

241

Moreover, critics raised doubts about the constitutionality of the entire

endeavor. In a memorable dissent in the 1989 case, Mistretta v. United

States, Justice Antonin Scalia could find no place for an agency like the

Commission that acts as “a sort of junior varsity Congress,” describing

as disastrous “in the long run the improvisation of a constitutional

structure on the basis of currently perceived utility.”

242

Nonetheless, the Mistretta Court upheld the Sentencing

Commission and the guidelines scheme against several structural

constitutional challenges. According to the eight-member majority, the

legislation did not produce an excessive delegation of legislative power

because Congress created intelligible principles for the Commission’s

rule-making. Likewise, the Court found that the scheme did not violate

the separation of powers doctrine, relying on the fact that the

congressional delegation to the judiciary involved policy creation “on a

240

See, e.g., United States v. Wilson, 355 F. Supp. 2d 1269 (D. Utah 2005) (Cassell, J.)

(Wilson II); United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005) (Cassell, J.) (Wilson I);

Paul G. Cassell, Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of

the Federal Mandatory Minimums), 56 S

TAN. L. REV. 1017 (2004); PETER ROSSI & RICHARD

BERK, JUST PUNISHMENTS: FEDERAL GUIDELINES AND PUBLIC VIEWS COMPARED (1997).

241

See, e.g., United States v. Jaber, 362 F. Supp. 2d 365 (D. Mass. 2005) (Gertner, J.); United

States v. Ranum, 353 F. Supp. 2d 984 (E.D. Wis. 2005) (Adelman, J.); Luna, Gridland, supra

note 29; S

TITH & CABRANES, supra note 70; Albert W. Alschuler, The Failure of Sentencing

Guidelines: A Plea for Less Aggregation, 58 U.

CHI. L. REV. 901 (1991); James S. Gwin, Juror

Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community

Values?, 4 H

ARV. L. & POL’Y REV. 173 (2010).

242

488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

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56 CARDOZO LAW REVIEW [Vol. 32:1

matter uniquely within the ken of judges.”

243

Although one of us

(Luna) has expressed a strong preference for razing the entire system, he

recognizes that the Commission and its guidelines are here to stay, at

least for the foreseeable future.

244

Some concerns about the guidelines stemmed from their

construction as a judicial straightjacket, with punishment effectively

limited to the prescribed sentencing range absent a defendant’s

cooperation with law enforcement.

245

As such, this critique mirrors a

key criticism of mandatory minimums: The guidelines regime

eliminated a judge’s discretion to craft a punishment that fits the offense

and the offender, and it even encouraged the parties to massage the facts

to avoid an otherwise preordained sentence.

246

In 2005, however, a

groundbreaking Supreme Court decision tempered at least part of the

dispute over the guidelines.

In United States v. Booker,

247

the Court held that it violated the

Sixth Amendment jury trial right to increase a guidelines sentence based

on facts that were neither admitted by the defendant nor found true

beyond a reasonable doubt by a jury. For present purposes, however,

the most relevant portion of the Court’s opinion was the remedy it

endorsed. By excising a pair of statutory provisions, Booker rendered

the guidelines advisory rather than mandatory for sentencing judges,

subject to appellate review for “reasonableness.”

248

For guidelines

skeptics, the Court’s decision opened up new possibilities for federal

punishment

249

—and if nothing else, it held out the hope that a district

court could ensure that a sentence fits the offense and the offender

consistent with the valid goals of punishment. With overt sentencing

discretion restored, some cheered that “federal judges can be federal

judges again.”

250

The Booker decision did not license ad hoc sentencing, however.

The Commission’s work product was still the only complete set of

criteria available to district court judges. Moreover, some warned that

haphazard application of the guidelines might not only produce

unwarranted disparities among defendants, but it could also provoke a

punitive response by Congress “through such blunderbuss devices as

mandatory minimum sentences.”

251

With these caveats in mind, most

243

Id. at 412 (majority opinion).

244

See, e.g., Luna, Gridland, supra note 29, at 89; STITH & CABRANES, supra note 70, at xi.

245

See, e.g., supra note 72.

246

See, e.g., Luna, Gridland, supra note 29.

247

543 U.S. 220, 245 (2005) (merits majority).

248

Id. at 259 (remedial majority).

249

See, e.g., Erik Luna & Barton Poulson, Restorative Justice in Federal Sentencing: An

Unexpected Benefit of Booker?, 37 M

CGEORGE L. REV. 787 (2006).

250

Id. at 287 (quoting sources).

251

Wilson I, 350 F. Supp. 2d at 1288.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 57

jurists and commentators have eschewed a post-Booker “free at last”

approach that would simply ignore the guidelines.

252

Instead, they

accept the guidelines as a given (at least for now) and have sought a

jurisprudence that makes the system more rational and fair.

253

In practice, the federal judiciary continues to give considerable

weight to the guidelines,

254

which, as a statistical matter, remain the

dominant feature of federal sentencing.

255

A recent survey of U.S.

district courts found that a substantial majority of the judges support the

current system and believe that the guidelines ranges were appropriate

for most federal crimes.

256

Conversely, two-thirds of the judges think

that mandatory minimum sentences are too high.

257

To be sure, some

critics still have reservations about the guidelines even in their now-

advisory role,

258

but those concerns may pale in comparison to the very

real injustices that can occur with mandatory minimums. In other

words, almost everyone (including guidelines skeptics) would agree that

using the guidelines to ameliorate the worst instances of excessive

mandatory sentencing would be an improvement over the current status

quo.

A few illustrations may help clarify how the guidelines system

could be used to identify miscarriages of justice under mandatory

minimums. Consider the case of United States v. Weldon Angelos,

259

where a young, first-time offender was convicted of dealing marijuana

and related offenses. The critical events in the case were three

“controlled buys” by a government informant, each involving

approximately $350 worth of marijuana.

260

Both the prosecution and

252

See, e.g., United States v. Jaber, 362 F. Supp. 2d 365, 370 (D. Mass. 2005).

253

See, e.g., Constitution Project Sentencing Initiative, Recommendations for Federal

Criminal Sentencing in a Post-Booker World, 18 F

ED. SENT’G REP. 310, 312-13 (2006)

[hereinafter Post-Booker World], available at 2006 WL 5001562; see also C

ONSTITUTION

PROJECT SENTENCING INITIATIVE, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING

SYSTEMS: A BACKGROUND REPORT (2006), http://www.constitutionproject.org/manage/

file/34.pdf; Brief for Douglas A. Berman et al. as Amici Curiae Supporting None of the Parties,

Claiborne v. United States, 551 U.S. 87 (2006) (No. 06-5618), 2006 WL 3747721; Brief for

Douglas A. Berman et al. as Amici Curiae Supporting None of the Parties, Rita v. United States,

551 U.S. 338 (2006) (No. 06-5754), 2006 WL 3747721.

254

See, e.g., Wilson I, 350 F. Supp. 2d at 910; Wilson II, 355 F. Supp. 2d at 1269; Jaber, 362

F. Supp. 2d at 365; United States v. Ranum, 353 F. Supp. 2d 984, 984 (E.D. Wis. 2005); Luna,

Gridland, supra note 29, at 58-60, 60 n.208.

255

See 2008 ANNUAL REPORT, supra note 43, at tbl.N, available at http://www.ussc.gov/

ANNRPT/2008/TableN.pdf (showing 85% of sentences either within guidelines range or below

guidelines range only because of government motion).

256

See U.S. SENTENCING COMM’N, RESULTS OF SURVEY OF UNITED STATES DISTRICT

JUDGES, JANUARY 2010 THROUGH MARCH 2010 11 tbl.8 (2010), http://www.ussc.gov/Judge_

Survey/2010/JudgeSurvey_201006.pdf.

257

Id. at 5 tbl.1.

258

See, e.g., Luna, Gridland, supra note 29, at 62-64, 72-106.

259

345 F. Supp. 2d 1227 (D. Utah 2004); see also supra notes 5-6.

260

See United States v. Angelos, 345 F. Supp. 2d 1227, 1231 (D. Utah 2004).

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58 CARDOZO LAW REVIEW [Vol. 32:1

the defense agreed that the appropriate guidelines range for the

defendant’s sentence was 78-97 months.

261

But because he was also

convicted of possessing a gun three times in connection with his

marijuana dealing, he faced additional mandatory minimum penalties

under federal law: 5 years for the first possession, followed by 25 years

for the second possession, topped off by another 25 years for the third

possession, all to be served consecutively.

262

Although decrying the

punishment as “cruel, unjust, and irrational,” the trial court reluctantly

sentenced the defendant to a mandatory 55-year prison term for the

firearm possession counts (plus one day for all the other counts), which

was subsequently affirmed by the Tenth Circuit.

263

Another instructive case is United States v. Marion Hungerford.

264

The defendant, a fifty-two-year old mentally disturbed woman with no

prior criminal record, was convicted of conspiracy, robbery, and using a

firearm in relation to these crimes. She never touched a firearm or

threatened anyone, and her role in the criminal episode was limited,

particularly compared to that of her companion, the gun-wielding

principal who committed the robberies. While her boyfriend pled out

and received a 32-year sentence, the defendant “tragically refused to

cooperate with the government and plead guilty, most likely because her

mental illness caused her to hold a fixed belief that she was

innocent.”

265

The defendant’s range of incarceration was 57-71 months

under the sentencing guidelines. But because of the applicable

mandatory minimums, she received a prison sentence of 159 years,

which was affirmed by the Ninth Circuit. Although he felt bound to

concur in the judgment, one appellate judge underscored “how

irrational, inhumane, and absurd the sentence in this case is, and

moreover, how this particular sentence is a predictable by-product of the

cruel and unjust mandatory minimum sentencing scheme adopted by

Congress.”

266

The only question, he concluded, was whether

lawmakers would ameliorate this scheme and bring rationality back to

the federal system.

267

Now consider United States v. James Lewis Moore,

268

a case

recently decided by the Third Circuit. A sex crime investigation

conducted by Australian officials led the FBI to the defendant’s house,

where he admitted to possessing child pornography. A subsequent

consent search of his computer revealed 321 pornographic images,

261

Id. at 1232; see also infra note 283.

262

See Angelos, 345 F. Supp. 2d at 1232.

263

Id. at 1230; see also United States v. Angelos, 433 F.3d 738 (10th Cir. 2005).

264

United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006).

265

Id. at 1121 (Reinhardt, J., concurring in the judgment).

266

Id. at 1118.

267

Id. at 1122.

268

No. 09-3060, 2010 WL 1293369 (3d Cir. Apr. 6, 2010).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 59

“virtually all of minors under the age of twelve engaging in sexually

explicit conduct” and including “portrayals of sadistic conduct whereby

babies were physically restrained.”

269

The defendant was convicted of

receiving and distributing child pornography, which carried a 5-year

mandatory minimum sentence. Under the guidelines, however, the

applicable sentencing range was 135-168 months’ imprisonment.

270

The district court eventually issued a 10-year sentence—15 months

below the bottom of the guidelines range—balancing the serious nature

of the crime versus the defendant’s personal history and

characteristics.

271

The sentence was affirmed on appeal as substantively

reasonable.

272

A final example is provided by United States v. Emory James

Zastrow.

273

In that case, law enforcement received reports that the

defendant had had sexual contact with a prepubescent girl. The

exploitation had begun before the victim’s eighth birthday and was

evidenced by sexually explicit photographs taken by the defendant.

274

He was charged in federal court with sexual exploitation of a child by

persuading, enticing, or coercing a minor victim to engage in sexually

explicit conduct for the purpose of producing visual depictions. The

crime carried a 15-year mandatory minimum sentence, but the

applicable guidelines range exceeded the minimum by several years

(210-262 months). Ultimately, the trial court adopted the guidelines

range, sentencing the defendant to 20-years imprisonment, and the

Eighth Circuit affirmed the sentence as reasonable.

275

This is not the place to decide whether the 10-year sentence in

Moore or the 20-year sentence in Zastrow were necessarily correct.

Reasonable minds can differ on such issues, given general disagreement

about the wisdom of the federal sentencing scheme and concerns

regarding the severity of some guidelines.

276

But as a matter of

prioritizing any reform, it makes some sense for efforts to be directed

away from those cases where the guidelines are higher than the

mandatory minimums and toward the more clearly extreme cases where

the guidelines are lower. In the latter situation, defenders of the

sentencing guidelines would have to agree that the mandatory minimum

269

Id. at *1.

270

See id. at *1 n.1.

271

See id. at *2 n.3.

272

See id. at *2-3.

273

See United States v. Zastrow, 534 F.3d 854 (8th Cir. 2008).

274

See id. at 856.

275

See id. at 856-57.

276

Compare A.G. Sulzberger, Defiant Judge Takes on Child Pornography Law, N.Y. TIMES,

May 21, 2010, at A1, with Ernie Allen, President, Nat’l Ctr. for Missing & Exploited Children,

Testimony at Public Hearing Before the U.S. Sentencing Commission (Oct. 20, 2009), available

at http://www.missingkids.com/missingkids/servlet/NewsEventServlet?LanguageCountry=en_US

&PageId=4144.

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60 CARDOZO LAW REVIEW [Vol. 32:1

sentence could well be too high. After all, the guidelines that they

believe specify the appropriate punishment nonetheless point toward a

sentence below the mandatory minimum. Accordingly, situations

where the guidelines call for a lower sentence than the statutory

minimum—such as in the Angelos and Hungerford cases—might serve

as a convenient means to flag cases where the mandatory sentence may

be unjustified.

IV.

OPERATIONALIZING MINIMALIST REFORM

Assuming that a minimalist approach would only implicate those

cases where mandatory minimums are clearly excessive—as

demonstrated by a lower guidelines range—the question becomes how

to translate the change into a principled law capable of achieving

political consensus. This section details two statutory modifications to

operationalize the envisioned reform. First, federal judges should have

the authority to depart downward whenever the guidelines provide for

the possibility of a lower sentence than a mandatory minimum. Second,

the U.S. Sentencing Commission should be licensed to set guidelines

ranges where it deems them to be appropriate, without automatically

pegging the guidelines to existing mandatory minimums. We discuss

these two modifications in turn and suggest how they comport with the

aforementioned principles.

A. Departures when Guidelines Sentences Are

Lower than Mandatory Minimums

The first change would allow judges to go below a mandatory

minimum if the relevant sentencing guidelines are lower. One way to

draft such a statute would begin by cross-referencing a general safety

value provision:

18 U.S.C. § 3553. Imposition of a sentence

(a) Factors to be considered in imposing a sentence.—The

court shall impose a sentence

in accordance with any

applicable mandatory minimum sentence, subject to

subsections (e) and (f). The sentence shall be sufficient, but

not greater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. . . .

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2010] MANDATORY MINIMALISM 61

This modification (i.e., the underlined text) would preserve

mandatory minimums as the default rule for the trial judge, who must

impose a sentence consistent with federal statutes unless a case falls

within the purview of the safety valve provision. The new safety valve

would then replace its limited predecessor as follows:

18 U.S.C. § 3553. Imposition of a sentence

(f)(1) Notwithstanding any other provision of law, the court

may impose a sentence below an otherwise applicable

mandatory minimum sentence (including a consecutive

mandatory minimum sentence) if the minimum of the

applicable sentencing guidelines for the defendant’s conduct

provides for a total sentence lower than what would otherwise

result from application of the mandatory minimum sentence,

provided that:

(A) the defendant’s offense or offenses did not result in death

or serious bodily injury to any person; and

(B) not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the

offense or offenses that were part of the same course of

conduct or of a common scheme or plan, but the fact that the

defendant has no relevant or useful other information to

provide or that the Government is already aware of the

information shall not preclude a determination by the court that

the defendant has complied with this requirement.

(2) In determining whether to impose a sentence pursuant to

this subsection, the court may consider:

(A) the Government’s representations about whether the

defendant has truthfully provided all information as required by

subsection (f)(1)(B);

(B) the defendant’s criminal history as determined under the

sentencing guidelines;

violence or possess a firearm or other dangerous weapon (or

induce another participant to do so) in connection with the

offense or offenses;

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62 CARDOZO LAW REVIEW [Vol. 32:1

(D) the defendant was not an organizer, leader, manager, or

supervisor of others in the offense or offenses, as determined

under the sentencing guidelines, and he was not engaged in a

continuing criminal enterprise, as defined in 21 U.S.C. §

848(c);

(E) the sentences imposed on other offenders under the

sentencing guidelines;

(F) the sentences imposed for commission of the defendant’s

offense or offenses in other jurisdictions; and

(G) any other information relevant to the factors listed in 18

U.S.C. § 3553(a).

(3) The sentence that the court imposes shall not be lower than

the minimum provided in the applicable sentencing guidelines.

(4) In the written order of judgment and commitment, the court

must state with specificity the reasons for imposing a sentence

pursuant to this subsection. On appeal, the sentence and its

reasons shall be subject to review for reasonableness.

277

This formulation tracks some of the language in the current safety

valve provision but also makes key changes. It retains the condition

that no one was killed or suffered serious bodily injury as a result of the

defendant’s actions—a seemingly reasonable limitation, considering the

importance of harm for sentencing assessments and related concerns

about proportionality and equality, as well the reality that the

punishment provided by mandatory minimums will rarely be

inappropriate in such circumstances.

278

Under the new formulation,

however, the safety valve goes beyond first-time, low-level drug

offenders. Previous prerequisites, like the absence of a firearm, are now

factors that courts should consider, but they do not automatically

disqualify application of the safety valve.

The new provision still requires that a defendant truthfully provide

law enforcement with all information and evidence related to his

criminal conduct, listing the government’s representations regarding

such cooperation as a factor in whether the court should employ the

safety valve. It thus supports the prosecutorial interest in obtaining

information for law enforcement purposes. Nonetheless, the provision

277

Hereinafter “Proposed Safety Valve, 18 U.S.C. § 3553(f).”

278

Moreover, a sentence reduction via a prosecutor’s motion remains a possibility for full, up-

front cooperation with law enforcement. See supra note 72.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 63

applies even if the defendant has gone to trial, or if he lacks relevant or

new information for governmental use, thereby permitting the court, in

appropriate cases, to enter a sentence over a prosecutor’s objections.

In order to help indicate appropriate cases, our proposal

incorporates some relatively objective components of the Supreme

Court’s standard for constitutionally excessive terms of

imprisonment.

279

Specifically, the safety valve includes both intra-

jurisdictional and inter-jurisdictional comparisons: (1) the punishment

imposed on other federal offenders, where lower sentences for more

serious crimes and criminals would suggest an excessive sentence in the

defendant’s case; and (2) the punishment that other jurisdictions (i.e.,

the states) would impose for the offense in question, with lower

sentences again indicating excessive punishment for the defendant.

We recognize, however, that it is difficult if not impossible to

capture in a formula all of the information that could be relevant in

deciding whether to invoke the safety valve. The myriad cases that

judges face cannot be reduced to a simple equation.

280

As such, the best

approach may be to exclude inappropriate factors and crimes (e.g., the

defendant’s race

281

or offenses that cause death), specifically permit

consideration of those factors that seem highly relevant (e.g., the

defendant’s criminal history or the presence of a firearm), and provide

some leeway for evaluating other issues pertinent to the goals of

sentencing. The latter is accomplished by allowing judges to

incorporate any other information relevant to the purposes of

punishment listed in federal sentencing’s governing law.

This type of discretion—ensuring that the punishment fits the

crime and the criminal and, in the present context, gathering

information as to whether to impose a sentence below an otherwise

compulsory term of imprisonment—is essential to meaningful

proportionality and equality in sentencing. Indeed, this authority lies at

the heart of what it means to be a judge. The proposal thus attempts to

harmonize mandatory minimums with “the federal judicial tradition for

the sentencing judge to consider every convicted person as an individual

and every case as a unique study in the human failings that sometimes

279

See supra note 212. As a matter of constitutional law, Cassell is not sure he agrees that

sentence length should be subject to constitutional attack. Nonetheless, he accepts that the

standard first articulated in Solem is appropriate for the new safety valve provision.

280

Cf. Luna, Gridland, supra note 29, at 74-87; Luna, Punishment Theory, supra note 39, at

258-87.

281

See 28 U.S.C. § 994(d) (2006) (requiring federal sentencing to be “entirely neutral as to the

race, sex, national origin, creed, and socioeconomic status of offenders”).

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64 CARDOZO LAW REVIEW [Vol. 32:1

mitigate, sometimes magnify, the crime and the punishment to

ensue.”

282

However, our proposal precludes unfettered discretion by

substituting the lower guidelines range as a new sentencing floor. In the

Angelos case, for example, instead of a mandatory minimum sentence

of 55 years, the required sentence would have been at least 97

months.

283

This part of our proposal will be less than ideal for

opponents of mandatory minimums, as it means that judges will

continue to be bound to impose a base sentence in all cases where

mandatory minimums currently apply.

284

However, the approach rests

on the fact that, as a practical reality, any changes to mandatory

minimums may have to be made incrementally pursuant to the idea of

political minimalism.

Moreover, just as mandatory minimums create certain extreme

“cliff” effects in sentencing, completely ending mandatory minimum

sentences where there is a lower guidelines range could potentially do

the same thing in reverse. Consider two defendants who both face a

120-month mandatory minimum sentence. If the first defendant’s lower

guidelines range is, say, 121 months while the second defendant’s lower

range is 110 months, the latter could conceivably receive probation (i.e.,

0 month sentence) in the absence of a mandatory provision. This could

make the reform vulnerable to political attack as being too easy on

offenders and creating unwarranted sentencing disparities.

The case for making the low end of the guidelines range mandatory

may have been bolstered by a new empirical study of sentencing

282

Koon v. United States, 518 U.S. 81, 113 (1996). One district court even described

individualized sentencing as “required by the Due Process Clause of the Fifth Amendment.”

United States v. Dyck, 287 F. Supp. 2d 1016, 1020 (D.N.D. 2003).

The concept of individualized sentencing is deeply rooted in our legal tradition and is a

fundamental liberty interest. This due process right arises at sentencing because

sentencing involves the most extreme deprivation of personal liberty and therefore

calls for a highly individualized process where a person must be assessed and

sentenced as an individual.

Id. (internal citations omitted).

283

See United States v. Angelos, 345 F. Supp. 2d 1227, 1241 (D. Utah 2004).

Setting aside the three firearms offenses covered by the § 924(c) counts, all of Mr.

Angelos’s other criminal conduct results in an offense level of 28. Because Mr.

Angelos is a first-time offender, the Guidelines then specify a sentence of between 78

to 97 months. It is possible to determine, however, what a Guidelines sentence would

be covering all of Mr. Angelos’s conduct, including that covered by the § 924(c)

counts. If this conduct were punished under the Guidelines rather than under § 924(c),

the result would be an additional two-level enhancement, increasing the offense level

from a level 28 to a level 30. This, in turn, produces a recommended Guidelines

sentence for Mr. Angelos of 97 to 121 months.

Id.

284

Luna has some reservations about this limitation, based on his general opposition to

mandatory minimums and his prior concerns regarding the Commission’s methodology in

establishing guidelines ranges. Nonetheless, he accepts that a hard floor for the safety valve may

be politically necessary, and, if nothing else, it is consistent with a minimalist approach.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 65

disparity before and after Booker.

285

The results suggested a post-

Booker increase in inter-judge disparity in terms of sentence length and

guidelines sentencing patterns. Interestingly, average sentences

increased over time—contrary to concerns raised by the previous Justice

Department—but individual judges tended to cluster around distinct

sentencing ranges, with the data revealing an average inter-judge

disparity of more than two years in prison. Likewise, the U.S.

Sentencing Commission recently released a follow-up report that found

a correlation between guidelines sentences and various demographic

differences, including race.

286

Both studies can be challenged, of course, along with any

conclusions that might have been drawn from them. In fact, within days

of the release of the Commission’s report, another study reached the

exact opposite conclusion: The Booker decision was reducing whatever

racial differences may be found in the federal system.

287

Moreover,

other studies have linked mandatory minimums to racial disparities,

thereby undercutting any suggestion that obligatory sentencing resolves

such discrimination.

288

Nonetheless, the new guidelines studies may

raise concerns of unjustifiable disparity in the federal system and

prompt further calls for mandatory minimums.

289

Needless to say, the

new safety valve should not exacerbate the situation.

A second limitation on discretion requires the sentencing judge to

provide in writing specific reasons for employing the safety valve in a

given case, thereby demanding that the trial court justify its use of the

provision and provide a written record that can be examined by an

appellate court. Consistent with the standard of review pronounced in

Booker, appellate judges would ensure the “reasonableness” of these

sentences, which, over time, could help create a jurisprudence that

guides trial courts in their use of the safety valve. The requirement of

reasoned explanation has been advocated by, among others, a

bipartisan, blue-ribbon committee report on federal sentencing in a post-

Booker world:

Such careful statements of reasons are essential to meaningful

appellate review of sentencing decisions. They are extraordinarily

useful to other sentencing judges faced with analogous cases. They

form an important component of the feedback to sentencing

285

See Scott, The Effects of Booker, supra note 70; Ryan W. Scott, Inter-Judge Sentencing

Disparity After Booker: A First Look, 63 S

TAN. L. REV. (forthcoming Dec. 2010).

286

See DEMOGRAPHIC DIFFERENCES, supra note 70.

287

See Ulmer et al., supra note 70.

288

See, e.g., Mauer Testimony, supra note 37, at 8-10; supra note 70.

289

For instance, one proposed response to Booker was across-the-board enactment of

mandatory sentencing laws as a means to prevent disparity and leniency. See, e.g., Defending

America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005,

H.R. 1528, 109th Cong. (2005) (congressional bill that sought to “fix” Booker via statutory

mandatory minimums).

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66 CARDOZO LAW REVIEW [Vol. 32:1

rulemakers necessary for improving any sentencing system. And

they inform litigants, the Sentencing Commission, Congress, and the

public about how the law is being applied, which is essential if the

country is to understand and have confidence in the federal

sentencing system.

290

To be clear, there is considerable debate whether reasonableness

review reins in wayward judges after Booker.

291

But we both think it is

appropriate to at least make the effort toward appellate reasonableness

review. A statement of reasons for punishment below the statutory

minimum helps ensure fairness in an individual case, requiring

articulated justifications from the sentencing judge that can then be

reviewed by an appellate panel with due respect for the trial court’s fact-

finding abilities. Likewise, such statements offer a potential basis for

comparing those cases within the safety valve’s ambit and thus provide

some degree of consistency in punishment, as well as generating

material for scrutiny by non-litigants, whether they are lawmakers,

sentencing commissioners, or the general public. It thus responds to

concerns of proportionality and equality through an intra-branch check

on sentencing courts.

The expanded safety valve still maintains sufficient incentives for

defendants to cooperate with authorities—specifically incorporating a

degree of deference to representations by government—while at the

same time preventing the worst cases of trial tax and other problems

related to strategic deployment of mandatory minimums. As before,

there remains only one guaranteed way for the defense to avoid a

mandatory sentence: a government motion that the defendant provided

substantial assistance through his full disclosure and cooperation.

292

When adversarialism has outrun its ability to do justice, however, in

cases of manifestly unfair sentences, the new safety valve would allow a

district court to impose punishment below the mandatory minimum.

This serves the constitutional roles of the prosecutor and judge,

reaffirming the exclusive prosecutorial authority to charge and whatever

leverage it provides, while also ensuring that law enforcement officials

cannot unilaterally bind the hands of the judiciary in the exercise of its

own core functions.

The new provision might even foster greater accuracy and

transparency throughout the criminal justice system, which can only

increase the chances for proportionality and equality in sentencing. For

290

Post-Booker World, supra note 253, at 18; see also Luna, Gridland, supra note 29.

291

See, e.g., Stephanos Bibas et al., Policing Politics at Sentencing, 103 NW. U. L. REV. 1371,

1384-85 (2009); Michael M. O’Hear, Explaining Sentences, 36 F

LA. ST. U. L. REV. 459, 471-85

(2009); see also United States v. Pruitt, 502 F.3d 1154, 1173 (10th Cir. 2007) (McConnell, J.,

concurring) (analogizing reasonableness review to Boy Scout “snipe hunts”—searches for elusive

and non-existent creatures).

292

See supra note 72.

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2010] MANDATORY MINIMALISM 67

instance, Stephen Schulhofer has argued that mandatory minimums are

not mandatory at all, but instead discretionary sentencing laws

susceptible to the haphazard and even perverse charging and plea

bargaining decisions of federal prosecutors.

293

These often dispositive

decisions are made in a largely opaque process with almost no external

oversight.

294

As mentioned earlier, mandatory minimums can also

create an incentive to manipulate the facts in order to achieve particular

results, where the actors ignore evidence to avoid triggering a statutory

minimum.

295

The laws may even have a backlash effect, making

community members less likely to report suspicious behavior and

cooperate with law enforcement out of concern that their neighbors

(especially youth involved in the drug trade) may receive draconian

punishment.

296

Moreover, mandatory minimums may undermine the principal

benefit of transparency and truth: accurate outcomes. In an important

study, Ronald Wright describes how the accumulation of power by

federal prosecutors through severe sentencing laws has resulted in a

dramatic shift from trials to plea bargains and the near extinction of

acquittals.

297

As a result, some defendants who might have been

acquitted at trial are now convicted by plea bargaining, which

diminishes the chances of discovering the truth through the trial process

and, in exceptional cases, may increase the possibility of wrongful

convictions.

298

Although Professor Wright’s study focused on the pre-

Booker mandatory guidelines, his critique applies with equal force to

statutory minimums. In fact, recent cases have demonstrated how

mandatory minimums can even generate fabricated testimony and

wrongful convictions in extreme situations.

299

The travesty of false testimony and convicted innocents needs no

discussion here. But other machinations, such as the process of “fact

bargaining,” may still appear reasonable by allowing participants to

avoid excessive sentences in difficult cases. Regardless of benign

intent, however, the distortive effect of mandatory minimums on

transparency and truth can only undercut the legitimacy of the criminal

293

See Schulhofer Testimony, supra note 37.

294

See id. at 5.

295

See supra note 62 and accompanying text.

296

See Schulhofer Testimony, supra note 37, at 16-18; see also Steinback Testimony, supra

note 66.

297

See Wright, supra note 120.

298

See id. at 150-54; see also Rachel Barkow, Separation of Powers and the Criminal Law, 58

TAN. L. REV. 989, 1034 (2006); Brown, Decline of Defense Counsel, supra note 115, at 1598-

99.

299

See, e.g., Nachmanoff Testimony, supra note 37, at 13-14; see also Wright, supra note

120, at 153. It must be noted, however, that one of us (Cassell) has expressed some doubts about

the causes and extent of wrongful convictions in the United States. See, e.g., Cassell, The Guilty

and the “Innocent,” supra note 28; Markman & Cassell, supra note 28.

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68 CARDOZO LAW REVIEW [Vol. 32:1

justice system and its actors. The moral authority of criminal law

depends on the perception of both substantive and procedural justice,

and a system that allows, if not requires, duplicity tends to breed

contempt for the law.

300

A legitimate, properly functioning criminal

justice system would not tolerate such deception and instead would

demand that the case facts be true, not from some kind omniscient

perspective, but as best as humans can discern. This is not something

that results from an outcome-based, largely concealed process that

simply maintains a sufficient degree of truthiness in sentencing.

301

For these reasons, it is hoped that the new safety valve would

diminish, if not eliminate, whatever motivation exists to massage the

factual predicates of mandatory punishment. Judges will be able to

invoke the provision even if a firearm was found in the defendant’s

home, for example, meaning that no one has to “swallow the gun.”

302

The existence of some factor or another

303

simply does not preclude

application of the safety valve, and as a result, participants need not

evade the truth to achieve a fair sentence. The new safety valve may

also help prevent at least some of these injustices by allowing a

defendant to avoid an excessive mandatory sentence by providing

truthful information, even if it does not assist law enforcement in

convicting others.

Moreover, proper usage might assuage any public backlash from

the perceived injustices under mandatory minimums. Defendants are

not the only ones concerned about proportionality and equality in

sentencing; as suggested, the specter of excessive punishment may

render community members less likely to assist law enforcement. In

turn, when victims of actual violence notice that their assailants receive

shorter terms than imposed on non-violent offenders via mandatory

minimums, the message received is that their pain and suffering is less

important than abstract governmental objectives, like winning the “war

on drugs.”

304

Over the long haul, lay citizens may refuse to cooperate

with prosecutors and conscientious jurors may engage in nullification,

300

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting); see also

Luna, Transparent Policing, supra note 29, at 1154-65.

301

See Kelly Heyboer, In All Truthiness, STAR-LEDGER (NEW JERSEY), Dec. 31, 2006

(defining truthiness, coined by Stephen Colbert, as “truth that comes from the gut, not books” or

the “quality of preferring concepts or facts one wishes to be true, rather than concepts or facts

known to be true”). As one federal judge noted several years ago, “Facts are like flint—whether a

defendant pleads or goes to trial, the facts should theoretically remain the same.” Berthoff v.

United States, 140 F. Supp. 2d 50, 63 n.24 (D. Mass. 2001).

302

See, e.g., United States v. Mercer, 472 F. Supp. 2d 1319, 1323 (D. Utah. 2007); David M.

Zlotnick, Shouting into the Wind: District Court Judges and Federal Sentencing Policy, 9 R

OGER

WILLIAMS U. L. REV. 645, 674-75 (2004); Wallace, supra note 37, at 161.

303

To reiterate, the Proposed Safety Valve excludes crimes that cause death or serious bodily

injury, which, as discussed above, would likely foreclose any legitimate argument about a term of

imprisonment being excessive.

304

See United States v. Angelos, 345 F. Supp. 2d 1227, 1251 (D. Utah 2004).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 69

not because they believe the defendant to be innocent or the allegations

unproven, but out of fear that an unjust sentence will necessarily

ensue.

305

Used appropriately, however, the safety valve may prevent

the precise type of excessive sentences that raise witness and juror

anxieties and confound victims of violence.

The new provision may also inhibit troubling disparities in

punishment. Under our proposal, a court may consider “the sentences

imposed on other offenders under the sentencing guidelines,” which

could lead to a pair of considerations. First, the court might bear in

mind the sentences (if any) received by an offender’s cohorts and, in

appropriate cases, reduce a mandatory minimum-based punishment gap

that is unrelated to differential culpability among offenders. Second, a

judge could consider whether mandatory minimums would have been

employed by another U.S. Attorney’s Office and, if so, the number of

counts that would have been brought.

306

Likewise, the proposal allows for inter-jurisdictional

comparisons—“the sentences imposed for commission of the

defendant’s offense or offenses in other jurisdictions”—with a judge

able to consider the expected punishment had the defendant been

prosecuted in state court.

307

This factor thereby incorporates federal-

state disparities into a court’s sentencing evaluation, hopefully

stemming the possibility of abusive forum shopping. Both factors could

foster real equality in sentencing, ensuring that punishment does not

vacillate wildly among districts and circuits, with the inter-jurisdictional

comparison also serving the constitutional principle of federalism.

“Under our federal system, the States possess primary authority for

defining and enforcing the criminal law,” the Supreme Court opined in

1995.

308

“When Congress criminalizes conduct already denounced as

criminal by the States, it effects a change in the sensitive relation

between federal and state criminal jurisdiction.”

309

The proper

application of the safety valve can help address issues of federalism

raised by the exploitation of federal mandatory minimums.

In fact, we believe that the new provision supports another

fundamental principle of American constitutional law: the separation of

powers. The concern here is not the creation of a “new Branch,”

310

305

See id. at 1252.

306

See, e.g., Nachmanoff Testimony, supra note 37, at 6 (providing illustration); Angelos, 345

F. Supp. 2d at 1252-54 (discussing inconsistent prosecutorial policies regarding § 924(c) in

various judicial districts).

307

For an example of such a comparison, see Angelos, 345 F. Supp. 2d at 1259.

308

United States v. Lopez, 514 U.S. 549, 561 n.3 (1995).

309

Id.; see also Cohens v. Virginia, 19 U.S. 264, 426, 428 (1821) (Marshall, C.J.) (noting that

federal lawmakers have “no general right to punish murder committed within any of the states”

and “cannot punish felonies generally”).

310

Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

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70 CARDOZO LAW REVIEW [Vol. 32:1

Justice Scalia warned in his Mistretta dissent, given that mandatory

minimums were duly enacted by Congress. Instead, the present

problem implicates the independent role of judges in sentencing and the

effective transfer of that power to the executive branch.

311

Sentencing

is a quintessential, historically recognized judicial function, with a judge

imposing punishment on another human in response to the commission

of a crime and its aftermath.

312

There is “wisdom, even the necessity,

of sentencing procedures that take into account individual

circumstances,”

313

and draw upon the court’s familiarity with the case

and “face-to-face contact with the defendants, their families, and their

victims.”

314

With mandatory minimums, prosecutors effectively exercise

judicial power, as the ultimate sentences inevitably follow from their

charging decisions. Expressing a view held by many jurists, Justice

Kennedy described as “misguided” the “transfer of sentencing

discretion from a judge to an Assistant U.S. Attorney, often not much

older than the defendant.”

Often these attorneys try in good faith to be fair in the exercise of

discretion. The policy, nonetheless, gives the decision to an assistant

prosecutor not trained in the exercise of discretion and takes

discretion from the trial judge. The trial judge is the one actor in the

system most experienced with exercising discretion in a transparent,

open, and reasoned way. Most of the sentencing discretion should be

with the judge, not the prosecutors.

315

No doubt, sentencing involves various actors beyond the judge—

the legislature establishes boundaries of punishment, the prosecution

brings the specific charges, and the jury adjudicates guilt. But there is

something fundamental in the trial judge’s imposition of a sentence, a

duty that should not be converted into a ministerial deed. The proposed

general safety valve recognizes the overlapping roles in America’s

tripartite system, while at the same time respecting the vital, analytically

separate role of the judge at sentencing.

311

See, e.g., Miller, Domination, supra note 179.

312

See, e.g., United States v. Sidhom, 144 F. Supp. 2d 41, 41 (D. Mass 2001) (“In the long

tradition of the common law, it was the judge, the neutral arbiter, who possessed the authority to

impose sentences which he deemed just within broad perimeters established by the legislature.”).

313

Koon v. United States, 518 U.S. 81, 92 (1996).

314

United States v. Dyck, 287 F. Supp. 2d 1016, 1019 (D.N.D. 2003).

315

Kennedy Speech, supra note 1.

Thus, the government, not only has the authority to prosecute crime and to

decide the nature of the criminal charge to be preferred, but now has the

power to determine the severity of the punishment. As a result, courts are

required to react passively as automatons and to impose a sentence which

the judge may personally deem unjust.

Sidhom, 144 F. Supp. 2d at 41.

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2010] MANDATORY MINIMALISM 71

Most importantly, we believe that the proposal would be politically

viable. The legislative branch would maintain supremacy, with

Congress’s mandatory minimums still on the books and the procedural

escape mechanism shaped and adopted by lawmakers themselves.

Prosecutors would still be free to bring charges carrying mandatory

minimums, and their views remain critical under our proposal. But

should a mandatory sentence prove excessive, the judiciary has the

leeway to impose a more proportionate term of imprisonment, so long

as it is based in sound legal reasoning.

Consider once again the Angelos case. At trial, the defendant was

found guilty on sixteen counts, including three charges under 18 U.S.C.

§ 924(c). The latter gun charges carried a mandatory minimum of 55

years imprisonment, and the other thirteen counts could have added

another 78-97 months to the sentence—for a grand total of at least 61½

years. Ultimately, however, the district court “only” imposed the 55-

year term pursuant to the mandatory minimums.

316

In the absence of

the § 924(c) counts, taking into consideration all crimes at issue, the

guidelines would call for a prison term of no more than 10 years.

317

The basic safety valve requirement is thus met, with the guidelines

sentence some 45 years less than required by the relevant mandatory

minimum.

318

Moreover, Angelos’s conduct did not result in death or

serious bodily injury to any person,

319

and we can presume that had the

safety valve been available, the defendant would have attempted to

provide law enforcement with any information he had relating to the

crimes in question.

320

Moving on to the safety valve’s second step, it is clear that not all

facts or factors would support a below-mandatory minimum sentence.

The jury found that Angelos possessed firearms in connection with his

marijuana dealing,

321

and for the sake of argument, let’s assume that the

government would oppose the reduction and would make

representations unfavorable to the defendant’s case.

322

On the other

316

United States v. Angelos, 345 F. Supp. 2d 1227, 1260-61 (D. Utah 2004).

317

See supra note 283. The guidelines themselves have a provision that conforms sentences

to any mandatory minimums. See U.S.

SENTENCING GUIDELINES MANUAL § 5G1.2(a) (2010)

(“Where the statutorily authorized maximum sentence is less than the minimum of the applicable

guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”).

For purposes of this article, we ignore this conforming provision and assume that it would be

amended or eliminated consistent with our proposed reforms.

318

Proposed Safety Valve, 18 U.S.C. § 3553(f)(1), supra note 277.

319

Id. § 3553(f)(1)(A).

320

Id. § 3553(f)(1)(B); see Angelos, 345 F. Supp. 2d at 1258 (“Mr. Angelos did not engage in

force or violence, or threats of force or violence, in furtherance of or in connection with the

offenses for which he has been convicted. No offense involved injury to any person or the threat

of injury to any person.”); id. at 1232 (noting Angelos’s attempt to reopen plea negotiations).

321

See Proposed Safety Valve, 18 U.S.C. § 3553(f)(2)(C), supra note 277.

322

For instance, one might expect that the government would claim that defendant Angelos

should be classified as an “organizer, leader, manager, or supervisor” in a continuing criminal

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72 CARDOZO LAW REVIEW [Vol. 32:1

hand, Angelos was a first-time offender under federal law,

323

and he did

not use violence or credible threats of violence during the commission

of these crimes.

324

In addition, a comparative analysis points toward the

prescribed mandatory sentence being excessive.

325

No other

jurisdiction would have imposed a 55-year sentence for the crimes in

this case, and had the defendant been charged in local state court, he

might have served between 5 to 7 years imprisonment and likely would

have been paroled after 2 to 3 years.

326

Moreover, Angelos and the

government’s informant allegedly committed virtually identical acts

(i.e., selling drugs and possessing firearms). But while Angelos

received a 55-year mandatory federal sentence, state charges against the

informant were dismissed in favor of federal prosecution, which was

never commenced.

Worse yet, Angelos’s sentence is longer than the punishment

imposed on far more serious federal offenses and offenders. His

punishment exceeds the federal sentence for, among others, an aircraft

hijacker, a second-degree murderer, a kidnapper, a child rapist, and a

spy who gathers top-secret information.

327

“Indeed, Angelos will

receive a far longer sentence than those imposed for three aircraft

hijackings, three second-degree murders, three kidnappings, and three

rapes.”

328

Ironically, the 55-year sentence for possessing a firearm

three times in connection with minor marijuana offenses is more than

twice the federal sentence for a kingpin of a major drug trafficking ring

in which a death results, and more than four times the sentence for a

marijuana dealer who shoots an innocent person during a drug

transaction. Even the habitual offender who receives a “life sentence”

under the federal three-strikes provision could serve a shorter term than

Angelos.

329

Pursuant to the new safety valve’s catch-all provision, a sentencing

judge may consider other, non-enumerated factors which bear on the

goals of punishment.

330

For instance, the jury in Angelos was asked

what it believed to be an appropriate sentence in this case, with the

jurors recommending a median sentence of 15 years and a mean of

about 18 years.

331

This information is not only highly relevant—given

that the jurors had heard the entire trial and had the opportunity to

enterprise. See id. at § 3553(f)(2)(D). Moreover, an appellate panel drew a less-than-favorable

picture of the defendant. See United States v. Angelos, 433 F.3d 738, 751-53 (10th Cir. 2005).

323

See Proposed Safety Valve, 18 U.S.C. § 3553(f)(2)(B), supra note 277.

324

See id. § 3553(f)(2)(C).

325

See id. § 3553(f)(2)(E)-(F).

326

See United States v. Angelos, 345 F. Supp. 2d 1227, 1243-48, 1258 (D. Utah 2004).

327

See id. at 1242-43, 1259.

328

See id. at 1246, 1258.

329

See id. at 1248-51.

330

Proposed Safety Valve, 18 U.S.C. § 3553(f)(2)(G), supra note 277.

331

See Angelos, 345 F. Supp. 2d at 1242; see also infra notes 350-351 and accompanying text.

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2010] MANDATORY MINIMALISM 73

assess each witness and piece of evidence—it also serves as a reflection

of what average citizens would deem to be an appropriate outcome and,

we believe, supports the Supreme Court’s recent concerns about the

right to trial by jury.

332

Whatever facts and factors are relied upon by a sentencing judge,

the proposal would require the court to explain with precision why the

safety valve is properly employed in the case at bar, setting forth a

written statement for review in appellate proceedings.

333

It would be

expected that a judge would have to produce a coherent, persuasive

rationale for imposing a sentence below the otherwise binding 55-year

mandatory minimum term of imprisonment in Angelos. In other words,

the safety valve is not to be summoned frivolously.

In this way, the proposal would avert mandatory minimum

sentences only in those situations where they produce the most

manifestly unjust results, with the safety valve triggered when the

mandatory minimums prescribe sentences higher than the applicable

sentencing guidelines. As a statistical matter, the safety valve might be

relevant to a sizable percentage of cases in which mandatory minimums

applied. In fiscal year 2008, the mandatory minimum sentence was

higher than the guidelines range in 41.3% of all cases (8292 of

20,127).

334

Opponents of mandatory minimums may argue that our

formulation does not go far enough, however, leaving long, inescapable

sentences in place. But we again note that the proposal can be viewed

as an initial measure that could lead to further reforms. In the next Part,

we will address some other changes that lawmakers might consider.

From the other side, proponents of mandatory minimums might

criticize our proposal as going too far. In particular, the revised safety

valve could allow judges to dole out lower sentences to violent

criminals, including those who have used firearms to commit crimes of

violence. While the new scheme still excludes offenders who have

caused death or serious bodily injury, it does allow those who have, for

example, displayed or even discharged a firearm to seek application of

the safety valve. In the latter cases, however, the sentencing guidelines

332

At first blush, our proposal might appear to violate the Sixth Amendment by folding in

judicial decision-making as determinative of a sentencing guidelines range. But as case law

currently stands, there is no constitutional problem with this scheme because it applies only to

lower a defendant’s sentence below what would otherwise be prescribed by a mandatory

minimum. According to Booker, the Sixth Amendment constraints apply to fact-finding “which

is necessary to support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict.” United States v. Booker, 543 U.S. 220, 244 (2005). The

proposed safety valve has no effect on the maximum punishment and instead only allows a

sentence below the mandatory minimum, an issue that animates none of the Court’s recent

doctrine.

333

Proposed Safety Valve, 18 U.S.C. § 3553(f)(3), supra note 277.

334

Nachmanoff Testimony, supra note 37, at 5 (recounting data from the U.S. Sentencing

Commission).

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74 CARDOZO LAW REVIEW [Vol. 32:1

typically provide extremely tough penalties, including specific weapons

enhancements, making a light sentence unlikely for those who brandish

or discharge firearms.

335

The proposal thus maintains significant

incentives for defendants to cooperate with prosecutors and gain a

government motion for a sentence below the guidelines. Moreover, the

safety valve still provides the assurance of a sentencing floor in cases

where a mandatory minimum would otherwise apply.

336

B. Authority for the Sentencing Commission to Decouple the

Guidelines from the Mandatory Minimums

The proposal to use the guidelines as a mechanism for flagging

cases of unjustified mandatory minimum sentences is vulnerable to

another attack. Critics of our proposal might note that the guidelines

themselves are often pegged to the mandatory minimums. It is no

accident that the basic guidelines range for drug possession often turns

out to be about the same sentence prescribed by a mandatory drug

provision.

337

The underlying motivation is easy to understand: The

Commission is a creature of the political branches,

338

and rather than

cross swords with federal lawmakers, it has long relied upon (or felt

bound by) congressional mandatory minimums as starting points for

setting the guidelines.

339

This is not because the Commission

necessarily agreed that a prescribed statutory sentence was appropriate;

335

See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(b)(2) (2010) (firearms

enhancements to aggravated assault guideline); see also id. § 5K2.6 (authorizing upward

departure for use or possession of a weapon or dangerous instrumentality in the commission of an

offense). If the penalties for violent crimes are for some reason generally too low, the better

approach—even from a purely crime control perspective—is to raise the sentencing guidelines for

violent crimes rather than rely upon the happenstance of a mandatory minimum.

336

The guidelines also provide specific authorization for various departures in limited

circumstances, such as diminished capacity, see U.S.

SENTENCING GUIDELINES MANUAL §

5K2.13, or voluntary disclosure of the offense, see id. § 5K2.16. A sentence below the otherwise

applicable guidelines range, due to one of these specifically identified departures, would likewise

be a guidelines sentence.

337

Compare 21 U.S.C. § 841(b)(1)(B) (2006), with U.S. SENTENCING GUIDELINES MANUAL §

2D1.1(c)(7). The Commission sometimes sets its guidelines just slightly above a mandatory

minimum sentence, apparently so that there can be no suggestion that it is encouraging judges to

go below a statutory minimum. See, e.g., Saltzburg Testimony, supra note 37, at 9.

338

See generally Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A

Structural Analysis, 105 C

OLUM. L. REV. 1315, 1347 (2005).

339

See, e.g., Beryl A. Howell, Comm’r, U.S. Sentencing Comm’n, Statement at Public

Hearing Before the U.S. Sentencing Commission (July 9, 2009), at 138 (transcript available at

http://www.ussc.gov/AGENDAS/20090709/Public_Hearing_Transcript.pdf) (“[G]enerally the

Commission has opted to link guideline offense levels to the mandatory minimums . . . .”);

Nachmanoff Testimony, supra note 37, at 5; see also Hatch, supra note 4, at 194-95; Kimbrough

v. United States, 552 U.S. 85, 109-10 (2007) (arguing that the Commission did not use its

empirical data and national experience in crafting the crack cocaine guidelines).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 75

instead, it appears the Commission recognized that the statutory

mandatory minimum will trump anything in the guidelines.

340

Given that the severity of the guidelines is often tied to the severity

of mandatory minimums, our suggested mechanism for identifying

unjust punishment will sometimes be flawed. For instance, a drug

dealer may be subject to a guidelines sentence at or above a mandatory

term set by statute, despite the fact that the Commission might have set

a lower sentencing range absent the skewing effect of the mandatory

minimums. The guidelines as they exist today will never flag such a

sentence as too severe.

The solution to this problem is to give the Commission license to

use its own independent judgment about sentencing guidelines without

requiring it to parrot every mandatory minimum penalty. Just as critics

of mandatory minimums have raised the cry “Let Judges Be Judges,”

one could argue that it is time to “Let Commissioners Be

Commissioners” (admittedly, a less catchy phrase). The Sentencing

Commission is supposed to be the expert body designed to review

sentencing policy, and as mentioned in the introduction, Congress itself

has called on the Commission to review thoroughly the array of federal

mandatory minimums.

341

In view of this explicit invitation from Congress, we would urge

the Commission to consider ways to decouple the guidelines from

arbitrary punishments specified in the mandatory minimum sentencing

statutes. While the Commission could perhaps do this on its own

initiative, federal lawmakers could provide a firmer foundation for the

undertaking. In particular, Congress should adopt legislation that

invites the Commission to consider the mandatory minimum penalties

provided by statute but not necessarily rig the guidelines to these

penalties. One way of drafting such legislation would be to amend the

statute spelling out the duties of the Commission as follows:

28 U.S.C. § 994. Duties of the Commission

(a) The Commission, by affirmative vote of at least four members

of the Commission, and pursuant to its rules and regulations and

giving due consideration to consistent with all pertinent provisions

of any Federal statute shall promulgate and distribute to all courts

of the United States and to the United States Probation System—

340

At times, the Commissioners have even encouraged Congress to reform certain troubling

laws. See supra note 112 and accompanying text (noting the Commission’s attempts to persuade

lawmakers to eliminate the crack/powder sentencing differentials).

341

See supra note 11 and accompanying text.

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76 CARDOZO LAW REVIEW [Vol. 32:1

(1) guidelines, as described in this section, for use of a

sentencing court in determining the sentence to be imposed in a

criminal case . . . .

. . .

(b)(1) The Commission, in the guidelines promulgated pursuant

to subsection (a)(1), shall, for each category of offense

involving each category of defendant, establish a sentencing

range

that gives due consideration to is consistent with all

pertinent provisions of title 18, United States Code.

It is debatable whether the current law directing that the guidelines

be “consistent with” all federal statutes necessarily requires the

Commission to track every jot and jiggle of mandatory minimum

sentences. As a practical matter, the guidelines today do not always

track mandatory minimums.

342

Moreover, the Supreme Court has

squarely held that the guidelines are not required to follow slavishly

every contour of a mandatory minimum.

343

Nonetheless, the current

statutory language can be read by the Commission as encouraging it to

defer to sentences prescribed by mandatory minimums even where its

expert opinion suggests otherwise. Our proposed changes would make

clear that Congress wants the Commission to exercise its own judgment

on appropriate sentencing policy and to construct guidelines that take

advantage of the Commission’s expertise.

Some readers may wonder why Congress would want to invite the

Commission to have its guidelines deviate from other statutes enacted

by Congress. This straightforward inquiry has two straightforward

answers. First, Congress itself appears to harbor doubts about the

panoply of federal mandatory minimums, as demonstrated by the new

crack cocaine law, the statements of some officials, and the order to the

Commission to investigate and propose alternatives to these schemes.

The simplest way to address those misgivings, we believe, is to

empower the Commission to set generally applicable guidelines as it

sees fit and then allow judges to depart downward from a demonstrably

excessive mandatory sentence to the lower boundary set by the

guidelines. Second, Congress will always retain the last word on

federal sentencing policy. No guideline promulgated by the

Commission can take effect until a six-month review period elapses,

during which Congress is free to intervene.

344

Thus, if the Commission

342

See, e.g., supra notes 259-263, 334 and accompanying text.

343

See Kimbrough, 552 U.S. at 106 (noting that various crack/powder cocaine sentencing

guidelines do not follow the 100:1 ratio established in mandatory minimum sentences).

344

28 U.S.C. § 944(p) (2006). To be clear, Congress has rarely rejected proposed guidelines.

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 77

ventures too far down paths that Congress did not approve, lawmakers

could block the changes from taking effect.

FURTHER REFORMS

The proposed reform does not involve any direct congressional

repeal of a mandatory minimum sentence. Instead, it suggests small

steps based on the idea of political minimalism, informed by principles

of broad consensus, drawing upon readily available vehicles and

materials, and operationalized in a manner that is narrowly tailored to

prevent miscarriages of justice. The proposal is thereby limited to

changes that could achieve wide agreement in Congress among both

conservatives and liberals, Republicans and Democrats. And because

the reform is consistent with commonly held values like proportionality,

providing rhetorical cover for proponents, it has a better chance of

survival in what has become an increasingly acrimonious legislative

process.

Moreover, we hope that the adoption of a minimalist reform could

prod other changes as well. As discussed above, the norm of harsh

punishment has proven to be sticky. But prior resistance to change may

belie its present fragility, with various indicators suggesting that

sentencing reform may be welcome among the public as well as feasible

to elected officials.

345

With the passage of the new crack cocaine law, it

could be imagined that another relatively modest revision may further

nudge lawmakers to a tipping point—which, when reached, might

unleash a powerful transformation and stir other, possibly bigger

reforms as more and more officials move toward a new norm of

sentencing. Of course, something in the political atmosphere may still

encourage the stock response to sentencing reform efforts, with

opportunists ready to label proponents as soft on crime, anti-law

enforcement, insufficiently attentive to crime victims, etc. But by

crafting the next step pursuant to political minimalism, the potential

blowback may be minimized as well.

Various other proposals have been contemplated by federal

officials. Reform advocates have called for retroactive application of

the crack cocaine law to those already serving federal sentences, for

instance, and the law itself directs the Sentencing Commission to study

the effectiveness of drug courts as an alternative to incarceration.

346

concluding this Article, therefore, we wanted to mention a few other

345

See, e.g., Beale, Still Tough on Crime?, supra note 95, at 422-23.

346

Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 9, 124 Stat. 2372, 2374-75 (to be

codified at 28 U.S.C § 994).

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78 CARDOZO LAW REVIEW [Vol. 32:1

changes to the federal system that could build upon successful

minimalist reform and might attract bipartisan consensus.

One possibility would be to have juries participate in the

determination of whether a mandatory minimum sentence is excessive.

As an institution, the jury occupies a position of great historical and

constitutional significance in America, serving as a check and balance

on government and offering a direct means for citizen participation and

community representation.

347

Moreover, it may provide a mechanism

for identifying cases of unjust punishment and lend credibility to federal

sentencing. Public support is a necessary component of a legitimate

criminal justice system, but as mentioned, there are signs that the

populous has grown disenchanted with mandatory minimums.

348

We recognize that measuring public opinion can be a fickle and

uncertain project. Some polls may not represent a fair cross-section of

the relevant community, while the nature of questions asked and the

level of factual detail provided can easily skew results. These

objections may disappear, however, if the trial court presents a specific

query to a jury that has heard all of the evidence in the case at hand.

The issue is how long should this specific defendant be imprisoned, and

the decision-maker is constitutionally required to be “a fair cross-

section of the community.”

349

Again, the Angelos case provides an illustration of how to

implement this reform. To reiterate, after the defendant was convicted,

the judge provided the jury with “relevant information about Mr.

Angelos’s limited criminal history, described the abolition of parole in

the federal system, and asked the jurors what they believed was the

appropriate penalty for Mr. Angelos.”

350

None of the jurors

recommended a term close to the effective life-sentence required by the

mandatory minimums—a fact the judge cited in suggesting that the

mandatory sentence was unjust. Interestingly, the government objected

to the entire endeavor. The protest, however, perhaps intimates

uneasiness about the justice of mandatory sentences rather than the

insight of juries. As recounted in the Angelos opinion:

At oral argument, the court asked the government what it thought

about the jurors’ recommendations and whether it was appropriate to

impose a sentence so much higher than what the jurors thought

appropriate. The government’s response was quite curious: “Judge,

we don’t know if that jury is a random representative sample of the

citizens of the United States. . . .” Of course, the whole point of the

elaborate jury selection procedures used in this case was to assure

347

See, e.g., Erik Luna, The Katz Jury, 41 U.C. DAVIS L. REV. 839 (2008).

348

See supra note 8 and accompanying text.

349

Tennessee v. Lane, 541 U.S. 509, 523 (2004) (citing Taylor v. Louisiana, 419 U.S. 522,

530 (1975)).

350

United States v. Angelos, 345 F. Supp. 2d 1227, 1242 (D. Utah 2004).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 79

that the jury was, indeed, such a fair cross section of the population

so that the verdict would be accepted with confidence. It is hard to

understand why the government would be willing to accept the

decision of the jury as to the guilt of the defendant but not as to the

length of sentence that might be imposed.

351

Judge James Gwin and other federal judges in the Midwest

recently repeated the Angelos experiment in jury polling on a larger

scale.

352

In twenty-two jury trials resulting in conviction, the district

court gave the jurors information about the defendant’s criminal history

and asked them to recommend a term of imprisonment for the

defendant.

353

In almost every case, the jury advised a prison term

substantially lower than the sentencing guidelines. Moreover, in every

case in which a sentencing judge added a mandatory minimum onto the

guidelines sentence, the jury recommended a lower sentence than was

otherwise called for.

354

We foresee no serious objection to a judge receiving jury input

when fixing punishment within a lawful range. Federal law specifically

provides that a judge can receive almost unlimited information when

determining a proper sentence.

355

In fact, the idea of jury sentencing

has garnered (mostly) positive scholarly attention in recent years,

largely due to the Supreme Court’s budding Sixth Amendment

jurisprudence.

356

During the half-year interregnum between Blakely v.

Washington,

357

which struck down a state sentencing guidelines

scheme, and its federal mirror-image in Booker, at least a few federal

courts utilized jury sentencing pursuant to case-specific deliberation

forms.

358

In addition, several states incorporate jurors in punishment

351

Id.

352

Gwin, supra note 241.

353

Id. at 186-88 (describing survey scope and methods).

354

See id. at 196-200 tbl.3 (comparing guideline/statutory sentences with jury

recommendations).

355

18 U.S.C. § 3661 (2006); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.4 (2010)

(“In determining the sentence to impose within the guideline range, or whether a departure from

the guidelines is warranted, the court may consider, without limitation, any information

concerning the background, character and conduct of the defendant, unless otherwise prohibited

by law.”).

356

See, e.g., Betrall L. Ross II, Reconciling the Booker Conflict: A Substantive Sixth

Amendment in a Real Offense Sentencing System, 4 C

ARDOZO PUB. L. POL’Y & ETHICS J. 725,

771-78 (2006); Nancy J. King & Roosevelt L. Noble, Felony Jury Sentencing in Practice: A

Three State Study, 57 V

AND. L. REV. 885 (2004); Morris B. Hoffman, The Case for Jury

Sentencing, 52 D

UKE L.J. 951 (2003); Jenia Iontcheva, Jury Sentencing as Democratic Practice,

89 V

A. L. REV. 311 (2003); Adriaan Laani, Jury Sentencing in Noncapital Cases: An Idea Whose

Time Has Come (Again)?, 108 Y

ALE L.J. 1775 (1999).

357

542 U.S. 296 (2004).

358

See, e.g., Pamela Manson, Sentencing Rules Face High Scrutiny in Wake of Ruling, SALT

LAKE TRIB., July 19, 2004, at A1 (describing jury sentencing practice of U.S. District Court

Judge Dale Kimball).

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80 CARDOZO LAW REVIEW [Vol. 32:1

decision-making to some extent or another, practices which presumably

could offer a useful source of information and experiences.

359

The limited proposal here would be to use a jury as an additional

means for flagging those cases in which a mandatory minimum

sentence would produce an unjust prison term. Legislation could be

crafted requiring this process only in cases where a defendant was

convicted of crimes carrying mandatory prison terms of more than, say,

ten years. In such situations, the judge would provide the defendant’s

criminal history and other relevant information to the jury, which would

then deliberate and recommend a sentence to the court. If that

recommendation were less than the mandatory minimum, the judge

would then be authorized (but not required) to impose a sentence below

the mandatory term.

The proposal might limit the judge’s discretion in such cases by,

for instance, requiring that any sentence does not fall below the mean or

median prison term recommended by the jury. Nonetheless, the

approach would ensure that judges were not obligated to impose lengthy

mandatory prison terms far in excess of what the public believes is fair.

It is one thing to sentence someone to prison for decades when that is

the type of punishment deemed appropriate by the general public, but it

is another thing to do so when the affected community (as represented

by a jury) supports a far shorter sentence. This proposal would help

identify such extreme cases and permit judges to avoid miscarriages of

justice.

Other reforms might go beyond the ambit of our safety valve

proposal. For instance, federal lawmakers might reconsider the

“stacking” of mandatory minimum sentences pursuant to 18 U.S.C. §

924(c). As illustrated by the Angelos case,

360

a defendant can rack up

decades of prison time by possessing a gun in several separate criminal

offenses, even where those offenses are all part of the same episode.

This problem can be traced to the Supreme Court’s decision in Deal v.

United States,

361

which considered whether the increased penalties for

“second or subsequent” convictions under § 924(c) allowed multiple

stacked penalties when the convictions were all part of the same

proceeding.

In essence, the issue was whether Congress intended § 924(c) to be

a true recidivist statute or one that increased penalties for a single-

episode offender. Most of the lower courts had not applied the

additional punishment when the second conviction was just another §

359

See, e.g., King & Noble, supra note 356.

360

See supra notes 259-263 and accompanying text.

361

508 U.S. 129 (1993).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 81

924(c) count in an indictment.

362

But the Supreme Court construed the

“plain meaning” of the statute far more broadly, holding that a “second

or subsequent” conviction could arise from a single prosecution.

363

dissenting opinion authored by Justice John Paul Stevens argued that

Congress had intended the provision to apply “to defendants who,

having once been convicted under § 924(c), failed to learn their lessons

from the initial punishment and committed a repeat offense.”

364

This Article does not delve into the merits of the Court’s

jurisprudence on legislative intent and the conclusion it produced in

Deal based on the ostensible plain meaning of the statute. Instead, our

limited point here is that the Supreme Court’s interpretation has

produced a fearsome mandatory minimum statute that is not a true

recidivist law. An offender can receive a lifetime’s worth of

punishment for just a few days of criminal activity. This stacking

aspect cannot be justified on grounds that it is sending a message to

recidivists who did not learn a lesson, given that a defendant will not

have been convicted and imprisoned in the time between § 924(c)

violations.

365

For these and other reasons, § 924(c) should be amended

to be a true recidivist law, with Congress overturning Deal to make the

statute conform to the interpretation of the dissenters. If an offender

commits a firearms offense, goes to prison for five years, and then

commits a second or subsequent offense after his release, he would be

eligible for a lengthy prison term—but not until then.

Another possible reform would consider bringing back parole for

prisoners serving extremely long prison terms, particularly where those

terms resulted from mandatory minimum sentences.

366

Like our other

proposals, this would not involve a direct attack on mandatory

minimums. Instead, it would call for the re-energizing of the U.S.

Parole Commission, which currently has the limited authority to review

sentences for some prisoners—namely, those who committed their

offenses before November 1, 1987.

367

After review, the Parole

Commission has the power to grant or deny parole to these prisoners.

362

See, e.g., United States v. Chalan, 812 F.2d 1302, 1315-17 (10th Cir. 1987), cert. denied,

488 U.S. 983 (1988).

363

Deal, 508 U.S. at 132-34. In Deal, the defendant was convicted of committing six

different bank robberies on six different dates, each time using a gun. He was sentenced to five

years for the first § 924(c) charge, and twenty years for each of the other five § 924(c) charges,

for a total of 105 years. Id. at 131.

364

Id. at 146-47 (Steven, J., dissenting).

365

Cf. supra note 101 and accompany text (quoting the congressional sponsor’s rationale for §

924(c)).

366

Such a provision might help deal with some of the issues of retroactive application of

sentencing reforms.

367

This was the effective date of the sentencing guidelines. A full listing of the Parole

Commission’s various responsibilities is found on its website, http://www.justice.gov/uspc (last

visited Aug. 31, 2010).

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82 CARDOZO LAW REVIEW [Vol. 32:1

Congress could easily provide it broader authority to evaluate current

prison sentences and consider whether it makes sense to continue to

incarcerate long-serving inmates.

When it passed the federal sentencing guidelines, Congress

abolished parole in order to ensure that offenders served a set amount of

prison time. The broader crusade for “truth in sentencing” was intended

to deter potential offenders and guarantee the public that a criminal

would not receive a mere slap-on-the-wrist penalty.

368

Regardless of

whether these goals were in any way served by the guidelines regime, at

some point the diminishing returns of punishment are outweighed by

the concrete (and substantial) costs of incarcerating prisoners. Precisely

where that point lies is, no doubt, a subject of debate. But we think that

there might be a political consensus that after a prisoner has been

incarcerated for a significant amount of time—at least 15 years in

prison, for example—the Parole Commission could investigate whether

conditional release should be granted.

369

It is also worth noting that federal law already contains a

“compassionate release” provision, authorizing the Bureau of Prisons to

make a motion to the district court for the release of a prisoner who is at

least seventy years old and has served at least thirty years in prison, or

for other “extraordinary and compelling reasons.”

370

The Bureau of

Prisons has interpreted this authority very narrowly, effectively limiting

release to those with terminal illnesses or severely debilitating and

irreversible conditions.

371

Perhaps Congress should expand this

authority to include additional circumstances where the Bureau could

use parole or other forms of discretionary release to discharge prisoners

who have already served extensive sentences.

372

The above suggestions go beyond a strictly delimited reform

animated by political minimalism. But as mentioned, the success of a

small step might inspire bigger moves. Moreover, the ideological

diversity of those who have called for a reexamination of sentencing

policy carries the possibility that the relevant norm entrepreneur could

have unassailable law-and-order credentials. Like the adage that “only

Nixon could go to China,” maybe a well-respected, politically

impervious legislator or other opinion leader could help rouse support

for meaningful change in sentencing. Topics for discussion might

include not only the uses and limits of mandatory minimums but also,

368

See S. REP. NO. 98-225 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3222-32.

369

See Miller, Domination, supra note 179, at 1268 n.201 (advancing a variant of this idea).

370

18 U.S.C. § 3582(c)(1) (2006).

371

See Williams v. Van Buren, 117 F. App’x 985, 986 (5th Cir. 2004).

372

Scholars have suggested various other reforms to mandatory minimums, short of explicit

repeal, that deserve consideration by Congress. See, e.g., Schulhofer Testimony, supra note 37,

at 26-29 (discussing reforms to co-conspirator and accomplice liability and adjustments to

guidelines ranges).

LUNA.CASSELL.32-1 9/13/2010 12:25:07 PM

2010] MANDATORY MINIMALISM 83

for instance: the proper allocation of sentencing power among the three

branches of government; the ethical and practical issues raised by plea

bargaining, either as an exception to adjudication or as the rule; the

empirical and normative significance of criminal history and the

efficacy of recidivist schemes; and the moral value of a defendant’s

post-crime mea culpa.

373

ONCLUSION

Our proposal will not completely satisfy either side of the debate.

Critics of mandatory minimums can argue that it simply trades a set of

statutory mandatory minimums for a different set found in the

sentencing guidelines. Defenders of mandatory minimums may contend

that it shortens sentences for serious offenders, reducing the deterrent

effect of the federal criminal code. To some extent, we may be guilty as

charged on both fronts. At the same time, however, we agree with the

political adage that the most dangerous place to be is in the middle of

the road. Recognizing that Congress has historically been reluctant to

repeal mandatory minimum sentences, we have tried to craft a proposal

that proceeds from principles of consensus and focuses reform on the

most extreme situations. As a result, we believe that this proposal

might have some prospect of passage in Congress and could serve as a

useful measure toward creating a fairer federal criminal justice system.

In fact, it might inspire further sentencing reforms in both federal

and state sentencing law. The proposal offers a small but principled

move for Congress and an invitation to keep moving forward. While

our primary focus has been on the federal system, congressional action

could instigate constructive developments in the state justice systems,

which handle the bulk of crime and punishment in America. Given

current misgivings about mandatory minimums generally, thoughtful

reform in the federal system could be a catalyst for change across the

nation. Wherever such discussion leads, however, and whether or not a

tipping point is even reached, the proposed modification to the federal

mandatory minimum scheme can at least help avoid the occasional

injustice of excessive punishment without emasculating whatever

benefit mandatory minimums provide to law enforcement. It would be,

we believe, a step in the right direction.

373

See, e.g., Julian V. Roberts, The Role of Criminal Record in the Sentencing Process, 22

RIME & JUST. 303 (1997) (discussing the relevance of a defendant’s criminal history).