Mandatory minimum sentences impede justice

Unfair sentencing rules tie judges' hands

December 08, 2011|By Andre M. Davis

I have never met Tony Allen Gregg, a drug abuser and occasional dealer, a 10th-grade dropout and petty criminal.

But the details of Mr. Gregg's life — and the life sentence he is now serving — highlight a major problem in our criminal justice system: mandatory minimum sentencing, an offshoot of our misguided "war on drugs."

Federal mandatory minimums, created by an overzealous Congress 25 years ago, require harsh sentences for nonviolent offenders. Such laws do a disservice to the people accused of the crimes, to the judges before whom their cases are reviewed, to communities that are largely poor and black or Latino, and to society.

These laws have inappropriately shifted sentencing authority to prosecutors through their charging decisions, impeding judges from considering mitigating factors that would help impose fair and just sentences. They essentially strip away the discretion that judges traditionally employ in sentencing drug offenders, particularly low-level offenders.

As a result, the proportion of drug offenders sentenced to prison has swelled from 79 percent in 1998 to 93 percent in 2004. Many of those are serving extraordinarily long sentences, receiving little or no addiction treatment, and growing older, sicker and more in need of taxpayer-provided medical care.

The United States boasts the largest prison population in the world. And yet even the U.S. drug czar admits that our efforts are failing. After 40 years and $1 trillion spent, Gil Kerlikowske told the Associated Press last May, "it has not been successful ... the concern about drugs and drug problems is, if anything, magnified, intensified."

As a judge on the U.S. Court of Appeals for the Fourth Circuit, I learn of many personal narratives. Tony Gregg's bears retelling.

Mr. Gregg was a user, a seller, a "snitch" for the FBI. His early life was marked by abuse and instability, suicide attempts, jails and prison stays. As a drug user, Mr. Gregg resorted to selling crack cocaine — not kilos, but several grams at a time out of a hotel room in a run-down section of Richmond, Va.

Not unexpectedly, he was arrested and convicted. A district judge sentenced Mr. Gregg to the mandatory term of life imprisonment, required by statute, at the discretion of the prosecutor, for a third conviction of a felony drug offense.

When Mr. Gregg's case came before me and my colleagues on appeal, there was nothing we could do but uphold the sentence of life in prison. The appellate court, like the disapproving trial court, found its hands were tied.

I do not believe Mr. Gregg deserves life in prison — the kind of sentence often imposed on convicted murderers — but I am handicapped by mandatory minimum sentencing guidelines, set by the Anti-Drug Abuse Act of 1986.

And Mr. Gregg's is far from the only story that underscores the kind of handcuffing by mandatory minimums that U.S. judges habitually face.

After 25 years of watching countless Tony Greggs serve out impossibly long sentences for transgressions that would be better served by drug treatment and social safety nets, I say with certainty that mandatory minimums are unfair and unjust. They cost taxpayers too much money and make very little sense. It was recently reported, for example, that in New Jersey, the cost of a year in state prison exceeds the cost of a year at Princeton University.

In a step in the right direction, Congress addressed the issue by passing the Fair Sentencing Act of 2010, reducing the sentencing disparity between crimes involving powdered cocaine and crack. In many cases, the mandatory minimum sentences doled out for crack offenses were far longer than those for like amounts of powdered cocaine offenses — a disparity that has disproportionately affected communities of color and has led to over-incarceration of petty criminals, jail and prison overcrowding and billions of dollars in taxpayer money.

The Fair Sentencing Act reduced the crack/powder disparity from 100-to-1 to 18-to-1, and the federal sentencing commission wisely made the adjustment retroactive, effectively shortening the sentences of some 13,000 people, many of whom will be released in the coming months.

Similarly, the U.S. Sentencing Commission's recent report to Congress will prompt a fresh look at federal sentencing policy, including mandatory minimum sentences.

With mandatory minimums, judges are hindered from handing out fair and just sentences, but prosecutors are given unwarranted power to dictate sentences. Nonviolent drug offenders are serving longer sentences, filling our prisons at an unsustainable rate. Meanwhile, communities are destroyed, society is unjustly served and the "war on drugs" fails.

Tony Gregg is a drug dealer deserving punishment, perhaps. But it must be a just punishment.

And if his life story — and his mandatory life sentence — can serve to call attention to this decades-long miscarriage of justice, then perhaps he will have done us all some good.

Andre M. Davis of Baltimore is a judge with the United States Court of Appeals for the Fourth Circuit. His email is adavis@law.umaryland.edu.

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