Mandatory minimums can make sentencing tough

Every U.S. judge knows what it is like to sentence a defendant to a mandatory minimum term of imprisonment that makes no sense. Every judge has been obliged to impose a punishment that everyone in the courtroom -- the defendant, surely, but even the prosecutor -- knows was unfair. The judge can roll her eyes but has no authority to consider anything else. The prosecutor chose the sentence when he chose the charge. He (and the Legislature) sentenced, not the judge. And from that decision there is no appeal. Why couldn't the prosecutor do something about it? He decided on a mandatory minimum charge before he knew anything about the defendant's personal background. And when he finally did, office policy -- or worse, politics -- prevented him from doing anything about it. The prosecutor may say that the "public demands" a severe sentence. Hardly. U.S. District Court Judge James Gwinn from Ohio asks jurors after a conviction what they think the sentence ought to be. Invariably, the jury -- the people's representatives, after all -- chooses a sentence far, far lower than the law requires the judge to impose. Drug cases are the worst. U.S. District Court Judge John Gleeson, a former mob prosecutor, observed that while we think about the big miscarriages of justice, like the innocent people released from jail after serving a long time, most injustices are "in small doses, in cases involving guilty defendants, which makes them easier to overlook." Mandatory minimums force judges to treat the crack-dealing defendant who lives in his car because he is homeless the same as the guy dealing crack to buy a Porsche; the defendant selling cocaine to support his addiction the same as the one selling cocaine to support his lavish lifestyle; the young man who distributes drugs to get school supplies for his sisters because he has no responsible adults in his life to play that role the same as the one who distributes drugs to get jewelry for his girlfriend. Take the case of Roberto Vasquez, a 36-year-old charged with a drug offense. Sexually abused by his brother, he struggled with depression, dropped out of high school, and by his early 20s was addicted to cocaine. He married and had children, but attempted suicide after learning of his wife's infidelity. When he was released from the hospital, his wife denied him access to the children. He entered into another long-term relationship, had a child and also raised his lover's daughter. He worked continuously, but when his ex-wife acted up again, keeping him from their children, he relapsed. To support his cocaine habit, not to mention his family, Vasquez went to work for one of his older brothers, dealing drugs. The government agreed that he was a minor street dealer, not remotely comparable to the other conspirators. In fact, when he tried to cooperate with the government, his role was so small, he did not have much information to give. The government could have charged him with an offense that carried no minimum sentence, but it did not. It charged him as a conspirator with his brother, which meant both the big dealer and the minor one were each facing 10-year minimum sentences. The prosecutor agreed to drop the 10-year mandatory minimum if Vasquez pleaded guilty to a "lesser" charge, one with a mandatory minimum of five years. To avoid what Judge Gleeson described as a ridiculous sentence, Vasquez was obliged to plead guilty to an unfair charge. The decision to charge the five-year mandatory minimum meant there was "no judging going on at Vasquez's sentencing," Judge Gleeson observed. The prosecutor's decision made irrelevant all of the factors that should have gone into a just sentence: the defendant's difficult childhood; his longstanding addiction and mental health history; how he came to play a minor role in his brother's drug business (to support his addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs); that he tried to cooperate with the government but did not know enough; what his imprisonment would do to the two young children whom he was raising and was devoted to; that his prior convictions all arose out of his ex-wife's refusal to permit him to see their children. Certainly no lenient judge, Judge Gleeson, if he had discretion, would have sentenced Vasquez to two years with a period of supervision and treatment. "The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous," the judge said. "When I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice." I know that feeling. ---------- Judge Nancy Gertner recently retired from the U.S. District Court. She is a professor at Harvard Law School. Published: Fri, Apr 6, 2012