Federal judge, former U.S. Attorney discuss mandatory minimum sentences


By Lori Atherton
U-M Law

What are statutory mandatory minimum sentences in federal court? How do these penalties work in practice, what is their role in plea agreements, and what is their effectiveness in providing deterrence to crime? The Hon. Avern Cohn, a senior judge on the U.S. District Court for the Eastern District of Michigan, and Professor Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, answered those questions during a recent lunch talk moderated by Professor Leonard M. Niehoff, at Michigan Law.

Mandatory minimum sentences are statutes that require judges to sentence offenders to a specified minimum prison term for a specific crime. They are associated with federal crimes involving drugs, guns (when accompanying crime or violence), child pornography, identify theft, the smuggling of undocumented immigrants for commercial gain, and other cases, according to McQuade. “Congress sets maximum penalties for violations of federal statutes, whereby certain crimes shall not be punished by more than five years, by more than 10 years, by more than 20 or 30 years, up to life and including death,”
McQuade said. “A mandatory minimum sentence changes that calculus, so that Congress includes in the statute not just the statutory maximum sentence, but a mandatory minimum sentence below which the judge may not sentence a defendant, regardless of what the sentencing guidelines calculus turns out to be.”

Mandatory minimums are controversial, McQuade noted, and cited as two criticisms their contribution to mass incarceration in the United States and the inability of the judge to determine a length of punishment for the defendant.

Judge Cohn, who was appointed a U.S. district judge by President Jimmy Carter in 1979, elaborated on the lack of judicial discretion when sentencing defendants. “The most sacred quality that judges guard most is discretion, which is choice,” he said. “Mandatory minimums take that choice away from a judge. You’re obligated to follow the statute, and if you don’t follow the statue, your decision is going to go to the court of appeals and get reversed. And judges don’t like to have their decisions reversed.”

Referencing a recent case he tried, Judge Cohn gave insight into how mandatory sentences impacted a plea agreement in the case, which involved five people who were charged with murder for hire. Three of the defendants pled guilty and agreed to take a lesser penalty, and two went to trial. “Typically when a defendant in a plea agreement bargains for a specific sentence, it’s subject to the judge’s approval,” Judge Cohn said. “However, in this case, the prosecutor agreed to the plea bargain, so it’s not subject to the judge’s approval. So we have a defendant who pleaded guilty and agreed to testify against his colleagues, and we have agreed that the sentence to be imposed is 20 years. Now, am I to begin to examine whether 20 years is common for his conduct? Can I reject it? If I reject it, he doesn’t testify. If he doesn’t testify, others may not be convicted. Mind you, nobody knows anything about the defendant’s life history. They know something about his criminal record but they don’t know how many kids he has, how many mothers there are, where he’s worked, or what his childhood was like. He testifies, and the case is over. But I see in his testimony that he really didn’t want to be involved in this crime, that he was intimidated and too weak to say no. I think 20 years is too heavy a hit but I can’t do a thing about it, because ‘your honor agreed’. It was a contract of adhesion—a contract between two parties of unequal bargaining. That’s one insight into the problem of mandatory sentencing.”

As a former prosecutor, McQuade said she is aware that mandatory minimums have not deterred certain crimes, even though that was Congress’s intent when it established the sentences in response to the war on drugs in the 1980s. “Congress wanted to impose strong, heavy penalties for certain kinds of serious cases, in the hope of deterring or eradicating certain crimes and creating uniformity in punishments across districts,” McQuade said. “Thirty years later, we have seen that those sentences have not eliminated those crimes or even deterred them, so I think it’s a fair question to ask whether mandatory minimum sentences are too fair or too heavy.”

McQuade noted that under the Obama administration, Attorney General Eric Holder had a Smart on Crime initiative in which prosecutors were able to use their discretion to make an individualized assessment about how to charge the offender based on the offense. “The default was not to seek a charge that carried a mandatory minimum sentence in drug cases, unless certain aggravating circumstances were present, such as if the person used violence, was connected to an international drug cartel, used a weapon in the course of the crime, or had more than three criminal history points,” she said. “That has been reversed under the Trump administration.”

In many European countries, Judge Cohn noted, mandatory minimum sentences don’t exist. “In Germany, for example, a life sentence is outlawed, because it denies the humanity of the offender,” he said.
When Judge Cohn was first appointed a judge and had no experience with sentencing, he read up on the subject. In one book written by a Norwegian criminologist, Judge Cohn learned that a 10-year prison sentence in Norway was considered harsh. “That stuck with me,” he said. “Any time I have to give more than a 10-year sentence and I have some discretion, I think of that passage and how 10 years is considered a harsh sentence in other countries.”