Citing cases in which first-time offenders received decades-long sentences under laws imposing mandatory penalties, a federal judge last month told a Congressional subcommittee that such sentences are inequitable and unduly harsh.

“I have found the application of one particularly egregious mandatory minimum sentencing provision to result in sentences that are cruel and unusual, unwise and unjust,” Judge Paul G. Cassell (D. Utah) told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. He testified as chair of the Judicial Conference Committee on Criminal Law at a hearing on mandatory minimum sentencing laws.

Also testifying at the hearing were Judge Ricardo H. Hinojosa (S. D. Tex.), chair of the U.S. Sentencing Commission (USSC); U.S. Attorney Richard Roper III from the Northern District of Texas; Marc Mauer, executive director of The Sentencing Project; T. J. Bonner, president of the National Border Patrol Council; and Serena Nunn, who received a 12-year sentence as a first-time offender. 

Hinojosa provided a statistical overview of statutory mandatory minimum sentencing, and discussed the application of these provisions in the context of crack cocaine offenses. According to Hinojosa, the USSC has identified at least 171 mandatory minimum provisions currently in the federal criminal statutes. He told the subcommittee that the USSC “firmly believes that the federal sentencing guidelines system remains the best mechanism for assuring that the statutory purposes of sentencing . . . are met.” 

U.S. Attorney Richard B. Roper from the Northern District of Texas spoke in support of mandatory minimum sentencing statutes for the most serious of offenses. He argued that mandatory minimums increase the certainty and predictability of incarceration for certain crimes, while serving as an indispensable tool for prosecutors. 

However, Cassell told the subcommittee that, because of the injustices mandatory minimums produce, the Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years.

“The Conference has noted that mandatory minimum terms result in harsh sentencing. Mandatory minimum sentences diminish judicial discretion, increase the number and cost of trials and appeals, and prolong the sentencing process. For these reasons, the Conference has steadfastly opposed these provisions,” he said.

The sentencing provision drawing Cassell’s particular attention was a mandatory minimum statute—18 U.S.C. § 924 (c)—which requires the court to impose a sentence of five years in prison the first time a drug dealer carries a gun and 25 years for each subsequent time. 

Under the statute, Cassell recently was required to sentence a 24-year-old first-time offender to essentially the rest of his life in prison. The penalties in this case were, he noted, “simply irrational,” exceeding at 660 months the sentences of, for example, an aircraft hijacker (293 months), a terrorist who detonates a bomb in a public place (235 months), a second-degree murderer (168 months), or a kidnapper (151 months).

 
USSC’s Judge Ricardo Hinojosa and Criminal Law Committee chair Judge Paul G. Cassell testifiy on sentencing issues at a June, 2007, Senate hearing.  
 

“It is hard to explain why a federal judge is required to give a longer sentence to a first offender who carried a gun to several marijuana deals than to a man who murdered an elderly woman,” Cassell said. “Section 924 (c) punishes [the defendant] more harshly for crimes that threaten potential violence than for crimes that conclude in actual violence to victims . . . .”

A judge can set aside the statute, Cassell told the subcommittee, “only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment.” Indeed, the defendant argued that his sentence was irrational because the enhancement provided by § 924 (c) increased his sentence by 55 years. Were the Sentencing Guidelines alone to be applied, his sentence would be enhanced by only two years.

But after careful deliberation, Cassell reluctantly concluded that he had no choice but to impose the 55-year sentence. “While the sentence appeared to be cruel, unjust, and irrational,” he said, “in our system of separated power, Congress makes the final decisions as to appropriate criminal penalties.” Under the controlling precedents in this case, he had to reject the constitutional challenges and sentence the defendant.

The long sentence, Cassell explained, was the result of a construction of § 924 (c) to mean that an offender who is convicted of two or more counts is subject to an enhanced penalty for each count after the first count of conviction. Rather than interpret this provision to apply only to repeat offenders convicted of violating § 924 (c) on separate occasions after serving prison time, the statute has been read to include defendants convicted of multiple § 924 (c) counts in the same proceeding, stemming from a single indictment, with sentences to be served consecutively.

“When multiple § 924 (c) counts are stacked on top of each other,” Cassell told the subcommittee, “they produce lengthy sentences that fail to distinguish between first offenders. . . and recidivist offenders.”

Cassell described a case from the Ninth Circuit Court of Appeals in which the court rejected a defendant’s constitutional challenge to a sentence. The 52-year old mentally ill defendant—a first-time offender with no previous involvement with law enforcement—was involved in the planning of several robberies, and would not agree to a plea bargain. Although she never held a weapon during the robberies her boyfriend carried out, she was convicted of conspiracy, seven counts of robbery, and using a firearm in relation to a crime of violence. Because of seven stacked § 924 (c) counts, she was sentenced to slightly more than 159 years in prison. At her sentencing, the court detailed the terms of supervised release she would be required to undergo when she emerged from prison—in 2162.