Mandatory minimums in drug sentencing: a valuable weapon in the war on drugs or a handcuff on judicial discretion?

• Position: Panel Discussion

Judge Stanley Sporkin v. Congressman Asa Hutchinson

Moderated by Ms. Cokie Roberts

March 2, 1999

Georgetown University Law Center

CHRISTOPHER ANZIDEI: On behalf of the American Criminal Law Review I'd like to welcome you to our annual debate, this year entitled, "Mandatory Minimums in Drug Sentencing: A Valuable Weapon in the War on Drugs or a Handcuff on Judicial Discretion?" Before I introduce today's participants, let me say a few words about our format. Our moderator will direct each question to one participant. He will have five minutes to respond, and our other speaker will have three minutes for rebuttal. At the end of the debate, each participant will have five minutes to make a closing statement. I now have the distinct privilege of introducing our distinguished guests.

Judge Stanley Sporkin was appointed to the Federal bench in 1985, where he served at the United States District Court for the District of Columbia for the last fourteen years. Judge Sporkin attended Pennsylvania State University from 1949 to 1953 and received his law degree from Yale University in 1957. Prior to his appointment, Judge Sporkin spent twenty years with the Securities and Exchange Commission, serving the last seven as the Director of the Division of Enforcement, and five years with the Central Intelligence Agency, serving as the General Counsel. Judge Sporkin has received numerous honors and awards for his public service. Most recently, in May 1996, he was presented with the H. Carl Moultrie Award for Judicial Excellence by the Trial Lawyers of Washington, D.C. We are honored to have Judge Sporkin here with us today.

Representative Asa Hutchinson has served Arkansas' Third Congressional District in the House of Representatives since 1997. Congressman Hutchinson graduated from Bob Jones University and received his law degree from the University of Arkansas in Fayetteville. Prior to his election, Congressman Hutchinson was Chairman of the Arkansas Republican Party from 1990 to 1995, and he served as U.S. Attorney for the Western District of Arkansas from 1982 to 1985. Appointed by Ronald Reagan, he was, at age thirty-one, the youngest federal prosecutor in the country at that time. Among his many duties, Congressman Hutchinson currently serves on the Judiciary Committee, where he sits on two subcommittees, Crime and The Constitution. Congressman Hutchinson is also a member of the Speaker's Task Force for a Drug-Free America. We are also honored to have Congressman Asa Hutchinson here with us today.

Finally, I'm pleased to introduce our moderator, Ms. Cokie Roberts, chief congressional analyst for ABC News and co-anchor of This Week With Sam Donaldson and Cokie Roberts. In addition to her work for ABC News, Ms. Roberts serves as a news analyst for National Public Radio, and she writes a weekly syndicated column that appears in newspapers throughout the country. She is a 1964 graduate of Wellesley College, where she earned a degree in political science. Ms. Roberts' distinguished career as a journalist has brought her numerous awards, including the highest honor in public radio, the Edward R. Murrow Award. Without further ado, it's my pleasure to turn our program over to Ms. Cokie Roberts.

COKIE ROBERTS: Thank you very much. I must say, the last time I was in this moot courtroom was many years ago for a performance of Gilbert & Sullivan's Trial by Jury. And, if it gets boring, guys, we might just go into a chorus of it. The students have prepared for me an opening statement, which is a good thing. It has a paragraph about how in the 1980s parents got concerned. Actually, it was fascinating. What happened was, Len Bias killed himself. And then Don Rogers killed himself.(1) It was Fourth of July weekend and Congress came back, and it was one of those things that you could watch spreading like a brushfire through the Speaker's Lobby and the halls of Congress. Members came back and said all anybody's talking about at home is drugs. And you knew from that moment that you were going to have a drug bill and that you were going to have drug bills for the rest of the decade. Crime bills, those omnibus crime bills, were usually about the last thing at the end of a session. The basic premise in the crime bill was each party trying to prove that it was tougher than the other party, and you'd have some really enlightened floor debate. There were always things like death penalties for drug kingpins. And I actually called a Judiciary Committee congressman and asked for a definition of a drug kingpin, and asked if, in fact, there were "queenpins." And the answer came back, "Cokie, shut up! We'll never go home if you ask about these things!" So, that was somewhat the way the war on drugs was waged throughout the 1980s. But it was obviously responding to what was seen by voters, i.e., parents, as a very genuine concern and a real need to do something about what a lot of people feared was a spreading drug epidemic and one that was harming their children. So, starting in 1984, and as I say, every Congress thereafter, these mandatory minimum penalty provisions were passed by Congress.

Actually, in these prepared remarks it says for me: "In 1951 and 1956 Congress passed the Boggs Act and its enhancements." Obviously, it's unknown to the person who wrote this, that this bill was written by my father. The Boggs Act was his bill. Actually, when I was a teenager, we went to some, at that point in the 1950s, steamy movie. Now it would probably seem quite tame. We were all dragged in to see this movie, because at the beginning of it, it had my father giving some stem statement about drugs, and then it went on to have some wonderful sexy movie about drugs.

But, by 1970 those mandatory minimum penalties had been deemed unworking. And so, Congress repealed the laws and they continued to leave any mandatory penalties off the books until the 1980s. Now there are over forty mandatory minimum penalty provisions in eight different statutes. The bulk are handed down under statutes which penalized the possession, importation, exportation, or manufacture or distribution of controlled substances, or that mandate minimum sentence enhancements for the use of firearms during a drug crime.

Congress' emphasis on mandatory minimum penalty provisions has had an interesting effect on the judiciary, which I'm sure we can hear about from Judge Sporkin, because the Sentencing Commission in 1984 was also established by Congress. And that body was charged with developing a uniform set of federal sentencing guidelines that would establish tough but fair sentences for every crime, including those involving drugs. The Sentencing Commission sought to eliminate unwarranted sentencing disparity by abolishing parole and establishing a range of sentences available for a particular offense based on the seriousness of the offense, the underlying criminal conduct, the offender's past, etc. Mandatory minimums and the Sentencing Guidelines ended up in a clash. The Guidelines were looking for a balance that the opponents of mandatory sentencing say are not there. The mandatory minimums have certainly been criticized a great deal. The Sentencing Commission, along with the Bar Association, the Congressional Black Caucus, numerous other organizations, argue that the minimums must be abolished in favor of the Guidelines. Critics attacked the minimums for their harsh effect because the statutes disregard everything except the quantity and type of drugs involved in the offense, nothing about the person involved in the offense. The Sentencing Commission also says that they result in a "cliff" effect, and this is an interesting point, where the possession of say 5.00 grams of crack carries a maximum sentence of one year while possession of 5.01 grams of crack results in a minimum sentence of five years. So, you know, the weight is terribly important and the difference of that tiny amount makes a huge difference in terms of sentencing. Despite the criticisms, however, the public, the voters who asked for these laws in the first place, overwhelmingly favor mandatory minimums. And the Congress, supported by each president since the laws started being passed, has increased the reach of the mandatory minimums.

Now, the authors of this document would like us to keep in mind that in 1970 Congress had gone back and rescinded the minimums in the Boggs Act fourteen years after its enactment, and they point out that it's now fourteen years after the first of these minimum penalty laws of the 1980s have been enacted. So, perhaps this is a good time to be revisiting these questions. And so, tonight that is exactly what we are going to do, ask the question: Are these penalties a valuable tool in the war on drugs, one that voters are still very concerned about waging, or do they succeed only in handcuffing the discretion of the courts?

With that as an introduction, we turn to the first question, if the timers are ready, and turn it to Congressman Hutchinson. The rationales for mandatory minimums in drug sentencing, as we know, include deterrence, retribution, and an inducement of cooperation. What are the strongest justifications, in your mind, of the mandatory minimums and what goals are served by focusing only on the quantity of drugs rather than the person involved in the offense?

CONGRESSMAN HUTCHINSON: Thank you, Cokie, and Judge Sporkin. Greetings to you, ladies and gentlemen of the audience. I'm delighted to be here and participate in this forum, this debate, on the subject of mandatory minimums. First of all, let me give a caveat that I'm going to be representing the legislative branch during this debate, presenting the case for mandatory minimums. I think, as in any subject, you've got to apply the rule of reason. I think it's fair to have a debate. I think it's fair for Congress to reevaluate the commitment to mandatory minimums. But, at the same time, the question is: What's the...