Mill(er)ing mandatory minimums: what federal lawmakers should take from Miller v. Alabama.

• Author: Price, Mary
• Position: Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. INTRODUCTION

   When the decision in Miller v. Alabama * (1) was announced, my colleagues and 1 at Families Against Mandatory Minimums (FAMM) cheered its ringing endorsement of proportionality and individualized sentencing. FAMM, after all, was formed in 1991 to champion sentencing discretion and work to eliminate laws and policies that require judges to impose pre-set minimum sentences. In its earliest days, FAMM found its unique voice by gathering, distilling, and telling the stories of individuals who received disproportionate sentences because of mandatory sentencing laws. Part of our job to this day, more than twenty-two years later, remains to tell anyone who will listen, and especially lawmakers, that a defendant facing sentencing deserves to be seen as more than the crime for which he or she was convicted. An essential part of our work is giving a voice to people who were, for all intents and purposes, silenced at sentencing.

   In this Article, I make the case that, while the robust proportionality principles informing Miller and similar cases are unlikely to translate into the end of mandatory minimum sentencing by way of the Eighth Amendment (at least anytime soon), embracing sentencing proportionality is the key for lawmakers who are--or should be--addressing the unsustainable growth in the federal prison population as a distinct threat to public safety. Politicians who support mandatory minimums have been immune over the years to the many reasoned arguments about how unjust those sentences are and what costs they pose to families and communities. Mandatory minimum sentences have been touted as necessary to keep the public safe, and support for these sentences has been seen as politically expedient. Even empirical arguments demonstrating that getting rid of mandatory sentencing will not harm public safety have fallen on deaf ears. We grew a criminal justice system addicted to solving social and public safety problems with incarceration and we combined that system with a long-simmering distrust of the judiciary, thereby creating mandatory minimums that dominate the sentencing field, directly and indirectly, through their sentencing guideline proxies.

   However, today federal lawmakers face a new challenge: the burgeoning prison population consumes an ever-growing portion of the budget of the Department of Justice (DOJ). (2) This threatens the budgets for the DOJ's other components, including those directly responsible for public safety, such as the FBI, and those that fund grants to state and local law enforcement. A number of states--including conservative states--for which the problem of over-incarceration surfaced with greater urgency over the last seven years initiated measures to stabilize their prison populations, if not reduce them. (3) Those states were laboratories for change and caught the attention of traditional supporters of harsh sentencing policies: conservative lawmakers and opinion leaders who are speaking out about mass incarceration, the influence of sentencing, and even mandatory minimums. Some of these conservative politicians and opinion leaders even made common cause with their liberal counterparts to take a look at over-criminalization, over-federalization, and even early release mechanisms.

   In this Article, I draw a connection between mandatory minimum

   sentencing and the growth of the federal prison population; mandatory minimums have required and influenced unduly lengthy sentences that are neither individualized nor proportionate. Proportionate sentencing, on the other hand, results in lower sentences, not to mention bed and cost savings. While "back-end" reforms to encourage the earlier release of prisoners are commendable, front-end reforms that result in lower sentences are essential if we are to make a lasting impact on the size of the federal prison population. Sentencing policies that embrace proportionality are key to stabilizing and reducing overcrowding. Of course, proportionality as an end in itself is ideal, but those of us who advocate for change may have to settle for selling sentencing proportionality as an indispensable means to a necessary end.

2. MANDATORY MINIMUMS AND FEDERAL SENTENCING

   Mandatory minimum sentencing is the antithesis of individualized sentencing. In its purest form, a mandatory minimum is set by legislators and triggered by a conviction for a qualifying crime, by the crime's "offense characteristics," or by reference to an underlying or prior offense. (4) In criminal justice systems with determinate sentencing--which elevates certainty about the length of imprisonment over other considerations--the term is unrelieved by parole. There is also no so-called "second look" opportunity for courts to consider whether an imposed mandatory minimum sentence continues to serve the ends of justice following its imposition and the passage of time. (5) This commitment to finality is enshrined in 18 U.S.C. [section] 3582(c), which provides only a handful of opportunities--none of which are available to the court in the first instance (6)--to revisit a sentence once it is finalized.

   The federal government's latest grand experiment with mandatory minimums (7) began in the mid-1980s and was prompted in part by a repudiation of the rehabilitative model of sentencing and the elevation of a model designed to ensure more certainty, fewer differences among and between sentences, and, in the words of the U.S. Sentencing Commission (Commission), "more appropriately punitive" sentences. (8) The mandatory minimums adopted (for drug offenses) (9) or increased (for gun offenses) (10) during this period were generated around drug-based street wars of the 1980s and remain, with two notable exceptions, (11) on the books and in the toolboxes of prosecutors to this day. Mandatory minimums have continued to grow over the years, both in number and in length; they now number more than 190. (12)

   Judges are constrained to impose the mandatory minimum sentence when certain triggering conditions, such as drug type and quantity (13) or the use of a gun, (14) are met and, unless federal law has carved out an exception, (15) may not impose a lower sentence. Such a rigidly-structured system is inhospitable ground for considerations of proportionality--the notion that a punishment should fit the crime--and individualization, the notion that the punishment should fit the offender. Congress knew full well how to fashion a system that accounted for such things. We know that because, remarkably, just two years before Congress adopted the modern-era mandatory minimums, it passed the Sentencing Reform Act (SRA). (16) The SRA was a criminal justice system game changer; it abolished parole, ushered in determinate sentencing, and ended an era of uncabined judicial discretion. (17) It directed the creation of the Commission and charged it with promulgating sentencing guidelines. (18)

   However, the SRA also produced the federal statute governing sentencing that establishes a roadmap for proportionate, individualized sentencing. Courts are directed by 18 U.S.C. [section] 3553(a) to undertake a series of considerations in determining the appropriate sentence for an offender, including evaluating individual features of the crime and characteristics of the offender. These considerations include the nature and seriousness of the offense, history and characteristics of the defendant, the sentences available under the law, and the need to avoid unwarranted sentencing disparity among similarly situated defendants. (19) The statute mandates that the sentence imposed at the end of that structured inquiry be "sufficient but not greater than necessary" (20) to comply with the purposes of punishment: just punishment, deterrence, incapacitation, and rehabilitation. In other words, the sentence must be proportionate.

   Sadly, the promise of proportionality and parsimony was undermined by lawmakers suspicious of judges and judicial discretion--prompting Professor Kate Stith and Judge Jose Cabranes to name their history of the period Fear of Judging. (21) An amendment to the SRA, codified at [section] 3553(b), was interpreted (22) to ensure that the guidelines would be--for all intents and purposes mandatory, barring an unusual factor not accounted for in the drafting of the guideline sufficient to warrant a "departure." (23) The tantalizing promise of proportionate sentences arrived at by weighing individual characteristics to determine culpability and features of the offense was abandoned in favor of a complex set of guidelines, many of which were in turn indexed to statutory mandatory minimums. (24)

3. HOPE FROM THE COURT?

   1. Sixth Amendment Challenges

      Individualized sentencing, proportionality, and parsimony were essentially stillborn and remained unused for the most part until the Supreme Court's decision in United States v. Booker over twenty years after the enactment of the SRA. Relying on the Sixth Amendment's guarantee of a jury trial, a 5-4 majority in Booker held that the sentencing guidelines were unconstitutional to the extent that they required judges to increase sentences above the top of a guideline range using facts not pled by the prosecution, admitted by the defendant, or proven beyond a reasonable doubt to the jury. (25)

      However, the guidelines were salvaged--albeit as advice rather than as mandate--by a slightly different 5-4 majority, which excised two provisions in federal law: the aforementioned [section] 3553(b) and 18 U.S.C. [section] 3742(e), which appellate courts used to ensure that district court judges did not stray far from the sentencing guidelines. (26) Doing so effectively transformed mandatory guidelines into advisory guidelines. The guideline structure and instructions remained essentially intact, save for their power over sentencing, which was altered to elevate judicial discretion. Subsequent decisions reinforced Booker and strengthened judicial discretion in...