Sentencing Eddie.

• Author: Lynch, Gerard E.
• Position: Criminal Law

I.

The mandatory minimum sentences attached to federal narcotics violations (1) have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. (2) A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. (3) Newspaper columnists, (4) professional commentators, (5) judges, (6) and academics, (7) have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. (8) Even Chief Justice Rehnquist, a strong voice for law enforcement, has denounced mandatory minimum sentences as having little serious justification. (9)

In an effort to make the effects of the statutes more vivid, critics have searched out examples of extreme injustice created by the statutes. The examples cited are usually minor accomplices in the narcotics trade, usually women, often pressured by men in their lives to participate in some modest way (such as courier or bookkeeper or message-taker) in a drug transaction or conspiracy involving a quantity of drugs that triggers a five- or ten-year mandatory minimum. In the ideal case study, the defendant is only marginally culpable, her contribution to the crime is minimal, she received little or no compensation, and the transaction is just barely over the statutory floor.

It is easy to construct hypothetical examples of such extreme cases in which a defendant qualifies for a mandatory minimum sentence when any sensible person would question whether the actor should be incarcerated at all. And, tragically, such cases are not only hypothetical: real-life examples can be found. (10) Such cases, however, are relatively few. Prosecutorial discretion usually finds a way to avoid dramatic injustices. The cases that remain are sometimes the product of misguided tactical decisions by defendants or defense lawyers-who refuse more reasonable plea offers. This fact, of course, does not excuse the shockingly unjust results occasionally produced--even one single injustice is too many, and the fact that a defendant could have avoided an extreme sentence by waiving her constitutional right to trial is neither a comfort nor a justification for an unduly harsh sentence. But it does render the public debate about mandatory minimums, like the debate about many criminal justice issues, somewhat artificial and sensational, as opponents cite unusual anecdotes about unbelievably cruel outcomes, while proponents counter with equally exotic instances of unreasonably lenient discretionary sentences that, they say, warrant legislative control.

It is much harder to discuss the more routine and modest injustices produced by mandatory minimums. We have a language, and even some widely agreed-upon standards, for arguing about the essentially binary questions of guilt or innocence, or even of jail or no-jail, that make it intelligible to say, "This person should not be in prison." But, once it is agreed that a given defendant ought to go to jail, or even that his sentence should be "serious" or "severe," how do we argue about whether a five- or ten-year sentence is too much, or a three- or seven-year sentence too little?

The difficulty of deriving an objective basis for determining the absolute level of sentence appropriate to a particular offense is a well-known difficulty of "just deserts" sentencing. (11) The relative severity of sentences for different offenses can be rationally argued about: though it is possible to argue that selling drugs is a form of murder, most people would conclude that the penalty for intentional killing should be more severe than that for dealing cocaine; hence, the popularity among opponents of mandatory minimums of pointing out that the sentences meted out to mid-level narcotics dealers under those statutes exceeds the average time served in some states for those convicted of manslaughter or murder. (12) But if most would agree that this is an anomalous result, the argument that drug dealers should receive lower sentences than murderers tells us nothing about where the injustice lies: should the drug sentences be lowered or the murder penalties increased? For most people, including most judges, prosecutors and wardens, whether a certain number of years of incarceration is too much, too little or just right for a particular offense (at least within a very large range of tolerance set by grossly excessive or lenient extremes) probably depends more on what they are accustomed to than on any reasoned or deeply intuited belief in a particular level of sentence. (13)

Moreover, even to the extent that a language for addressing these issues can be developed, it is difficult, both morally and politically, to argue that sentences provided for particular crimes are excessive. This is not simply a function of a longstanding political climate in the United States that favors toughness on criminals. As with the defense of pardons or other devices to mitigate punishment, an argument for sentencing leniency must start with the proposition that the defendant committed an act that is worthy of punishment--indeed, an act that is so serious a violation of the rights of others or of society at large that the stigma of criminal conviction, and deprivation of liberty, is an appropriate social response. Crimes are by definition terrible acts, and once it is conceded that an individual deserves punishment, and has no defense that justifies or excuses his conduct, how can one argue that a particular sentence is "too much," without seeming to denigrate the seriousness of misconduct that is by definition immoral, dangerous, and deeply disturbing to public order? The fact is that violent criminals, those who sell dangerous illegal substances, and even many offenders against property, have inflicted harm on society and on individual victims that cannot adequately be repaid by any punishment that we could decently inflict. Against the background of the suffering of victims of crime and drug abuse, it is not easy to argue that some term of imprisonment is simply too much for the perpetrator.

For all of these reasons, the argument that a given mandatory sentence is excessive is a difficult one to make, in any but the most extreme cases. But that argument must be made, or we will be left with the distorted view that the problem of mandatory minimum sentences can be solved by creating a small safety valve to allow a reduced sentence for some narrowly-defined set of aberrant cases. (14) The day-to-day excessiveness of sentences that are "only" a few years too long will go on.

II.

So let me introduce you to a more typical "victim" of the mandatory minimum sentence provisions. Eddie is about as randomly selected as can be: he happens to be the very first person I was called upon to sentence after taking office as a federal district judge. He is worth writing about precisely because he is nobody's poster child for reforming mandatory minimum sentences. There is no question in my mind that most people would regard him as a good candidate for severe treatment at the hands of the law, and I'm not about to dispute that view.

Eddie was found guilty by a jury of conspiring to sell cocaine. He was the last man standing from a twenty-five defendant indictment; everyone else had pled guilty. Eddie (like many of the defendants) was a somewhat marginal member of the "organization." Perhaps, indeed, he balked at pleading guilty because he didn't see himself as a co-conspirator at all. The evidence showed that Eddie sold cocaine to a number of steady customers, and bought from the principal defendant, a wholesaler of substantial quantities of the drug. By law, Eddie's involvement as a regular, re-selling customer of the drug ring makes him a co-conspirator with the other members in the distribution of narcotics, but in economic reality he was likely less a partner or employee of the wholesaler than an independent contractor, looking to secure a reliable supplier to the extent that he could, but no doubt as prepared as any other retail merchant to shift allegiance to another wholesaler if a new dealer came along offering better quality or price, or a more regular source of supply.

How much cocaine did Eddie sell? Both the sentencing guidelines and the mandatory minimum statutes make it important to know just how much cocaine Eddie was responsible for. But the amount in question is inherently unknowable. The jury was justified in concluding that Eddie was in the regular business of selling drugs. Unlike a bank robber or murderer, Eddie was not someone who from time to time planned discrete, particular jobs, or was now and then tempted by one or more opportunities for profit, or was inspired by passion to commit a particular horrible act. Rather, he had for some period of time a regular business or trade of selling a particular commodity. He almost certainly sold more than the government knew about, and if he had not been arrested he would surely have gone on selling. Had he been arrested in connection with a particular sale (say, if he had made the mistake of selling to an undercover officer or a drug user who had a reason to "turn" and become a police informant), the scope of his activities known by the authorities might have looked much narrower. As it was, he was caught because the government was focusing a major investigation on his supplier, and overheard him negotiating on a couple of occasions with the supplier, whose phone was tapped. No amounts were discussed, though a fair-minded juror could have reasonably concluded that the transactions were intended for resale and not for personal use. The critical evidence of amount was provided by a "cooperating witness"--a violent thug who was the...