Editor’s Note: The following guest commentary is from Mary Price, vice president and general counsel of Families Against Mandatory Minimums.
If my doctor told me that the medicine she prescribed was making me sicker, I would expect her to change the medication, not double the dosage. That’s why I found the Justice Department’s testimony before the U.S. Sentencing Commission last week so disturbing. Discussing mandatory minimums in federal sentencing, the department acknowledged the “very heavy price” extracted by mandatory minimums but then announced it was “carefully” considering asking Congress to impose new mandatory sentences for certain white collar offenses.
Stranger still: this misguided proposal for new mandatory minimums followed on the heels of a new charging memo for U.S. Attorneys. In the memo, Attorney General Eric Holder writes not once, not twice, but three times, that prosecutors should make “an individual assessment of the facts and circumstances of each particular case.” This commonsense instruction – to consider the facts of each case and the culpability of each defendant – is wholly appropriate and should better promote the purposes of sentencing. Mandatory minimum sentences, on the other hand, are designed and operate to eliminate such individual assessments from the hands of judges.
So, what gives? The department testified that disparity in white-collar sentences has prompted its consideration of new mandatory minimums. In a revealing passage, the department asserts, “undue leniency has become more common for certain offenders convicted of certain crime types. For example, for some white collar offenses – including high loss white collar offenses . . . sentences have become increasingly inconsistent.” It is notable that while DOJ relates “inconsistent” sentences to “undue leniency” it did not set forth any empirical evidence to bolster a claim that the disparity is unwarranted or that white-collar sentences are too short.
Second, DOJ’s testimony singles out “high loss” white collar offenses. If DOJ were to recommend new mandatory minimum sentences for economic crimes, it would likely emphasize one factor to trigger a minimum sentence. Clearly, “loss” would be that factor. Yet, many sentencing experts condemn the Sentencing Guidelines’ over-reliance on loss in determining sentence length for economic crimes. Loss calculations drive white collar sentences to and even over the statutory maximum and drives the courts to reject them as outlandish.
The DOJ should have learned from drug cases that the excessive focus on one aspect of drug mandatory minimums – drug weight – causes the extreme sentence escalation and prison overcrowding it decried in its testimony. Kingpins and their mules can be sentenced to the same long sentence since weight, not involvement in the planning or gain received, is the determining factor. Whether loss or some other factor becomes the hinge, mandatory minimum sentences for economic crimes will assuredly carry the same heavy price the department told us we pay for current mandatory minimums.
“Equal justice depends on individualized justice, and smart law enforcement demands it.” This ringing endorsement of discretion and judgment anchors what is already being called the Holder Memorandum. Individualized justice, as Attorney General Holder envisions it, is the antithesis of mandatory sentencing. The irony of the Justice Department floating new mandatory minimums just days after the release of the Holder Memorandum is too great to ignore. In the end, the Attorney General had it right. Prosecutors – and judges – should be free to make an “individual assessment” of the facts and circumstances of each case before them. As Mr. Holder rightfully states, equal justice depends on it.
Mary Price is the vice president and general counsel of Families Against Mandatory Minimums. The views expressed are her own.