Katherine Robertson: The evolution of mandatory minimums

  Mandatory minimums, when assigned to a crime in the penal code, set the lowest available punishment that a judge may sentence an offender to for a specified crime. Typically a defined term of imprisonment, mandatory minimums have been in place and utilized by our national and state criminal justice systems since the early days of the United States.

  The very first mandatory minimum terms of imprisonment were enacted by Congress in 1798 as part of the Sedition Act and imposed a minimum sentence of six months for “opposing or impeding a federal officer by means of insurrection, riot, or unlawful assembly.”

  Since the 1950s, mandatory minimum penalties have been prescribed more frequently by Congress as new crimes are created —particularly drug-related crimes—and the federal criminal code expands. Today, 195 federal crimes carry a mandatory minimum term of imprisonment. In Alabama, roughly 50 crimes carry mandatory minimums.

  As the use and number of mandatory minimum penalties have expanded, the U.S. Supreme Court’s handling of them has also evolved. The Sixth Amendment to the Constitution provides a right to trial by jury and this right has been interpreted to require that any element of a crime be submitted to a jury and proved beyond a reasonable doubt. The Supreme Court’s recent decision in Alleyne v. United States adds another chapter to the Court’s grappling over Sixth Amendment concerns surrounding mandatory minimum sentences.

  In Alleyne, for the first time, the Court found that sentencing a criminal to a term above the mandatory minimum penalty assigned to that crime requires that every fact used to justify an increased sentence be proven to a jury. Alleyne was charged with the crime of “using or carrying a firearm in relation to a crime of violence.” This crime requires a five-year mandatory minimum sentence that can be increased to a seven-year minimum if the firearm is “brandished” and a 10-year minimum if the firearm is “discharged.”

  The jury in Alleyne found that the defendant “used or carried a firearm during and in relation to a crime of violence” but did not make a determination as to brandishing. The Court (in an opinion written by Justice Thomas and joined by an unusual majority of Ginsburg, Sotomayor, Kagan, and Breyer) held that because the act of ‘brandishing’ inherently increases the range of allowable sentences, it constitutes an element of a separate offense that must be found by the jury. The majority reasoned that “there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum.”

  As a result of the Court’s opinion, judges now have even less discretion when it comes to sentencing. While mandatory minimums presently take away some judicial discretion to ensure that certain offenders do not receive a ‘light’ sentence, the requirement that every factor considered in sentencing above the minimum be proven to a jury will also restrain judges from imposing a heavier sentence as he or she sees fit under the circumstances.

  While advocates against mandatory minimums may see this as a victory, the decision will likely have little practical effect on the vast majority of offenders charged with crimes that carry mandatory minimums. Less than three percent of criminal cases go to trial and the cases that do rarely involve nonviolent drug-related crimes, many of which carry mandatory minimums. Thus, the judge’s discretion to increase a sentence above a mandatory minimum is utilized more often in cases involving violent crimes, as in Alleyne, where Congress and the public are likely most comfortable with a judge using his discretion to assign a sentence above the required minimum.

  From a policy perspective, the future of mandatory minimums is not clear. Policymakers from both ends of the ideological spectrum, like Senators Rand Paul (R-KY) and Patrick Leahy (D-VT), do not support the existence of any mandatory minimums in the criminal code. Others like Senator Jeff Sessions (R-AL), a staunch supporter of law enforcement, recognize that while mandatory minimums are crucial to maintaining certainty in punishment and deterrence, disparities in the code must be corrected, particularly with lesser nonviolent offenses, to ensure fair outcomes in sentencing and efficient use of government resources.

  As states, including Alabama, and the federal justice system face tighter budgets and alarmingly overcrowded prisons, legislators and judges will be forced to prioritize which offenders fill our jail cells. Correcting disparities and removing some of the more arbitrary sentencing floors from nonviolent offenses will likely become unavoidable in order to divert resources to the incarceration of offenders who pose the greatest danger to society.  In Alleyne, the defendant faced a five-year minimum sentence for using a gun in the commission of a robbery. This is the same minimum sentence assigned to a first offense for manufacturing 100kg of marijuana. While both of these offenses are serious crimes that should result in due punishment, prioritizing the use of limited resources to lock up the armed robber must be reflected in statutory sentencing.

  About the author: Katherine Robertson serves as senior policy counsel for the Alabama Policy Institute (API). API is an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at katheriner[at]alabamapolicy.org.

  This article was published by the Alabama Policy Institute.