The Ultimate Stupidity Of Mandatory Sentencing

The only industry that will benefit from this cookie-cutter, throw-back approach is the prison industry.

AG Jeff Sessions (Photo by Mark Wilson/Getty Images)

AG Jeff Sessions (Photo by Mark Wilson/Getty Images)

My opinion on this subject is backed by decades of work as a criminal defense attorney in state and federal court and how I’ve seen mandatory sentences for low-level offenses ruin people’s lives and ultimately lead to more crime.

First, not all crime is the same.  Selling two bags of crack to an undercover cop is dramatically different than selling two kilos.  The problem is that in a federal conspiracy, the law doesn’t carefully delineate between those two situations.

If a 17-year-old kid, let’s call him Shawn, sells a rock of crack to a UC, he could be swept up by federal agents and charged in a much broader criminal conspiracy even though he never knew, met, or dealt with the people on the top.  Conspiracies are tricky animals under the law.  Let’s say Shawn gets his crack from Joe; Joe gets a bigger supply from Eddie; Eddie gets his from Max.  The chain could be so multifaceted that the big honcho, Ivan, sitting comfortably in his penthouse in Miami, has no clue who Shawn (or a thousand other such Shawns) is and doesn’t care.  He’s insulated and his product is being sold.

The thing is, when Shawn is arrested, he can be charged with being part of the same conspiracy Ivan runs in spite of his de minimis role.  Worse, if someone higher up in the chain, say Eddie, used a gun against a rival dealer at some point, Shawn (technically) could be charged with being in a conspiracy where weapons were used. More jail time for Shawn.

Even if Shawn has no criminal record, goes to high school, comes from a good family, and has hopes for college, with mandatory minimum sentencing, he’s looking at five years of federal prison, maybe even 10.

The further irony is, had Shawn been arrested by city police instead of the Feds, he’d be looking at a sentence of probation for the same sale of crack.

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This unfairness was addressed by former Attorney General Eric Holder when he told prosecutors around the country not to automatically charge the worst crimes, but to use their judgment in determining who should be subjected to mandatory minimums and who should not.

This, however, has now changed.  With a two-page memo by Attorney General Jeff Sessions, the Obama administration criminal-justice achievements have been obliterated.  Sessions has directed that all federal prosecutors now “charge and pursue the most serious, readily provable offense.  By definition the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

In this brief directive, Sessions has stripped all discretion from judges and U.S. attorneys who might have been inclined to recommend a low jail sentence or no jail sentence at all.  Now they will be forced to.

For his part, Eric Holder had a one-page response in which he called Session’s decision “dumb on crime.”

Whether it’s the Trump administration’s hell-bent attitude to undo the good the Obama administration achieved in criminal justice reform, or whether it’s because they actually believe maximum incarceration helps drive down crime — the result will be the same.  More people will be going to jail for longer amounts of time, destroying more communities, and perpetuating the cycle of poverty and dependence on state subsidies for people once they leave jail.  It will also likely increase crime. Why?

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First of all, continually increasing the length and number of incarcerations does not stop crime.  People don’t learn to behave in jail.  They are merely warehoused then released with more attitude, fewer skills, and fewer possibilities and ways to integrate back into normal (i.e., non-criminal) society.

The drive to increase incarceration will affect mostly black and Latino young male populations, further stripping the next generation of black and Latino children of their dads.  This does not help anyone, either the children or society in general.

Next, incarcerating people costs lots and lots of money, which might be better spent elsewhere — say, to improve the public school system for the kids of those incarcerated men to give them better opportunities than their dads had.

The cost of prosecuting low-level crime draws budget money away from targeting more serious offenders.  There are a limited number of Assistant U.S. attorneys with a lot of work.  If they have to spend their time indicting low-level players and all that that entails — meeting with defense attorneys who will argue why a kid like Shawn (above) should not be incarcerated, filing memos, appearing in court, etc.– they’ll have less time to develop and prosecute the higher-level dealers.

The only industry that will benefit from Sessions’s cookie-cutter, throw-back approach is the prison industry.  The amount of people being incarcerated has dropped, both because crime has gone down and because of more enlightened approaches to dealing with crime, such as drug and mental health courts.  But those empty beds need to get filled. Sessions’s approach will do it.

So, back to the sweeping severity of the ’80s and ’90s when people believed incarceration was the best way to fight crime.  I suppose I should be happy.  I’ll now have to spend more time per client to fight for a just solution.  Higher billables for me.  But, I’m not.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.