It’s the perfect political cudgel.
Whenever some opportunistic legislator wants to steal some headlines off the backs of society’s undesirables, there’s always another mandatory minimum sentence they can slap on a crime. The convict constituency doesn’t draw a lot of water come election time. But minimums also implicitly gut the judicial system that far too few Americans trust. “Those sneaky lawyers and lily-livered judges would have let this recreational pot smoker go in a mere 20 years… but we showed them!” Nancy Grace weeps in ecstasy.
The “tough on crime” imagery wins reelections and no one bothers to care about the people unnecessarily warehoused in America’s prisons by a ham-fisted, one-size-fits-all approach.
Mandatory minimums are dumb and cruel.
Yesterday, the Supreme Court took back a little bit of authority in Dean v. United States. It’s nice to see defendants get the better of mandatory minimums, but don’t get too excited. Ultimately, the unanimous decision, written by the Chief Justice, only makes things worse by feeding the fundamental distrust most people have toward the judicial system.
The Court’s solution in Dean amounts to little more than authorization for trial judges to have some impish fun at the expense of Congress. Dean committed a couple of robberies and a gun was involved. The presence of that firearm triggered 30 years worth of mandatory minimums for Dean, to be served consecutively “in addition to” his sentences for the underlying crimes. Dean’s clever argument was that he didn’t deserve much more than 30 years, so the court should throw out the Guidelines — recommending 84-105 months for the other counts — and make his armed robbery sentences a day long.
The Supreme Court agreed:
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The Government points to two limitations in §924(c). First, the Government notes, a mandatory sentence under §924(c) must be imposed “in addition to the punishment provided” for the predicate crime. §924(c)(1)(A) (emphasis added). This limitation says nothing about the length of a non-§924(c) sentence, much less about what information a court may consider in determining that sentence. Whether the sentence for the predicate offense is one day or one decade, a district court does not violate the terms of §924(c) so long as it imposes the mandatory minimum “in addition to” the sentence for the violent or drug trafficking crime.
Ha. Chief Justice Roberts is your dick of a friend who says, “technically…” before kicking off an argument that even he doesn’t really care about. Strict textualism has a certain appeal if you’ve never passed remedial English. Sadly, once that hurdle is cleared, the fact that language is rarely, if ever, devoid of context starts nagging at you. But the Chief Justice works overtime here to pretend words can exist in perfect little vacuums:
The Government would, in effect, have us read an additional limitation into §924(c): Where §924(c) says “in addition to the punishment provided for [the predicate] crime of violence,” what the statute really means is “in addition to the punishment provided for [the predicate] crime of violence in the absence of a Section 924(c) conviction.” See Reply Brief 2. We have said that “[d]rawing meaning from silence is particularly inappropriate” where “Congress has shown that it knows how to direct sentencing practices in express terms.” Kimbrough v. United States, 552 U. S. 85, 103 (2007).
Hmm. I wonder if something about the 2007 climate was different than when Congress passed this specific law? Like, for instance, Booker. It would seem a not insignificant observation that for most of the life of § 924(c), the underlying sentences referenced by the statute wouldn’t be less than 84-105 months. That’s not a ridiculous meaning to draw from the statute’s silence. In a world of Guidelines, why even waste ink making that point? Justice Alito actually raised this problem in the oral argument, but somewhere along the line it got pushed to the backburner, with Chief Justice Roberts glibly dismissing the concern by pointing to a 2004 law that explicitly stated that mandatory minimums can’t reduce sentences. Because the drafting choices of a Congress two decades after the fact are a much better window into intent.
It also underscores that for over a decade Congress has been aware of a clear way to bar consideration of a mandatory minimum, but never during that time changed the language of §924(c) to mirror that of §1028A, even as it has amended other aspects of §924(c).
Whatever happened to the inappropriateness of drawing meaning from silence? Wasn’t that just a couple of paragraphs ago? It’s not clear that the Court understands how legislation works if it thinks that any time a statute modifies any part of a statute that marks a reaffirmation of everything untouched.
Mandatory minimums got a deserved sharp poke in the eye. A more deserved poke would be a radical separation of powers argument against the legislative branch dictating sentences, but that’s wishful thinking. In the meantime, opinions like this feed into exactly why people in this country don’t trust lawyers and judges. These childish semantic games don’t strike a blow against elected officials for robbing people of their right to a fair, individualized sentence as much as they provide a road map to doing further violence to the administration of justice. It’s just a simple textual fix after all. And now those legislators also have a gift-wrapped justification that they can trot out to all the talk shows when they revamp these sentences: “look at this clutch of out of control judges telling Congress that Congress didn’t mean what Congress obviously meant.” That’s an easy sell to most people.
So good for Dean, and good for all those out there who will be able to take advantage of this technicality before the legislature strikes back.
But they will strike back.
(Opinion available on the next page….)
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.