Today, Explained - Mandatory minimums

Episode Date: November 28, 2018

President Trump and both parties actually agree on something: mandatory minimum sentences are too harsh. Can they fix them? Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Oh, um, wait, what? Everyone seems to agree on something. Even that one guy with the hair. Today I'm thrilled to announce my support for this bipartisan bill that will make our community safer. Both parties want to work together to get something done. What an amazing coalition. Durbin on the Democratic side, Grassley and Lee on the Republican side, and now President Trump. The stars are lined up in a way that we seldom see in Washington, D.C.

What could bring both parties together at the end of 2018? Healthcare? No. Immigration? No. Infrastructure? No. What is it then? The mandatory minimum. Mandatory minimum sentences. Mandatory minimum sentencing. Mandatory minimum sentencing. Mandatory minimum sentencing laws. Mandatory minimum sentences. The deal would loosen restrictions on certain federal mandatory minimum sentences, give judges more discretion to sentence people who've committed minor crimes in the past, and extend a 2010 law that could help federal drug offenders serving disproportionately long sentences.

Here's Democrat Dick Durbin. The worst vote I ever cast in my life, in the House or the Senate, was for the 100-to-1 sentencing disparity between crack cocaine and powder cocaine. And just yesterday, Republican Mike Lee. I do think we need to address our minimum mandatory sentences. And are we doing more to harm families and communities and neighborhoods

than we are to actually reform people and deter crime? Judge Shira Shenland served as a United States District Judge on the Southern District of New York for 22 years. She worked with mandatory minimum sentences throughout the entirety of her time on the bench. What they are is something that binds the judge to the legislation. Congress says, you judge cannot impose less than five years or less than 10 years or less than 20 years for this particular crime. And that takes discretion away from the sentencing judge. The judge has to give that sentence or more, but not less, for certain crimes. How do judges feel about these minimums?

Judges felt very restricted by this because it took away their discretion to decide what the appropriate sentence would be for that individual. The problem with the mandatory minimums is you don't look at an individual any longer. You just have to do what Congress tells you to do. But I want to make sure we touch on the sentencing guidelines because I think a lot of people get mixed up between the mandatory minimums and the sentencing guidelines. Okay, so how different are mandatory minimums and the sentencing guidelines. Okay, so how different are mandatory minimums and sentencing guidelines? Totally different. So in 1987, the U.S. Sentencing Commission issued sentencing guidelines, which at that time were mandatory. So they weren't minimums at all, but they were a calculus that told the judge a sentencing range for the individual. So the way they work, it's a grid with a vertical axis

and a horizontal axis. One axis talks about the individual's criminal history. In other words, how many crimes has he committed before? The other line talks about the offense, how bad is the case on which he's being sentenced. And there are six criminal history categories from the least, somebody maybe who had one misdemeanor or no criminal history, to somebody who's had four or five felonies. Okay. And there are 43 offense levels from the least crime to the worst crime, like murder. So then you put the two together, the criminal history and the offense level, and the guidelines have a table that tells you, oh, you have to sentence between 108 and 140 months or between 31 and 38 months.

And then the judge has to sentence within those guidelines, within that range, unless the judge finds a reason to what's called depart below the range or above the range. Well, the good news was this all ended in 2005 when the Supreme Court struck down the guidelines as mandatory. The applications of the sentencing guidelines in these cases violated the Sixth Amendment. Now they're just what they should have been, guidelines, and you don't have to follow them. Where did these sentencing guidelines come from?

Well, a lot of judges back in the early 80s thought that there were tremendous sentencing disparities that came about for two reasons. One is that some judges are sort of tougher sentencers by philosophy than others. If you were lucky and you drew a light sentencer, you'd get three years. And if you drew a tough sentencer for the very same crime,

you'd get 10 years. And nobody liked that idea. But the other thing that was studied was, again, sort of racial and economic disparities, that judges are human beings and they tend to relate to people who look like them. So to avoid those disparities, to people who look like them. So to avoid those disparities, the people who wanted to see sentencing guidelines thought it would make judges more uniform.

That instead of the guy who relates to whites and the guy who doesn't relate to minorities, it would eliminate those disparities. But it didn't turn out that way. It turned out that the guidelines were too harsh, their ranges were too high, and it forced judges to give much longer sentences than they would have. So it turned out to be a failure. And now that we're back in discretion land, we have disparities again. Everybody knows in a big court like Manhattan which judges are lighter sentencers and which judges are heavier sentencers. which judges are heavier sentencers. So we are back to that era. People differ.

Okay, so sentencing guidelines don't really end up doing what they were supposed to. How do they work with mandatory minimums, do they? Perfect question. Every Judge 101 faces that exact question. The mandatory minimums trump the guidelines. So if the guidelines say 31 to 38 months for this particular drug offender, the mandatory minimum is 60 months, then you have to give the 60 months. Even though the guideline would have said 31 to 38, you always have to give

the mandatory minimum. What did you think when you had to hand out these mandatory minimum sentences over the course of your career? It's 22 years, you said, right? Right. 22 years as a trial judge in the federal court. And you gave out mandatory sentences for the entirety of those 22 years. I did, but not every defendant because the mandatories only attach to certain statutes. So most of the mandatories that I found were in the following areas, drugs, immigration offenses, child pornography, terrorism, and guns. So not every case had a mandatory minimum. Maybe 50% of my sentences had a mandatory and the others didn't. So you didn't have to do it at every single sentence. I didn't feel good about imposing a sentence that I thought was too long.

You go home and your conscience tells you you've done a bad thing that day, but you followed the law. Many judges are really very unhappy and very conflicted about having to impose the minimum. Are there particular examples you remember from your time on the bench? Oh, I can think of several. I mentioned a couple of those in an article I wrote. A very small-time drug dealer, Stephen Fabre. Small-time meaning tiny quantities, not the source of the drugs, not a leader of a gang, not an organizer, but basically an addict. He had to be sentenced to five years, and I didn't think that was appropriate at all.

What he really needed was drug counseling, drug rehabilitation, drug treatment so that he could maintain his family, but he lost all that by going to jail for five years. And then there was a counter example, Raul Martinez, an older man who carried drugs once to help his son out who was a drug dealer. He too was an addict, but he'd never had a conviction even though he was in his 50s, but he was eligible for what's called the safety valve, which lets you not impose the mandatory minimum. Now, the people who are eligible for the safety valve is someone who does not have any violent offense in his past and has a very low criminal history score. So nonviolent first offenders qualify for this thing called the safety valve, and you don't have to give the mandatory minimum. So that was a happy result.

That guy under the mandatory would have gotten five years, but I gave him 12 months. Those were just typical guys. Must have been hundreds of them. I think in the 22 years I was there, I probably imposed about 1,000 sentences. Wow. And I would say one-half to two-thirds of those were for narcotics offenses. That was the most common crime we have in the federal court, even in Manhattan. You think of us as prosecuting Wall Street financiers,

but the truth is it's almost all drug dealers. I would say 50 to 66 percent, half to two-thirds of all sentences are of drug dealers. What we really struggled with in those years was what was called the crack powder disparity, crack cocaine, powder cocaine. When the guidelines first came down, crack was punished 100 times worse than powder. So five grams of crack equaled 500 grams, half a kilo, of powder. Eric Sterling helped to craft those sentencing guidelines in the 1980s when he was counsel to the House of Representatives Judiciary Committee.

He is now working to change the laws he helped to write. ERIC STERLING, Former U.S. Attorney General, The Washington Post What's outrageous is they're overwhelmingly African American. For every white crack dealer, there are 10 black crack dealers prosecuted at the same time. But two-thirds of the crack users in America are white. The judges just rebelled all over the country. They were so upset about it. And finally, after years of looking to Congress to change that, Congress reduced that ratio to 18 to 1. President Obama signed a new law at the White House today that will close the long disputed gap in federal sentencing

for crack versus powder cocaine. But it's still 18 to 1. And why was anyone doing that to begin with? Why were the laws written that way? Well, we don't know. At the time that crack first became an epidemic, it was thought that crack leads to more violence and people who are on crack are more violent

and it leads to, you know, gangs and violence and guns and all on crack are more violent and it leads to you know gangs and violence and guns and all that but it it's all a myth it was all the same i think it was really a racist problem because crack was simply more popular in the inner cities and powder was more popular in the suburbs or wall street for that matter so it depends whether you were a suburban financial person or whether you were a poor inner city person. That's the only real difference. So if this crack versus powder cocaine sentencing was racist, was mandatory sentencing as a whole a racist institution? Well, only because so many of the sentences are about drugs. But if you look at the overall prison population, it just zoomed up

once these guidelines went into effect and once the mandatory minimums were in effect for drugs. Our prison population just grew by leaps and bounds from hundreds of thousands to two million. We have five percent of the world's population and we incarcerate 25% of the prison population of the world. This country ended up with a problem called mass incarceration. The country wants to address this problem right now. There's this bipartisan bill called the First Step Act that would actually loosen mandatory minimum sentences. There's just this one guy from Kentucky standing in the way. I'm Sean Ramos for him. That's next on Today Explained. Hello? Hello, is this Tim in New York?

It is. Hey, Tim in New York. Sean from Today Explained again. Sean, how are you doing? I'm doing well. I'm getting used to these little phone calls we have. On Monday, we spoke on the program, and you said that you weren't going to brush your teeth until a Quip electric toothbrush manifested. On Tuesday, we talked about how serious you've been taking your dental hygiene this year. Where are you now? Are you still taking your dental hygiene seriously,

but also not brushing your teeth? Where are you, my friend? I thought the Quip might arrive sooner, so this not brushing my teeth thing may not have been a good idea. Has anyone but you noticed that you haven't been brushing your teeth? Not yet, but I mean, you know, no one has tried to make out with me either, so it could be part of it. That could be the reason. I'm sorry that our toothbrush adventures interfere with your personal life. Just so you know, you can go to getquip.com slash explained if things get really desperate, where your first set of refills will be free for your Quip electric toothbrush. That sounds great. Judge Shenland, before the break, we heard how mandatory minimums led to mass incarceration in America. But the idea here must have been to have a deterrent, right, to make people think twice before committing these crimes?

Well, yes. I mean, theoretically, that was the idea. Over the many years that I did sentencing, I began to say in my last two or three years on the record that I no longer believed there was such a thing as deterrence. And I would not say in imposing my sentence that one of the reasons I'm doing this is to deter crime because I didn't believe it for a minute. And the reason I didn't believe it is all my years on the bench, plus all my years as a federal prosecutor, I never saw the drug trade change. I never saw the drug trade stop. So I thought that all these harsh sentences made absolutely no difference in fighting the so-called

war on drugs. It was just overly punitive. It caused our jails to become overly full. It caused the problem of mass incarceration. And then when you get out, you have a felony conviction, which affects you the rest of your life. Do people out there committing crimes related to drugs and immigration and child pornography and terrorism and guns, are they well-versed in what sentencing policies are in the United States? You know you just asked a great question. Of course not. I mean, people are not having seminars in Los Angeles or the Bronx and discussing sentencing policy? Of course not. Now, look, the word does get back. Certainly, a gang leader who gets sentenced to heavy time, the word gets back on the street. So I think they do hear about their friends, their fathers,

their brothers, their sisters. I mean, the word gets out that there's going to be sentences, but I don't think that it's as finely tuned as actual sentencing policy. And anyway, I don't think when you're 18 to 25 and you have no other way to really sort of get in on the action, it's going to stop you from selling drugs on the street corner if that's the only opportunity you have to make a living. So I don't think it's going to stop you. You don't think about cause and effect. You don't think about consequence. You don't say, if I get caught, I'm going to go to jail. You just don't think that way. Can I ask you, Judge, why you were drawn to the law and why you were drawn to maybe becoming a judge? Huh. That's a question I didn't expect. I guess I thought when I went to law school that I could make a difference.

I always knew I was interested in civil rights issues and in criminal justice issues. And I hope to be able to speak and write. And as a judge, I've written over 2,000 opinions. So a judge has a big platform to write and to make a difference. One that always stands out for me, the program of Stop and Frisk, run by the New York City Police Department, was challenged for being done in an unconstitutional way.

New York's police commissioner, Ray Kelly, defends what's called the Stop-and-frisk policy, which allows officers to detain anyone who they find suspicious. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out. I wrote a major opinion finding that that practice of stop-and-frisk, as done by the NYPD, was unconstitutional. Since that time, stops have gone down from hundreds of thousands per year to less than 20,000 per year with no change in the crime rate. So I'm very proud of that because

this policy fell disproportionately on people of color here in New York, and now that's over. The president seems to like it, though. Yes, the president raised this in the first debate. He called me out. It went before a judge who was a very against police judge. She ended stopping Frisken. We're going to put it back, which of course showed how ignorant he was, because it's not a federal policy. It's state by state and city by city. He had no power to, quote, put it back. He only has any power over the federal law enforcement. But he has no power over local law enforcement.

When you were to hand out things like mandatory sentences, did you feel like, I don't know, this is sort of a violation of my judicial code, why I got into this business in the first place. Exactly. And I know a number of judges, I do, who actually left the bench because they would say, I didn't come here to do that. I didn't come here to be a sort of an instrument of a failed plan. You become a judge because you think you have good judgment, right? But these mandatory minimums take away your opportunity to use your judgment, to use your discretion. You just become a computer. You look at the grid, you know, the left, the right, and the mandatory, and you do what you have to do. It's not a good feeling. After some 30 years of having mandatory sentences, why do you think all of a sudden there's this bipartisan consensus that maybe they should be changed? I think it's really a result of becoming aware of our vast prison population and the cost of maintaining such a vast prison population.

So the right wing and the left wing come together on that. The right wing says, we're spending an awful lot of money on building prisons and maintaining prisons and employing the prison apparatus, and we don't need to spend that much money, and it isn't really defeating this so-called war on drugs. The left wing simply says, mass incarceration is the worst thing there is. It doesn't rehabilitate them. It doesn't offer them what they really need, which in so many cases is drug treatment. So each side has its reasons to say we need to reform our criminal justice system. What would you say to someone like Republican Senator Tom Cotton,

who fiercely opposes any changes to mandatory sentencing. I guess I would want to hear them and say, why are you so opposed to this? What are you afraid of? What do you think would be the effect of changing this? Do you think that we would have more crime? You know, when I made my ruling on the stop and frisk case, the mayor said, oh my gosh, the city is going to blow up, crime is going to rise, because if we can't use this good tactic of policing, crime will rise and will become the murder capital again. Well, you know what happened? After we stopped that policy, crime didn't budge at all. In fact, it continued to decline. It did not rise at all.

Sometimes the fears that people have are just exaggerated and not realistic so i would try to have a conversation with them and try to understand what it is or is it just political that they want to say i'm tough on crime do they really not have a rational position but just want to use those words. We reached out to Senator Tom Cotton from Arkansas to ask him why he opposes loosening mandatory minimums. He didn't want to talk, but wrote in an op-ed that he thinks it's, quote, a misguided effort to let serious felons out of prison. But Cotton's vote isn't the deal breaker here. It just needs to get to the Senate floor where it's got a lot of bipartisan support.

The man in charge of what lands on that floor is Senator Mitch McConnell, that guy from Kentucky. The president asked him publicly on Twitter this long weekend to make it happen. But Senator McConnell has said it'll get in the way of other legislative priorities he has before the end of the year.

A farm bill, a budget, more judicial nominees. We reached out to McConnell's office. They directed us to a press conference that the senator gave yesterday. We'll be whipping that to see whether what the consensus is, if there is a consensus in our conference about not only the substance, but the timing of moving forward with that particular piece of legislation. This is Today Explained. Thanks again to Quip Electric Toothbrushes for supporting the show today. Consider giving the gift of the Quip Electric Toothbrush this holiday season to someone you care about,

or maybe even someone you don't care about. You can find out how to do so at getquip.com slash explained. Your first set of Quip Electric Toothbrush refills is free at that website. Thanks. Anil Dash, I've been talking about your new show, Function, on our show for the past couple of days, but now you're here with me to talk about it. Thanks for having me on. I appreciate you shouting us out. Of course. So you've been in the tech world for a long time, but now you're getting into the podcast world. Poor Kay. Well, you know, it's funny. I came up with some of the folks that had

made the first technology behind podcasts like 15 years ago and had been watching and watching. And I thought, you know what? I want to be about a decade and a half late for this. I'm right on time. No, but you know what it was is actually the moment we're in right now. Everybody's understanding tech has this sort of almost secret insidious effect on everything around us in culture. And maybe we can start to dive into that. And do yourself, someone who is experts in many of these matters, find that you are learning things from making the show? Oh, absolutely.

You know, we're bringing in experts on each of the topics that we're talking about. And, you know, whether it was the rapper 2Millie to talk about inventing the Millie Rock dance and then seeing it show up in Fortnite or folks who were engineering managers at Twitter talking about should you be able to edit your tweets and what are the considerations there. These are the people that are in the trenches actually creating things out in the world and being able to talk through and then here's what happens once I put that out there. That's so educational for me. I feel like if I'm having my brain explode learning this stuff, then maybe folks that are listening to the show will too. Cool. Function.

Find it wherever you find your podcasts right now.