Federal Judges: Some Mandatory Minimum Sentences Too High

WASHINGTON, D.C.—Unless they have celebrity status, most people are arrested, charged, tried and sentenced for crimes with only those close to them, or to the case, aware of the final outcome. Most news outlets carry short stories about the ultimate sentence, but they are usually skimmed over by readers and then just as quickly forgotten, processed by the brain like the suspects themselves are processed by the criminal justice system. Anyone who has been unfortunate enough to go through that process knows that once caught up in the system, unless you are rich or connected, you are at the mercy of the man, often subject to mandatory sentences formulated by people who never know you or the facts of your case. In these circumstances, justice can often seem blind indeed.

Increasingly, however, federal justices have been voicing their displeasure at being forced to impose sentences they believe to be too harsh; and now, the U.S. Sentencing Commission has conducted a nationwide survey of district court judges to assess exactly how they feel about the current state of minimum mandatory sentencing. Unsurprisingly, a majority feel that certain offense carry minimum penalties out of whack with the crime.

The push-back has been coming for some time. In May, The New York Times profiled Judge Jack B. Weinstein, who currently sits in the United States District Court in Brooklyn and has been a federal judge for 43 years. A longtime advocate against what he calls “the unnecessary cruelty of the law,” Weinstein has of late been arguing against the mandatory sentences imposed on child pornographers.

“I don’t approve of child pornography, obviously,” he said in an interview with the Times, but added that there is a far lesser threat from those who view the content that those who create it. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

According to the Times, the rise in internet use has brought more child porn cases as well as a marked increase in sentences.

“The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year,” wrote A.G. Sulzberger. “As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.”

Now, with the release of the U.S. Sentencing Commission survey, it is clear that Weinstein is far from alone in his sense that some sentences are out of whack, and not just for those accused of possession of child pornography.

The survey was sent to 942 judges; 639 replied, a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.

According to Law.com, “Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.”

A vast majority of respondents (75 percent) said that they preferred advisory sentencing guidelines rather than mandatory ones, and 66 percent agreed, either strongly or somewhat strongly, that courts should have the authority to order restitution for victims in all cases.

The survey can be read here.