Toward the end of a hearing at which the Senate Judiciary Committee heard about the jaw-dropping injustices caused by mandatory minimum sentences, John Cornyn sounded a note of caution. "We have to be careful not to legislate by anecdote," said the Republican senator from Texas.
Why start now? Congress spends much of its time legislating by anecdote, whether it’s a story about a teenager who killed himself after consuming ersatz marijuana, a college student driven to bank robbery by online poker, or a mass murderer who supposedly used a "military-style assault rifle." Here is one issue where anecdotes are perfectly appropriate, since it is impossible to assess the merits of a sentencing system without examining actual cases. If the law allows, let alone requires, grossly disproportionate penalties, it's a problem that needs to be corrected.
That is something Sen. Rand Paul (R-Ky.) understands. "The injustice of mandatory minimums is impossible to ignore when you hear the stories of the victims," he told the committee at last week's hearing.
Something has gone terribly wrong when criminal defendants can be plausibly described as "victims." But how else should we view Weldon Angelos, a 24-year-old rap music entrepreneur who in 2004 received a 55-year sentence for selling a few bags of marijuana, totaling 24 ounces, to a police informant?
Never mind that what Angelos did violated no one's rights and therefore should not have been treated as a crime at all. It would be hard for even a committed prohibitionist to defend the penalty Angelos received. Paul Cassell, the federal judge who imposed the sentence, called it "unjust, cruel, and irrational" but said his hands were tied by mandatory minimums for people who engage in drug trafficking while possessing a gun: five years for the first offense and 25 years for each subsequent offense. Brett Tolman, a former U.S. attorney for Utah who testified at the Senate hearing, noted that federal drug agents could have busted Angelos after the first transaction but waited for two more, knowing that his possession of a gun would trigger stacked sentences adding up to more than half a century.
Other examples of draconian mandatory minimums mentioned at the hearing included a 10-year sentence received by an 18-year-old first-time offender caught with less than two ounces of cocaine, a 22-year sentence received by an 24-year-old woman who sold 13.9 grams of crack to a police informant, and a 25-year sentence received by a 46-year-old father of three who sold some of his painkillers to someone he thought was his friend. Tolman noted that providing useful information to the government is often the only way to escape mandatory minimums, which are based almost exclusively on drug weight, with the result that drug dealers are treated more leniently than their girlfriends and low-level employees.
Tolman said federal prosecutors tend to measure their accomplishments by the lengths of the sentences they obtain. But sometimes the penalties are so severe that even prosecutors have second thoughts, as with the extraordinary post-trial deal that enabled a Montana medical marijuana supplier who was convicted under the same penalty enhancement provision as Angelos to escape the equivalent of a life sentence.
As Paul observed, "There is no justice here. It is wrong and needs to change." Toward that end, a bill he is sponsoring would allow judges to deviate from mandatory minimums based on the sentencing factors laid out by federal law, which include, along with deterrence and public safety, "the nature and circumstances of the offense and the history and characteristics of the defendant" as well as "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment." Although Paul said "we're not repealing mandatory minimums," this change would effectively transform them from requirements into recommendations.
The same thing happened to federal sentencing guidelines (which are written by a commission rather than Congress) as a result of a 2005 Supreme Court decision. Julie Stewart, president of Families Against Mandatory Minimums, notes that "judges follow the previously mandatory guidelines in about 80 percent of the cases," adding, "We suspect judges would follow the mandatory minimums for most cases too, at least for a few years until they got used to having discretion again."
Paul left no doubt about his ultimate aim. "I am here to ask today for you to let judges start doing their job," he said. "I am here to ask that we begin today the end of mandatory minimum sentencing." It’s about time.
This column originally appeared at Forbes.