In 2004 Katie Heath went to state prison for selling methamphetamine in Saline County, Illinois. After serving a year, she got out, got a job, went back to school, and started caring for her children again. Last year she was indicted on federal conspiracy charges based on the same drug dealing for which she had already served time. Although she cooperated with the federal investigation and signed a plea agreement, prosecutors gave her nothing in return, condemning her to a 20-year mandatory minimum sentence. That's 20 actual years, with no parole, for the same actions that got her a year in state prison. The federal judge assigned to Heath's case, Phil Gilbert, was so outraged that he refused to impose the sentence and ultimately recused himself from the case. "She obviously was trying to turn her life around, and then this federal indictment hits her with a 20-year mandatory minimum," Gilbert recently told WSIL, an ABC affiliate in southern Illinois. "It just raised a lot of questions of fairness." He called Heath "the poster child for what is wrong with the sentencing policy and the federal sentencing structure."
As things stand, defendants can escape a statutory mandatory minimum only by convincing prosecutors to certify that they have provided "substantial assistance" to the government. In effect, this power transfers sentencing discretion from judges to prosecutors, a point to keep in mind when you hear concerns about giving judges too much leeway in determining punishments. Excessive judicial discretion creates problems of its own, allowing wide disparities in the treatment of similar defendants. But at least judges are supposed to be neutral referees, rather than advocates for one side. In Heath's case, an appeals court upheld the prosecution's discretion to give her the full 20 years, a sentence that will be imposed by a new judge now that Gilbert has recused himself.