Why Prosecutors Love Mandatory Minimums

Seeking to shorten "draconian" sentences, the attorney general faces opposition from his underlings.


In 1996, when he was the U.S. attorney for the District of Columbia, Eric Holder urged the D.C. Council to reinstate mandatory minimum sentences for nonviolent drug offenses, which it had abolished in 1994. Two decades later, as an attorney general who has repeatedly criticized "draconian" mandatory minimums and sought to limit their use, he faces resistance from the federal prosecutors he oversees.

Holder alluded to that resistance in a speech to the National Association of Criminal Defense Lawyers last Thursday, saying "any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history." More to the point, coercing "cooperation" cannot be the overriding goal of criminal penalties, which must be constrained by principles of fairness and proportionality.

Consider what can happen to recalcitrant defendants who insist on going to trial. Last year Roy Lee Clay, a Baltimore heroin dealer who turned down a plea deal under which he would have served 10 years in prison, received a mandatory life sentence after he was convicted and federal prosecutors invoked sentencing enhancements based on his prior offenses. In 2005 the same sort of enhancements resulted in a life sentence for Roderick "Rudd" Walker, a Deadhead from Buffalo who was offered an eight-year sentence for pleading guilty to LSD charges.

In my view, no one should go to prison for engaging in consensual transactions. But even if you think that Clay and Walker deserved to do time, a life sentence cannot be appropriate if prosecutors were prepared to say a term of a decade or less was.

When you see the stark choices that federal defendants face, you can begin to understand why an astonishing 97 percent of them decide to plead guilty. The bigger the gap between the sentence a defendant can get through a plea bargain and the one he will get if he is convicted after a trial, the stronger his incentive to "cooperate"—and the weaker the system's claim to be doing justice.

Holder clearly is right that plea bargains do not require mandatory minimums. But from the perspective of prosecutors who are single-mindedly focused on obtaining convictions as expeditiously as possible—and terrified of what might happen if a substantial portion of defendants started asserting their Sixth Amendment rights—there is no reason to give up the enormous leverage that mandatory minimums provide.

"Mandatory minimum sentences are a critical tool in persuading defendants to cooperate," said the National Association of Assistant United States Attorneys (NAAUSA) in a January letter to Holder. Testifying on behalf of that group before a Senate Judiciary Committee task force last May, a former federal prosecutor argued that "strong mandatory minimums" are "critical" to "induc[ing] cooperation from the so-called small fish to build cases against kingpins and leaders of criminal organizations."

The NAAUSA is so committed to resisting reform that it even opposes making sentence reductions retroactive. In a letter to the U.S. Sentencing Commission last month, the group argued that "allowing an individual sentenced under a plea agreement to have his sentence reduced retroactively prevents the government from obtaining benefits gained through concessions during bargaining." I'm not sure how that works, but I assume it involves time travel.

The NAAUSA's objections did not deter the commission from approving a policy that will allow some 46,000 federal prisoners to seek sentence reductions averaging about two years. Nor should they deter Congress from approving the Smarter Sentencing Act, a bill backed by Holder and several prominent Republicans that would make statutory reductions in crack sentences retroactive, cut the mandatory prison terms for certain drug offenses in half, and expand the "safety valve" that allows some low-level, nonviolent offenders to avoid mandatory minimums.

At some point the interests of justice have to outweigh the interests of prosecutors. We surely have passed that point when the penalty for exercising your constitutional right to a trial can be spending the rest of your life in prison. 

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  1. Translation: “We don’t want to have to actually do our jobs, or risk getting embarassed in court. So anything we can threaten people with is doubleplusgood.”

    Lawyers should be barred from public office – for the good of the people. Their job is to pervert the law, they should not be allowed into positions which interpret or write it. I know not all asshole DAs are doing it out of striving to higher office, but the more perverse incentives we can remove, the better.

    1. You think electing AGs to the governorship is a bad idea? What kind of lunatic are you?


    2. In most states the county/local prosecutor is an elected official him/herself.

      There’s a huge incentive to be blindly “tough on crime” simply to be re-elected and maintain your current job.

      Prosecutorial discretion is an important part of the justice system, but it is so easily abused. Although it would bring its own intrinsic problems, I wonder if unelected governor or AG-appointed prosecutors would be a better system . . .

  2. Look. Our justice system doesn’t charge innocent people with crimes. Every single one of these people are guilty, without exception. That’s why we need these mandatory minimum sentences. It saves the taxpayers the expense of paying for a trial for these guilty people. Ideally we should just get rid of courts and trials because, like I said, our heroic public servants would never charge an innocent person with a crime. Ever.

    1. Anyone who believes otherwise is a racist.

  3. I’m curious to see what would happen without mandatory minimums. Isn’t the draconian nature the basis for most plea deals? Some ridiculously high percent of cases are pleaded. Without mandatory minimums, what happens if even twice as many cases go to trial without a mandatory minimum sword hanging over the defendant. I’ve heard out system couldn’t even handle 20 percent of cases going to trial

    1. That would be awesome. We could start by dropping all charges in victimless “crimes”.

      1. The immediate outcome would be a “crisis” requiring a massive, expensive program of hiring thousands more prosecutors, nearly all of whom would be loyal partisans for the current chief executive. The mob would support this “pro-active” & “job-creating” solution to the “overwhelmed courtroom crisis.” Doubt me at your peril.

    2. The system is unjust, the system collpasing would be a net positive. In most of these mandatory minimum cases (drug related) there is no actual crime, no victim, just government thuggery.

  4. Question: Can the terms of the offer be introduced as evidence during trial? How many jurors might decline to find a defendant guilty if they knew the offer was eight years but a conviction gets life?

    1. I believe we need more jury nullification.

      1. Too bad a defendant’s attorney can be held in contempt for even mentioning nullification….and most idiots on juries have no idea of the concept.

        1. Well, not in all states.

          NH recently passed a law explicitly allowing the practice.

          1. Kudos to NH… too bad it doesn’t apply to federal court there.

    2. I’m afraid there are a lot of jurors who’d take that & run with it the wrong way: You turned down a plea deal & made us sit here? Guilty!

  5. Mandatory minimum sentences are a critical tool in persuading defendants to cooperate,” said the National Association of Assistant United States Attorneys (NAAUSA)

    Is cooperate really the correct word? I’d think capitulate would be more appropriate.

    The power seeking jack booted thugs cannot hide their true nature.

  6. The trouble is, criminal law doesn’t make sense, & needs to be done away with.

    Can you really blame prosecutors for either thinking they know what the real situation is, and they just need everyone to go along; or that they’re supposed to run up a score with as many wins & as severe sentences as they can get in a day’s work? I can’t get so mad at them any more, because criminal law has made them what they are. Until we get rid of criminal law, this will always be a problem, and will create tension every time the problem is sidestepped.

  7. Mandatory minimums long with asset forfeitures seized before any verdict pretty much railroad everyone … guilty or innocent.

    1. That’s the idea.

  8. Rick Wershe is currently serving a life sentence in the Michigan Department of Corrections for a single non violent offense (drug possession) from 1987. When he was arrested he was only 17 years old. Three years prior Rick was recruited as a paid undercover drug informant and used by the FBI, DEA and Detroit police.…..-in-prison

  9. “[Prosecutors argue] ‘allowing an individual sentenced under a plea agreement to have his sentence reduced retroactively prevents the government from obtaining benefits gained through concessions during bargaining.’ I’m not sure how that works, but I assume it involves time travel.”

    I believe this refers to the possibility that the plea agreement requires the defendant to act as a confidential informant while in prison. The government is deprived of those services when he is early released.

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