Wheel of Misfortune. Whimsical and arbitrary. A stated purpose as illusory as David Copperfield’s Vanishing Statue of Liberty. These are the phrases federal judge Mark Bennett used to describe the federal system that allows prosecutors to enhance drug offenders’ sentences well above even draconian mandatory minimum prison sentences in an opinion issued this week.
As U.S. Attorney General Eric Holder said last week, too many drug offenders are going to too many prisons for too long. But even among those drug offenders, there are great disparities in prison terms based on arbitrary factors like the type of drug involved, or in which jurisdiction the defendant is prosecuted.
In two judicial opinions this week, Bennett and another federal appeals panel are illuminating their disparate imposition. In Bennett’s district in Iowa, he writes, drug defendants are an incomprehensible 2,532 percent more likely to receive a sentencing enhancement because of a previous drug felony conviction than in the neighboring District of Nebraska, largely due to the differing approaches of the prosecutors:
These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission)— the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making—reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts. These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency.
What changed on August 12 is that Holder announced his department’s new law enforcement policy, which was not only to require prosecutors to avert draconian mandatory minimum sentences, but also that DOJ had established specific, factor-based standards for seeking sentences higher than these minimums, including the sorts of enhancements described by Bennett. Bennett, who has previously been a fervent critic of other elements of drug sentencing, called this change a welcome improvement, but predicted only limited change so long as prosecutors’ decisions remain secret and unchecked. Many federal judges have lamented that the federal drug sentencing laws give prosecutors the power not just to seek a conviction but to determine a sentence, tying judges’ hands.
Another gross disparity in sentencing was not affected by Holder’s recent announcement, and it was the topic of another federal judicial opinion this week. Until 2010, sentences imposed for offenses involving crack cocaine — which overwhelmingly involve African Americans — were 100 times greater than those imposed for powder cocaine, whose defendants are more frequently white. Going forward, the Fair Sentencing Act reduces the disparity for everyone sentenced after the law was passed. But those sentenced before 2010 have a much less certain future. An array of disparate opinions and executive branch decisions have meant that some crack cocaine offenders sentenced before 2010 will be released early, while many others will not be eligible. In a second opinion decided Tuesday, the U.S. Court of Appeals for the Sixth Circuit held that another category of these defendants should have their sentences reduced retroactively, writing that they have been “incarcerated pursuant to a penalty that has been discredited not only by public opinion, but by Congress, the Supreme Court, and the United States Sentencing Commission.” This decision follows another by the same court that went much further and held that failure to apply the reduced sentences retroactively to all cases would be unconstitutional and amount to intentional racial subjugation. Both of these Sixth Circuit decisions will almost certainly be reviewed by the full panel of judges on this court, and possibly by the U.S. Supreme Court.
Bennett’s decision, meanwhile, will endure primarily as the latest judicial commentary on the state of drug sentencing — one of the greatest contributors to the U.S. system of mass incarceration.