Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing

By Weinstein, Ian | American Criminal Law Review, Winter 2003 | Go to article overview

Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing


Weinstein, Ian, American Criminal Law Review


INTRODUCTION

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same time, average sentence length appears to be falling slowly as judicial tendency to use the authority granted in the United States Sentencing Guidelines (the "Guidelines") to mitigate sentences through downward departures appears to be increasing.

This Article begins with the following two-part question: Why are (1) an apparent increase in judicial sentence mitigation through downward departure and (2) declining average sentence length two legacies of the 1980s' shift to longer prison sentences and increased prosecutorial control of sentence length? Although some might argue these legacies result from judicial resistance to loss of authority or general recognition among judges and prosecutors that federal sentences have become too long, this Article argues that a closer look reveals a much more complex and disturbing picture. Specifically, this Article will demonstrate the presence of two different federal criminal law systems operating in tandem.

The first system is that of narcotics prosecution wherein prosecutorial power often is unchecked and sentences often are unpredictable, but generally are quite harsh. Narcotics sentences have been decreasing steadily for almost ten years--a troubling instability--and there are wide disparities in sentences among similarly-situated defendants. Too many defendants receive sentences that are out of proportion to the wrongfulness of their conduct and too few will accept the risks that come with trying to enforce their rights in the face of often overwhelming prosecutorial power.

The second system involves the bulk of non-narcotics federal prosecution. Although there are many difficult questions presented by current prosecutions in fraud, robbery and other federal non-narcotics cases, the sentences in these areas are far more stable and predictable. Although harsh, problems of excessive severity are not as pervasive among sentences in the non-narcotics area, as there are many fewer mandatory minimum cases and judges are a more effective counterweight to instances of prosecutorial overreaching. Federal non-narcotics sentencing may not be the best of all possible systems of criminal sanctions, but it has proved reasonably stable and predictable over time. This Article will argue that much of the stability in non-narcotics sentences is the result of a defensible balance of power among prosecutors, judges and defense lawyers.

Meanwhile, the vast increase in prosecutorial power to control narcotics sentences is at the core of the problems with federal narcotics sentencing. The profusion of new narcotics and gun proscriptions, almost all of which carry mandatory minimum prison sentences, transformed the traditional prosecutorial power to charge into the contemporary prosecutorial power to determine the length of the sentence the defendant will serve. Although the Guidelines shifted sentencing power from judges to prosecutors across the whole range of federal crimes, this Article argues that mandatory minimum statutes have made this shift in power so extreme in narcotics cases that it has damaged the adversary system and wrought real injustice among those sentenced for narcotics crimes.

This Article has two descriptive and four analytic sections. Part I describes the changes that brought us from a system of almost unfettered judicial sentencing discretion to a system in which federal judges have very limited power to control the sentence in a particular case. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.