How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences

Nathan A. Greenblatt

Abstract

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently listed only two relief mechanisms by which judges can avoid imposing a mandatory sentence, in restrictive circumstances. Yet judges have more choice than is commonly recognized. Mandatory minimum sentences are not new. Opposition to them is not new. Over the years, a number of methods have been developed to avoid mandatory minima, dating back to at least medieval England. By using their own power, as well as by harnessing the powers of the jury and prosecutor, judges can avoid imposing mandatory minimum sentences. Critically, however, the methods must for the most part be employed early in the trial process, before the sentencing phase. Many of the methods also have potential for appellate reversal. Nevertheless, judges willing to act will find a variety of options available to them, suited to a variety of cases, defendants, and judicial temperaments. With a variety of options available, the decision to impose a mandatory minimum sentence becomes primarily a question of ethics, rather than possibility.