Marcy Wheeler points us to this story about the administration’s call for mandatory minimum sentences in light of a Supreme Court ruling that federal sentencing guidelines are merely advisory. (This will be tested in an upcoming Supreme Court case where a judge’s decision to ignore a the minimum sentence suggested in a drug case was overruled on appeal.)
Where drug cases are concerned, I think it’s important to keep a couple issues distinct. Restricting judicial discretion, per se, is not necessarily a bad thing. Sentencing discretion given to judges must balance its good points (the ability for careful consideration of particularized circumstances) with the bad points (the potential for arbitrary justice in which the severity of sentences turns not on case facts but on the luck of the docket and the identity and status of the defendant.) For this reason, it’s dangerous to conflate drug law reform and increased judicial discretion. Allowing judges to refuse to apply draconian minimum sentences for drug possession is, I suppose, better than requiring them in all cases, but it’s not a very effective remedy for the underlying injustice. The defendants lucky enough to get this consideration are more likely than not to have better-than-typical lawyers able to negotiate better deals, and people with these lawyers are likely to be wealthier and whiter than the typical person convicted on drug charges. The fundamental problem with harsh mandatory minimum sentences for drug possession isn’t that they restrict judicial discretion, it’s that they’re bad laws, period, accomplishing not much of anything worthwhile at immense expense. Giving a few lucky people a nearly random pass doesn’t really address the underlying problem.