Balancing Power: Exploring Mandatory Minimums as Checks on the Federal Judiciary

By: Hannah Cheves

Edited By: Danielle Spitz

The concept of checks and balances is crucial to understanding the fundamentals of American government. The balance of power between the legislative and judicial branches is often perceived simply as the interactions between Congress and the United States Supreme Court. However, the federal judiciary -- U.S District Court judges around the nation -- is an often-overlooked component of the judicial branch. These judges are subject to upholding sentencing guidelines from the legislative branch. One of these guidelines that have been passed down is that of mandatory minimums. The implementation of mandatory minimum sentencing guidelines, though hotly contested, represents a way that the legislative branch can put checks on the judicial branch, and seeing them as such offers an alternative way to interpret these sentencing guidelines.

The creation of these guidelines allowed lawmakers to rectify what they considered to be a flaw in the judicial system: sentences that were too low for certain offenses. Politicians saw a way to put checks on federal judges’ sentencing power by outlining guidelines to crack down more harshly on drug and gun offenses, which was a measure that initially drew large bipartisan support. [1] However, these mandatory minimum sentencing guidelines have been the target of much debate since the U.S Sentencing Commission revised the sentencing guidelines in 1986 and 1988. The Commission’s revisions included stricter sentences for those convicted of specific crimes, including gun and drug offenses.[1]  For example, a crime involving 5 grams of methamphetamine, in any capacity, has a mandatory minimum of five years. 

Many judges have come out and harshly criticized the measures. One of the most common criticisms comes from the idea that mandatory minimum sentences [2] are too punitive and thus contribute to mass incarceration in the United States, as critics say they punish low-level offenders as heavily as repeat or other high-level offenders. As U.S District Court Judge John Gleeson wrote in a 2013 opinion criticizing the mandatory minimum guidelines, “the vast majority of federal drug offenders who are neither managers nor leaders are subjected to the harsh sentencing scheme that Congress intended only for those who occupy such roles.”[2]

Despite the weight of these criticisms, much of the importance lies not in the content of the guidelines, but rather in the theory behind their implementation. It is an example of the many ways in which the branches of government check and balance each other. It would be unconstitutional for federal judges to operate unchecked, even if the policies that are put into place to check them are largely unpopular. In response to Judge Gleeson’s opinion, U.S District Court Judge James O. Browning authored an opinion highlighting his belief that the judiciary should step back from heavily criticizing sentencing guidelines: “If Congress wants to give the Court more discretion and power, it is in no position to decline more responsibility. On the other hand, if Congress wants to limit judicial discretion in sentencing, it is hardly worth a judicial temper tantrum. Given the many complex issues that are already delegated to federal judges, it is hardly worth judicial breath or ink begging for a little more or complaining about a little less. In the end, the issue is someone else’s call, and the Court tends not to worry about things it can do nothing about.”[3]  The idea behind this defense lies in the fact that the judiciary can do nothing but follow the sentencing guidelines as they are set forth; it is a political issue, not a judicial one. In essence, judges should be willing to take more or less power as it is laid out by the legislative branch because upholding checks and balances is the way the system works even when guidelines are disliked by judges. The implementation behind these guidelines by the legislative branch also lays the foundation for further measures to address concerns with federal sentencing. For example, the First Step Act, passed in 2018 with bipartisan support, intends to shorten mandatory minimum sentences for nonviolent drug offenses and ease the federal “three strikes” rule. This act joins the “safety valve” requirements and is aimed at helping those who qualify out of mandatory minimum sentences.[4]  

Although some criticisms of the content of the guidelines are largely justified and necessary, the implementation of the mandatory minimum sentencing guidelines also must be looked at through the lens of balancing power. Understanding the theory behind their implementation gives more depth to any defenses or criticisms mounted in regards to the content of the guidelines, and allows for more specific critiques and solutions to be brought forth. The judicial branch cannot be unchecked, and so the legislative branch creates ways for their power to be reined in. These criticisms are almost as essential to the balance of power as the methods of checks and balances themselves.

notes:

1. The Anti-Drug Abuse act of 1986 was passed with bipartisan support, and mandatory minimums were included. It was part of the 1980’s War on Drugs. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074

2. United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

3. United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014). 

4. Versions of these laws exist at the state level, and are decided by state legislators, not the federal government

Bibliography:

United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014).

“PUBLICATIONS.” NCJRS Abstract - National Criminal Justice Reference Service. Accessed January 10, 2021. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074. 

“Federal Narcotic Mandatory Minimum Sentences - Sections 841 and 851.” O'Brien Hatfield Reese, PA. Accessed January 10, 2021. https://www.markjobrien.com/a-guide-to-federal-criminal-court/federal-narcotic-mandatory-minimum-sentences-sections-841 and-851/. 

Cassell, Paul. “Are the Federal Sentencing Guidelines for Drug Dealing Unduly Harsh?” The Washington Post. WP Company, April 22, 2019. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/are-the-federal-sentencing-guidelines-for-drug-dealing-unduly-harsh/. 

“Mandatory Minimums and Sentencing Reform.” Criminal Justice Policy Foundation. Accessed January 10, 2021. https://www.cjpf.org/mandatory-minimums. 

“H.R.5484 - 99th Congress (1985-1986): Anti-Drug Abuse Act of 1986.” Congress.gov, October 27, 1986. https://www.congress.gov/bill/99th-congress/house-bill/5484.