Revista Volumen V - Academia Puertorriqueña de Jurisprudencia y ...

3trafficking and gun-related offenses, without regard to the circumstances leading to theircommission or to any offender characteristics.Each of the Guidelines’ three goals has been undermined by this new legislation. Themandatory minimum sentence scheme, when combined with the Sentencing Guidelines, vestsvirtually unfettered discretion in the hands of the U.S. Attorney as to the sentence to be imposedby the court. This comes about because the U.S. Attorney is the one who decides, on a case-bycasebasis, at his/her discretion, whether to charge a defendant with a crime demanding such apenalty. A 1991 Sentencing Commission study 5 has determined that in some 45% of appropriatecases, the prosecutor chose not to charge defendants for crimes involving mandatory minimumsentences although the defendants’ conduct otherwise qualified them for such treatment. Further,in a large number of additional cases, such charges were dropped as part of a plea bargain.Added to this is the fact that, under the present scheme, only the Government can trigger acourt's downward departure from a mandatory minimum sentence. This is done in return for adefendant’s ―substantial assistance‖ in connection with a criminal investigation. What constitutes―substantial assistance‖ is at best nebulous and almost totally dependent upon the prosecutor’srecommendation.The bottom line is that judicial discretion in sentencing has been substituted by prosecutorialdiscretion, a state of affairs that is not only foreign to our system of justice, but presents a glaringconflict of interest, implicating various fundamental constitutional values. This substitution isparticularly egregious because it takes place in private without the scrutiny of publicaccountability and may, thus, be open to unserious practices which are difficult, if notimpossible, to police. The Sentencing Commission study found that, as a result of prosecutorialdecisions, about 40% of eligible federal defendants did not receive the applicable mandatoryminimum sentences. So much, for predictability.The mandatory minimums also thwart the goal of uniformity in sentencing, because they arenot in fact consistently applied. The Sentencing Commission's study concluded that there aresignificant gender and social disparities in the application of the mandatory minimum provisions.6 Men are more likely to receive mandatory minimums than women, and non-whitesmore than whites are. This lack of rational uniformity of treatment of persons for substantiallyidentical criminal conduct, which is undoubtedly also the by—product of the uncheckedprosecutorial discretion previously alluded to, is even more significant when we consider that thevast majority of the drug and weapon offenses prosecuted and sentenced nationally, areprosecuted and sentenced under the state judicial systems which results in even more disparatetreatment as punishment is often far less severe than under the federal system. Drug and weaponsoffenses are, as I am sure you are aware, the principal targeted conduct of the federal mandatoryminimums and, thus, the waiver of federal criminal jurisdiction in lieu of state prosecutions becomesan additional bargaining chip in the government's arsenal.Lastly, as my colleague has pointed out, in the area of proportionality, the application ofmandatory minimums, in many glaring cases, brings about the application of harsher sentencesto less culpable defendants. This is a situation, which is most troubling to many of us in thefederal judiciary.5 United States Sentencing Commission, Report to Congress on Mandatory Minimum Penalties (1991).6Id., Figure 13, Profile of Mandatory Minimum Defendants vs. All Federal Defendants-Offender Characteristics (October 1,1989 through September 30, 1990).