Harsh Mandatory Sentences Under Scrutiny

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By Alisa Johnson

The relationship between harsh mandatory sentences and the authority of judges to make the punishment fit the crime took center stage at the U.S. Supreme Court today ( Dean v. United States, U.S., No. 15-9260, 2/28/17 ).

Levon Dean Jr. was convicted of robbery and conspiracy. Because he used a firearm during the crime, he was also sentenced under Section 924(c), which imposes consecutive mandatory minimum sentences when a firearm was involved in a drug crime or crime of violence. Dean was subject to two mandatory sentences that added up to 30 years.

Because of the severity of the mandatory firearm punishment, Dean requested a sentence of just one day for the robbery and conspiracy offenses.

The sentencing judge refused. Circuit precedent prohibited considering the mandatory minimums in sentencing for the underlying offenses, the judge said. But the mandatory minimum plus one day would have been “more than sufficient” punishment, the judge said.

Dean was sentenced to 40 months for the underlying offenses. He challenged that sentence, arguing that the judge should have felt free to impose a minimal sentence in light of the firearms sentences.

The mandatory 30-year minimum applicable to 24-year-old Dean is harsh, Anthony A. Yang of the Department of Justice, arguing for the government, acknowledged. But Congress intended to be just that harsh when a firearm is involved in certain crimes, he said.

Effectuating Concurrency

The general federal sentencing statute, 18 U.S.C. §3553(a), instructs a district court to consider a “myriad of factors” at sentencing and to impose a sentence “sufficient, but not greater than necessary,” to comply with the purposes of sentencing, Alan G. Stoler, of Omaha, Neb., arguing for Dean, reminded the court.

The mandatory consecutive minimum, 18 U.S.C. §924(c), does not prohibit the sentencing judge from reducing the sentence for the underlying crime, he said.

But Section 924(c) requires a consecutive sentence, and “reading the statute the way you do would shrink the concurrency to the vanishing point,” Justice Ruth Bader Ginsburg said.

Dean’s reading of the statute “allows a district court to negate” the statutory language, Kagan agreed.

“That couldn’t have been what Congress meant, concurrent plus a day, when it said, ‘It shall only be consecutive,’” Kagan said.

But “one day is a day of punishment,” Justice Sonia Sotomayor said.

General Sentencing Statute

The general sentencing factors don’t allow a sentencing judge to consider the effect of the mandatory consecutive minimum, Yang said.

“If you’re talking about 30 years for an offense that a judge thinks merits a lot less, if Congress wanted to prevent circumvention, they should have written the law a lot more carefully,” Chief Justice John G. Roberts Jr. said.

Yang argued that the sentencing statute made Congress’s intention “sufficiently clear.”

Maybe it should make it “indisputably clear,” Roberts said. “There’s nothing in the language” of Section 924(c) “that prevents the judge from imposing a sentence recognizing that the defendant faces 30 years already.”

If Congress intended for sentencing judges to disregard the factors in the general sentencing statute, “you better be pretty clear that you’re displacing that background principle,” Kagan added. It’s not clear enough here, Kagan said.

But if the general sentencing statute was “a free-floating provision that applied everywhere, then all the nine provisions of the Sentencing Reform Act that specifically say you must consider” it would be superfluous, Yang responded.

There’s “nothing that prevents the judge from making” a “proper determination for the underlying offense” and then “saying, but looking at the statute, it has to be consecutive” to the mandatory minimum, Justice Anthony M. Kennedy said.

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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Transcript trascript at http://src.bna.com/mBG.

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