It’s Time to End Mandatory Minimum Sentencing in North Carolina (Part II of III)
Brennan Aberle, Partner
Aberle & Wall
This blog post is part of a three part series on North Carolina’s mandatory minimum sentencing laws for drug trafficking. Each part follows the story of a defendant based on a real client. Part 1 provides a basic explanation of North Carolina’s drug trafficking and mandatory minimum sentencing laws. Part 2 focuses on the social harms of mandatory minimum sentencing and a recent reform bill that the North Carolina General Assembly passed in June of 2020. Part 3 explores what a criminal justice reform bill might look like that abolishes or substantially reduces the impact of mandatory minimum sentencing laws, while still holding real drug traffickers accountable.
In the last post, I tried to show you how mandatory minimum sentencing for drug trafficking works in North Carolina. This post is about the harms that mandatory minimum sentencing structures have on our society. After that, we will revisit the story of Aaron from part 1 and how a recent bill passed in the North Carolina General Assembly to reform mandatory minimum sentencing laws would do absolutely nothing to spare him from an impossible choice about his future. The following are some basic problems with mandatory minimums, but several organizations have done lots of work on these issues and I encourage you to read the data gathered by groups as diverse politically as Families Against Mandatory Minimums, the American Civil Liberties Union, and notable conservative political donor, Charles Koch.
(Some of) The Problems with Mandatory Minimum Sentencing
First Offenders and Career Criminals are Punished the Same
As stated in the previous post, North Carolina already has a structured sentencing system where the penalties are worse if you are charged with a more serious crime or have a lengthier criminal record. Those laws apply to almost every other crime but drug trafficking. If mandatory minimum sentencing were abolished today, there would already be a way to punish drug traffickers more fairly. Everyone can make a mistake in life, and when you can get charged with trafficking opium for just having a few prescription pills, it is unconscionable that a loved one might go to prison for decades if they have no criminal record.
A Lack of Judicial Discretion
It isn’t just that people with different criminal records are both subject to the same lengthy prison sentences, but that a judge really can’t do much about it if they even wanted to. Imagine an 18-year old kid charged with the highest level of trafficking (the 18.75-year minimum Class C) because we was caught with 28 grams of hydrocodone pills that he illegally purchased for his sick and dying grandmother. That kid pleads guilty and begs for forgiveness and the judge is forced to give him 18.75 years. Moments later, a man pleads guilty to trafficking for having 20 kilograms of heroin that he was about to unload into the community. This is the same crime of Class C trafficking of 28 or more grams of opium or heroin. Even though the second man possessed 714 times more drugs than the first kid had, the judge will be forced to sentence him to the exact same 18.75 years.
Substantial Assistance Endangers People
There is one exception to a mandatory minimum sentence if a defendant provides “substantial assistance.” This may allow a judge to depart downward, but a judge is not required to do it. A defendant may attempt to provide substantial assistance by agreeing to help get someone else locked up. First of all, this option isn’t available to anyone who is exercising their right to go to trial, so it is of limited use. Second, it isn’t available if you are stuck in jail on an expensive bond and can’t get out to work for the police. Even if you are in a position to attempt to provide substantial assistance, it is very dangerous. Agreeing to work for the police and help catch a drug dealer or buyer puts you and your family at risk. It is also only of very limited use in court anyway. Afterall, how much can you believe from a person who is willing to say or do anything to get out of doing their own 18.75 year sentence?
Substantial Assistance Creates Crime
Make no mistake about it, providing substantial assistance usually means creating a crime that wouldn’t have happened otherwise, and that can have serious collateral consequences. I had a case once where there was a paid criminal informant who was trying to catch a drug dealer. This informant, a non-police officer, was paid with taxpayer money by the police to beg and beg a dealer to put together several kilograms of methamphetamine for a sale. Ultimately, that dealer managed to get over ten kilograms of methamphetamine smuggled into this country because he believed that this paid criminal informant was an actual buyer. This crime may never have occurred if the police weren’t paying a vigilante, with your taxpayer money to actually encourage these drugs to be smuggled into the country. We will never know what the collateral consequences of that decision were. We will never know if people died at the border, or if border patrol agents were killed or paid off to get those drugs here, because the only people charged were the people involved in the transaction that day. These possibilities should be shocking to you and they are part of the dangerous legacy of mandatory minimum sentencing.
Substantial Assistance Usually Encourages People to Snitch Down, Not Up
One last problem with substantial assistance: most people who get caught don’t know any high-level dealers. Many drug sellers are users and many users are low-level drug sellers. They don’t know high-level dealers to snitch on, so when they want substantial assistance, they usually drag other disproportionately poor and black drug users into lengthy drug trafficking sentences. If they actually know someone high up most of them won’t testify against a powerful person who might kill them or their families. I’ve had to look clients in the eye,many young kids, tell me they would rather do 18.75 years in prison than have their families slaughtered by a cartel. The practical effect of substantial assistance is often that young black men help get other young black men incarcerated.
Mandatory Minimum Sentencing is Bad Public Policy
Several studies (here, here, and here) indicate that mandatory minimum sentences either aren’t serving the purpose they are intended to, or even have the opposite effect. To the extent that mandatory active sentences serve as a crime deterrent, certainty of punishment has more of an effect on deterring crime than severity of punishment. Further, the limited deterrent effect that may exist has been measurably shown to occur with far shorter sentences of just a few years. It is not a difficult to conceive that lengthy terms of incarceration that put 20-year-olds into prison and place them back onto the streets with no fiscal resources and unemployable criminal records in their 40’s, might lead to more crime. Under this category, this list could go on and on but here are a few last highlights:
Excessive incarceration is very expensive, particularly if it isn’t serving the purpose of reducing crime.
The human cost of losing loved ones to decades in prison for non-violent offenses does not have a dollar value. See the stories here and here.
Mandatory minimum sentencing has notoriously lead to disproportionately longer sentences for black Americans.
Prosecutors have the power to get rid of the mandatory minimum of any trafficking charge by offering a plea to attempted trafficking. While this is great for the majority of well-meaning prosecutors, it still allows wildly disparate treatment from county to county as District Attorney offices have different policies. It also allows case-by-case plea offer choices that are subject to inherent bias present in all humans.
Relatedly, the power to offer “attempted trafficking” puts many defendants in the choice between pleading guilty to a felony and serving a short sentence, or risking a trial and serving potentially decades. This imbalance in bargaining power undermines the public confidence that only guilty people are pleading guilty. Why would an innocent person risk ten years in prison when they can plead to a felony and take probation?
A Bill that Falls Short of Reform
On June 26th of this year, North Carolina Governor Roy Cooper signed a bill (The First Step Act) that was unanimously passed by the North Carolina General Assembly to reform mandatory minimum sentencing laws. Unfortunately, this bill will have almost no effect on any of the problems created by mandatory minimum sentencing. It is especially disappointing at a time when Americans are crying out for criminal justice reform and there is bipartisan support to do so in both the North Carolina General Assembly, U.S. Congress and among both left wing and right wing interest groups.
The short summary of the bill is this: a judge may sentence below the mandatory minimum sentence if ALL of the following conditions apply:
the defendant has accepted responsibility
The defendant has not previously been convicted of a felony under G.S. 90-95.
The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of the offense for which the defendant is being sentenced.
The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of any other violation of law.
The defendant has admitted that he or she has a substance abuse disorder involving a controlled substance and has successfully completed a treatment program approved by the Court to address the substance abuse disorder.
Imposition of the mandatory minimum prison term would result in substantial injustice.
Imposition of the mandatory minimum prison sentence is not necessary for the protection of the public.
The defendant is being sentenced solely for trafficking, or conspiracy to commit trafficking, as a result of possession of a controlled substance.
There is no substantial evidence that the defendant has ever engaged in the transport for purpose of sale, sale, manufacture, or delivery of a controlled substance or the intent to transport for purpose of sale, sell, manufacture, or deliver a controlled substance.
The defendant, to the best of his or her knowledge, has provided all reasonable assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals.
The defendant is being sentenced for trafficking, or conspiracy to commit trafficking, for possession of an amount of a controlled substance that is not of a quantity greater than the lowest category for which a defendant may be convicted for trafficking of that controlled substance under G.S. 90-95(h).
To state it bluntly: no person is ever going to benefit from this new bill.
First, you have to plead guilty to accept responsibility, so this is only going to apply when you are only charged with trafficking by possession (not transportation or sale) and you don’t exercise your right to a trial and a prosecutor isn’t agreeing to reduce the charge to attempted trafficking. You can’t have had a prior drug felony or even a prior misdemeanor gun violation, because that would exclude you. Also, good luck completing a substance abuse program before your case is finished if you are poor and can’t afford treatment or stuck in jail awaiting a plea.
Even if you qualify under all of the above, the granting of a lower sentence is still discretionary because a judge has to make certain findings that a mandatory prison term would be a substantial injustice and a mandatory term isn’t necessary for protection of the public. These findings are entirely subjective, but if it is so obviously unjust to a judge, why wouldn’t a district attorney have already reduced the charge before the guilty plea? Also, it only applies to the lowest category of trafficking and only to trafficking by possession. That means they have to believe you are a user and not a seller and a prosecutor can always argue otherwise. Remember, there is almost always a way to charge you with three or four different crimes when trafficking is involved. If you were caught with those hydrocodone pills in a car, you are excluded, because its transportation.
In further limiting the effect of this bill on anyone’s case, it only applies for the lowest level of trafficking for each substance. If those hydrocodone pills weigh enough to put you in the second lowest category, you are excluded. Of course, if only the lowest category counts, no one charged with cocaine or marijuana trafficking will ever benefit, because a prosecutor will always argue that one ounce of cocaine or 10 pounds of marijuana are not personal use amounts. Finally, there is a requirement that you provide all “reasonable assistance” to catch other potential accomplices, co-conspirators, or accessories, but there is already a “substantial assistance” exception that was on the books. This new bill seems to only provide a narrow exception for a defendant that likely doesn’t exist and would have already been able to take advantage of “substantial assistance” anyway. Our character from yesterday’s story, Aaron, would be out of luck under this new bill.
Fortunately, there are plenty of alternatives spanning the spectrum from substantial reform to full abolishment that we could enact that would address these concerns while still holding serious drug traffickers accountable.