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Minimum Mandatory: Control Through Charging Discretion

By: Brad Henry

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Minimum mandatory sentences are strewn throughout the federal criminal code. Unfortunately, these mandatory minimums take authortiy away from judges and give it to the prosecution.  By providing defined sentences for certain offenses, judges are handcuffed and cannot consider what sentence is appropriate for the individual.  The net result is hundreds or thousands of low-level, non-violent, drug addicted defendants are sent to prison for extraordinary amounts of time. As Sentencing Law and Policy Blog points out, Judge John Gleeson, District Judge for the Eastern District of New York, has a solution; prosecutors should use their charging discretion.

In an opinion on March 30, 2012, Judge Gleeson suggests that many of the extreme sentences handed down to low-level drug offenders can be prevented.  It would not require a change in the law but only a mandate from the United States Department of Justice controlling how crimes are charged.

Judge Gleeson suggests that the Attorney General could fix the current problem of incarcerating undeserving low-level drug defendants by doing the following:

- charging under the 10-year minimum mandatory provision only if the government intends to prove the defendant was a leader warranting a four-point upward departure under U.S.S.G. 3B1.1(a);

- charging under the five-year minimum mandatory provision only if the government intends to prove the defendant was a manager warranting a two or three-point upward departure under U.S.S.G. 3B1.1(b) or (c); and

- Removing the mandatory minimum provision form the charge if the enhanced role adjustment has not been proven by the government or admitted by the defendant.

By following the guidelines Judge Gleeson suggests the United States can make sure that harsh minimum mandatory sentences apply only to those individuals deserving of the punishment.  

Fortunately, the U.S. Attorney's office can make adjustments to your charges. These charging decisions are important in your case and can make a huge difference in the final outcome.  If you have been or feel you may be charged with a federal offense it is important to get an attorney who can negotiate the charge against you.  If you can avoid the minimum mandatory provisions early you could save many months on your potential sentence.

If you would like to speak to one of our Knoxville Criminal Defense Attorneys you can contact us anytime.

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