How does a young mother with no prior criminal history end up serving a life prison, without the possibility of parole, in a federal prison?

That’s the question a lot of people have been asking since the case of Alice Marie Johnson became national news. 

Johnson is the 63-year-old grandmother whose sentence Pres. Donald Trump recently commuted at the behest of social celebrity Kim Kardashian. 

Johnson admits to being involved with a drug ring. 

“Out of desperation, I made one of the worst decisions in my life to make some quick money,” says Johnson in an online video. After Johnson and her husband divorced in 1989, she lost her job of seven years at FedEx in Memphis, TN, and her youngest son was killed in a motorcycle accident, she told CNN.com.  “I became what is called a telephone mule, passing messages between the distributors and sellers.”

In 1996, Johnson was convicted of drug conspiracy and money laundering.  What we’ve just described is Johnson’s crime, but for an answer to why Johnson was sentenced to life without parole for what appears to be a small role in a non-violent drug case, you have to go back to the 1980s and the height of America’s crack epidemic. Or, maybe we need to go further back in American history at look at the discretion given to judges to hand down sentences. 

For most of the 19th and 20th centuries, federal trial judges had virtually unlimited sentencing discretion and the disparities in sentencing were often blatant, with one person getting parole for the same offense that another defendant might receive life in prison for. The disparities were particularly obvious for Black defendants who often received considerably longer sentences than White defendants in factually similar cases. 

That’s why members of the Congressional Black Caucus supported Mandatory Minimums when they were proposed in the early 80s.  Finally, they reasoned, African Americans would receive at least equal sentencing justice. 

What are mandatory minimums?

Determined to address the disparities in judicial sentencing Congress voted to modify the federal sentencing process through the Sentencing Reform Act of 1984. That law did not withdraw all sentencing discretion from district courts; it did, however, establish the United States Sentencing Commission and directed it to establish Sentencing Guidelines.  Under the law, judges were required to follow guidelines, i.e. a range of years for selling a certain amount of drugs and an additional number of years if a gun was involved, or say you sold to a minor. 

Judges only had to look at the grid, and plug in all of the crime factors to determine a sentence. 

In the Sentencing Reform Act, Congress also decided to eliminate the courts’ discretion to exercise leniency in some instances by requiring courts to impose a mandatory minimum sentence for certain types of crimes. For example, Congress enacted the Armed Career Criminal Act as part of the Sentencing Reform Act.  This Act requires a minimum 15-year term of imprisonment for anyone convicted of being a felon in possession of a firearm if he has three prior convictions for “a violent felony or a serious drug offense.

Two years later, concerned by the emergence of crack cocaine, Congress passed the Anti-Drug Abuse Act of 1986, which imposed mandatory minimum terms of imprisonment for violations of the federal controlled substances laws. Since then, mandatory minimums have proliferated and increased in severity. Since 1991, the number of mandatory minimums has more than doubled. Entirely new types of offenses have become subject to mandatory minimums, from child pornography to identity theft.

Rare exception to minimum term

District courts may depart downward from the established mandatory minimum sentences for a crime in only limited circumstances. For example, the Anti-Drug Abuse Act of 1986 has two exceptions to the mandatory minimum sentencing requirement:  substantial assistance and safety valve. 

Substantial assistance occurs if a defendant cooperates with the government and the government files a motion for a downward departure from the statutory minimum.   The second exception  — safety valve — has a limited scope, but allows judges to avoid applying mandatory minimums, if the defendant has little to no criminal history and if the defendant truthfully discloses everything he knows about the crime he committed prior to sentencing.

Shifted discretion to prosecutors

Remember, the case for mandatory minimums was eliminating judicial discretion.  Towards that end, mandatory minimums have been effective.  However, discretion has not been eliminated, it’s merely shifted from judges to prosecutors.  Judges may have to impose whatever punishment the law requires, but prosecutors have unreviewable discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence, and over whether to engage in plea bargaining, including whether to trade away a count that includes such a law.

Additionally, the prosecutor has unreviewable discretion whether to ask the district court to reduce a defendant’s sentence due to his “substantial assistance” to the government. Critics say, unbridled prosecutorial discretion is a greater evil than unlimited judicial discretion. The exercise of discretion was much more transparent in the case of judges, versus prosecutors.  With prosecutors standing to gain professionally from successful convictions, they do not have much incentive to exercise their discretion responsibly. 

In the key findings of the October 2017 report, “Mandatory Minimum Penalties for Drug Offenses in the Federal System” the United States Sentencing Commission noted growing use of ‘substantial assistance” in mandatory minimum drug cases, something prosecutors are certainly benefitting from.  As long as they continue to get drug dealers to turn over other criminals as a way to cut their required time in prison, prosecutors will continue to use their discretion and charge individuals with offenses that carry mandatory minimums, versus lesser charges. 

Even with increased used of substantial assistance and application of the statutory safety valve provision to reduce the time served, drug dealers charged with mandatory minimum offenses still serve more time in jail that those charged with offenses that target mandatory minimums.

Swelling Prison Populations

In their October 2017 report, the Sentencing Commission is clear, “mandatory minimum penalties continue to have a significant impact on the size and composition of the federal prison population, and that drug mandatory minimum penalties continue to be applied more broadly than Congress may have anticipated.

According to the report, half (49.8%) of all federal inmates are drug offenders, and three-quarters (72.3%) of those offenders were convicted of a drug offense carrying a mandatory minimum. 

Since the official beginning of the War on Drugs in 1982, and the implementation of mandatory minimums, the number of people incarcerated for drug offenses in the U.S. skyrocketed from 40,900 in 1980 to 450,345 in 2016. Today, there are more people behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980.

The National Research Council reported that half of the 222% growth in the state prison population between 1980 and 2010 was due to an increase of time served in prison for all offenses. There has also been a historic rise in the use of life sentences: one in nine people in prison is now serving a life sentence, nearly a third of whom are sentenced to life without parole.

Mass incarceration and public safety

Crime rates have declined substantially since the early 1990s, but studies suggest that rising imprisonment has not played a major role in this trend. The National Research Council concludes several factors explain why the impact of mandatory minimums on crime rates has been relatively modest.  

First, incarceration is particularly ineffective at reducing certain kinds of crimes: in particular, youth crimes, many of which are committed in groups, and drug crimes. When people get locked up for these offenses, they are easily replaced on the streets by others seeking an income or struggling with addiction.

Second, people tend to “age out” of crime. Research shows that crime starts to peak in the mid- to late- teenage years and begins to decline when individuals are in their mid-20s. After that, crime drops sharply as adults reach their 30s and 40s.

The National Research Council study concludes:

“Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.”

As a result, the excessive sentencing practices in the U.S. are largely counterproductive and extremely costly.

Significant Reforms in Recent Years

After nearly 40 years of continued growth, the U.S. prison population has stabilized in recent years.

This is partially a result of declining crime rates, but has largely been achieved through pragmatic changes in policy and practice. For more than a decade, the political climate of criminal justice reform has been evolving toward evidence-based, commonsense approaches to public safety. This can be seen in a variety of legislative, judicial, and policy changes that have successfully decreased incarceration without adverse impacts on public safety.

At the state level:

The Kansas Sentencing Commission continues to recommend reduction in the sentencing on numerous nonviolent crimes, however the Kansas legislature is slow to act.  In 2017 the legislature did vote to make a few small reductions in the penalties for non-violent drug offenses in Kansas. 

At the federal level:

In 2014, the United States Sentencing Commission unanimously voted to reduce excessive sentences for up to 46,000 people currently serving time for federal drug offenses

Congress passed the Fair Sentencing Act in 2010, which reduced the disparity in sentencing between crack and powder cocaine offenses

Last month, Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or the “FIRST STEP” Act.  Individuals who oppose mandatory minimums are more than disappointed in this bill, that they at first thought had so much potential.  Instead, the bill as finally approved does nothing to address mandatory minimum sentences. 

Trump & Sessions 

Trump continues to send mixed signals about “get tough on drug” policies.  When he commuted Alice Johnson’s sentence and ask for similar cases to be forwarded to him for his consideration, individuals and supporters of many of those in jail serving long mandatory minimum sentences perked up. 

“While this administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance,” a statement from the White House said.

However, the Trump administration’s policies so far have veered from the idea of a second chance in favor of a more retributive approach.

In April 2017, Attorney General Jeff Sessions issued a directive to federal prosecutors urging them to pursue the most serious provable offense against suspects.

Sessions also nixed a key part of the Obama-era “Smart on Crime” initiative, which was aimed at reducing the number of defendants charged with non-violent drug offenses that would otherwise trigger mandatory minimum sentences.

Even with growing bi-partisan support for a reduction in mandatory minimums, the passage of significant legislation needed to make this change seems difficult to gain enough support for.  For change on both the federal and state level, it’s going to require the election of legislators who are brave enough to stand for those serving long mandatory sentences with that cost them lost time and the tax payers millions. 

Presidents office for the passage of a bill that would revise downward the requirement mandatory minimum triggers.