The federal sentencing scheme is fundamentally unfair. The unfairness is rooted in the fixed mandatory minimums required by law. While the 1986 Anti-Drug Abuse Act was intended to apply mandatory minimum sentences to “major” or “serious” drug traffickers, a 2017 U.S. Sentencing Commission report found that one-third and one-fourth of all the mandatory minimum drug sentences are imposed on couriers and mules, respectively—most of whom have little or no criminal history. Despite the most recent sentencing reforms found in the First Step Act, which expands the Safety Valve and reduces mandatory minimums for some offenses, federal sentencing remains unfair and unjust.


80% of Mandatory Sentences Unjust


This horrendous situation both infuriates and saddens U.S. District Court Judge Mark Bennett, a 23-year veteran federal judge who sits in the Southern District of Iowa. Judge Bennett says that 80 percent of the mandatory minimum sentences he imposes on drug defendants are unjust because the laws governing these sentencing schemes are inflexible, not allowing the judge any discretion to fashion an appropriate sentence.


For example, 18 U.S.C. § 841(b)(1)(B) demands that ten-year mandatory minimum sentence must be imposed when a defendant commits a federal drug offense “after a prior conviction for a felony drug offenses has become final.” This draconian sentencing scheme inevitably produces unfair and unjust sentencing in drug cases, like the sentence imposed on Vickie L. Sanders.


In a December 3, 2018 decision, the Seventh Circuit Court of Appeals upheld a ten-year mandatory minimum sentence imposed on Sanders pursuant to § 841(b)(1)(B) for several federal drug offenses relating to a conspiracy to manufactured 50 grams or more of methamphetamine. The mandatory minimum was imposed because Sanders had been convicted in 1996 under California law for possession of a controlled substance. That state conviction became final in 1998.


In November 2014 California voters passed Proposition 47, the Safe Neighborhood and Schools Act. One of the provisions of the proposition reduced certain possession of s controlled substance offenses from a felony to a misdemeanor. The proposition also allows an individual “who has completed his or her sentence for a conviction … of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [the] act been in effect at the time of the offense” to “file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or conviction designated as misdemeanors.”


Mandatory Minimum for 20 Year Old Prior Felony Conviction


In October 2017 Sanders pled guilty to the federal drug offenses informing the court that she was aware that her twenty year old California conviction could impact her sentencing range. The judge ordered a presentence investigation report. In December 2017 the federal probation office submitted its Presentence Investigation Report to the court. That report recommended a U.S. Sentencing Guideline sentencing range of 87-108 months but recognized that the  § 841(b)(1)(B) mandatory minimum had to be imposed.


In early January 2018 Sanders’ attorney moved the federal district court to delay its sentencing of the defendant. Eleven days later a California state court reclassified Sanders’ 1996 conviction from a felony to a misdemeanor. The following month, February 2018, Sanders filed formal objections to the § 841(b)(1)(B) ten-year mandatory minimum because she no longer had a “prior felony drug” conviction—the prerequisite of § 841(b)(1)(B).


US Attorney’s Office Still Pushing for Harsh Sentences


Sanders argued to the court that Prop 47 ensures that “qualified offenders who have had their prior felony conviction redesignated can gain relief … from collateral consequences.” The local U.S. Attorneys, operating under former Attorney General Jeff Sessions’ policy of imposing maximum penalties (including all mandatory minimums) in drug cases, opposed Sanders’ argument that the state court reclassification of her 1996 drug conviction from a felony to a misdemeanor precluded the imposition of § 841(b)(1)(B)’s mandatory 10-year minimum. The U.S. Attorneys encouraged the Seventh Circuit to follow the lead of the Ninth and Third Circuits which have held that § 841(b)(1)(B) applies regardless of whether a prior felony drug conviction has been reduced to a misdemeanor pursuant to Prop 47.


In April 2018 the district court agreed with the U.S. Attorney’s office and imposed the 10-year mandatory minimum sentence on Sanders. The Seventh Circuit upheld that lower court ruling, finding:


“Here, there is no dispute that Sanders both committed a federal drug offense and was convicted of a prior felony drug offense in California that had become final. California’s later decision to reclassify the felony as a misdemeanor ‘does not alter the historical fact of the [prior state] conviction’ becoming final—which is what § 841 requires.”


Appeal Courts Stretch to Approve Harsh Sentences


The unfairness of the Seventh Circuit’s decision can be found in the following paragraph from the appeals court’s decision:


“Sanders argues an ‘absurdity results if courts fail to recognize changes made retroactive by the state: The length of a defendant’s sentence would depend on the date on which an unrelated state crime was committed.’ She contends ‘[t]here is no principled reason why two defendants with identical criminal histories, who violated § 841(b)(1)(B) on the same day, should receive dramatically different federal sentences solely because one’s prior conviction occurred before, and the other’s occurred after, the state legislature decreased the punishment.’ We disagree that such a result is absurd. While ‘[s]uch a regime may at first glance seem harsh … there is good reason behind it’ … The recidivist enhancement applies because Sanders had already been convicted of a felony drug offense, not because of the underlying conduct. In any event, the language of § 841(b)(1)(B) is clear: the ten-year mandatory minimum applies if the defendant commits the federal drug offense ‘after a prior conviction for a felony drug offense has become final.’ In short, when Sanders committed the federal drug offense, her 1996 California drug conviction was a felony and it was final.”


This is the kind of absurdity that occurs when inflexible mandatory minimums are put in place by federal and state lawmakers. While judicial discretion can, and does, produce absurd results in sentencing decisions, this is not the norm. Mandatory minimums, on the other hand, institutionalize absurdity – and the Vicki Sanders case illustrates just how unfair and draconian that absurdity can be.


Despite the much touted reforms included in the First Step Act, the reality is that comprehensive sentencing reform has yet to become a reality.  This act is merely a “first step” and will does little to significantly reduce the massive incarceration problem that remains in this country at both state and federal level.