Sending Americans into Exile – the Obama Way!

By William Fisher


You’re going on a business trip abroad. Or a vacation. Or you’re returning to the country of your parents’ birth to visit family there. You check in at the airport, go through security, and find your seat in the plane. Now the engines are at full throttle, you’re rolling, and in seconds, you’re airborne. What you don’t know is that, if your government gets its way, you’ll never be airborne again headed for the US. Even though you are a native-born US citizen or a permanent resident with a green card. Because the moment your flight was wheels up, your name was added to the dreaded No Fly List. But you don’t know any of this. You’re just sitting there, enjoying your flight, blissfully unaware that someone’s put a target on your back. Will you ever know you’ve been put on the no-fly list? Yes. When? When you attempt to board your flight back to the US. You will not be allowed to board. Instead you’ll be taken to a room somewhere in the airport, where you’ll be questioned by officers you’ve never seen before. And questioned. And questioned. And questioned. They think you’re a terrorist. And they want to know all about you, your terrorist associates, what your plans are, who you saw overseas, the whole nine yards. This goes on for days. You’re exhausted. Your family has no idea where you are. They’re frantically phoning anyone they think might have some information, including the FBI, the CIA, the NSA, and so forth. And, of course, their lawyers, if they have lawyers. So far, your gracious “hosts” haven’t asked you if you even want a lawyer, and they are not likely to do so. Every evening your hosts let you go – where can you go? -- to the American Embassy or Consulate, where you talk to anyone who will listen and try to find out why you’re stuck in this nightmare. This can go on for weeks or for a month or more. Finally, you manage to reach out to an organization like the American Civil Liberties Union. You tell your story. But they’ve heard it all before – from people in precisely the same predicament as you are in. They’ve learned how to navigate these rocky shoals of counter-terrorism. After what seems an absolutely endless delay, you are unceremoniously put on a plane headed for the US. You have not been found guilty of anything. You have not been exonerated of any crime. You are exactly the same person you were when this awful journey began – except that you are now on the no-fly list and you’re mad as hell. Why did this happen to you? You’ll have to tell me. Because our Government certainly isn’t going to. They won’t even confirm that you are on a no-fly list, or any list, much less why. Now the ACLU represents 15 US citizens and permanent residents who have received this kind of inhumane treatment. Most of these folks didn’t know one another. Today they are bonded by the Keystone Kops antics of our counter-terrorism programs. And bonded even more tightly by the adventure on which they are about to embark. Ten of them are suing the U.S. government. With the help of the ACLU, they have filed a first-of-its-kind lawsuit on behalf of 10 U.S. citizens and lawful residents who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List." None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names. "More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional." The ACLU, along with its affiliates in Oregon, Southern California, Northern California and New Mexico, filed the lawsuit against the U.S. Department of Justice, the FBI and the Terrorist Screening Center in U.S. District Court for the District of Oregon. According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest. "Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad." She added: “The infuriating thing about this whole episode is that when each one of them tried to correct the problem through the existing redress system, the government refused to tell them why they were put on the No Fly List and to provide them a reasonable chance to defend themselves. Denying people such fundamental rights in complete secrecy and without due process is unconstitutional.” So for all you travelers: Next time you’re planning a trip, pray you’ll be able to return to ‘the land of the free’. And don’t forget to take your Frequent Interrogation card with you. This article was originally published on the website of Prism Magazine.

FOIA: Honored in the Breach!

By William Fisher Remember those heady days in January 2009? Obama’s first week as President. We Dems were so disgusted with eight years of George Bush’s “secret governance” that we were ready to believe that anything the Obama Administration did could only be a major improvement. I remember being particularly joyous that one of our new President’s first-day-in-office pledges was to fulfill his campaign promise to lead the “most transparent administration in history.” He said: “My Administration is committed to creating an unprecedented level of openness in Government.” While laying out principles he wished to see his agencies adopt in the proceeding months, he ordered federal officials to err on the side of openness. The President wrote that FOIA should be “administered with a clear presumption: In the face of doubt, openness prevails.” That was to be the default position. Following through on the President’s memorandum, Obama’s new attorney general, Eric Holder, issued a directive to emphasize the importance of the FOIA law’s purpose and “to ensure that it is realized in practice.” Holder ordered that unless there was a compelling state interest in secrecy, our citizenry was entitled to know what their government was up to. It was to be a real change in mind set. The public was not the enemy! Like millions of others, I expected full disclosure of Bush’s secret wiretapping, torture of prisoners, the CIA’S secret prisons and its destruction of interrogation videotapes. I also expected an end to the use of the “state secrets privilege” as a way of keeping embarrassing cases out of court. Well, all I can say is that I, having worked in the Kennedy Administration, should have known better. A lot better. I should have known that many government employees seem to have a predilection for secrecy. Maybe it comes from Bacon’s dictum that “knowledge is power.” Or maybe they think it’s just safer not to call attention to oneself. Whatever the reasons, I sure wasn’t ready for what came next. Since Obama’s historic first day in office, numerous studies and surveys have been carried out by researchers in and out of government. The most recentof these has been published by TRAC – the Transactional Records Access Clearing House, a research unit at Syracuse University. Its findings are not pretty. The Attorney General’s memorandum said the Department of Justice would “defend a denial of a FOIA request only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law.” The FOIA law has been amended many times and it appears that most of the amendments have tilted toward finding more and more reasons NOT to disclose. Even a partial list of exclusions presents information seekers with a formidable task. The TRAC research considered whether or not a key component of that March 2009 directive which set forth new “defensive standards” for FOIA litigation has been obeyed. Yet here are two shockers: TRAC says available evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper. Furthermore, TRAC and many others charge that, after three years, the Freedom of Information Act – the basic building block of government transparency -- is still in shackles. According to Trevor Timm of the Electronic Frontier Foundation (EFF), the Obama Administration “has been just as secretive—if not more so—than his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration’s lack of progress.” Similarly, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold. Under the Freedom of Information Act, if an agency does not provide records requested under FOIA, the requestor can file an action in federal court seeking a court order to compel their disclosure. When an agency’s withholding is challenged in court, attorneys from the Justice Department are typically called upon to defend the agency’s action. Therefore the standards used by these attorneys in determining which withholding actions will be defended, and which will not, send a powerful signal to federal agency officials and FOIA staff on the extent to which the agency will have a free hand in withholding government records. In addition, whatever the ultimate decision of the courts, the sclerotic pace of federal litigation means that the decision to defend an agency’s withholding effectively postpones the need to turn over documents to the public for many years. Thus, agencies can use this tactic to effectively delay access to sought-after records until public interest in their contents dies down. And delay they have. In 1997, a request was made by The New York Times under the FOIA. It received a response in 2012. The response was sent by Federal Express, Priority Overnight. The National Archives and Records Administration says its oldest request is from September 1992, asking for information from the White House Office of Science and Technology about nuclear weapons safeguards, testing and disarmament negotiations. The documents requested are from 1961. Another request from 1992 is for State Department documents relating to nuclear weapons accidents in 1958 through 1960. A third asked, in 1993, for documents dating to the American occupation of Italy after World War II, specifically about the Sicilian Mafia. The National Security Archive, a non-governmental non-profit group based in Washington that is a heavy user of the Freedom of Information Act, reported last July 4, on the 45th anniversary of President Lyndon B. Johnson’s signing of the law, on some older cases that were still open. Those included a 1995 request for information on Pakistani surface-to-air missiles and a 1998 request to the George Bush Presidential Library for documents relating to the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing happened in 1988. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009. And just this year, in a FOIA case that TRAC filed, and that is now before the Second Circuit Court of Appeals, the Justice Department attorney argued that the government was entitled to withhold the names of many political appointees on government employment rolls — extending even to withholding the name of the head of a federal agency — even though names of federal employees had been a matter of public record since 1816. In that same case, the DOJ attorney also argued that data compiled for statistical purposes containing the county or city where federal workers were located was exempt from disclosure on privacy grounds, whether or not it was possible to associate the data with any identifiable individual. The White House described Obama’s directive as "historic," but the Office of Management and Budget still has not responded to the AP's request under the Freedom of Information Act to review internal e-mails and other documents related to that effort. For example, the Federal Aviation Administration cited the “deliberative process exemption “ --- one of the most frequently used exclusions -- in refusing the AP's request for internal memos on its decisions about data showing collisions between airplanes and birds. The FAA initially tried to withhold the bird-strike database from the public, but later released it under pressure. It is ironic that the “deliberative process exemption” -- which allows the government to withhold documents dealing with its internal decision making process -- is one that Obama explicitly told the agencies not to use. Yet in Obama’s first year in office, the use of the “deliberative process exemption” rose from 47,395 times in 2008 to 70,779 times in 2009. This was the exemption claimed by the Federal Aviation Administration (FAA) to withhold nearly all records about its approval for Air Force One to fly over New York City for publicity shots – a flight that prompted fears in the city of a Sept. 11-style attack. It also withheld internal communications during the aftermath of the public relations gaffe. Other exemptions cover information on national defense and foreign relations, internal agency rules and practices, trade secrets, personal privacy, law enforcement proceedings, supervision of financial institutions and geological information on wells. One, known as Exemption 3, covers dozens of types of information that Congress shielded from disclosure when passing other laws. In provisions often vaguely worded and buried deep in legislation, Congress has granted an array of special protection over the years: information related to grand jury investigations, additives in cigarettes, juvenile arrest records, the identities of people applying restricted-use pesticides to their crops, and the locations of historically significant caves. All can be legally withheld from the public. The federal government cited Exemption 3 protections to withhold information at least 14,442 times in the last budget year, compared with at least 13,599 in the previous one. Journalists have been among the most consistent users of FOIA requests. But the obstacles, and the time, money and people-power needed to surmount them, have shown signs of discouraging this constituency. Trevor Timm of the EFF reports that the Associated Press looked at the administration’s commitment to transparency in 2010 and concluded Obama was using FOIA exemptions to withhold information from requesters more than Bush did in his final year, despite receiving fewer overall requests. Worse, more than a year after Obama and Holder’s memos, a National Security Archive study found “less than one-third of the 90 federal agencies that process such FOIA requests have made significant changes in their procedures.” Even FOIA requests on transparency were held up: An Associated Press study concluded that the bottom line was that, one year into its promise of greater government transparency, the Obama administration was more often citing exceptions to the nation's open records law to withhold federal records even as the number of requests for information declined. Obama's directive appears to have been widely ignored.Major agencies cited the “deliberative” exemption at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush's final full budget year, according to annual reports filed by federal agencies. Obama was president for nine months in the 2009 period. One of the frustrating realities about the FOIA process is the enormous backlog of requests government agencies have to contend with, which means many months or years could pass before a request is finally processed and a response received.. Court calendars jam-packed with FOIA cases are also having the effect of putting civil trials on hold, sometimes for years. Much of the Obama administration's early effort seems to have been aimed at clearing out this backlog of old cases: The number of requests still waiting past deadlines spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year. There is no way to tell whether people whose cases were closed ultimately received the information they sought. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. The administration has stalled even over records about its own efforts to be more transparent. The AP is still waiting – after months – for records it requested about the White House's "Open Government Directive," rules it issued in December directing every agency to take immediate, specific steps to open their operations up to the public. The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., was so concerned about what he called "exemption creep" that last year he successfully pressed for a new law that requires exemptions to be "clear and unambiguous." Recently, Attorney General Eric Holder said the government is making progress. In a speech at the start of Sunshine Week, when news organizations promote open government and freedom of information, Holder noted that the Justice Department turned over all documents in information requests in more than 1,000 more cases than it had the previous year. "Put simply, I asked that we make openness the default, not the exception," Holder said. "I'm pleased to report that the disturbing 2008 trend – a reduction in this department's rate of disclosures – has been completely reversed. While we aren't where we need to be just yet, we're certainly on the right path." Scott Hodes, an attorney in private practice who specializes in FOIA litigation, was asked whether there was an effort to change, Hodes was blunt, saying that he believes DOJ attorneys handling FOIA cases don’t consider the documents at the center of a FOIA denial case, and maintain a policy of always defending the cases. “They will still pretty much defend a ham sandwich in a FOIA exemption case,” Hodes told TRAC. The reason for this, Hodes said, was because there was no backing for a change from higher up in the agency that provided the support or infrastructure for attorneys handling cases to decide not to defend a case. “I think the important thing is that there has been no training, specifically for FOIA litigators. There’s no guidelines — there isn’t even discussion of when they should release something. Quite frankly, they’re not serious about it.” If Hodes has found no change, and instead a stolid insistence on defending cases no matter what, others have seen the opposite — an increased aggressiveness in defending cases. Jason Aldrich, a staff attorney at Judicial Watch who worked on two lawsuits that were examined by TRAC to see if they were affected by the new policy (neither were), said that in 12 years of litigating FOIA-related cases, extending back to the Clinton administration, he has seen no signs that DOJ attorneys are less likely to defend a case. “I’m not really seeing any additional openness or willingness to exercise discretion, if anything people are just hunkering down, especially anything that looks like it might be remotely political,” he told TRAC. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009, which ended last October. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. Proponents of “smaller, leaner government” contend that there are simply to many people involved in the FOIA process. But others contend that fewer hands would only make the delays longer. It was back in 1966 that Lyndon Johnson signed the Freedom of Information Act into law, driven by the indefatigable Bill Moyers, his press secretary. Unlike Johnson’s much-publicized signing of the Civil Rights Bill, Wikipedia tells us that he had such mixed feelings about the FOIA legislation that he refused to hold any kind of ceremony that would attract the media's attention. His fear was that opening the government's files to the masses might result in the accidental or intentional revelation of national secrets. Seven years later, Rosemary Woods, President Nixon’s secretary, was reviewing a key Watergate tape, and erased 18.5 minutes of conversation. Wags in Washington, DC, bestowed on her a “virtual” award for Worst Open Government Performance. The “honor” became an annual capitol chuckle. The winner in 2011 was – wait for it – the US Departmentof Justice.

Federal Prison Sentences Not Uniform

By William Fisher

New research reveals that typical prison sentences handed down by Federal judges for drugs, white collar and other kinds of crimes from 2007 to 2011 can vary widely from sentences meted out by other judges for similar cases in the same district.

Based on an analysis of more than 370,000 cases completed in the nation's federal courts during the last five years, this finding “raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.”

This first-of-its-kind, judge-by-judge review was carried out by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University and is based on hundreds of thousands of records obtained under the Freedom of Information Act as a result of a series of lawsuits against the Justice Department.

This has been combined with information obtained directly from the federal courts. Together, these data indicate that long-term efforts to improve the consistency of the federal sentences through the adoption of complex sentencing guidelines have not been entirely successful in curtailing large judge-to-judge differences in sentencing practices.

TRAC’S purpose, it said, is to improve the fairness and effectiveness of the courts’ functioning. “With this thought in mind, TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts.”

TRAC said,” A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is ‘just’. No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.”

But, TRAC added, “A fair court system also requires ‘equal justice’ under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.”

Here are a few examples of disparate sentences provided by TRAC involving drug convictions:

In the Northern District of Texas, which includes Dallas and Fort Worth, the median or typical sentence for each district court judge for drug cases for the past five years was calculated. (If a judge had a median or typical sentence of ten, half of her sentences would be below that number, half above.)

Eight judges who had each handed down at least 40 drug sentences are at the low end of this small group. For these federal judges, the median sentence was 60 months.

At the other extreme, however was another judge whose median sentence was 160 months. Nor did the sentences of the remaining six judges cluster together. In fact their typical sentences were also quite varied. Assuming the drug cases handled by these eight judges were assigned on an approximately random basis, this variation is hard to explain, TRAC says.

In the Eastern District of Virginia, which includes Alexandria, Norfolk and Richmond, there were fifteen judges who had each sentenced at least 40 drug offenders. Here the range in the typical sentences of judges was again very broad. The median sentence for three judges was 120 months, four times that of the median sentence of another judge with 30 months, TRAC says.

TRAC explains that “Part of these differences might be accounted for by differences in the composition of cases assigned judges located in different offices within the district. Alexandria judges had median sentences, which ranged from a low of 30 months to a high of 87 months, while Norfolk judges ranged from 79.5 months to 120 months. Thus, even within each office, the range in median sentences was still large.”

While large district-to-district differences were not uncommon, there were other districts where there was relatively strong agreement in the sentencing practices of the judges.

For example, the Minnesota District Court was one where fairly close agreement among judges on sentencing occurred. The nine district court judges there who had handled at least 40 drug cases clustered closely on their median sentences with a low of 52 and a high of 64 months.

Districts with two or three judges often showed more agreement. However, this wasn't always the case. The District of Columbia federal court, for example, had only three judges who had handled at least 40 drug cases. Here there was one judge with a median of only 27 months and another with a median sentence of 77 months, and the third was 51 months.

Similar patterns of differences in judge-to-judge median sentences were observed in other types of cases, including for white-collar crimes. In the Northern District of Illinois that includes Chicago, for example, the records showed there were a total of eight judges who had sentenced 40 or more defendants on white-collar crime charges from FY 2007 through FY 2011. The median sentence of these eight judges ranged from a low of zero -- that is, at least half of the defendants before that judge received no prison time -- to a high of 39 months.

The basis for TRAC's unique analysis was the case-by-case records that included each sentence imposed by federal district judges on defendants convicted of a federal crime during the past five years, FY 2007 - FY 2011. Excluded were cases handled by magistrate judges or special judges sitting by designation.

“To ensure that we only looked at judges who had sentenced a sufficient volume of individuals to make comparisons meaningful, we excluded judges that during this period had not sentenced at least 50 defendants. This left us with sentencing records on 885 district judges who had sentenced a total of 372,232 defendants over the past five years. The average number of defendants each had sentenced was 420,” TRAC declared.

The researchers developed an interactive tool to examine the record of individual judges, carrying out a detailed comparison of how the average and the median sentences for that judge compared with colleagues sitting on the same court.

“Background information on the judge, such as when she or he had been appointed, and their status as a regular versus senior status judge was noted. This tool also allowed us to check on the composition of the cases handled by each judge compared with those handled in that district, and drill in and do sentencing comparisons on subsets of similar cases — for example, similar types of cases (drugs, white collar, immigration, etc.) or similar lead charges,” TRAC explained.

The TRAC research may represent another step in the journey from a “Judge As King” approach, in which the judge is free to hand down significantly varying sentences for essentially the same crime; to Federal Sentencing requirements, in which the judge has virtually no discretion; to the current system of Federal Sentencing as guidelines only, thus allowing judges to take account of material differences between similar cases.

Though the Federal Sentencing Guidelines were originally styled as mandatory, the Supreme Court's 2005 decision in United States v. Booker found that the Guidelines violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory.

In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), the Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker.

Last year, the U.S. Sentencing Commission completed a thorough analysis of the application and effects of mandatory minimum sentences. It was the first systematic review of mandatory minimum sentences in 20 years. The Commission said, ”During those two decades the number of mandatory minimum sentences has grown exponentially, and with that growth the number of inmates serving mandatory sentences has ballooned, filling our prisons to bursting.”

Key findings of the report:

In fiscal year 2010, two of every three offenders convicted of an offense carrying a mandatory minimum penalty were drug offenders. Almost half of all drug offenders (48.7%) who were convicted of an offense carrying a mandatory minimum penalty were convicted of an offense carrying a 10-year penalty.

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by black offenders (31.5%), white offenders (27.4%) and other race offenders (2.7%).

Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.

The type of drug involved in drug cases significantly impacts the application of mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug types was in marijuana cases (44.3%).

The majority of offenders in nearly every function, including low-level secondary and miscellaneous functions, were convicted of an offense carrying a mandatory minimum penalty, although higher-level functions tended to be convicted of such statutes at higher rates.



The Commission’s analysis found that, for every function, the quantity of drugs involved in the offense resulted in a base offense level that included or exceeded the five-year mandatory minimum penalty.

Furthermore, the Commission’s analysis revealed that the quantity of drugs involved in an offense was not closely related to the offender’s function in the offense.

In fiscal year 2010, drug offenders convicted of a statute carrying a mandatory minimum penalty went to trial more than twice (4.5%) as often as drug offenders who were not convicted of an offense carrying a mandatory minimum penalty (1.6%). Furthermore, on average, the longer the mandatory minimum penalty an offender was facing, the less likely the offender was to plead guilty.

The Commission described one finding as particularly disturbing. “Mandatory minimums are justified on the basis that they will help get ‘the big fish’. The commission’s analysis of a 15 percent sample of fiscal year 2009 cases indicates that the mandatory minimum penalties sweep up a lot of minnows, rather than the big fish. Among all drug cases, couriers accounted for 23 percent of the prosecutions with street-level dealers another 17.2 percent, meaning that very small players accounted for over 40 percent of the cases. Going after these small fish was not what Congress intended when it passed mandatory minimum sentences.”

The commission concluded that for a mandatory minimum to be just it must meet these criteria: it should not be excessively severe, it must be narrowly tailored to apply only to those offenders who warrant such punishment, and it must be applied consistently.

The US houses the world’s largest prison population. According to the US Bureau of Justice Statistics (BJS) 2,266,800 adults were incarcerated in US federal and state prisons, and county jails at year-end 2010 — about .7% of adults in the US resident population. Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole. In total, 7,225,800 adults were under correctional supervision (probation, parole, jail, or prison) in 2009 — about 3.1% of adults in the U.S. resident population.

In addition, there were 86,927 juveniles in juvenile detention in 2007.