SCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, U.S. Supreme Court

Yesterday, the Supreme Court held in Abbott v. United States that the five-year mandatory minimum prescribed by 18 U.S.C. § 924(c) must be imposed consecutively to other mandatory minimums imposed pursuant to other statutes.  The 924(c) mandatory minimum targets defendants who have used, carried, or possessed a firearm in connection with a crime of violence or a drug trafficking crime.

The defendants in Abbott illustrate how the same conduct that triggers 924(c) can also trigger other mandatory minimums.  

Abbott himself was a felon with an extensive criminal history.  As a result, his possession of a firearm in connection with a drug trafficking crime also subjected him to the fifteen-year mandatory minimum of the Armed Career Criminal Act.  Adding this to the five years under 924(c), Abbott was sentenced to twenty years in prison.

Meanwhile, Gould, the other defendant in Abbott, possessed his firearm in connection with a crack offense.  Under the stiff mandatory minimum statute for dealing crack, Gould faced an additional ten-year minimum on top of the 924(c) five.

In the Supreme Court, Abbott and Gould argued that, as a matter of statutory interpretation, their 924(c) minimums need not have been imposed consecutively to their other, longer minimums.  The Court, however, affirmed both sentences.

The defendants relied on the prefatory language to 924(c): “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law . . . .”  In Abbott’s view, the “except clause” renders 924(c) inoperative when another, longer mandatory minimum applies to the same conduct that would otherwise function as a predicate for the 924(c) minimum.  (Gould advanced a slightly different interpretation of the clause.)

The Court, however, adopted the government’s interpretation, under which the “except clause” only kicks in when the other, longer minimum is for using, carrying, or possessing a firearm in connection with a crime of violence or drug trafficking crime.  In other words, 924(c) applies unless there is a longer minimum that includes exactly the same elements as 924(c).

Although the statutory language is messy, it strikes me that the Court’s interpretation better fits the language than the defendants’ interpretations.  In particular, 924(c)(1)(D)(ii) seems to speak pretty clearly in favor of the Court’s view: “[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.”

I am nonetheless troubled by an aspect of the Court’s reasoning: that is, the Court’s rejection of the defendants’ interpretations because they would result in “anomalies,” “oddities,” and outcomes that are “bizarre” and not “equitable.”  Although the Court did not use the term, what it really had in mind seems to be disproportionality — treating less culpable offenders more harshly than more culpable offenders.

To be sure, the defendants’ interpretation would provide a windfall of sorts for those 924(c) offenders who were “fortunate” enough to be subject to even longer minimums.  But 924(c) — like all mandatory minimums — has nothing to do with proportionality.

In the federal system, we have a generally serviceable sentencing scheme intended to achieve proportionality — the guidelines.  Section 924(c) is not intended to accomplish proportionality, but to overrideproportionality.  Like other mandatory minimums, 924(c) takes a single sentencing variable — here, possession of a firearm — that may mean dramatically different things in different cases, and gives that single variable a dominant, uniform weight.  The guidelines provide for far more nuanced and sensible distinctions.

It is hard to say exactly what the point of 924(c) and other mandatory minimums is — these election-year enactments are probably more about anti-crime political posturing than anything else — but it seems more than a bit perverse to invoke proportionality ideals when rejecting a defendant’s proposed interpretation of the statute.  When the application of 924(c) systematically produces “anomalies,” “oddities,” and outcomes that are “bizarre” and not “equitable,” a limiting interpretation may bring more, not less, proportionality to our overall system for punishing drug and gun offenders.

At one point, the Court itself came close to acknowledging as much: “We do not gainsay that Abbott and Gould project a rational, less harsh, mode of sentencing.  But we do not think it was the mode Congress ordered.”  This points to a more honest interpretive approach.  When the statutory language does not bear a reading that makes for sensible sentencing policy, why pretend that it does?

Cross posted at Life Sentences Blog.

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