An Interview with Emily Simon on Mandatory Minimums

Article by Brigette Sarabi 

Editor’s Note: Emily Simon has been a criminal defense lawyer for the past twenty years. In 1998 she took a sabbatical from an active private practice in Portland to work exclusively on Ballot Measure 11 issues. Ballot Measure 11 did two things in Oregon: first it required automatic treatment of juveniles as adults for twenty-one specific crimes; and second, it required a long mandatory sentence for anyone convicted of those crimes. Emily received a fellowship from the Center on Crime, Communities and Culture of the Open Society Institute, a foundation established by George Soros,  for her work on Ballot Measure 11 issues. She was one of four people chosen for this fellowship, from an applicant pool of 9,000. The Juvenile Rights Project donated office space and office support for Emily’s work, and also raised money for a part-time legal assistant and the part-time assistance of another lawyer. On March 1st, 2000, Emily Simon returned to private practice as a criminal defense attorney.

Justice Matters: Can you tell us about mandatory minimums and what makes them different from other sentencing guidelines?

Emily Simon: Let me explain the difference between a mandatory minimum sentence and a sentencing guideline. A guideline is a range for a judge to make a determination, and depending on certain factors the judge can go above or below the guideline.  In Federal courts it is very, very difficult to go above or below the guideline, which is called a departure sentence. In state court it is much easier to do that. In Oregon, before Ballot Measure 11, most judges followed the guidelines. There were occasions when they didn’t because it just wasn’t appropriate to do so.

A mandatory minimum means that a judge has to, absolutely must, impose a certain sentence when a person is found guilty of that charge. There is no discretion allowed by the judge, there is no way out of a mandatory minimum. The reason that a mandatory minimum is so different from a sentencing guideline is that the sentence a person receives will be determined by what the person is charged with and convicted of, which is solely a prosecutorial discretion call.
Prosecutorial discretion means that the prosecutor is deciding what to charge, and is essentially forecasting what the sentence is going to be. For example, in certain drug cases in the federal system there are certain kinds of crimes that have a mandatory minimum sentence, and if the prosecutor alleges those crimes, that means the person will get a lot of time.

Let’s look at the state level here in Oregon. Robbery I has a ninety month minimum (seven and a half years). If the prosecutor charges Robbery I, and the person is convicted of Robbery I, they get ninety months regardless of the facts or circumstances, because that’s what the judge has to give them. The only person that can get them out of that is the prosecutor by saying, “Okay, you don’t have to plead to Robbery I, I’ll give you Robbery II or I’ll give you another lesser charge so that you don’t wind up doing that amount of time.” Whenever there are mandatory minimums the rate of plea bargaining goes up and the rate of trials goes down because it’s the prosecutor who gets to make the call.

JM: Have there always been mandatory minimums in this country? 

ES: No. Mandatory minimums are a legislative enactment, or they are imposed by ballot measure, as it was here in Oregon. The first batch of mandatory minimums that passed at the federal level were the drug and gun charges. Those were during the Reagan years, mostly.

JM: The federal mandatory minimum sentences came in as part of the war on drugs, right?

ES: Right, the war on drugs and the war on crime. Now, for marijuana minimums, we have to personally thank Senator Al D’Amato (R-NY). They weren’t even in the initial laws and he stuck them in because he hates marijuana.

JM: When did the states start instituting mandatory minimums?

ES:  I believe that it was the Southern states that started instituting mandatory minimums by legislative enactment around the time of the Civil Rights movement, so that they could really hammer people who were doing social protest. That’s where they got started, then they got picked up in the North in Illinois, Wisconsin and New York as part of the war on drugs. 1994 is when Ballot Measure 11 passed in Oregon.

JM: What drives the move to enact mandatory minimums?

ES: The fear of crime. Now I know there is an economic theory, in terms of prison construction, providing jobs, the privatization of prisons and also locking up half our labor force and keeping them out of circulation so everybody else can live more comfortably and high off the hog. I don’t agree with that. I don’t think “they” are intelligent or deceptive enough to do that.

JM: What about the fact that the federal government makes half a billion dollars in funding for prison construction available each year, but only to states that pass truth-in-sentencing laws or some kind of mandatory minimums. Do you think that has an effect?

ES: Sure, I think it has an effect, but I don’t think it drives the whole process at its root. I think that people’s fears get played on, and that’s why they vote for harsher sentencing, or that’s why they support  legislators who vote that way. There is not a single person in this country who has not heard of, or internalized in some way,  what happened at Columbine or at Thurston, and I think that when people’s fear  gets working that way, they make irrational decisions.

After these really tragic cases with the school shootings,  we find harsher juvenile justice legislation is being proposed at the federal and state level.  For some reason in this country we have demonized our youth and I think we are going to sorely regret that.

JM: Let’s talk about the effects of mandatory minimums on youthful offenders.

ES: For Oregon in particular, I’d have to say the proof is in the pudding, because they’re not out yet. Research across the country shows that when you lock a child up (and what I mean by a child is anyone under the age of 18) with adults, when they get out of the penitentiary they will commit another crime. Not they might, but they will commit another crime. 100% recidivism. And 85% will commit a more serious crime than they were incarcerated for within 5 years of being released.

On the other hand, the juvenile recidivism rate for people who have a case heard in juvenile court is very, very low. For example, if a 15 year-old kid shoplifts and goes through a juvenile court diversion program, the chances are only 5% that the kid will reoffend at some point in his or her life. Juvenile sex offenders who have specific juvenile sex offense therapy also have a very low recidivism rate, about 28%, which is very low for sex offenders. We know that juvenile sex offense therapy doesn’t work for everyone on the juvenile level, but we know that sending them to prison doesn’t work for anyone. Juveniles who go to adult jail re-offend — the numbers are there. Clearly, the treatment option makes more sense.

JM: How has the passage of Ballot Measure 11 in Oregon affected our criminal justice system?

ES: First, we have given a lot more power to the district attorneys, in terms of who gets prosecuted and who doesn’t. Of the juveniles stopped  for a Measure 11 offense in Multnomah County (Portland), 33% are black. Police are more apt to stop African American young men than young white men.  And probably the total percentage of African Americans in Multnomah County is 6%. So how can you have one third of those being stopped for Measure 11 offenses be African American? The impact of the law is that they’re kept in jail longer, in terms of pre-trial release. Now, because of the case I happened to win in September, 1999, they have a right to have a release hearing. But they didn’t, up until this case was won — there used to be a requirement of a mandatory $5000 bail. And every cop knew that if they wanted someone off the streets, they could just charge them with a Measure 11 offense and they’d be locked up until their trial or their plea.

JM: How do you think we can change mandatory minimums? 

ES: I think the individual legislators in the states, and in the Congress, will make inroads. In fact they have made inroads into giving back judicial discretion.

In terms of Oregon, when the law first passed in 1994, there was no escape valve at all for any Measure 11 offender. In 1997, the Oregon Legislature passed Senate Bill 1049 and that allowed for there to be an exception for Robbery II, Assault II, Kidnapping II.

On new charges the judge has full discretion; on sentences given before the passage of SB 1049, the district attorney has to agree. Making changes in the federal sentencing guidelines is tougher. But the Sentencing Commission has at times recommended adding on additional mandatory minimums for other crimes, and Congress hasn’t approved that. I think ultimately the crack cocaine guidelines will fall.

JM: So you don’t think we’ll get rid of mandatory minimums?

ES: No, I think we’re stuck with them. Once you let something like that into the law, it’s like the camel under the nose of the tent — people get used to the camel’s nose sticking around. As more and more people get charged with Measure 11 offenses and they deal with it, then more and more people are understanding what this measure means. But I don’t think we are at critical mass yet.

JM: What will it take? We have 2 million people incarcerated in this country.

ES: Yeah, we need 10 million white upper class people incarcerated and you tell me when that’s going to happen.  Who usually gets in prison? That’s why I do the work I do,  and I try to keep people from getting killed by the government and getting life in prison, because I believe there is too much governmental power. Who gets the death penalty? Who gets long mandatory minimums? It’s a way of keeping a permanent underclass. I know that. I see that, but most people can’t.

JM: Are mandatory minimums an effective way to reduce crime?

ES:  No, they have absolutely nothing to do with the crime rate. Crime does not occur because of what the person thinks the punishment is going to be. In fact, in a certain way, mandatory minimums make more crime. The more you keep people away from society and de-socialize them, why would you expect them to be socialized when they got out? It’s counter-intuitive.

This interview originally appeared in the Spring 2000 issue of Justice Matters.