In 1998, Scott Earle pled guilty to charges of felony drug trafficking and conspiracy. He received four 25 year sentences, along with two additional 15 year sentences, all of which were to run concurrently.

The sentencing judge, Mark Speiser, said at the time he imposed sentencing:

“I have to express my deep concern about this particular situation … this punishment does not fit the crime. We are not talking about a first or second degree murder … [W]ith a great degree of reluctance I will have to sentence the defendant [to] 25 years minimum mandatory.”

Earle’s crime? Playing the middle man in a painkiller sting. Earle had no prior convictions and — as the judge said — he was a non-violent offender. But he’s currently serving a 25 year sentence.

The state of New York introduced mandatory minimums for drug offenses in 1973 and remain some of the harshest in the nation. On the federal level, mandatory minimum sentences for drug offenses were spawned in 1986 as part of the “war on drugs” (the federal bill introducing mandatory minimum sentences was laughably called “The Anti-Drug Abuse Act”). Ironically, it was the Democrats who spear-headed the effort as a way to deflect the criticism that they were “soft on crime.” Other states soon followed with their own mandatory minimum sentences (the numbers are hard to pin down, but anywhere from 38-49 states have some kind of mandatory minimum sentences for drug offenses). The result has been an exploding prison population with non-violent offenders (60% of the state and federal prison population is made up of non-violent offenders) serving longer sentences than many violent offenders.

When non-violent drug offenders are spending more time in prison than rapists and/or murderers, there is a serious problem.

As is often the case with government, good intentions often result in poor policy. Contrary to popular opinion, mandatory minimums are not limited to “hard drugs” such as crack, heroin or cocaine. In addition, it’s difficult for some to drum up sympathy for people who are illegally engaged in the drug trade. Take, for instance, the case of Robert Furlong:

The dealer-friend lent Robert money to purchase a farmhouse in which to grow marijuana. Their partnership was simple – Robert would grow marijuana, and the friend would sell it. A year and a half after Robert started growing marijuana, he was arrested. Officers searched the farmhouse and found 725 marijuana plants along with two legally purchased firearms. Robert says he used the guns for skeet shooting on the farm and maintains that they were never used in connection with his marijuana growing. Officers found additional gun paraphernalia belonging to the dealer friend in a room he used for storage. When officers searched Robert’s home, they found Robert’s third (legally purchased) gun stored in a locked safe that Robert kept for home protection. Officers also found money in Robert’s home and in a safe deposit box. Robert was charged federal offenses of conspiracy to manufacture and distribute marijuana and possession of a firearm in furtherance of a drug crime. His co-conspirator was not charged. Robert admitted to growing marijuana and pled guilty. He was held accountable for growing 560 kilograms of marijuana, the government’s estimate of the total amount of marijuana produced over the 18 month conspiracy.

I don’t think anybody could argue that Mr. Furlong was an “innocent” victim. However, he had no prior record.

Robert faced a mandatory minimum 15 year prison sentence for his offenses – 10 years for the marijuana and five for the gun. Without any discretion, Robert’s judge was forced to give this first time offender the 15 year mandatory sentence. Under the federal sentencing guidelines, Robert would have received 57-71 months in prison.

One may disagree with Neal Dewing and S. R. Mann‘s views on legalizing marijuana. A person may even disagree with the policy of decriminalization. I happen to lean more towards the latter than the former myself. That being said, I am not sure how justice is served, or the public good for that matter, by sentencing two men with no prior record to combined 40 years in prison for drug offenses.

Mandatory minimums for drug offenses have put up a major barrier to one of the most basic foundations we have within our judicial system: judicial discretion.

One definition of “to judge” is:

“To determine or declare after consideration or deliberation.”

With mandatory minimum sentences, judges do not have that ability. They are forced by law to impose sentences with which they may not agree. Have judges abused their discretion? Yes. Our legal system is not perfect. However, the system is not improved by capriciously overturning judges’ authority in forcing them to hand down sentences based on certain guidelines.

The words “I agree with Pat Leahy” will rarely escape my mouth. But I was glad to see his name attached to a bill he co-sponsored with Rand Paul that will begin to address this issue:

The Justice Safety Valve Act of 2013 authorizes federal courts to depart below a statutory mandatory minimum sentence only after finding, among other things, that providing a particular defendant a shorter sentence – say, seven or eight years in prison for a drug offense rather than the 10-year mandatory minimum – will not jeopardize public safety. The bill does not require judges to impose shorter sentences, and for many crimes, the minimum established by Congress will be appropriate. But in cases where the mandatory minimum does not account for the offender’s limited role in a crime or other relevant factors, the judge would be allowed to consider those factors and craft a more appropriate sentence.

The story does not say whether the act would be retroactive — allowing for some already in prison to seek relief — but it’s a start.

And that’s better than nothing.