Attorney General Jeff Sessions rescinded a 2013 memo last month written by his predecessor, Eric Holder. Sessions told prosecutors that not only will they abide by previously set mandatory minimum prison sentences, they would seek the harshest punishments possible.
Critics argue these minimums disproportionately affect minorities and are part of the failed war on drugs.
On this week’s episode of 90.5 WESA’s Criminal Injustice podcast, host David Harris talks to former federal judge Kevin Sharp, who left the bench in Tennessee earlier this year.
Sharp said minimums are pushing experienced judges like himself to step down.
Their conversation has been edited for length and clarity.
DAVID HARRIS: Attorney General Sessions now says that prosecutors should go after "the toughest charge that the evidence will support." What's that going to do with mandatory minimum sentences in our criminal justice system?
KEVIN SHARP: I think what you're going to see is even more of an increase in our prison population of nonviolent drug offenders serving way too much time for the crimes that they've committed.
HARRIS: What sorts of crimes are subject to mandatory minimums? These are offenses that require by law that you issue particular penalties.
SHARP: They are supposed to apply to the worst of the worst, and a blanket sentence is given for the most serious drug offenses -- the leaders of the conspiracies. But the problem is, when you've got a conspiracy, is that everyone gets tagged with the same amount of drugs. And so what you end up with are low-level, nonviolent drug offenders who are subject to mandatory minimums -- anywhere from 10 years to life in prison.
HARRIS: As a judge can you make exceptions for people who have no criminal record or have a very minimal role in the crimes when there's a mandatory minimum that applies?
SHARP: There is a narrow exception; it's called the safety valve. And if someone does not have a criminal history, and they are not leaders in the organization -- there was no violence or gun involved -- then they can be eligible for a safety valve. In my six years on the bench, I saw that maybe half a dozen times where someone was actually eligible for a safety valve sentence.
HARRIS: So it didn't happen very often. Usually, you had to impose the sentences no matter what?
SHARP: Yeah, otherwise unless the prosecutor is asking for a departure from a mandatory sentence because of substantial cooperation, then the judge's hands are tied and you've got to give the mandatory sentence.
HARRIS: Tell us a little about Chris Young. A 23-year-old guy, small role in a big drug conspiracy. He appears in front of you for sentencing.
SHARP: Chris Young took his case to trial and was convicted. Three years later, he stood before me for his sentencing, and we all know that it was a mandatory life sentence. By this time, Chris was 26 years old and was about to spend the rest of his life in prison. He would die behind bars. And that was extremely tough to do when I knew that he was a minor player in all of this.
HARRIS: So how did that leave you feeling personally?
SHARP: I became a messenger. I was just delivering a message that certain people were going to spend the rest of their lives in jail. And I thought, "This is not justice. This is not what our system is about. This is not the way judges are supposed to sentence, fashioning a sentence that's sufficient but not harsher than necessary to fulfill the purposes of punishment." In no way, shape or form did this do this. It was it was an injustice, and I did not like being a part of that.
HARRIS: And yet, you took the judge's oath of office. You really had no choice.
SHARP: Yes, I apply the law as it's written. It's not the judge's job to fashion the law. Congress has done that, and what we do is apply it the best we can. I wanted to be an advocate for change, and being in the judiciary is not the role for that. If I want to advocate change in the law, then I need to be a private citizen. I need to be a lawyer and return to what it was that I loved about being a lawyer.
Criminal Injustice is an independent podcast recorded and produced in partnership with 90.5 WESA. Find more at criminalinjusticepodcast.com.