Congress should learn from staffer’s sentencing

Earlier this month, former Senate Appropriations Committee staffer Fred Pagan was sentenced to prison for buying a steady supply of methamphetamine over the course of many years. Pagan’s crime was serious and clearly the product of addiction. Beside Pagan’s guilt, the one thing everyone in the courtroom at his sentencing appeared to agree on was that ten years in federal prison – the mandatory minimum prison term established by Congress – would have been far too severe a punishment for his crime. 

Pagan’s lawyers argued that his drug addiction and abusive childhood mitigated his culpability. Pointing also to Pagan’s 30 years of exemplary service as a Hill staffer, the lawyers said that a sentence of probation (along with the high profile shaming he had already endured) would be adequate punishment. Judge Beryl Howell, another former Senate staffer, ultimately sentenced Pagan to two-and-a-half years in prison. The prosecution seemed content with the outcome. Justice was served.

{mosads}But, wait. Let’s take a step back. If Pagan’s sentencing was right – and I’ve heard no one complain it was too lenient – what does that say about the mandatory minimum sentence set by Congress? After all, Pagan’s sentence of two-and-a-half years was 75 percent lower than the ten-year statutory minimum that applied to his crime.

Supporters of mandatory minimums likely would argue that these laws worked exactly how they are supposed to. Threatened with the prospect of spending a full decade in prison, Pagan quickly accepted responsibility for his crime, thereby saving the government from having to conduct a trial, and cooperated with law enforcement. Pagan’s decision certainly saved taxpayers from paying for an unnecessary trial and might lead to the apprehension of others in the drug business.

These public benefits, however, say nothing at all about Pagan’s culpability or moral blameworthiness, which are the proper bases of his punishment. Had Pagan chosen for whatever reason to exercise his constitutional right to make the government prove his guilt beyond a reasonable doubt to a jury of his peers, a sentence of ten years would not have suddenly become reasonable. Not even the prosecutors thought society would be safer with the longer sentence – but they would have pursued it but for the fact that Pagan gave up his rights.

Most people would agree that the government should be free to incentivize clearly guilty defendants to forego trials. Yet a 75 percent discount (or penalty, depending on your perspective) seems completely out of whack.

The problem is that federal mandatory minimum sentencing penalties cannot possibly be expected to fit the facts and circumstances of every case in perpetuity. Members of Congress are not clairvoyant. Moreover, mandatory minimums do not even pretend to reflect an offender’s culpability or role in the offense. They are driven by one factor, and in the case of drugs that factor is quantity. And since people are usually charged as members of a conspiracy, they typically are held responsible not just for the quantity of drugs they personally used, sold, or possessed, but also for the quantity of everyone else in the alleged conspiracy. This practice exposes a bit player to the same mandatory sentence as a kingpin. Even worse, the kingpin often can escape the mandatory minimum sentence because he is more likely to have more useful information to share with prosecutors – and can therefore secure a better deal at sentencing.

The absurd but predictable result? The U.S. Sentencing Commission has found that street-level dealers and mules get sentenced to mandatory minimums more often than kingpins.

The Pagan case demonstrates how justice can be served better without federal mandatory minimums. Because prosecutors did not allege or prove a specific drug quantity in Pagan’s case, he was spared from what everyone, including the prosecutors, agreed would have been an absurdly long sentence. The judge, informed by both sides of all the relevant factors in the case, and aware of what punishments similar offenders in similar cases have received, imposed a sentence that was within the federal sentencing guidelines.

Had Judge Howell ignored the guidelines completely and given Pagan a probation-only sentence without providing a reasonable justification for such leniency, prosecutors would have been free to appeal her decision. They likely would have prevailed, too, since the Justice Department wins its sentencing appeals 65 percent of the time, a fact rarely mentioned in sentencing reform debates.

This is how America’s justice system should work. A society like ours that believes so deeply in personal responsibility should punish individuals as individuals. Pagan broke the law and deserved to be held accountable for his crime. As he alone was responsible for the actions that led to his prison sentence, it was only right that all of the relevant facts and circumstances of his crime and life were used to inform the sentence he was given. Congress should eliminate mandatory minimums so that all Americans can be punished the same way.

Ring is vice president of Families Against Mandatory Minimums (FAMM).