Policymakers developed the mandatory minimum sentencing statutes during an era of skyrocketing violent crime and crack cocaine use. These policies represented the dominant belief that longer, more severe sentences would “maximize the deterrent, retributive, and incapacitative goals of incarceration” (Subramanian, Ram and Delaney R, 2014). Through stiff mandatory sentencing, Congress believed people would shun illegal drug activity.
However, many experts have claimed that these mandatory drug sentences have failed and accomplished nothing but a bludgeoning prison population. In fact, studies show that “the number of drug offenders in federal prisons has increased 21 times since 1980” (Congress Must Pass Sentencing Reform Bills, 2014). Specifically, the number of federal prisoners has “grown from 25, 000 inmates in 1980 to 219, 000 today,” according to a new Congressional Research Report. That is a jump of almost 790 percent. (McCormack, S. 2013). Every year, taxpayers dish out $51 billion to incarcerate people. Meanwhile, 2.2 million people are in prison — or a quarter of the world’s prisoners (The Nation’s Shame: The Injustice of Mandatory Minimums, 2014).
Mandatory penalties—such as mandatory minimum sentences, automatic sentence enhancements, or habitual offender laws—require sentencing courts to impose fixed terms of incarceration for certain federal or state crimes or when certain statutory criteria are satisfied. (Subramanian, Ram and Delaney R, 2014). Most of these mandatory sentencing laws deal with drug offenses. Punishments are intended to be proportional to the crime, so state and federal sentencing guidelines suggest a range of sentences appropriate for various types of crimes. When the crime is subject to a mandatory minimum sentencing law, however, the judge has much less discretion in setting the punishment. If the defendant pleads guilty or a jury finds him guilty, the judge will sentence the defendant to at least the minimum sentence set by law. The judge is not permitted to impose a shorter sentence, even if there are facts that would normally provide a reason for leniency. The judge must ignore those factors.
Mandatory penalties have not always been a central feature of the U.S. criminal justice system (Subramanian, Ram and Delaney R, 2014). Until the 1980s, sentencing in the United States was largely characterized by flexible sentencing. Judges had greater discretion in giving sentences on a case by case basis. Consequently, demands grew for more uniformity and transparency in punishment. Violent crime rates rose through the 1970s and 1980s, which “led to increasing skepticism of the rehabilitative approach and calls for harsher sentences” (id at 6).
The first sentencing laws that Congress enacted was the Boggs Act of 1951. It strengthened the enforcement of the Marijuana Tax Act of 1937 and the Narcotic Drug Import and Export Act of 1922 by enforcing harsh penalties on individuals convicted of drug law violations. Under the Boggs Act, simple possession of cocaine, heroin or cannabis carried a mandatory minimum of two-years with a maximum five-year prison term (New York Criminal Attorney Blog, n.d.). A second offense carried a mandatory minimum of five years with a maximum of ten years (id). A third offense carried a mandatory minimum of ten years with a maximum of fifteen years in prison (id).
Congress repealed the Boggs Act in 1970 with the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (CDAPCA). The CDAPCA repealed all mandatory penalties for drug violations because mandatory minimums had not shown the expected reduction in drug law violations (Special Report to the Congress, 1991). Sponsors of the CDAPCA were especially concern with how mandatory minimums “alienated the youth from the general society” (id).
Ironically, as Congress repealed these mandatory penalties in the 1970s, the nation experienced a sharp rise in violence and drugs. Moreover, a deeply conservative Ronald Reagan was elected president. He was a law and order president.
In response to these changing attitudes and the election of Reagan, Congress reverted to mandatory minimum penalties with the enactment of the Sentencing Reform Act (SRA). The SRA was part of the Comprehensive Crime Control Act; whose purpose was to address the problem of crime in society (Special Report to the Congress, 1991). The goals of the SRA were to “reduce unwarranted disparity, increase certainty and uniformity, and correct past patterns of undue leniency for certain categories of serious offenses” (id).
To achieve these goals, Congress created the United States Sentencing Commission (Sentencing Commission) in 1987. The Sentencing Commission is an independent agency in the judicial branch, which consists of seven appointed bipartisan judges and non-judges that the Senate must confirm (Special Report to the Congress, 1991). Congress’ mandate to the Sentencing Commission was to determine the appropriate types and length of sentences of several thousand federal offenses (id).
The Sentencing Commission submitted its first set of guidelines to Congress in April 1987. Congress enacted the guidelines in November 1987, which required judges to impose mandatory minimum sentences for drug and weapons offenses. There are over 60 criminal statutes that contain mandatory minimum penalties applicable to federal offenses in the federal criminal code today. These mandatory minimums have had their greatest impact on drug offenders, “ninety-one percent of the defendants sentenced under statutes with mandatory minimum provisions during a recent six-year period were convicted of drug offenses” (Vincent, B., & Hofer, P 1994).
Mandatory minimums have been under fire recently. Some states, including states led by Republican governors and legislatures, have begun to reform these statutes. Specifically, since 2000, at least 29 states have begun to decrease mandatory minimums (Malcolm, J., 2014). These states are motivated by research that mandatory minimums have drained the economy, and certain offenders can be rehabilitated instead of housed in prison.
Meanwhile, the Federal criminal justice system has moved to amend these archaic statutes as well. In 2014, Congress moved to pass the Smarter Sentencing Act, which would reduce the mandatory minimums. Family’s Against Mandatory Minimums (FAMM) argues that this bill would “reduce prison costs and populations by creating fairer, less costly minimum terms for nonviolent drug offenders.” If Congress enacts the law, it will reduce certain twenty years, ten years, and five-year mandatory minimum drug sentences to ten, five, and two years, respectively. Additionally, the bill reduces the mandatory minimum life without parole sentence for a third drug offense to a minimum term of 25 years (in the Senate bill) or 20 years. (S. 502 / H.R. 920). FAMM argues that this will save billions of dollars and reduce dangerous overcrowding in federal prisons.
Another important bipartisan bill that Senators Paul Rand (R-Ky.) and Patrick Leahy (D- Vt.), cosponsored is the Justice Safety Valve Act. It would give judges some of the discretion that mandatory minimum took from them. It allows judges to sentence defendants below a mandatory minimum based on certain factors including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed to reflect the seriousness of the offense.
Racial Disparity Under Mandatory Minimum Statutes
The War on Drugs caused soaring arrest rates which deliberately and disproportionately targeted African Americans, especially young African American males. According to the ACLU, African Americans are four to five times more likely to be convicted for drug possession, even though whites use drugs at a higher rate. One of every nine African American men under the age of 35 is incarcerated, and one in three can expect to be imprisoned at some point in his life. These rates are far higher than for any other demographic.
A recent study detailed in a Yale Law Journal article entitled Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker points to mandatory minimums as a root cause for racial disparities in sentencing. It found that “prosecutors file mandatory minimums twice as often against black men than against comparable white men.”
One of the most comprehensive studies was done by the New York State Division of Criminal Justice services. It concluded that “one-third of minorities sentenced to prison would have received a shorter or nonincarcerative sentence if they had been treated like similarly situated white defendants.” According to a Justice Department review of state sentencing, whites who serve time for felony drug offenses serve shorter prison terms than their black counterparts: An average of 27 months for whites, and 46 months for blacks. This disparity is unacceptable.
The real problem with mandatory sentencing laws is that they give the government unreviewable discretion to target particular defendants, especially African Americans, for harsh punishments, while taking away the ability of judges to check prosecutorial authority. It’s time to swing the pendulum away from excessive punishments, racial disparity in sentencing, and the ballooning prison industrial complex.
Congress Must Pass Sentencing Reform Bills. (2014, July 23). Retrieved June 30, 2015, from http://www.washingtonpost.com/opinions/congress-should-reform-the-mandatory-minimum- sentences-for-drug-offenses/2014/07/23/df845d68-1125-11e4-9285-4243a40ddc97_story.html
Malcolm, J. (2014, July 28). The Case For the Smarter Sentencing Act. Retrieved July 1, 2015, from http://www.heritage.org/research/commentary/2014/7/the-case-for-the-smarter-sentencing- act
McCormack, S. (2013, February 13). Federal Prison Population Soars By 790 Percent Since 1980: Report. Retrieved June 30, 2015, from http://www.huffingtonpost.com/2013/02/07/federal-prison-population_n_2638844.html
New York Criminal Attorney Blog. (n.d.). Retrieved July 1, 2015, from http://www.newyorkcriminalattorneyblog.com/2009/01/a_brief_history_of_federal_man.html
Special Report to the Congress | United States Sentencing Commission. (1991, August 1). Retrieved July 1, 2015, from http://www.ussc.gov/news/congressional-testimony-and- reports/mandatory-minimum-penalties/special-report-congress
Subramanian, Ram and Delaney R. (2014). Federal Sentencing Reporter Vol. 26, No. 3, Critical Issues in the Use of Risk Assessments, Prior Record Enhancements, and Probation/Parole Revocation (February 2014)
The Nation’s Shame: The Injustice of Mandatory Minimums. (2014, October 7). Retrieved June 30, 2015, from http://www.rollingstone.com/politics/news/the-nations-shame-the-injustice-of- mandatory-minimums-20141007
Vincent, B., & Hofer, P. (1994). The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings. Retrieved July 1, 2015, from http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/$file/conmanmin.pdf
Written by Chloe Corbett, J.D. candidate