Eliminate Mandatory Minimum Sentences for Drug Crimes
As drug-related violence escalated in the 1970s and ‘80s, lawmakers in Washington and state capitols reached for a popular weapon of choice: mandatory minimum sentences. Conceptually simple and logically powerful, mandatory minimums seemed to guarantee that drug dealers would be locked up for lengthy prison terms and the nation could build its way to safety through deterrence, incapacitation, and retribution. Yet in the half century since the war on drugs began in earnest, prisons have filled not just with major traffickers but also with thousands of lower-level players in the drug distribution chain, a disproportionate number of whom are minorities. The federal prison population mushroomed from roughly 24,000 in 1980 to nearly 220,000 at its peak in 2013, and half of those incarcerated were drug violators. While the crack cocaine epidemic receded, methamphetamine and then opioids rushed in behind. Ensuing research found that long prison sentences—mandatory or otherwise—had little influence on levels of supply and demand or the resulting price and purity of drugs available on the street. Through the years, critics of drug mandatory minimums have made multiple efforts to mitigate their impact and scale them back. Most notably, the “safety valve” provision in the 1994 federal Crime Bill and the Fair Sentencing Act of 2010 reduced the disparity in sentences for crack and powder cocaine, from a ratio of 100-to-1 to 18-to-1. The FIRST STEP Act of 2018 expanded the safety valve. Approved with broad bipartisan support, it made an estimated 2,000 additional people each year eligible for exemption from mandatory sentences and reduced the length of some drug sentences by five years. The Task Force believes the time has come to eliminate federal mandatory minimum sentences for all drug offenses. Even with past modifications, the number of drug-law violators incarcerated, the excessive lengths of many of their sentences, and the racial and ethnic disparities surrounding drug imprisonment are too significant to ignore. Recent experience further indicates that mandatory minimums are not essential—as had been claimed—to secure guilty pleas or the cooperation of defendants in criminal investigations. Even without the hammer of mandatory penalties, prosecutors have the statutory tools necessary to lock up major dealers for long periods when warranted. As a nation, we know much more today than we did decades ago about effective responses to substance use disorders and the illicit drug trade. With proper guidance based on evidence and research, courts can fairly tailor sentences to individual cases. Removing mandatory minimum penalties for drug offenses—and further examining their effects on other types of cases—is an essential course correction in our pursuit of justice and public safety.
Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study.
- Congress should eliminate mandatory minimum sentences for all federal drug offenses.
- Congress should direct the U.S. Sentencing Commission to conduct an analysis of all non-drug mandatory minimum sentencing statutes. That analysis should include a review of: a. the public safety impact of these laws compared with non-mandatory minimum sentencing laws; b. the public safety and financial impacts of lengthy periods of incarceration compared with shorter periods of incarceration combined with supervision and treatment in the community; c. the budgetary impact of these laws compared with non-mandatory minimum sentencing laws; and d. the social costs and benefits of mandatory minimum sentencing statutes, including their racial and ethnic impact.
- The Commission review should also include specific recommendations for the elimination of non-drug mandatory minimum sentencing statutes that are unnecessary, ineffective, or contrary to public policy.
- Congress should then eliminate all mandatory minimum sentencing statutes identified as unnecessary by the Commission.
- Pending completion of the review, Congress should not enact any new mandatory minimum sentencing statutes.
Luna, Erik. “Mandatory Minimums.” Reforming Criminal Justice: Punishment, Incarceration, and Release, vol. 4, 2017, pp. 117-133. https://law.asu.edu/sites/default/files/pdf/academy_for_justice/7_Criminal_Justice_Reform_Vol_4_Mandatory-Minimums.pdf “… consequentialist theories are forward-looking in their focus on the future consequences of punishment. The primary consequentialist theory—utilitarianism—imposes criminal penalties only to the extent that social benefits outweigh the costs of punishment. In particular, the imposition of criminal sanctions might: discourage the offender from committing future crimes (specific deterrence); dissuade others from committing future crimes (general deterrence); or disable the particular offender from committing future crimes (incapacitation). According to their advocates, mandatory minimums both deter and incapacitate offenders. With respect to deterrence, mandatory minimum sentences are sometimes justified as sending an unmistakable message to criminals. Some offenses require certain minimum punishments, advocates claim. They argue that because of the wide diversity of views on the appropriate level of punishment for offenders, legislators—not judges—are in the best position to make sentencing determinations. The certain, predictable, and harsh sentences forewarn offenders of the consequences of their behavior upon apprehension and conviction. Proponents contend that mandatory minimums also incapacitate the most incorrigible criminals and thereby prevent them from committing crime. None of these claims receives robust empirical support, however, as most researchers have rejected crime-control arguments for mandatory sentencing laws. There is little evidence that lengthy prison terms serve specific deterrence. Rather, imprisonment either has no effect on an inmate’s future offending or perhaps even increases recidivism. … “As for general deterrence, research has largely failed to show that mandatory minimums decrease the commission of crime, and some studies suggest that such punishment schemes may even generate more serious crime. Regardless, any deterrence-based reduction in crime is far outweighed by the increased costs of incarceration from long mandatory sentences. … “Mandatory minimum sentences are also unlikely to reduce crime by incapacitation, at least given the overbreadth of such laws and their failure to focus on those most likely to recidivate. Among other things, offenders typically age out of the criminal lifestyle, usually in their 30s, meaning that long mandatory sentences may require the continued incarceration of individuals who would not be engaged in crime. In such cases, the extra years of imprisonment will not incapacitate otherwise active criminals and thus will not result in reduced crime. … Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants. With drug organizations, for instance, an arrested dealer or courier may be quickly replaced by another, eliminating any crime-reduction benefit. More generally, any incapacitation-based effect from mandatory minimums was likely achieved years ago, due to the diminishing marginal returns of locking more people up in an age of mass incarceration. Based on the foregoing arguments and others, most scholars have rejected crime-control arguments for mandatory sentencing laws. By virtually all measures, there is no reason to believe that mandatory minimums have any meaningful impact on crime rates.”
National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences. The National Academies Press, 2014. https://doi.org/10.17226/18613 “The conclusion that increasing already long sentences has no material deterrent effect also has implications for mandatory minimum sentencing. Mandatory minimum sentence statutes have two distinct properties. One is that they typically increase already long sentences, which we have concluded is not an effective deterrent. Second, by mandating incarceration, they also increase the certainty of imprisonment given conviction. Because, as discussed earlier, the certainty of conviction even following commission of a felony is typically small, the effect of mandatory minimum sentencing on certainty of punishment is greatly diminished. Furthermore, as discussed at length by Nagin (2013a, 2013b), all of the evidence on the deterrent effect of certainty of punishment pertains to the deterrent effect of the certainty of apprehension, not to the certainty of postarrest outcomes (including certainty of imprisonment given conviction). Thus, there is no evidence one way or the other on the deterrent effect of the second distinguishing characteristic of mandatory minimum sentencing (Nagin, 2013a, 2013b).”
Tonry, Michael. “Fifty Years of American Sentencing Reform — Nine Lessons.” 7 Dec. 2018, Crime and Justice—A Review of Research. Forthcoming. Available at SSRN: https://ssrn.com/abstract=3297777 “Mandatory Sentences. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. “Mandatory sentencing laws are a fundamentally bad idea. From eighteenth century England, when pickpockets worked the crowds at hangings of pickpockets and juries refused to convict people of offenses subject to severe punishments, to twenty-first century America, the evidence has been clear. Mandatory minimum sentences have few if any discernible deterrent effects and, because of their rigidity, result in unjustly harsh punishments in many cases and willful circumvention by prosecutors, judges, and juries in others. In our time, when plea bargaining is ubiquitous, mandatories are routinely used to coerce guilty pleas, sometimes from innocent people (Johnson 2019). “In the 1950s, the American Bar Foundation undertook the most extensive research ever conducted on day-to-day operations of American criminal courts. They learned that prosecutors applied mandatories selectively and that judges and juries refused to convict when penalties seemed too severe. Frank Remington, who directed the project, observed in 1969, ‘Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue ... thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge.’ A large number of sophisticated case processing studies in the 1970s, 1980s, and 1990s reached the same conclusion. ‘’The evidence on deterrent effects is equally damning. Countless authoritative surveys, in many countries, have concluded that mandatories’ deterrent effects are modest at best. National Academy of Sciences reports in 1978 and 2014 serve as contemporary bookends. The 1978 Panel on Research on Deterrent and Incapacitative Effects concluded, ‘In summary...we cannot assert that the evidence warrants an affirmative conclusion regarding deterrence’ (Blumstein, Cohen, and Nagin 1978, p. 7). The 2014 Committee on the Causes and Consequences of High Rates of Incarceration similarly observed: ‘Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects … Existing knowledge is too fragmentary [and] estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making. (Travis, Western, and Redburn 2014, p. 83)’ “Contemporary research thus confirms longstanding cautions against enactment of mandatory sentencing laws. Their use to coerce guilty pleas is new and distinctive to our times. Even innocent defendants are sorely tempted to plead guilty and accept probation or a short prison term rather than risk a mandatory 10- or 20-year sentence. The late Harvard Law School professor William Stuntz observed that ‘outside the plea-bargaining process’ prosecutors’ threats to file charges subject to mandatories ‘would be deemed extortionate’ (2011, p. 260). Federal Court of Appeals judge Gerald Lynch similarly observed that prosecutors’ power to threaten mandatories has enabled them to displace judges from their traditional role: It is ‘the prosecutor who decides what sentence the defendant should be given in exchange for his plea’ (2003, p. 1404). American sentencing has become more severe in recent decades; prosecutors bear much of the responsibility (Johnson 2019). “This is a uniquely American problem. Nothing similar occurs in any other developed country. It has two causes. One is that American prosecutors are elected or appointed by elected politicians; elsewhere they are nonpartisan career civil servants. The second is that, under US constitutional law, prosecutors’ day-to-day decisions are almost never subject to judicial review. American prosecutors have the same interests and motives, however, as other elected politicians to curry favor with the electorate and the media. In recent ‘tough on crime’ decades, prosecutors have favored severe punishments. “This is not how things are supposed to work. Until mandatory sentencing laws proliferated, prosecutors filed charges and presented evidence, judges with or without juries decided whether the evidence justified a conviction, and judges imposed sentences. This division of labor made sense, and remains the norm in other Western countries. … “Every authoritative law reform organization that has examined American sentencing in the last 50 years has proposed elimination of mandatory minimum sentence laws. These included, in earlier times, the 1967 President’s Commission on Law Enforcement and Administration of Justice, the 1971 National Commission on Reform of Federal Laws, the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the 1979 Model Sentencing and Corrections Act proposed by the Uniform Law Commissioners, and the American Bar Association’s 1994 Sentencing Standards. The American Law Institute’s Model Penal Code—Sentencing offered the same recommendation in 2017 (Reitz and Klingele 2019).”
United States Sentencing Commission. Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. August 1991. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf “Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.”
Caulkins, Jonathan. “Are Mandatory Minimum Drug Sentences Cost-Effective?” Rand Corporation. 1997, https://www.rand.org/pubs/research_briefs/RB6003.html “Mandatory minimum sentences for cocaine consumption or drug-related crime are not justifiable on the basis of cost-effectiveness. Mandatory minimums reduce cocaine consumption less for every million taxpayer dollars spent than allocation of the same amount on enforcement under the previous sentencing regime. Both enforcement approaches reduce drug consumption less, for every million dollars spent, than putting heavy users through treatment programs. Mandatory minimums are also less cost-effective than either alternative at reducing cocaine-related crime, primarily because of the high cost of incarceration.”
Starr, Sonja, and M. Marit Rehavi. “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker.” Yale Law Journal, vol. 123, no. 1, October 2013. https://www.yalelawjournal.org/article/mandatory-sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-booker Considerable empirical research has shown that racial disparities in sentencing are pervasive: “one of every nine black men between the ages of twenty and thirty-four is behind bars.” In United States v. Booker, the U.S. Supreme Court rendered the mandatory guidelines merely advisory. This study, looking not just at judicial opinions but also at plea agreements, charging decisions, and other factors contributing to sentencing, shows that this racial disparity has actually not increased since more judicial discretion was permitted. Instead, the black-white gap in sentencing “appears to stem largely from prosecutors’ charging choices, especially to charge defendants with ‘mandatory minimum’ offenses.” Removing these minimums as advisory guidelines would help shift toward greater racial equalization in the sentencing arena.
The Pew Charitable Trusts. “Federal Drug Sentencing Laws Bring High Cost, Low Return.” August 2015. https://www.pewtrusts.org/-/media/assets/2015/08/federal_drug_sentencing_laws_bring_high_cost_low_return.pdf “Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.” Distribution of federal drug cases:
The Pew Charitable Trusts. “More Imprisonment Does Not Reduce State Drug Problems.” March 2018. https://www.pewtrusts.org/-/media/assets/2018/03/pspp_more_imprisonment_does_not_reduce_state_drug_problems.pdf “The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests. The findings … reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.”