Eliminate Mandatory Minimum Sentences for Drug Crimes

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 Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.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.”