Mandatory Minimum Sentences: on Their Way Out?

Mandatory Minimum Sentences: on Their Way Out?

This article was originally published at http://the-libertarian.co.uk/

The United States may be approaching a turning point in one of the many failed policies involved in the War on Drugs. Hearings were held in the U.S. Senate Judiciary Committee on September 18th concerning a bill which would significantly reform sentencing in the criminal justice system.

The Justice Safety Valve Act of 2013, or S. 619, was first introduced on March 20th of this year by senators Rand Paul (R-Kentucky) and Patrick Leahy (D-Vermont), and reintroduced in April by Bobby Scott (D-Virginia) and Thomas Massie (R-Kentucky). The bill grants judges discretion to sentence an offender to less than mandatory minimum sentence established by Congress. While many liberal groups such as the Open Society Foundations have long criticized the prison system, there is also more recent conservative support for reforms along these lines, and justifiably so.

This measure comes partly in response to the United States’ enormous prison population. Julie Stewart, head of the nonprofit advocacy organization Families Against Mandatory Minimums (FAMM), has been a vocal supporter of the measure. As she pointed out in an op-ed, co-written with Grover Norquist of Americans for Tax Reform, “the number of [federal prisoners] has increased from approximately 25,000 in FY1980 to nearly 219,000 in FY2012.” This puts federal prisons at 38 percent over their maximum capacity.

There is an oft-cited statistic that the U.S. possesses just 5 percent of the world’s people, but 25 percent of the world’s prisoners. This gives it the highest incarceration rate in the world, nearly five times that of the UK.

The financial cost of this situation is immense and has dramatically increased in recent years. Stewart continues: “Since FY 2000, appropriations for the BOP have increased from just over $3.5 billion to more than $6.5 billion.” One study, surveying 40 U.S. states, estimated the annual expenditure on prisons in those states at about $31,000 per inmate, or $39 billion in total.

Mandatory minimums may be on their way out /  photo credit: csmonitor.com

Mandatory minimums may be on their way out / photo credit: csmonitor.com

This situation is largely due to harsh drug laws. Michelle Alexander points out in her recent book The New Jim Crow that “[d]rug offenses alone account for two thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000.”1 As Attorney General Eric Holder admitted last month, nearly half of all federal prisoners are now serving time for drug offenses.

A list of all mandatory minimums in currently in effect in the U.S. was compiled by FAMM. Not all such laws deal with drug offenses; some of them cover less common crimes such as sex offenses against children. However, many harsh measures were introduced under President Ronald Reagan as part of that administration’s escalation of the War on Drugs. This was a time of great public hysteria around the issue, fed in particular by the sudden death, attributed to cocaine, of famous basketball player Len Bias. The Anti-Drug Abuse Act of 1986, arguably the beginning of the use of mandatory minimums in the War on Drugs, was hurriedly passed in response, without some of the usual legislative procedures. Reagan himself claimed at the time that distributing illegal drugs was morally equivalent to felony murder, and the new sentencing measures reflected this, with mandatory minimums of 10 or 20 years. Many convicted murderers have actually been punished less harshly. As one marijuana dealer serving a sentence of 55 years, triggered by a mandatory minimum sentencing law, points out, “I’ve seen people go to prison for four years for shooting people….I know someone getting out after eight years for cold-blooded killing someone.”

Mandatory minimum sentences have long been strongly criticized, including by judges. The judge sentencing the marijuana dealer mentioned above described the required sentence as “unjust, cruel, and even irrational.” Arthur Benavie points out in his 2007 book on the War on Drugs that Federal District Court Judge J. Lawrence Irving “quit the bench over mandatory minimum drug laws,” commenting, “You’ve got murderers who get out sooner than some kid who did some stupid thing with drugs…These sentences are Draconian.”2 Even Supreme Court Justice Anthony Kennedy criticized the laws at a 2003 meeting of the American Bar Association, declaring the could “accept neither the necessity nor the wisdom” of such laws.3

Yet despite the objections of those actually administering them and their exorbitant expense, there has been little progress in the federal government toward eliminating these laws. The Fair Sentencing Act of 2010 was aimed at the infamous 100-to-1 ratio of mandatory minimums regarding crack cocaine and powder cocaine respectively, first established in the Anti-Drug Abuse Act of 1986. The existence of any disparity at all is a result of unsupported beliefs about crack, the smokable version of the drug, dating back to the 1980s. The U.S. Sentencing Commission has stated that the discrepancy was “based upon a misperception of the dangers of crack cocaine, which had since been proven to have a less drastic effect than previously thought.” The law also eliminated the mandatory minimum sentence for simple possession of crack. Yet this law eliminated neither the other mandatory minimums nor the disparity between crack and powder cocaine. It will now take only 18 times as much powder cocaine as crack to trigger the same mandatory minimum sentences for trafficking, but the sentences involved are still five and 10 years.

One encouraging sign is Attorney General Eric Holder’s recent declaration that the Department of Justice will be pursuing a new policy with regard to mandatory minimums. Holder acknowledged many of the major objections to current policies, including their racially disproportionate impact. Many drug offenders, he says, should no longer be charged with offenses which would saddle them with “draconian” mandatory prison sentences.

There is one more sign of long-overdue reform on the issue. According to a report from the Bureau of Justice Statistics, the overall prison population in the U.S. has actually fallen slightly for the third consecutive year. At the end of, there were 27,770 fewer prisoners in the U.S., a decrease of 1.7 percent. Although the federal prison population continued to increase, this was outweighed by the opposite trend in the states, who have implemented various measures to reduce their inmate populations.

The Justice Safety Valve Act, if passed, would represent significant progress. Whether the act passes, and whether Holder’s words are actually translated into changes in practice remains to be seen. However, considering the recent trend in the prison population, there is now reason for hope.

1. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010), 60.

2. Arthur Benavie, Drugs: America’s Holy War (New York and London: Routledge, 2009), 64.

3. Alexander, 93.