By Patrick Hannaford and Sarah Larson
EspañolWith 5 percent of the world’s population, the United States has 25 percent of the world’s prisoners. There is no statistic that better represents the severity the US criminal justice system. Yet, even with nearly one in 100 US adults in prison, the United States is no safer than it was in 1973, when the prison population was a mere 200,000.
A significant proportion of this increase is due to the introduction of mandatory-minimum sentences. Mandatory minimums strip judges of their discretion and take a “tough on crime” approach that is ineffective, expensive, and unjust. It is time for them to be abolished for non-violent crimes.
Throughout history, the Anglo-American common law tradition provided judges with discretion over sentencing. The individual circumstances of cases were taken into account, and the punishments were designed to fit the crime.
This began to change in the 1960s, when growing community concern about sentencing disparities fueled calls for a more standardized system. By the mid 1980s, a concerted effort by lawmakers had culminated in the Sentencing Reform Act of 1984.
Combined with several other measures, this act created a legal sentencing regime that attempted to resolve the supposed “problem” of judicial autonomy. Over time, the number of crimes subject to mandatory-minimum sentencing skyrocketed. The result has been a neutering of the judiciary and an explosion in unnecessary imprisonment.
Today, the United States incarcerates 2.3 million people. That is more than any other country on both a total and per-capita basis. Of the federal inmates, 40 percent have violated a statute that requires a mandatory-minimum sentence longer than 10 years.
Among the crimes specifically targeted in the 1980 were drug offenses, with the Armed Career Criminal Act and the Anti-Drug Abuse Act requiring mandatory sentences for crimes, regardless of the circumstances. This has lead to the conviction of many individuals who pose little or no threat to society. They are victims of the drug war, convicted of nonviolent crimes and put behind bars because of mandatory minimums.
The perverse effect that mandatory-minimum sentences have on the justice system can be seen in the arbitrary points at which mandatory minimums take effect. In the case of cocaine possession, for example, someone caught with 4.9 grams receives a relatively short sentence. However, if caught with 5.0 grams, the defendant is sentenced to half a decade in federal prison. These arbitrary standards, coupled with the fact that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas, render the expertise of the judiciary worthless.
In its place, aggressive prosecutors act with the discretion that the laws were designed to stamp out. The only role left for judges is to rubber-stamp the sentence.
One egregious example of a judge having no choice but to implement a mandatory-minimum sentence was in the case of Weldon Angelos. Forced to sentence the father of three to 55 years in prison for the distribution of marijuana, Judge Paul Cassell described the sentence as “unjust, cruel and even irrational.”
The social and economic costs of mandatory minimums extend beyond the courtroom. The financial cost of imprisoning someone amounted to US$30,000 per year in 2010. When coupled with the loss of economic productivity that a person might otherwise generate, it seems impossible to make the case that the benefit of mandatory minimums exceeds the costs. Yet, this is far from the most serious harm.
Even after having served their sentences, felons have significantly reduced job prospects and are excluded from many welfare benefits, public housing, and the ability to vote. As a result, three quarters of felons are rearrested within five years of their release.
Then the harm extends beyond the felon. In 2000, there were an estimated 2.1 million US children with incarcerated fathers. The long term effect this has on the nation’s social fabric is difficult to measure, but it is unlikely to be positive.
These policies are particularly harmful to minority communities. Despite being no more likely to use drugs than white men, young black men are far more likely to be imprisoned for drug use. This is in large part because of mandatory-minimum sentences. They have helped create an incarceration rate for US blacks which Michelle Alexander, bestselling author of The New Jim Crow, has described as “exceed[ing] that of South Africa under Apartheid.”
The momentum to eliminating mandatory-minimum sentencing is beginning to emerge. Senators Rand Paul (R-KY) and Cory Booker (D-NJ) recently announced plans to introduce bipartisan legislation that would reform mandatory minimums for non-violent drug offenders, and a recent poll found that 46 percent of US Americans oppose mandatory minimums (with 42 percent supporting them for some crimes).
The United States is ready to restore sentencing power to judges. Once mandatory minimums are eliminated, the US legal system will be one step closer to regaining its status as one that protects “liberty and justice for all.”