Mandatory minimum sentences may, indeed, be tough on certain
individual offenders, but they are, ironically, soft on
crime.
A plethora of evidence-based research over decades has proven that
scarce crime-fighting dollars diverted to mandatory sentencing
practices is one of the least effective ways to lower the crime
rate and reduce recidivism. Therefore, mandatory sentences endanger
the public by soaking up a lion's share of resources rather than
allocating them to methods that are dramatically more successful in
enhancing public safety.
One of the strongest arguments is that, although crime is down
everywhere, the states that have followed the evidence-based
research and repealed mandatory sentencing have seen the most
extraordinary crime drops.
A 2013 Pew study notes that the 10 states with the biggest decline
in imprisonment rates saw a larger decrease in crime than the 10
states with the highest imprisonment rate increases.
This may be why a number of conservative states with previous
reputations for harsh sentencing have moved further than
Massachusetts and reduced or eliminated mandatory sentencing in
favor of evidence-based smart-on-crime legislation. Those states
include Texas, Mississippi, Georgia, North Carolina, South Carolina
and Kentucky.
A case in point is Texas, where, like many states, it had
quadrupled its prison population from 1980 to 2005 and, in fact,
built 38 new prisons under then Gov. George W. Bush while,
simultaneously, seeing its crime rate rise. Since 2005, as a unique
bipartisan right/left alliance in Texas made a concerted effort
against mandatory sentencing, the crime rate has dropped 22
percent, the incarceration rate is down 12 percent, three adult
prisons have closed and Texas has its lowest crime rate since 1968.
In every single category of offense, the Texas crime rate is
improving faster than the U.S. average.
By keeping more offenders out of prison through its elimination of
mandatory sentences, Texas was able to free up money to support
more recidivism-reducing programs inside its prison walls for job
training, education and reentry, and became a model of efficiency
in addiction treatment and mental healthcare.
The following hypothetical question raises the singular best
argument against mandatory minimum sentences, bar none: If a person
in Massachusetts - perhaps a teenager or a welfare mother given $50
to carry a bag weighing more than 200 grams for a drug dealer -
either decides to exercise his or her right to a trial and loses or
is arrested in a county that, as policy, does not break down
mandatory sentences ever, then he or she will be sentenced to a
minimum of a dozen years in prison. The cost of warehousing that
one individual will be close to three quarters of a million
dollars.
So here's the question, what if someone said to you something to
the effect of: "Here is almost three quarters of a million dollars.
Take that money and do something with it to fight the scourge of
illegal drugs in Massachusetts. I'm giving you free rein. So be
creative and put on your thinking cap." Will you take that money
and provide drug education to thousands of people? Or will you
provide drug treatment to many hundreds of people? Will you see
what almost three quarters of a million dollars could do if you
gave it to the police for crime prevention? Or would you say, "I'm
going to take my almost three quarters of a million dollars and use
it to have one foolish teenager or go-along girlfriend sit in a
cell. That is the most effective thing I can think of to fight
drugs that are ruining our communities."
That person who would take that money and fill a single cell would
be wrong, as a well-known 1997 Rand study noted that mandatory
minimum sentences were seven-and-a-half times less effective than
drug treatment. In the ensuing years, virtually every study and all
of the research has backed up that 1997 study.
If there is one truism that we know, it is that we cannot jail our
way out of the drug problem. And it is not as if we have not given
it the very best shot and tried over a very long period of time.
People forget that the War on Drugs was started in earnest 45 years
ago in 1970 by then President Richard Nixon. Until then, the per
capita American prison population had remained the same for the
first 200 years of our history. Once the War on Drugs began, the
American prison population increased 800 percent from the 1970s to
2,266,800 in 2011, fueled primarily by drug incarcerations. In
fact, the number of incarcerated drug offenders has increased a
whopping 12-fold since 1980. After one of the greatest social
engineering experiments in world history, the result is that the
United States has 5 percent of the world's population and 24
percent of the world's inmates. No other civilization in history
has imprisoned so many of its own people. This might be justifiable
if it worked. However, the fact remains that it hasn't made a dent
in the tragedy of illegal drugs in the United States that are today
more available, cheaper, purer and more in use than ever.
Why is it then that, as the decades went by and we doubled and
then tripled and quintupled and then increased 12-fold our inmates
for drug offenses with no discernible impact, we just kept
repeating the same effort and expecting a different result? It has
been as if all the king's horses and all the king's men couldn't
put Humpty together again, so let's keep redoubling the number of
horses and men in perpetuity to no avail.
Part of the problem is what criminologists refer to as the
"replaceability effect." If public officials stand in front of a
just closed-down crack house after a major number of arrests at the
site and point out that, "We're sending a message on what happens
if you try to flood our community with drugs," it really is an
ineffective message, though genuinely heartfelt it may be. That is
because there is, regrettably, so much money to be made that,
within a week, the drug house may have moved two blocks over, but
some other drug dealer will take the arrested dealer's place. The
"replaceability effect" is not similarly operative in all areas of
crime. For example, not to be facetious, but if a sex offender is
arrested, it is not as if there is an opening available for a new
sex offender in the neighborhood.
Equally indefensible has been the peculiar set-up where an
adversarial system exists where one of the involved adversarial
parties is also the final decider. Imagine a boxing match where one
of the two boxers is also the referee. Or imagine an Olympic sports
competition where one of the participating athletes also gets to
hold up the scorecard and determine him or herself the winner. That
system was created by mandatory minimum sentences where the
prosecutor, by determining the charge, determines the sentence.
This system of "prosecutorial adjudication," where we no longer
have the deliberations of an experienced disinterested neutral
magistrate, reduces the judge to a sentencing widget on the
sidelines who is almost always reduced to looking at a graph on a
chart to find out the sentence that has already been picked out by
the prosecutor.
At first glance, it might seem that this one-size-fits-all
sentencing where we sentence the offense rather than tailor the
punishment to the individual offender would result in a uniform
sentence for one and all of those who committed the same crime
regardless of their background and history. But one of the
byproducts of this is that prosecutors are too often giving the
most draconian sentences to the most minor offenders since the more
major impact players are frequently able to reduce their sentences
by providing information. Regardless, there is absolutely no
uniformity of sentencing since there are some counties in
Massachusetts where the mandatory charge is never ever broken down
as a policy; other counties might break it down one only one level
as policy, and, if one chooses to go to trial, all hope of a
breakdown is lost. There is, indeed, an, inarguably, staggering
inconsistency of sentencing.
A collateral issue is that mandatory sentences disproportionately
affect the minority population. Arguments have been heard from both
sides on whether this is purposefully intentional or not, but what
is indisputable is that this reprehensibly inexcusable disparity
exists. The difference is not explained by drug use rates; whites
do not use drugs at lower rates than non-whites. Nationally,
African-Americans are four times as likely to be arrested for
marijuana offenses, even though they have same rates of use as
whites. African-Americans are 13 times more likely to be
incarcerated than whites even though they comprise 13 percent of
regular drug users. In Massachusetts, in 2013, racial and ethnic
minorities comprised 32 percent of all convicted offenders and made
up 75 percent of all those convicted of mandatory drug
offenses.
The bottom line is that those who divert money from the
evidence-based best practices of lowering the crime rate to
ineffective mandatory minimum sentences without doing the research
may be tough on some individuals, but soft on crime. And that
compromises public safety and endangers the lives of the good
law-abiding citizens who play by the rules.
Peter Elikann is a criminal defense attorney and vice chair of the
MBA's Criminal Justice Section Council. He also serves as a member
of the MBA's Executive Management Board.