Mandatory minimum sentences endanger public safety

Issue September/October 2017 By Peter Elikann

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 proved 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 allocate 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arguments is that, although crime is down everywhere, the states that have followed the evidence-based research and repealed mandatory sentencing have seen the most extraordinary crime drops.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, including 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 Governor 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 dropped 22 percent, the incarceration rate is down 12 percent, three adult prisons were 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 for 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 their right to a trial and loses, or is arrested in a county that, as policy, does not break down mandatory sentences ever, then they 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 - be creative." 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 the drug scourge that's 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 the research has supported 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, which are today more available, cheaper, purer and more in-duse than ever.

Why is it then, that, as the decades went by and we doubled, tripled, quintupled, and increased 12-fold our inmates for drug offenses that had no discernible impact, we 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 they're "sending a message on what happens if you try to flood our community with drugs," it really is an ineffective message (genuine though it may be). That's  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 recently-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 an Olympic sports competition where one of the participating athletes also gets to hold up the scorecard and determine their score. 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 high-profile offenders 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 on only one level as policy, and, if one chooses to go to trial, all hope of such a  breakdown is lost. There is inarguably a 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 usage 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 both 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.