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research and repealed mandatory sentencing have seen the most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.