On Wednesday August 3rd, 2016, President Obama issued a record breaking 214 commutations for federal inmates—the largest single-day grant of commutations in United States history. The majority of the prisoners whose sentences were either reduced or totally pardoned by the President’s sweeping commutation are mostly low-level drug offenders serving federally mandated sentences as a result of the United States’ ongoing War on Drugs. In a statement detailing his reasoning behind the pardons, the President said “The more we understand the human stories behind this problem, the sooner we can start making real changes that keep our streets safe, break the cycle of incarceration in this country, and save taxpayers […] money,”. Mr. Obama’s remarks shed light on perhaps one of the most significant issues that blights American society: a broken criminal justice system in dire need of reform. I would like to preface this piece by reiterating that citizens, who break the law, whether knowingly or absentmindedly, ought to face consequences. However, as held by judicial scholars throughout history and in accordance with principles edified in the 8th Amendment of the U.S. Constitution, a punishment must be proportionate to the offense. Bearing that in mind, in light of their disastrous impact to local communities, exponentially increasing prison populations, and disproportionate cruelty, it’s time to get rid of mandatory minimum sentencing laws.
Since their inception following the passage of the Boggs Act of 1952, mandatory minimum sentencing laws have been used by both federal and state authorities to curtail criminal behavior (particularly drug use and trafficking) by imposing harsh prison terms to dissuade potential offenders from engaging in illicit activity. In recent history, presidents have ratcheted up mandatory sentencing as part of an ongoing campaign to undermine the proliferation of drug trafficking nationwide. Beginning with the Nixon administration, all the way through Clinton and both Bushes, the infamous “War on Drugs” continues to address the United States’ drug epidemic with what most developed nations would consider draconian penalties. But why did mandatory sentencing become a major issue? What did politicians hope to accomplish by imposing harsh sentencing for at times petty offenses, such as low-level possession or distribution of cannabis?
In the minds of Nixon era lawmakers, mandatory minimums represented a form of “big stick” policy that intended to quash crime by effectively raising the stakes for minor offenses. Consider the following scenario: The state legislature of New York adopts a new resolution stipulating that the penalty for jaywalking is death by hanging. Logic would dictate that the average pedestrian would think twice before deciding to dash across the street outside the bounds of the crosswalk—after all, is that extra effort worth risking your life? Of course, the scenario described is intentionally exaggerated, but the point remains the same: higher stakes will reduce the frequency of criminal activity. Lawmakers went forward and applied this logic to mandatory sentencing laws, specifically with regard to drug use, possession, and trafficking. Yet instead of reducing crime, sentencing laws—particularly at the federal level—have kept prisons well stocked with small and mid-level criminals, often grouping them alongside more serious offenders convicted of violent crimes. According to a 2013 report by the American Civil Liberties Union (ACLU), life without parole sentences “quadrupled from 12. 453 in 1992 to 49, 081 in 2012 as a consequence of the Clinton Administration’s push to combat crime and drug abuse” via harsh mandatory sentencing laws. The same report goes on to state that 3, 278 prisoners serving life without parole sentences were for nonviolent drug offenses typically involving low level transactional offenses (i.e. acting as an intermediary in the sale of a controlled substance). Indeed, offenders who break the law ought to face consequences that are proportional to the offense in question. Yet, especially in drug cases, proportional punishing seems to go in reverse. According to one District Court judge writing for the American Bar Association, mandatory minimum sentences “don’t differentiate between the kingpin and the schnook” and have done nothing but pad federal and state correctional facilities with non-violent offenders. Proponents of mandatory guidelines for criminal sentencing continue to misleadingly argue that high stakes and a uniform sentencing regime will reduce future criminal activity and limit arbitrary sentencing. However, as Kevin Ring, former congressional aide and a key architect of federal mandatory minimum laws, states in a testimony to the Senate Judiciary Committee, “many offenders made stupid mistakes without any idea of what the punishment was […] so you can make the severity off the charts […] it’s not going to stop the crime from happening.” And therein lies the key problem that flips the logic of mandatory sentencing on its head: firstly, a criminal willing to break the law is more often than not going to take the gamble in hopes of not getting caught; secondly, if the offender is not aware of the penalty, then the law fails to deter the crime in the first place! That said, when those low-level offenders find themselves serving long, arduous sentences for petty offenses, a new problem emerges that drastically alters the discretion judges have over sentencing, especially in federal cases.
The United States remains the nation with the highest rate of incarceration, with over two million adults behind bars. The Brennan Center for Justice reports that in a study of prison systems in the state of Massachusetts, inmates on average cost $45,000 per prisoner to house, feed, and provide overall services and care. In 2015 alone, Massachusetts spent over $1 billion on prisons and inmate care. As incarceration rates continue to steeply increase, some legislators have called for a total repeal of mandatory sentencing laws that effectively strip a judge of the ability to hand down a fair sentence tailored for a specific offender. As the nonpartisan think tank Massachusetts Institute for a New Commonwealth found, “over 70 percent of prisoners under the jurisdiction of the Department of Correction incarcerated for a drug offense were sentenced under mandatory minimum statutes.” The mass rate of continued incarceration follows as a direct result of the misguided logic that a one-size-fits-all justice system creates equality in prosecution and sentencing. Under this dangerous framework, sentencing power falls principally into the laps of prosecutors who have a vested interest in winning a conviction, as opposed to a judge having ultimate discretion over the appropriate sentence for an individual offender. Perhaps even more frightening, prosecutors have greater ability to use brinksmanship to coerce harsh plea bargains, as an accused individual may take a lesser plea to avoid serving a full sentence mandated by the mandatory sentencing regime. Yet state and federal courts still are bound by even the most draconian of sentencing laws after repeated refusals by the Supreme Court of the United States to invoke the Eighth Amendment and declare arbitrary, one-size-fits-all penalties cruel and unusual punishment. At the end of the day, the justice system in the status quo sacrifices honest and tailored responses to crime in favor of a lazy and misguided system that legal architects, including once staunch advocates such as former President Clinton, have cited as utter failures and contributors to a culture of incarceration and transgenerational crime.
The endgame solution to criminal activity in the United States is by no means a simple task to undertake—one that certainly cannot be solved in a thirteen hundred word editorial. Yet politicians on both sides of the aisle have failed to take concrete action to ameliorate the glaring injustices that accentuate racial and socio-economic divisions by allowing a culture of incarceration and social immobility to persist. Mandatory minimum sentencing is but one head on the hydra that is the mass injustice that plagues the American criminal justice system. In the same vein, disproportionate and cruel retribution fails to attack what undergirds most criminal activity: inaccessible opportunity and weak community cohesion. Harsh sentencing regimes only exacerbate the problem by shifting the power balance in a way that allows for abuse to endure. As the 2016 election looms on the horizon, both presidential and congressional candidates ought to seriously consider the implications of mandatory minimum sentencing laws and work toward a bipartisan solution to curtail crime in a manner that creates a more just and equitable society for all.