Mandatory Minimums within Society
Throughout society a seemingly inconspicuous policy pervades our culture drawing lines between social classes. The policy in reference is the issue of mandatory sentencing and to be more specific, mandatory minimums. There are those that argue that mandatory sentencing lessens crime and allows for a uniform sentencing process throughout cases. Another argument is that repeat criminals should know better and will avoid crime with the knowledge of what punishment they will certainly receive if caught. To go against these advocates, others state that the policy is unfair and targets certain groups. On top of these points, they argue that the laws designed to counter drug overlords and other major “players” were trapping minor offenders and imprisoning those only minutely involved for disproportionate sentences. With these arguments for each side proposed, I will approach the question of how do mandatory sentences affect society’s class and composition?
A mandatory sentence is a sentence in which a judge’s judicial discretion is limited by law. That being said, mandatory sentencing is not uncommon throughout laws. Mandatory minimums however are less pervasive and call for a minimum term to be served for a particular offense. There have been mandatory minimums throughout the United States history and have usually pertained to drugs and weapons. The better-known cases of people sentenced to mandatory minimums are Morton Berger, Genarlow Wilson, and Chantal McCorkle. Morton Berger was sentenced to 200 years for downloading child pornography, Genarlow Wilson was a promising football player when he was sentenced to ten years for being a seventeen year-old who had consensual oral sex with a fifteen year-old, and Chantal McCorkle was sentenced to twenty-four years for fraud which was later reduced to eighteen years (Free Genarlow Wilson, New York Times 12/21/06). These sentences are often exacerbated and drawn out for the offenses committed as exemplified by Wilson receiving a heavier sentence for engaging in oral sex rather than sex.
To understand what something is, one must understand where it comes from first. The first mandatory minimums in the United States were part of the Boggs Act, passed during the McCarthy era in 1951. An increase in narcotics use among the younger crowd and lenient judges were blamed (Eric Schlosser, 2003: 44). These laws would later be looked upon as flops by both political parties but served as precursors to the war on drugs because of where they originated; politicians wanted to appear tough on drug offenders to gain public support. Throughout the 1970’s the laws would be repealed giving judges more freedom but keeping a set of guidelines to be followed. This balance would prove to be short lived.
In 1984, the Sentencing Reform Act was passed with the intention to “reduce unwarranted disparity, increase certainty and uniformity, and correct past patterns of undue leniency for certain categories of serious offenses.” Congress enacted a number of statutes imposing mandatory minimum sentences, largely for drug and weapons offenses, and for recidivist offenders. The Sentencing Commission drafted the new guidelines to accommodate these mandatory minimum provisions by anchoring the guidelines to them (MANMIN Penalties 12/2/07). This act did not go through with unanimous approval with judges in particular expressing a dislike for the limitation of their judicial power. They also felt that it was an insult to their competence and that the subjectivity of the court was its greatest asset.
The removal of power created a rift throughout the federal legal system. Scores of senior federal judges refused and continue to refuse to hear low-level drug cases that contain mandatory minimum laws. Jack B. Weinstein of New York’s Eastern District explained, “I need a rest from the oppressive sense of futility that these drug cases leave… I simply cannot sentence another impoverished person who destruction has no discernible effect on the drug trade.” (Eric Schlosser, 2003: 57). It is not hard to imagine why judges are upset at losing their power of judiciary discretion but even prosecutors disagree with the laws and will try to circumvent the system to charge offenders with lesser laws more conducive to their actions.
Harvard conducted a study of the Massachusetts prison population published in 1997 that found that half of the offenders sentenced to mandatory-minimum terms for drug related offenses had no record of violent crime. The study concluded that jailing nonviolent drug offenders does not cure drug addiction. The laws were in fact, "wasting prison resources on nonviolent, low-level offenders and reducing resources available to lock up violent offenders" (MacKinnon, 1998). This is not the only case of resources being wasted that is pertinent to mandatory minimums. In 1967 the Federal bureau had only 300 agents as opposed to the current DEA with 4,600 agents. The 1980’s saw a rise to incarcerate drug offenders from $88 million to $1.3 billion. The number of drug offenders in prison in 1970 was 3,384 compared now to 68,000 in prison (Justice.gc 12/1/07). On top of that, according to the Bureau of Prisons, 70% of the prison growth related to sentencing since 1985 is attributed to increases in drug sentence length. “Drug law offenders alone are consuming three times more resources than all other federal crimes combined . . . unless Congress and the Sentencing Commission change drug sentences, relief will be nowhere in sight. The prison population could reach 110,000 by 1997, two and-a-half times what it was in 1987, at a yearly operating cost of well over $2 billion.” (Simon, 1993: 21)
These numbers confirm that mandatory minimums are not just a social injustice, but a fiscal mistake as well. It would be one thing if the policies were helping against drug trade, but they target the wrong crowd and in turn do not achieve the means they were made for. Judge Frank H. Easterbrook sums the negative aspects up very coherently,
“Mandatory minimum penalties, combined with a power to grant exceptions, create a prospect of inverted sentencing. The more serious the defendant’s crimes, the lower the sentence—because the greater his wrongs, the more information and assistance he has to offer to a prosecutor. Discounts for the top dogs have the virtue of necessity, because what makes the post-discount sentencing structure topsy-turvy is the mandatory minimum, binding only for the hangers on. What is to be said for such terms, which can visit draconian penalties on the small fry without increasing prosecutors’ ability to wring information from their bosses? Our case illustrates a sentencing inversion. Such an outcome is neither illegal nor unconstitutional, because offenders have no right to be sentenced in proportion to their wrongs… Still, meting out the harshest penalties to those least culpable is troubling because it accords with no one’s theory of appropriate punishments.” (FJC.gov, 12/3/07)
As with any issue, there are two sides to this policy and it was not passed without rational thought and effort. There are six commonly referenced rationales for mandatory minimum sentencing provisions. They include retribution, deterrence, incapacitation, disparity, inducement of cooperation, and inducement of pleas. While for the most part they each address a different strength of the policy, they all revolve around the homogenous approach that it has for every case.
Retribution or the "just desserts" is the most commonly voiced goal of mandatory minimum penalties and talks of the "justness" of long prison terms for particularly serious offenses. Longer sentences are deserved and that without mandatory penalties, judges would impose sentences more lenient than would be appropriate. The problem with this however is that it does not address rehabilitation, but simply punishment. It does not take into account the type of person involved and therefore does not take into account the future actions of that person. (Kelly: 2001, 73)
Another perspective is that of deterrence. By imposing substantial penalties for targeted offenses, mandatory minimums are intended to discourage the individual sentenced to a mandatory minimum from further involvement in. They also aim to dissuade other potential lawbreakers from committing similar acts. Those supporting mandatory minimums with the deterrence perspective point to the strong deterrent value the certainty of substantial punishment these penalties provide as well as the deterrent value of the sentence severity that these penalties ensure in the war against crime. This aspect fails to address the disenfranchised with no other options than to resort to this lifestyle. They can not trade information for a lighter sentence because they are in the lower part of the drug ladder and have disproportional sentences to those in power because of this.
Incapacitation, especially of serious offenders, is another idea that supports the policy. Mandating increased sentence severity aims to protect the public by incapacitating offenders convicted of serious crimes for definite, and generally substantial, periods of time. Proponents argue that one way to increase public safety, particularly with respect to guns and drugs, is to remove drug dealers and violent offenders from the streets for extended periods of time. This approach however does not take into consideration that mandatory minimums often target those with less information at the bottom of the drug trade who do not control much if any of the flow of drugs.
Indeterminate sentencing systems allow substantial freedom in setting the sentence, which in turn can mean that defendants convicted of the same offense are sentenced to widely varying sentences. This basically means that a drug user caught with 2.3 grams of marijuana may receive probation in California and ten years in Nebraska for the same offense. Supporters of mandatory minimum penalties contend that they greatly reduce judicial discretion and are therefore fairer. Mandatory minimums are meant to ensure that defendants convicted of similar offenses receive penalties that at least begin at the same minimal point (Kleinman, 1992: 202).
Mandatory minimums are also said to induce more cooperation. They provide specific lengthy sentences encouraging offenders to assist in the investigation of criminal conduct by others. This is because cooperation, in this case supplying information concerning the activities of other criminally involved individuals, is the only statutorily recognized way to allow courts to impose sentences below those required by the mandatory minimum sentence. While some prosecutors do not favor employing this technique, many often use it to gain more favorable sentences for the prosecutors.
In a very similar fashion, mandatory minimums are said to help induce plea bargains. Although infrequently cited by policymakers, prosecutors express the view that mandatory minimum sentences can be valuable tools in obtaining guilty pleas, saving enforcement resources and increasing the certainty of at least some measure of punishment. In this context, the value of a mandatory minimum sentence lies not in its fairness, but in its value as a bargaining chip (a more leniently sanctioned charge) to be given away in return for the resource-saving plea from the defendant. Basically it gives the prosecution a leg up in threatening that if convicted the client will suffer.
Knowing both sides of the argument now, we can properly address the research question, how do mandatory sentences affect society’s class and composition? The Sentencing Commission and the Federal Judicial Center have found that among offenders who engaged in conduct warranting a mandatory minimum, white offenders were less likely than blacks or Hispanics to receive the mandatory minimum term. In addition, since the mandatory minimums have been enacted, the gap between the average sentences of blacks and those of other groups has grown wider (Reuter and Robert, 2001: 98). It is not a far stretch from these to see that mandatory minimums have a greater impact upon blacks and Hispanics than whites. Another aspect is the higher punishment on crack cocaine than powder cocaine. It takes 100 times the amount of powder cocaine to receive the mandatory minimal for crack cocaine. This is not a huge deal in and of itself except for the fact that crack cocaine is found in more “ghetto” areas and is a mark of the disenfranchised. Powder cocaine is more commonly found among the elite class of society because of its cost. Coincidence? I think not.
Overall there are two sides to every argument. On one side there are those that argue against mandatory minimums and their effects upon society. They argue that they do not target the correct people, are not fiscally responsible, discriminate against certain classes, take away judicial power, and are not effective in general. On the other hand there are those that believe they are the best option for a difficult problem with no other viable solutions. They build their argument on the corner stones in the belief that retribution, deterrence, incapacitation, disparity, inducement of cooperation, and inducement of pleas result from mandatory minimums.
With all of these facts presented, it is apparent that we must repeal most if not all mandatory minimums. They are disproportionate, unfair, and keep the power out of the judges’ hands. Our courts’ greatest assets are not found in their objectivity, but in their subjectivity. To use the same punishments for everyone without regard to extraneous factors is not what our courts should be based on. Judges should be given set guidelines but ultimately their discretion should be the final say. There is a reason why they have the jobs they do and if we do not trust them then we should eliminate them altogether. Mandatory minimums are counterintuitive and persecute the lower echelon of society. A major reform is needed to stop this waste and inefficiency.
Works cited
Kelly, Robert J., Ko-Lin Chin, and Rufus Schatzberg, eds. The Handbook of Organized Crime in the United States (Westport, Conn.: Greenwood Press, 1994).
Kleinman, Mark A. R. Against Excess: Drug Policy for Results (New York: Basic Books, 1992).
MacKinnon, Catherine A. Only Words (Cambridge, Mass.: Harvard University Press, 1998).
Reuter, Peter, and Robert J MacCoun. Drug War Heresies: Learning from Other Places, Times, and Vices (New York: Cambridge University Press, 2001).
Schlosser, Eric. Reefer Madness (New York: Houghton Mifflin Company, 2003).
Simon, Eric. The Impact of Drug-Law Sentencing on the Federal Prison Population, 6 Fed. Sentencing Rep. 29 (July/August 1993).
Vincent, Barbara S. "Conmanmin." The Consequences. 1994. 2 Dec. 2007
"Georgia's Shame." New York Times. 30 Apr. 2006. 3 Dec. 2007
"Mandatory Minimum Penalties." May 2006. 1 Dec. 2007
"Special Report to the Congress:." Aug. 1991. 2 Dec. 2007
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