Starting with the advent of the penal laws of late 18th century America, Congress has enacted mandatory minimum sentences for a specific range of crimes. These mandatory minimums force judges to sentence a criminal for a minimum amount of time or severity regardless of the details of the case. In 1790, mandatory minimums existed for crimes like treason, murder, piracy, forging a U.S. public security, and rescuing a capital crime convict. Today, they are also tied to drug trafficking, firearm or explosives possession while drug trafficking, illegal immigrant trafficking, identity theft, sex trafficking, child pornography, airplane hijacking, illegal use of food stamps, kidnapping, bribery, and more.
Seeing a general consensus around the illegality of these actions, lawmakers attached mandatory minimums to them to reinforce the severity of each crime and to prevent sentencing discrepancies between similar cases. Beginning in the 1980s, Congress and presidents rapidly enacted new mandatory minimums and increased sentences on many crimes, including drug trafficking, that already utilized mandatory minimums. Although they were intended to create fairer sentencing, mandatory minimums instead eliminated judicial discretion from each case, often resulting in jail time disproportionate to the crime committed. As Massachusetts state representative Tom Sannicandro (D-Ashland) told the HPR, “[Mandatory minimums] take away the fundamental discretion that we entrust in our judicial system.” Furthermore, putting first-time non-violent drug offenders behind bars and separating them from society is an ineffective method in preventing repeat offenses. Rather than discouraging them from crime through jail time, the criminal justice system can encourage offenders to become contributing members of society by exposing them to activities and programs that create social capital: community service projects, job training, and voting.
Unfair Sentencing
Mandatory minimums force incarceration for non-violent drug offenders despite popular opposition. According to a poll by Public Opinion Strategies, 82 percent of people in the United States favor re-investing in alternatives to incarceration for low-risk, non-violent offenders. Judges themselves have found the sentences from mandatory minimums “unjust, cruel, and even irrational.”
In the 2004 case U.S. v. Angelos, judge Paul Cassell sentenced 25-year-old Weldon Angelos to 55 years in prison because Angelos sold a total of $1,000 worth of marijuana on three separate occasions to a police informant and reportedly carried a firearm during the sales. Though Angelos neither used nor displayed his firearm, his three counts of drug trafficking firearm possession prompted a mandatory minimum sentence of at least 55 years. Twenty-nine former judges and prosecutors filed amicus curiae briefs in the case and argued the sentence was unconstitutional. The briefs proved futile: Angelos is currently serving the second decade of his 55-year sentence and is expected to be released in November 2051.
Unfortunately, Angelos’s case is not unique. John Horner’s mandatory minimum sentence for selling prescription drugs to a police informant was 25 years, despite the fact that the informant had told Horner, “I can either pay my rent or go buy my prescriptions.” Jamel Dossie, at the age of 20, received a five-year mandatory minimum for carrying money and crack between dealers for a payment of $140, which he used to fund his own drug addiction. If judicial discretion was allowed in these cases, it could have minimized the sentences for both of these non-violent offenders. The 2013 Justice Safety Valve Act gives some judicial discretion back, allowing judges to impose shorter sentences if they decide it will not jeopardize public safety; however, the act is not retroactive and fails to outright abolish extensive prison terms for past non-violent offenders. Without comprehensive reform, many offenders are still serving unjustifiably long sentences, and many still have the potential to receive them.
Moreover, these sentences prove especially unfair to racial minorities. Originally, mandatory minimums established a 100:1 sentencing ratio of crack versus powder cocaine. In the eyes of the law, this guideline made a gram of crack the equivalent of 100 grams of powder cocaine. Blacks constitute 80 percent of crack cocaine users, whereas whites make up 60 percent of powder cocaine users. Consequently, the 100:1 sentencing ratio put far more blacks in prison than whites. Though Congress allegedly established the 100:1 ratio because of the supposed larger psychological and psychotropic effects of crack compared to powder cocaine this notion has been disproven, creating an explicit racial slant to the law. Although the 2010 Fair Sentence Act reduced the ratio to 18:1, the racial disparity will remain until the ratio is 1:1. Moreover, this sentencing reform does not apply to people who served federal crack offenses before August 2010. As Senator Rand Paul (R—Ky.) points out, “the majority of illegal drug users and dealers nationwide are white, but three-fourths of all people in prison for drug offenses are African-American or Latino.” Until the disparities in drug sentencing are corrected, these numbers will not change.
New Punishments, Same Crime
Not only are mandatory minimums often unfair, but they are also ineffective. Despite the notorious “War on Drugs,” drug use has stayed constant. America still leads the world in illegal drug use. Additionally, despite $1.5 trillion in drug control spending, the U.S. drug addiction rate has remained relatively unchanged since 1970. Instead, a statistic that has changed dramatically is the U.S. prison population, which has more than quadrupled since 1980 to over 2.4 million inmates, driven primarily by longer sentences for drug offenders. Representative Sannicandro told the HPR that “We can’t incarcerate our way out of addiction. We tried it. It doesn’t work.”
The War on Drugs is failing at a high cost to American taxpayers. Keeping an inmate in federal prison costs over $28,000 each year. Alternatively, drug courts, which require convicted drug offenders to complete random drug tests, attend drug treatment counseling, meet with their probation officer, and report their progress to the court regularly, only cost between $1,500 and $11,000 each year. This represents a large cost range, but it is still less than half the amount required to incarcerate the same offender in a federal jail. Offenders convicted through these alternative courts are able to stay with their children, pursue a career, join community organizations, and vote. Representative Sannicandro points out that “the majority of those in prison are dealing with substance abuse issues and substance abuse related crimes. We could save millions of dollars if we viewed this as a public health issue.” Yet another alternative is probation, which requires drug testing, working, or community service, as well as participation in substance abuse or mental health treatment. Federal probation costs less than $4,000 a year. There are many more alternatives to placing non-violent drug offenders in prison, all of which cost significantly less for taxpayers and do significantly more to reshape these offenders to become better and more productive citizens of society.
More Opportunities, Less Crime
Mandatory minimums have failed to discourage non-violent drug offenders from committing crimes. Bureau of Justice Statistics studies have found 76.9 percent of drug offenders are arrested again after being released from prison. For those without community support and that lack the ability to secure a job, selling drugs seems the best way to maintain an income. However, if the criminal justice system changes both the mindset of drug offenders and their life opportunities, many of these drug offenders choose a different line of work.
Giving economic opportunities to non-violent drug offenders and potential offenders also deters drug crime. Individual drug dealers make about $20,000 to $30,000 a year. An investigative report by Salon found that for drug offenders “it’s the money. It all comes down to the money.” Representative Sannicandro agreed, telling the HPR, “In many places, the drug economy is the only functioning economy.” Thus, he said that to deter these crimes, society must ensure that “all residents have access to quality education, economic opportunity, living wages, social mobility and strong communities.” Providing education is incredibly important in terms of economic opportunity and social mobility. A RAND corporation report found that employment was 13 percent higher for prisoners who participated in academic or vocational education programs, compared to those who did not. Additionally, those who participated in vocational training were 28 percent more likely to be employed after prison release than those who did not. According to this report, the costs of this education were around $1,400 to $1,744 per inmate. Rather than merely placing non-violent drug offenders in extended prison sentences, the criminal justice system should place them in education programs while also mandating community service. This will give them a pathway to a sustainable income outside of illegal activities, while also creating a commitment to the community.
This kind of social commitment has empirically proven to be an effective way to curb violence and avoid recidivism. Harvard professor Robert Putnam, an expert on social capital, told the HPR that rehabilitation for non-violent drug offenders “has got to involve community activities” because “social capital can be used as a way of discouraging recidivism.” By placing these offenders in programs designed to help their communities, they will make connections in their communities and feel a strong tie to them. Moreover, as University of Vermont Professor Alec Ewald wrote, “allowing inmates to vote—indeed, encouraging and even forcing them to do so—is most consistent with the public’s interest in reforming offenders.” Only Maine and Vermont let prisoners vote. Other states should take notice, as maintaining prisoners’ rights to the vote will foster ties to the community and society. It is unlikely that prisoners will universally gain the right to vote, but a potential alternative is the notion of voter registration drives in prisons, giving offenders a sense of belonging to society and the promise of having their voices and struggles heard after their release.
Encouraging non-violent drug offenders to become better citizens accomplishes a central goal of the War on Drugs: eliminating the lower-tier of drug trafficking organizations. Some may argue that society should not help out those who are committing crimes; however, society has frequently and hypocritically vindicated many people who committed non-violent drug offenses. For instance, our past three presidents have all reportedly used illegal drugs. Moving away from mandatory minimum sentences will benefit all members of society, by reducing crime, lowering government spending, increasing community service, and adding to the workforce. It’s time to address the root causes of these problems rather than trying to fix them through incarceration.
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