Does Mandatory Sentencing Cause More Harm Than Good?

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In a notable instance of bipartisanship, Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) co-sponsored a bill last session seeking to address concerns about the harmful effects of mandatory minimum sentencing. If it had passed, the Justice Safety Valve Act would have allowed judges to deviate from mandatory minimums in instances where they deemed a lesser sentence to be warranted.

This policy was intended to alleviate reasonable concerns that the discretion afforded to judges resulted in varied sentences for defendants who had committed similar crimes. Although uniformity in punishment and equal treatment under law ought to be objectives of a functioning legal system, mandatory minimums routinely result in unnecessarily lengthy prison sentences, while also failing conclusively to deter crime.

Mandatory minimums, which are imposed by legislatures, prescribe specific sentences for certain offenses, particularly those involving drugs. This policy was intended to alleviate reasonable concerns that the discretion afforded to judges resulted in varied sentences for defendants who had committed similar crimes. Although uniformity in punishment and equal treatment under law ought to be objectives of a functioning legal system, mandatory minimums routinely result in unnecessarily lengthy prison sentences, while also failing conclusively to deter crime.

A government ought not deprive a citizen of his liberty except for when he poses a concrete risk to the security of others. Many of those sentenced under mandatory minimums are non-violent offenders, who would have received lighter sentences or even probation but were required to be incarcerated. Those familiar with this issue are likely aware of the now infamous case involving Weldon Angelos, a man with no prior convictions sentenced to fifty-five years in prison for selling marijuana while carrying a firearm. The U.S. District Court judge who was bound by the mandatory minimum when sentencing Angelos called the punishment “unjust, cruel, and even irrational.”

In 2010, 14.5 % of all federal sentences were the result of mandatory minimums. This statistic demands a reexamination of the practice of incarcerating innumerable Americans without consideration for the unique aspects of their particular transgression. Although mandatory minimums sought to eliminate the discretion that resulted in sentencing imbalances, such discretion still exists; however, it is has been transferred from judges to prosecutors. Prosecutors, who may have political incentive to accumulate convictions, have the nearly unrestricted liberty to determine whether or not to charge a defendant and also to choose the severity of the charges to levy.

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Mandatory sentencing has not been demonstrated to cause reductions in crime. In their paper “Imprisonment and crime,” Steven Durhlauf and Daniel Nagin cite a number of studies that call into question the link between severity of punishment and deterrence. For example, a report on mandatory sentencing in California found “little evidence of crime-prevention effects.” Among the assumptions behind the enactment of these laws was the belief that before committing a crime, an individual would act rationally and consider the severe sentence that may accompany the particular offense. However, it has been consistently argued that the certainty of punishment is a more effective deterrent than its severity. Also, critics contend that sentencing low-level drug distributors to long prison terms does not reduce crime because their role will be quickly filled by others.

Mandatory minimums imposed for drug offenses are also condemned for their tendency to create a “cliff” where a slight increase in the quantity possessed of a substance may result in a much lengthier sentence. For example, in North Carolina, trafficking 10 pounds of marijuana results in a 25 month mandatory sentence; however, committing the same offense with 9.9 pounds carries a relatively short sentence.

Acknowledging the high recidivism rate in the United States along with the relative frequency of violence in prisons, there is cause to avoid incarcerating offenders who are not a risk to public safety. Between 2011 and 2012, 4.0% of prison inmates were the victims of unwanted sexual contact. Trials as taxing as physical and sexual assault combined with often not receiving educational or vocational training while incarcerated makes rejoining communities and families quite difficult. More than three quarters of released inmates are arrested again within five years.

A 2014 survey conducted by the Pew Research Center indicates that 63% of Americans now support replacing mandatory prison sentencing for nonviolent drug offenders with alternatives such as treatment for addiction. In 2001, only 47% of Americans had supported such a shift. Although to alter policy on the basis of shifting public opinion alone is hardly advisable, given concerns about granting unnecessary heed to the view of a current majority, it is likely that this change in opinion demonstrates that the public has become aware of the compelling reasons to discontinue the practice.

Although the Executive Branch has taken action to mitigate the pernicious consequences of mandatory sentencing, it is preferable that Congress and state legislatures put forward bills to reinstate judicial discretion. It is time to end the practice of confining Americans to prison for potentially disproportionately long sentences without considering the unique aspects of their cases.

This article appeared originally in the January 20, 2015 edition of The News & Observer.

Erich J. Prince is a co-founder at Merion West. Erich studies political science at Yale University. He has written for a variety of publications including The Philadelphia Inquirer, the Hartford Courant, The News & Observer, the Orlando Sentinel, and The Daily Caller. His writing has been honored with two awards from the Columbia University School of Journalism. Erich is from Philadelphia. Contact Erich at erich@merionwest.com.

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