In Defense of Mandatory Minimums

By Robert VerBruggen

There's now wide agreement, at least among the nation's elites, that "mandatory minimum" sentencing is highly problematic. Writes Carl Cannon, RCP's Washington bureau chief, in a story we feature in today's update:

Slowly, a consensus has formed that in tying the hands of judges and juries -- and insisting on fixed prison terms, some of them quite draconian, for nonviolent crimes -- the government is wreaking needless havoc on thousands of families while wasting untold billions of taxpayer dollars.

...

Gradually, even the toughest law-and-order types have blanched at cases such as that of 25-year-old Weldon Angelos, sentenced to 55 years in prison for dealing marijuana.

I'd like to highlight a distinction here that will be very important. Is the problem that the sentences are mandatory -- or is it that the sentences are poorly calibrated to the crimes?

As I warned in August, prison reformers must not forget why we created mandatory sentences to begin with. Back in the late 1970s and early 1980s, Americans were pretty close to unanimous -- about 90 percent -- in the belief that courts were going too easy on criminals. Part of the problem was that the laws weren't strict enough, and part of the problem was that bleeding-heart judges abused their discretion to let off hardened criminals. Campaigns against "revolving door" prison policies resonated deeply with the public (see Dukakis, Michael).

In federal courts (and in some states), a big part of the solution was to set minimum sentences for many crimes, limiting judges' options -- once the prosecution convinced a jury that the accused had committed a specific offense, the judge had to give at least a specific sentence. The prison population exploded, crime fell dramatically, and criminologists (naturally) still can't figure out whether those two trends might have had something to do with one another.

There were liberal reasons to support this kind of reform, too. Even with mandatory minimums, liberal and conservative judges manage to give different sentences for similar crimes. And of course, when judges have wide discretion, all sorts of illegitimate factors -- including race, class, sex, and physical attractiveness -- can subtly (or not-so-subtly) bias them toward giving longer or shorter sentences for a given crime. If we want all people to be equal before the law, the law -- not the particular judge who happens to be assigned to the case -- needs to determine how people are treated.

It seems to me that we can keep the benefits of these reforms while backing off from their more draconian aspects. The problem with a 55-year mandatory sentence for a pot dealer isn't that it's mandatory. It's that it's a 55-year sentence for a pot dealer -- which shouldn't be possible, much less mandated. (Such ridiculous sentences often serve as a threat prosecutors can use to extract plea deals on lesser charges rather than going to trial, as they tried to do in this case.) If a mandatory sentence is too high, it should be reduced, and if a single mandatory sentence applies to many different offenses -- some trivial, some severe -- the law should be broken up into the appropriate number of pieces.

The proposed federal reforms take different approaches to this issue. One bill would simply reduce the minimum sentences for minor drug offenses.

But another would offer judges a "safety valve" they could use to give lower sentences. Under current law there's a safety valve for drug offenses, but it applies only when a strict five-part test is met (mostly ensuring that the offenders are nonviolent and don't have significant criminal histories), and in these cases judges are required to give a sentence consistent with the guidelines of the U.S. Sentencing Commission (a judicial agency whose members are appointed by the president and confirmed by the Senate).

The new valve, by contrast, applies to all types of offenses and is incredibly subjective -- it allows judges to give lower sentences whenever they think the mandatory penalty wouldn't be consistent with the broad sentencing instructions that federal law gives to judges (such as to give a punishment that fits the crime, etc.). The Sentencing Commission's guidelines are just one factor among many in these instructions, though judges would be required to state the reasons for the sentence they chose in writing. As one supporter put it: "The bill would restore sentencing discretion to judges in all future federal cases where a mandatory minimum applies!"

As I pointed out in my August post, 60 percent of Americans still believe courts go too easy on criminals, and fewer than one in five think courts are too harsh. And yet, in October, a majority of Americans supported the full legalization of marijuana for the first time. The lesson here is simple enough: The American people will support criminal-justice reforms up to a point -- but they don't like it one bit when judges are lenient with real criminals. We must evaluate reform proposals in this light, or risk another backlash.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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