Have Mandatory Minimum Jail Sentences Been an Effective Tool in the War on Drugs?
Michael J. Sullivan, JD, former Acting Director of the Bureau of Alcohol, Tobacco, and Firearms (BATF), provided the following statement on July 14, 2009 at the hearing "Mandatory Minimums and Unintended Consequences" before the US House Subcommittee on Crime, Terrorism, and Homeland Security of the Judiciary Committee, available at judiciary.house.gov:
"History has shown great leadership and foresight by legislative bodies at both the federal and state levels in understanding the important value of mandatory (minimum) sentences, as both a deterrent for potential offenders and a safety net against unbridled judicial sentencing discretion...
Mandatory minimum sentences are keeping serious offenders off our streets longer, keeping our communities safer.
In addition to these important goals being achieved -- uniformity in sentencing, certain offenses carrying certainty in punishment, and repeat violent offenders receiving enhanced punishment -- there has also been a collateral benefit of mandatory minimums. This collateral benefit deals with cooperation by the lower level offenders, providing critically important information to investigators and prosecutors that enhance investigations, identify more culpable and, in many instances, higher level players in the criminal organization. Mandatory minimums have allowed the government to make a case against the highest ranking members of national and international criminal organizations, from organized crime figures, to major drug traffickers."
Richard B. Roper III, JD, former United States Attorney for the Northern District of Texas, provided the following testimony during the June 26, 2007 hearing "Mandatory Minimum Sentencing Laws - The Issues," before the US House Subcommittee on Crime, Terrorism, and Homeland Security of the Judiciary Committee, available at judiciary.house.gov:
"The substantial gains made by our nation in crime control and reducing unwarranted sentencing disparity fuel the continued and widespread understanding that mandatory sentencing systems work... the Department remains committed to the principles that gave rise to mandatory sentencing in the first place - consistency, fairness, certainty, truth, and greater justice in sentencing. Moreover, the Department continues to believe that a mandatory sentencing system, complete with mandatory minimum sentences for certain serious offenses, best serves this nation's interests in reducing crime. The mandatory minimum sentences applicable to serious gun violence and drug offenses, coupled with the national initiatives to combine resources to fight drugs and violent crime, have enabled law enforcement to make great strides in successfully controlling these societal harms. Taken as a whole, the Department of Justice believes that the system of mandatory minimums is fair and effective - promoting the interests of public safety while protecting the rights of individuals."
The Drug Enforcement Administration (DEA), in a statement delivered by Jodi L. Avergun, provided the following Apr. 12, 2005 testimony before the House Judiciary Committee Subcommittee on Crime, Terrorism and Homeland Security titled "Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005 -- H.R. 1528," available at www.justice.gov:
"The Department of Justice supports mandatory minimum sentences [because] mandatory minimum statutes provide a level of uniformity and predictability in sentencing.... And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety....
In drug cases, where the ultimate goal is to rid society of the entire trafficking enterprise, mandatory minimum statutes are especially significant. Unlike a bank robbery, for which a bank teller or an ordinary citizen could be a critical witness, often in drug cases the critical witnesses are drug users and/or other drug traffickers. The offer of relief from a mandatory minimum sentence in exchange for truthful testimony allows the Government to move steadily and effectively up the chain of supply, using the lesser distributors to prosecute the more serious dealers and their leaders and suppliers."
David E. Risley, JD, Assistant United States Attorney, wrote in his May 2000 article for Drug Watch entitled "Mandatory Minimum Sentences - An Overview":
"The purpose of mandatory minimum sentences is to prevent the judicial trivialization of serious drug crimes. They do that well, to which some protest.... Before the advent of mandatory minimum sentences in serious drug cases, federal judges had unbridled discretion to impose whatever sentences they deemed appropriate, in their personal view ... Drug dealers are risk takers by nature. Lack of certainty of serious sentences for serious crimes encourages, rather than deters, such risk takers to elevate their level of criminal activity in the hope that ... they will ... draw a lenient judge and receive a lenient sentence. The only possible deterrence for people who are willing to take extreme risks is to take away their cause for such hope....
By establishing mandatory minimum sentences for serious drug offenses, Congress sent a clear message to drug dealers: no matter who the judge is, serious crime will get you serious time....
In the case of marijuana, those who oppose mandatory minimum sentencing on so-called 'humanitarian' grounds seldom mention that, to be eligible for even a five-year minimum sentence, a defendant must be convicted of an offense involving at least 100 kilograms (220 pounds) of marijuana, or, in the case of a marijuana growing operation, at least 100 plants. Such defendants are not low-level offenders..... Yet, those who oppose mandatory minimum sentences for marijuana and other drug offenses do just that, usually by attempting to convey the false impression the criminals they are attempting to protect are only low-level offenders."
The American Civil Liberties Union (ACLU), in its June 15, 2001 paper titled "Prison Overpopulation & Harsh Sentencing," stated:
"Restrictive sentencing guidelines and statutory mandatory minimum sentences have taken away the discretion of judges to tailor sentences to fit the individual circumstances of particular crimes and offenders. Thus the traditional requirement mandated by the Eighth Amendment that punishment maintain some proportion to the crime committed has been abandoned in the name of the 'war on drugs.'
The result is the sentencing of many non-violent drug offenders to unjustly harsh prison terms where they crowd prisons already filled above capacity....
Adding to this problem is the fact that mandatory minimums, designed with the noble intention of reducing the racial inequalities too often resulting from judicial sentencing discretion, in practice simply shifts discretion from the judge to the prosecutor. Prosecutors retain the power to plea bargain by offering defendants plea agreements that avoid the mandatory penalty. Studies have shown that this discretion results in a disparity in sentencing outcomes based largely on race and quality of defense attorney....
These harsher sentencing guidelines, and the billions of dollars poured into enforcement efforts, the incarceration of offenders, and the building of new prisons each year, have failed to curb drug use, which is still on the rise."
The American Bar Association, in a statement delivered by Thomas M. Susmanon May 21, 2009 at the hearing "Unfairness in Federal Cocaine Sentencing: Is it Time to Crack 100:1 Disparity?." before the US House Subcommittee on Crime, Terrorism, and Homeland Security of the Judiciary Committee, available at www.abanet.org, stated:
"[The ABA] supports the repeal of all mandatory minimum statutes and the expanded use of alternatives to incarceration for nonviolent offenders...
Mandatory minimum sentences raise serious issues of public policy and routinely result in excessively severe sentences. Mandatory minimum sentences are also frequently arbitrary because they are based solely on 'offense characteristics' and ignore 'offender characteristics.' They are a large part of the reason why the average length of sentence in the United States has increased threefold since the adoption of mandatory minimums. The United States now imprisons its citizens at a rate roughly five-to-eight times higher than the countries of Western Europe, and twelve times higher than Japan. Roughly one-quarter of all persons imprisoned in the entire world are imprisoned here in the United States.
Thus, the ABA strongly supports the repeal of the existing mandatory minimum penalty for mere possession of crack. Under current law, crack is the only drug that triggers a mandatory minimum for a first offense of simple possession. We urge the Congress to go farther, however, and repeal mandatory minimum sentences across the board.
We also strongly support the appropriation of funds for developing effective alternatives to incarceration, such as drug courts, intensive supervised treatment programs, and diversionary programs. We know that incarceration does not always rehabilitate – and sometimes has the opposite effect."
Marc Mauer, JD, Executive Director of the Sentencing Project, stated the following in his Oct. 28, 2009 testimony “The Impact of Mandatory Sentencing Policies in the United States,” before the Canadian Standing Committee on Legal and Constitutional Affairs, available at www.sentencingproject.org:
"Since the 1970s the federal government and virtually every state legislative body have enacted various types of mandatory sentencing policies. These policies have been targeted most frequently to drug offenses, but have also been imposed for a variety of other crimes... we now have three decades of experience with the current generation of mandatory sentencing policies. I believe it is fair to state that there is a growing consensus among leading legal and policy experts that these laws have failed to promote public safety, but have instead produced unintended consequences that frequently result in injustice.
The policy of mandatory minimum sentencing has led to thousands of people serving longer jail sentences and has contributed to the unfair sentencing disparities between federal crack and powder cocaine offenses that disproportionately affect people of color.”
Families Against Mandatory Minimums (FAMM), an advocacy organization against mandatory minimum sentences, stated the following in its publication "Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums," available at www.famm.org (accessed Nov. 23, 2009):
"Twice in the past half century, Congress has enacted mandatory minimum sentencing laws to combat public fears about drug abuse and drug trafficking. Both times, the mandatory sentencing laws have failed to alleviate these problems.
Worse, the laws caused other serious problems, including skyrocketing spending on corrections at the state and federal level. In 1970, Congress and a new Administration committed to reducing crime and drug abuse wisely repealed the failed mandatory minimum laws enacted in the Boggs Act of 1951 and the Narcotics Control Act of 1956.
The current mandatory minimum laws, enacted during the crack cocaine epidemic of the mid-1980s, have imposed too many burdens with no corresponding benefit. It is time once again for Congress to correct course and eliminate mandatory minimum sentences for drug offenders."