Attorney General Eric Holder wants to blunt the impact of mandatory minimums by charging minor criminals with lesser crimes, passing them to local prosecutors or refraining from charging them at all. A bipartisan consensus is emerging that inflexible punishments, popular with politicians, take a toll on taxpayers, communities and families of the incarcerated. A Justice Department review of the federal system led to the recommendation in August that prosecutors use greater discretion when charging defendants with crimes that come with mandatory minimum sentences. Opponents argue a better response is to amend the law. Bipartisan legislation introduced in the U.S. Senate and House of Representatives would do just that. A similar policy debate is taking place in Australia.
Mandatory minimum punishments for serious federal offenses are as old as the republic. Under the 1790 Crimes Act, the required sentence for treason, murder, piracy and forgery of government securities was death. Later, infractions with baseline punishments touched on slavery, the manufacture and sale of alcohol and, in the 1980s as crime rates rose, drugs. In 1987, a set of federal sentencing guidelines were put in place to curb disparate punishments for the same offenses in different regions of the U.S. by limiting judges’ discretion. In conjunction with mandatory minimums, the guidelines were seen as leading to longer sentences. In 2005, the U.S. Supreme Court ruled that they did not have to be scrapped but could be no more than advisory. America’s prison population continued to grow, even as violent crime declined.
Advocates for change say mandatory minimums are crude instruments of justice, one-way ratchets that create punishments too harsh for charged offenses. As a result, they say, racial minorities and the poor are incarcerated disproportionately. Defenders argue that a retreat from clearly defined sentencing will lead to an increase in violent crime or could lead to a return of the kind of sentencing disparities that led to the guidelines in the first place. While some members of Congress want to scrap the whole system, the bipartisan bills in Congress focus on ending what supporters see as their worst effects. One pair of House and Senate bills would give judges leeway to ignore minimums in certain circumstances to prevent inappropriate sentences. Another pair would reduce punishments for some lesser drug crimes.
The Reference Shelf
- Text of Attorney General Eric Holder’s Aug. 12, 2013 address.
- In a report to Congress, the U.S. Sentencing Commission concludes “that the current system of mandatory minimum penalties can be improved.”
- A Families Against Mandatory Minimums fact sheet summarizes its advocacy case.
- A PBS Frontline primer details specific sentences mandated for drug possession and includes statistics on prison sentences and asset forfeitures.
- A law professor who served on the Sentencing Commission argues that mandatory sentences were once effective but have outlived their usefulness.
- Article on the Outside the Beltway website about how prosecutors use the threat of mandatory sentences to coerce guilty pleas.