Mandatory Minimum Sentencing

Arguing About Preset Prison Terms

By | Updated Jan 10, 2017 6:06 AM UTC

The U.S. has more prisoners than any other country. With less than 5 percent of the world’s population, the U.S. houses about a fifth of all convicts, at a cost of some $80 billion a year. Mandatory minimum sentences for drug crimes, immigration violations and other offenses have left American prisons filled with low-level offenders serving long terms. The nation’s federal inmate population more than doubled over the past two decades even as the number of violent crimes per capita declined by about 40 percent. Mandatory minimums came under pressure as the major U.S. political parties reached consensus that inflexible punishments take a toll on taxpayers, communities and families of the incarcerated. But the election to the presidency of Republican Donald Trump, who cast himself as a law-and-order candidate, has set back expectations that the penalties would be further loosened.

The Situation

Trump’s nominee for attorney general, Senator Jeff Sessions, has argued against continuing to relax sentencing rules. A Trump administration is unlikely to continue a policy put in place in 2013 by then Attorney General Eric Holder blunting the impact of mandatory minimums; Holder instructed federal prosecutors to charge minor criminals with offenses so that the potential punishment matched the crime. President Barack Obama said in 2015 that long mandatory minimums should be shortened or eliminated. He stressed the disproportionate impact of the laws on racial minorities. Bills drawing bipartisan support were introduced in the U.S. Senate and House of Representatives to eliminate minimums for certain drug offenses, expand eligibility for exemptions and allow federal courts to disregard the mandatory minimums when they conflict with general sentencing standards. Those standards take into account such factors as the seriousness of the crime and the offender’s specific role in it.  Sessions opposed the proposals, dimming their prospects in a new Congress. A debate about mandatory minimums is also taking place in Australia.

The Background

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. The discretion of judges was further limited in 1987 when a set of federal sentencing guidelines was put in place to curb the disparity in punishments for the same offenses in different regions of the U.S. These guidelines, in conjunction with mandatory minimums, were seen as leading to longer sentences. In 2005, the U.S. Supreme Court ruled that the sentencing guidelines could be no more than advisory, but mandatory minimums were unaffected by the decision. A 2014 decision by the U.S. Sentencing Commission to retroactively reduce most federal drug sentences brought the release of thousands of inmates, so that for the first time in three decades the federal prison population began to decline. It numbers about 190,000 inmates, 30,000 fewer than the peak. 

The Argument

The debate over punishments begins with a dispute over crime. In his campaign, Trump presented violent crime as a rising threat, a position mirrored by Sessions. National statistics show violent crime increased 3.9 percent in 2015, but that data point remains part of an overall, dramatic decline dating back to 1992, and the rate hasn't been this low since 1970. Defenders of mandatory minimums argue that a retreat from clearly defined sentencing will produce an increase in violent crime or a return to sentencing disparities. Advocates for change say fixed minimums are crude instruments of justice, one-way ratchets that create punishments too harsh for charged offenses. Racial minorities and the poor, they note, are incarcerated disproportionately

The Reference Shelf

  • Text of President Obama’s call for reform of the U.S. justice system.
  • In a report to Congress, the U.S. Sentencing Commission concludes that the 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.
  • Senator Jeff Sessions argues against relaxing mandatory minimums in a press statement.

First published March 3, 2014

To contact the writer of this QuickTake:
Andrew M Harris in Washington at aharris16@bloomberg.net

To contact the editor responsible for this QuickTake:
Lisa Beyer at lbeyer3@bloomberg.net