Mandatory Minimums Worked. Now They Must Go.

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Aug. 15 (Bloomberg) -- U.S. Attorney General Eric Holder announced this week that the Justice Department would significantly alter how nonviolent drug offenders are charged in order to circumvent mandatory minimum sentencing requirements.

Some will support the new policies because taking the amount of drugs associated with a crime out of consideration will reduce sentences, along with the U.S.’s high incarceration rate. Opponents will argue that stringent sentencing rules have helped bring down the violent-crime rate from the terrifying levels seen during the second half of the 20th century. And while lowering costs by reducing the prison population is attractive, some may worry that this is just cost-shifting: Individual citizens could suffer the consequences of victimization by those released under the new policies.

The greatest reservation people may have about the change is the simple inappropriateness of removing a fact -- the amount of drugs associated with a crime -- that is so obviously relevant when considering blameworthiness and punishment. Large amounts of drugs will now be treated the same as small amounts, thereby inviting gross failures of justice.

But regarding this crucial point of doing justice, the new policies are on firm ground. Although the new practice is designed to frustrate a clear legislative directive (usually not a popular move), in this instance it is both morally and practically justified.

Court Precedent

Understanding why mandatory minimum sentences were important during the crime explosions of the 1960s and ’70s is easy enough. Something had to be done about idiosyncratic judges who were seen as being “soft on crime.” Before mandatory minimum sentencing, some judges would offer sentences of probation and community service for an intentional killing.

An offender’s punishment shouldn’t depend on their good or bad luck in the sentencing judge they draw. Punishment should depend on a criminal’s offense, as well as his or her culpability and capacities at the time of the crime. In an effort to avoid gross failures of justice, Congress enacted mandatory minimums as part of the Anti-Drug Abuse Act in 1986.

Things have changed since then.

For anyone who truly believes in the importance of justice, avoiding injustice is just as important as avoiding failures of justice. We have constant reminders that mandatory sentences are blunt instruments that regularly and predictably do harm. Some cases do have important grounds for mitigating sentencing. Youth, duress, mental illness and other factors could be present in some form yet ignored by the mandatory sentencing requirements.

We have also discovered the feasibility of using sentencing guidelines instead of mandatory minimums, a system by which judicial discretion can be retained yet controlled. As one of the original members of the U.S. Sentencing Commission, I dissented from the promulgation of the current guidelines because I thought we could have done much better. But guidelines in many jurisdictions have shown that, properly drafted, they can work.

Accumulating empirical evidence has made us more skeptical of the effectiveness of general deterrence -- an idea that played a large role in the justification of many mandatory sentences, including “three strikes” statutes and high penalties for nonviolent drug offenses. The evidence suggests that most potential offenders don’t know the applicable mandatory minimum laws and therefore cannot be influenced by them. Even if potential offenders do know them, most do not rationally calculate the risk of punishment. Rather, most criminals suffer from the distortions of alcohol, drugs, mental dysfunction, peer influence (often through gangs) and a host of other judgment-impairing factors. Even if most criminals considered the harsher penalties imposed by mandatory minimums, they wouldn’t be deterred if they perceived their chances of being caught and subsequently punished to be so low as to be irrelevant -- which many do.

Excessive Punishment

Another issue with mandatory minimums is that they are commonly set at levels grossly out of proportion to the seriousness of the offense. One recent study of laypeople’s intentions of justice showed drastic differences between the mandatory minimum laws’ applications in real cases and the average person’s judgments about those cases. In one “three strikes” case, for example, the study subjects recommended a sentence of three years in prison; in reality, the court was required to give a life sentence. For a case involving transporting marijuana, the subjects recommended two years, while the court was compelled to give 15 years to life. In another case involving cocaine, the subjects prescribed four years, while the court was obligated to give a sentence of life without parole.

There is also a growing sentiment, backed by empirical evidence, that the criminal-justice system loses moral credibility with the community when it causes the kind of regular and intentional injustice brought by mandatory minimums. This loss translates into lower crime-control effectiveness, making people at all stages in the process -- witnesses, police, prosecutors, judges and offenders -- more likely to subvert what they perceive as an unjust system.

As an indication of how much things have changed, in 2007, the American Law Institute amended its Model Penal Code for the first time since the document was introduced in 1962. The amendment altered the principles that guide criminal sentencing by mandating that justice be the dominant and inviolable principle. General deterrence, for example, could be taken into account only to the extent that it was consistent with the deserved punishment.

As long as we have mandatory minimum sentences, criminal law cannot gain the moral credibility with the community that will maximize its crime-control effectiveness. Until Congress drops the use of mandatory minimums, the executive branch will be morally and practically justified in helping to circumvent them.

(Paul H. Robinson is a professor of law at the University of Pennsylvania and one of the original commissioners of the U.S. Sentencing Commission. He is the author most recently, with Sarah Robinson, of the coming book “Human Rules: How People Behave When Beyond the Law.”)

To contact the writer of this article: Paul H. Robinson at phr@law.upenn.edu.

To contact the editor responsible for this article: Alex Bruns at abruns@bloomberg.net.