The Case Against Minimum Mandatory Sentences

As A Member of the New Jersey Sentencing Policy Study Commission appointed by the New Jersey legislature, Mr. Silber argued against the value of minimum-mandatory sentences

Minimum mandatory sentences have dramatically failed to achieve the results which the legislature intended. That failure has cost the public treasury dearly, eviscerated judicial power, skewed the constitutional balance between executive and judicial branches, threatened fundamental constitutional safeguards, and created a plethora of unjust results. All for naught.

In practice, the greatest use of minimum mandatory sentences is as a sentencing policy for certain drug crimes. It is drug sentences that tend to escalate the jail population as well as the need for the construction of new prisons at great public cost and, in many cases, it is with these offenders that intermediate sanctions would offer the best opportunity to defeat recidivism at a fraction of the cost to the public. Thus, mandatory sentences in drug cases become almost a separate issue because of the large number of defendants, the disparate types of offenders, and their disproportionate effect on the prison population.

II. The Stated Legislative Goals of Minimum Mandatory Sentencing

Minimum mandatory sentences have been adopted not only to punish the offender, but even more importantly to deter others from committing a similar crime, and as a method of insuring the substantial incapacitation of the offender who committed this crime, thereby protecting the public from further criminal activity.

III. Minimum Mandatory Sentences Have Not Achieved the Desired Goals

The starting point for analysis is the virtual consensus among criminologists that there is no correlation between lengthy prison sentences and the deterrence of others. Professor John J. DiIulio of Princeton University and the Brookings Institute, whose devotion to prison as appropriate punishment is unquestioned, has joined criminologists of every political stripe in the uniform conclusion that no empirical evidence exists to support the proposition that longer prison sentences have a substantial deterrent effect. DiIulio, "Research Literature Overview" 23 to 25 (1993), (hereinafter "Overview").

Professor Elliott Currie began his analysis of the problem of serious crime in the United States with a comparison between sentences in the United States and the rest of the industrialized nations of the West. His conclusions are indeed sobering because even though "American prison sentences are typically far longer than those in most of the rest of the developed world..." our crime rate is far higher than theirs. (Emphasis added). In the late 60's, the National Commission on the Causes and Prevention of Violence reviewed the evidence on the relationship between sentence length and recidivism and found that "longer sentences did not consistently reduce recidivism rates -- and sometimes seemed to increase them." Professor Currie concluded that there exists a dramatic absence of evidence to prove that long sentences deter crime any better than short ones. He pointed to research in both the 1970's and in the 1980's which consistently corroborated the same conclusion -- "longer sentences still resulted in higher rates of recidivism, especially for blacks." Currie, "Confronting Crime An American Challenge" 71 (Pantheon Books 1985). (Emphasis added).

About mandatory minimum, which inevitably create long sentences, Professor Currie has accurately concluded, "we are unlikely to gain much more deterrence though the simple expedient of restricting the discretion of the courts, for the crucial reason that the courts' `discretion' is not the main part of the problem -- usually not even a very significant part." Currie, supra at 65. The Edna McConnell Clark Foundation , in its survey of the literature, reports that "recent research indicates that mandatory sentencing laws have either short-lived or no deterrent effects." Professor Michael Tonry of the University of Minnesota Law School concluded that "Enactment of mandatory penalties has either no demonstrable marginal deterrent effects or short-term effects that rapidly waste away." Tonry, "Mandatory Penalties," in James Q. Wilson and Michael Tonry, Crime and Justice, 243-244 (Chicago: University of Chicago Press 1992).

The deterrent effect of minimum mandatory sentences seems to be even more futile in the arena of drug law enforcement. As Professor DiIulio has noted, "... there is no evidence that the mandatory penalties associated with drug crime has had significant general deterrent effects: punishing drug dealer Paul apparently does little or nothing to keep would-be drug dealer Peter honest." "Overview" at 24, 52-53. Former New York DEA Chief Robert Stutman has admitted that drug dealers cannot be arrested or imprisoned in sufficient numbers to make a significant difference in drug abuse or drug-related crime. Stutman and Esposito, Dead on Delivery, (Warner Books 1992).

There is some general agreement among criminologists that incapacitating violent and hard-core criminals does protect the public from them -- at least while they are in prison. After years of investigation, we are not sure that prison deters crime to any significant extent and we are sure that they do not deter effectively. There is a sound case that incapacitation can work to some degree, but the strategy is cumbersome, expensive and inefficient, requiring extraordinary investment of social resources to accomplish even small results. None of this is to argue that we should set down the prisons. Nor is it to deny that there is a disturbingly large number of people in America who must be locked up in them, sometimes for a very long time. [Currie supra at 100].

However, that general agreement cannot be translated into support for minimum mandatory sentences. The crux of the minimum mandatory sentence issue is whether or not judges should have discretion within the Sentencing Guidelines or applicable state sentencing structure, in making individual determinations about sentences. There is nothing to suggest that virtually all violent repeat criminals, who have received minimum mandatory sentences would not have been sentenced to an identical term by a judge exercising discretion. Discretion allows a judge to use the offender's actions and role in the crime, and to use individual character assessments to determine the need to incapacitate the offender for an extended period of time. Removing judicial discretion has created injustice in individual cases without any gain in deterrence or incapacitation.

Moreover, there is a growing body of literature that suggests that for a great many offenders the imposition of intermediate sanctions, which may be community-based, upon the end of a shorter incapacitating period, provides better protection for the public than long prison sentences because, after all, almost 95% of those who are incapacitated by minimum mandatory sentences will ultimately return to the community. Many offenders sentenced to mandatory terms under the drug enforcement statutes have the personal characteristics or played a role in the offense, which would have resulted in a lesser sentence, absent the existence of the mandatory penalty.

The evidence is also exceedingly strong that prison, as it is currently constituted, may actually contribute to recidivism, rather than deter it. This means that those who serve an extended time in prison may be even more likely to commit offenses upon their release. On the other hand, intermediate sanctions hold some promise for the reform and rehabilitation of the offender. In support of intermediate sanctions at the end of short prison sentences, the Massachusetts Department of Correction Research Division concluded,

The major findings of our research have shown that programs generally geared to maintain, establish or re-establish general societal links in terms of economic, political, and social roles have led to a reduction of recidivism. Additionally, it was found that when an individual has been gradually reintroduced to society the chances of recidivism lessen. The research demonstrates the effectiveness of the recent establishment of the community-based correctional apparatus in the state of Massachusetts. The result of our five-year follow up analysis further support the validity of this position. [LeClair, Varying Time Criteria in Recidivism Follow up Studies: A Test of the "Crossover Effects" Phenomenon 10 (1983).]

While Professor DiIulio has argued that the incapacitation of recidivists may justify itself in the savings of human and financial costs even in the absence of any evidence that minimum mandatory sentences have a general deterrent effect, he has recognized that incapacitation is not justified for "one subset of the criminal population affected by mandatory sentencing, mainly, drug offenders: it now seems fairly safe to conclude that mandatory sentencing has had little effect on the nation's drug and crime problem." "Overview" at 25.

Given the ability of the judiciary to utilize its discretion to impose lengthy sentences where appropriate (even in the absence of minimum mandatory sentences), the universally recognized need to create and fund intermediate sanctions that work in the area of drug treatment, and the demonstrable lack of real protection to the public either through incapacitation or the deterrence of others, minimum mandatory sentences should be repealed because of their enormous constitutional, social and fiscal cost to the public.

IV. The High Cost of Minimum Mandatory Sentences

Minimum mandatory sentences have contributed significantly to the growth of the prison population and the need for capital construction. The Edna McConnell Clark Foundation has concluded that mandatory sentencing laws "have had an enormous impact on prison populations nationwide".

This is especially true because of the number of drug offenders who are in prison as a result of a mandated term. The 1994 Justice Department study, "An Analysis of Non-Violent Offenders With Minimum Criminal History", revealed that 21.2% of the federal prison population were low level drug offenders. The study also concluded that: 1) sentence length had no effect on recidivism; and 2) low level drug offenders were far less likely to commit another crime than high level offenders. In New Jersey, for example, the 1990 data revealed that 21% of the total prison population was serving time as a result of mandatory drug sentences.

The United States Sentencing Commission concluded that "utilizing the annual cost per inmate for fiscal year 1990 as estimated by the Federal Bureau of Prisons, mandatory minimum provisions generated between $79 million and $125 million in additional costs for federal offenders sentenced in that year."

It was the recognition of the additional costs for both construction and maintenance of prisons caused by mandatory sentencing that inspired the Louisiana legislature to require that each mandatory sentencing bill be accompanied by an impact statement that assesses how the bill would effect plea bargaining, jury trials, the prison population, and the corrections budget. It is significant that no mandatory prison sentences have been passed by the Louisiana legislature since impact statements have been required. In Alabama, a mandatory sentencing bill was introduced in 1990 which would have required a one-year term for possession or trafficking in any amount of drugs. The impact statement calculated the bill would generate a demand for 572 new prison beds at a cost of about $14 million in construction and $7 million a year for operation. The bill never became law. "Booklet".

New York's Rockefeller Drug Law with stiff minimum mandatory sentences "became one source of the State's serious prison overcrowding. The proportion of convicted drug felons sentenced to prison more than doubled between 1972 and 1975 [the law was passed in 1973]; the proportion given maximum sentences of more than five years, shot from 57% in 1974 to 91% in 1975. The increase was costly economically and otherwise." Currie, supra at 62.

Sentencing in the arena of drug law enforcement, which relies in substantial measure upon the use of minimum mandatory sentences, has been, according to the National Council on Crime and Delinquency, "a major cause of the increase in our prison population." From 1986-1991, the number of adults in prison nationwide for drug offenses tripled. In that same period, the number of offenders sentenced to federal prison convicted of drug crimes jumped from 25% to almost 50%. Not only were drug offenders being sentenced to jail who would not previously have been incarcerated, but "offenders convicted of drug crimes are also receiving longer sentences. For example, the average federal prison sentence for a drug offense rose from less than 4 years in 1980 to almost 8 years by mid-1990. The Department of Justice reports that since 1984, much of the growth in prison population has resulted from a doubling of the number of arrests for drug law violations and the tripling of the rate of incarceration for arrested drug offenders." "Booklet"

The cost of incarceration in state prisons and in the county jails is substantial. It is no secret that corrections budgets have continued to grow at an alarming rate and that the cost of housing an inmate in state prison is now estimated at approximately $25,000 a year per person. Such cost does include construction costs for new prisons.

2. Lengths of Sentences for Drug Offenders are Requiring the Release of Those Who Should be in Prison

Professor DiIulio reports that "there is a growing body of evidence that drug offenders are displacing other types of offenders. As more law enforcement resources have been devoted to arresting, prosecuting and incarcerating drug offenders, less have gone into suppressing other types of offenders. Such, at least, is the finding of several studies, most notably, a study of the Florida experience that blames "stepped-up anti-drug law enforcement for `an increased usage of early release, not only for drug offenders, but also for inmates convicted of violent crimes and those with criminal histories' [Boston MCCD Focus 6 (June 1991)]". "Overview" at 51.

3. Minimum Mandatory Sentences Tend to Punish the Smaller Drug Dealers Harshly

Minimum mandatory sentences result in unjustly harsh prison terms for petty drug dealers. Now, there is an emerging awareness that major drug dealers are able to avoid the consequences of minimum mandatory sentences when they cooperate with law enforcement, while the small dealer, who has no valuable information to give, spends the mandated time in prison.

A study of the impact of New York's drug laws conducted by the Correctional Association of New York found that major dealers often avoid prison terms by plea bargaining their sentences in exchange for information needed by law enforcement officials. Lacking viable contacts and information, minor dealers have little to bargain with and are frequently sentenced to mandatory minimum terms...

When officials in Delaware began to assess their tough anti-drug trafficking laws passed in 1989, which mandated penalties of at least 3 years in prison without parole or reduction in time for any reason, the vast majority convicted and imprisoned were first-time offenders. "Delaware officials now believe that as a result of the trafficking law, they have been pulling more minor offenders into the system -- at great expense -- without reducing drug use significantly."

Professor DiIulio has acknowledged that "there are many clear cut cases of mandatory sentencing practices that have resulted in harsh prison terms that yield little or nothing of social value: for example, petty drug dealers who are still behind bars as a result of New York State's Rockefeller era drug laws." "Overview" at 23. The establishment of organizations such as FAMM (Families Against Mandatory Minimums) has been spurred by the proliferation of visibly unjust minimum mandatory sentences. Those organizations do not decry the imposition of punishment, but rather, the length of sentence and the lack of judicial discretion to consider the offender's role in the offense and his personal characteristics before imposing sentence. The existence of an organization like FAMM also reflects the recognition of the disastrous social and financial havoc that mandatory sentences have wreaked upon the innocent spouses and children of offenders, whose length of incarceration is the result of the legislature rather than their personal record, character, or actual role in the offense.

4. Minimum Mandatory Sentences Skew the Fundamental Premise of the Judicial System and Shift Authority and the Exercise of Discretion from the Judiciary to the Prosecution.

Perhaps the best reason why mandatory sentences should be repealed, is to undo the fundamental damage done to both the doctrine of separation of powers, which has been a polestar of our constitutional system and to the adversary system itself. It is bedrock that our adversary system contemplates that the prosecutor and the defense lawyer are advocates/adversaries and should be equals, while the judiciary receives their advocacy, exercises its discretion, and makes rulings. The prosecutor represents the executive branch, while the court is the judicial branch. That wise constitutional separation of responsibilities and powers deserves veneration and requires the separation of the prosecution function from the traditional judicial role of imposing sentence.

Minimum mandatory sentences remove the judiciary from its constitutional role as the decision-maker. The prosecutor now assumes the combined role of advocate and arbiter at both the charging stage and the plea negotiation stage. This is so dangerously wrong because of its potential for abuse, and so contrary to the fundamental underpinning of the adversary system as well as the constitutional protection of the separation of powers doctrine that it cries out for correction.

Moreover, the prosecutors have been somewhat shameless about advocating minimum mandatory sentences because it helps them "move cases". Such an argument by prosecutors highlights the potential for abuse. What is meant by "move cases" is that defendants, who face the potential of a minimum mandatory sentence, can be coerced into pleading guilty to a lesser offense in order to avoid the impact of the minimum mandatory sentence should they lose at trial, especially where the defendant would not otherwise get such a lengthy sentence. This unfair coercion of guilty pleas is an attack on the constitutionally-protected right of our citizens to trial by jury, and eviscerates the entire panoply of constitutional rights embedded in both state and federal constitutions. Only the most cynical can condone "moving cases" at such a constitutional cost.

A description of a single routine state court case illustrates the unacceptable potential danger for abuse which occurs when a prosecutor, rather than a judge, is the only one who can exercise discretion. At 3:00 a.m. in the parking lot of a bar, the police interrupted two couples who were in an automobile ingesting a very small amount of cocaine. The facts were in dispute as to whose cocaine it was, and who distributed it to whom. The defendant, with no previous record, a history of consistent gainful employment, family ties, and -- apart from occasional drug use -- decent citizenship, maintained his innocence to the charge of possession with intent to distribute or distribution. Because the bar was within 1000 feet of a school, he was charged with a school zone violation, carrying a three-year minimum mandatory sentence. The defendant, who maintained his innocence, and had a substantial possibility of acquittal on all but the simple possession count, was forced to enter a guilty plea because he was faced with the hard fact of spending three years in jail if he lost. A judicial system that so burdens a defendant's trial by jury is a system that must be corrected. A system that requires the judge to impose a minimum mandatory three-year sentence on such a defendant needs amendment. See, State v. Bridges. 131 N.J. 402, 414 to 423 (1993) (Handler, J., dissenting).

Repealing minimum mandatory sentences would help return our constitutional system to balance and restore the prosecutor to his traditional role as advocate rather than combining his role as advocate with the new role as complete and unfettered arbiter of the fate of the accused. The combination of prosecutor and judge in one entity has long been the hallmark of tyranny.

5. Discrimination in the Imposition of Minimum Mandatory Sentences

Mandatory sentences have moved discretion from the open courtroom to the back rooms of the prosecutor's office where decisions are made about how an offender will be charged and what plea agreements will be offered and implemented. This has resulted in significant racial disparities. According to the United States Sentencing Commission, defendants pled to lesser charges in 35% of the cases that initially warranted a mandatory sentence. The Sentencing Commission found that mandatory sentences were more likely to be used against African-American and Hispanic defendants than white defendants; 67.7% of blacks received sentences at or above the mandatory minimum while only 54% of whites received such sentences. "Special Report to the Congress: Minimum Mandatory Penalties in the Federal Criminal Justice System, U.S. Sentencing Commission, August 1991".

There are other indications that the "war on drugs" and minimum mandatory sentences have focused largely on the poor, urban and mostly minority neighborhoods. Street sellers are easier to arrest than suburban, middle-class dealers. A revealing statistic is that in New York while Caucasians accounted for only 7% of drug offenders incarcerated in New York State, they occupied 47% of state-funded drug treatment slots in 1989. "Booklet".

V. Public Opinion

Respected United States District Court Judge Alfred M. Wolin and Senior Judge Leonard Garth of the Third Circuit Court of Appeals have publicly spoken against minimum mandatory sentences. In New York, Senior Federal Judges William K. Knapp and Jack B. Weinstein have refused to sentence in drug cases because of "mandated and unnecessarily harsh sentences for minor drug offenders which fail to deter,..." New York Times, July 8, 1993. The existence of an organization such as FAMM informs about the substantial nature of a growing public awareness of the harsh cruelties of minimum mandatory sentences.

VI. Recommendations