The Magazine

Less Is More

Mandatory minimum sentences should be minimized.

Apr 15, 2013, Vol. 18, No. 29 • By ELI LEHRER
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Community service, particularly oriented towards helping those harmed by one’s crime (so-called “restorative justice,” often considered a fifth major purpose of the criminal justice system), can and should play a larger role in sentencing than it does, but, like fines, does not serve society’s interest in retribution. Even when it involves objectively unpleasant tasks like picking up garbage, community service is a socially admirable thing that many do voluntarily. Community supervision, parole, and probation also deserve broader use and can incapacitate, but don’t carry nearly the sting of prison time. Particularly for people who commit one or two awful acts (say, smuggling heroin as a favor to a lover or killing someone while driving drunk) but haven’t lived a life of crime, simply meeting with a probation officer, submitting to drug tests, and observing a curfew is more an inconvenience than a punishment.

And thus, there seems to be a paradox. Mandatory minimums can have horrible consequences but have helped to reduce crime, increase fairness, and satisfy standards of retribution. This doesn’t mean the current system of mandatory minimums should remain in place. Indeed, one recent innovation appears to offer a happy medium that would retain most of the good effects of mandatory minimums while reducing the bad ones: a practice called “swift and certain sanctions.”

Such “swift and certain” regimes, used largely for people on parole and probation, sentence offenders to very short stays in prison—often only a weekend—when they fail a drug test or get caught hanging out with criminal buddies. This contrasts with traditional parole and probation systems that allow multiple violations with no serious consequences but, at some point, send offenders back behind bars to serve out multiyear sentences. 

“Swift and certain” plans have resulted in enormous increases in compliance with parole and probation conditions, reduced crime, and, by replacing long sentences with short ones, saved millions of dollars in incarceration costs. The research on these programs done by the National Institute of Justice and Pew Charitable Trust’s Public Safety Performance Project strongly suggests that incarceration has a rather low “minimum effective dose,” to use the medical term. A little time in jail can actually be more effective in producing socially desirable outcomes than a long stay in prison, so long as the punishment is relatively certain.

Applying the same type of standard to criminal laws on the front end of the system could produce similarly beneficial results. The social harm from mandatory minimums—at least for less serious offenders—comes mostly from their length. The financial costs of imprisonment accrue with each day prisoners spend behind bars. The personal costs to prisoners grow progressively more significant over longer and longer sentences. Any sentence of more than a month or two makes it impossible to hold onto a job. All but the strongest personal relationships, likewise, will end after more than a year or two behind bars.

On the other hand, the deterrent and retributive effects of prison for people who aren’t ensconced in the underworld are significant even with a short sentence. The amount of social disgrace aimed at stockbrokers and lawyers who are locked up is roughly the same whether they serve one month or one year. Likewise, nearly every prison memoir recounts a common experience that the simple shock of being locked up quickly wears off, and much of the real “punishment” happens in the first few days and weeks behind bars.

This would suggest a partial revision of criminal laws that’s somewhere between the mandatory minimum system of today and the almost purely discretionary system that prevailed before the 1980s. Under such a system of “minimum minimums,” almost all offenses that currently carry a mandatory minimum would still require some time behind bars. On the other hand, the minimum sentences in question, particularly for nonviolent offenders like embezzlers and drug couriers, would be much shorter. To emphasize the retributive character of imprisonment for nonviolent offenses, judges might be encouraged to make greater use of practices that schedule sentences in ways that maximize punishment while reducing costs to society. A student caught dealing cocaine in a college dorm, for example, might get sentenced to spend spring break or summer vacation in jail.

These short, sometimes shocking prison sentences would serve both to punish offenders and deter future crime. But they would do so without destroying lives or warehousing human capital, as the current regime of mandatory minimum prison sentences is doing.

Eli Lehrer is president of R Street.

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