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Less Is More

Mandatory minimum sentences should be minimized.

Apr 15, 2013, Vol. 18, No. 29 • By ELI LEHRER
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Hardly anyone who takes a close look at the network of federal and state laws mandating minimum prison sentences for myriad offenses can doubt that they waste billions of dollars, destroy lives, and do a disservice to justice. Reading the stories assembled by groups like Families Against Mandatory Minimums, one cannot help but feel sympathy for those caught up in the system. All over the country, clueless drug couriers, desperate addicts, small-time hoods without anyone to rat out, and other miscreants are serving years or even decades in prison because of mandatory minimums.

Gary Locke

Gary Locke

But while the current sentencing regime has huge flaws, abolishing all mandatory minimums would be a mistake. A look at the history of mandatory minimum sentences, their effects on crime, their social functions, and some recent policy successes suggest instead a “third way.” Rather than abolishing mandatory prison sentences for many crimes, they should instead be made shorter; in some cases, much shorter.

While mandatory minimum sentences are attached to most offenses under the civil law systems that prevail in the non-English-speaking world (as well as in Louisiana), they arrived in the United States only recently. Through the early 1980s, nearly all American crimes carried “indeterminate” sentences. Although practices differed between jurisdictions, indeterminate sentencing typically meant that offenses would carry a broad advisory range of time in prison (say, 5 to 20 years) that judges could and did disregard based on circumstances. Parole boards, furthermore, could often release offenders after they served only a fraction of the low end of this sentence. Thus, in places like California, a tough-sounding “20-year” sentence for a violent felony might have meant just a year or two if an inmate behaved well behind bars and participated in educational programs.

As crime rose nearly every year between the 1950s and 1980s, these practices produced understandable outrage. They let many serious criminals out of prison far too easily. Moreover, they appeared discriminatory and sometimes were: Wealthy, educated, and, more often than not, white offenders would sometimes avoid time behind bars altogether, even when they committed the same crimes as poorer, less-educated, and minority counterparts.

Mandatory minimums thus confronted real public policy problems. Coupled with policies that replaced discretionary parole boards with mechanical “good time” systems that reduced sentences by a set amount each day an inmate stays out of trouble, they assured that the length of sentences actually served bore a resemblance to those specified in statute.

For the most part, the changes worked as intended. As prison populations skyrocketed—partly owing to mandatory minimum laws—crime fell and the worst offenders started spending more time behind bars. A major 2009 regression analysis of California’s “three strikes law”—which mandates life in prison with almost no possibility of early release for people who commit three felonies—showed that it had significantly lowered overall crime. While access to better legal counsel no doubt continues to place the well-off at an advantage in the criminal justice system, mandatory minimums assure that even the richest and best-connected defendants no longer avoid the sentences that less-fortunate offenders receive as a matter of course.

Just as important, wider use of prison sentences allows for appropriate levels of retribution, the practice of punishing offenders for the harm they inflicted on society. Retributive justice—long recognized as a major function of the criminal justice system, along with incapacitation, rehabilitation, and deterrence—is largely absent from the other three types of sentences (fines, community supervision, and community service) available to judges. While fines obviously deprive an offender of resources and may deter certain crimes, they rarely repair the damage done by a crime and generally aren’t paid anyway.

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