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.
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.
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.