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Mandatory minimums are still bad policy

Roger Williams Law School professor David Zlotnick's new study on mandatory minimum sentences has received a good amount of attention.

Back in 2005, Alex Provan and myself reported on how Zlotnick came to oppose mandatory minimums, and how, despite widespread opposition to the practice among judges, politics presents a sounder approach:

As a twenty-something federal prosecutor in Washington DC, during the crack epidemic in the late ’80s, David M. Zlotnick realized that mandatory minimum sentences gave him more discretion than judges who had been on the bench for decades. Since the US attorney’s office had the resources, it "prosecuted every five-gram crack-cocaine case." Zlotnick recalls how the poor black kids caught with these small quantities received "sentences of 10 to 15 years, as if they were kingpins of some sort, which seemed absurd to me.Ó Cases involving similar amounts of powder cocaine, which disproportionately involved white defendants, got far less scrutiny.

After four years as a prosecutor, Zlotnick became the first litigation director of Families Against Mandatory Minimums (www.famm.org), a DC-based nonprofit founded in 1991 to challenge these sentences. And although FAMM was a relatively lonely voice at the time, a consensus has since developed among academics, judges, and others that mandatory minimums, which require specified prison sentences for particular offenses, represent a deeply flawed approach to criminal justice. Considering this, it’s no wonder that officials at Roger Williams University law school, where Zlotnick is now a professor, had a hard time finding public comments in favor of mandatory minimums when they organized a symposium in October on sentencing rhetoric.

Laws prescribing mandatory minimums for certain crimes, usually drug offenses, originated to reduce sentencing disparities and to assure that offenders would receive equal time for the same crime. In the 1970s, New York and Michigan became the first states to institute such policies. New York’s Rockefeller drug laws, for example, mandated a sentence of 15 years to life for selling or possessing two ounces of heroin or four ounces of cocaine. Michigan’s notorious "650 Lifer Law" consigned mid-level offenders convicted of delivering more than 650 grams of heroin or cocaine to prison for the rest of their years. By the mid-’90s, every US state had mandatory minimums or sentencing guideline laws. Rhode Island’s somewhat flexible minimum sentences, codified in the state’s Uniform Controlled Substances Act, date to 1988.

The current crop of federal sentencing laws was enacted in the Anti-Drug Abuse Act of 1986, which responded to the crack-fueled explosion of gun violence by instituting harsh penalties for trafficking small amounts of crack-cocaine. The most common minimums are based on the weight of the drug, or the presence of a firearm, since a defendant’s position in a criminal enterprise cannot be uniformly codified.

Rather than serving as a deterrent, though, mandatory minimums have disproportionately landed low-level offenders in prison, resulting in considerable increases in the growth of America’s prison population — and a growing racial disparity in the federal prison population — while having little effect on the availability of drugs.

In fact, although the overall US crime rate has fallen since 1991, according to the Bureau of Justice Statistics, the number of people incarcerated has increased by 49 percent since then, largely as a result of changing sentencing laws. According to FAMM, the average federal drug sentence leaped from 65.7 months in 1984 to 95.7 months in 1991. (By 2003, Rhode Island’s own prison population has grown 625 percent over the last 30 years, according to the state Department of Corrections, with the state now spending $130 million annually to keep about 3500 people incarcerated.)

These trends have aggravated budget crunches, leading some states to change course. Most notably, in Michigan, the Republican sponsor of the original mandatory minimum measure later turned against it. Activists have redoubled their efforts, joined by voices from across the political spectrum, including federal judges and US Supreme Court justices who question the wisdom of these draconian measures.

Yet even though mandatory minimums have been widely repudiated, and a number of states have started to diminish their reach, the reluctance of politicians to appear "soft on crime" commonly precludes progress. In speaking with about 100 Republican-appointed judges, Zlotnick says he has found only one who currently supports mandatory minimums. "I would say the only place you hear support for mandatory minimums is the [US] Department of Justice, which claims they need mandatory minimums to leverage cooperation," he says, "and from right-wing politicians in Congress, who think it sells in Peoria."

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