The Impact of Mandatory Minimum Penalties in Federal Sentencing

Viewpoint by MARC MAUER

The impact of mandatory minimum suggests that it is quite unlikely that these penalties would have such an penalties in federal sentencing impact. Mandatory minimum penalties have not improved In examining the effect of federal mandatory penalties, the key data public safety but have exacerbated existing racial problem is that the federal court sys- disparities within the criminal justice system. tem handles only a small fraction, less than 10 percent, of all criminal cases. Therefore, attempting to draw any conclusions about the specific impact The U. S. Sentencing Commis- tainty to the sentencing process and of federal mandatory penalties on crime sion’s examination of the effects of that they will “send a message” to rates is fraught with imprecision. To mandatory sentencing is very timely potential offenders that specified state that the adoption of such penal- and will be of great benefit to both behaviors will be met with harsh and ties by Congress in the 1980s was policymakers and practitioners. certain punishment. directly responsible for reductions in While the Commission’s 1991 report Looking at the experience of the a wide variety of crimes that are gen- on these issues was quite valuable, past several decades, some observers erally prosecuted in state courts much has changed in the interim have contended that mandatory min- requires a great leap of faith that is and there is now more than two imums, including such federal penal- not supported by the evidence. decades of experience with these ties, have produced significant We can see this most clearly in the penalties. In addition, congressional benefits in reducing crime. At a 2009 realm of drug offenses, the category action regarding cocaine sentencing congressional hearing, for example, in which federal mandatory penal- issues and Senator Webb’s proposed former U.S. Attorney Michael J. Sulli- ties most often apply. Since drug commission to study the criminal jus- van asked, “Has the role that Con- offenses are widely prosecuted in tice system indicate that sentencing gress played in sentencing, including both state and federal courts, a issues are now in a period of reexam- the passage of mandatory minimum potential offender has no means of ination, and so the field will benefit sentences, had an impact on public knowing in which court system he or from a comprehensive assessment of safety and crime?” He concluded that she would be likely to be prosecuted current policies. “The answer to that question can eas- (assuming, of course, that the There are a variety of issues to be ily be found in crime statistics and is offender is even thinking about the addressed in examining mandatory buttressed by anecdotal story after prospects of apprehension). There- sentencing, but I will focus on two in story from across our nation. Crime fore, it is virtually impossible to particular. First, what effect have fed- rates over the past 30 years certainly break out any uniquely federal impact eral mandatory minimum penalties paint a picture of continuing success of mandatory sentencing. had on public safety? And second, to of reducing crime and victimization Even aside from this problem, what extent have these penalties through sound public policy.”1 measuring the impact of harsh sen- exacerbated existing racial disparities What, then, do we know about the tencing policies on crime rates is a within the criminal justice system? extent to which federal mandatory complex undertaking. While it is the penalties have been responsible for Public safety declines in crime? To date, there is Mandatory minimum penalties have virtually no data that is capable of This article is adapted from testimony before the United States Sentencing Commission on May been enacted over time for a variety demonstrating a direct link between 27, 2010. of reasons. Foremost among these federal mandatory penalties in par- 1. Statement of Michael J. Sullivan before the Subcommittee on Crime, Terrorism, and Home- are legislators’ professed belief that ticular and any declines in crime. land Security, House Committee on the Judiciary, such penalties will bring greater cer- Further, a broad range of research July 14, 2009.

6 JUDICATURE Volume 94, Number 1 July-August 2010 case that crime rates have generally arrests, harsher sentencing policies, gal drugs, there will be a large pool been declining since the early 1990s reduced parole releases, and of potential sellers, as evidenced by and that this has taken place at a increased parole revocations. Fed- the fact that the number of persons time when the prison population was eral mandatory sentencing penalties incarcerated for a drug offense has rising, this does not necessarily sug- play a relatively small role in this increased by more than 1000 percent gest that there is a clear and unam- overall scheme. since 1980. Since federal mandatory biguous relationship between these While there is little relevant data penalties are disproportionately two factors. Just prior to the begin- on the overall impact of federal employed for drug offenses, this sug- nings of the crime decline, in the mandatory penalties, there is gests that their overall impact is sim- period 1984-91, incarceration rates nonetheless a broad range of evi- ilarly limited. increased substantially and yet crime dence that suggests that it is unlikely Mandatory penalties may adversely rates increased as well. that mandatory penalties for drug affect recidivism. Whatever one may Looking a bit more expansively, a offenses have a significant impact on think about the wisdom of manda- comparison of trends in the U.S. and enhancing public safety. This is the tory sentencing, it is undeniable that Canada in recent decades is instruc- case for several reasons: such penalties serve to increase the tive. While there has been a great Deterrence is primarily a function of length of time that offenders serve in deal of attention focused on the U.S. the certainty, not severity, of punishment. prison by restricting the discretion of crime decline of the 1990s, similar To the extent that sentencing poli- judges and corrections/parole offi- declines were achieved in Canada as cies may deter individuals from cials. By doing so, these policies may well, yet these occurred while the engaging in crime, the research liter- have a criminogenic effect. A 2002 prison population was actually ature generally shows that increases review conducted by leading Cana- declining. Thus, we should be in the certainty of punishment are dian criminologists involved a meta- exceedingly cautious in attributing much more likely to produce an analysis of 117 studies measuring any substantial causal effect between effect than enhancements to the various aspects of recidivism. The rising incarceration and declining severity of punishment. That is, if we researchers concluded that longer crime rates. can increase the prospects that a periods in prison were “associated While incarceration has some given offender is apprehended, with a small increase in recidivism” impact on crime, this effect is gener- some persons will be deterred by that and that “the results appear to give ally more modest than many believe. knowledge. But merely extending some credence to the prison as The most optimistic research to date the amount of punishment that will ‘schools of crime’ perspective.”4 on the crime decline of the 1990s be imposed, when most offenders Federal mandatory penalties increase finds that 25 percent of the decline don’t believe they will be appre- the challenges for successful reentry. in violent crime can be attributed to hended, does little to add to any While not a problem exclusive to rising imprisonment,2 but other deterrent effect. In this regard, mandatory sentencing, the combina- scholarly work concludes that this mandatory penalties increase sever- tion of expanded federal prosecu- effect may be as small as 10 percent.3 ity, but have no direct impact on tion of drug offenses along with And in either case, such studies do increasing certainty, and are there- lengthier prison terms produced by not tell us whether using resources fore not likely to provide any signifi- mandatory penalties exacerbates the to support expanded incarceration is cant additional deterrent effects. challenges of reentry. This is due to more effective than targeted social Mandatory penalties are particularly the fact that since federal prisoners interventions, such as expanded pre- ineffective in addressing drug crimes. can be housed anywhere in the coun- school programming, substance While there is an ongoing debate try, many are in prisons far from abuse treatment, or improving high about the effect of imprisonment on their homes and are also serving school graduation rates, all of which reducing crime, drug offenses are long prison terms. This combination have been demonstrated to improve particularly immune to being of circumstances contributes to erod- public safety outcomes. Further, the affected by more and longer prison ing ties to family and community, the rise in incarceration over the past terms. This is largely due to the critical ingredients of successful two decades is a function of a range “replacement” nature of these reentry. of factors, including increased drug offenses, the fact that there is a virtually endless supply of potential Exacerbating racial disparity

2. William Spelman. The Limited Importance of offenders in the drug trade. Since In addition to the counterproductive Prison Expansion, in Alfred Blumstein and Joel the vast majority of incarcerated effects of mandatory sentencing on Wallman, THE CRIME DROP IN AMERICA (Cam- bridge University Press, 2000). drug offenders are from the lower public safety, mandatory minimum 3. Bruce Western, PUNISHMENT AND INEQUALITY and middle ranks of the drug trade, penalties also serve to exacerbate IN AMERICA (Russell Sage Foundation, 2006). 4. Paula Smith, Claire Goggin, and Paul Gen- their imprisonment in effect creates racial disparities within the criminal dreau, “The Effects of Prison Sentences and Inter- a “job opportunity” for someone else justice system. A combination of cir- mediate Sanctions on Recidivism: General Effects and Individual Differences,” (Solicitor General of seeking to earn some quick money. cumstances virtually ensures that this Canada, 2002). As long as there is a demand for ille- will be an inevitable outcome of such

www.ajs.org JUDICATURE 7 penalties. sentenced below the applicable the differences in average sentenc- We have seen for some time that mandatory minimum.”5 That review ing between African-Americans and racial disparities are produced in fed- found that 54 percent of white defen- White offenders than any possible eral case processing. As the Commis- dants were sentenced at the manda- effect of discrimination.”6 sion documented in its 1991 analysis tory minimum, compared to 67.7 These effects are not limited to the of mandatory penalties, “The dis- percent of Black defendants and 57.1 federal system. Mandatory penalties parate application of mandatory min- percent of Hispanic defendants. such as “three strikes” laws produce imum sentences in cases in which More recently, in regard to federal similar racial disparities. In California, available data strongly suggest that a mandatory penalties for crack for example, the state with the most mandatory minimum is applicable cocaine, the Commission’s 15-year far-reaching such law, African Ameri- appears to be related to the race of assessment of the federal sentencing cans constitute 29 percent of persons the defendant, where whites are guidelines concluded that “This one serving a felony sentence in prison, more likely than non-whites to be sentencing rule contributes more to but 45 percent of persons serving time for a three strikes offense. Why, though, would mandatory penalties uniquely produce such disproportionate racial and ethnic effects? Several factors are key in understanding these dynamics. First, and most critical, is the fact that mandatory penalties in the federal system have most often been applied to the prosecution of drug offenses. As a wealth of documenta- tion has shown, the drug war has had extremely disproportionate effects on African-American communities. This is not initially a function of sentencing policy, but rather law enforcement priorities; ultimately, this results in the application of harsh penalties to a population that is not necessarily representative of all persons who have violated the applicable laws. Clearly, there is no more obvious example of this than the fig- ure of African Americans constitut- ing at least 80 percent of those being charged with crack cocaine offenses over a 20-year period. A second, and somewhat more subtle, effect of mandatory penalties is that many such policies provide increasingly harsh punishments to offenders based on prior convictions. Perhaps the most extreme recent case in this regard was the

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5. United States Sentencing Commission, Spe- cial Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, August 1991. 6. United States Sentencing Commission, Fif- teen Years of Guideline Sentencing, November 2004. 7. Testimony of Ricardo H. Hinojosa before the House Committee on the Judiciary, Subcommit- tee on Crime, Terrorism, and Homeland Security, May 21, 2009. 8. Michael Tonry, SENTENCING MATTERS (Oxford University Press, 1996).

8 JUDICATURE Volume 94, Number 1 July-August 2010 Viewpoint, continued from page 8 sentencing of Weldon Angelos, a 24- Federal judges surveyed on criminal sentencing year-old Latino music producer in The U.S. Sentencing Commission has published the results Utah who was also a mid-level mari- of the first-ever survey of federal trial judges to elicit their juana seller. On three separate occa- views about federal sentencing under the advisory sions, Angelos sold marijuana to an undercover agent. During these guidelines system in effect since 2005.The survey, among transactions, Angelos possessed a many other findings, indicates that 62 percent of the weapon, which he did not use or responding judges believe that mandatory minimum threaten to use. Although all three sentences for various federal crimes are too high. The convictions were related, following the first conviction Angelos was survey, conducted from January through March 2010, drew treated for sentencing purposes as a responses from 639 of the 942 judges to whom it was sent, recidivist. Therefore, he was sen- a 67.8 percent response rate. Based on an analysis, the 639 tenced to a total of 55 years in fed- judges who responded sentenced 116,183 of the 146,511 eral prison—5 years for the first conviction, and then 25 years each individual federal criminal offenders sentenced in fiscal for the subsequent convictions based years 2008 and 2009 – 79 percent of the offenders on the prior conviction and the sentenced in that two-year span. weapons possession. The reason that mandatory penalties in such cases have a dispropor- The Commission has made a 36-page report of the survey tionate racial impact is that results available on its website, at http://www.ussc.gov/ defendants of color are more likely Judge_Survey/2010/JudgeSurvey_201006.pdf to have a prior record than are white defendants. Some people would argue that this is due to greater involvement in crime, others would mony to the House Judiciary Com- The growing bipartisan consensus contend that this results from dispro- mittee, 77.8 percent of crack cocaine on the need for reform of policies portionate processing by the crimi- defendants in 2008 did not qualify such as the cocaine sentencing dis- nal justice system. But regardless of for safety valve consideration, com- parity is an encouraging recognition one’s perspective, it is undeniable pared to 40 percent of powder that there is now a receptivity toward that this will be the case. Therefore, cocaine defendants.7 So while both examining the effectiveness of sen- it is virtually inevitable that minority the mandatory penalties and the tencing policies adopted in recent defendants will experience these safety valve provision are “race neu- decades. In regard to mandatory sen- penalties disproportionately. tral” in theory, in practice they tencing, there is a broad consensus To be clear, most observers would inevitably contribute to exacerbating among legal organizations, scholars, suggest that it is not necessarily inap- existing racial disparities. and many practitioners that such propriate for judges or for sentenc- policies are counterproductive to a ing structures to consider prior Conclusion fair and effective system of justice. criminal record as a factor in sen- In examining the effects of manda- Thus, the congressional mandate to tencing. But with the new generation tory sentencing since the 1950s, sen- assess these policies and the Com- of habitual offender and mandatory tencing scholar Michael Tonry mission’s thorough examination of sentencing policies imposing such concludes that “Evaluated in terms the relevant issues is very welcome. extreme penalties, the significance of their stated substantive objectives, Eliminating mandatory sentencing of this factor is dramatically esca- mandatory penalties do not work. from the federal court system would lated, as we can see in the case of The record is clear… that mandatory represent a significant step toward Weldon Angelos or many of the penalty laws shift power from judges developing a more rational and fair three strikes cases in California. to prosecutors, meet with wide- system of sentencing. g In addition, in the federal system a spread circumvention, produce dis- more significant prior record also locations in case processing, and too limits the possibility that a defendant often result in imposition of penal- can be considered for a “safety valve” ties that everyone involved believes 8 reduction in a mandatory sentence to be unduly harsh.” There is no rea- MARC MAUER case, which in turn adversely affects son to believe that Tonry’s 1996 con- is Executive Director of The Sentencing defendants of color. As Judge Hino- clusion in this regard has changed Project. ([email protected]) josa noted in his May 21, 2009 testi- substantially since that time.

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