Missing the Mark with Mandatory Minimums: 25 Years of a Flawed Strategy
Nkechi Taifa discusses the flaws of the criminal justice system and its reliance on mandatory minimum sentencing.

September 20, 2011

By Nkechi Taifa

This piece originally appeared in the American Constitution Society Blog

For a quarter of a century mandatory minimum sentences have resulted in egregiously severe and harsh punishments which often do not fit the crime, have racially disparate outcomes, increase overcrowding, and exacerbate prison costs. These sentences are the result of a war on drugs that has been disproportionately fought in Black and Latino communities. The impact of the war on drugs on individuals, families, and communities has been likened to a “new Jim Crow,” resulting in the mass incarceration and over-representation of people of color in the criminal justice system.

As a quick reminder: A mandatory minimum sentence is a prison term predetermined by Congress and automatically imposed for certain crimes, primarily drugs and firearms. It is the minimum penalty that a judge must impose. In most cases the sentence is at least five years, and often it is 10, 15, or 20 years or more, even for nonviolent first time offenders.

One of the problems with inflexible mandatory sentencing laws is that they are applied regardless of the role of the defendant and of other factors, which judges traditionally take into account for sentencing, such as the history and characteristics of the defendant and the likelihood of rehabilitation.

In 1991, the U.S. Sentencing Commission completed a study on mandatory minimums, finding them ineffectual and that they: 1) were disparately applied to people of color; 2) obstructed their deterrent value due to uneven application; 3) eliminated consideration of mitigating circumstances; and 4) usurped the sentencing power of the court, placing it in the hands of the prosecution.

The Commission was not alone in its concern. During the past 20 years, the U.S. Judicial Conference and the judges of the 12 Circuit Courts of Appeal that hear criminal cases have passed resolutions opposing mandatory minimum sentences. The prestigious American Bar Association’s Justice Kennedy Commission has also called for their abolition.

The time is long overdue for Congress to comprehensively reassess the role and impact of the counterproductive sentencing laws and policies it enacted 25 years ago. They must eliminate harsh prison sentences as the centerpiece of the nation’s crime-fighting strategy, particularly for non-violent offenders.

The Congressional Black Caucus Foundation will address these issues as part of its annual legislative conference (ALC) this week. Congresswoman Maxine Waters, architect of a bill to eliminate mandatory minimum sentences, hosts a stellar panel on the issue at each year’s ALC. This year the panel focus will be on the achievements gained in breaking the crack-powder disparity. Another panel, led by Institute of the Black World 21st Century, will highlight intergenerational voices speaking out against the war on drugs, building upon their prominent eventearlier this year where Black leaders called for “a war” on the war on drugs.

As we celebrate improvements to crack cocaine sentencing and address the war on drugs during these panels, we must continue to hold high the goal of the complete elimination of mandatory minimums, particularly for drug offenses. The progress made to lessen the disparity between crack and powder cocaine was merely the tip of the drug war’s iceberg. If we are truly serious about making a dent in prison overcrowding, reducing the deficit, eliminating irrational sentencing, and minimizing racial disparities, we must creatively ratchet up the effort to raise awareness of the necessity for reform.

While the Congressional Black Caucus has been at the forefront of successful legislation, such as the Fair Sentencing Act and theSecond Chance Act, these bills would not have passed without the momentum of a strong movement, which included solid backing from conservatives and law enforcement.

I challenge everyone – progressives, conservatives, faith groups, law enforcement, family members, students, service providers, professional organizations, and even celebrities – to mobilize within your respective constituencies and, from your unique vantage points, speak out in support of sensible and smart policy reform that brings justice to sentencing. You must let your senators and representatives hear your voices: your sermons, your songs, your petitions, your pleas, your personal testimonies, and your indignation.

Effective alternatives to incarceration and new approaches to address crime and drug policy must be applauded and implemented. Regardless of whether your primary concern is racial discrimination, over-federalization, stringent sentencing, overcrowding, cost-savings, forgiveness, or redemption, you must bring your passion to this struggle.

With a U.S. prison population of more than two million – the highest reported rate of incarceration in the world – nothing short of a national movement of outrage will suffice to dramatically shift what has disturbingly become the norm in criminal justice policy.

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