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Analysis

End Mandatory Minimums

Inflexible, harsh sentences exacerbate crime and racial disparities alike.

  • Alison Siegler
October 18, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

To dismantle Amer­ica’s dehu­man­iz­ing and racially skewed human caging system, we must elim­in­ate mandat­ory minim­ums. Forget swinging the pendu­lum from tough-on-crime to leni­ency; it always swings back. Instead, we need a paradigm shift. A paradigm shift occurs in three phases: it starts with a domin­ant paradigm, moves through a crisis phase, and ends with “a revolu­tion­ary change in world-view” that consti­tutes a new domin­ant paradigm.

Currently, the domin­ant paradigm in the crim­inal legal system is the myth that impos­ing harsh mandat­ory minimum sentences and lock­ing people of color in cages are neces­sary to keep white people safe. At the federal level alone, mandat­ory minimum penal­ties form the corner­stone of the human caging system. Prosec­utors’ use of mandat­ory minim­ums in over half of all federal cases dispro­por­tion­ately impacts poor people of color and has driven the expo­nen­tial growth in the federal prison popu­la­tion in recent decades. All 50 states and DC also have mandat­ory minimum senten­cing laws.

The prin­ciple that under­lies mandat­ory minim­ums is dehu­man­iz­a­tion. As Isabel Wilk­er­son writes, our coun­try’s racial “caste system relies on dehu­man­iz­a­tion to lock the margin­al­ized outside the norms of human­ity so that any action against them is seen as reas­on­able.” So many of the horrors Wilk­er­son cata­logs in the “program of purpose­ful dehu­man­iz­a­tion” insti­tuted by the Nazis and by the United States during chat­tel slavery have analogues in today’s carceral state: anonym­ous uniforms repla­cing cloth­ing, inmate numbers supplant­ing names, the shav­ing of heads, the roll calls. Racial dispar­it­ies in the applic­a­tion of mandat­ory minim­ums are a partic­u­larly stark illus­tra­tion of Wilk­er­son’s thesis. Mandat­ory minim­ums dehu­man­ize people by — in the words of Judge Stephanos Bibas — acting as “sledge­ham­mers rather than scalpels,” fall­ing with equal force on people whose circum­stances are dramat­ic­ally differ­ent from one another and prevent­ing judges from calib­rat­ing punish­ment to suit the person or the crime.

Over the past century, the mandat­ory minim­ums paradigm has moved through the second phase of a paradigm shift — the crisis phase — becom­ing the subject of dispute and contro­versy. Congress first enacted mandat­ory minim­ums for drug offenses in the early 20th century. But reformers pushed back, and by mid-century a rehab­il­it­at­ive senten­cing model began to replace the punit­ive model. In 1970, Congress repealed most drug-related mandat­ory minim­ums, taking more of a public health approach to drug policy.

But, in keep­ing with the chaos that arises from a paradigm shift, by the mid-1970s, anti-impris­on­ment and anti-discrim­in­a­tion reformers on the left began rail­ing against the rehab­il­it­at­ive model because it gave judges too much discre­tion, precip­it­at­ing dispar­it­ies. Para­dox­ic­ally, by criti­ciz­ing “arbit­rary” senten­cing prac­tices, these reformers (chief among them, Sen. Edward M. Kennedy of Massachu­setts) ulti­mately helped usher in the current tough-on-crime era. In the mid-’80s, mandat­ory minim­ums reentered the federal system with a vengeance as a pillar of Pres­id­ent Reagan’s “War on Drugs.” By the end of the 1980s, all 50 states had enacted mandat­ory minim­ums.

Since then, the mandat­ory minim­ums paradigm has come under fire for three primary reas­ons: the real­loc­a­tion of power from judges to prosec­utors; the exten­sion of racism and classism; and the fail­ure to advance community safety.

First, mandat­ory minim­ums shackle judges. Although senten­cing is supposed to be carried out by a neut­ral judge, mandat­ory minim­ums upend this system by posi­tion­ing one adversary — the prosec­utor — as the ulti­mate decision-maker, barring the judge from consid­er­ing a person’s history, culp­ab­il­ity, or family respons­ib­il­it­ies. That is, if a prosec­utor charges someone with a 20-year mandat­ory minimum at the outset of a case and that person is found guilty, the judge not only has no power to change the charge, but is legally bound to put that person in prison for at least 20 years regard­less of whether they were a leader or a lackey. The judge is prohib­ited from consid­er­ing that person’s indi­vidual circum­stances or show­ing mercy.

Other prob­lems flow from this perver­sion of the power balance. Mandat­ory minim­ums “provide prosec­utors with weapons to bludgeon defend­ants into effect­ively coerced plea bargains” and convince people to cooper­ate against others. This produces the Cooper­a­tion Para­dox: Big fish who are more culp­able and have inform­a­tion about other crim­inal activ­ity can avoid a mandat­ory minimum by collab­or­at­ing in the prosec­u­tion of others. Mean­while, the less culp­able little fish are yoked with high mandat­ory minim­ums. They become casu­al­ties of a process that sets aside propor­tion­al­ity or mercy in favor of increas­ing the number of convic­tions. Consequently, the least culp­able play­ers incur severe punish­ments, while the most culp­able lever­age their know­ledge into leni­ent plea deals.

Second, prosec­utors’ power over mandat­ory minim­ums in turn creates racial dispar­it­ies, oblit­er­at­ing any pretense of an unbiased system. A recent study finds that prosec­utors’ mandat­ory minimum charges resul­ted in Black indi­vidu­als spend­ing more time in prison than whites for the exact same crimes. In fact, prosec­utors bring mandat­ory minim­ums 65 percent more often against Black defend­ants, all else remain­ing equal. Another study simil­arly finds that some federal prosec­utors charge Black and Latino indi­vidu­als more often than white indi­vidu­als with posses­sion or sale of a quant­ity of drugs just suffi­cient to trig­ger a mandat­ory minimum; the dispar­ity is highest “in states with higher levels of racial animus.”

Finally, mandat­ory minim­ums do not promote community safety. Rather, any prison time at all increases the risk of future crime because “incar­cer­a­tion is inher­ently crim­ino­genic”; mandat­ory minim­ums only exacer­bate this situ­ation. Flor­ida exper­i­enced a 50 percent spike in crime after enact­ing mandat­ory minim­ums. Long sentences also make it more diffi­cult for people to rein­teg­rate into soci­ety. And our over­re­li­ance on pris­ons makes us less safe by divert­ing resources from other crit­ical public safety needs. In contrast, stud­ies show that shorter sentences in drug cases neither dimin­ish public safety nor increase drug abuse.

The domin­ant paradigm is vulner­able, and insti­tut­ing a new paradigm is both possible and crucial. Pres­id­ent Biden and his attor­ney general have denounced mandat­ory minim­ums, as did former Attor­ney General Eric Holder. Even though federal prosec­utors — all of whom are subject to super­vi­sion by the Depart­ment of Justice — have long been the primary proponents of mandat­ory minim­ums, Attor­ney General Merrick Garland affirmed this posi­tion during his confirm­a­tion hear­ings: “We should . . . , as Pres­id­ent Biden has sugges­ted, seek the elim­in­a­tion of mandat­ory minimum[s].”

However, despite Garland’s testi­mony, his Depart­ment of Justice has given no sign that it will stop pursu­ing mandat­ory minim­ums. In fact, earlier this year, Garland rein­stated a 2010 Holder policy that incor­por­ated a long-stand­ing direct­ive to federal prosec­utors: “Where two crimes have the same stat­utory maximum and the same guideline range, but only one contains a mandat­ory minimum penalty, the one with the mandat­ory minimum” should be charged. To make matters worse, Garland chose not to rein­state a 2013 Holder policy that both direc­ted prosec­utors to decline to charge a mandat­ory minimum in “low-level, non-viol­ent drug offenses” and expli­citly acknow­ledged that such sentences “do not promote public safety, deterrence, and rehab­il­it­a­tion.” After twenty years defend­ing people charged with federal crimes, I’ve learned that prosec­utors are rarely agents of change. This is unfor­tu­nate because Garland has real power to reduce racial­ized mass incar­cer­a­tion. He can and should instruct federal prosec­utors to refrain from char­ging and seek­ing mandat­ory sentences, espe­cially in drug cases, where popu­lar oppos­i­tion to mandat­ory minim­ums is strongest. Half meas­ures won’t be effect­ive; empir­ical work suggests that the Obama admin­is­tra­tion’s efforts to temper mandat­ory minim­ums in drug cases did little to reduce sentences or racial dispar­it­ies.

Given that reform efforts by the Depart­ment of Justice would provide, at best, a tempor­ary fix, congres­sional action is needed to shift the paradigm and mitig­ate racial inequal­ity. Congress must repeal federal mandat­ory minim­ums, make the change retro­act­ive for those already serving mandat­ory minimum sentences, and incentiv­ize states to follow suit. The House just passed Sen. Cory Book­er’s EQUAL Act by a bipar­tisan vote, with the Biden admin­is­tra­tion’s endorse­ment. This bill would elim­in­ate the crack/powder dispar­ity that results in longer mandat­ory minimum sentences for Black Amer­ic­ans; but it would not end mandat­ory minim­ums. The most compre­hens­ive solu­tion intro­duced in recent years was the Mandat­ory Minimum Sentence Reform Act of 2017, which would have repealed all mandat­ory minim­ums for federal drug crimes. The bipar­tisan Smarter Senten­cing Act of 2021 would enact a narrower reform, redu­cing mandat­ory minim­ums for certain non-viol­ent drug offenses and making other reforms retro­act­ive.

Any of these reforms would be a step toward estab­lish­ing a new paradigm that abjures mandat­ory minim­ums and respects human dignity. Attempts to stitch up the tattered old paradigm are futile and will not erad­ic­ate the spread­ing stain of racial inequity. We must instead heed Justice Sonia Soto­may­or’s message that, until we value the lives, rights, and liber­ties of those on the receiv­ing end of the system, “our justice system will continue to be anything but.”

Alison Sieg­ler is a clin­ical professor of law and the found­ing director of the Federal Crim­inal Justice Clinic at the Univer­sity of Chicago Law School. She previ­ously served as an attor­ney with the Federal Defender Program in Chicago. She thanks Clare Down­ing, Mikaila Smith, Jaden Less­nick, and Michael Jeung for their tremend­ous research assist­ance and Profess­ors Erica Zunkel and Judith Miller for resol­utely bend­ing the arc toward justice.