A Sentencing Shift?: Moving Away From Mandatory Minimums

Mandatory minimum prison sentences are again making headlines; from President Obama publicizing his related action-agenda earlier this month to actual reforms in the criminal justice system, to HBO comedian John Oliver punning about the injustice of mandatory minimums on his Sunday night show, "Last Week Tonight."

A mandatory minimum is a required threshold (i.e., "at least this much") sentence imposed by Congress or state legislators for individuals found guilty of certain crimes. Since the late 1980s, they have been widely used in the so-called "War on Drugs;" a decades-long initiative that many of us feel was long-ago "lost." The signature problem with mandatory minimums is that first time low-level drug offenders are routinely sentenced to substantial prison time without any discretion, despite mitigating circumstances surrounding their cases, including: lack of criminal history, minimal role in the offense, disproportionate impact on race, and other "soft" factors that would likely support a different outcome. This "one size fits all" formulation has proved to be so controversial the Massachusetts Supreme Judicial Court's Chief Justice, Ralph Gants, recently urged Massachusetts lawmakers to reconsider the state's mandatory minimum sentencing policies, altogether. During a Criminal Justice Reform Coalition speech earlier this year, Chief Justice Gants pointed out the inherent injustices when it comes to mandatory minimums for drug crimes, saying, "it treats a drug runner the same as a kingpin" and "treats a defendant motivated by addiction the same as those motivated by predatory greed."

The issue is more relevant now than ever, because the United States has a current adult prison population of 2.2 million, more than any other country in the world. [1]To put that number in domestic perspective, one in every hundred Americans is presently in prison or jail. Beyond the inequalities and injustices at issue are also the economic realities. The costs of incarceration are expensive; taxpayers are taking a closer look as to whether imprisoning low level drug offenders is worth the high price, when much needed dollars simply go to warehousing inmates instead of aiding public safety, advancing education, and/or treatment facilities.

Keeping the U.S.'s world-leading inmate population behind bars is costly. On the state level, taxpayers pay over $50 billion annually in prison-related costs. Without reform, this likely will not be reduced, as state spending on corrections has grown 300 percent in the last 20 years, as per a 2012 Pew Center on the States report. It's no coincidence that this timeframe corresponds with aggressive sentencing initiatives. With annual costs to keep one person in federal prison for a year at $30,619.85, on average[2], there is simply no way to "spin" locking up lower-level/bottom rung drug offenders as cost effective. But that's precisely the result of mandatory minimum drug sentences.

Luckily, mandatory minimums appear to be trending back toward broader judicial discretion for fair sentences. This is how it used to be and despite the age-old complaints about "forum shopping" it's exactly how it should be, with courts increasingly free again to look at all relevant factors before fashioning an appropriate sentence, instead of having decisions universally made for them by politically ambitious legislators. This week, Michigan took a step toward the criminal justice reformation when its Supreme Judicial Court held that judges are able to use facts that are not presented to the jury when sentencing, which violated the Sixth Amendment. The effect of the MI SJC decision is that it grants judicial discretion to sentence below, or above, what the minimum sentence guidelines mandate. As such, it reflects the principle argument for the abolishment of the mandatory sentences: giving a judge more discretion to carry out the appropriate justice, based on the unique facts and circumstances of each case and defendant.

While proponents of mandatory minimum sentencing continue to argue their deterrent value, it's inarguable that nearly half of the federal prison inmates are now incarcerated for drug offenses.[3] The same proportionality applies on the state level. Of those incarcerated, the large majority consists of nonviolent and first time offenders. In other words, in the interest of "deterrence" we are overwhelming our jails and prisons by locking up the entirely wrong elements; those most likely to be rehabilitated and/or reformed. Because it's clear the stringent mandatory minimums imposed by the U.S. Congress or their various state equivalents leave little leeway for judges to reduce prison time when circumstantially appropriate, there are three bills in the federal system currently that specifically address the need to reduce the mandatory minimum sentences for federal drug offenses.[4] In Massachusetts, Bill H.1620, in the 189th (Current) Massachusetts Legislative Session, proposes to eliminate mandatory minimum sentences related to drug offenses, all together.

Given extensive media coverage and the current push to depart from mandatory minimum sentences, it appears the criminal justice landscape is ready to take substantial steps toward reformation, with strong proponents like President Obama at the national level and activists and reform advocates at the state and local level, as well. This will be a "hot issue" to continue to watch and see if any of the proposed bills actually are enacted as federal or state law. It will also be interesting to see if there is enough momentum to reduce or eliminate the existing mandatory minimums for nonviolent drug offenders via related restorative acts increasing judicial discretion and premised on the best interests of justice.

[1] (2,217,000 prison population for the United States) Chart for "Highest to Lowest Prison Population Total"; International Centre for Prison Studies,

[2] "Annual Determination of Average Cost of Incarceration." Prison's Bureau, 3/9/2015

[3] 48%;

[4] Safe Justice Act H.R. 2944; Smarter Sentencing Act HR 920/ S 502; Justice Safety Valve Act H.R. 706/S. 353