Minimums No Longer Mandatory?

April 26, 2009 1:03 PM

Legislation has been introduced in the U.S. Congress to repeal mandatory minimum sentences associated with drug offenses. If passed, the federal government would join eighteen other states in abandoning the "tough on crime" stance of the 1980's when it comes to drug offenders. State reforms include including New York's legislative repeal of the Rockefeller Drug Laws, Michigan's repeal of 650 lifer sentencing, North Dakota's repeal of one-year mandatory minimum sentences for first-time drug offenders, Arizona's Proposition 200, which required probation and treatment for nonviolent drug offenders, Louisiana's decision to restore eligibility for parole and probation to nonviolent offenders, and the Kansas Sentencing Commission's recommendation for mandatory treatment for nonviolent offenders.

These reforms follow a shift in public opinion that overwhelmingly favors rolling back mandatory minimum sentences. Such sentences have been criticized by judges from the trial level to the Supreme Court of the United States, including Justice Stephen Breyer, former Chief Justice William Rehnquist, and Justice Anthony Kennedy, who branded mandatory minimums unwise and unjust.

Mandatory minimum sentences for drug offenses are sometimes longer than violent crimes such as manslaughter. Mandatory sentencing is only rarely visited on in its intended target; only 11% of federal drug defendants are classified as high-level dealers, leaving street-level defendants and other peripheral figures to bear the brunt of 5, 10, or 20 year sentences. Mandatory minimum sentences interfere with access to treatment, contribute to higher rates of recidivism, have not been shown to be cost effective.

posted by Law Talkin' Guy (46 comments total)

Now wait just a damned minute. Do you mean to tell me that stuffing non-violent drug offenders into already overcrowded prisons doesn't actually fight crime, and that maybe we should be looking at recreational drug use in another way? Oh, sure. Whatever you say, comrade.
posted by Marisa Stole the Precious Thing at 1:17 PM on April 26 [23 favorites has favorites]

I want to be encouraged, but a bill being introduced in Congress and referred to committee is really a non-event.

23 co-sponsors is a good sign though.
posted by Bokononist at 1:23 PM on April 26 [1 favorite has favorites]

Please, please, please, please, please.

Oh, please let this happen.
posted by palmcorder_yajna at 1:25 PM on April 26

It would be nice if this was being done because it made sense.....

But I'm certain it's about reducing the costs of incarceration.

but...whatever....
posted by HuronBob at 1:38 PM on April 26

i'm with you, bokononist.

something something something sausage is tasty
something something disgusting to watch it being made
posted by CitizenD at 1:38 PM on April 26

Now wait just a damned minute. Do you mean to tell me that stuffing non-violent drug offenders into already overcrowded prisons doesn't actually fight crime, and that maybe we should be looking at recreational drug use in another way? Oh, sure. Whatever you say, comrade.

Oh, they'll still be stuffed in there, just for a shorter period of time. Probably plenty of time to wreck a life.

This might make the Drug War just palatable enough to keep dragging on for another generation or two.
posted by codswallop at 1:46 PM on April 26 [2 favorites has favorites]

an interesting, somewhat related note from Glenn Greenwald today
posted by Hat Maui at 1:46 PM on April 26 [1 favorite has favorites]

Drug war fuckin' sucks.
Mandatory minimums fuckin' suck.
The people working their asses off to change this are heroes.
The "ehhh nothing will ever change/US still sucks right? lol" comments get on my nerves a bit.
posted by drjimmy11 at 1:53 PM on April 26 [2 favorites has favorites]

Nice post!

In a free society, there should be no such thing as a consensual crime, such as buying or enjoying drugs. If drug use causes problems, it is by definition breaking another law (stealing to feed a habit) or an illness (not being able to work because you are dope sick).

Until we treat drug use as a health issue we'll be morally in the wrong. Punitive sentences are absolutely the wrong way to deal with this.
posted by wires at 1:54 PM on April 26 [1 favorite has favorites]

One small step for the rationalization of US drug laws.

One giant leap for the sanity of those trapped in the net.
posted by paisley henosis at 2:01 PM on April 26

Decriminalization in Portugal — everything was decriminalized and the monies redirected toward helping people kick the habit. It has been an astonishing success.

It amazes me that we know what does and does not work, and yet we persist in doing the stupidest, wrongest things.
posted by five fresh fish at 2:05 PM on April 26 [3 favorites has favorites]

Oh, they'll still be stuffed in there, just for a shorter period of time. Probably plenty of time to wreck a life.

This might make the Drug War just palatable enough to keep dragging on for another generation or two.

Whew! Thank goodness for that. For a moment there I was worried we were coming to our senses.
posted by Marisa Stole the Precious Thing at 2:11 PM on April 26

"But I'm certain it's about reducing the costs of incarceration."

I'm fine with good answers to practical questions leading to this outcome, even if it wasn't the question I wanted it to be. Reducing costs in the criminal justice system by eliminating unnecessary incarceration of non-violent offenders makes sense, even though it took going broke to figure it out. The fact that these ideas are getting traction now is making me feel optimistic about the whole situation. We may end up better off for all this calamity.
posted by krinklyfig at 2:14 PM on April 26

Somewhere, Serj is smiling down upon Congress.
posted by rubah at 2:15 PM on April 26

Unfortunately Maxine Waters doesn't have a whole lot of juice, nor do many of the co-sponsors. But John Lewis is on there, as is Barney Frank, which is good.
posted by DavidNYC at 2:21 PM on April 26

"It amazes me that we know what does and does not work, and yet we persist in doing the stupidest, wrongest things."

There is a problem with perception and who people listen to as authoritative. There is a general perception among a lot of people in the US that legalizing in any way leads to disaster, or at least much worse outcomes, though there is no evidence to prove this is true. This is what the law enforcement organizations have been saying and government sponsored anti-drug organizations for many decades, and it's very difficult to break through that misinformation. The propaganda only serves to reinforce the policy, whether it works or not, but people believe it because these are the people who deal with it, so they should know best what works, right? The idea that the government would deliberately misinform people over such a serious issue and many billions of dollars in spending at the expense of the public safety and health is very hard to accept, like learning that mom and dad aren't perfect people, so people are reluctant to embrace it. Legalization proponents are depicted as clowns in the media, like a fringe group with humorous motivations. But perceptions are changing, and anti-drug programs and policies which don't work aren't as acceptable or easily papered over when there isn't the money to spend on them. Prohibition was repealed during the height of the Great Depression. I'm OK with that.
posted by krinklyfig at 2:27 PM on April 26

It amazes me that we know what does and does not work, and yet we persist in doing the stupidest, wrongest things the most profitable things for a small group of businesses with a powerful lobby.

We must all remember that it is no coincidence that these minimum sentencing laws were passed right around the same time that the penal systems were becoming increasingly privatized. To them, the incarcerated population is their customer base. These companies want more and fuller prisons.
posted by sourwookie at 2:28 PM on April 26 [3 favorites has favorites]

What common sense couldn't do, the budget crisis will take care of.
posted by nax at 2:35 PM on April 26

"There is a general perception among a lot of people in the US that legalizing in any way leads to disaster, or at least much worse outcomes, though there is no evidence to prove this is true."

By the way, this is very much the official line of the Democratic Party, too. The Boomers embraced the anti-drug hysteria when they started having kids in the '70s and '80s. People like Tipper Gore could talk about going to Dead concerts and simultaneously try to censor other music through her unaccountable government access, and it's why Bill Clinton was so half-assed when asked about his past marijuana use. For a long time the so-called progressive wing has been trying to placate the irrational fears of (some) parents. Obama is moving in a better direction, though he's taken a moderate line as far as policy statements and single endorsement of medical marijuana. He may be able to change it by allowing it to happen, by allowing Congress to push through efforts like this by not speaking out against them, by starting out very small with a safe issue like medical marijuana and letting it snowball on its own, though I'm not at all sure that's what he really wants. Democrats before him have always decided that the political flak wasn't worth it and stayed away from the issue or came down as pro-Drug War. But that may not matter as much now. A real debate on the issues will lead to the best answers, but we haven't had much of that until very recently, and it's only starting.
posted by krinklyfig at 2:49 PM on April 26

It amazes me that we know what does and does not work, and yet we persist in doing the stupidest, wrongest things.

There is nothing -- nothing -- that politics cannot ruin.
posted by rokusan at 3:16 PM on April 26

I'm a social worker with Philly's drug court and it is mind boggling what kind of time most of my clients are looking at if they can't successfully complete treatment. We're talking 7-15 and sometimes 10-20 for a couple of bundles of dope or crack. Fifteen years upstate for a nonviolent first timer for possessing $1000 worth of dope, retail, is just unreal.

But I'm certain it's about reducing the costs of incarceration.

Who cares? Researchers were able to get the Bush administration to adapt Housing First as the predominant model for homeless services provision because they could demonstrate that housing and treating the chronically homeless cut their use of expensive services like jails, emergency rooms, detoxes, rehabs and psych units that were tax payer funded through Medicaid. All the housing advocate marches proclaiming that housing was a human right weren't going to produce that kind of result.

There is a similar movement afoot in the judicial system, where drug courts have piled up all kinds of evidence backing in the research community as effective measures for reducing tax burden through lowering incarceration rates and cutting recidivism. That's what's going to sway Republicans, not all the other evidence that suggests it would also be more humane.
posted by The Straightener at 3:21 PM on April 26 [4 favorites has favorites]

It amazes me that we know what does and does not work, and yet we persist in doing the stupidest, wrongest things.

When you think you have experienced the greatest stupidity, it is often the case that you've seen the preamble.
posted by Mikey-San at 3:22 PM on April 26 [2 favorites has favorites]

that you've only seen -- i just woke up what do you want from me
posted by Mikey-San at 3:23 PM on April 26

By the way, this is very much the official line of the Democratic Party, too. The Boomers embraced the anti-drug hysteria when they started having kids in the '70s and '80s. People like Tipper Gore could talk about going to Dead concerts and simultaneously try to censor other music through her unaccountable government access, and it's why Bill Clinton was so half-assed when asked about his past marijuana use. For a long time the so-called progressive wing has been trying to placate the irrational fears of (some) parents.

Jack Cafferty apparently said recently that he "didn't want his kids making the same mistakes I did". So obviously the solution is to throw all your kids friends in jail (or your kids themselves).

I really have no idea what people think, but it does seem like a lot of people now realize that the solution is worse then the problem, and people ought to be more worried about their own kids getting caught up in this thing then getting "hooked on drugs". But we'll see I guess.
posted by delmoi at 3:27 PM on April 26

Drug Decriminalization in Portugal:
Lessons for Creating Fair and Successful Drug Policies
http://www.cato.org/pub_display.php?pub_id=10080
posted by robbyrobs at 3:28 PM on April 26

But I'm certain it's about reducing the costs of incarceration.

With a shaky and shrinking national economy and with expensive foreign wars, it does appear that the United States may be entering a phase that has befallen many other countries that have overspent on their militaries (including on black budget operations).

A prison industry, however appealing to some, is really a vast waste of people - both of the incarcerated and of those who watch over them - as well as a vast waste of money.

Hopefully, we will start to improve our manufacturing base and create a sounder base for our economy. Hopefully, too, we will remove or mitigate the onus of those released from prison so that the ex-incarcerated may be rehabilitated and integrated within society in a positive manner.
posted by millardsarpy at 3:50 PM on April 26 [1 favorite has favorites]

One small step for the rationalization of US drug laws.

One giant leap for the sanity of those trapped in the net.

One tremendous trip for those of us floating through the rainbow universe.
posted by mannequito at 4:57 PM on April 26 [1 favorite has favorites]

Excellent post. Let's hope make sure that this kind of legislation is brought to the forefront.
posted by zardoz at 5:59 PM on April 26

Ahh. The War on Drugs. Like the war on sin. And the war on porn. And the war on terror. Did you ever notice that when conservatives are confronted with a problem their idea of a solution is to go to war?

Anyone know how that is working out for them?
posted by notreally at 6:36 PM on April 26 [2 favorites has favorites]

There are pro and con arguments for both decriminalisation and legalisation, but ultimately a more lenient stance seems the more reasonable option in most cases. Criminalisation of large numbers of any populace, simply for the act of possession or use, is not going to lead to any good imho.

One of the biggest boons that would be quickly felt, in the case of both decriminalisation or legalisation, is all the money no longer spent on enforcing draconian laws that stipulate what people can and can not do with their own bodies.

In the case of legalisation, drugs would become cheaper which in turn would reduce crime, have controlled purity which would mean safer drugs for those that choose to use, and the taxes raised from sale of drugs would be welcomed by any government in today's wintery economic climate.

Maybe the solution is some kind of middle ground, as not all drugs should be treated the same way, as not all drugs have the same effects and consequences. Ultimately the effects on any given user varies enormously depending on the drug and the individual, as well as a myriad of other environmental factors.

It really is time that we started viewing the people behind the drugs and not the drugs themselves as the true bane of society.
posted by Don't_deceive_with_belief at 7:14 PM on April 26 [1 favorite has favorites]

The ultimate issue will be whether or not the extreme ideologues on the Right will be willing to choose evidence based judicial practices that reduce tax burdens for their constituents over a historically highly effective social machinery that keeps blacks from prospering in the labor force and in many states disenfranchised as voters. Add the privatization of corrections to the mix and you have the total mechanization that enriches one interest group while systematically suppressing another. Some people think this system as it is works just fine.

I tell my young hustler kids this all the time. There's a lot of people out there who want you to have a felony record. They don't want you being able to get anything other than the lowest rung jobs, and they want you to lose your voting rights. Why you gonna go and serve that up to them on a plate?
posted by The Straightener at 7:35 PM on April 26 [1 favorite has favorites]

I'd forgotten that bit: that in the USA, even after you've paid your dues to society by stint in jail, you still lose your right to vote.

Which is just batshitinsane.
posted by five fresh fish at 8:32 PM on April 26 [2 favorites has favorites]

Ahh. The War on Drugs. Like the war on sin. And the war on porn. And the war on terror. Did you ever notice that when conservatives are confronted with a problem their idea of a solution is to go to war?

The ultimate issue will be whether or not the extreme ideologues on the Right will be willing to choose evidence based judicial practices that reduce tax burdens for their constituents over a historically highly effective social machinery that keeps blacks from prospering in the labor force and in many states disenfranchised as voters.

Wait, what? The memory is a little fuzzy since I hadn't finished grade school at the time, but I could swear it was Charles Rangel (D-NY) who was heralded as the Front-Line General in the War on Drugs. In fact, it was Rangel who took the Reagan Administration to task for refusing "to provide either the money or the leadership to fight a real war on drugs." After the Anti Drug Abuse Act of 1986 was passed and the White House held press conferences touting its new "tough on crime" stance, it was Rangel who was quick to claim his share of the credit, pointing that "it was the Rangel legislation . . . from conception to passage." Incidentally, several other Democrats, and other members of the Congressional Black Caucus such as Lewis Stokes, also cosponsored the ADAA.

Salon characterizes the days of D.A.R.E., Omnibus Crime Control, and the advent of mandatory minimum sentences for drug offenders as "a political arms race, in which Democrats and Republicans fought to outdo each other as anti-drug crusaders."
The NY Times summed up the bipartisanship of the Drug War thusly, "The most widely espoused view among both Democrats and Republicans in Congress these days is that the Government needs harsher drug laws and stricter enforcement, more severe penalties for those who violate those laws . . . ."

Oh yeah, and Rangel called the prospect of legalizing drugs "moral and political suicide." So if you'll pardon my cynicism, I don't see this as an issue of waiting for our heroes in Congress to come riding in from the Left to save us all from the legacy of Reagan. Seeing governmental abuses purely in partisan terms prevents us from focusing on the whole picture. (See also)
posted by Law Talkin' Guy at 8:39 PM on April 26 [1 favorite has favorites]

Agreed - the Democrats have plenty of sins to atone for - this is not just the work of the right. Joe Biden gave us the Drug Czar and the RAVE Act. Clinton caved to his drug czar and refused to lift the ban on syringe exchange funding. Some of the most forward-thinking proposals have come from Republicans: Gary Johnston in New Mexico is a good example. Neither party is blameless here, and neither one seems eager to lead us out of the problem.
posted by gingerbeer at 9:12 PM on April 26

Excellent post. Thanks, Law Talkin' Guy.
posted by homunculus at 11:15 PM on April 26

five fresh fish I'd forgotten that bit: that in the USA, even after you've paid your dues to society by stint in jail, you still lose your right to vote. Which is just batshitinsane.

Only if your aim isn't to create permanent scapegoat underclasses.

However, it's worth noting that disenfranchised people in the USA are deprived of the exercise of only one vote each. There is nothing unique to disenfranchisement as such (as compared to dozens of other causes of poverty, disengagement, depression and resentment) that stops the disenfranchised person from becoming politically active, motivating and swaying the votes of dozens, hundreds, even thousands of people. Even if personally forbidden to run for political office, the disenfranchised person is not forbidden to help others run for office, to help raise money, motivate voters, write letters, doorknock, etc.

If this has happened to a MeFite: don't let the Republicans take away any more of your dignity than they already have. Get involved!
posted by aeschenkarnos at 12:08 AM on April 27

I like reading Mark Ames of The Exile(D), because when he mentions the war on drugs, he pulls no punches as to his condemnation of it.
posted by telstar at 1:16 AM on April 27

sourwookie: We must all remember that it is no coincidence that these minimum sentencing laws were passed right around the same time that the penal systems were becoming increasingly privatized. To them, the incarcerated population is their customer base. These companies want more and fuller prisons.

I think that the incarcerated population is their product base, with you and I, the taxpayers as their customer. And that's going to be a problem. Who was it who said that the surest way to entrench something in society was to privatize it and make sure it is a business interest with a lobbying group? Or something like that. It's going to take a lot of willpower to shut out the voices of industry who will clamor about lost economic opportunity, etc.

People like Tipper Gore could talk about going to Dead concerts and simultaneously try to censor other music through her unaccountable government access

Actually, Tipper Gore was advocating for informative labeling on music, not censorship.
posted by hippybear at 1:41 AM on April 27

oops. that second quote is from krinklyfig
posted by hippybear at 1:42 AM on April 27

I'd forgotten that bit: that in the USA, even after you've paid your dues to society by stint in jail, you still lose your right to vote.

That's not true in all states. Here's a good one though: a friend of mine who recently got out of prison applied for emergency food stamps. He wanted these so he could get, um.. food, while he was looking for a job. So he spends half a day waiting at the Social Services office only to hear, "Oh, you were in prison on a drug charge? No food stamps for you!"
posted by marxchivist at 4:48 AM on April 27

So if you'll pardon my cynicism, I don't see this as an issue of waiting for our heroes in Congress to come riding in from the Left to save us all from the legacy of Reagan.

By putting Tom McClellan in charge of reducing drug demand the Obama administration made a huge statement on this issue. I'm sorry, but that at least deserves to be acknowledged. McClellan's appointment is germane to this discussion because McClellan's Treatment Research Institute here in Philly has not only been a long time maverick in seeking more medical avenues for addiction treatment, but has also been the biggest source of research on the efficacy of drug courts.

I just had a training by drug court big brain Doug Marlowe, also at the Treatment Research Institute. He acknowledged the period you point to, saying that yes, at that time when crack was exploding everyone -- black and white, Democrat and Republican -- had public safety as their first concern. And, Marlowe also noted, in terms of increasing public safety specifically the strategies enacted then were in fact very effective. The problems though were linear and took time to reveal themselves. It turns out that strict law and order policies that do reduce the risk to public safety have far greater negative consequences to society by producing a class of hardened offenders with high rates of recidivism. So over time, public safety became less the number one issue at least with those on the left and figure out the best strategies for dealing with different types of offenders became the priority.

So, now we have a graduated sytem of judicial interventions in place from incarceration for the hard cases, to intensive parole monitoring for those who are less risky but don't thrive with the freedoms of the drug court model. The drug court model works for people who actually need treatment and really don't pose a major public safety risk, but need court monitoring to actually complete treatment. For people who totally don't pose a safety risk, don't really require intensive treatment and would be negatively impacted by coming in contact with these more dangerous offenders, there are ARD programs which offer a tremendous amount of freedom with high consequences for reoffense.

So, I think you're point is valid but unfortunately doesn't take into consideration the major shift in policy thinking that happened in the 15 years since the crack epidemic came under control. There are people on the Left who are really smart and have don't a shit ton of work on these issues and one of them now has Obama's ear. This is important.
posted by The Straightener at 5:19 AM on April 27 [2 favorites has favorites]

"Actually, Tipper Gore was advocating for informative labeling on music, not censorship."

Yes, well, the government advocating for "voluntary" labeling amounts to de facto censorship (remember that Tipper's concern was over the word "masturbating" on a Prince song, which won't even get bleeped on network television). Wal Mart, for one, will not carry music with such labels, though they will carry rated R films (though not NC 17).
posted by krinklyfig at 7:58 AM on April 27

"Some of the most forward-thinking proposals have come from Republicans: Gary Johnston in New Mexico is a good example."

That's true, although he was pilloried by his own party as well as the Democrats when he came out for legalization.
posted by krinklyfig at 8:01 AM on April 27

Actually, Tipper Gore was advocating for informative labeling on music, not censorship.

HAHAHAhahahahahahahaha ha ha ha. Wow.
posted by Marisa Stole the Precious Thing at 10:16 AM on April 27

Sorry, were this to pass it really wouldn't have much of an effect because the minimum mandatory sentences are also contained in the Federal Sentencing Guidelines. The Guidelines would have to change as well, and there is little chance of this happening. Take for example, the Drug Kingpin Statute, 21 U.S.C 848. It is almost meaningless (except for publicity purposes) because the same punishment is found in the Guidelines. If you're going to try to fix the system, minimum mandatory sentences are just a start.

And by the way, what do we tell the people who are still incarcerated under these sentences? Do we let them go free? Re-institute parole (there is no parole in the federal system)?

Just sayin'.
posted by tesseract420 at 3:15 PM on April 29

Sorry, were this to pass it really wouldn't have much of an effect because the minimum mandatory sentences are also contained in the Federal Sentencing Guidelines.

And by the way, what do we tell the people who are still incarcerated under these sentences? Do we let them go free? Re-institute parole (there is no parole in the federal system)?

A number of states who instituted these reforms did make them retroactive. There's talk afoot about restoring parole in the federal system, but I'm far less hopeful about that amounting to anything in the short-term.

As for the USSG, maybe you didn't get the memo but the guidelines are now advisory, not mandatory. As long the sentencing DJ "considers" the Guidelines, they're free to depart from them. Hence the much ado about abolishing "mandatory" minimum sentences.

By the way, even when the Guidelines were mandatory, in my District there were judges who were known for bending over backwards and trying anything and everything to find reasons for downward departures, and especially so in drug cases.

So, I think you're point is valid but unfortunately doesn't take into consideration the major shift in policy thinking that happened in the 15 years since the crack epidemic came under control. There are people on the Left who are really smart and have don't a shit ton of work on these issues and one of them now has Obama's ear. This is important.

It is important, and I'm not going to pretend that the Republicans and Democrats are, right now, indistinguishable from each other on this issue. What I was saying earlier, in response to a few egregious examples of the usual myopically partisan mindset on MF, is that there is a great deal of blame to lay at the feet of Democrats regarding the enactment of mandatory minimums, because they were every bit as on board with them as Republicans in the 80's.

I thought it especially important to go out of my way to do this because some Dems in particular are attempting to revise history and airbrush themselves out of any role in mandatory minimums in the first place, like Rangel. I swear, that man must be made of teflon. No matter what he does, no matter how badly he screws up, no matter how flagrantly he contradicts himself, nothing ever sticks to him, ever.
posted by Law Talkin' Guy at 8:34 PM on April 29