I wanted to post some of the papers I’ve been writing for my English and Rhetoric class. Here is my first one, a personal interest paper shedding light on the unfairness of Mandatory minimum penalties.
Throughout history, it seems as though human beings have always concerned themselves with the concepts of fairness, morality, and justice. It seems like it is innate in our nature that we try to act out these concepts the moment we find ourselves in a group. We come together and make agreements about which philosophies to live by or which rules to abide by. We use such concepts and principles to guide these agreements. Our founding fathers had the ideas of fairness, morality, and justice as part of their vision for a higher form of self-government. This is the democracy that we as Americans find ourselves in today. Fairness, morality, and justice in this democracy has been an endeavor that has been progressing for centuries. This progress has been mainly through the process of trial and error. Now, in the year 2023, we have done well with laying out a framework to most effectively display our belief in these principles. Yet it is still far from perfect. One of the concepts that is keeping us from progressing to a higher standard of these principles is the idea of mandatory minimum penalties in criminal punishment. If the goal is to attempt to carry out justice in a logical, fair, and ethical manner, then we must take another look at the use of mandatory minimums, especially for non-violent drug crimes.
In our judicial system, people hold certain positions that have particular responsibilities. Judges have the most esteemed of these positions, and rightly so. They bear the awesome responsibility of having to objectively carry out justice onto other human beings. They are expected to make judgements after carefully considering the details of a crime and indeed they are perfectly positioned to do so. Erik Luna, a legal scholar and professor at Sandra Day O’Connor College of Law, sheds light on this fact when he quotes the Supreme Court in an article published in Criminal Justice Reform, explaining that every case is a “unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment”(135). That being said, there is “wisdom, even the necessity, of sentencing procedures that take into account individual circumstances”(135). This means that there is a consensus that discretion must be exercised when deciding a judgement. The concept of “mandatory” sentences flies in the face of this logic and there are many citizens that are unfortunately doing years in prison because of it. Why are we stripping the power of discretion away from our most esteemed public servants who we trust exactly because of their experience, knowledge and objective ability to use their discretion in the first place?
Not only do mandatory minimums create this paradox of taking the power of discretion away from those we put in a position to have it in the first place, their origin comes not from a change in philosophical understanding, but a shameful motivation for political gain. Tonya Golash-Boza, a legal journalist, indicates in an article published in The Conversation, that beginning in the 1970’s, “violent and property crime rates were high. However, even after crime rates began to decline, legislators continued passing punitive laws”(3). It seems as though politicians in congress during this period discovered that, as Golash-Boza says, “fear mongering around crime is a surefire way to get elected”(5). Going into the 80’s and the election of Ronald Reagan, even Luna acknowledges that politicians “exploited citizen anxiety over crime and security” and argues that “U.S. crime-control policy has been shaped by a series of ‘moral panics,’ where intense outbursts of emotion impede rational deliberation… and thereby generates a public demand for swift action”(119). Its clear that the concept of mandatory sentencing is only one of many examples of what happens when politicians irresponsibly politicize an issue to maintain their position or get elected, when instead it should be carefully and dispassionately deliberated.
Mandatory minimum penalties have also been responsible for the rise of mass incarceration in America. Following the enactment of the latest mandatory minimum laws in the 80’s and 90’s, “there were an unprecedented over two million inmates in the U.S. That’s more than 10 times the number of U.S. inmates at any time prior to the 1970’s”(Golash-Boza, 4). To put that into context, as of 2015, the U.S. had 698 people incarcerated for every 100,000 adults. Russia, a communist country with a far more draconian criminal justice system comes in far behind, but still in second place with 445 per 100,000. The world average was 144 and other advanced democracies in western Europe had 81 on average.
One of the shocking parts about having so many incarcerated citizens is the financial burden put on society. According to the United States Bureau of Prisons, the average cost of incarceration, as of 2022, is $39,158 yearly per inmate. That is more than what many Americans make in a year. If the alternatives to these lengthy sentences often caused by mandatory minimums (GPS monitored home-confinement or bringing back federal parole) are implemented, the amount of money that could be diverted to more beneficial and positive social causes would be in the hundreds of millions. How is it justice when it’s costing society so much money just to put inmates behind walls. Wouldnt it be better to identify those who have a true desire to change and use that money to educate and provide therapeutical support for them at home so they can pay for their own housing, while still being closely monitored?
Thankfully there has been a real effort to undo the damage these brash policies have done to society. Political leaders have begun to realize that extremely punitive laws, especially for drug crimes, do not work and as a result of this incarceration has begun to decline. According to an article by the United States Sentencing Commission, “the number of federal prison inmates convicted under mandatory minimum laws decreased by 14 percent from 2010 to 2016″(2). They also point out that “the Department of Justice instructed prosecutors to be more selective in charging offenses with a mandatory minimum penalty [in 2010 and 2013]”(2). Unfortunately, they also note that “the Justice Department this year [2017] rescinded its 2010 and 2013 guidance”(3). This flip flopping in policies is indicative of attorney generals (appointed by right or left administrations) switching their guidance to fulfill expectations of the partisan culture they belong to. This is another example of what happens when we allow partisan politics to interfere with interpreting objective principles of logic and analyzing data to guide our decision making.
I am currently serving my 48th month out of 120 for narcotics trafficking and possession of a firearm. Throughout this time I have seen the far reaching effects of my crimes and have taken full responsibility for my education and rehabilitation. Although part of me believes that the seriousness of the sentence was part of the catalyst for a fundamental change in my own thinking, I don’t believe it was fair or necessary for justice.
In the current criminal justice model, a sentencing guideline framework already exists which provides a recommendation to the judge based on the severity of the offense, criminal history, amounts of drugs (for drug offenders) and several other factors. The prosecution and the defense can then request an upward or downward departure of the guidelines based on mitigating or aggravating factors or they can agree with the recommended guideline range. Unfortunately, for reasons I have highlighted previously, arbitrary and decades old mandatory minimum clauses are triggered in drug cases after a certain amount of drug weight is hit. Because they are “mandatory” they must be imposed even when the suggested guideline range has been accepted by the prosecution, defense and even the judge. Paradoxical and even dangerous disparities exist among these amounts. For example, a low level methamphetamine dealer, or even simple user, who gets caught with 100 grams of meth with a street value of $500 dollars will trigger a 5 year mandatory minimum. In contrast, a high level cocaine dealer who makes serious money and has powerful connections can get caught with up to 5 kilograms of cocaine with a street value of $125,000, before triggering any mandatory minimum penalties. The guideline sentence for my exact crime after considering all of the factors was 60 months. This unfair, arbitrary, and illogical concept of mandatory minimum penalties forced my sentencing judge to double that amount. We must be open to the possibility of this being a miscarriage of justice, especially when you consider the judge himself would have rather sentenced me to the recommended amount proposed by the guidelines. Unfortunately, this is something that happens every day.
After being incarcerated for 4 years, I have realized that as much as we try to impose the lofty and divine principle of justice on other human beings, the only ones who are truly capable and responsible for doing so are the very ones that have erred. It is on us, to right our own wrongs. Unfortunately, the only way many of us offenders will become responsible enough to take this on is by education and emotional regulation. Responsibility is something that must be learned. Many of us didn’t learn this when we were young like the majority of other people. Maybe this was because adverse experiences and sad and unfortunate events. That being said, incarcerating non-violent drug offenders with unfair and lengthy sentences without any opportunities to rehabilitate and give back to the communities they have harmed, especially when these citizens have the potential to do good cannot be called “justice.” According to educationdata.org, as of 2023, the average yearly tuition for U.S. colleges was $21,928. How can we pretend that we are carrying out justice when it costs society twice as much to house an inmate per year than it would to educate them at a state university for the same amount of time? People deserve to be punished for their crimes. Responsibility is one of the main principles that keep this society running, but we also must be effective in our punishments and not just seek vengeance for its own sake. We could be making more serious efforts to educate the offenders who show promise and commitment and giving them hope with opportunity. This would give them the ability to take responsibility for their own actions, give back to society and right their own wrongs. Only in this way, not through excessively punitive mandatory minimum penalties, can a truer form of justice really be served.
References
Golash-Boza, Tonya. “5 Charts Show Why Mandatory Minimum Sentences Don’t Work.” The Conversation, 1 June 2017.
www.pbs.org/newshour Web. 7 March 2023.
Hanson, M. “Average Cost of College and Tuition.” www.educationdata.org. 25 June 2023. Web
Luna, Erik. “Mandatory Minimums.” Criminal Justice Reform, Vol 4. 117-145. law.asu.edu/sites. Web 7 March 2023.
United States Bureau of Prisons. “Annual Determination of Average Cost of Incarceration Fee.” The Daily Journal of The United States Government. www.federalregister.gov. 1 September 2022. Web. 23 August 2023
United States Sentencing Commission. “Mandatory Minimum Penalties.” Congressional Testimony and Reports. www.ussc.gov/sites. 2016. Web. 7 March 2023.
