Mandatory Sentencing

During the 1970s and 1980s, Congress and many state legislatures passed mandatory minimum sentencing and "three strikes" or "habitual offender" laws that force judges to hand out fixed sentences, without parole, to people convicted of certain crimes. While the intent was to punish high-level drug offenders, the laws have had the opposite effect-jailing low-level drug offenders for unusually long sentences.

Under New Mexico's current habitual offender act, those convicted of drug crimes face mandatory additional prison time for previous offenses.

• Under mandatory minimum and habitual offender sentencing, prosecutors, not judges, have the discretion to decide whether to reduce a charge, whether to accept or deny a plea bargain, whether to reward or deny a defendant's "substantial assistance" or cooperation in the prosecution of someone else, and ultimately, to determine what the final sentence will be. (1)
• By 1993, 50 senior federal judges had exercised their prerogative and refused to hear drug cases. Many conservative, Reagan-appointed federal judges denounced the 5- and 10-year mandatory minimums as draconian miscarriages of justice. Federal District Judge Stanley Marshall remarked, "I've always been considered a fairly harsh sentencer, but it's killing me that I'm sending so many low-level offenders away for all this time." (2)
• A Gallup poll of 350 state and 49 federal judges who belong to the American Bar Association found 90 percent opposed to (and only 8 percent in favor of) the federal mandatory minimums for drug offenses. (3)
• Under mandatory minimum sentencing and habitual offender schemes, high-level drug offenders continually plea-bargain their way to reduced sentences, while low-level offenders, with no information to trade for leniency, are sentenced to unusually long terms.
• The average sentence for a first time, non-violent drug offender is longer than the average sentence for rape, child molestation, bank robbery or manslaughter. (4)
• The RAND Corporation states "Though it is too early to make a final judgment, RAND found that three strikes and truth-in-sentencing laws have had little significant impact on crime and arrest rates. According to the Uniform Crime Reports, states with neither a three strikes nor a truth-in-sentencing law had the lowest rates of index crimes, whereas index crime rates were highest in states with both types of get-tough laws." (5)
• Mandatory minimum sentencing schemes contribute to America's prison building boom. With the national prison population at roughly 2 million, nearly 500,000 of whom are drug law violators, (6) federal and state governments have been forced to build an ever increasing number of prisons to house what former drug czar Barry McCaffrey has called "America's internal gulag." (7) From 1987 to 1998 state spending on corrections increased by 30 percent while spending on higher education decreased by 18.2 percent. (8)

NOTES:

1. Caulkins, J., et al., Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? Santa Monica, CA: RAND Corporation, 1997, p. 24.

2. Cris Carmody, "Revolt to Sentencing Is Gaining Momentum," National Law Journal, May 17, 1993, p. 10.

3. "The Verdict is In," American Bar Association Journal, Oct. 1993, p. 78.

4. The Consequences of Mandatory Minimums, Federal Judicial Center Report, 1994.

5. Turner, Susan, RAND Corporation Criminal Justice Program, Justice Research & Statistics Association, "Impact of Truth-in-Sentencing and Three Strikes Legislation on Crime," Crime and Justice Atlas 2000, Washington, DC, U.S. Department of Justice, June 2000, p. 10.

6. Sourcebook of Criminal Justice Statistics 1998, Page 462, Bureau of Justice Statistics, 1999.

7. Timothy Egan, "The Nation: Hard Time; Less Crime, more Criminals," The New York Times, March 7, 1999.

8. National Association of State Budget Officers (NASBO), (April 1996), 1995 State Expenditures Report, P. 55.