Tailoring Sentencing: The Punishment May Now Fit the Crime

By: Brian Nistler

Mandatory minimums have long been the norm for sentencing when it comes to drug offenses. Most of the mandatory minimums drug laws come from 1986 and 1988 anti‑drug laws when the emphasis of the time was on the war against drugs. Under the federal mandatory minimums, sentencing laws judges must sentence a convicted criminal to at least the minimum sentence. These mandatory minimums are broken down under two sentences, 5 years or 10 years without parole. The distinction is based on the amount of contraband the person has in their possession. Possession of 100 kilos of Marijuana equals 5 years; 1000 kilos, 10 years. Possession of 28 grams of crack cocaine equals 5 years; 280 grams, 10 years. Possession of 500 grams of powder cocaine equals 5 years; 5 kilos, 10 years. Possession of 5 grams of pure meth equals 5 years, 50 grams; 10 years.


It has long been argued that this arbitrary sentencing is highly prejudicial against minorities and those on the lower side of the economic scale. The requirement of the amount in possession for crack cocaine, a cheaper easily accessible drug, is far lower than the requirement of possession for cocaine, a more expensive drug. This, arguably, results in discriminatory prosecutorial practices against those who use crack cocaine as opposed to the powder based form. There is also evidence of a distinction based on race; a distinction recognized by the U.S. Attorney General, Eric Holder. The mandatory minimums create a vicious cycle. A person is imprisoned for a relatively small quantity of drugs for at least 5 years. In that time, many inmates become hardened criminals, and upon release are more likely commit more serious crimes.

Even when the punishment did not fit the crime, judges have no choice but to adhere to the mandatory minimums.

This all is about to change.  Law makers have introduced bipartisan bills to allow judges more discretion in sentencing, going as far as shortening prison sentences and even doing away with mandatory minimums. The Smarter Sentencing Act of 2013 would allow judges to sentence non-violent criminals below the mandatory minimums, it would also lower the mandatory minimums. All of this to help relieve the pressure on our prison system where almost half of the whole prison population are serving time for drug charges.

This movement is not only occurring in the legislature. In an announcement this past week, Eric Holder, who has long felt the need for reform in how America sentences its criminals, denounced the mandatory minimums and explained the U.S. Department of Justice will not seek offenses that carry the mandatory minimum for low-level, non violent drug related offenses, and they will dedicate more resources to send people to drug rehab as opposed to prison. In an interview Holder stated, “[he] think[s] there are too many people in jail for too long, and for not necessarily good reasons.”

Holder explained his rational in another interview this past week, stating that while he was a judge in D.C. “[he] saw an ocean of young men come before [him], who should have been the future of [his] city, destined to serve long jail terms and then spend their lives dealing with all the negative consequences of being an ex-offender.”

Not only does the transition remove decades of bias sentencing, it makes perfect financial sense as well. It costs the government hundreds of dollars a day to keep someone in prison. The federal prisons system is approximately a full quarter of the Dept. of Justices budget. Retooling the mandatory minimums would allow for a release valve on the already crammed prison system, it would free up needed room in the budget that could be applied to any other number of important work of the D.O.J. The mandatory minimum sentencing is biased and is resulting in crammed prisons and stretched budgets. Furthermore they do not allow a judge to consider all the factors when sentencing for drug offenses. Justice should never be a rubber stamp applied the same across the board.

With the overhaul of the sentencing guidelines judges will have greater discretion to sentence offenders how they see fit. A less draconian sentencing mandate will relieve stress on the prison system, and free up much needed funding for the Department of Justice. In all a good step for an attorney general who has wanted a change of this sort for a long time.

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