By: Maya Kushner
United States has the highest rate of incarceration than any other country, and so the topic is often debated anywhere from the Senate floor to the dinner table at home. It is a multi-faceted topic and one of its aspects has been of interest recently: statutory minimum sentences for drug offenses. U.S. Attorney General Eric Holder caused quite a stir in August of 2013, when he called on U.S. prosecutors who draft indictments “to omit any mention of the quantity of illegal substance involved, so as to avoid triggering a mandatory minimum sentence.” But most recently, the U.S. Sentencing Commission proposed an amendment to the sentencing guidelines that would reduce penalties for most drug-related crimes, on average reducing the prison term by11 months. The public comment period for the proposed amendment has closed and a vote is expected later this month. If the amendment passes, the impact on our legal and penal system will be immense and immediate. While federal judges are not bound by the sentencing guidelines promulgated by the Commission, they are required to consult them, pursuant to United States v. Booker. This requirement, and the vocal support for the new guidelines by the Attorney General, will certainly create a strong impact.
The proposition is certainly enticing financially. The United States spent $80 billion on incarceration in 2010. At the same time, 50% of prisoners are in jail for drug-related offenses. The next most common offense category is immigration, counting for only 10.6% of the prison population. The proposed amendment to sentencing guidelines would decrease the prison terms of roughly 70% of the incarcerated drug offenders. Thus, reducing or eliminating mandatory prison time for drug-related offenses will have a significant positive financial impact on state and federal budgets. And saving money seems to be the name of the game. For example, Florida is considering a law that “would allow nonviolent, first-time offenders caught with small amounts [of drugs] to go to drug court rather than prison.”
But should we be letting criminals go just to save money? In his testimony before the U.S. Sentencing Commission, Raymond F. Morrogh, the Commonwealth Attorney of Fairfax County and Director at Large of the National District Attorneys Association, said: “[r]ewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities.” In addition to fairness considerations, many state and federal prosecutors are concerned that the new lower minimums would undermine the penal system, and make the population less safe.
The National Association of Assistant United State Attorneys (NAAUSA), whose membership includes over 5,400 AUSAs across the country, wrote a letter to General Holder expressing its disagreement with Holder’s support for the changes in sentencing guidelines. A few days later, it sent a letter to the Senate Judiciary Committee elaborating voicing its concerns and disagreements with the proposed changes.
The NAAUSA letter echoes the concern of many critics of the proposed changes to the sentencing guidelines: that the justice system is not broken, and therefore should not be fixed. In fact, the current mandatory minimums have been quite effective. Crime rates have gone down by 50% since the mandatory minimum sentences came into effect 20 years ago. And the fact that those minimum sentences are higher rather than lower is a significant factor. Steven Levitt, a professor of economics at University of Chicago and co-author of the best-selling book Freakonomics, writes in his article published by the Journal of Economic Perspectives that “[t]he evidence linking increased punishment to lower crime rates is very strong.” Mr. Levitt also agrees that at least a quarter of the decline in crime over the past few decades is linked directly to incarceration.
Another major concern of prosecutors across the country is that lowering, or in some cases eliminating, mandatory minimum sentences takes away one of the main tools of fighting crime: cooperating defendants. When the police arrest someone for drug possession, it is most often a drug user or a small distributor, because the big bosses are not out on the streets conducting the sales. So in order to catch the “big fish,” prosecutors “flip” the defendant they have. Meaning they get him to cooperate in finding his boss in return for reducing an otherwise long mandatory sentence. As the NAAUSA explains, “[m]andatory minimums deter crime and help gain the cooperation of defendants in lower-level roles in criminal organization to pursue higher-level targets.” Or as Doug Burns, a former federal prosecutor, frankly put it: “Mandatory minimums work very well, when you have a drug offender who can provide information against a big, big player, or an organization, or a cartel, you turn around and charge him with 20 years of mandatory time, and the defense attorney knows the only realistic way out of that is cooperation.”
So while the financial aspect of lowering mandatory minimum sentences for drug offenses seems like a great idea, the monetary savings are not worth the social costs of seeing crime rates rise again in the absence of the current effective system. In the words of Mr. Forrogh, “Deep budget cuts and the effects of sequestration toward federal programs continue to hit State and local law enforcement hard. However, with crime down to historically low levels, shouldn’t we consider other areas of the federal budget to “trim the fat” off of rather than roll the dice with the safety of America’s communities?”
