Tuesday, October 20, 2009

Mandatory Minimums


Congress recently acted on the disparity between crack and powder cocaine in mandatory minimum sentencing. But that still leaves the fundamental issue of whether we should have mandatory minimums.

There are usually two arguments advanced for mandatory minimums. First, they are thought to deter crime. A drug kingpin who knows he’ll get a lengthy prison term will think long and hard about selling that crack.

Second, mandatory minimums guarantee some equity in the justice system. If Judges are given discretion, there could be widespread bias. For example, an attractive white female who tears up in front of the judge might get community service while a poor black guy (with a worse lawyer) gets the death penalty. This is an extreme example of course, but it shows the point.

There are several problems with both arguments. Let me deal with the one about equity first. Judges still have discretion over sentences. They can issue more than the minimum. So maybe the white girl now gets five years in prison while the black guy gets 10 years because the judge uses his discretion.

As for the deterrence argument, it’s not clear that harsh sentences have deterred many people. Drug use remains high, and drugs are still reasonably available. Ironically, the drug wars have raised the cost of drugs, which some economists think means higher profits for drug kingpins. Higher profits of course could incentivize people to become drug traffickers. Moreover, punishing exclusively for deterrence undermines our ability to fulfill other functions of the justice system: retribution, incapacitation, and rehabilitation.

Mandating five years in prison for a crime might not be necessary to be rehabilitated. Maybe the person only needs community service and probation to be rehabilitated. In fact, putting him in prison might even be counter-productive. He won’t be able to get a job, or college financial aid. And he’ll spend five years being exposed to dangerous criminal elements.

It follows that if he needs community service, but gets 5 years in jail, that the interests of incapacitation aren’t being served. He doesn’t need to be incapacitated that long. And if prison overcrowding results from putting too many people in jail for mandatory minimums who shouldn’t be there, officials might be forced to release truly dangerous criminals like rapists or murderers.

Retribution is based on the principle of proportionality. Yet a mandatory minimum sentence ignores the context of a person’s actions, his intent, and his moral blameworthiness. True retribution isn’t solved by having a one-size fits-all standard.

Moreover, I think mandatory minimums could create several perverse incentives. This is especially true if the sentences are harsh. A neighbor knowing that a kid he reports for dealing drugs will automatically get a harsh sentence could be less likely to call the police. A police officer could be less likely to arrest, the prosecutor less likely to prosecute, and the Judge less likely to agree to charge the defendant with a crime that would land him in prison for so long.

This all means that fewer criminals would end up getting caught, and more would think they could get away with their crimes. That could mean less deterrence instead of more.

Then there are the tremendous costs of imposing mandatory minimums. Society has to spend billions of dollars building new prisons and expanding existing ones to make room for all the new convicts.

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