Author: Cameron Downer, Associate Member, University of Cincinnati Law Review
A Plea for Reform
On March 30, 2012, United States District Judge, John Gleeson, urged Attorney General Eric Holder to reform mandatory minimum sentences. In an opinion relating to the mandatory five-year sentence imposed on a low-level drug dealer, Judge Gleeson addressed the injustice that occurs when mandatory minimum sentences are applied to low-level drug offenders. In closing, the Judge stated that he had reason to believe that Eric Holder would be receptive to his request for reform. Judge Gleeson was right.
On August 12, 2013, Eric Holder announced the beginning of sentencing reform that would “fundamentally rethink the notion of mandatory minimum sentences for drug-related crimes.” Holder explained that the harsh, long sentences generated by mandatory minimums breed disrespect for the judicial system and fail to promote public policy.
Coinciding with the announcement, the Department of Justice released a brief overview of its new approach in the document “Smart on Crime: Reforming the Criminal Justice System for the 21st Century.” This new approach shows that the Department of Justice is on the right track to repair the harm caused by the unwarranted use of mandatory minimum sentencing for low-level drug offenders.
Following the public outcry after the tragic overdose death of University of Maryland basketball player Len Bias, Congress enacted the Anti-Drug Abuse Act of 1986 in an effort to deal with the drug problem through the use of harsh mandatory minimum sentences for drug offenders. Previously, criminal sentencing was within the discretion of judges and guided by a sentencing range. After the Act’s imposition, mandatory minimum sentences trumped the guideline range and forced courts to impose specific, minimum criminal penalties for certain drug related crimes.
The original intent behind these new sentences was to provide a mandatory ten-year sentence for major drug traffickers and a mandatory five-year sentence for serious drug traffickers. Congress believed these new sentences would encourage the Department of Justice to focus more on the major and serious drug traffickers than on low-level offenders.
Just two years later, Congress expanded the application of mandatory minimum sentences to include a five-year mandatory sentence for simple crack possession, and, most significantly, mandatory sentences for conspiracy charges tied to drug offenses. By allowing mandatory sentences for drug related conspiracy charges, low-level drug offenders could receive a disproportionately harsh minimum sentence for the actions or intentions of their more culpable co-conspirators. With few exceptions, mandatory minimum sentences have continued to expand.
Negative Impacts of Mandatory Minimum Sentences
Today, the original intent behind drug-related mandatory minimum sentences has been disregarded. Instead of encouraging a focus on major and serious drug traffickers, more than 90% of federal drug cases involve low-level offenders with no supervisory role. As a result, the mandatory minimum sentences, originally reserved for major and serious traffickers, have been disproportionately applied to low-level drug offenders.
Not only do mandatory minimum sentences for low-level drug offenders increase chances for recidivism, they also have a negative effect on families and the community. Considering most prisoners are parents, the mass and lengthy incarceration of low-level drug offenders isolates children from their parents. In turn, any cost, time, or stress of caring for the children is imposed on someone else. The end result is “lower educational achievement for the children, which, in turn, may increase their own risk for incarceration.”
In addition, the new mandatory minimum sentences, coupled with the war on drugs, have had a tremendous impact on the federal prison population. From 1980 to 2007, the number of federal offenders imprisoned for drug offenses increased twenty-fold, from 4,900 offenders in 1980 to 98,675 in 2007. In 2010, 51% of offenders sentenced in federal court were sentenced for drug related offenses while only 7.8% were sentenced for violent crimes.
Becoming “Smart on Crime”
The Department of Justice’s new “Smart on Crime” approach seeks to break the vicious cycle of criminality and incarceration exacerbated by mandatory minimum sentences. “Smart on Crime” recognizes that filling prisons with non-violent drug offenders may not be the best method of punishment. To begin this reform, the Justice Department’s policies for charging low-level drug offenders are going to change. Specifically, low-level drug offenders will “no longer be charged with offenses that impose draconian mandatory minimum sentences.” Instead, people will receive sentences better suited to their individual conduct rather than receiving mandatory prison terms more appropriate for drug kingpins or violent offenders. By doing so, “Smart on Crime” will “better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive.”
Also, mass incarceration, partially resulting from the imposition of mandatory minimum sentences, has had an adverse effect on state and federal budgets. Although considered the land of the free, the United States has the highest rate of incarceration in the world, and state costs for incarceration tripled in the last three decades while the Bureau of Prisons consumes one-third of the Department of Justice’s budget. “Smart on Crime” seeks to address these issues by following the recent approach of states, such as Texas and Arkansas, that have implemented alternatives to incarceration for low-level, non-violent drug offenders.
In addition to “Smart on Crime,” Eric Holder plans to work with Congress to pass different bipartisan proposals that are aimed at reforming mandatory minimum sentencing laws, including the Justice Safety Valve Act of 2013, which gives judges the discretion to sentence below a mandatory minimum in order to prevent injustice.
Concern for the New Approach
Holder’s new approach is not without critics. In particular, opponents believe mandatory minimum sentences are the reason crime has significantly declined in the past two decades. They fear that any change would lead to an increase in crime.
Although there has been a 50% reduction in crime from the early 1990’s, a number of other theories exist that posit an explanation for this reduction. One theory, made popular by the bestselling book Freakonimics, attributes the decline in crime to the legalization of abortion after Roe v. Wade. Specifically, the theory examines the factors most prevalent among criminals, determines their root cause, and concludes that “[l]egalized abortion led to less unwantedness; unwantedness leads to high crime; legalized abortion, therefore, led to less crime.” Other explanations for the reduction in crime include innovative policing strategies, changes in the drug markets, the aging population, tougher gun-control laws, and an increased number of police.
Additionally, if harsh mandatory minimum sentences are the reason behind the decline, it would make sense that laws which exclude certain offenders from mandatory minimum sentences would have the reverse effect. Just the opposite is true. Since the original “safety valve” provision of the 1994 Crime Act was introduced, more than 80,000 offenders have received shorter sentences, and the crime rate has continued to decrease by 44%.
Eric Holder and the Department of Justice are on the right track to correct both the unfairness and inefficiency of drug-related mandatory minimum sentences. Although “Smart on Crime” only provides a brief overview of the Department of Justice’s new approach, it seems to present a practical strategy for repairing the harms done by mandatory minimum sentences. With support from the Department of Justice, there is a real opportunity for Congress to pass a bipartisan proposals aimed at curbing the effects of mandatory minimum sentences. Judge Gleeson was right when he said that mandatory minimum sentences are promoting injustice. Thankfully, now something is being done about it.
 See United States v. Dossie, 851 F. Supp. 2d 478, 479 (E.D.N.Y. 2012).
 Id. at 482-83.
 Id. at 487.
 U.S. Attorney Gen. Eric Holder, Remark at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013).
 U.S. Dept. of Just., Smart on Crime: Reforming the Criminal Justice System for the 21st Century. (2013).
 Jane L. Froyd, Comment, Safety Valve Failure: Low-Level Drug Offenders and the Federal Sentencing Guidelines, 94 Nw. U.L. Rev. 1471, 1486 (2000).
 Id. at 1484.
 United States v. Dossie, 851 F. Supp. 2d 478, 479-80 (E.D.N.Y. 2012).
 Id. at 480.
 Jane L. Froyd, supra note 7, at 1487-488.
 See Erik Luna, Criminal Law: Gridland: An Allegorical Critique of Federal Sentencing, 96 J. Crim. L. & Criminology 25, 68-69 (2005).
 United States v. Dossie, 851 F. Supp. 2d 478, 481 (E.D.N.Y. 2012).
 See Sarah French Russell, Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing, 43 U.C. Davis L. Rev. 1135, 1166-167 (2010).
 Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings L.J. 423, 433 (2013).
Id. at 429.
 See Paul Guerino, Paige M. Harrison, & William J. Sabol, Bureau of Justice Statistics, U.S. Dep’t of Justice, Bull. No. NCJ 236096, Prisoners in 2010, 30 (Dec. 2011, rev. Feb. 9, 2012).
 U.S. Dept. of Just., supra note 6, at 1, 3.
 Id. at 3. (emphasis added).
 Id. at 1.
 William Otis, Like Less Crime? Thank Mandatory Minimums, U.S. News (Sept. 2, 2013), http://www.usnews.com/opinion/articles/2013/09/02/tell-eric-holder-that-mandatory-minimums-worked-to-reduce-crime.
 Steven D. Levitt & Stephen J. Dubner, Freakonomics: A Rouge Economist Explores the Hidden Side of Everything 138-141 (2005).
 Id. at 140.
 Id. at 119.
 Julie Stewart, Mandatory Ineffectiveness, U.S. News (Sept. 2, 2013), http://www.usnews.com/opinion/articles/2013/09/02/eric-holder-is-right-to-give-courts-more-discretion-on-mandatory-minimums.