Restorative Justice Instead of Mandatory Minimums

Mandatory Minimum Sentencing

Abstract

Mandatory minimum sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses, and judges are bound by law to enforce them. Explain the reasons why there have been calls to repeal or reform mandatory minimum sentencing laws. Based on your findings, are you in favor of repealing mandatory minimum sentencing laws?

Introduction

Mandatory minimum sentencing was part of a set of strict guidelines implemented during a “get tough on crime” / War on Drugs era during the 1990s that resulted in an explosion of the prison population. By the 21st century, nearly half of all inmates in federal or state prison were incarcerated for non-violent crimes that resulted from this set of strict guidelines (Smith & Hattery, 2006). The cost of imprisonment had reached $10 billion annually (Smith & Hattery, 2006). Yet, alternative sentencing, such as restorative justice programs, has been found to be more effective at reducing crime and rates of recidivism and represents a mere fraction of the cost that incarceration represents (Johnson et al., 2015). Moreover, prisoners often have their labor exploited by corporations, receiving very little in terms of remuneration (Hammad, 2019). Thus, the “tough on crime” laws, such as mandatory minimum sentencing, perpetuate a prison industrial complex while doing nothing to resolve the cultural, social, and economic issues that lead to crime. In fact, Peters et al. (2015) argue that many of those affected by mandatory minimum sentencing laws actually represent mental health issues rather than criminal issues, and in these cases mandatory minimum sentencing is merely a punitive form of justice that shows no care or concern for the offender as a human being. What the research shows is that rather than mandatory minimum sentencing, the criminal justice system should be looking at alternative sentencing and other ways to help individuals caught in a cycle of recidivism and crime.

Why Reform is Needed

Calls to repeal or reform mandatory minimum sentencing laws are based on the fact that incarceration rates are so high in the US compared to other countries, that alternative sentencing appears to be a solution to the problem of cost and recidivism, and that mental health issues are not treated adequately in the prison system. In punitive justice systems, the dignity of the human person is ignored, the cost of incarceration is ignored (both to the public and to the communities that see many of their members serving minimum mandatory sentences), and viable alternatives to incarceration are ignored. Indeed, a significant percentage of drug offenders are incarcerated under mandatory minimum sentencing requirements (Barkow, 2019). Repealing or reforming mandatory minimum sentencing laws would bring these ignored factors into the foreground.

Theories abound for why people commit crime. From life course theory to social bond theory, what many of them have in common is the idea that people commit crime because they have either reached a point in their lives where they see no other option for themselves or because they have no real attachment to the community and see no reason to abide by its laws. In any case, these are people who are in need of rehabilitation. Incarceration merely serves to remove them from society for a time—and it does nothing to help them in terms of reintegrating them into the fabric of society in such a way that society is keen to welcome them back and they are keen to return.

Restorative justice programs, on the other hand, do help to give victims of crime a better sense that justice has been served, and they do help to give offenders a better sense that they belong to a community and should strive to be a positive force in that community (Johnson et al., 2015). Such programs promote the concept of social justice and social cohesion. They promote the idea that rehabilitation is not only possible but that it can be achieved without incarceration. They promote the idea that the offender is a human being who, if treated humanely, will make restitution and turn over a new leaf if given the right support and opportunity to do so.

When offenders are incarcerated, they are cut off from society and do not obtain any sense that they are part of a community. They continue to see society as something “other” from themselves—as something apart—something to which they do not belong. When finally released, they are still facing the same problems they faced before conviction: the same tensions, the same obstacles, the same mental health issues, the same cultural and social conflicts—all of it remains. But with restorative justice, a new approach to life is implemented, and the possibility of becoming a truly contributing member of society is given the offender.

Addressing Crime

While mandatory minimum sentencing has been justified from a “get tough on crime” perspective, it is a type of sentencing that can end up doing more harm than good. Those in favor of mandatory minimum sentencing argue that it has a deterrent effect and that crime can best be kept in check by keeping tougher, more punitive laws on the books so that people think twice about committing offenses. They can point to cities like Chicago, New York, or San Francisco, where many offenses have been decriminalized and now gangs are targeting retailers in smash-and-grabs that have store owners beside themselves over the city’s apparent inability to curb criminal activity.

The key to a fair and equitable criminal justice system is balance. Strict sentencing may be necessary in some cases, but in other cases the possibility of alternative sentencing should also be available. Mental health services should be an option instead of incarceration in other cases. Yet because many offenders accept plea deals as a way of avoiding trial for fear of receiving a harsher sentence that the prosecution says they will risk receiving if convicted, there is never much opportunity for alternative approaches to justice to be realized. Balance is needed and a more cautionary approach to criminal justice should be adopted.