Mandatory Sentencing and the War on Drugs: A Case Study Critique

Introduction

The primary grounds for mandatory sentencing laws are utilitarian. The laws impose long prison sentences on recidivists and drug dealers and isolate violent criminals from the community, aiming to prevent them from committing additional crimes outside prison walls. In addition, mandatory sentencing is designed to deter potential offenders by conveying the harsh consequences that await them if they commit a crime. Lawmakers have made imprisonment both more certain and more severe in order to respond to constituent concerns about crime and public safety, and to achieve the broader goal of general criminal deterrence.

The prohibition on courts suspending trials or placing offenders on probation makes imprisonment more probable. Furthermore, increases in statutory devices raise the severity of sentences. Some statutes, for instance, require a sentenced offender to serve a mandatory minimum prison term that would not otherwise apply to the commission of that crime. Other provisions increase both the statutory minimum and maximum sentences that a court may ultimately impose. Still other statutes require consecutive sentences for the underlying offense and the triggering circumstance.

In other cases, statutes increase severity by restricting administrative discretion—either impeding or eliminating parole eligibility, or forbidding sentence credit for exceptional behavior while serving in prison. Most statutes combine many of these elements, requiring judges to sentence offenders to prison and to ensure that incarceration is lengthy. In doing so, the laws aim to achieve deterrence and incapacitation without regard to individualized, proportionate punishment. This concept of mandatory sentencing is not new; colonial laws established fixed penalties for many criminal offenses and allowed courts little or no flexibility when imposing punishment in individual cases.

Current mandatory sentences differ from the fixed sentences imposed during the colonial era. Most current laws do not impose fixed sentences for the criminal act itself; instead, they require increased punishment when a triggering circumstance arises in connection with the commission of an offense. For instance, the law prohibits trafficking in particular drugs, such as cocaine. The standard sentence for a first violation of this statute is imprisonment with no minimum term and a maximum of up to twenty years (Akuno and Eisen, 2013). The aim of mandatory sentencing is to achieve an increased minimum sentence—rising from no imprisonment to five years and then to ten years—and to ensure that sentenced offenders serve significant prison terms.

Mandatory sentences also aim to eliminate the application of probation and suspended sentences. A broad variety of circumstances trigger modified penalties under these statutes. Most jurisdictions have enacted provisions requiring individuals to serve longer prison sentences when they possess or use dangerous weapons during the commission of a crime. Common targets of mandatory sentences include individuals who possess or distribute prohibited drugs exceeding a certain quantity, those who commit violent offenses against vulnerable populations such as children and the elderly, and those who commit offenses while released from prison for other crimes (Bjerk, 2005). Since the proliferation of mandatory sentencing, prison populations have increased dramatically—largely because mandatory sentences give prosecutors substantial leverage in plea bargaining.

Theoretical and Conceptual Issues

For instance, a prosecutor can charge a serious mandatory sentence enhancement that a court must impose if the offender is convicted at trial. The harsher the sentence the offender risks by going to trial, the greater the prosecutorial power to dictate the terms of plea agreements. A prosecutor can therefore compel an offender to plead guilty to more punitive terms than the offender would otherwise accept (Cohen and Doob, 1990). This dynamic means that the law has broadened determinate sentencing ranges and has endorsed mandatory sentencing in response to political pressure from constituents. Mandatory sentences produce variations embedded in legislative judgments about deterrence, and by their very nature they also influence and reshape the processes of the criminal legal system.

Mandatory sentencing applies across a wide range of crimes, including murder, drug trafficking, and many other offenses. This paper focuses on drug trafficking as its primary area of analysis, using a drug trafficking case study to provide a critique of mandatory sentencing.

The primary aim of this critique is to evaluate the utilitarian elements of mandatory sentences—that is, the probable crime-prevention benefits of such sentences. As the law suggests, some benefits may arise through incapacitation, deterrence, denunciation, or public education. Because sentences already tend to exist in areas where mandatory sentences apply—such as murder, gun-related crimes, and impaired driving—demonstrating that a given mandatory sentence produces an absolute deterrent or incapacitation effect is difficult. It is therefore apparent that there is a need to establish what additional benefits mandatory sentences provide beyond those already achieved by conventional sentencing.

Review of Literature

Owing to the preventive rationale behind mandatory sentences, it is also important to assess the effect of sentence severity. For instance, one must consider whether increased perceived severity results in fewer guilty pleas and more cases proceeding to trial (Alexander, 2010). This raises a significant issue, because mandatory sentences apply to a broad range of sanctions globally—from mandatory license restrictions and imposed fines for impaired driving, to mandatory life provisions and even death penalties for particular categories of cases. From the perspective advanced in this paper, the mandatory sentencing regime has largely created more problems than it has solved. Different levels of severity warrant separate consideration rather than being viewed through a uniform lens (Van Dine, Dinitz and Conrad, 1979).

From a policy standpoint, the scholarly literature on mandatory minimum drug sentencing is overwhelmingly negative. Most studies observe that mandatory minimum sentencing requirements represent an outgrowth of the War on Drugs. The detrimental impacts of the drug war—particularly on people of color and the poor—are among the central points of debate among policymakers. Advocates of mandatory minimum sentencing and the fight against drugs tend to believe that drug policies overall have yielded beneficial outcomes for society (Anderson, 2006). Supporters generally align their position with broader support for the Drug War and include police agencies, substance prohibition groups, and anti-drug legal advocates.

Opponents of the drug war, mandatory sentencing, and drug crime disparities argue that the costs have had catastrophic impacts on the nation—affecting people across racial lines and those in poverty. A survey conducted by the Rand Drug Policy Research Center found that the drug war consumes substantially more resources on penalization and enforcement than on reduction and prevention. The study concluded that even with increased expenditure, gains in reducing illegal drug usage would not show significant change (Caulkins and Rand Drug Policy Research Center, 1997).

The perpetuation of the drug war by judges and prosecutors has not been explicitly motivated by racial bias. Rather, the drug war's racial animus is institutional. Judges recognize that applying mandatory minimum sentencing standards as codified in law produces discriminatory outcomes, yet they have not challenged laws they know to be biased. The drug war, in this view, was purposefully endorsed as racial policy in order to suppress the political and social standing of people of color. Other opponents share a similar skepticism of mandatory minimum requirements and drug laws but argue from a different vantage point (McDowall, Loftin and Wiersema, 1992). Some assert that the harms inflicted on families across racial lines, political ideologies, those in poverty, and youth of color by drug laws represent a form of social harm that corrodes the fabric of society.

Based on these arguments from the literature, the drug war is problematic not only because of its secondary consequences—diminished civil freedoms—but also because, in the name of prosecuting the drug war, courts have neglected or rejected constitutional protections against state intrusion and infringements on personal freedom. This position is grounded in the historical development of the drug war out of explicitly political motivations. One study further suggests that mandatory minimum sentencing in the fight against drugs is an expression of the institutional racism perpetuated by the criminal justice system. In the United States, the system evolved over time in reaction to the civil rights era, effectively becoming a focal point for social disenfranchisement that was formerly enacted in law.

The justice system was subsequently restructured to criminalize the nominally "equal" African American; it also ensured that the social position of African Americans remained subordinate to that of their white counterparts. Historically, dating back to the Nixon administration, this was accomplished through the establishment of the "Drug War" as a political strategy to win support from white voters in the South by opposing civil rights and racial equality initiatives. The system was further transformed through the appointment of conservative justices who endorsed reductions in Fourth Amendment protections against illegal searches, property seizures, and wrongful detentions. The evidence from multiple studies strongly supports the conclusion that serious civil liberty issues exist in relation to mandatory sentencing and the War on Drugs.