For two decades, politicians have worked hard to polish their tough-on-crime credentials.
Now, though – at a time when concerns about crime are low, prison populations are skyrocketing, and voters are more informed about how sentencing laws play out – Americans may be starting to rethink one of the toughest crime reforms from the 1980s: mandatory minimum sentences for drug offenses.
In a new poll, some 60 percent of respondents opposed mandatory minimums for nonviolent crimes, including a majority of both Democrats and Republicans. Nearly 80 percent said the courts are best qualified to determine sentences for crimes, and nearly 60 percent said they'd be likely to vote for a politician who opposed mandatory minimum sentences.
"The public is ahead of the politicians on this," says Julie Stewart, president and founder of Families Against Mandatory Minimums (FAMM), which commissioned the poll and released a new report on the issue Wednesday. "This is a message members of Congress haven't heard…. As a country we believe in individualized justice."
The current spate of mandatory minimums has its root in the crime wave of the 1980s, when fears about crack cocaine, in particular, led lawmakers to draft tougher measures to deter dealers.
Much attention in recent years has focused on the disparity between the minimums meted out for crack cocaine – often connected with African-American offenders and once believed to be more dangerous than powder – and the powder form. Experts now say the two forms are equally dangerous. Those possessing five grams of crack cocaine – versus 500 grams of powder cocaine – face a mandatory minimum of five years.
Last year, the US Sentencing Commission got a reduction of some sentencing guidelines for crack cocaine, sparking a controversy about crack offenders made eligible for release, but the minimums remain the same.
Not everyone believes mandatory minimums should be changed. Attorney General Michael Mukasey strongly opposed the efforts last year to reduce sentences for crack offenders. And the Fraternal Order of Police advocates mandatory minimums as an important deterrent to drug crimes.
"Whatever else you may try on the street by way of prevention and intervention, individuals who ... violate the law need to know that there are consequences," says Jim Pasco, executive director of the FOP. "Nothing focuses the mind on consequences like knowing that you're going to get, for instance, a five-year minimum sentence."
Ceding the power to judges wouldn't have the same effect, he argues. "There wouldn't be mandatory minimums today if the discretion of judges had gotten the job done."
But others say mandatory minimums take away discretion from the person best able to weigh punishment. "The judge has all the facts about an individual case, whereas the legislature is setting the sentence guidelines in a vacuum," says James Alan Fox, a criminologist at Northeastern University in Boston, MA.
FAMM's new report argues that there's no evidence mandatory minimums have helped reduce drug crime, and in fact, often focuses law-enforcement efforts on small-time players rather than drug kingpins. It also argues that the sentences have imposed significant costs on the system, by putting nonviolent offenders in jail longer than appropriate.
"This isn't as volatile an issue as it was in the 1980s, and we're a lot better educated than we were," says Molly Gill, the report's author. She points to the first time Congress enacted mandatory minimum sentences for drug crimes in 1951 with the Boggs Act – which made no distinction between drug users and traffickers – and later repealed them in 1970 when it was clear they weren't working.
Today, Ms. Gill sees two potential solutions: repealing the minimums entirely, which would leave the sentencing guidelines in place but allow for judicial discretion, or expanding the existing "safety valve," which allows judges to disregard the minimums under certain criteria.