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July 14, 2009
Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?
As previously previewed here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security this morning held a hearing this morning on "Mandatory Minimums and Unintended Consequences." I cannot yet find any press reports on the hearing, but all of the written testimony from the five witnesses can be found at this House webpage.
All the written testimony is worth checking out, but I found these written remarks of Grover G. Norquist, who is President of Americans for Tax Reform, to be the most refreshing. It highlights the latest way in which the economic of harsh sentencing helps create a new push for needed reforms. Here are excerpts from his Norquist's written testimony:
To begin with, [the] pedigree [of mandatory minimum sentencing laws] makes them highly suspect. As with so many other federal programs, mandatory minimums were hatched by the Left, later embraced by the Right, and have been maintained by a bipartisan majority....
We should know by now to beware of easy solutions. As H.L. Mencken said, “There is always an easy solution to every human problem — neat, plausible, and wrong.” Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while a neat and plausible response to sentencing disparities, was the wrong solution....
The biggest problem from the perspective of the taxpayer, however, is that mandatory minimum sentencing policies have proven prohibitively expensive. In 2008, American taxpayers spent over $5.4 billion on federal prisons, a 925 percent increase since 1982.
This explosion in costs is driven by the expanded use of prison sentences for drug crimes and longer sentences required by mandatory minimums. Drug offenders are the largest category of offenders entering federal prisons each year. One third of all individuals sentenced in federal courts each year are drug offenders. And these convicts are getting long sentences. In 2008, more than two-thirds of all drug offenders receive a mandatory minimum sentence, with most receiving a ten-year minimum.
The jump in corrections costs at the state level has been equally dramatic. State corrections spending has ballooned from $6 billion in 1982 to over $50 billion in 2008. These skyrocketing costs are hitting states at a time when they are already being forced to cut back due to the bad economy.
The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking. It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.
Yet all is not lost. Center-right governors like Rick Perry of Texas are trying new approaches. A couple of years ago, Texas started sending low-level, first-time felony drug users to mandatory drug treatment rather than prison. Before Governor Perry, it was Republican Governor — John Engler of Michigan — who signed into law the first major repeal of state mandatory minimum sentences. Engler’s action saved Michigan taxpayers $40 million in prison costs without jeopardizing public safety.
In closing, I want to note that questioning the wisdom of mandatory minimums has nothing to do with being soft on crime. I believe in strong and swift punishment when appropriate. I support the death penalty for murderers. But the government has a responsibility to use taxpayer money wisely. Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.
The folks at Families Against Mandatory Minimums have this new press release about the House hearings; it makes much of Norquist's written testimony and is headed "FAMM, Unusual Allies Call for Sentencing Reform."
Some related old and new posts:
- House hearing on "Mandatory Minimums and Unintended Consequences"
- Important and heartening new speech from AG Eric Holder
- Whither the Webb reform bill ... does it weather or wither?
- My latest (academic?) musings about progressive punishment perspectives
- Why I fear change will not come quickly to federal sentencing policy and practice
- Is real fundamental, structural change on the horizon for the federal sentencing system?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
July 14, 2009 at 03:36 PM | Permalink
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These costs are pittances, and return over $10 per $1 spent, in prevention of victims' loss to crime. They lowered 40%. If you throw in the value of a home dropped by crime, the return may be $100. Until, the lawyer is stopped from helping his pals, the criminals, these programs will continue to have bipartisan support.
Posted by: Supremacy Claus | Jul 14, 2009 3:52:19 PM
J. Carnes submitted solid testimony. However, she is kind of stuck in the past. The Commission and Guidelines were a great solution to the mandatory minimum problem when the Guidelines really meant something. Now that they are "effectively advisory," Guidelines are a less reliable alternative to mandatory minimums. The Fumo case is a prime example. Regardless of whether the sentencing Judge in that case was right or wrong, the sentence is unlikely to be disturbed on appeal. The trial Judge is the final word as long as he/she jumps through the proper procedural hoops. It is easy to understand a legislative response that demands some minimum level of certainty in punishment. The Supreme Court won't let the appellate courts provide meaningful review. So there may be legislative reluctance to make otherwise valuable reductions in mandatory minimum laws.
Perhaps the answer is what the remedial Booker dissenters (and others) proposed: Mandatory guidelines with jury factfinding. The guidelines would have to be simplified and would still yield more judicial discretion than some would like. Yet it seems better than the current, divergent approaches of nearly unrestricted judicial discretion most of the time (up and down, by they way -- see Madoff) except when it runs up against truly rigid and at times irresponsible legislative mandatory minimums.
Posted by: Guidelines? | Jul 14, 2009 10:31:49 PM
The Commission and Guidelines were a great solution to the mandatory minimum problem when the Guidelines really meant something.
Yes, but that ignores the fact that many of the mandatory minimums enshrined in law today were enacted after the Sentencing Reform Act. Guidelines weren’t the solution to the mandatory minimum problem; rather, minimums were grafted onto the existing Guidelines.
Perhaps the answer is what the remedial Booker dissenters (and others) proposed: Mandatory guidelines with jury factfinding.
Do we really have such a big problem? As other commenters have noted, judges still sentence within the Guidelines most of the time.
Posted by: Marc Shepherd | Jul 15, 2009 12:35:50 PM
Guidelines?, It's not that "The Supreme Court won't let the appellate courts provide meaningful review", it's that the Sixth Amendment won't.
And I can't understand your citation to Maddoff as an upward divergent approach to sentencing. Maddoff got a Guideline sentence; there was no variance or departure.
Posted by: DEJ | Jul 15, 2009 1:00:57 PM
Marc, you are right about the timing of the mandos, but removing mandos in a world without enforceable guidelines is the concern Guidelines? was raising. As for how much of a problem it is, that is an interesting question. I sure would not want to be the person who gets a much higher sentence without appellate recourse; knowing that it does not happen "too" often will be little consolation. The reverse is true if I am the victim of a crime who sees the defendant get a very lenient sentence; knowing that it does not happen "too" often will be little consolation.
While DEJ is right about Madoff, it is a bit much to lay the appellate issue at the feet of the 6A. Yes, the 6A means what the Court says it means, but really. Especially on the issue of appellate review under the 6A, the Court is making this up as it goes along. Even an initial Booker ruling that no appellate review is possible would have been more convincing than the hodge-podge we have now.
Posted by: JJW | Jul 15, 2009 10:27:33 PM