Post Date: July 1, 2013
Earlier this month, voters in my old stomping grounds of the Florida panhandle elected Mike Hill to replace Representative Clay Ford, who died of cancer earlier this year. Hill is not a career politician, but he has been politically active for some time as the founder of the “Northwest Florida Tea Party.” (Full disclosure: I’m a member of their Facebook group.)
In this brief interview with Representative Hill, he describes the principles that will guide his decision-making in the legislature:
Good public policy will answer these questions: One, is it constitutional? Two, is it fiscally responsible? Three, what problems will it fix in both the short term and long term? And four, is it morally sound?
Those principles provide a good summary of how conservatives approach public policy. (For what it’s worth, I think they provide a good summary of how everyone ought to approach public policy.) What struck me as I read them, though, is that the application of those principles to drug sentencing laws would require abolishing mandatory minimum drug laws. Let’s take each in turn.
Reasonable conservatives disagree on this question, but I think the answer is no.
David Keene, former president of the American Conservative Union and the NRA, made a brief case against the constitutionality of mandatory minimums in his testimony against them in front of the U.S. House Subcommittee on Crime, Terrorism, and Homeland Security in 2009:
I believe the United States Constitution is the greatest charter for self-government ever devised. Committed to protecting individual freedom, the Founders ingeniously designed a government of co-equal branches with separate powers. James Madison, for one, believed that a clear separation of powers was more vital to protecting freedom than the Bill of Rights. Yet mandatory minimums undermine this important protector of liberty by allowing the legislature to steal jurisdiction over sentencing, which has historically been a judicial function. The attempt by legislatures and the Congress to address perceived problems in the justice system by transferring power from judges to prosecutors and the executive branch violate these principles and have, in the process, given prosecutors unreviewable authority to influence sentences through their charging decisions and plea bargaining power. Admittedly, the letter of the Constitution does not prohibit the legislative branch from usurping sentencing authority, but its spirit and common sense should.
(For more on how mandatory minimums violate the separation of powers, see this great article. For other constitutional concerns surrounding mandatory minimums, see this testimony from law professor and Cato Institute adjunct scholar Erik Luna. And to see why mandatory minimums violate the Eighth Amendment, see FAMM’s amicus brief in Michelle Taylor’s case.)
As I said, reasonable conservatives can disagree on this question. Indeed, Justice Scalia wrote the opinion holding that mandatory minimums do not violate the Eighth Amendment’s prohibition on “cruel and unusual punishment.” However, even if one believes the constitution does not strictly prohibit mandatory minimums, it’s obvious they offend the principles the constitution is supposed to embody. As Keene notes, mandatory minimums transfer power from the judicial branch to the executive, effectively eliminating the judiciary from any meaningful role in the huge majority of criminal cases. (Can anyone imagine James Madison advocating a system in which the executive branch 1) determines whether to prosecute someone, 2) has so much power they can secure convictions without trials, and 3) determines how long a defendant should spend in prison? Not a chance.) Further, by giving prosecutorsunbelievable bargaining power over defendants (“Take this offer of five years or go to trial and risk 25”), mandatory minimums undermine almost completely the substantive protections of a trial by jury protected by the Sixth Amendment. (For more on this “trial penalty,” see this great articleby University of Tennessee law professor Glenn Reynolds. For more generally on plea bargains and their role in the criminal justice system, see this article and this article from the Cato Institute, and this post from Jacob Sullum at Reason.)
Representative Hill put the constitutionality of a policy first in his list of principles, and he did so for a reason. If the government doesn’t have the authority to do something, then it simply can’t do it. If a policy is unconstitutional, there’s no reason to continue the inquiry. It’s the first question you ask, and if you find the proposed policy would violate the constitution, the last. If the policy passes constitutional muster, you go on to analyze its costs and benefits. However, just because a policy is constitutional doesn’t mean it’s a good idea, or that conservatives ought to embrace it. So, while I think mandatory minimums clearly violate constitutional principles, for purposes of discussion and to continue the analysis, assume they are constitutional.
To borrow a phrase from President Clinton, that depends on what the meaning of “fiscally responsible” is. In terms of criminal justice policy, I’d define “fiscally responsible” as that which controls crime effectively at the lowest possible cost to the taxpayer. On the first question, there is simply no evidence that mandatory minimums control crime effectively. Indeed, as I showed in this post, mandatory minimums for opiate trafficking have failed to curb prescription drug abuse (opiate overdose death ratestripled in Florida between 2000 and 2009), failed to curb prescription drug trafficking (between FY 2000-01 and FY 2010-11, prison admissions for opiate trafficking (under 14 grams) increased 14-fold, and opiate trafficking prison admissions quadrupled in the between FY 2006-07 and FY 2010-11.)
Supporters of mandatory minimum drug laws claim they act as effective deterrents. But in 2009 the Florida Senate Criminal Justice Committee concluded that, “it is uncertain if mandatories have a deterrent value beyond the incapacitation of those serving them.” But since locking up one drug offender doesn’t prevent a different drug offender from assuming the same role, incapacitation doesn’t generate general deterrence effects. Hence, after analyzing Florida’s sentencing laws, FSU criminologist Jeff Cece concluded that incapacitation of particular drug offenders did not reduce drug activity, and that increased severity of punishment does not lead to lower recidivism rates or a lower crime rate. In fact, mandatory minimum sentences have been so ineffective, just last year Florida Attorney General Pam Bondi called prescription drug abuse, “the most serious public health and safety threat” to the state.
Even the most ardent and influential supporters of incarceration as an effective crime control strategy reject mandatory minimum drug laws. As Jacob Sullum reports in this Reason magazine piece, Dr. John J. DiIulio Jr., a criminologist, Harvard Ph.D. and former Professor of Politics and Public Policy at Princeton, is among the foremost advocates of incarceration in the United States. DiIulio describes the “anti-incarceration left” as “soft-in-the-head,” and has written that, “No one – at least, no one in elite policy-wonk circles – is a bigger fan of incarcerating known, adjudicated adult and juvenile criminals than me.” Nonetheless, Dr. DiIulio opposes mandatory minimum sentences for drug offenders. In a 1996 New York Times op-ed, DiIulio wrote:
Prison definitely pays, but there’s one class of criminal that is an arguable exception: low-level, first-time drug offenders….It makes no sense to lock away even one drug offender whose case could be adjudicated in special drug courts and handled less expensively through intensively supervised probation featuring no-nonsense drug treatment and community service.
There is a conservative crime-control case to be made for repealing mandatory minimum drug laws now. That’s a conservative crime-control case, as in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal-court judges. It is a conservative case, and I … one of the few academic analysts with a kind word for imprisonment, have come to embrace it.
Not only are mandatory minimums ineffective, they’re wildly expensive, and much more expensive than alternative sanctions. Florida TaxWatch found that Florida spends nearly $100 million annually incarcerating drug offenders serving mandatory minimum sentences. Meanwhile, OPPAGA found that in FY 2010-11 alone, taxpayers spent $24 million incarcerating (for one year) the 1,200 offenders sentenced to prison that year on opiate trafficking charges. Of these offenders:
OPPAGA created potential criteria for diverting some prescription drug offenders from prison and into treatment, and concluded that:
If half of the 310 offenders meeting potential criteria for treatment were diverted from prison and successfully completed a treatment program, the total costs avoided over a three-year period would be approximately $6 million. For those diverted from longer sentences, cost savings would be greater. In addition, treatment could help reduce the likelihood that offenders will commit future crimes and thus decrease future prison costs.
Thus, because of mandatory minimum sentences, the status quo requires incarceration of hundreds of offenders who would be less likely to re-offend if diverted to a less expensive alternative sanction. That is neither effective crime control nor efficient for taxpayers. Worse, the money spent incarcerating low-level offenders is not available for other uses, which would almost certainly prove more effective at controlling crime.
This RAND Corporation study looked at the cost-effectiveness of mandatory minimum drug laws, and concluded that “if reducing consumption or violence is the goal, more can be achieved by spending additional money arresting, prosecuting, and sentencing dealers to standard prison terms than by spending it sentencing (fewer) dealers to longer, mandatory terms.” And as this article points out, New York was able to slash its prison population and its crime rate by abandoning mandatory minimum drug laws and reinvesting some of the $1.5 billion saved annually to put more police on the streets patrolling high crime areas.
Dr. Ludwig and Philip J. Cook, a Duke University economist, calculate that nationwide, money diverted from prison to policing would buy at least four times as much reduction in crime. They suggest shrinking the prison population by a quarter and using the savings to hire another 100,000 police officers.
Diverting that money to the police would be tricky politically, because corrections budgets are zealously defended in state capitals by prison administrators, unions and legislators.
But there is at least one prison administrator, Dr. Jacobson, the former correction commissioner in New York, who would send the money elsewhere.
“If you had a dollar to spend on reducing crime, and you looked at the science instead of the politics, you would never spend it on the prison system,” Dr. Jacobson said. “There is no better example of big government run amok.”
That is the same lesson that William J. Bratton draws from his experience as New York’s police commissioner in the 1990s. “We showed in New York that the future of policing is not in handcuffs,” Mr. Bratton said. “The United States has locked up so many people that it has the highest incarceration rate in the world, but we can’t arrest and incarcerate our way out of crime. We need to focus on preventing crime instead of responding to it.”
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. … 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.
If we define “fiscally responsible” criminal justice policy as that which controls crime effectively at the lowest possible cost to the taxpayer, mandatory minimum drug laws are anything but. In fact, a very strong argument could be made that mandatory minimums actually increase crime (by crowding out resources that could be used on better, more effective crime control strategies and programs that reduce recidivism) and do so at a prohibitively high cost to taxpayers. Whatever that is, “fiscally responsible” it ain’t.
This question can be interpreted two ways, so we’ll look at both possibilities. The first is “what problems will imposing mandatory minimum drug laws fix?” The second is “what problems will reforming mandatory minimum drug laws fix?”
First, we’ve already seen that mandatory minimums have not deterred drug trafficking or abuse in Florida. The data on this question are clear and beyond dispute. Prescription drug trafficking and prescription drug abuse have both skyrocketed since the introduction of mandatory minimums. (This isn’t to say that mandatory minimums have caused the increase, only that mandatory minimums have not deterred criminal behavior, as the proponents of mandatory minimums predicted and promised in 1999.) Meanwhile, arrests and prison admissions for drug trafficking have skyrocketed as well. Saying mandatory minimums have “deterred” drug trafficking and abuse is like saying gun control has “deterred” gun violence in Chicago.
Defenders of mandatory minimums can point to a dramatic drop in the crime rate since the introduction of mandatory minimum drug laws. (Indeed, they do this like zombies drone on about brains.) But, like all of their other arguments, this argument fails spectacularly. First, correlation is not causation. Identifying that one event occurred after another event is simply not sufficient to prove that the first event caused the second event (or even that the first event impacted the second event meaningfully). Second, mandatory minimums can’t plausibly be credited with the drop in crime rates because the huge majority of crimes in Florida are not subject to mandatory minimums. (The exception is for repeat felony offenders, but even for these offenders there is a safety valve, so judges can depart from the mandatory minimum under certain circumstances.) Third, Florida’s crime rate dropped nearly every year for a decade before mandatory minimums were introduced. By 1999, crime in Florida had already fallen 31% from its peak in 1989. Crediting mandatory minimums for Florida’s declining crime rate is like crediting President Clinton with the fall of the Soviet Union. Fourth, Florida repealed mandatory minimums for drug trafficking in 1993 (after passing them originally in 1979). For six years, then (1993-1999), Florida relied on sentencing guidelines, not mandatory minimums, to punish drug trafficking. During that time, Florida’s crime rate fell more than 26%. (Incidentally, the crime rate rose 11% between 1979 and 1993.)
This means, of course, that the crime rate rose after Florida first imposed mandatory minimums, fell after their repeal, and continued to fall after their re-introduction. The only plausible conclusion from these data is that mandatory minimum drug laws have had no discernible impact on Florida’s crime rate. It’s no surprise, then, that in 2009 the Florida Senate Criminal Justice Committee concluded that
It is uncertain if mandatories have a deterrent value beyond the incapacitation of those serving them. For example, prison admissions data indicate both declines and increases in prison admissions for trafficking, and arrest data indicate increases in arrest events for trafficking. However, data do not indicate whether or to what extent mandatories have impacted such declines or increases. For FY 2003-04 through FY 2007-08, prison admissions for trafficking generally increased (the exception was FY 2004-05).27 For FY 2004-05 through FY 2008-09, there was a 36 percent increase in drug trafficking arrests.
So much, then, for deterrence. But what about uniformity and certainty in sentencing? Surely similar crimes should receive similar punishments, and surely mandatory minimums deliver that outcome right?
Alas, wrong again.
Uniformity in sentencing is undoubtedly one intention behind mandatory minimums, but like so many other big government programs, theresults are far different from the intentions. (Indeed, the late Chief Justice William Rehnquist called mandatory minimums a “good example of the law of unintended consequences.”) The reason is that mandatory minimums do not just remove discretion from sentencing judges. As we’ve seen, they also transfer that discretion to prosecutors. Through their charging decisions, prosecutors de facto determine whether a mandatory minimum will be imposed or not. Therefore, uniformity in drug sentencing extends only to the point that prosecutors enforce them uniformly.
Evidence indicates that this translates to very little uniformity at all. According to this TaxWatch report, for instance, there are huge county-by-county disparities in the application of mandatory minimum drug laws. The incarceration rate for mandatory minimum drug offenses in Osceola County, for instance, is more than four times the rate in Miami-Dade and Broward Counties. (See p. 32.)
To see why mandatory minimums cannot guarantee uniformity in sentencing, consider two defendants, each arrested for possession of 22 pills. The first is arrested in Alachua County, the other just over the county line in Marion. The State Attorney in Alachua County might charge his defendant with possession of illegal drugs, while the State Attorney in Marion County might charge his defendant with “trafficking in illegal drugs.” In that (completely plausible) scenario, the first defendant would be eligible for drug court, treatment or a non-prison alternative sanction. But the second defendant, if convicted at trial, would be sentenced to a mandatory minimum prison term of 15 years. Same crime, same facts, but a wildly different outcome based almost completely on the respective charging decisions of the State Attorneys.
Further, even controlling for prosecutorial discretion, mandatory minimums guarantee wide disparities in sentences for similar crimes through so-called “cliff effects.” In Florida, “trafficking” is triggered by possession above some minimum quantity of illegal drugs (for prescription painkillers the magic number is four grams, or seven pills). And the length of a sentence increases depending on the amount possessed. Hence, illegal possession of 43 pills yields a mandatory minimum sentence of 15 years. However, possession of 44 pills yields a mandatory minimum of25 years. That’s a 10-year difference (at a price tag of $200,000 to taxpayers) because of one additional pill. Under mandatory minimums, then, a trivial, largely arbitrary distinction generates huge disparities in sentencing, an outcome that does not exist under the sentencing guidelines that govern most other crimes in Florida. (For more on “cliff effects,” see this article by law professors Erik Luna and Paul G. Cassell.)
For a good overview of why mandatory minimum sentencing reform makes sense from a conservative perspective, and what problems will be solved through reform of mandatory minimum drug laws, check out:
This excellent column by George Will;
This excellent National Review piece by David Keene;
This excellent Weekly Standard piece by R Street Institute President Eli Lehrer;
This excellent column by Fox News’ John Stossel;
This excellent Townhall.com column by Ward Connerly; and, of course,
This excellent op-ed by U.S. Senator Rand Paul.
In short, the problems that reform of mandatory minimum drug laws will fix are the very problems that imposing them has caused. Reforming mandatory minimums will free up scarce resources that can be used in better, more efficient ways, reduce unnecessary government spending, protect families, and promote justice where it is both lacking and desperately needed.
Absolutely not, for at least four reasons.
First, mandatory minimums eliminate proportionality in sentencing. As former Justice Fellowship President Pat Nolan points out:
[Mandatory minimum laws prohibit [judges] from weighing the relative harm caused by the crime or the relative culpability of the defendant. Mandatory minimum sentences are “one size fits all.”These laws offend the very notion of justice, which requires that the severity of the punishment match the harm done by an individual criminal. In Exodus 21:24, we are told that our judgments should exact an “eye for eye, tooth for tooth.” This verse limits punishment by requiring that offenders pay back “value for value.” The Bible calls for proportionality in punishment, and stresses that penalties should match the injury.
Professor Erik Luna echoes Nolan:
The notion of proportionality between crime and punishment expresses a common principle of justice, a limitation on government power that has been recognized throughout history and across cultures, and a precept “deeply rooted and frequently repeated in common-law jurisprudence.”
(For more on the history of proportionality in criminal sentencing, see footnote 3 here.)
Second, mandatory minimums generate arbitrary outcomes in the criminal justice system. As Professor Luna notes, in addition to the “cliff effects” discussed above:
Mandatory minimums can also have a “tariff effect,” where some basic fact triggers the same mandatory minimum sentence regardless of whether the defendant was, for instance, a low-level drug courier or instead a narcotics kingpin. Perversely, the tariff may be levied on the least culpable members in a criminal episode, given that those in leadership positions often have valuable information that is unavailable to low-level offenders (i.e., the type of material that can be used as a bargaining chip with prosecutors).
Indeed, Luna points out that: “Most recipients of drug mandatory minimums are couriers, mules, and street-level dealers, not kingpins or leaders in international drug cartels.” The same seems to hold true in Florida, where the Senate Criminal Justice Committee found in 2009 that:
[T]he average sentence of inmates who have a lower-level trafficking offense is above the mandatory, while the average sentence of inmates with a higher-level trafficking offense is below the mandatory.
A system that puts low-level drug offenders in prison for decades, but allows higher-level drug offenders to bargain their way down to less severe sentences is perverse and clearly not “morally sound.”
Third, mandatory minimums create sentencing outcomes in individual cases that shock the conscience. See just a small sample of those caseshere, here, and here. For a longer discussion of another case and the injustice of mandatory minimum drug laws generally, see this piece by Conor Friedersdorf.
(Unjust sentencing outcomes are not, by themselves, proof that mandatory minimum drug laws ought to be reformed or repealed. But (to me at least) they do amount to a prima facie case for reform; a presumption that mandatory minimum drug laws ought to be repealed. In the face of such manifest injustices, defenders of the status quo should be required to rebut that presumption by showing through clear and convincing evidence that the benefits of mandatory minimum drug laws outweigh their financial, social and moral costs. If they can’t [SPOILER ALERT: they can’t], then the overwhelming weight of the evidence favors reform or outright repeal of mandatory minimum drug laws.)
Fourth, mandatory minimum drug laws leave Floridians less safe. As has already been noted, mandatory minimums sap resources that could be used for more effective crime control programs. Further, as we saw above, mandatory minimums prevent offenders from being sentenced to alternative sanctions that are proven to lower recidivism. As conservative Christian commentator Pat Robertson argued, young people sentenced under mandatory minimum drug laws often “go into prison as youths and they come out as hardened criminals.” That translates quite literally into more crime and more victims, the opposite of the intention behind mandatory minimums.
Representative Hill’s prudent, four-step process is a useful framework for determining whether something is sound, conservative public policy. And applying that framework to drug sentencing laws demands repeal of mandatory minimums. First, mandatory minimums are constitutionally dubious and violate the principles of the Founding Fathers. Second, mandatory minimums are fiscally irresponsible. Third, mandatory minimums have not solved any of the problems they were intended to solved, and have perhaps made those same problems worse. Reform of mandatory minimum laws will free up scarce resources, limit currently bloated corrections spending, reduce arbitrary and unjust sentencing outcomes for low-level drug offenders, and help reduce recidivism. And finally, mandatory minimum drug laws are morally unsound.
Conservatives who want to limit the size and scope of government, reduce unnecessary and burdensome taxation and spending, and maximize the liberty of citizens should apply Representative Hill’s framework and lead the effort to reform Florida’s irrational, expensive, unjust drug sentencing laws.