Mandatory Minimums: The Saw Palmetto of Criminal Justice Policy

Post Date: March 27, 2014

About two years ago, my dad had a prostate cancer scare. After an annual exam, his doctor revealed that his PSA levels were elevated sufficiently to cause concern. (Generally, the higher a man’s PSA levels, the more likely it is that he has or will develop prostate cancer.) As you might imagine, I was pretty shaken by the news. My dad’s my dad, after all. So I did the only thing I could think to do: I took to the Internet and learned everything I could about prostate cancer, PSA levels, treatments, etc. And then I immediately instructed dad to start doing everything he could to reduce his PSA levels and, by extension, his risk of prostate cancer. Eat tomatoes! Take aspirin! Exercise! 

One of the things I demanded was that dad start taking “saw palmetto.” Some people think saw palmetto helps with symptoms related to an enlarged prostate. They point to “numerous studies” that “illustrate the effectiveness” of saw palmetto for prostate conditions. Now, I’m normally what you might call a “skeptic.” I snicker with smug superiority when friends mention they’ve seen a chiropractor or an acupuncturist; I think homeopathic “remedies” are snake oil, etc. But my dad’s my dad. And when I read that saw palmetto might help, I set aside my skepticism and told him to start taking it immediately. 

Couldn’t hurt, right?

Along with other remedies, dad took saw palmetto consistently. Earlier this week, after dad’s most recent exam, his doctor told him his PSA levels had dropped considerably and that he was now at “low risk” for prostate cancer. Great news! Dad asked the doctor about saw palmetto. The doctor said, “They’re worthless, and [I] wouldn’t take them if they were free. The only people that benefit from them are the ones who sell them.” 

And the doctor is right! There is considerable evidence that saw palmetto is no better than a placebo at treating prostate-related symptoms. I knew of this evidence and the consensus among doctors when I told dad to start taking it; I just ignored it. But after the good news earlier this week, my dad – who shares my skepticism (more likely, I share his) – and I joked about how we let ourselves be taken in by this flim-flam, and lamented that he’d spent any money on  what amounted to sugar pills.

Later, in an email exchange, a friend joked, “Well if he has been taking them and his numbers went down…. Didn’t they work?” We had a nice laugh extending the implications of my friend’s intentionally bad logic.

Then it occurred to me that my friend’s poor reasoning is exactly the reasoning made by proponents of Florida’s mandatory minimums. (Except they make their arguments in earnest, presumably.) It goes like this: Florida’s crime rate was high. Florida passed mandatory minimums. And now Florida’s crime rate is at a 42-year low. That’s it. That’s the entire argument. We took action X, and now we see outcome Y. Hence, action X caused outcome Y. That line of reasoning is, of course, idiotic. And yet, that faulty logic is so widely accepted it has been the cornerstone of Florida’s criminal justice policy for years, and remains so.

Let’s break it down a bit more.

Proponents of mandatory minimums make specific claims about the efficacy of mandatory sentences. They say mandatory minimum sentences have reduced crime. Their sole piece of evidence for that claim is that crime dropped after the adoption of mandatory minimums. Of course, a peddler of saw palmetto might take my dad’s case and make exactly the same claim. And yet, in both cases, we know the claim is untrue. Law enforcement promised deterrence of drug trafficking and abuse when they proposed harsh mandatory minimums for drug “trafficking,” just as peddlers of saw palmetto promise relief of prostate-related symptoms. Fifteen years later, we know there simply wasn’t any deterrence of drug trafficking or drug abuse. And we know saw palmetto doesn’t work, either!

In fact, the case for saw palmetto is considerably stronger than the case for mandatory minimums. Even the American Cancer Society cites some early evidence of a “moderate” impact on prostate symptoms. Mandatory minimum proponents don’t even have that! (Seriously. Ask them to cite a study that shows a deterrent effect on crime or drug abuse from mandatory minimums and they’ll stare at you with a confused look as if they’re thinking, “What’s a study?” Needless to say, they won’t provide the evidence.)

As I said, I set aside my skepticism to encourage dad to take saw palmetto in part because, even if it didn’t help, it certainly couldn’t hurt to try. That isn’t strictly true. There’s always an opportunity cost; after all, he did have to pay for the pills.

Once you internalize the idea that choices always come with opportunity costs, the case against mandatory minimums (and saw palmetto!) becomes even stronger. Why? Because not only are we wasting money on ineffective remedies, those ineffective remedies crowd out better remedies! Dad probably spent a few hundred dollars on saw palmetto during the time he was taking that supplement. But he could’ve used the same money on something that actually worked (like tomatoes!). So, in that important sense, spending money on saw palmetto made things worse. And – you guessed it – so do mandatory minimums! 

Our sentencing laws have huge opportunity costs. Florida spends nearly $100 million annually incarcerating drug offenders serving mandatory sentences. Every dollar spent on incarceration is a dollar that can’t be spent on some other crime-fighting tool. Do we know that the $60,000 spent  incarcerating an offender for three years wouldn’t be better spent on one year in prison followed by  two years of drug rehabilitation? (Or two years in prison followed by one year of rehabilitation? Etc.) Do we know that spending money incarcerating drug offenders is a better use of those resources than putting more police on the street? Indeed, there is evidence that more police on the street leads to reduced crime! So, just like wasting money on saw palmetto prevented dad from buying more tomatoes, wasting money on ineffective incarceration prevents us from spending that money on effective crime-fighting tools. Flim-flam is dangerous!

Fortunately, despite wasting his money on saw palmetto, dad was able to afford effective remedies, too, and thereby reduce his PSA levels. (Or, the levels dropped for some unknown reason; who knows?!) The same goes for Florida. Our crime rate has fallen despite mandatory minimums, not because of them. But we’d be better off without them, because we could free up resources to use on things that actually work. 

Ok, so, if mandatory minimums are just an expensive placebo, why do we keep them around? Dad’s doctor answered that question, too. Recall that he said of saw palmetto, “The only people that benefit from them are the ones who sell them.” This is true of mandatory minimums, too. It’s also true that the only people who sell them are the ones who benefit from them. 

Imagine the legislature wants to decide whether saw palmetto is effective in treating prostate-related symptoms. So they have a hearing and call two witnesses. The first is a doctor who’s published several widely cited, peer-reviewed papers based on double-blind studies on the effectiveness of saw palmetto. The other is the owner of an online health food store that sells saw palmetto. What would you expect each to say? To whom would you want the legislature to listen when crafting policy? In this case, the doctor would almost certainly argue that saw palmetto is no better than a placebo, while the health food store owner would try to convince the legislature that saw palmetto has real benefits. (Perhaps the store owner would relay terrible stories of prostate cancer victims, and argue that “now is not the time to retreat in our war on cancer.”) In this scenario, to whom should legislators listen when deciding whether saw palmetto is effective? If you said, “The doctor,” you’re right!

And yet, when it comes to mandatory minimums, Florida legislators routinely defer to the store owner, in this case played by prosecutors. In every debate on mandatory minimums, FAMM and our allies present overwhelming evidence, compiled over several decades from states across the country, that all points to the conclusion that mandatory minimums are ineffective. And then prosecutors say crime is down in Florida so we must be doing something right. And, just like my dad kept taking saw palmetto, Florida keeps its mandatory minimums on the books. 

After his doctor blew the whistle on the saw palmetto scam, dad threw his pills out and said he won’t buy anymore. (Does that make him soft on cancer?) In a way, that takes courage. Cancer’s no joke, and making a mistake in prevention could lead to early death. There’s probably a big psychological incentive to keep taking the pills “just in case.” Similarly, there’s an incentive to keep status quo criminal justice policy rather than risking a spike in crime. But dad trusts science, he trusts evidence, and he trusts the disinterested wisdom of his doctor over the self-interested propaganda of placebo peddlers. Florida lawmakers should display that same courage, that same trust, ignore the demagoguery of special interest groups that benefit from mandatory minimums, and finally cut our state loose from expensive, ineffective, counterproductive criminal justice policies.

~Greg Newburn, FAMM State Policy Director

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