Post Date: July 19, 2017
Mandatory minimum drug laws don’t work. Everyone who’s studied the issue understands this undeniable truth. And yet, mandatory minimums remain stubbornly popular among many legislators. Criminologist Michael Tonry was right when he wrote that, “The greatest gap between knowledge and policy in American sentencing concerns mandatory penalties.”
Mandatory minimum drug laws remain popular among legislators primarily because the gap between knowledge and policy is filled with bad arguments, logical fallacies, and sophistry by special interest groups that benefit from the status quo. The other side of this debate (such as it is) relies on dubious rhetorical strategies because they have no alternative. If their arguments were limited to those rooted in evidence and sound logic, they would have no arguments. Instead, they rely on fallacies. Below are the three most common.
Post hoc, ergo propter hoc
The granddaddy of them all. You can’t attend a committee meeting about mandatory minimums without hearing this one. The post hoc fallacy argues “after this, therefore because of this.” Here in Florida, the argument runs, “Florida adopted mandatory minimums, and today we’re at a 45-year crime low. They’re working.” This argument assumes that because crime fell after adopting mandatory minimums, then the drop in crime happened because of mandatory minimums.
Florida’s crime rate has fallen significantly since Florida adopted mandatory minimum drug laws in 1999. But it actually started falling consistently about a decade before 1999. And, yes, Florida is at a 45-year+ crime low. But so is Texas, where most drug trafficking offenses are subject to judge and jury sentencing, and nearly all of which are probation-eligible offenses. (An inconvenient truth for those who claim mandatory minimums are the best way to fight drug overdoses: Texas’ drug overdose death rate has been lower than Florida’s every year since 1999. And while Texas’ drug overdose death rate has increased 62% since 1999, Florida’s has increased 149% over the same period.)
Other states’ experiences lend credence to the claim that mandatory minimum drug laws aren’t responsible for crime reduction. Consider Michigan, which repealed most of its harsh mandatory minimums in 2003. Michigan released thousands of drug offenders from its prisons, and crime in that state has fallen nearly 40% since. In fact, the Vera Institute for Justice found in 2014 that, “Since 2000, at least 17 states and the federal government have passed laws repealing mandatory minimums or revising them downward for certain offenses, mostly in relation to drug offenses.” During that time the nation’s crime rate fell 30%. The truth is there appears to be no correlation whatsoever between a state’s crime rate and whether it has mandatory minimum drug sentencing laws. (In fact, there’s at least some evidence that mandatory minimum laws for marijuana and cocaine might actually increase crime!)
Florida’s own experience suggests the relationship between mandatory minimum drug laws and the crime rate is more complicated than simple-minded sloganeering suggests. Florida first imposed mandatory minimums for drug trafficking in 1979, and kept them on the books until 1993. During that time the crime rate crime rate rose more than 11%. What happened to the crime rate between 1993-1999, during which time Florida punished most drug trafficking offenses under sentencing guidelines, not mandatory minimums? It fell more than 26%. (We must have been doing something right!)
The embarrassing logic and the gulf between the claim and the facts should be sufficient to sink this leaky dinghy of an argument. But it gets worse. Relying on the crime rate alone to oppose changes to mandatory minimum laws fails to take into account other potential policy influences on the crime rate. Is Florida’s crime rate a function of its mandatory minimum drug laws? 10-20-Life? Charlie Crist’s 85% truth in sentencing law? The habitual offender mandatory minimum? Sex offender registry? Probation rules? The abolition of parole? The Criminal Punishment Code? Sentencing multipliers for particular offenses? If it’s all of the above, how much of each is responsible for what amount of crime deterrence? How did you measure it? (Show your work!)
It’s possible one of these provides all of the crime deterrence Florida has achieved, and the others do nothing, or are counterproductive. It’s possible they all deter crime at different levels. Perhaps the crime drop has come from more effective policing, and we could change all of these policies tomorrow without any negative impact on crime. Or maybe it’s because judges have been really effective in handing down sentences. Or maybe prosecutorial charging decisions are to credit. Or, it could be that public policy hasn’t had any impact whatsoever! (Florida’s crime rate does roughly track the national crime rate . . .) But even assuming policies have affected crime rates, if the argument is that the low crime rate shows we shouldn’t “mess with what’s working,” then perhaps we shouldn’t be increasing penalties, either. Or hiring more police officers, or Corrections Officers, or giving law enforcement pay raises, etc. In fact, perhaps we shouldn’t pass any new laws at all! After all, any change to Florida’s laws could upset the delicate balance we’ve achieved and send crime through the roof! We can’t be too careful!
I’ve discussed versions of the post hoc fallacy at length elsewhere on this blog. It’s sloppy thinking at best – a cynic might argue it’s deliberately so – but it is nevertheless unavoidable in debates over mandatory minimums. But understand that the next time you hear, “Florida is at a 45-year crime low, so we must be doing something right,” you’re hearing nothing more than sophistry.
Begging the Question
No error in reasoning is more widespread in debates over mandatory minimums than this one. In some ways, all support for mandatory minimums reduces to this fallacy. Begging the question is a type of circular reasoning in which the conclusion of an argument is assumed in one of the argument’s premises. In debates over mandatory minimum drug laws, it goes something like this: “Mandatory minimums for drug trafficking work because they deter drug trafficking. And we need some deterrence, so we need mandatory minimums.”
What’s wrong with this argument? Well, in this context, “work” means “deter drug trafficking.” So the argument is really, “Mandatory minimums deter drug trafficking because they deter drug trafficking.” This is begging the question! The question at issue here is whether mandatory minimums deter drug trafficking. To say, “We need deterrence, therefore we need mandatory minimums” assumes the conclusion. This is invalid reasoning.
The valid form of this argument would go something like this:
If mandatory minimums deter drug trafficking, then we should adopt mandatory minimums. Mandatory minimums deter drug trafficking. Therefore we should adopt mandatory minimums.
That argument is valid because because the conclusion follows necessarily from the premises. The question is whether the argument is sound, i.e., are the premises true? (Consider: “If Greg owns a Mercedes, then he is a millionaire. Greg owns a Mercedes. Therefore, he is a millionaire.” That’s a valid argument, but I assure you it is astoundingly unsound.) It could be the case that even if mandatory minimums deterred drug trafficking, their costs would outweigh the benefits. And it could be the case that mandatory minimums don’t deter drug trafficking. In either of those cases, the valid argument above would nevertheless be unsound.
So, the real work in the argument is determining whether the premises are true. Let’s grant the first one arguendo. What about the second one? The premise “mandatory minimums deter drug trafficking” is a claim that needs justification if it is going to provide a sound basis for the conclusion. I’ve been doing this nearly seven years now, I’ve listened to every committee debate on any bill that has anything to do with mandatory minimums, and I have never once seen anyone offer any independent justification for the claim that mandatory minimums deter drug trafficking. No one has ever cited a peer-reviewed paper, or statistics, or data, or anything at all that could be used to justify that claim. They just assert the claim, without any justification whatsoever, and then use the claim as though it were evidence for the conclusion.
Before anyone takes these claims seriously, proponents of mandatory minimums should have to supply some evidence of their claim that mandatory minimums deter drug trafficking. This might come in the form of, say, higher street prices for controlled substances, a lower overdose rate than before mandatory minimums were imposed, a lower overdose rate (and/or a lower crime rate) than similarly situated states without mandatory minimums, etc. Whatever form it takes, some kind of independent evidence has to be supplied for the second premise if the argument is to be salvaged at all.
For examples of this fallacy in action, please see . . . literally every presentation by any proponent of mandatory minimum drug laws in Florida for the past several decades. (A good start would be the debate over HB 477 this year; watch a few minutes of those debates and you’ll have your fill of this one, I assure you.)
Appeals to Authority
This might be the most important of the three fallacies discussed here, because it creates just enough cover for the other two to sneak by without the kind of examination that would expose their soft, disgusting underbelly. It’s the fallacy that protects proponents of mandatory minimums from ever actually having to make a compelling argument, or any argument at all, really.
Appeals to authority are not per se fallacious. No one knows everything, so most of the time deferring to the consensus of authorities in a given field is appropriate. If 999 out of 1,000 labor economists say the minimum wage causes unemployment, and you have no independent reason to think otherwise, then accepting that conclusion is a good bet all things considered. However, such appeals become fallacious to the extent they substitute authority for evidence. That is, an argument whose truth hinges on the identity of the person making it, instead of on the evidence for it, is a bad argument.
Consider this argument: “Teachers say class sizes are too large. Therefore they should be reduced.” How should the legislature respond to that argument? Should it defer to teachers and reduce class sizes? For that matter, should the legislature defer to teachers on all education-related policy matters? There is at least some reason to think it should. After all, who knows more about education than teachers? Aren’t teachers uniquely suited to understand the needs of students? And who is more dedicated to maximizing learning gains than teachers? Aren’t teachers selfless public servants who have only students’ interests at heart? Wouldn’t they know best how many students should be in a given classroom?
The answer is, of course they shouldn’t. Yes, teachers are indispensable actors in education, and their input is valuable in crafting education policy. However, they also have incentives that don’t necessarily align with either the structures or practices that maximize student achievement. Therefore, relying on the policy advice of, say, a statewide teachers union is an excellent way to make sure teachers are happy, but it is not necessarily the most effective way to organize the system to maximize learning gains.
Now consider this argument. “Prosecutors say mandatory minimum drug laws are effective. Therefore we shouldn’t eliminate them.” How should the legislature respond to that argument? Should it defer to prosecutors and keep mandatory minimums? For that matter, should the legislature defer to prosecutors on all criminal justice-related policy matters? There is at least some reason to think it should. After all, who knows more about fighting crime than prosecutors? Aren’t prosecutors uniquely suited to understand the justice-related needs of communities? And who is more dedicated to reducing drug-related crime than prosecutors? Aren’t prosecutors selfless public servants who have only the interests of justice at heart? Wouldn’t they know best which laws were effective in fighting drug trafficking?
The answer is, of course they shouldn’t. Yes, prosecutors are indispensable actors in criminal justice, and their input is valuable in crafting criminal justice policy. However, they also have incentives that don’t necessarily align with either the structures or practices that maximize efficiency in crime reduction. Therefore, relying on the policy advice of, say, a statewide prosecutors lobby is an excellent way to make sure prosecutors are happy, but it is not necessarily the most effective way to organize the system to reduce crime efficiently.
Hopefully the point is clear. There is no principled distinction between, say, a statewide teachers union and an organization that represents the political interests of Florida’s prosecuting attorneys. Both groups represent public employees tasked with accomplishing critically important public ends. Yet, each group is also a special interest with incentives that don’t necessarily line up with best practices. Therefore, relying on either as a proxy for policy decisions without comparing their positions to the available evidence is unlikely to produce ideal policy.
Experts and authorities are vital to the legislative process. But they are only as valuable as the evidence they provide for a given claim. Public school teachers, law enforcement officers, prosecutors, criminal defense attorneys, charter schools, sentencing reform advocates/handsome geniuses, judges, taxi drivers, grocery stores . . . everyone in the legislative process has both some expertise and some incentive to game the process to its advantage. As a result, the best strategy for legislators is to ignore the people making an argument and consider only the evidence they provide for their positions, then determine which policies, pursuant to that evidence, are most likely to achieve their substantive goals. This is, as you might imagine, literally the opposite of how drug sentencing policy has been crafted in Florida for decades.
In 2009, criminologist Michael Tonry wrote:
Experienced practitioners, policy analysts, and researchers have long agreed that mandatory penalties in all their forms . . . are a bad idea. It is why nearly every authoritative nonpartisan law reform organization that has considered the subject, including the American Law Institute in the Model Penal Code (1962), the American Bar Association in each edition of its Criminal Justice Standards (e.g., 1968, standard 2.3; 1994, standard 18-3.21[b]), the Federal Courts Study Committee (1990), and the U.S. Sentencing Commission (1991) have opposed enactment, and favored repeal, of mandatory penalties. In 2007, the American Law Institute approved a partial second edition of the Model Penal Code that repudiated mandatory penalties. In 2004, an American Bar Association commission headed by conservative Justice Anthony Kennedy of the U.S. Supreme Court called upon states, territories, and the federal government to repeal mandatory minimum sentence statutes (Kennedy 2004). The recommendations were overwhelmingly approved by the ABA House of Delegates.
And yet, mandatory minimum drug laws remain stubbornly popular among a troubling majority of Florida legislators. Something has to explain this disconnect. I believe that something is the steady supply of dubious reasoning and offensively bad arguments from the special interests who benefit from the status quo. The above fallacies are the most common I see in defense of mandatory minimums, but they aren’t the only ones – excluded middle, hasty generalization, ad hominem . . . – fallacies really are the only arguments the other side has.
But I believe principle, evidence, and sound reasoning can defeat self-interest, sophistry, and casuistry, even in politics. The truth will out! And when the legislature – finally – commits to crafting policy consistent with “Two Centuries of Consistent Findings” that mandatory minimums don’t work, then we will rid ourselves of these pernicious laws once and for all.
~Greg Newburn, FAMM Florida Director