Analysts at several think tanks agree, but key Federal lawmakers and executives continue to support mandatory minimums, and plan to uphold them as the centerpiece of their 2002 federal drug policy agenda.
This year, Louisiana, Connecticut, Indiana, Iowa, Mississippi, California, and North Dakota rolled back mandatory drug sentences, according to the report, "Let the Punishment Fit the Crime: Re-Thinking Mandatory Minimums," published by the Mackinac Center for Public Policy in Mackinac, Mich., Massachusetts, New York, Alabama, Georgia, New Mexico and Idaho are all considering revising their drug laws, the study says.
Mandatory minimum laws take sentencing discretion away from judges, and dictate how many years a convicted drug offender will spend in prison. The sentences are based on the weight of drugs involved, but the evidence for the suspect's suspect's drug possession can be based solely on testimony by other drug dealers, who often receive reduced sentences for testifying. Opponents of these controversial laws say they give the sentencing power to state and federal prosecutors -- many of whom have lengthened offenders' prison sentences by charging them with crimes that trigger mandatory terms, and by provisions such as consecutive sentencing.
"Legislators intended to target 'drug kingpins' and to deter drug use when they enacted mandatory sentencing laws," write the report's authors, Lawrence Reed, president of Mackinac, and Laura Sanger, executive director of Families Against Mandatory Minimums in Washington. "But, the laws backfired. States are filling their prisons with low-level, often first-time offenders, while the kingpins at the top of the drug trade exchange information and assets [with law enforcement agencies] for lighter sentences."
"There is a near consensus today that arrests of street-level drug dealers have had little effect upon the price or availability of heroin or cocaine," said Eric Sterling, president of the Criminal Justice Policy Foundation in Washington in a recent speech given at the Center on National Policy. In addition, the average drug dealer holds a low-wage job and sells drugs part-time to obtain drugs for his or her own use, according to Sterling. Also, the time a dealer spends in prison does not affect recidivism rates, according to the Justice Department.
Despite this apparent ineffectiveness, mandatory sentences have greatly benefited the prison system, which has had to expand dramatically to accommodate all the new inmates created by these laws. Since the enactment of mandatory minimum sentencing for drug users, the budget of the Federal Bureau of Prisons increased by more than 1,350 percent, from $220 Million in 1986 to $3 billion in 1997, according to a bill in the House of Representatives. The bill proposes to alter the Controlled Substances Act, part of the Federal criminal code, by replacing phrases such as "not less than 5 years," and "not less than 20 years" with the phrase "for any term of years."
As early as the winter of 1999, evidence suggested that mandatory minimums did not have a significant impact on crime and arrest rates, according to a study released by the Sentencing and Corrections Center at the RAND Corp., titled "The Impact of Truth-in-Sentencing and Three Strikes Legislation."
"Mandatory minimum sentences ... are a terrible mistake, a bipartisan one," said Joseph diGenova at a recent Cato Institute forum. DiGenova is a member of the legal policy advisory board at the Washington Legal Foundation, a think tank and public interest law firm in Washington.
"We should repeal Draconian sentences [and] have more diversion from the criminal justice system to drug treatment programs," said Sally Satel, at the forum, Satel is a fellow at the American Enterprise Institute.
Instead of criminal litigation, diGenova, a former U.S. Attorney during the Reagan administration, recommends civil litigation of low-level drug offenses and civil commitment of convicted offenders to coerce treatment.
"We need more drug courts, where coerced abstinence is required," he said.
Many county prosecutors and law enforcement officials in Michigan are enthusiastically backing a movement for a statewide drug court and drug treatment, according to the Mackinac report. National and statewide polls also indicate that citizens overwhelmingly support cost-effective treatment and carefully supervised alternatives to incarceration for many low-level drug offenders, write Reed and Sager.
"That's not being soft -- but being smart -- on crime -- and in these difficult economic times ... taxpayers will thank their legislators for finding courage to do the right thing," they say.
In addition, some analysts recommend instituting a national clemency commission, enacted by Congress to review sentences and then make recommendations to the president. The commission could address inequities resulting from mandatory sentences and obtain lesser sentences or, in some cases, full pardons for low-level offenders.
At the end of the Clinton administration, Sager's FAMM organization succeeded in gaining early release for Dorthy Gaines, who served six years of her 19-year federal sentence for her role in a drug conspiracy. Nine other low-level offenders out of about 20 for whom FAMM requested presidential pardon received clemency, according to the organization. A national clemency commission would allow many more cases to be reviewed, giving many more low-level offenders now serving long mandatory sentences a change at early release.
Reed, Sager and other opponents of mandatory minimums, however, suffered a setback last week when the Senate confirmed President George W. Bush's appointment of John P. Walters as the new drug czar. Walters, president of the neo-conservative Philanthropy Foundation in Washington, before becoming drug czar, staunchly supported mandatory minimum sentencing for drug offenders. In his new position, Walters, formerly deputy assistant to William Bennett at the Department of Education, could do much to stop and even reverse the national trend to abolish minimum sentencing, at least on the federal level -- in federal court cases.
During Senate confirmation hearings, Democratic senators raised concerns that Walters, as head of the Office of National Drug Control Policy, would not adequately reflect the nation's growing consensus that more emphasis should be put on drug treatment programs rather than longer required prison time for low-level offenders.
Sen. Thomas Patrick Leahy, D-Vt., accused Walters of making statements that "fl[y] in the face of widespread dissatisfaction with mandatory minimum sentences among policymakers and federal judges. Indeed, Chief Justice William Rhenquist, and the Judicial Conferences composed of representatives from all 12 federal circuits, have called for the repeal of federal mandatory minimum sentences," said Leahy, chair of the Senate Judiciary Committee.
Walters answered the concern, saying that he would review the current mandatory minimum system.
"I do not believe [Walters] is the best person to undertake the task," Leahy said.
"Walters' controversial and often incendiary writings on drug-related issues have been red meat for the right-wing of the Republican Party," said Sen. Richard Durbin, D-Ill.,
Sen. Orrin Hatch, R-Utah, however, countered by saying that Walters "has a long, documented history of supporting drug treatment as an integral component of a balanced national drug control policy. During Mr. Walters' tenure at ONDCP, treatment funding increased 74 percent. This compares with an increase over eight years for the Clinton administration of a mere 17 percent."
"The drug legalization camp exaggerates the rate at which defendants are jailed solely for simple possession," said Hatch. "This camp also wants us to view those who sell drugs as 'nonviolent offenders.' Mr. Walters, to his credit, has had the courage to publicly refute these misleading statistics and claims ... Those who sell drugs, whatever type and whatever quantity, are not, to this father and grandfather, 'nonviolent offenders.' Not when each pill, each joint, each line, and each needle can and often does destroy a young person's life."
"Nonviolent first offenders face mandatory federal prison terms for possession only if they have been arrested with crack cocaine, and then only when the quantities involved are those associated with retail, street-level drug dealing," wrote William Bennett in a recent letter to the Washington Post. "The crux of the matter [is], should street-level drug dealers go to prison?" Bennett, now co-director of Empower America in Washington.
Other policy analysts strongly disagree, saying the crux of the matter is constitutional.
"Harsh mandatory sentencing laws...remove sentencing discretion from judges and dramatically lengthen prison sentences," write Reed and Sager.
"The judicial sentencing process should be returned to the discretion of judges, whose job it is to evaluate each individual case and ensure that the fairness and interest of justice is served," says a statement from the Criminal Justice Policy Foundation.