The Cost Ineffectiveness of Mandatory Minimum Sentencing In The U.S.

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The Transformative Justice Project 

Eradicating Juvenile Delinquency Requires a Multi-Disciplinary Approach 

The Juvenile Justice system is incredibly 

overloaded, and Solutions-Based programs are 

woefully underfunded. Our precious children, 

therefore, particularly young people of color, often 

get the “swift” version of justice whenever they 

come into contact with the law. 

Decisions to build prison facilities are often based 

on elementary school test results, and our country 

incarcerates more of its young than any other 

nation on earth. So we at The Foundation labor to 

pull our young people out of the “school to prison” 

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legal, psychological, governmental and 

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thereby balancing the interests of local businesses, schools, clergy, social 

organizations, elected officials, law enforcement entities, and other interested 

stakeholders. Through these efforts, relationships are built, rebuilt and strengthened, 

local businesses and communities are enhanced & protected from victimization, young 

careers are developed, and our precious young people are kept out of the prison 

pipeline. 

Additionally, we develop Transformative “Void Resistance” (TVR) initiatives to elevate 

concerns of our successes resulting in economic hardship for those employed by the 

penal system. 

TVR is an innovative-comprehensive process that works in conjunction with our 

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1 

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1. The national average cost to taxpayers for minimum-security youth incarceration, 

is around $43,000.00 per child, per year. 

2. The average annual cost to taxpayers for maximum-security youth incarceration 

is well over $148,000.00 per child, per year. 

- (US News and World Report, December 9, 2014); 

3. In every jurisdiction in the nation, the Plea Bargaining rate is above 99%. 

The Judicial system engages in a tri-partite balancing task in every single one of these 

matters, seeking to balance Rehabilitative Justice with Community Protection and 

Judicial Economy, and, although the practitioners work very hard to achieve positive 

outcomes, the scales are nowhere near balanced where people of color are involved. 

We must reverse this trend, which is right now working very much against the best 

interests of our young. 

Our young people do not belong behind bars. 

- Jack Johnson 



The Advocacy Foundation, Inc. 

Helping Individuals, Organizations & Communities 

Achieve Their Full Potential 

…a compendium of works on 

The Cost Ineffectiveness of 

Mandatory Minimum Sentencing 

In The U.S. 

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Biblical Authority 

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Luke 14:28-30 (NIV) 

28 

“Suppose one of you wants to build a tower. Won’t you first sit down and estimate the 

cost to see if you have enough money to complete it? 29 For if you lay the foundation 

and are not able to finish it, everyone who sees it will ridicule you, 30 saying, ‘This 

person began to build and wasn’t able to finish.’ 

1 John 2:15-17 

On Not Loving the World 

15 

Do not love the world or anything in the world. If anyone loves the world, love for the 

Father is not in them. 16 For everything in the world—the lust of the flesh, the lust of the 

eyes, and the pride of life—comes not from the Father but from the world. 17 The world 

and its desires pass away, but whoever does the will of God lives forever. 



Table of Contents 

…a compilation of works on 

The Cost Ineffectiveness 

of Mandatory Minimum Sentencing In The U.S. 

Biblical Authority 

I. Introduction: Mandatory Sentencing………………………………….. 19 

II. Zero Tolerance…………………..………………………………………. 37 

III. The Monetary and Social Costs of Mandatory Sentencing Laws…. 45 

IV. The Economic Case for Sentencing Reform……….………………… 57 

V. Eighth Amendment Challenges……………………………………….. 63 

VI. Selected Articles…………………….………………………………….. 69 

VII. The Fair Sentencing Act of 2010………………………………........... 97 

VIII. Alternative Sanctions………………………………………………….. 107 

IX. References…………………………………………………….............. 113 

______ 

Attachments 

A. Mandatory Minimums (Prison Policy Initiative 

B. Fact Sheet: Sentencing and Mandatory Minimums 

C. Mandatory Minimum Sentencing Reform Saves States Money 

and Reduces Crime Rates 

Copyright © 2003 – 2019 The Advocacy Foundation, Inc. All Rights Reserved. 


This work is not meant to be a piece of original academic 

analysis, but rather draws very heavily on the work of 

scholars in a diverse range of fields. All material drawn upon 

is referenced appropriately. 


I. Introduction 

Mandatory Sentencing 

Mandatory Sentencing requires that offenders serve a predefined term for certain 

crimes, commonly serious and violent offenses. Judges are bound by law; these 

sentences are produced through the legislature, not the judicial system. They are 

instituted to expedite the sentencing process and limit the possibility of irregularity of 

outcomes due to judicial discretion. Mandatory sentences are typically given to people 

who are convicted of certain serious and/or violent crimes, and require 

a prison sentence. Mandatory sentencing laws vary across nations; they are more 

prevalent in common law jurisdictions because civil law jurisdictions usually prescribe 

minimum and maximum sentences for every type of crime in explicit laws. 

Mandatory sentencing laws often target "moral vices" (such as alcohol, sex, drugs) and 

crimes that threaten a person's livelihood. The idea is that there are some crimes that 

are so heinous, there is no way to accept the offender back into the general population 

without first punishing them sufficiently. Some crimes are viewed as serious enough to 

require an indefinite removal from society by a life sentence, or sometimes capital 

punishment. It is viewed as a public service to separate these people from the general 

population, as it is assumed that the nature of the crime or the frequency of violation 

supersedes the subjective opinion of a judge. Remedying the irregularities in sentencing 

that arise from judicial discretion are supposed to make sentencing more fair and 

balanced. 


In Australia and the United Kingdom, sentencing has been heavily influenced by judicial 

idiosyncrasies. Individual judges have a significant effect on the outcome of the case, 

sometimes leading the public to believe that a sentence reflects more about the judge 

than the offender. Subsequently, creating stricter sentencing guidelines would promote 

consistency and fairness in the judicial system. Mandatory sentences are also 

supposed to serve as a general deterrence for potential criminals and repeat offenders, 

who are expected to avoid crime because they can be certain of their sentence if they 

are caught. This is the reasoning behind the "tough on crime" policy. 

United States federal juries are generally not allowed to be informed of the mandatory 

minimum penalties that may apply if the accused is convicted because the jury's role is 

limited to a determination of guilt or innocence. However, defense attorneys sometimes 

have found ways to impart this information to juries; for instance, it is occasionally 

possible, on cross-examination of an informant who faced similar charges, to ask how 

much time he was facing. It is sometimes deemed permissible because it is a means of 

impeaching the witness. However, in at least one state court case in Idaho, it was 

deemed impermissible. 

Notably, capital punishment has been mandatory for murder in a certain number of 

jurisdictions, including the United Kingdom until 1957 and Canada until 1961. 

History 

United States 

Throughout US history prison sentences were primarily founded upon what is known as 

Discretionary Sentencing. Leading up to this period of time sentencing practices were 

largely criticized due to the discretionary applications utilized in sentencing. The 

assessment for sentencing was determined by three separate decisions (1) policy 

decisions, (2) factual decisions, and (3) decisions applying policy decisions to particular 

facts. In review of these policies regarding the applications of sentencing, the policy 

decisions are those that dictate what considerations should affect punishment. The 

second, which is factual determinations are the means by which a judge determines 

whether to apply a particular policy to an offender. The third decision judges make in 

discretionary schemes is how to apply the sentencing policies to the particular facts. 

This authority was applied by the judge under the discretionary sentencing system as 

historically practiced. It was not until the mid-twentieth century that mandatory 

sentencing was implemented. In short, the difference between mandatory and 

discretionary sentencing system lies in policy and application decisions. 

Now that historical practices of sentencing have been introduced, it is just as important 

to outline examples in reference to (1) policy decisions, (2) factual decisions, and (3) 

decisions applying policy vs. decisions to particular facts. 

• Policy Decisions – Policy guidelines that determine what should be 

acknowledged in an individual’s sentencing criteria. For example: One judge 


might consider a reduction in time to be served vs. a judge who intends to 

exercise the fullest extent of the law in reference to the crime committed. 

• Factual Decisions – A review of details that would enable particular policies to be 

applied at the discretion of the assigned judge. Hypothetically consider, two or 

more individuals who to attempt to commit a crime using a deadly weapon. 

Assume these individuals reach their destination point, where they plan to 

commit such a crime. Then the one individual who is primarily carrying the 

weapon takes it out to threaten another individual and waves it about, but is 

suddenly spooked enough that the weapon is dropped. While the other individual 

who accompanied the perpetrator decides to pick up the weapon, wave it about 

and even inflicts force of use with the weapon in order to attempt or commit the 

crime. 

Their actions would result in punishment as a part of the sentencing process, regardless 

of the type of weapon in question. The 1st. individual in fact waved the weapon, but the 

2nd. wave'd and inflicted force of use of the weapon. Therefore, the two individuals in 

question regarding the same crime would receive two separate sentences. 


• Decisions Applying Policy vs. Decisions to Particular Facts - This form of 

application is the core of discretionary sentencing. It allows for sentencing to be 

tailored to an individual. For example, consider a minor juvenile who has 

committed a crime that would allow for a lengthy sentencing period, but because 

the individual is a minor the assigned judge can exercise discretion and decrease 

the sentence to be served vs. applying the full length of the sentencing as 

outlined in policy and the facts associated with the crime. 

Overtime the United States has under gone developmental growth in implementation of 

laws, sentencing guidelines and monumental transition points in time. Beginning in the 

early 1900, the United States began to assess its role on the use of drugs, their purpose 

and the responsibilities within the law. During this time in 1914, opiate drug use outside 

of medical purpose was prohibited. It was not until 1930 that marijuana would reach the 

same platform as opiates, prohibiting use. This further led to stiffer regulations, even 

though the use of marijuana was not believed to evoke violent tenancies as previously 

suggested in earlier years, but this level of awareness had not reached public 

acknowledgment. Which further led to the implementation of sentencing guidelines in 

reference to drug use as well as sales consisting of opiates primarily (heroin and 

morphine), but also to include marijuana. The sentencing guidelines outlined applied to 

the use and sales of drugs. However, during this time discretionary sentencing was 

actively practiced. Therefore, the individuals who were guilty of utilizing such drugs vs. 

the sale of such use typically resulted in different sentences. Mandatory sentencing and 

increased punishment were enacted when the United States Congress passed the 

Boggs Act of 1951. The acts made a first time cannabis possession offense a minimum 

of two to ten years with a fine up to $20,000; however, in 1970, the United States 

Congress repealed mandatory penalties for cannabis offenses. With the passage of 

the Anti-Drug Abuse Act of 1986 Congress enacted different mandatory minimum 

sentences for drugs, including marijuana. 

• 1st Offense: 2–5 years. 

• 2nd Offense: 5–10 years. 

The Anti-Drug Abuse Act of 1986 is the one act known for shaping America. The 

implementations of this act has had many profound affects in the legal system, as we 

know it today. This act led to a Drug Free initiative regarding an individual’s 

employment, a Drug Free work place and certification requirements for employers, and 

a Drug Free environment for those who receive government benefits regarding lowincome 

recipients and their housing. This act further addresses interventions regarding 

illegal sales of imports, the ability to overtake ones assets, if an individual is found guilty 

of distribution. The act also implemented the first laws surrounding money laundering, 

which also led to the exposure of professional dealers and further identifies the crisis we 

are faced with today in reference to "The War on Drugs" we still combat today. Those 

found guilty of distribution were sentenced as outlined. 

• 5g. of Crack vs. 500 g. of Powder Cocaine resulted in a minim sentencing of 5 

years. 


• 50 g. of Crack vs. 5,000 g. of Powder Cocaine resulted in a minim sentencing of 

10 years. 

• 50 g. of Powder Cocaine imported resulted in No Mandatory Sentence 

Separate from each state's own courts, federal courts in the United States are guided by 

the Federal Sentencing Guidelines. (See War on Drugs for more information about US 

drug laws.) When a guideline sentencing range is less than the statutory mandatory 

minimum, the latter prevails. Under the Controlled Substances Act, prosecutors have 

great power to influence a defendant's sentence and thereby create incentives to accept 

a plea agreement. In particular, defendants with prior drug felonies are often subject to 

harsh mandatory minimums, but the prosecutor can exercise his discretion to not file a 

prior felony information. Then the mandatory minimum will not be applied. 

Safety Valve was created in 1994 to reduce mandatory sentencing for drug offenders 

under the following provisions: 

1. the defendant does not have more than 1 criminal history point, as determined 

under the sentencing guidelines; 

2. the defendant did not use violence or credible threats of violence or possess a 

firearm or other dangerous weapon (or induce another participant to do so) in 

connection with the offense; 


3. the offense did not result in death or serious bodily injury to any person; 

4. the defendant was not an organizer, leader, manager, or supervisor of others in 

the offense, as determined under the sentencing guidelines and was not 

engaged in a continuing criminal enterprise, as defined in section 408 of the 

Controlled Substances Act; and 

5. not later than the time of the sentencing hearing, the defendant has truthfully 

provided to the Government all information and evidence the defendant has 

concerning the offense or offenses that were part of the same course of conduct 

or of a common scheme or plan, but the fact that the defendant has no relevant 

or useful other information to provide or that the Government is already aware of 

the information shall not preclude a determination by the court that the defendant 

has complied with this requirement. 

In October 2011 a report was issued to assess the impact of United States v. 

Booker mandatory minimum penalties on federal sentencing by the United States 

Sentencing Commission. 

In 2013, United States Attorney General Eric H. Holder, Jr. announced that the Justice 

Department would follow a new policy restricting mandatory minimum sentences in 

certain drug cases. Prosecutions dropped, drug enforcement agent morale dropped, 

and fentanyl and heroin overdoses soared, reported The Washington Post in 2019. In 

Alleyne v. United States (2013) the Supreme Court held that increasing a sentence past 

the mandatory minimum requirement must be submitted by a jury and found factual 

beyond a reasonable doubt. It increases the burden on the prosecutor to prove that the 

sentence is necessary for the individual crime by requiring that a mandatory minimum 

sentence be denied for defendant unless they fulfill certain criteria. Attorney General 

Holder held that the charges placed on an individual should reflect the uniqueness of 

the case and consideration in assessing and fairly representing his/her given conduct. 

This is supposed to prevent recidivism. 

Criminal justice advocates in the United States argue that mandatory minimum 

sentences are a major cause of the removal of the "bottom income half to quartile" of its 

population from the general public. As part of police targeting and surveillance and often 

harsh sentencing, mandatory sentencing often is proposed as "fairness" by those 

unfamiliar with the penal systems in the US. Mandatory sentencing still has not been 

linked to other areas such as racial profiling, a 700% increase in US prison incarceration 

rates, zero tolerance and prison growth at the expense of employment, housing, 

education, family support and quality of life. 

The U.S. state of Florida has a 10-20-Life mandatory sentence law regarding sentences 

for the use of a firearm during the commission of another crime, and many PSA posters 

were created after the law was passed, which coined the slogan “Use a gun, and you’re 

done.” It gave a minimum mandatory sentence of 10 years if the offender pulls a gun, 


ut does not fire a shot, 20 years if at least one shot is fired, and 25 years to life if the 

offender shoots someone. It has significantly reduced the amount of repeat offenders in 

the state since. 

Australia 

In 1996, 12 month mandatory sentencing laws around third offence home burglary were 

introduced by Western Australia through amendments to the 1913 Criminal Code. In 

1997 mandatory sentencing was introduced to the Northern Territory in Australia. 

The three strikes and out policy raised incarceration rates of indigenous women by 

223% in the first year. The incarceration rate for men rose by 57% and 67% for 

indigenous men. The mandatory sentencing laws sparked debate of the laws being 

discriminative (indirectly) as indigenous people are overrepresented in the crime 

statistics in the Northern Territory. 

New South Wales has two mandatory sentences currently. The Crimes Amendment 

(Murder of Police Officers) Bill 2011 introduced mandatory life sentence without parole 

for a person convicted of murdering a police officer. Also, the Crimes and Other 


Legislation (Assault and Intoxication) Amendment 2014 introduced mandatory minimum 

sentencing of 8 years for alcohol fuelled acts of violence, as a response to the cases 

of king hit assaults in Sydney. These laws were championed by NSW Premier Barry 

O'Farrell largely due to the wide media coverage of similar cases, in particular the case 

of Kieren Loveridge who killed Thomas Kelly. 

Life imprisonment is mandatory for murder in Queensland, South Australia, and the 

Northern Territory. Life imprisonment is only mandatory in the other states for aircraft 

hijacking or with a minimum non-parole period of 20 years (25 years in South Australia 

and the Northern Territory) if a criminal is convicted of the murder of a police officer or 

public official. 

Australia also has legislation allowing mandatory prison sentences of between five and 

25 years for people smuggling, in addition to a fine of up to $500,000, and forfeiture and 

destruction of the vessel or aircraft used in the offence. 

In 2017, the government of Victoria introduced a "two-strike" policy, with a minimum sixyear 

jail sentence for repeat violent offenders. 

Victoria also has a mandatory 10 year minimum sentence for people convicted of killing 

someone in a so-called "one punch" attack. 

Mandatory Death Sentence 

• In Canada until 1961, murder was punishable only by death, provided that the 

offender was a sane adult. 

• In 1930, the city of Canton (now Guangzhou), in China, enacted a mandatory 

death penalty for three-time offenders. 

• In Czechoslovakia, under Beneš decree No. 16/1945 Coll., informing to German 

authorities during World War II's occupation was subject to mandatory death 

sentence if it led to death of the person concerned by the act. 

• In pre-1833 France, before jury were allowed to find mitigating circumstances to 

felonies, death penalty was the only available sentence for capital offenses. 

• In Hong Kong, murder carried a mandatory death sentence until 1993 when 

capital punishment was legally abolished. However, the last execution was in 

1966; since then all death sentences were automatically commuted into life 

imprisonment. 

• In India, murder committed by a convict serving a life sentence carries a 

mandatory death sentence. The mandatory death penalty provided in Section 

31A of India Law is in the nature of minimum sentence in respect of repeat 

offenders of specified activities and for offences involving huge quantities of 


specified categories of narcotic drugs. As of August 2005, aircraft hijacking also 

mandates use of the death penalty. 

• In Japan, the only crime punishable by a mandatory death sentence is instigation 

of foreign aggression. 

Other 

• In Malaysia and Singapore, there is a mandatory death penalty for certain 

offences, most notably murder and possession of a certain amount of controlled 

drugs (see Capital punishment in Singapore and Capital punishment for drug 

trafficking). 

• In Taiwan, there used to be a large number of offenses that carried a mandatory 

death penalty; by 2006 all these laws have been relaxed to permit judicial 

discretion. 

• In the United Kingdom, crimes punishable by a mandatory death sentence 

included murder (until 1957; from 1957 to 1965, only if certain aggravating 

criteria were met), treason (until 1998), sedition and espionage. 

• In the United States, mandatory death sentences have been unconstitutional 

since Woodson v. North Carolina; they were mainly used for murder and assault 

by life convicts. 

Denmark has mandatory minimum sentences for murder (five years to life) 

and regicide (life in prison § 115), deadly arson is punished with imprisonment from 4 

years to life, and for an illegal loaded gun one year in state prison. 


The state of Florida in the United States has a very strict minimum sentencing policy 

known as 10-20-Life, which includes the following minimums: 10 years' imprisonment 

for using a gun during a crime, 20 years' imprisonment for firing a gun during a crime, 

and 25 years' imprisonment in addition to any other sentence for shooting somebody, 

regardless of whether they survive or not. 

In Canada and Ireland, life imprisonment is mandatory for murder if committed, at the 

time of the offence, as an adult. Parole ineligibility periods vary, but under Irish and 

Canadian law, are not less than 7 and 10 years, respectively. 

In New Zealand, life imprisonment is mandatory for murder. Murders with certain 

aggravating factors have a mandatory 17-year non-parole period, instead of the default 

10 years for life imprisonment. Since 2002, judges have the ability to overrule 

mandatory sentences where they would be deemed "manifestly unjust", such as in 

cases involving mercy killings and failed suicide pacts. 

In Germany, murder for pleasure, sexual gratification, greed or other base motives, by 

stealth or cruelly or by means that pose a danger to the public or in order to facilitate or 

cover up another offense is mandatorily punished by life imprisonment. 

In the United Kingdom, upon conviction for murder, the court must sentence the 

defendant to life imprisonment. The law requires that courts must set a minimum term 

before they become eligible for parole. For this purpose a number of "starting points" 

are in place that give guidance to a judge in order to impose a sentence in each 

different case of murder. There are currently five "starting points" for murder in England 

and Wales, namely: 12 years' imprisonment for cases of murder committed by a person 

under 18; 15 years' imprisonment for all "other" cases of murder committed by a person 

over 18; 25 years' imprisonment for cases of murder where a person over 18 uses a 

knife or other weapon at the scene; 30 years' imprisonment for cases of murder with 

"particularly" high aggravating factors, such as those that involve the use of a firearm or 

explosive, or a murder in the course of committing another offence such as robbery or 

burglary; and a whole life order, in cases that involve such "exceptionally" high 

aggravating factors, such as the murder of two or more persons, or the murder of a child 

following abduction or with sexual/sadistic motivation, meaning the person will never 

become eligible for parole. 

The United Kingdom currently also has three more mandatory minimum sentences for 

certain offences, namely: a minimum of 7 years' imprisonment for a person over 18 

convicted of trafficking, supplying or producing Class A drugs for the third or subsequent 

time; a minimum of 5 years' imprisonment (for a person over 18) or 3 years' 

imprisonment (for a person aged 16–17) for possession, purchase, acquisition, 

manufacture, transfer or sale of a prohibited firearm or weapon for the first or 

subsequent time; and a minimum of 3 years' imprisonment for a person over 18 

convicted of a domestic burglary for the third or subsequent time. 


Three Strikes Law 

In 1994, California introduced a "Three Strikes Law", which was the first mandatory 

sentencing law to gain widespread publicity. This state is known for fully enforcing laws 

and is considered most severe in comparison to other states. The Three strikes law was 

intended to reduce crime by implementing extended sentencing to deter repeated 

offenders. This consideration further restricts one’s ability to commit new crimes. 

Similar laws were subsequently adopted in most American jurisdictions. 

However, California's "Three Strikes Law" is clearly outlined for all, especially those who 

are subjected to such sentencing. 

Strike (1) 

• Directly affects individuals who exhibit a history regarded as violent or serious 

pertaining to their initial felony conviction. Should this history exist, it could 

greatly impact sentencing guidelines surrounding an individuals present felony 

conviction. 

Strike (2) 

• An individual who has committed a crime resulting in their 2nd felony conviction, 

would be affected by the second strike as well. This would impact the length of 

the individuals sentencing by doubling the sentence one would initially be subject 

to, if it were their first felony conviction. 


Strike (3) 

• Is intended individuals who appear to be repeated offenders. Therefore, this 

strike is for individuals who have two or more felony convictions, their sentencing 

would result in a minimum of 25 years to life. 

A similar "three strikes" policy was introduced to the United Kingdom by 

the Conservative government in 1997. This legislation enacted a mandatory life 

sentence on a conviction for a second "serious" violent or sexual offence (i.e. "two 

strikes" law), a minimum sentence of seven years for those convicted for a third time of 

a drug trafficking offence involving a class A drug, and a mandatory minimum sentence 

of three years for those convicted for the third time of burglary. An amendment by 

the Labor opposition established that mandatory sentences should not be imposed if the 

judge considered it unjust. 

According to figures released by the British government in 2005, just three drug dealers 

and eight burglars received mandatory sentences in the next seven years, because 

judges thought a longer sentence was unjust in all other drug and burglary cases where 

the defendant was found guilty. However, in 2003 a new "two strikes" law was enacted 

(effective from April 4, 2005), requiring courts to presume that a criminal who commits 

his second violent or dangerous offence deserves a life sentence unless the judge is 

satisfied that the defendant is not a danger to the public. This resulted in far more life 

sentences than the 1997 legislation. In response to prison overcrowding, the law 

was changed in 2008 to reduce the number of such sentences being passed, by 

restoring judicial discretion and abolishing the presumption that a repeat offender is 

dangerous. 

Australia's Northern Territory in March 1997 introduced mandatory sentences of one 

month to one year for the third offence regarding property and theft. They were later 

adopted by Western Australia. 

Race 

Concerning US federal prisons, Barbara S. Meierhoefer, in her report for the Federal 

Judicial Center stated: "The proportion of black offenders grew from under 10% in 1984 

to 28% of the mandatory minimum drug offenders by 1990; whites now constitute less 

than a majority of this group. This is a much more dramatic shift than found in the 

federal offender population in general." 

Harsh penalties lead to racial disparity. According to the Statistical Overview of 

Mandatory Minimum Penalties presented in October 2011, "[o]f all offenders convicted 

of an offense carrying a mandatory minimum punishment and who remained subject to 

that penalty at sentencing, 38.5 percent were Black (n=4,076), 31.8 percent were 

Hispanic (n=3,364), and 27.5 percent (n=2,913) were White." 


Although exceptions such as the safety valve are authorized, demographics associated 

with race relevant to mandatory sentencing continue to show. "Hispanic offenders 

received relief from applicable mandatory minimum penalties at the highest rates, with 

rates of 65.9 percent in fiscal year 2000, 57.7 percent in fiscal year 2005, and 55.7 

percent in fiscal year 2010. Other Race offenders had the next highest rates (52.8% in 

fiscal year 2000, 53.1% in fiscal year 2005 and 58.9% in fiscal year 2010). Black 

offenders consistently had the lowest rates (45.7% in fiscal year 2000, 32.8 percent in 

fiscal year 2005, and 34.9% in fiscal year 2010). White offenders received relief at 60.3 

percent in fiscal year 2000, 42.5 percent in fiscal year 2005, and 46.5 percent in fiscal 

year 2010." 

Arguments For And Against 

Opponents of mandatory sentencing point to 

studies that show criminals are deterred more 

effectively by increasing the chances of their 

conviction, rather than increasing the 

sentence if they are convicted. In a hearing of 

the House Judiciary Committee, Judge Paul 

G. Cassell, from the United States District 

Court for the District of Utah, described 

mandatory sentencing as resulting in harsh 

sentencing and cruel and unusual 

punishment, stating that the sentencing 

requirements punish defendants "more 

harshly for crimes that threaten potential 

violence than for crimes that conclude in 

actual violence to victims". A hearing in 2009 

heard testimony from the American Bar 

Association which stated that "Sentencing by 

mandatory minimums is the antithesis of 

rational sentencing policy". In 2004 the 

association called for the repeal of mandatory minimum sentences, stating that "there is 

no need for mandatory minimum sentences in a guided sentencing system." A 1997 

study by the RAND Corporation found that mandatory minimums for cocaine offenses 

were not cost-effective in regards to either cocaine consumption or drug crime. 

Some judges have expressed the opinion that mandatory minimum sentencing, 

especially in relation to alcohol-fueled violence, is not effective. In R v O’Connor, 

the High Court of Australia gave the opinion that when an offender is intoxicated, there 

will likely be a change in their personality and behavior, which will then affect their selfcontrol; 

that, while an offender may commit an act which is voluntary and intentional, it 

is not something that they would have done in a sober state. Intoxication is not a 

justification for criminal behavior, nor (in most jurisdictions in the U.S. and 

Commonwealth) a legal defense; but since an intoxicated person's decisions are less 


likely to be shaped by rational assessment of consequences than those of a sober 

person, deterrence is likely to be less effective for intoxicated people. 

Research indicates that mandatory minimum sentencing effectively shifts discretion 

from judges to the prosecutors. Prosecutors decide what charges to bring against a 

defendant, and they can "stack the deck", which involves over-charging a defendant in 

order to get them to plead guilty. Since prosecutors are part of the executive branch, 

and the judicial branch has almost no role in the sentencing, the checks and balances of 

the democratic system are removed, thus diluting the notion of separation of 

powers. Opponents of mandatory sentencing argue that it is the proper role of a judge, 

not a prosecutor, to apply discretion given the particular facts of a case (e.g., whether a 

drug defendant was a kingpin or low-level participant, or whether sex offender 

registration is an appropriate measure for a given crime and offender). When 

prosecutors apply discretion, they tend to invoke sentencing disparities when choosing 

among a variety of statutes with different sentencing consequences. In addition to 

fairness arguments, some opponents believe that treatment is more cost-effective than 

long sentences. They also cite a survey indicating that the public now prefers judicial 

discretion to mandatory minimums. 

In 2015, a number of United States reformers, including the ACLU, the Center for 

American Progress, Families Against Mandatory Minimums, Koch family foundations, 

the Coalition for Public Safety, and the MacArthur Foundation, announced a bipartisan 

resolution to reform the criminal justice system and reduce mandatory sentencing laws. 

Their efforts were lauded by President Obama who noted these reforms will improve 

rehabilitation and workforce opportunities for those who have served their sentences. In 

their arguments they noted that mandatory sentencing is often too harsh of a 

punishment and cripples someone's livelihood for minor crimes. 

Australia, Mexico, New Zealand and some other countries employ a system of 

mandatory restorative justice, in which the criminal must apologize to the victim or 

provide some form of reparation instead of being imprisoned for minor crimes. In 

serious crimes, some other form of punishment is still used. 

People Sentenced To Mandatory Sentences 

• Weldon Angelos – 55 years for possessing a handgun while he sold $350 worth 

of marijuana to a police informant on three separate occasions 

• Leandro Andrade – 50 years without parole for theft of nine video tapes 

• Morton Berger – 200 years without probation, parole or pardon for twenty counts 

of sexual exploitation of a minor; each count represented a separate child 

pornography image he had possessed 


• Genarlow Wilson – 10 years for aggravated child molestation; released in 2007 

after serving four years because the courts decided his sentence was 

disproportionate to the actual facts of the crime 

• Chantal McCorkle – 24 years for fraud and conspiracy to commit fraud; sentence 

subsequently reduced to 18 years on appeal 

• Richard Paey – 25 years for 15 counts of drug trafficking and other charges 

including fraud; granted a pardon in 2007 after serving three and a half years due 

to the circumstances of his drug use 

• Timothy L. Tyler – Life in prison for possessing 13 sheets of LSD. 

• John the Painter – Sentenced to death for arson in royal dockyards. 

• Van Tuong Nguyen - Sentenced to death for trafficking 396.2g 

of heroin through Singapore 


Quicktake 


by Andrew M Harris Updated on January 10, 2017, 1:06 AM EST 

The U.S. has more prisoners than any other country. With less than 5 percent of the 

world’s population, the U.S. houses about a fifth of all convicts, at a cost of some $80 

billion a year. Mandatory minimum sentences for drug crimes, immigration violations 

and other offenses have left American prisons filled with low-level offenders serving 

long terms. 

The nation’s federal inmate population more than doubled over the past two decades 

even as the number of violent crimes per capita declined by about 40 

percent. Mandatory minimums came under pressure as the major U.S. political parties 

reached consensus that inflexible punishments take a toll on taxpayers, communities 

and families of the incarcerated. 

But the election to the presidency of Republican Donald Trump, who cast himself as 

a law-and-order candidate, has set back expectations that the penalties would be 

further loosened. 

The Situation 

Trump’s nominee for attorney general, Senator Jeff Sessions, has argued 

against continuing to relax sentencing rules. A Trump administration is unlikely to 

continue a policy put in place in 2013 by then Attorney General Eric Holder blunting the 

impact of mandatory minimums; Holder instructed federal prosecutors to charge minor 

criminals with offenses so that the potential punishment matched the crime. President 

Barack Obama said in 2015 that long mandatory minimums should be shortened or 

eliminated. 

He stressed the disproportionate impact of the laws on racial minorities. Bills drawing 

bipartisan support were introduced in the U.S. Senate and House of Representatives to 

eliminate minimums for certain drug offenses, expand eligibility for exemptions and 

allow federal courts to disregard the mandatory minimums when they conflict with 

general sentencing standards. 

Those standards take into account such factors as the seriousness of the crime and the 

offender’s specific role in it. Sessions opposed the proposals, dimming their prospects 

in a new Congress. A debate about mandatory minimums is also taking place in 

Australia. 

Source: Institute for Criminal Policy Research 


The Background 

Mandatory minimum punishments for serious federal offenses are as old as the 

republic. Under the 1790 Crimes Act, the required sentence for treason, murder, piracy 

and forgery of government securities was death. Later, infractions with baseline 

punishments touched on slavery, the manufacture and sale of alcohol and, in the 1980s 

as crime rates rose, drugs. The discretion of judges was further limited in 1987 when a 

set of federal sentencing guidelines was put in place to curb the disparity in 

punishments for the same offenses in different regions of the U.S. These guidelines, in 

conjunction with mandatory minimums, were seen as leading to longer sentences. In 

2005, the U.S. Supreme Court ruled that the sentencing guidelines could be no more 

than advisory, but mandatory minimums were unaffected by the decision. 

A 2014 decision by the U.S. Sentencing Commission to retroactively reduce most 

federal drug sentences brought the release of thousands of inmates, so that for the first 

time in three decades the federal prison population began to decline. 

It numbers about 190,000 inmates, 30,000 fewer than the peak. 


The Argument 

The debate over punishments begins with a dispute over crime. In his campaign, Trump 

presented violent crime as a rising threat, a position mirrored by Sessions. National 

statistics show violent crime increased 3.9 percent in 2015, but that data point remains 

part of an overall, dramatic decline dating back to 1992, and the rate hasn't been this 

low since 1970. Defenders of mandatory minimums argue that a retreat from clearly 

defined sentencing will produce an increase in violent crime or a return to sentencing 

disparities. Advocates for change say fixed minimums are crude instruments of justice, 

one-way ratchets that create punishments too harsh for charged offenses. Racial 

minorities and the poor, they note, are incarcerated disproportionately. 

The Reference Shelf 

• Text of President Obama’s call for reform of the U.S. justice system. 

• In a report to Congress, the U.S. Sentencing Commission concludes that the 

system of mandatory minimum penalties “can be improved.” 

• A Families Against Mandatory Minimums fact sheet summarizes its advocacy 

case. 

• A PBS Frontline primer details specific sentences mandated for drug possession 

and includes statistics on prison sentences and asset forfeitures. 

• A law professor who served on the Sentencing Commission argues that 

mandatory sentences were once effective but have outlived their usefulness. 

• Article on the Outside the Beltway website about how prosecutors use the threat 

of mandatory sentences to coerce guilty pleas. 

• Senator Jeff Sessions argues against relaxing mandatory minimums in a press 

statement. 

First published March 3, 2014 


II. Zero Tolerance 

A Zero-Tolerance policy is one [that] imposes a punishment for every infraction of a 

stated rule. Zero-tolerance policies forbid people in positions of authority from exercising 

discretion or changing punishments to fit the circumstances subjectively; they are 

required to impose a pre-determined punishment regardless of individual culpability, 

extenuating circumstances, or history. This pre-determined punishment, whether mild or 

severe, is always meted out. 

Zero-tolerance policies are studied in criminology 

and are common in formal and informal policing 

systems around the world. The policies also 

appear in informal situations where there may be 

sexual harassment or Internet misuse in 

educational and workplace environments. In 

2014, the mass incarceration in the United States 

based upon minor offenses has resulted in an 

outcry on the use of zero tolerance in schools and 

communities. 

Little evidence supports the claimed effectiveness of zero-tolerance policies. One 

underlying problem is that there are a great many reasons why people hesitate to 

intervene, or to report behavior they find to be unacceptable or unlawful. Zero-tolerance 

policies address, at best, only a few of these reasons. 

Etymology 

According to the Online Etymology Dictionary, the first recorded use of the term "zero 

tolerance" was in 1972. It was originally used in politics in the United States. 

An earlier use of the term came in the mid-1960s, in reference to an absolute ban of the 

pesticide heptachlor by the United States Food and Drug Administration; for example, in 

an article that appeared in the June 1963 issue of Popular Mechanics, it is stated that 

"Heptachlor, though, is even more toxic and has been given a 'zero tolerance' by the 

FDA; that is, not even the slightest trace of heptachlor is permitted on food." 

History 

The idea behind zero-tolerance policies can be traced back to the Safe and Clean 

Neighborhoods Act, approved in New Jersey in 1973, which has the same underlying 

assumptions. The ideas behind the 1973 New Jersey policy were later popularized in 

1982, when a US cultural magazine, The Atlantic Monthly, published an article by 

James Q. Wilson and George L. Kelling about the broken windows theory of crime. 

Their name for the idea comes from the following example: 


Consider a building with a few broken windows. If the windows are not repaired, the 

tendency is for vandals to break a few more windows. Eventually, they may even break 

into the building, and if it's unoccupied, perhaps become squatters or light fires inside. 

Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. 

Eventually, people even start leaving bags of trash from take-out restaurants. 

According to scholars, zero tolerance is the concept of giving carte blanche to the police 

for the inflexible repression of minor offenses, homeless people, and the disorders 

associated with them. A well-known criticism to this approach is that it redefines social 

problems in terms of security, it considers the poor as criminals, and it reduces crimes 

to only "street crimes", those committed by lower social classes, excluding white-collar 

crimes. 

On the historical examples of the application of zero tolerance kind of policies, nearly all 

the scientific studies conclude that it didn't play a leading role in the reduction of crimes, 

a role which is claimed by its advocates. On the other hand, large majorities of people 

who are living in communities in which zero tolerance policing has been followed 

believe that in fact it has played a key, leading role in reducing crime in their 

communities. It has been alleged that in New York City, the decline of crimes rate 

started well before Rudy Giuliani came to power in 1993, and none of the decreasing 

processes had particular inflection under him, and that in the same period, the decrease 

in crime was the same in the other major US cities, even those with an opposite security 

policy. But the experience of the vast majority of New Yorkers led them to precisely the 

opposite conclusion and allowed a Republican to win and retain the Mayor's office for 

the first time in decades in large part because of the perception that zero tolerance 

policing was key to the improving crime situation in New York City. On the other hand, 

some argue that in the years 1984-7 New York already experienced a policy similar to 

Giuliani's one, but it faced a crime increase instead. 

Two American specialists, Edward Maguire, a Professor at American University, and 

John Eck from the University of Cincinnati, rigorously evaluated all the scientific work 

designed to test the effectiveness of the police in the fight against crime. They 

concluded that "neither the number of policemen engaged in the battle, or internal 

changes and organizational culture of law enforcement agencies (such as the 

introduction of community policing) have by themselves any impact on the evolution of 

offenses." They argue that crime decrease was due not to the work of the police and 

judiciary, but to economic and demographic factors. The main ones were an 

unprecedented economic growth with jobs for millions of young people, and a shift from 

the use of crack towards other drugs. 

An alternative argument comes from Kelling and William Bratton, Giuliani's original 

police chief, who argue that broken windows policing methods did contribute to the 

decrease in crime, but that they were not a form of zero tolerance: 


Critics use the term “zero tolerance” in a pejorative sense to suggest that Broken 

Windows policing is a form of zealotry—the imposition of rigid, moralistic standards of 

behavior on diverse populations. It is not. Broken Windows is a highly discretionary 

police activity that requires careful training, guidelines, and supervision, as well as an 

ongoing dialogue with neighborhoods and communities to ensure that it is properly 

conducted. 

Sheldon Wein has set out a list of six characteristics of a zero tolerance policy: 

1. Full enforcement (all those for whom there is adequate evidence that they have 

violated the rule are to be identified) 

2. Lack of prosecutorial discretion (for every plausibly accused person, it is 

determined whether the person has in fact violated the policy) 

3. Strict constructivist interpretation (no room for narrow interpretation of the rule) 

4. Strict liability (no excuses or justifications) 

5. Mandatory punishment (not under a mandatory minimum penalty) 

6. Harsh punishment (mandatory minimum penalty is considered relatively harsh 

given the nature of the offence). 

Wein sees these points as representing "focal meaning" of the concept, namely, that not 

each one need be met literally, yet that any policy that clearly meets all six of these 

conditions would definitely be seen as a case of a zero tolerance policy. 


Applications 

Bullying In The Workplace 

Various institutions have undertaken zero-tolerance policies, for example, in the military, 

in the workplace, and in schools, in an effort to eliminate various kinds of illegal 

behavior, such as harassment. Proponents hope that such policies will underscore the 

commitment of administrators to prevent such behavior. Others raise a concern about 

this use of zero-tolerance policies, a concern which derives from analysis of errors of 

omission versus errors of commission. Here is the reasoning: Failure to proscribe 

unacceptable behavior may lead to errors of omission—too little will be done. But zero 

tolerance may be seen as a kind of ruthless management, which may lead to a 

perception of "too much being done". If people fear that their co-workers or fellow 

students may be fired, terminated, or expelled, they may not come forward at all when 

they see behavior deemed unacceptable. (This is a classic example of Type I and type 

II errors.) The Type Two error, where it occurs with respect to zero tolerance, leads to 

the situation where too stringent a policy may actually reduce reports of illegal behavior. 

Narcotics 

In the United States, zero tolerance, as an approach against drugs, was originally 

designed as a part of the War on Drugs under Ronald Reagan and George H.W. Bush, 

ostensibly to curb the transfer of drugs at US borders. Law-enforcement was to target 

the drug users rather than the transporters or suppliers under the assumptions that 

harsh sentences and strict enforcement of personal use would reduce demand and, 

therefore, strike at root cause of the drug problem. The policy did not require additional 

laws; instead existing law was enacted with less leniency. Similar concepts in other 

countries, such as Sweden, Italy, Japan, Singapore China, India, and Russia have since 

been labeled zero tolerance. 

A consistence of zero tolerance is the absolute dichotomy between the legality of any 

use and no use, equating all illicit drugs and any form of use as undesirable and harmful 

to society. This is contrasting to viewpoints of those who stress the disparity in 

harmfulness among drugs, and would like to distinguish between occasional drug use 

and problem drug use. Although some harm reductionists also see drug use as 

generally undesirable, they hold that the resources would do more good if they were 

allocated toward helping problem drug users instead of combating all drug users. As an 

example, research findings from Switzerland indicate that emphasis on problem drug 

users "seems to have contributed to the image of heroin as unattractive for young 

people." 

On a more general level, zero-tolerance advocates holds the aim at ridding the society 

of all illicit drug use and that criminal justice has an important role in that endeavor. The 

Swedish parliament for example set the vision a drug-free society as the official goal for 

the drug policy in 1978. These visions were to prompt new practices inspired by Nils 

Bejerot, practices later labeled as Zero tolerance. In 1980 the Swedish attorney general 


finally dropped the practice of giving waivers for possession of drugs for personal use 

after years of lowering the thresholds. The same year, police began to prioritize drug 

users and street-level drug crimes over drug distributors. In 1988 all non medicinally 

prescribed usage became illegal and in 1993 the enforcement of personal use were 

eased by permitting the police to take blood or urine samples from suspects. This 

unrelenting approach towards drug users, together with generous treatment 

opportunities, have won UNODC's approval, and is cited by the UN as one of the main 

reasons for Sweden's relatively low drug prevalence rates. However, that interpretation 

of the statistics and the more general success of Sweden's drug policies are highly 

questioned. 

Driving 

The term is used in the context of driving under the influence of alcohol, referring to a 

lower illegal blood alcohol content for drivers under the age of 21. In the US, the legal 

limit in all states is now .08%, but for drivers under 21 the prohibited level in most states 

is .01% or .02%. This is also true in Puerto Rico despite a drinking age of 18. 

In Europe, Belgium, Finland, France, Germany, and Sweden have zero-tolerance laws 

for drugs and driving, as opposed to the other main legal approach where laws 

forbidding impaired driving is enacted instead. The legislation among countries that 

practice zero tolerance on drug use for drivers varies. Only a limited set of (common) 

drugs are included in the zero-tolerance legislation in Germany and Belgium, where in 

Finland and Sweden all controlled substances fall into the scope of zero tolerance, if 

they are not covered by a prescription. 


In Argentina, the Cordoba State Highway Patrol enforces a zero-tolerance policy. 

In Asia, Japan also practices zero-tolerance for alcohol and driving. The people caught 

driving after drinking, including the next morning if there are still traces of alcohol, 

receive a fine and can be fired. Foreigners may even be deported. 

In Schools 

Zero-tolerance policies have been adopted in schools and other education venues 

around the world. These policies are usually promoted as preventing drug abuse, 

violence, and gang activity in schools. In schools, common zero-tolerance policies 

concern possession or use of drugs or weapons. Students and, sometimes staff, 

parents, and other visitors, who possess a banned item or perform any prohibited action 

for any reason are automatically punished. School administrators are barred from using 

their judgment, reducing severe punishments to be proportional to minor offenses, or 

considering extenuating circumstances. For example, the policies treat possession of a 

knife identically, regardless of whether the knife is a blunt table knife being used to eat a 

meal, a craft knife used in an art class, or switchblade with no reasonable practical or 

educational value. Consequently, these policies are sometimes derided as "zerointelligence 

policies". 

There is no credible evidence that zero tolerance reduces violence or drug abuse by 

students. 

The unintended negative consequences are clearly documented and sometimes 

severe: school suspension and expulsion result in a number of negative outcomes for 

both schools and students. Although the policies are "facially neutral", minority children 

are the most likely to suffer the negative consequences of zero tolerance. 

These policies have also resulted in embarrassing publicity for schools and have been 

struck down by the courts and by Departments of Education, and they have been 

weakened by legislatures. 

Criticism 

Some critics have argued that "zero tolerance" policing violates the Law Enforcement 

Code of Conduct passed by the International Association of Chiefs of Police, which says 

in part: "The fundamental duties of a police officer include serving the community, 

safeguarding lives and property, protecting the innocent, keeping the peace and 

ensuring the rights of all to liberty, equality and justice" (cited in Robinson, 2002). This 

code requires that police behave in a courteous and fair manner, that they treat all 

citizens in a respectable and decent manner, and that they never use unnecessary 

force. As Robinson (2002: 206) explains: 

Zero-tolerance policing runs counter to community policing and logical crime prevention 

efforts. To whatever degree street sweeps are viewed by citizens as brutal, suspect, 


militaristic, or the biased efforts of "outsiders," citizens will be discouraged from taking 

active roles in community building activities and crime prevention initiatives in 

conjunction with the police. Perhaps this is why the communities that most need 

neighborhood watch programs are least likely to be populated by residents who take 

active roles in them. 

Critics say that zero-tolerance policing will fail because its practice destroys several 

important requisites for successful community policing, namely police accountability, 

openness to the public, and community cooperation (Cox and Wade 1998: 106). 

Zero tolerance policies violate principles of health and human services, and standards 

of the education and healthy growth of children, families and communities. Even 

traditional community service providers in the 1970s aimed for "services for all" (e.g., 

zero reject) instead of 100% societal exclusion(zero tolerance). Public administration 

and disability has supported principles which include education, employment, housing, 

transportation, recreation and political participation in the community. which zero 

tolerance groups claim are not a right in the US. 


Opponents of zero tolerance believe that such a policy neglects investigation on a caseby-case 

basis and may lead to unreasonably harsh penalties for crimes that may not 

warrant such penalties in reality. Another criticism of zero-tolerance policies is that it 

gives officers and the legal system little discretion in dealing with offenders. Zerotolerance 

policies may prohibit their enforcers from making the punishment fit the crime. 

It also may cause offenders to go all out, knowing if the punishment is the same for a 

little or a lot. This phenomenon of human nature is described in an adage that dates 

back to at least the 17th century, "might as well be hanged for a sheep as a lamb": until 

1820, the English law prescribed hanging for stealing anything worth more than one 

shilling, whether that was a low-value lamb or a whole flock of sheep. 

In the Kids for cash scandal, judge Mark Ciavarella, who promoted a platform of zero 

tolerance, received kickbacks for constructing a private prison that housed juvenile 

offenders, and then proceeded to fill the prison by sentencing children to extended stays 

in juvenile detention for offenses as minimal as mocking a principal on Myspace, 

scuffles in hallways, trespassing in a vacant building, and shoplifting DVDs from 

Walmart. Critics of zero-tolerance policies argue that harsh punishments for minor 

offences are normalized. The documentary Kids for Cash interviews experts on 

adolescent behavior, who argue that the zero tolerance model has become a dominant 

approach to policing juvenile offences after the Columbine shooting. 

Recently, argumentation theorists (especially Sheldon Wein) have suggested that, 

frequently, when people advocate adopting a zero tolerance policy, they commit what 

he has called the "zero tolerance fallacy". Subsequently, Wein has proposed standards 

which arguments for zero tolerance policies must meet in order to avoid such fallacious 

inferences. 


III. The Monetary and Social Costs 

of Mandatory Sentencing Laws 

Mayra Figueroa 

Abstract 

The following paper outlines the history of Mandatory Sentencing Laws throughout the 

United States. Starting with the history of the underlying theories that helped develop 

mandatory sentencing laws, this paper analyzes deterrence and incapacitation theories 

and their effects on crime rates. The success of mandatory sentencing laws is put into 

serious doubt when taking into consideration the monetary and social costs of its 

implementation. The intended success of goals to reduce crime rate and deter future 

criminals is marginal, at best. With billions of dollars being spent, racial disparities in 

sentencing being apparent, and nonviolent offenders being incarcerated for 25 years to 

life, it is apparent that legislators must re-evaluate their goals and make changes to these 

strict laws. 


Introduction 

California’s three-strikes law is considered the toughest mandatory sentencing law in 

the United States (Chen, 2008). Different variations of California’s three-strikes law 

have been adopted by many states in the United States in order to imprison habitual 

offenders. The theory behind these laws, selective incapacitation, is that a small 

percentage of the population commit most of the crime, so if those people are 

incarcerated, the crime rate will drop dramatically (Chen, 2008). 

The passing of California’s strict three-strikes law has had many unintended effects. It 

has had a major monetary cost, it has caused overcrowding in prisons, and it has 

imprisoned some people for 25 years to life for a non-violent offense that did not 

deserve this extremely harsh punishment (Stolzenberg & D’Alessio, 1997). Race and 

gender also continue to be a factor in sentencing, even with these mandatory 

sentencing laws in place (Brennan & Spohn, 2008). 

Spending on prisons has skyrocketed and it is money that should be spent on education 

and health. Early prevention programs should be implemented with this money that is 

going towards keeping criminals incarcerated for life. One of the biggest problems is 

that politicians don’t want to seem as though they are soft on crime by supporting 

prevention programs instead of creating laws to keep criminals incarcerated for long 

periods of time (Welsh & Farrington, 2011). 

Mandatory sentencing laws have been put in place in order to increase the severity of 

punishment for criminal behavior and they are meant to target chronic and habitual 

offenders. Policy makers have argued that if these small percentages of repeat 

offenders are incapacitated, crime levels will decrease dramatically (Stolzenberg & 

D’Alessio, 1997). The three-strikes law is only one of many different “get-tough” policies 

implemented in the United States in the 1990’s (Chen, 2008). Between 1993 and 1995, 

24 states, as well as the federal government, implemented three-strikes laws that 

mandated life in prison for a third violent felony (although in California, the third strike 

does not need to be a violent offense) and this had a direct effect on the prison 

population (Rodriguez, 2003). Prisons are increasingly becoming overcrowded, and 

along with that, there are huge monetary and social costs of imprisoning millions as a 

result of mandatory sentencing laws. 

Liberals and conservatives alike initially agreed that mandatory sentencing laws would 

reduce racial disparity since it would potentially eliminate judicial discretion from anyone 

involved in the sentencing process. Liberals believed that these practices would ensure 

fairness, although it was prosecutors who held the most control, not judges (Brennan & 

Spohn, 2008). Recent studies have found that this is not the case. These laws tend to 

have severe punishments for crimes that Blacks are more likely to be arrested for (not 

necessarily commit more) like drug offenses. Those who are convicted of a drug offense 

are usually not allowed to live or even visit public housing, so this makes Blacks more 

susceptible to being arrested for being at or near public housing. These policies 

increasingly disproportionately affect Blacks. Racial inequality is masked because these 


laws are not blatantly racist (Schlesinger, 2008). According to Schlesinger (2008, p. 

74), “This system allows White people to believe in the justice of the criminal justice 

system. Once they believe the system is just, the fact of racial disparity in imprisonment 

will reinforce White’s beliefs in the criminality of Blacks”. In some cases, sentencing 

laws directly target racial minorities. In Los Angeles County, it was found that Black 

offenders were charged with their third strike at a much higher rate than White offenders 

(13 to 17 times greater) and they accounted for 37% of people convicted for a second 

strike and 44%of people convicted for a third strike, although they only make up about 

7% of the population (Males & Macallair, 1999). A study conducted in Florida concluded 

that Blacks were especially more likely to be sentenced under habitual offender laws for 

drug and property crimes as well as get harsher penalties (Crawford et al. 1998). 

In addition to racial disparities, mandatory sentencing laws across the United States, 

and especially California’s strict three-strike law, costs tax payers billions of dollars each 

year. In 2008, it was estimated the cost of corrections for that year only was $75 billion 

and that amount is still rising (Welsh & Farrington, 2011). This money could be used for 

health care, education, welfare, and diversion programs for troubled youth. A wellknown 

study conducted on the cost-effectiveness of California’s three-strikes law 

compared the law to four prevention and intervention programs. This study concluded 

that the three-strikes law was second to last in cost-effectiveness in reducing crime. On 

the top of the list were graduation incentives, parent training, and delinquent supervision 


(Welsh & Farrington, 2011). In addition to the laws lack of cost-effectiveness, the 

amount of money spent is astounding. Spending on corrections alone has almost 

quadrupled over the past two decades. The cost of prisons on average is 13.9% higher 

than what is represented in their combined corrections budgets. The biggest impact on 

prison budgets is from the changing sentencing policies. Incarcerating low-risk 

offenders does not increase public safety, and it costs tax payers more than the value of 

the crime they could potentially commit. (Henrichson & Delaney, 2012). In their study of 

the costs of prisons, Henrichson & Delaney (2012, p. 13) conclude that: 

• Policy makers must have complete information to make the best decisions 

possible. 

• They must understand the full fiscal implications of their policy choices, 

particularly those related to the criminal justice system, whose costs make up a 

significant part of every state budget. 

Legislators want to be seen as “tough on crime” so they pass mandatory sentencing 

laws in order to gain acceptance from the public, especially after a tragic event that 

instills fear into the public (Shelden et al. 2008, p. 216). Politicians have incentives to 

pass laws that yield immediate results, since they face re-election every few years. 

Supporting prevention programs that will not show results for a number of years is not 

beneficial to them and especially to their re-election campaign (Welsh & Farrington, 

2011). Policy makers are more concerned with re-election than educating themselves 

and implementing policies and supporting programs that will be successful. 

Studies conducted on the deterrence and incapacitation effects of mandatory 

sentencing laws show that there has been little to no effects on crime rates (Stolzenberg 

& D’Alessio, 1997). Some studies show that there was a preexisting downward trend 

on crime levels prior to the implementation of the three-strikes laws and many other 

mandatory sentencing laws (Stolzenberg & D’Alessio, 1997). Not only is there a lack of 

proof that these laws are working, mandatory sentencing laws have affected nondeserving 

people as well. There have been a few instances where mandatory 

sentencing laws have been used to impose harsh punishment on nonviolent offenders. 

For example, a mother of two was sentenced to life in prison for possessing $40 worth 

of cocaine. Another man stole $85 worth of videotapes and then $69 worth a few days 

later. He was sentenced to two consecutive sentences of 25 years to life (Lockyer v. 

Andrade, 2003). Under California’s strict three-strikes law, a man was sentenced to 25 

years to life for stealing a slice of pizza. If this man would have raped a woman or 

molested a child, he would have received the same sentence. The three-strikes law 

does not distinguish between offenses. Is this really justice? 

This paper will examine the effects of mandatory sentencing laws, and specifically, 

California’s three strikes law. I will analyze in greater depth whether or not these laws 

have deterrence and/or incapacitation effects, or if the monetary and social costs of 

these laws are too high. First, I will discuss which theories these laws have derived from 

in greater detail. Then, I will provide a literature review that discusses, in detail, past 


studies that analyze this topic. I will also discuss both the intended and unintended 

effects of mandatory sentencing laws. Finally, mandatory sentencing laws will be 

examined in relation to their social and monetary costs in order to conclude whether or 

not the costs outweigh the benefits. 

Incapacitation and Deterrence Theories 

The two main theories that mandatory sentencing laws are based on are incapacitation 

theory and deterrence theory. The main idea behind incapacitation theory is that if you 

physically remove the most dangerous criminals from society and “incapacitate” them, 

they will be prevented from committing crimes in society during the time they are 

incarcerated. Under this theory, the higher the incarceration rates are, the lower crime 

rates should be (Stahlkopf et al. 2010). The idea behind deterrence theory is that if you 

make the punishment harsh enough, it will outweigh the benefits of committing the 

crime, which would prevent any rational person from actually committing the crime 

(Stahlkopf et al. 2010). Deterrence theory focuses on the omission of criminal acts 

because of society’s fear of punishment (Paternoster, 2010). 

The origins of incapacitation theory date back to the 18 th and 19 th century, when 

criminals in Britain would be exiled from their native country to Australia or North or 

South America in order to be prevented from reoffending. There are different methods 

of incapacitation that have been used throughout history. Criminals have been exiled, 

sexual offenders have been castrated, and at its most extreme form, offenders have 

been given the death penalty. Although capital punishment is a form of incapacitation, 


incarceration has been the most popular form of incapacitating offenders from 

reoffending (Barton, 2010). Throughout time, incapacitation has become one of the 

main reasons for incarcerating criminals. There has been a shift from rehabilitation 

being the prime goal, to incapacitation. Society has been taught by the media and 

government to be afraid of criminals. And, since only five global firms own almost all 

media (Time Warner, The Walt Disney Company, Murdoch’s News Corporation, 

Viacom, and Bertelsmann), they control society’s view of the world (Bagdikian, 2004). 

The media sensationalizes the most serious crimes, the government declares we have 

a drug epidemic and wages a war on drugs, and there is public outcry to “fix” the crime 

and drug problem. This fear is what allows the shift from concern about the offender and 

being able to help them be a functioning member of society, to locking them up for long 

periods of time to prevent them from reoffending. In the book The Culture of Fear, 

Glasner (1999) discusses society’s irrational fear of young men because of the media’s 

dramatic headlines like “Teenage Time Bombs” and “Children Without Souls” referring 

to rare cases where youths committed extremely violent acts. Americans estimated that 

juveniles commit approximately half of violent crimes in a time where the number was 

closer to 13 percent and youth crime was on a decline. “We have managed to convince 

ourselves that just about every young American male is a potential mass murderer” 

(Glasner, 1999, p. xxii). A study by Greenwood & Turner (1987) testing selective 

incapacitation concluded that it is difficult to identify those high-rate offenders that need 

to be incarcerated in order to reduce crime rate. Arrest rates compared to self-reported 

crime rates only slightly correlate, which shows that selective incapacitation cannot work 

when one doesn’t know whom it is they must incarcerate to reduce crime. 

Deterrence theory was proposed in 1764 by philosopher Cesare Beccaria who claimed 

that criminals were selfish and if the legal system can assure punishment that is certain, 

proportional, and swift, the costs of crime would outweigh the benefits and there would 

be less crime. Beccaria also believed in preventing crime by education versus punishing 

it (Paternoster, 2010). This idea was eventually dismissed in favor of a biological 

positivism view of crime until the twentieth century. Some argue that it is difficult to 

prove this theory since every individual has his or her own motivations and each of their 

costs and benefits differ, so there is no set equation to measure the effects of 

deterrence (Paternoster, 2010). There are two types of deterrence that have been 

developed. Specific deterrence focuses on individuals who have been caught 

committing a crime and keeping them from committing any additional crimes. General 

deterrence focuses on society as a whole and preventing people who have not 

committed crimes from offending. According to Onwudiwe et al. (2004, p. 237), the 

“death penalty, longer imprisonments, three-strikes laws, mandatory sentencing, and a 

plethora of other “get tough” policies have not demonstrated greater deterrent effects of 

punishment than less severe penalties. Indeed, increases in the severity of punishment, 

rather than reduce crime, may actually increase it.” There is still much debate on 

whether or not deterrence works, and there are still many people who support this 

theory, although it has very little to no empirical support that it helps reduce crime rates. 

According to Barton (2010, p. 464), “The three-strikes policy is partly informed by the 

theory of deterrence but is primarily underpinned by the concept of incapacitation. 

Incapacitative sentences such as the three-strikes principle effectively repunish 


individuals for previous crimes.” Both of these theories are the central idea behind all 

mandatory sentencing laws. As long as these theories have the public’s support, 

mandatory sentencing laws will be here to stay. 

The Context of Mandatory Sentencing 

The “War on Drugs” 

President Richard Nixon declared there was a “war on drugs” in 1972 and since then, 

there has been major monetary and social costs that stem from it. The primary weapon 

in the fight against drugs 

has been mandatory 

sentencing laws (Ferranti 

& Bush-Baskette, 2004). 

These laws have 

increased 

racial 

disparities in sentencing 

even more drastically. 

About 40% of people 

serving prison sentences 

for drug offenses are 

black, although they are 

estimated to account for 

only 13-15% of drug users 

(Ferranti & Bush- 

Baskette, 2004). One of 

the primary focuses of the war on drugs has been crack cocaine, which is widely known 

to be a drug used by the poor, as well as bought and sold out in the open, which holds a 

higher risk of being caught. The mandatory sentence for crack is much greater than for 

cocaine. Cocaine is a drug used predominantly by white, middle or upper class men, 

which is bought and sold in the privacy of people’s homes. The war on drugs has 

helped increase incarceration, especially for minorities, for possession of small 

quantities of drugs, because of mandatory sentencing laws. The war on drugs is not 

targeting the major drug dealers. Instead, it is incarcerating the small time street dealer, 

whose arrest does not stop anyone from abusing drugs. Mass incarceration has come 

at a very high price to the poor minorities of the United States. 

Aging Prison Population 

Consequences of Mandatory Sentencing 

The goal of mandatory sentencing has been to incapacitate habitual offenders as well 

as deter them and society as a whole of committing crimes. The “get tough on crime” 

movement has had many unintended effects, including many financial and social costs. 

California’s three-strikes law is the toughest mandatory sentencing law in the country. 

There has been a major rise in the prison population across the United States, and 


especially in California. The incarceration rate has more than tripled in the past 20 years 

(Shelden, 2004). The large increase in the amount of inmates directly affects the aging 

of the prison population. There are two major reasons why this is problematic. First, it is 

much more expensive to care for elderly inmates than younger ones. Second, the main 

reason for California’s three-strikes law is selective incapacitation, and elderly inmates 

are little danger to public safety (Auerhahn, 2002). By the time these inmates reach 

elderly status, they have become less violent, which trumps the goal of incapacitation of 

the most dangerous offenders. A study by Kathleen Auerhahn (2002), where she used 

a simulation model to predict future prison populations, predicts that by 2030, almost 

80% of California’s prison population could potentially be sentenced under the threestrikes 

law. The law would double or triple sentences for approximately 29% and 50% of 

prisoners. In addition, caring for an elderly prisoner costs California 3 ½ times what it 

costs to care for the average prisoner, $21,000 versus $69,000. Even if elderly 

prisoners are released, the state would most likely need to provide care for them. The 

cost of caring for them outside of prisons comes at a lower cost ($40,000 per year on 

average) (Auerhahn, 2002). It would benefit financially as well as socially, because the 

elderly should be with their families instead of in a prison hospital. If the prison 

population keeps increasing, King & Mauer (2001, p. 12) suggest that “we may be 

incarcerating ourselves into an epidemic”. 

Does it Work? 

In order to determine whether the social and monetary costs of mandatory sentencing 

laws outweigh the benefits of the laws, one must first determine if these laws have an 

effect on crime rates. In a study, Elsa Chen (2008) uses a cross-sectional time series to 

analyze the impacts of California’s three-strikes law in relation to deterrence and 

incapacitation effects. Chen finds that although there have been about 100,000 

offenders incarcerated under this law, the effects on crime in California are almost 

undetectable. Chen also suggests that the law could have the unintended effect of using 

limited prison space to house nonviolent offenders who have aged past their criminal 

years. When taking into consideration a preexisting downward trend of crime rates, 

California’s –three strikes law had very little effect on crime. According to this study, the 

law did not reduce crime, like intended (Stolzenberg & D’Alessio, 1997). 

Mass “Racialized” Incarceration 

Mandatory sentencing laws have disproportionately affected black men (Chen, 2008, 

Rodriguez, 2003, Schlesinger, 2008). A study conducted by Schlesinger (2008) found 

that black men have increased admission rates in every type of crime, especially violent 

offenses, where they are incarcerated at a rate of 6 to 1. According to Schlesinger 

(2008, p. 56), “The findings are consistent with theories of modern racism, which argue 

that, in the post-civil rights era, racial disparities are primarily produced and maintained 

by colorblind policies and practices.” Almost 50% of the increase in the U.S. prison 

population since the 1970’s is comprised of African Americans, which only constitute 

12% of the population (Roberts, 2003). 


Public Housing 

In keeping with our national heritage and ideals, the United States must ensure that 

people with criminal records are given a fair chance to succeed in becoming productive 

members of society, judged on their merits and not on stereotypes or prejudice. 

-Debbie Mukamal & Paul Samuels 

One of the most obvious consequences of mandatory sentencing laws and a major 

contributor to what Alexander (2010) calls the “New Jim Crow” are the laws against drug 

offenders living in or visiting public housing. The Anti-Drug Abuse Act (1988) allows for 

tenants to be evicted if there is any drug activity at or near their public housing, whether 

or not they possess any knowledge of it. (Alexander, 2010). Americans who have been 

convicted of misdemeanors 

or have been arrested but 

never convicted of any crime 

could also be excluded from 

public housing (Carey, 

2004). Unfortunately for 

many young Black men, they 

have been the target of a 

drug war and with a drug 

conviction and no 

government assistance or 

housing, they have a slim 

chance of staying out of 

prison. Drug offenders are 

prohibited from visiting any 

family who resides in public 

housing, which can contribute to weak family ties and a higher chance of reoffending. In 

addition, a drug offender could lose custody of his or her children if they are denied 

housing (Alexander, 2010). All former prisoners are subjected to being homeless or 

having to stay in overcrowded shelters, which reduces their chances of gaining 

employment and becoming a productive member of society (Carey, 2004). 

Public Opinion 

Roberts’ study (2003) on the public opinion about mandatory sentencing for drug 

offenders, nonviolent offenders, and three-strikes law, show that a large portion of the 

country does not to know much about the specifics of mandatory sentencing laws. 61% 

of respondents did not agree with having mandatory sentencing laws for nonviolent 

offenders, and 80% believed drug offenders should get treatment as opposed to a 

mandatory prison sentence. When asked if they support three-strikes laws, a sizable 

majority did (88%), although when put in a specific context, only 17% supported it 

(Roberts, 2003). This shows that the public needs to be more educated about what 

policies it is they are supporting and in favor of, and what the implications and 

consequences are of these laws. 


Monetary Costs 

Mandatory sentencing laws have drained state and local budgets throughout the years 

since they have been implemented. As mentioned previously, once prisoners reach a 

certain age, they are much more costly to take care of. In addition, diverting costs from 

prison construction to prevention programs could potentially save taxpayers up to $2 

billion and crime rates could potentially be lower. Spending on corrections has 

increased by $13 billion in the last decade, and does not seem as though it’s slowing 

down (Welsh & Farrington, 2011). The total cost for the prison system in 2010 was $39 

billion and every single state went over their corrections budget. California alone spent 

almost $8 billion on corrections that year, and Connecticut alone went 34% over their 

corrections budget (What Incarceration Costs Taxpayers, 2012). California’s threestrikes 

law in itself is estimated to cost approximately $5.5 billion in its first 20 years of 

being implemented (Dichiara, 2008). Often in analyzing costs of prisons, there are many 

additional costs that are not included. Costs like welfare, childcare, and education. The 

drain on the economy is undeniable. 

Implications 

One simple way to keep organizations from becoming cancerous might be to rotate all 

jobs on a regular, frequent and mandatory basis, including the leadership positions. 

-Robert Shea 

Mandatory sentencing laws have had many intended effects. These laws, by 

incarcerating so many, have undoubtedly kept many criminal justice institutions in 

business, including schools that offer criminal justice and law degrees. Society as a 

whole feels safer because so many offenders are being incarcerated for longer periods 

of time. Politicians are being re-elected because they are taking a tough stance on 

crime. 

In addition to all of these intended effects, these laws have had many unintended 

effects as well. Racial minorities have been disproportionally targeted and incarcerated, 

and especially black males, at an astonishing rate (Schlesinger, 2008). The policy 

makers are the ones who create these laws that have their vested interest. The vast 

majority of these government officials are white males, and the laws are created to 

incarcerate the minorities and the poor. This is no coincidence. Since the poor commit 

crimes more frequently out in the open than the rich, they are more susceptible to be 

targets of mandatory sentencing laws. California’s harsh three-strikes law has 

incarcerated some nonviolent offenders for extremely long sentences for crimes that are 

considered petty (like our earlier example of the man who stole a slice of pizza and was 

sentenced to 25 years in prison). Some findings even suggest that three-strikes laws 

sometimes increase homicide rates, suicide rates, prison escapes and attacks on law 

enforcement officers. These felons have nothing to lose if they are or will be 

incarcerated for life either way (Shadeed & Helfgott, 2012). 


The effect that mandatory sentencing laws are having on society is apparent, but only in 

poor Black neighborhoods. Most people are oblivious of the harsh effects these laws 

are having on poor families that are experiencing their loved ones be incarcerated for 

long periods of time for minor, nonviolent offenses. These laws are largely not affecting 

middle and upper class communities, and they are the ones who have the power to 

change them. Educating the public is the key to changing these policies. 

Conclusion 

Giving a 10-year mandatory minimum for a second offense fist fight is not going to reduce 

the chance that someone will be stabbed 16 times when you are not funding any of the 

programs that are desperately needed to actually reduce crime. 

-Bobby Scott 

Mandatory sentencing laws’ biggest goals are to incapacitate habitual offenders and 

punish them, as well as deterrence to keep them and others from committing crimes. 

The policy makers who create these laws have ignored the fact that there has been no 

empirical evidence that these laws are effective in reducing crime. Both deterrence and 

incapacitation theories have their share of proponents as well as critics, and neither 

theory has overwhelming evidence that it reduces crime. 

In this tough economy, it is difficult to justify spending billions of dollars on putting 

people in prisons for extremely lengthy terms for nonviolent offenses, although no one is 

asking the government to justify it. There are starving children, homeless people, many 

people who cannot find employment and need government assistance, drug addicts 


who need help, sick people with no insurance, and the list goes on. Taxpayers’ money 

should go towards education, creating job opportunities in poor communities, feeding 

the homeless, preventive programs, and drug treatment programs. Incarcerating 

parents for small amounts of drugs or other nonviolent offenses and keeping them from 

their children helps the vicious cycle continue. Children need their parents to guide them 

and set a good example for them. A large proportion of Black children grow up without a 

father, whether they are incarcerated or have abandoned them, and that helps the cycle 

continue. 

The costs of mandatory sentencing laws largely outweigh the benefits. The only benefit 

to society is that incarcerating certain prisoners could potentially prevent a few crimes, 

but the chances are that they are petty crimes, where the monetary and social cost of 

the crime will be much less than keeping that prisoner incarcerated for a lengthy term. 

The costs are overwhelming. Billions of tax dollars are being spent on imprisonment, 

dollars that are diverted from prevention programs, health care, education, shelters, and 

many other places who need funding and could potentially help reduce crime by helping 

those in need. Minorities, especially Black males, have been targeted with mandatory 

sentencing laws as well as the war on drugs. They are leaving their families behind to 

serve lengthy prison terms and continuing the cycle of young Black men without father 

figures. There are people serving life sentences for stealing pizza, or golf clubs, or 

videotapes. That in itself is absurd. If that happened to a rich White person, there would 

be public outcry and they would find some way to overturn that conviction, whether it be 

hiring expensive lawyers or going to the media. Society, as a whole, supports 

mandatory sentencing laws because they don’t know the details. Asked on a case-bycase 

basis, they largely oppose it. Education of society is important in order to change 

these policies. If a middle to upper class family had their grandfather incarcerated for a 

nonviolent offense that he committed decades ago, there would be public outcry. Since 

these things occur to poor Black families, no one pays any attention. These are the 

costs of mandatory sentencing laws that society needs to be aware of. 

In addition to the monetary and social costs of mandatory sentencing laws, the bottom 

line is that they do not work. These laws do not reduce crime. In some states, they 

marginally reduce some crimes, but not serious crimes, like murder. Deterrence and 

incapacitation theories have both been tested over and over again, and there is still no 

empirical support for either theory. If we were able to identify the small number of 

offenders who commit the most crimes, incapacitation could work, but we can’t. Without 

being able to prove whom those offenders are, it is pointless to keep incarcerating 

people by the masses without undeniable proof that it is largely reducing crime. The 

media needs to step in and help educate our society about the harsh consequences of 

mandatory sentencing policies and how they are draining our society. 


IV. The Economic Case 

for Sentencing Reform 

by Emily Weisburst and Sandra Black·May 19, 2017 

University of Texas, Austin 

The Issue: 

On May 10, Attorney General Jeff Sessions issued a directive instructing federal 

prosecutors to "charge and pursue the most serious, readily provable offense" in all but 

exceptional cases. The action constitutes a reversal of the 2013 directive issued by 

former Attorney General Eric Holder who had instructed prosecutors to refrain from 

charging low-level, non-violent offenders "with offenses that impose draconian 

mandatory minimum sentences." The new directive will serve to increase the 

prevalence of mandatory minimum sentences in the case of drug crimes. A bipartisan 

group of senators responded to Sessions' directive by introducing a bill that would give 

federal judges more discretion to impose lower sentences, and similar bipartisan 

legislation was expected to be introduced in the House. 

More rigorous application of sentencing guidelines will subject a larger share of 

defendants to longer periods of incarceration, and increase the total incarcerated 

population in the U.S. 


The Facts: 

• The United States has the largest incarcerated population in the world. With 

approximately 2.2 million individuals serving sentences in jails and prisons, the 

U.S. incarcerates more than 20 percent of the world’s prisoners. The U.S. also 

has a higher incarceration rate than any other large country – those with 

populations over 200,000 – with a rate that is over 4 times the world average 

(see chart). 

• The prison population has surged in the United States over recent decades, 

with U.S. incarceration rates increasing by more than 220 percent between 

1980 and 2014. In 2014, individuals convicted of non-violent drug offenses 

comprised 50 percent of the Federal prison population and 16 percent of state 

prison populations, according to Bureau of Justice Statistics. Demographically, 

the U.S. incarcerated population is disproportionately concentrated among 

minority and low-income individuals; Blacks and Hispanics represent over 50 

percent of the incarcerated population and historically, a large share have low 

levels of education: nearly two-thirds of the prison population had not completed 

high school, according to a 2003 report. 

• Mandatory minimum sentences are prescribed punishments that apply to 

particular criminal offenses. Because over 90 percent of criminal convictions 

are obtained through guilty pleas rather than through criminal trials, prosecutors 

frequently use mandatory minimum sentences as a bargaining tool in the plea 

process. When prosecutors and judges rigorously apply mandatory minimum 

sentences, plea bargains may be easier to obtain and resulting sentences are 

likely to be longer, increasing the total incarcerated population. 

• Research has found that the crime-reducing benefits of incarceration are 

small and that these benefits decline as the incarcerated population 

grows. Intuitively, the average level of criminal risk among prisoners decreases 

when the prison population expands, and the value of incapacitating a low-risk 

offender may be less than the cost of detention. Because the U.S. already has 

the highest incarcerated population in the world, the costs of further increasing 

the size of the incarcerated population likely exceed any additional benefits (see 

this study for an overview). While estimates vary, reviews of economic research 

on incarceration in the U.S. find that a 10 percent increase in the incarcerated 

population decreases crime by 2 percent or less. 

• Do longer sentences reduce crime? Increasing the length of time that 

prisoners serve could help reduce crime if the threat of harsher punishment acts 

as a deterrent to potential offenders or if keeping people in jail prevents them 

from committing criminal offenses in the outside world. On the other hand, longer 

sentences may increase future re-offending through multiple channels, including 

by causing social or emotional harm, by allowing offenders to build criminal 

expertise, or by causing labor market skills to atrophy while an individual is 


incarcerated. At the same time, because criminal risk declines with age, 

incapacitating older individuals using long sentences likely yields small benefits. 

The empirical evidence offers some estimates of these effects. Longer sentences 

are unlikely to deter prospective youth offenders; researchers find that a 10 

percent increase in sentence length leads to a zero to 0.5 percent decrease in 

youth arrest rates. Some studies have found evidence that longer sentences 

modestly reduce re-offending rates after release, though this research also finds 


that the reduction in offending does not always outweigh the cost of detention 

(examples include work on three-strikes laws, sentence 

enhancements, parole release, and reforms to reduce prison over-crowding). 

However, a growing body of work finds evidence that longer sentences actually 

cause an increase in re-offending; new work that looks at offending outcomes of 

individuals accused of similar offenses but assigned to judges with different 

sentencing histories finds that each additional sentence year leads to a 4 to 7 

percentage point increase in recidivism after release. 

• The costs of incarceration extend beyond direct costs to the 

government. In 2012, total U.S. spending on incarceration totaled over $80 

billion, or more than $250 per capita. Survey data suggests that the average 

yearly cost of confining an adult prisoner ranges from $14,000 to $60,000. In 

addition to direct government spending on corrections, incarceration has large 

indirect costs for incarcerated individuals. Job applicants with criminal records 

are 50 percent less likely to receive an interview request or job offer compared to 

identical applicants without criminal records, according to one study. Labor 

market restrictions for individuals with records decrease the earnings of 

individuals that have been incarcerated; research has found that the formerly 

incarcerated earn 10 to 40 percent less than similar workers without a history of 

incarceration. In terms of sentence length, recent research finds that a one year 

increase in incarceration decreases employment by 4 percentage points and 

reduces earnings by approximately 30 percent after release. While a father is 

incarcerated, the probability that a family is below the poverty level increases by 

nearly 40 percent. In addition, having a criminal record can decrease access to 

housing and government assistance, and serving time in prison can have 

negative consequences for health. 

• Researchers have found that increasing the number of police or even 

indirect policies improving education and labor market opportunities for atrisk 

populations may have higher returns for community 

safety. Researchers have found that direct investments in expanding law 

enforcement decrease crime rates, with a 10 percent increase in police force 

size reducing crime rates by 3 percent to more than 10 percent. Policies that 

improve employment opportunities for at-risk populations also have the potential 

to reduce criminal behavior. Studies have found that increased educational 

attainment lowers juvenile crime, with a 10 percent increase in high school 

graduation rates decreasing arrest rates by 9 percent. Similarly, increases 

in school quality and participation in pre-school programs have been shown to 

decrease juvenile arrest rates. Evaluations of in-school cognitive behavioral 

therapy for adolescent boys find that such programs can significantly decrease 

criminal behavior among at risk youth. Policies that improve labor market 

conditions are also likely to reduce crime; research has found that a 10 

percent increase in wages for non-college educated men leads to a 10 to 20 

percent reduction in crime rates. 


What this Means: 

As U.S. incarceration rates have grown in recent decades, policy-makers, researchers, 

and advocates have become increasingly concerned about the equity and effectiveness 

of current incarceration policies. A growing body of economic research supports the 

bipartisan case for sentencing reform, through both reducing mandatory minimum 

sentences and increasing judicial discretion in sentencing. The current Department of 

Justice recently instructed federal prosecutors to “charge and pursue the most serious 

and readily provable offense” in all but exceptional cases. This policy reverses course 

from prior guidance that encourages the use of judiciary discretion in applying 

mandatory minimum sentences for low-level non-violent drug offenders. More rigorous 

application of sentencing guidelines will subject a larger share of defendants to longer 

periods of incarceration, and increase the total incarcerated population in the U.S. This 

policy is unlikely to be cost-effective and will provide limited public safety benefits while 

increasing the costs borne by the least advantaged groups of our society. 



V. Eighth Amendment Challenges 

8th Amendment Limitations on Sentencing 

Last Modified: 2019-06-18 22:18:46 

What Is the 8th Amendment? 

The Eighth Amendment to the United States Constitution was passed in 1791 as part of 

the Bill of Rights, which contains the first ten amendments to the Constitution. It was 

based largely on the English Bill of Rights. The text of the Eighth Amendment forbids: 

1. Imposing excessive bail to those being held in custody on suspicion of crime; 

2. Imposing excessive fines to those convicted of crimes; and 

3. Cruel and Unusual Punishment to those convicted of crimes. 

The Eighth Amendment prohibits the above-listed items from being done by federal, 

state and local governments. The Supreme Court has ruled that the amendment applies 

to state law as well as federal law. The later 14th amendment also stated that the 

amendments to the federal Constitution apply to the states, as well. 

Since the phrases included in the Eighth Amendment are somewhat open to 

interpretation, the Supreme Court rules as to the meaning of the phrases when the 

matters come up in Supreme Court cases. 

What is Excessive bail? 

Courts have ruled that this clause means that any bail set should not be excessive. This 

has been interpreted as meaning the amount necessary to ensure that a defendant 

appears at their trial. In some cases, courts deny bail to prevent a defendant from 

attempting to flee, and this has been held to be in accordance with the excessive bail 

clause. Most states also have their own laws regarding excessive bail and limits on bail. 

What are Excessive Fines? 

Fines should be in proportion to the crime. Courts have generally ruled that fines 

become excessive when they are so high as to create a deprivation of property to the 

criminal defendant, without allowing them due process on the issue of the deprivation. 


What is Cruel and Unusual Punishment? 

The source of the language of the Eighth Amendment, as stated above was the English 

Bill of Rights. England had long practiced barbaric forms of punishment and execution, 

including various kinds of torture. Once England had enacted the stricture against cruel 

and unusual punishment, the newly-formed United States carried the idea over into its 

own Bill of Rights. 

But what is actually considered cruel and unusual? Ruling in Furman v. 

Georgia, Supreme Court Justice Brennan stated that: 

1. Punishment must not be “degrading to human dignity.” This would include 

torture; 

2. The punishment should not be arbitrary; 

3. The punishment should not be of a sort that is rejected throughout the country; 

and 

4. The punishment should not be one that is clearly not necessary. 

Various court cases have rules explicitly regarding certain crimes that cruel and 

unusual, and certain crimes that are not. This includes certain types of executions, 

which have not been outlawed by the Constitution in general. 

It is generally held that a punishment should be proportionate to the crime. For example, 

the death penalty should not be given in cases other than murder cases, even in cases 

of heinous rape. 

How does the 8th Amendment Affect Sentencing? 

The Eighth Amendment is clearly related to the sentencing for crimes. Both the 

excessive fines clause and the cruel and unusual punishment clause have an effect on 

how convicted criminals may be sentenced. 

As stated above, both fines and jail sentences or other penalties should be proportional 

to the crime committed. Judges may look to previous case law when considering 

sentences for those convicted in their courts. This is especially true regarding the 

interpretation of what includes excessive fines and cruel and unusual punishment. 

Generally speaking, criminal punishments that are not proportionate to the crime will 

likely be overturned on appeal. 

Here are some specific types of penalties that have presented issues: 

• Death Penalty for Murder: The death penalty is generally only given in cases 

where the defendant has been convicted of the intentional (not unintentional or 

reckless) death of another; 


• Death Penalty for Kidnapping or Rape: Unless the victim died as a result, rape 

crimes are not given the death penalty; 

• Incompetent Defendant: The death penalty is not given to those who are 

incompetent because of insanity or other reasons; 

• Minors: The death penalty will not be imposed on minors under the age of 18; 

and 

• Excessive Fines: Excessive fines will not be given, as mentioned above. 

Can an Unfair Sentence Be Appealed? 

Criminal sentences that violate the clauses of the Eighth Amendment may be appealed 

in some cases. Matters of both procedure and law can be appealed by those who feel 

they were wrongly convicted or sentenced. 

Defendants are more likely to have successful appeals if they can prove that law was 

applied incorrectly, or if there was not sufficient evidence to convict them. A retrial may 

be possible if the original trial contained more serious errors, such as attorney 

misconduct or a hung jury. 

________ 

PostEverything 

Analysis 

Mandatory minimum sentences are cruel and 

ineffective. Sessions wants them back. 

As a federal prosecutor and judge, we saw that these policies do not work. 

By Nancy Gertner and Chiraag Bains | May 15, 2017 at 6:00 a.m. EDT 

Last week, Attorney General Jeff Sessions instructed the nation’s 2,300 federal 

prosecutors to pursue the most serious charges in all but exceptional cases. Rescinding 

a 2013 policy that sought to avoid mandatory minimums for low-level, nonviolent drug 

offenders, Sessions wrote it was the “moral and just” thing to do. 

Sessions couldn’t be more wrong. We served as a federal prosecutor and a federal 

judge respectively. In our experience, mandatory minimums have swelled the federal 


prison population and led to scandalous racial disparities. They have caused untold 

misery at great expense. And they have not made us safer. 

Mandatory federal drug sentencing is unforgiving. A person with one prior drug felony 

who is charged with possession of 10 grams of LSD, 50 grams of methamphetamine, or 

280 grams of crack cocaine with intent to distribute faces 20 years to life. With two 

priors — no matter how long ago they occurred — the penalty is life without parole. As 

one federal judge has written, these are sentences that “no one — not even the 

prosecutors themselves — thinks are appropriate.” 

They waste human potential. They harm the 5 million children who have or have had a 

parent in prison — including one in nine black children. And they wreak economic 

devastation on poor communities. Studies have found, for example, that formerly 

incarcerated employees make 10 to 40 percent less money than similar workers with no 

history of incarceration and that the probability of a family being in poverty increases by 

almost 40 percent when a father is imprisoned. 

Still, in 2003 then-Attorney General John Ashcroft pushed line prosecutors to charge 

mandatory minimums whenever possible. His policy helped grow the federal prison 

population from 172,000 to nearly 220,000 over the next 10 years. This was part of a 

wider national trend that grew the country’s incarcerated population to 2.2 million, 

almost 60 percent of them black and Latino. 

In 2013, Attorney General Eric Holder recognized that this system of mass incarceration 

was at odds with the Justice Department’s values. He told attorneys to reserve the most 

severe penalties for the most serious offenses. That meant charging cases in a way that 

would not trigger mandatory minimums for a specific group of defendants: nonviolent, 

low-level drug offenders, with no ties to gangs or cartels, no involvement in trafficking to 

minors, and no significant criminal history. 

Holder’s policy was part of an emerging criminal justice reform movement. Since 

2009, more than half the states have passed legislation to relax mandatory minimums 

and restore judicial discretion — including deepred 

Georgia, Louisiana, Mississippi, Oklahoma, and South Carolina. A new crop of 

prosecutors is openly questioning the use of long prison terms for minor drug crimes. 

And a bill to ease federal sentencing has bipartisan support in Congress. 

Sessions is bent on reversing this progress. 

It would be one thing if Holder’s reform efforts had failed — but they did not. The federal 

prison population fell for the first time after 40 years of exponential growth. It is down 14 

percent over the past 3½ years. While we need a wider conversation about how we 

sentence all offenders, including violent offenders, state and federal, this was a start. 

The 2013 policy sent a message about the need to be smart, not just tough, on crime, 

and the role of prosecutors in that effort. 


Sessions’s assault on the past few years of progress might also make sense if 

mandatory minimums for minor drug offenses were necessary to combat crime — but 

they are not. A 2014 study by the U.S. Sentencing Commission found that defendants 

released early (based on sentencing changes not related to mandatory minimums) were 

not more likely to reoffend than prisoners who served their whole sentences. That is, for 

drug charges, shorter sentences don’t compromise public safety. 

Indeed, research shows it is the certainty of punishment — not the severity — that 

deters crime. 

Sessions’s fixation on mandatory minimums might also be more palatable if they were 

cost-effective — but they are not. Federal prison costs have ballooned to $7 billion, 

more than a quarter of DOJ’s budget, driven by a population that is nearly half drug 

offenders. And yet as detailed by the conservative American Legislative Exchange 

Council last year, most experts believe that expending public resources to incarcerate 

these offenders is profoundly inefficient. 

Sessions’s defenders will say his policy only requires prosecutors to charge the 

defendant’s true conduct and apply the statutes Congress enacted. But floor statements 

from legislators show that Congress intended these mandatory minimums to be used 

against “kingpins” and “middle-level dealers,” not the minor offenders to whom they 

have been applied. 

One of us served as a federal prosecutor under Holder and had mandatory minimum 

charges at his disposal. The message from the top down was that prosecutors were to 

pursue justice. Winning did not mean getting the longest sentence possible. It meant 

getting the right sentence, one that fit the crime and that respected the interests of 

victims, defendants, and the public. 

The other of us served as a federal judge for 17 years, including during the heyday of 

the Ashcroft regime. She believes that roughly 80 percent of the sentences she was 

obliged to impose were unjust, unfair and disproportionate. Mandatory penalties meant 

that she couldn’t individualize punishment for the first-time drug offender, or the addict, 

or the woman whose boyfriend coerced her into the drug trade. 

Under Sessions, prosecutors will be required almost always to charge mandatory 

minimums, however unjust. They will bind judges’ hands even when the facts cry out for 

more measured punishment. The result will be great suffering. And there is no good 

reason for it. 



VI. Selected Articles 

Federal Drug Sentencing Laws 

Bring High Cost, Low Return 

Penalty Increases Enacted In 1980s And 1990s 

Have Not Reduced Drug Use Or Recidivism 

ISSUE Brief August 27, 2015 

Read Time: 12 Min 

Overview 

More than 95,000 federal prisoners are serving time for drug-related offenses—up from 

fewer than 5,000 in 1980. 1 Changes in drug crime patterns and law enforcement 

practices played a role in this growth, but federal sentencing laws enacted during the 

1980s and 1990s also have required more drug offenders to go to prison— and stay 

there much longer—than three decades ago. 2 (See Figure 1.) 

These policies have contributed to ballooning costs: The federal prison system now 

consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. 

Justice Department. 3 

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers 

have not realized a strong public safety return. The self-reported use of illegal drugs has 

increased over the long term as drug prices have fallen and purity has risen. 4 

Federal sentencing laws that were designed with serious traffickers in mind have 

resulted in lengthy imprisonment of offenders who played relatively minor roles. 5 These 

laws also have failed to reduce recidivism. 

Nearly a third of the drug offenders who leave federal prison and are placed on 

community supervision commit new crimes or violate the conditions of their release—a 

rate that has not changed substantially in decades. 6 


More Imprisonment, Higher Costs 

Congress increased criminal penalties for drug offenders during the 1980s—and, to a 

lesser extent, in the 1990s—in response to mounting public concern about drug-related 

crime. 7 In a 1995 report that examined the history of federal drug laws, the U.S. 

Sentencing Commission found that “drug abuse in general, and crack cocaine in 

particular, had become in public opinion and in members’ minds a problem of 

overwhelming dimensions.” 8 The nation’s violent crime rate surged 41 percent from 

1983 to 1991, when it peaked at 758 violent offenses per 100,000 residents. 9 

Congress increased drug penalties in several ways. Lawmakers enacted dozens of 

mandatory minimum sentencing laws that required drug offenders to serve longer 

periods of confinement. They also established compulsory sentence enhancements for 

certain drug offenders, including a doubling of penalties for repeat offenders and 

mandatory life imprisonment without the possibility of parole for those convicted of a 

third serious offense. These laws have applied broadly: As of 2010, more than 8 in 10 

drug offenders in federal prisons were convicted of crimes that carried mandatory 

minimum sentences. 10 

Also during the 1980s, Congress created the Sentencing Commission, an appointed 

panel that established strict sentencing guidelines and generally increased penalties for 

drug offenses. The same law that established the commission, the Sentencing Reform 

Act of 1984, also eliminated parole and required all inmates to serve at least 85 percent 

of their sentences behind bars before becoming eligible for release. 

Federal data show the systemwide effects of these policies: 


• Probation has all but disappeared as a sanction for drug offenders. In 1980, 

federal courts sentenced 26 percent of convicted drug offenders to probation. By 

2014, the proportion had fallen to 6 percent, with judges sending nearly all drug 

offenders to prison. 11 (See Figure 2.) 

• The length of drug sentences has increased sharply. As shown in Figure 1 

above, from 1980 to 2011 (the latest year for which comparable statistics are 

available), the average prison sentence imposed on drug offenders increased 36 

percent—from 54.6 to 74.2 months—even as it declined 3 percent for all other 

offenders. 12 

• The proportion of federal prisoners who are drug offenders has nearly 

doubled. The share of federal inmates serving time for drug offenses increased 

from 25 percent in 1980 to a high of 61 percent in 1994. 13 This proportion has 

declined steadily in recent years—in part because of rising prison admissions for 

other crimes—but drug offenders still represent 49 percent of all federal 

inmates. 14 

• Time served by drug offenders has surged. The average time that released 

drug offenders spent behind bars increased 153 percent between 1988 and 

2012, from 23.2 to 58.6 months. 15 This increase dwarfs the 39 and 44 percent 

growth in time served by property and violent offenders, respectively, during the 

same period. 16 

The increased imprisonment of drug offenders has helped drive the explosive overall 

growth of the federal prison system, which held nearly 800 percent more inmates in 

2013 than it did in 1980. 17 One study found that the increase in time served by drug 

offenders was the “single greatest contributor to growth in the federal prison population 

between 1998 and 2010.” 18 

Growth in the prison population has driven a parallel surge in taxpayer spending. From 

1980 to 2013, federal prison spending increased 595 percent, from $970 million to more 

than $6.7 billion in inflation-adjusted dollars. 19 Taxpayers spent almost as much on 

federal prisons in 2013 as they paid to fund the entire U.S. Justice Department— 

including the Federal Bureau of Investigation, the Drug Enforcement Administration, and 

all U.S. attorneys—in 1980, after adjusting for inflation. 20 


Increased Availability and Use of Illegal Drugs 

Measurements of the availability and consumption of illegal drugs in the United States 

are imprecise. Users may be reluctant to share information about their illegal behavior, 

and national surveys may not capture responses from specific populations—such as 

homeless or incarcerated people—who may have high rates of drug use. Drug markets 

also vary considerably from city to city and state to state, and among different drugs. 

Despite these limitations, the best available data suggest that increased penalties for 

drug offenders—both at the federal and state levels—have not significantly changed 

long-term patterns of drug availability or use: 

• Illegal drug prices have declined. The estimated street price of illegal drugs is 

a commonly cited measure of supply. Higher prices indicate scarcity while lower 

prices suggest wider availability. After adjusting for inflation, the estimated retail 

prices of cocaine, heroin, and methamphetamine all decreased from 1981 to 

2012, even as the purity of the drugs increased. 21 

• Illegal drug use has increased. The share of Americans age 12 and older who 

said in a national survey that they had used an illicit drug during the previous 

month increased from 6.7 percent in 1990 to 9.2 percent—or nearly 24 million 

people—in 2012. 22 (See Figure 3.) An increase in marijuana use helped drive 

this trend, more than offsetting a decline in cocaine use. 


Just as enhanced criminal penalties have not reduced the availability or use of illegal 

drugs, research shows that they are unlikely to significantly disrupt the broader drug 

trade. One study estimated that the chance of being imprisoned for the sale of cocaine 

in the U.S. is less than 1 in 15,000—a prospect so remote that it is unlikely to 

discourage many offenders. 23 The same applies for longer sentences. The National 

Research Council concluded in a 2014 report that mandatory minimum sentences for 

drug and other offenders “have few if any deterrent effects.” 24 Even if street-level drug 

dealers are apprehended and incarcerated, such offenders are easily replaced, 

ensuring that drug trafficking can continue, researchers say. 25 

To be sure, many criminologists agree that the increased imprisonment of drug 

offenders—both at the federal and state levels—played a role in the ongoing nationwide 

decrease in crime that began in the early 1990s. But research credits the increased 

incarceration of drug offenders with only a 1 to 3 percent decline in the combined violent 

and property crime rate. 26 “It is unlikely that the dramatic increase in drug imprisonment 

was cost- effective,” one study concluded in 2004. 27 


Penalties Do Not Match Roles 

The federal government is responsible for combating illegal drug trafficking into the 

United States and across state lines. As a result, traffickers represent the vast majority 

of the drug offender population in federal prisons. 28 Federal sentencing laws have 

succeeded in incarcerating kingpins and other serious drug offenders for whom prison is 

the appropriate option. At the same time, however, they have resulted in the lengthy 

imprisonment of many offenders who played relatively minor roles in drug trafficking. 

The Anti-Drug Abuse Act of 1986 demonstrates this trend. The law established a fiveyear 

mandatory minimum sentence for “serious” drug traffickers, defined as those 

convicted of crimes involving a minimum amount of illegal drugs, including 100 grams of 

heroin or 500 grams of cocaine. The law also created a 10-year mandatory minimum 

sentence for “major” traffickers—those convicted of crimes involving larger amounts, 

including 1 kilogram of heroin or 5 kilograms of cocaine. 29 Under the law, mandatory 

minimum sentences double from five to 10 years—and from 10 years to 20—for second 

offenses. 

Although the law was intended to separate offenders into lower and higher degrees of 

culpability based on the amount of drugs involved in their crimes, these distinctions 

have not always captured individuals’ true roles in drug distribution networks. “The 

quantity of drugs involved in an offense is not as closely related to the offender’s 

function in the offense as perhaps Congress expected,” the Sentencing Commission 

concluded in a special report to Congress in 2011. 30 

The quantity of drugs involved in an offense is not as closely related to the offender’s 

function in the offense as perhaps Congress expected. 

- U.S. Sentencing Commission, 2011 

Historical data limitations make it difficult to assess whether the drug traffickers 

incarcerated in federal prisons today are more or less serious than those of three 

decades ago. But the Sentencing Commission’s report underscores that federal 

resources have not been directed at the most serious drug traffickers. 31 According to the 

report, in 2009: 

• Those sentenced for relatively minor roles represented the biggest share of 

federal drug offenders. More than a quarter of federal drug offenders—and twothirds 

of federal marijuana offenders—were “couriers” or “mules,” the lowest-level 

trafficking roles on a culpability scale developed by the commission. 32 (See 

Figure 4.) The average sentences for couriers and mules—defined as those who 

transport illegal drugs either in a vehicle or on their person—were 39 and 29 

months, respectively. 

• Nearly a fifth of federal drug offenders were street dealers. Offenders 

defined as “street-level dealers”—those who distributed an ounce or less of 

illegal drugs directly to users—made up 17 percent of federal drug offenders and 


nearly half of federal crack cocaine offenders. 33 The average sentence for these 

individuals was 77 months. 

• The highest-level traffickers represented a comparatively small share of 

federal drug offenders. Those defined as “high-level suppliers” or “importers”— 

the top function on the culpability scale—represented 11 percent of federal drug 

offenders. The average sentence for these offenders was 101 months. 

• Sentence lengths did not always align with offenders’ functions. Although 

lower-level functionaries generally received much shorter average sentences 

than higher-level offenders, there were notable exceptions: Midlevel “managers,” 

for example, received an average sentence of 147 months, or nearly four years 

longer than the 101-month average sentence imposed on the highest-level 

traffickers. 

It is important to note that federal law permits two exemptions to mandatory minimum 

sentences that frequently benefit many lower-level drug traffickers. 34 One allows 

sentence reductions for those who provide prosecutors with “substantial assistance” 


during the course of an investigation. The other, known as the “safety valve,” applies to 

offenders who meet five specific criteria, including a limited criminal history and a nonleadership 

role in the drug trade. 

Although these sentence reduction tools are intended to—and generally do—benefit 

low-level traffickers the most, there are exceptions. More than half of offenders deemed 

to be high-level suppliers or importers, for example, received relief from mandatory 

minimum penalties in 2009, compared with less than a third of those classified as streetlevel 

dealers—despite the much lower culpability level of the latter group. 35 

Post-Prison Outcomes Unchanged 

Research has found little relationship between the length of prison terms and recidivism 

rates generally—a pattern that holds among drug offenders at the federal level. 

Of the more than 20,000 federal drug offenders who concluded periods of post-release 

community supervision in 2012 (the latest year for which statistics are available), 29 

percent either committed new crimes or violated the conditions of their release. 36 This 

proportion has changed little since the mid-1980s, when sentences and time served 

began increasing sharply. 37 

Conversely, targeted reductions in prison terms for certain federal drug offenders have 

not led to higher recidivism rates. In 2007, the Sentencing Commission retroactively 

reduced the sentences of thousands of crack cocaine offenders. 38 A follow-up study on 

the effects of this change found no evidence of increased recidivism among offenders 

who received sentence reductions compared with those who did not. 39 (See Figure 5.) 

In 2010, Congress followed the Sentencing Commission’s actions with a broader, 

statutory reduction in penalties for crack cocaine offenders. 


Timeline 


Conclusion 

The federal government has a uniquely important role to play in the fight against the 

illegal drug trade: It is responsible for preventing the trafficking of narcotics into the 

United States and across state lines. In response to rising public concern about high 

rates of drug-related crime in the 1980s and 1990s, Congress enacted sentencing laws 

that dramatically increased penalties for drug crimes, which in turn sharply expanded 

the number of such offenders in federal prison and drove costs upward. These laws— 

while playing a role in the nation’s long and ongoing crime decline since the mid- 

1990s—have not provided taxpayers with a strong public safety return on their 

investment. 

The availability and use of illegal drugs has increased even as tens of thousands of 

drug offenders have served lengthy terms in federal prisons. Recidivism rates for drug 

offenders have remained largely unchanged. 

Meanwhile, federal sentencing laws that were designed to focus penalties on the most 

serious drug traffickers have resulted in long periods of imprisonment for many 

offenders who performed relatively minor roles in the drug trade. 

In response to these discouraging trends, federal policymakers recently have made 

administrative and statutory revisions that have reduced criminal penalties for 

thousands of drug offenders while maintaining public safety and controlling costs to 

taxpayers. 

Endnotes 

1. For the current figure, see “Inmate Statistics - Offenses,” Federal Bureau of Prisons, accessed June 29, 

2015, http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp. For the 1980 figure, see University at 

Albany, Sourcebook of Criminal Justice Statistics 2003, Table 6.57, http://www.albany.edu/sourcebook/pdf/t657.pdf. 

2. Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options (Washington: 

Congressional Research Service, 2014), https://www.fas.org/sgp/crs/misc/R42937.pdf. 

3. The Pew Charitable Trusts, “Federal Prison System Shows Dramatic Long-Term Growth” (February 

2015), http://www.pewtrusts.org/~/media/Assets/2015/02/ Pew_Federal_Prison_Growth.pdf. 

4. Office of National Drug Control Policy, National Drug Control Strategy: Data Supplement 2014, Tables 1 and 

2, https://www.whitehouse.gov/sites/default/files/ondcp/policy-and-research/ndcs_data_supplement_2014.pdf. Pew used 

the 1990-2012 period to capture all available yearly data. 

5. U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice 

System (October 2011), Chapter 8, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/mandatory-minimum-penalties/20111031-rtc-pdf/Chapter_08.pdf. 

6. Bureau of Justice Statistics, Federal Justice Statistics Statistical Tables Series 2005-2012, Compendium of Federal 

Justice Statistics Series 1984- 2004, http://www.bjs.gov/index.cfm?ty=tp&tid=65. 

7. U.S. Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System, Chapter 

2, http://www.ussc.gov/news/congressional-testimony-and-reports/mandatory-minimum-penalties/special-report-congress. 

8. U.S. Sentencing Commission, Report on Cocaine and Federal Sentencing Policy, Chapter 6, http://www.ussc.gov/reportcocaine-and-federal- 

sentencing-policy-2. 

9. Federal Bureau of Investigation, Uniform Crime Reporting data tool, http://www.ucrdatatool.gov. 


System (October 2011), Chapter 8, 165, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/mandatory-minimum-penalties/20111031-rtc-pdf/Chapter_08.pdf. 

11. Administrative Office of the U.S. Courts, Judicial Business of the U.S. Courts Series, Table D-5, 1980- 

2014, http://www.uscourts.gov/statistics-reports/analysis-reports/judicial-business-united-states-courts. The 1980 report is 

available in print only. In 1992, the end of the federal fiscal year changed from June 30 to Sept. 30. 

12. Administrative Office of the U.S. Courts, Judicial Business of the U.S. Courts Series, Table D-5, 1980-2011. The 1980 

report is available in print only. Figures calculated using weighted average sentences of drug offenders and nondrug 

offenders. Average does not include sentences of probation. In 2012, the Administrative Office of the U.S. Courts began 


calculating average sentence length using median months rather than mean months. As a result, comparable historical 

data are available only through 2011. In 1992, the end of the federal fiscal year changed from June 30 to Sept. 30. 

13. University at Albany, Sourcebook of Criminal Justice Statistics 2003, Table 

6.57, http://www.albany.edu/sourcebook/pdf/t657.pdf. 

14. “Inmate Statistics - Offenses,” Federal Bureau of Prisons, accessed June 29, 

2015, http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp. 

15. For the 1988 figure, see Bureau of Justice Statistics, Federal Criminal Case Processing, 1982-93, Table 

18, http://www.bjs.gov/content/pub/pdf/Fccp93.pdf; for the 2012 figure, see Bureau of Justice Statistics, Federal Justice 

Statistics 2012—Statistical Tables, Table 7.11, http://www.bjs.gov/content/pub/pdf/fjs12st.pdf. Pew used the 1988-2012 

period to capture all available yearly data. 

16. Ibid. 

17. The Pew Charitable Trusts, “Federal Prison System Shows Dramatic Long-Term Growth.” 

18. Kamala Mallik-Kane, Barbara Parthasarathy, and William Adams, “Examining Growth in the Federal Prison Population, 

1998 to 2010” (September 2012), Urban Institute, http://www.urban.org/sites/default/files/alfresco/publicationpdfs/412720-Examining-Growth-in-the-Federal-Prison-Population--to--.PDF. 

19. The Pew Charitable Trusts, “Federal Prison System Shows Dramatic Long-Term Growth.” 

20. Ibid. 

21. Office of National Drug Control Policy, National Drug Control Strategy: Data Supplement 2014, Tables 66, 67, and 

68, https://www.whitehouse.gov/sites/default/files/ondcp/policy-and-research/ndcs_data_supplement_2014.pdf. 

22. Office of National Drug Control Policy, National Drug Control Strategy: Data Supplement 2014, Tables 1 and 

2, https://www.whitehouse.gov/sites/default/files/ondcp/policy-and-research/ndcs_data_supplement_2014.pdf. Pew used 

the 1990-2012 period to capture all available yearly data. 

23. David Boyum and Peter Reuter, An Analytic Assessment of U.S. Drug Policy, American Enterprise Institute for Public 

Policy Research (2005), 57, http://www.aei.org/wp-content/uploads/2014/07/-an-analytic-assessment-of-us-drugpolicy_112041831996.pdf. 

24. National Research Council, The Growth of Incarceration in the United States: Exploring Causes and 

Consequences (2014), 83, http://www.nap.edu/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploringcauses. 

25. Mark A.R. Kleiman, “Toward (More Nearly) Optimal Sentencing for Drug Offenders,” Criminology & Public Policy 3, no. 3 

(2004): 435–440, https://drive.google.com/file/d/0B6taQDF0rdAwYnJNTDU2bDVBNFU/edit. 

26. Ilyana Kuziemko and Steven D. Levitt, “An Empirical Analysis of Imprisoning Drug Offenders,” Journal of Public 

Economics 88 (2004): 2043–2066, https://www0.gsb.columbia.edu/faculty/ikuziemko/papers/kl_jpube.pdf. 

27. Ibid. 

28. U.S. Sentencing Commission, 2014 Sourcebook of Federal Sentencing Statistics, Table 

12, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-andsourcebooks/2014/Table12.pdf. 

29. U.S. Sentencing Commission, Report on Cocaine and Federal Sentencing Policy, Chapter 6, http://www.ussc.gov/reportcocaine-and-federal-sentencing-policy-2. 



31. Unless otherwise indicated, all data about offender roles are drawn from U.S. Sentencing Commission, Report to the 

Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (October 2011), Appendix D, Figure D- 

2, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimumpenalties/20111031-rtc-pdf/Appendix_D.pdf; 

and Figure 8-12, 

173, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimumpenalties/20111031-rtc-pdf/Chapter_08.pdf. 

32. For share of marijuana offenders considered mules or couriers, see U.S. Sentencing Commission, Report to the 


34, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimumpenalties/20111031-rtc-pdf/Appendix_D.pdf. 

33. For share of crack cocaine offenders considered street-level dealers, see U.S. Sentencing Commission, Report to the 


22, http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimumpenalties/20111031-rtc-pdf/Appendix_D.pdf. 

34. Charles Doyle, “Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions” 

(Washington: Congressional Research Service, 2013), https://www.hsdl.org/? view&did=746019. 



36. Bureau of Justice Statistics, Federal Justice Statistics 2012—Statistical Tables, Table 

7.5, http://www.bjs.gov/content/pub/pdf/fjs12st.pdf. 

37. Bureau of Justice Statistics, Federal Justice Statistics/Compendium of Federal Justice Statistics Series, 1984- 

2012, http://www.bjs.gov/index.cfm?ty=pbtp&tid=65&iid=1. Data not available for 1987, 1991, 1992, and 2005. 

38. U.S. Sentencing Commission, “U.S. Sentencing Commission Votes Unanimously to Apply Amendment Retroactively for 

Crack Cocaine Offenses” (Dec. 11, 2007), http://www.ussc.gov/news/press-releases-and-news-advisories/december- 

11-2007. 

39. Kim Steven Hunt and Andrew Peterson, “Recidivism Among Offenders Receiving Retroactive Sentence Reductions: The 

2007 Crack Cocaine Amendment” (May 2014), U.S. Sentencing 


Commission, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-andsurveys/miscellaneous/ 

20140527_Recidivism_2007_Crack_Cocaine_Amendment.pdf. 

________ 

Are Mandatory Minimum Drug Sentences 

Cost-Effective? 

by Jonathan P. Caulkins 

Mandatory minimum sentencing laws have been among the more popular crime-fighting 

measures of recent years. Such laws require that a judge impose a sentence of at least 

a specified length if certain criteria are met. For example, a person convicted by a 

federal court of possessing half a kilogram or more of cocaine powder must be 

sentenced to at least five years in prison. 

Mandatory minimums have enjoyed strong bipartisan support. To proponents, their 

certainty and severity help ensure that incarceration's goals will be achieved. Those 

goals include punishing the convicted and keeping them from committing more crimes 

for a period of time, as well as deterring others not in prison from committing similar 

crimes. Critics, however, believe that mandatory minimums foreclose discretionary 

judgment where it may most be needed, and they fear these laws result in instances of 

unjust punishment. 

These are all important considerations, but mandatory minimums associated with drug 

crimes may also be viewed as a means of achieving the nation's drug control objectives. 

As such, how do they compare with other means? Do they contribute to the central 

objective—decreasing the nation's drug consumption and related consequences—at a 

cost that compares favorably with other approaches? Jonathan P. Caulkins, C. Peter 

Rydell, William L. Schwabe, and James Chiesa have estimated how successful 

mandatory minimum sentences are, relative to other control strategies, at reducing drug 

consumption and drug-related crime. 

The DPRC researchers focused on cocaine, which many view as the most problematic 

drug in America today. They took two approaches to mathematically model the market 

for cocaine and arrived at the same basic conclusion: Mandatory minimum sentences 

are not justifiable on the basis of cost-effectiveness at reducing cocaine consumption or 

drug-related crime. Mandatory minimums reduce cocaine consumption less per million 

taxpayer dollars spent than spending the same amount on enforcement under the 

previous sentencing regime. And either enforcement approach reduces drug 


consumption less, per million dollars spent, than putting heavy users through treatment 

programs. Mandatory minimums are also less cost-effective than either alternative at 

reducing cocaine-related crime. A principal reason for these findings is the high cost of 

incarceration. 

Reducing Consumption: More Enforcement Against Typical Dealers 

Caulkins, Rydell, and their colleagues first estimated the cost-effectiveness of additional 

expenditures on enforcement against the average drug dealer apprehended in the 

United States (whether that apprehension is by federal, state, or local authorities). 

Increased enforcement places additional costs on dealers, which they pass along to 

cocaine consumers in the form of higher prices. Studies have shown that higher cocaine 

prices discourage consumption. By mathematically modeling how cocaine market 

demand and supply respond to price, the researchers were able to estimate the 

changes in total cocaine consumption over 15 years for an additional million dollars 

invested in different cocaine control strategies. These consumption changes, 

discounted to present value, are shown by the first two bars in Figure 1. 

Figure 1. Cost-Effectiveness of 

Alternative Cocaine Control 

Strategies 

Those bars show the results of 

spending a million dollars on 

additional enforcement against a 

representative sample of drug 

dealers. As shown by the first bar, 

if that money were used to extend 

to federal mandatory minimum 

lengths the sentences of dealers 

who would have been arrested 

anyway, U.S. cocaine consumption would be reduced by almost 13 kilograms. If, 

however, the money were used to arrest, confiscate the assets of, prosecute, and 

incarcerate more dealers (for prison terms of conventional length), cocaine consumption 

would be reduced by over 27 kilograms. As a point of comparison, spending the million 

dollars to treat heavy users would reduce cocaine consumption by a little over 100 

kilograms (rightmost bar). 

The results from spending an additional million dollars can be extrapolated to multiples 

thereof. A case can thus be made for shifting resources from longer sentences to a 

broader mix of enforcement measures. A case might also be made for shifting 

resources to treatment, although legislators might find such a shift less palatable. In any 

event, extrapolation is valid only up to a point. These results certainly do not support 

shifting all drug control resources from one approach to another, e.g., from enforcement 


to treatment. Very large changes in enforcement levels or in the number of persons 

treated would change cocaine supply and demand relations in ways that are not 

predictable with much confidence. 

Reducing Consumption: More Enforcement Against Higher-Level Dealers 

The first two bars in Figure 1 represent enforcement approaches applied to a 

representative sample of drug dealers. Perhaps mandatory minimum sentences would 

be more cost-effective if they were applied only to higher-level dealers, who make more 

money and thus have more to lose from intensive enforcement. To approximate such a 

restriction, Caulkins and his colleagues limited the set of dealers analyzed to those 

prosecuted at the federal level who possess enough drugs to trigger a federal 

mandatory minimum sentence. Again, they analyzed how costs imposed on dealers 

influence cocaine market demand and supply. The results are shown in the dark bars in 

Figure 1. 

Spending a million dollars on mandatory minimum sentences for higher-level dealers 

does indeed have a bigger effect on cocaine consumption than spending the same 

amount on either enforcement approach against typical dealers. Nonetheless, against 

any given type of dealer (or at any given level of government), mandatory minimums are 

less cost-effective than conventional enforcement. Moreover, although federal 

mandatory minimums do better relative to treating heavy users than do longer 

sentences for all dealers, treatment is still more cost-effective. 

Why is conventional enforcement more cost-effective than mandatory minimums? Drug 

enforcement imposes costs on dealers through arrest and conviction, which includes 

seizure of drugs and other assets, and through incarceration, which involves loss of 

income. It turns out that, per dollar spent, the cost burden from seizures is greater. A 

million dollars spent extending sentences thus imposes less cost on dealers—and 

consequently reduces cocaine consumption less—than a million dollars spent on 

conventional enforcement, which includes asset seizures. 

Reducing Cocaine-Related Crime 

Many Americans are worried about the crime associated with cocaine production, 

distribution, and use. Working with data on the causes of drug-related crime, Caulkins 

and his colleagues estimated the crime reduction benefits of the various alternatives. 

They found no difference between conventional enforcement and mandatory minimums 

in relation to property crime. Conventional enforcement, however, should reduce crimes 

against persons by about 70 percent more than mandatory minimums. But treatment 

should reduce serious crimes (against both property and persons) the most per million 

dollars spent—on the order of fifteen times as much as would the incarceration 

alternatives. 

Why is treatment so much better? Most drug-related crime is economically motivated— 

undertaken, for example, to procure money to support a habit or to settle scores 


etween rival dealers. The level of economically motivated crime is related to the 

amount of money flowing through the cocaine market. When a treated dealer stays off 

drugs, that means less money flowing into the market—therefore, less crime. When a 

dealer facing greater enforcement pressure raises his price to compensate for the 

increased risk, buyers will reduce the amount of cocaine they purchase. Money flow 

equals price times quantity bought. Which effect predominates—the rise in price or the 

drop in consumption? The best evidence suggests that they cancel each other out, so 

the total revenue flowing through the cocaine market stays about the same. The effect 

of the enforcement alternatives is therefore limited almost entirely to the relatively small 

number of crimes that are the direct result of drug consumption—crimes "under the 

influence." 

Sensitivity of the Results to Changes in Assumptions 

The values shown in Figure 1 are dependent, of course, on various assumptions the 

researchers made. If the assumptions are changed, the values change. As an example, 

the results are dependent on the time horizon of interest to those making decisions 

about cocaine control strategy. Figure 1, for example, ignores any benefits and costs 

accruing more than 15 years beyond program initiation. A 15-year horizon is a typical 

one for analyzing public-policy effects. But what if that horizon were closer? 

Figure 2 shows the relative cost-effectiveness of treatment and the enforcement 

alternatives against typical dealers, analyzed when time horizons are set at various 

points from 1 to 15 years. At 15 years, the lines match the heights of the two short bars 

and the tallest bar in Figure 1. As the horizon is shortened, treatment looks worse, 

because treatment's costs, which accrue immediately, remain, while the benefits, which 

accrue as long as treated individuals reduce their consumption, are cut back. If the 

horizon is made short enough, long sentences look better, because the costs of 

additional years of imprisonment are ignored, while the benefits remain. Those benefits, 

again, are the cocaine price increase and consumption decrease that occur as soon as 

the imprisonment risk increases. The time horizon must be shortened to three years 

before long sentences look preferable to additional conventional enforcement, and to 

little more than two years before they look preferable to treatment. Hence, longer 

sentences for typical drug dealers appear cost-effective only to the highly myopic. 

Figure 2. Cost- 

Effectiveness of 

Treating Heavy Users 

and Enforcement 

Against Typical Drug 

Dealers, for Different 

Evaluation Horizons 

More generally, large 

departures from the 

assumptions underlying 


the analysis are required for mandatory minimums to be the most cost-effective 

approach. Figure 3, for example, displays departures from two key assumptions 

underlying the results in Figure 1: that it costs the federal government $20,000 to arrest 

a dealer and that a dealer wants additional drug sales income amounting to $85,000 for 

risking an additional year of imprisonment. These two assumed values are depicted by 

the star in Figure 3. The bounded areas and labels indicate which program is the most 

cost-effective for any combination of substitutes for those two numbers. As the figure 

shows, mandatory minimums would be the most cost-effective alternative only if arrest 

cost were to exceed $30,000 and a dealer were to value his time at over $250,000 per 

year. Such figures would typify only those dealers who are both unusually difficult to 

arrest and at a fairly high level in the cocaine trade. For dealers costing less than 

$30,000 to arrest, cocaine control dollars would be better spent on further conventional 

enforcement. For dealers demanding less than $250,000 compensation for 

imprisonment risk, the money would be better spent treating heavy users. 

Figure 3. Most Cost-Effective 

Strategy for Different 

Combinations of Values for 

Two Key Variables 

Long sentences could thus be a 

smart strategy if selectively 

applied. Unfortunately, because 

mandatory minimum sentences 

are triggered by quantity of 

drug possessed, they are not 

selectively applied to the 

highest-level dealers. Such 

dealers often do not physically 

possess the drugs they own 

and control; they hire others to carry the drugs and incur the associated risk. 

Conclusion 

Long sentences for serious crimes have intuitive appeal. They respond to deeply held 

beliefs about punishment for evil actions, and in many cases they ensure that, by 

removing a criminal from the streets, further crimes that would have been committed will 

not be. But in the case of black-market crimes like drug dealing, a jailed supplier is often 

replaced by another supplier. Limited cocaine control resources can, however, be 

profitably directed toward other important objectives—reducing cocaine consumption 

and the violence and theft that accompany the cocaine market. If those are the goals, 

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. The DPRC researchers found an exception in the 

case of the highest-level dealers, where sentences of mandatory minimum length 

appear to be the most cost-effective approach. However, it is difficult to identify those 


dealers solely by quantity of drug possessed. It might be easier to identify them if, in 

passing sentence, the criminal justice system could consider additional factors, e.g., 

evidence regarding a dealer's position in the distribution hierarchy. Such factors, 

ignored by mandatory minimums, can be taken into account by judges working under 

discretionary sentencing. 

Notes 

• [1] All cost calculations in this brief are in 1992 dollars. To convert costs in 1992 dollars to 1996 

dollars (the latest year for which inflation data are available), multiply by 1.119. To convert 

kilograms of cocaine consumption reduced per million 1992 dollars spent to kilograms reduced 

per million 1996 dollars, divide by 1.119. 

• [2] Data on quantities possessed by convicted dealers are not readily available below the federal 

level, so for typical dealers, the researchers assessed, in lieu of true mandatory minimums, a 

program applying longer sentences to all who were convicted. 

• [3] As shown in earlier RAND research, treatment is more cost-effective than enforcement, even 

though the great majority of users revert to their cocaine habit following treatment. Treatment is 

so much cheaper than enforcement that many more users can be targeted for the same amount 

of money—so many more that the sum of the small individual effects expected are larger than the 

effects expected from enforcement. 

________ 

The Human Cost of Mandatory Minimums 

By Jay Rorty, Drug Law Reform Project 

May 28, 2010 | 5:11 PM 

I sat down in front of the United States Sentencing Commission (USSC) yesterday 

afternoon to testify about the harmful effects of mandatory minimum sentencing. In 

1991, the USSC delivered a report to Congress denouncing mandatory minimums and 

calling for their abolition. Nineteen years and thousands of prisoners later, Congress 

has once again directed the commission to provide a report on mandatory minimums. 

"Mandatory minimums" are minimum sentences that Congress has attached to certain 

crimes. There are over 150 of these throughout federal criminal law. Many are hardly 

used, but the ones that are — mainly relating to drug crimes — can have devastating 

consequences for people's lives. Mandatory minimum sentences reduce the sentencing 

discretion of judges, create racial disparities, and give prosecutors too much leverage, 


which they can use to strong-arm defendants out of their constitutional rights and force 

them to plead to harsh sentences. 

In addition to all of this, the mandatory minimum penalties themselves are incredibly 

severe. Judges across the country have spoken out against mandatory minimums 

because they force them to impose harsher-than-necessary sentences. And now with 

the prisons overflowing and the country just recovering from financial crisis, we don't 

have the money to keep thousands locked up unnecessarily. 

The most moving aspect of yesterday's day-long hearing was listening to the stories of 

how mandatory minimums affect individuals' lives. Each one was a poignant reminder of 

why Congress should abolish mandatory minimums, as the ACLU and a host of other 

advocates and practitioners from across the political spectrum (from the National 

Association of Criminal Defense Lawyers to the Heritage Foundation) recommended 

today. 

I told the commission the story of an ACLU client, Hamedah Hasan, who received a life 

sentence for a first-time, nonviolent drug offense under the most extenuating 

circumstances: she came to stay with her cousin in order to flee a physically abusive 

relationship, and the cousin roped her into running errands for his drug conspiracy. 

Despite her previously clean record, her sentencing judge found his hands tied by a 

combination of mandatory minimums for crack cocaine and the then-mandatory 

sentencing guidelines based on those minimums. Hamedah's sentence has since been 

reduced from life to 27 years, but she still has 10 years left to go. Hamedah has three 

daughters and one granddaughter. She gave birth to her youngest child in prison, and 

because of the ripple effect of this sentencing structure, Hamedah's children and 

grandchildren are growing up without her. The judge has publicly urged that her 

sentence be commuted (reduced) and the ACLU filed a petition three months ago 

asking President Obama to do so. 

Another tragic story recounted today was that of Weldon Angelos, who was facing a 

sentence of 6-9 years for dealing marijuana — until the government added three gun 

charges carrying increasingly harsh minimums that the law requires to be "stacked," 

that is, to be added on top of one another. Even though he never fired the gun or 

threatened anyone, the fact Weldon had the gun with him on several occasions was 

enough to increase his sentence to 55 years, in spite of his judge's firm conviction that 

the sentence was unfairly severe. Listening to stories like this made me wonder how 

Congress could have let this state of affairs persist for so long and whether they will 

ever be serious about changing it. 

But there were hopeful moments, too. An attorney representing the Justice Department 

acknowledged that some mandatory minimums are too harsh, called the resulting spike 

in the prison population "unsustainable," and agreed that some reform was warranted. 

She urged the commission to take a look at the "stacking" provision that doomed 

Weldon Angelos, as well as several other provisions that are commonly used by 

prosecutors to lean on defendants, though she also maintained that using mandatory 


minimums to pressure defendants into plea bargains was a legitimate sentencing 

practice. 

Still, I was pleased to hear the Justice Department's representative express support for 

some of the reforms the ACLU and its allies have been advocating for years. Although 

there was disagreement on the details — we advocated outright abolition of mandatory 

minimums, for example, while the Justice Department seemed to think some mandatory 

minimums should be retained — I was heartened by the near-consensus among today's 

21 witnesses that some reform was necessary. And the commissioners were clearly 

engaged in the issue, asking thoughtful questions and pointing out specific categories of 

defendants (such as so-called "drug mules" who often do nothing more than carry drugs 

from point A to point B for money, with no knowledge of the scope of the operation) for 

whom mandatory minimum sentences are too harsh. 

We're hoping the very fact Congress called for another report on mandatory minimums 

could mean Congress will take a serious interest in reform, and the commission's 

recommendations will not fall on deaf ears. There are already promising signs this 

Congress will take important steps to increase fairness in the criminal justice system by 

minimizing the notorious disparity between sentences for crack and powder cocaine 

offenses. The Fair Sentencing Act, which would reduce the 100:1 crack-powder ratio to 

18:1, has passed the Senate and is awaiting action in the House. This bill wouldn't 

eliminate the disparity entirely (as the ACLU has advocated) but it's a big first step. 

Mandatory minimums could be next. 

But first the sentencing commission has to use its expertise and clout to recommend 

that Congress do the right thing: abolish mandatory minimums, or if Congress cannot 

muster the political will to do so, at least restrict their application and effects. In my 

testimony today, I reminded the commission of its courageous stand in 1991 and urged 

it to stand its ground. After 19 years have shown how right the commission was to 

recommend abolition in the first place, this is no time for timidity. Our country simply 

cannot afford the financial, constitutional and, most heart wrenching of all, human costs 

of these unjust laws. 

________ 


Column: 5 charts show why 

mandatory minimum sentences don’t work 

Politics Jun 1, 2017 11:45 AM EDT 

Today, the United States is a world leader in incarceration, but this has not always been 

the case. 

For most of the 20th century, the U.S. incarcerated about 100 people per 100,000 

residents – below the current world average. However, starting in 1972, our 

incarceration rate began to increase steadily. By 2008, we reached a peak rate of 760 

incarcerated persons per 100,000 residents. 

The increase in incarceration cannot be explained by a rise in crime, as crime rates 

fluctuate independently of incarceration rates. Incarceration rates soared because laws 

changed, making a wider variety of crimes punishable by incarceration and lengthening 

sentences. 

This sharp increase was driven in part by the implementation of mandatory minimums 

for drug offenses, starting in the 1980s. These laws demand strict penalties for all 

offenders in federal courts, no matter the extenuating circumstances. 

Our growing prison population.The number of prisoners in U.S. federal and state institutions has sharply 

increased over the past three decades. Data source: U.S. Bureau of Justice Statistics. Chart by The 

Conversation 


The Obama administration took some measures to roll back these mandatory 

minimums. In 2013, Attorney General Eric Holder issued a memo asking prosecutors to 

prosecute crimes with mandatory minimum sentences only for the worst offenders. 

Earlier this month, however, Attorney General Jeff Sessions rescinded that memo and 

issued his own, which requires prosecutors to “charge and pursue the most serious” 

offense. The punitive sentiment behind Sessions’ memo is a throwback to our failed 

experiment in mass incarceration in the 1980s and 1990s. 

The Rise of Mass Incarceration 

According to political scientist Marie Gottschalk, mass incarceration took off in three 

waves. 

First, in the mid-1970s, Congress began to lengthen sentences. This culminated in the 

1984 Comprehensive Crime Control Act, which established mandatory minimum 

sentences and eliminated federal parole. 

Then, from 1985 to 1992, city, state and federal legislators began to lengthen drug 

sentences. This was the heyday of the war on drugs. It included the Anti-Drug Abuse 

Act of 1986, which imposed even more mandatory minimum sentences. Most 

significantly, it set a five-year mandatory minimum sentence for offenses involving 100 

grams of heroin, 500 grams of cocaine or 5 grams of crack cocaine. 

Two years later, new legislation added a five-year mandatory minimum sentence for 

simple possession of crack cocaine, with no evidence of intent to sell. Before then, one 

year of imprisonment had been the maximum federal penalty for possession of any 

amount of any drug. 

The third wave hit in the early 1990s. This involved not only longer sentences, but “three 

strikes laws” that sentenced any person with two prior convictions to life without parole. 

“Truth in sentencing” policies also demanded that people serve their full sentences. This 

culminated in the Violent Crime Control and Law Enforcement Act of 1994, which 

included a three strikes provision at the federal level. 

Notably, these laws were passed during a time when crime rates had begun a 

precipitous decline. Today, more than half of U.S. states have a three strikes provision. 

By the end of the 20th century, there were an unprecedented over two million inmates in 

the U.S. That’s more than 10 times the number of U.S. inmates at any time prior to the 

1970s, and far more than most other countries. 


Worldwide incarceration rates. At 698 people in prison for every 100,000 adults, the 

US is a world leader in incarceration. Data as of 2015. Data source: World Prison Brief. 

Chart by The Conversation 

The Beginning of The End 

Although the current incarceration rate is still high – about 1 in 37 adults – it is at its 

lowest since 1998. 

Imprisonment has decreased over the past decade for two reasons. First, policymakers 

have started to realize that punitive laws do not work. Second, states are no longer able 

to continue financing this massive carceral system. 

The cost of incarceration. In 2012, a total $265.2 billion was spent on local, state and 

federal incarceration in the U.S. Data source: Justice Expenditure and Employment 

Extracts Program. Chart by The Conversation 


The Great Recession in 2007 gave elected leaders the political will to make cuts to the 

prison system. After three decades of prison building, many states found themselves 

with massive systems they were no longer able to finance, and began to release some 

prisoners to cut costs. This was the first time in 37 years that the number of prisoners 

went down. By 2011, one-fourth of states had closed or planned to close a prison. 

In 2010, Obama signed the Fair Sentencing Act, repealing the five-year mandatory 

sentence for first-time offenders and for repeat offenders with less than 28 grams of 

cocaine. 

This change reduced the 100-to-1 sentencing disparity between crack and powder 

cocaine down to 18-to-1. Activists had been demanding this reduction for decades, as 

the only difference between the two drugs is that crack is made by adding baking soda 

and heat to powder cocaine. Despite similar rates of crack usage in black and white 

communities, in 2010 – the last year of the 100-to-1 disparity – 85 percent of the 30,000 

people sentenced for crack cocaine offenses were black. 

In 2012, after years of steadily increasing prison admission rates, the number of new 

admissions to federal prisons began to decline. In 2015, just 46,912 people were 

admitted to federal prison – the lowest number in 15 years. 

Crime Falls, But Public Opinion Stays The Same 

When mass incarceration first started ramping up in the 1970s, violent and property 

crime rates were high. However, even after crime rates began to decline, legislators 

continued passing punitive laws. In fact, some of the most draconian laws were passed 

in the mid-1990s, long after crime rates had gone down. 

Falling crime rates. The rates of violent and property victimization in the U.S. have 

decreased over the past several decades. Data source: Bureau of Justice Statistics. 

Chart by The Conversation 


Incarceration has had a limited impact on crime rates. First of all, it is just one of many 

factors that influence crime rates. Changes in the economy, fluctuations in the drug 

market and community-level responses often have more pronounced effects. 

Second, there are diminishing returns from incarceration. Incarcerating repeat violent 

offenders takes them off the streets and thus reduces crime. But incarcerating 

nonviolent offenders has a minimal effect on crime rates. 

But incarceration continued to rise even as crime fell, in part because of the public’s 

demand for a punitive response to crime. Although there is less crime today than there 

has been in the past, most people are not aware of this drop. 

Thus, the fear of crime persists. This often translates into punitive public policies – 

regardless of declining crime rates and the inefficacy of these laws at preventing crime. 

Public opinion on crime. Public opinion has not followed the recent decline in crime 

rates. This chart tracks responses to a Gallup poll that asked Americans: “Is there more 

crime in the US than there was a year ago, or less?” Data source: Gallup. Chart by The 

Conversation 

Since the election of Richard Nixon, politicians on the left and right have learned that 

fear-mongering around crime is a surefire way to get elected. Today, when crime rates 

are at a historic low, politicians continue to stoke the flames of fear. These strategies 

may win elections, but the evidence shows they will not make our communities safer. 

Tanya Golash-Boza is a sociology professor at the University of California, Merced. This 

article was originally published on The Conversation. Read the original article. 

________ 


The Economic Case for Sentencing Reform 

by Emily Weisburst and Sandra Black·May 19, 2017 

University of Texas, Austin 

The Issue: 

On May 10, Attorney General Jeff Sessions issued a directive instructing federal 

prosecutors to "charge and pursue the most serious, readily provable offense" in all but 

exceptional cases. The action constitutes a reversal of the 2013 directive issued by 

former Attorney General Eric Holder who had instructed prosecutors to refrain from 

charging low-level, non-violent offenders "with offenses that impose draconian 

mandatory minimum sentences." 

The new directive will serve to increase the prevalence of mandatory minimum 

sentences in the case of drug crimes. A bipartisan group of senators responded to 

Sessions' directive by introducing a bill that would give federal judges more discretion to 

impose lower sentences, and similar bipartisan legislation was expected to be 

introduced in the House. 

More rigorous application of sentencing guidelines will subject a larger share of 

defendants to longer periods of incarceration, and increase the total incarcerated 

population in the U.S. 


The Facts: 

• The United States has the largest incarcerated population in the world. With 

approximately 2.2 million individuals serving sentences in jails and prisons, the 

U.S. incarcerates more than 20 percent of the world’s prisoners. The U.S. also 

has a higher incarceration rate than any other large country – those with 

populations over 200,000 – with a rate that is over 4 times the world average 

(see chart). 

• The prison population has surged in the United States over recent decades, 

with U.S. incarceration rates increasing by more than 220 percent between 

1980 and 2014. In 2014, individuals convicted of non-violent drug offenses 

comprised 50 percent of the Federal prison population and 16 percent of state 

prison populations, according to Bureau of Justice Statistics. Demographically, 

the U.S. incarcerated population is disproportionately concentrated among 

minority and low-income individuals; Blacks and Hispanics represent over 50 

percent of the incarcerated population and historically, a large share have low 

levels of education: nearly two-thirds of the prison population had not completed 

high school, according to a 2003 report. 

• Mandatory minimum sentences are prescribed punishments that apply to 

particular criminal offenses. Because over 90 percent of criminal convictions 

are obtained through guilty pleas rather than through criminal trials, prosecutors 

frequently use mandatory minimum sentences as a bargaining tool in the plea 

process. When prosecutors and judges rigorously apply mandatory minimum 

sentences, plea bargains may be easier to obtain and resulting sentences are 

likely to be longer, increasing the total incarcerated population. 

• Research has found that the crime-reducing benefits of incarceration are 

small and that these benefits decline as the incarcerated population grows. 

Intuitively, the average level of criminal risk among prisoners decreases when the 

prison population expands, and the value of incapacitating a low-risk offender 

may be less than the cost of detention. Because the U.S. already has the highest 

incarcerated population in the world, the costs of further increasing the size of the 

incarcerated population likely exceed any additional benefits (see this study for 

an overview). While estimates vary, reviews of economic research on 

incarceration in the U.S. find that a 10 percent increase in the incarcerated 

population decreases crime by 2 percent or less. 

• Do longer sentences reduce crime? Increasing the length of time that 

prisoners serve could help reduce crime if the threat of harsher punishment acts 

as a deterrent to potential offenders or if keeping people in jail prevents them 

from committing criminal offenses in the outside world. On the other hand, longer 

sentences may increase future re-offending through multiple channels, including 

by causing social or emotional harm, by allowing offenders to build criminal 

expertise, or by causing labor market skills to atrophy while an individual is 


incarcerated. At the same time, because criminal risk declines with age, 

incapacitating older individuals using long sentences likely yields small benefits. 

The empirical evidence offers some estimates of these effects. Longer sentences 

are unlikely to deter prospective youth offenders; researchers find that a 10 

percent increase in sentence length leads to a zero to 0.5 percent decrease in 

youth arrest rates. Some studies have found evidence that longer sentences 

modestly reduce re-offending rates after release, though this research also finds 

that the reduction in offending does not always outweigh the cost of detention 

(examples include work on three-strikes laws, sentence enhancements, parole 

release, and reforms to reduce prison over-crowding). However, a growing body 

of work finds evidence that longer sentences actually cause an increase in reoffending; 

new work that looks at offending outcomes of individuals accused of 

similar offenses but assigned to judges with different sentencing histories finds 

that each additional sentence year leads to a 4 to 7 percentage point increase in 

recidivism after release. 

• The costs of incarceration extend beyond direct costs to the government. 

In 2012, total U.S. spending on incarceration totaled over $80 billion, or more 

than $250 per capita. Survey data suggests that the average yearly cost of 

confining an adult prisoner ranges from $14,000 to $60,000. In addition to direct 

government spending on corrections, incarceration has large indirect costs for 

incarcerated individuals. Job applicants with criminal records are 50 percent less 

likely to receive an interview request or job offer compared to identical applicants 

without criminal records, according to one study. Labor market restrictions for 

individuals with records decrease the earnings of individuals that have been 

incarcerated; research has found that the formerly incarcerated earn 10 to 40 

percent less than similar workers without a history of incarceration. In terms of 

sentence length, recent research finds that a one year increase in incarceration 

decreases employment by 4 percentage points and reduces earnings by 

approximately 30 percent after release. While a father is incarcerated, the 

probability that a family is below the poverty level increases by nearly 40 percent. 

In addition, having a criminal record can decrease access to housing and 

government assistance, and serving time in prison can have negative 

consequences for health. 

• Researchers have found that increasing the number of police or even 

indirect policies improving education and labor market opportunities for atrisk 

populations may have higher returns for community safety. 

Researchers have found that direct investments in expanding law enforcement 

decrease crime rates, with a 10 percent increase in police force size reducing 

crime rates by 3 percent to more than 10 percent. Policies that improve 

employment opportunities for at-risk populations also have the potential to 

reduce criminal behavior. Studies have found that increased educational 

attainment lowers juvenile crime, with a 10 percent increase in high school 

graduation rates decreasing arrest rates by 9 percent. Similarly, increases in 

school quality and participation in pre-school programs have been shown to 


decrease juvenile arrest rates. Evaluations of in-school cognitive behavioral 

therapy for adolescent boys find that such programs can significantly decrease 

criminal behavior among at risk youth. Policies that improve labor market 

conditions are also likely to reduce crime; research has found that a 10 percent 

increase in wages for non-college educated men leads to a 10 to 20 percent 

reduction in crime rates. 

What this Means: 

As U.S. incarceration rates have grown in recent decades, policy-makers, researchers, 

and advocates have become increasingly concerned about the equity and effectiveness 

of current incarceration policies. A growing body of economic research supports the 

bipartisan case for sentencing reform, through both reducing mandatory minimum 

sentences and increasing judicial discretion in sentencing. The current Department of 

Justice recently instructed federal prosecutors to “charge and pursue the most serious 

and readily provable offense” in all but exceptional cases. This policy reverses course 

from prior guidance that encourages the use of judiciary discretion in applying 

mandatory minimum sentences for low-level non-violent drug offenders. More rigorous 

application of sentencing guidelines will subject a larger share of defendants to longer 

periods of incarceration, and increase the total incarcerated population in the U.S. This 

policy is unlikely to be cost-effective and will provide limited public safety benefits while 

increasing the costs borne by the least advantaged groups of our society. 


VII. The Fair Sentencing Act 

of 2010 

The Fair Sentencing Act of 2010 (Pub.L. 111–220) was an Act of Congress that was 

signed into federal law by U.S. President Barack Obama on August 3, 2010 that 

reduces the disparity between the amount of crack cocaine and powder cocaine needed 

to trigger certain federal criminal penalties from a 100:1 weight ratio to an 18:1 weight 

ratio and eliminated the five-year mandatory minimum sentence for simple possession 

of crack cocaine, among other provisions. Similar bills were introduced in several U.S. 

Congresses before its passage in 2010, and courts had also acted to reduce the 

sentencing disparity prior to the bill's passage. 

The Anti-Drug Abuse Act of 1986 implemented the initial disparity, reflecting Congress's 

view that crack cocaine was a more dangerous and harmful drug than powder cocaine. 

In the decades since, extensive research by the United States Sentencing Commission 

and other experts has suggested that the differences between the effects of the two 

drugs are exaggerated and that the sentencing disparity is unwarranted. Further 

controversy surrounding the 100:1 ratio was a result of its description by some as being 

racially biased and contributing to a disproportionate number of African Americans 

being sentenced for crack cocaine offenses. Legislation to reduce the disparity has 


een introduced since the mid-1990s, culminating in the signing of the Fair Sentencing 

Act. 

The Act has been described as improving the fairness of the federal criminal justice 

system, and prominent politicians and non-profit organizations have called for further 

reforms, such as making the law retroactive and complete elimination of the disparity 

(i.e., enacting a 1:1 sentencing ratio). 

Background 

The use of crack cocaine increased rapidly in the 1980s, accompanied by an increase 

in violence in urban areas. In response, the Anti-Drug Abuse Act of 1986 included a 

provision that created the disparity between federal penalties for crack cocaine and 

powder cocaine offenses, imposing the same penalties for the possession of an amount 

of crack cocaine as for 100 times the same amount of powder cocaine. The law also 

contained minimum sentences and other disparities between the two forms of the drug. 

Sentencing Disparity and Effects 

In the three decades prior to the passing of the Fair Sentencing Act, those who were 

arrested for possessing crack cocaine faced much more severe penalties than those in 

possession of powder cocaine. While a person found with five grams of crack cocaine 

faced a five-year mandatory minimum prison sentence, a person holding powder 

cocaine could receive the same sentence only if he or she held five hundred grams. 

Similarly, those carrying ten grams of crack cocaine faced a ten-year mandatory 

sentence, while possession of one thousand grams of powder cocaine was required for 

the same sentence to be imposed. 

At that time, Congress provided the following five reasons for the high ratio: crack 

cocaine was more addictive than powder cocaine; crack cocaine was associated with 

violent crime; youth were more likely to be drawn to crack cocaine; crack cocaine was 

inexpensive, and therefore more likely to be consumed in large quantities; and use of 

crack cocaine by pregnant mothers was dangerous for their unborn children. 

A study released in 1997 examined the addictive nature of both crack and powder 

cocaine and concluded that one was no more addictive than the other. The study 

explored other reasons why crack is viewed as more addictive and theorized, "a more 

accurate interpretation of existing evidence is that already abuse-prone cocaine users 

are most likely to move toward a more efficient mode of ingestion as they escalate their 

use. The Los Angeles Times commented, "There was never any scientific basis for the 

disparity, just panic as the crack epidemic swept the nation's cities." 

The sentencing disparity between these two drug offenses is perceived by a number of 

commentators as racially biased. In 1995, the U.S. Sentencing Commission concluded 

that the disparity created a "racial imbalance in federal prisons and led to more severe 

sentences for low-level crack dealers than for wholesale suppliers of powder cocaine. ... 


As a result, thousands of people – mostly African Americans – have received 

disproportionately harsh prison sentences." 

In 2002, the United States Sentencing Commission "found that the ratio was created 

based upon a misperception of the dangers of crack cocaine, which had since been 

proven to have a less drastic effect than previously thought." In 2009, the U.S. 

Sentencing Commission introduced figures stating that no class of drug is as racially 

skewed as crack in terms of numbers of offenses. According to the data, 79% of 5,669 

sentenced crack offenders were black, while only 10% were white and 10% were 

Hispanic. The figures for the 6,020 powder cocaine convictions, in contrast, were as 

follows: 17% of these offenders were white, 28% were black, and 53% were Hispanic. 

Combined with a 115-month average imprisonment for crack offenses, compared with 

an average of 87 months for cocaine offenses, the sentencing disparity results in more 

African-Americans spending more time in the prison system. 

Asa Hutchinson, the former administrator of the Drug Enforcement Administration under 

President George W. Bush, commented that because of the disparate treatment of 

these two offenses, "the credibility of our entire drug enforcement system is weakened." 

The U.S. Sentencing Commission also released a statement saying that "perceived 

improper racial disparity fosters disrespect for and lack of confidence in the criminal 

justice system." According to U.S. Senator Dick Durbin, "The sentencing disparity 

between crack and powder cocaine has contributed to the imprisonment of African 

Americans at six times the rate of Whites and to the United States' position as the 

world's leader in incarcerations." 


Attempts To Change The Disparity 

Legal Challenges 

Although the 100:1 federal sentencing ratio remained unchanged from 1986 to 2010, 

two U.S. Supreme Court cases provided lower courts with discretion in determining 

penalties for cocaine convictions. Kimbrough v. United States (2007) and Spears v. 

United States gave lower courts the option to set penalties and allowed judges who 

disagreed with the Federal Sentencing Guidelines to depart from the statutory ratio 

based on policy concerns. In 2009, the U.S. District Courts for the Western District of 

Pennsylvania, Western District of Virginia and District of Columbia used these cases to 

create one-to-one sentencing ratios of crack cocaine to powder cocaine. United States 

v. Booker (2005) and Blakely v. Washington (2004) also weakened the sentencing 

guidelines as a whole by making them advisory. 

Proposed Legislation 

The U.S. Sentencing Commission first called for reform of the 100:1 sentencing 

disparity in 1994 after a year-long study on the differing penalties for powder and crack 

cocaine required by the Omnibus Violent Crime Control and Law Enforcement Act. The 

Commission found that the sentencing disparity was unjustified due to the small 

differences between the two forms of cocaine, and advised Congress to equalize the 

quantity ratio that would trigger mandatory sentences. Congress rejected the 

Commission's recommendations for the first time in the Commission's history. 

In April 1997, the Commission again recommended a reduction in the disparity, 

providing Congress with a range from 2:1 to 15:1 to choose from. This recommendation 

would have raised the quantity of crack and lowered the quantity of powder cocaine 

required to trigger a mandatory minimum sentence. Congress did not act on this 

recommendation. In 2002, the Commission again called for reducing sentencing 

disparities in its Report to Congress based on extensive research and testimony by 

medical and scientific professionals, federal and local law enforcement officials, criminal 

justice practitioners, academics, and civil rights organizations. 

Congress first proposed bipartisan legislation to reform crack cocaine sentencing in 

2001, when Senator Jeff Sessions (R-AL) introduced the Drug Sentencing Reform Act. 

This proposal would have raised the amount of crack cocaine necessary for a five-year 

mandatory minimum from 5 grams to 20 grams and would have lowered the amount of 

powder cocaine necessary for the same sentence from 500 grams to 400 grams, a 20:1 

ratio. During the 110th United States Congress, seven crack cocaine sentencing reform 

bills were introduced that would have reduced the sentencing disparity between crack 

and powder cocaine offenses without increasing mandatory sentences. 

In the Senate, Orrin Hatch (R-UT) sponsored the Fairness in Drug Sentencing Act of 

2007 (S. 1685) that would have created a 20:1 ratio by increasing the five-year quantity 

trigger for mandatory minimum sentences for crack cocaine to 25 grams and leaving the 


powder cocaine level at 500 grams. Former senator and former Vice President of the 

United States Joe Biden sponsored the Drug Sentencing Reform and Cocaine Kingpin 

Trafficking Act of 2007 (S. 1711), which would have completely eliminated the disparity 

by increasing the amount of crack cocaine required for the imposition of mandatory 

minimum prison terms to those of powder cocaine. 

Both of these bills would have eliminated the five-year mandatory minimum prison term 

for first-time possession of crack cocaine. In the House of Representatives, Sheila 

Jackson Lee (D-TX) sponsored the Drug Sentencing Reform and Cocaine Kingpin 


Trafficking Act of 2007 (H.R. 4545), the companion to Biden's proposed bill. Charles 

Rangel sponsored the Crack-Cocaine Equitable Sentencing Act of 2007 (H.R. 460), a 

bill he had been introducing since the mid-1990s that would have equalized cocaine 

sentencing and eliminated specified mandatory minimum penalties relating to the 

trafficking in, and possession, importation, or distribution of, crack cocaine. 

The FIRST STEP Act, passed in December 2018, retroactively applied the Fair 

Sentencing Act, aiding around 2,600 imprisoned people. 

Opposition to The Act 

Some members of Congress opposed the Act. Lamar S. Smith (R-TX), the top-ranking 

Republican on the United States House Committee on the Judiciary, argued against its 

passage stating, "I cannot support legislation that might enable the violent and 

devastating crack cocaine epidemic of the past to become a clear and present danger." 

Specifically, Smith alleged that because "reducing the penalties for crack cocaine could 

expose our neighborhoods to the same violence and addiction that caused Congress to 

act in the first place," the bill risked a return to the crack cocaine epidemic that "ravaged 

our communities, especially minority communities." Smith claimed that the severe 

sentences for crack cocaine were justified by a high correlation between crack cocaine 

arrests and both violent crime and past criminal history. 

The Fraternal Order of Police, a national organization of law enforcement officers, also 

opposed the Act. It argued that because increased violence is associated with the use 

of crack, especially in urban areas, high penalties for crack-related offenses were 

justified, relying on U.S. Sentencing Commission statistics showing that 29% of all crack 

cases from October 1, 2008, through September 30, 2009, involved a weapon, 

compared to only 16% for powder cocaine. The organization also stated that the 

enhanced penalties for crack cocaine "have proven useful, and a better course of action 

would have been to instead raise the penalties for powder cocaine crimes." The Fair 

Sentencing Act includes a provision to account for such aggravated cases, allowing 

penalties to be increased for the use of violence during a drug trafficking offense. 

The National Sheriffs' Association (NSA) opposed the bill, stating that "Both crack and 

powder cocaine are dangerous narcotics and plights [sic] on communities throughout 

the United States. ... NSA would consider supporting legislation that would increase the 

sentence for powder cocaine, rather than significantly reducing the sentence for crack 

cocaine." 

Proposal and Passage of The Bill 

On July 29, 2009, the United States House Committee on the Judiciary passed 

proposed legislation, the Fairness in Cocaine Sentencing Act (H.R.3245), a bill 

sponsored by Bobby Scott. Co-sponsored by a group of 62 members of the U.S. House 

of Representatives, including Dennis Kucinich and Ron Paul, the bill would have 

completely eliminated the sentencing disparity. The Fair Sentencing Act was introduced 


as compromise legislation to get bipartisan and unanimous support, amended to merely 

reduce the 100:1 disparity to 18:1. 

The Fair Sentencing Act (S. 1789) was authored by Assistant Senate Majority Leader 

Dick Durbin (D-IL) and cosponsored by Judiciary Committee Chairman Patrick Leahy 

(D-VT) and ranking member Jeff Sessions (R-AL). The bill passed the U.S. Senate on 

March 17, 2010 and passed the U.S. House of Representatives on July 27, 2010, with 

House Majority Whip James E. Clyburn (D-SC) and Bobby Scott (D-VA) as key 

supporters. The bill was then sent to President Obama and signed into law on August 3, 

2010. 

Key Provisions 

The Fair Sentencing Act of 2010 amended the Controlled Substances Act and the 

Controlled Substances Import and Export Act by increasing the amount of a controlled 

substance or mixture containing a cocaine base (i.e., crack cocaine) that would result in 

mandatory minimum prison terms for trafficking and by increasing monetary penalties 

for drug trafficking and for importing/exporting controlled substances. The five-year 

mandatory minimum for first-time possession of crack cocaine was also eliminated, and 

sentencing may take account of accompanying violence, among other aggravating 

factors. 

The bill directed the United States Sentencing Commission to take four actions: 

• review and amend its sentencing guidelines to increase sentences for those 

convicted of committing violent acts in the course a drug trafficking offense; 

• incorporate aggravating and mitigating factors in its guidelines for drug trafficking 

offenses; 


• announce all guidelines, policy statements, and amendments required by the act 

no later than 90 days after its enactment; and 

• study and report to Congress on the impact of changes in sentencing law under 

this act. 

In addition, the bill requires the Comptroller General to report to Congress with an 

analysis of the effectiveness of drug court programs under the Omnibus Crime Control 

and Safe Streets Act of 1968. This must be done within one year after the enactment of 

the Fair Sentencing Act. 

Impact and Reception 

The Congressional Budget Office has estimated that implementing the Fair Sentencing 

Act of 2010 will reduce the prison population by 1,550 person-years over the time period 

from 2011–2015, creating a monetary savings of $42 million during that period. The 

CBO also estimates that the Act's requirement for the Government Accountability Office 

to conduct a report on the effectiveness of a Department of Justice grant program to 

treat nonviolent drug offenders would cost less than $500,000 from appropriated funds. 

On October 15, 2010, the U.S. Sentencing Commission voted 6-1 to approve a 

temporary amendment to federal sentencing guidelines to reflect the changes made by 

the Fair Sentencing Act. The Commission changed the sentencing guidelines to reflect 

Congress's increasing the amount of crack cocaine that would trigger a five-year 

mandatory minimum sentence from 5 grams to 28 grams (one ounce) and the amount 

that would trigger a ten-year mandatory minimum from 50 grams to 280 grams. The 

amendment also lists aggravating factors to the guidelines, creating harsher sentences 

for crack cocaine offenses involving violence or bribery of law enforcement officials. The 

Commission made the amendment permanent on June 30, 2011. 

Effective November 1, 2011, the Fair Sentencing Act of 2010 applies retroactively to 

reduce the sentences of certain offenders already sentenced for federal crack cocaine 

offenses before the passage of the bill. However, the nonprofit organization Families 

Against Mandatory Minimums, a major advocate of the Fair Sentencing Act, has lobbied 

Congress to make the entire act retroactive. According to Gil Kerlikowske, Director of 

the Office of National Drug Control Policy, "there is no scientific basis for the disparity 

and by promoting laws and policies that treat all Americans equally, and by working to 

amend or end those that do not, we can only increase public confidence in the criminal 

justice system and help create a safer and healthier nation for us all." 

Progressives argue for elimination of the sentencing disparity altogether and believe 

that the impact of the bill on racial disparities in drug enforcement may be limited for 

several reasons. First, while the bill reduces the ratio between crack and powder 

cocaine sentencing, it does not achieve full parity. Second, the Act does not address the 

enforcement prerogatives of federal criminal justice agencies: while African-American 

defendants account for roughly 80% of those arrested for crack-related offenses, public 


health data has found that two-thirds of crack users are white or Hispanic. Third, the Act 

does not reduce sentences for those prosecuted under state law, and state 

prosecutions account for a vast majority of incarcerations for drug-related offenses. 



VIII. Alternative Sanctions 

The alternatives to imprisonment are types of punishment or treatment other than 

time in prison that can be given to a person who is convicted of committing a crime. 

Some of these are also known as alternative sanctions. Alternatives can take the form 

of fines, restorative justice, transformative justice or no punishment at all. Capital 

punishment and corporal punishment are also alternatives to imprisonment, but are not 

promoted by modern prison reform movements. 

Reformers generally seek to reduce prison populations and make increased use of 

alternatives with a focus on rehabilitation. The main arguments for this are that these 

punishments reduce the chance of reoffending, reduce cost burdens on the state and 

reduce prison overcrowding. 

Arguments for Alternatives 

Academic studies are inconclusive as to whether high imprisonment rates reduce crime 

rates in comparison to low imprisonment rates. While they at least remove offenders 

from the community, there is little evidence that prisons can rehabilitate offenders or 

deter crime. Some inmates are at risk of being drawn further into crime. They may make 

friends with other criminals, have their medical or mental health needs neglected or 

endure further abuse from other prisoners and even staff. If they are supporting a 


family, they will suffer from the parent's absence. Released prisoners commonly have 

difficulty finding work and earning a legal income. As a result, most countries have high 

recividism rates. In the United States, 67.8% of released prisoners are rearrested within 

three years and 76.6% are rearrested within five years. 

Prison reformers argue in favor of reducing prison populations, mainly through reducing 

the number of those imprisoned for minor crimes. A key goal is to improve conditions by 

reducing overcrowding. Prison reformers also argue that alternative methods are often 

better at rehabilitating offenders and preventing crime in the long term. 

Periodic Detention 

Alternatives 

Periodic detention is a type of custodial sentence under which the offender is held in 

prison periodically, for example between Friday and Sunday evenings each week, but is 

at liberty at other times. Promoted by prison reformers as an alternative to 

imprisonment, periodic detention drew praise for allowing offenders to continue working, 

maintain family relationships, and avoid associating with more dangerous criminals in 

traditional prisons. It was also considerably less expensive to administer. 

Addressing Crimes Involving Sexual Offenders 

Although there have been changes in the way sex offenders are treated in the last 

twenty years, there is a need to differentiate between the different types rather than 

placing them in the same box. By using a compassionate approach, possible sex 

offenders (those addicted to pornographic images, for example) would seek help before 

they commit any kind of crime. Therefore, sex offending needs to be seen within a 

public health framework rather than a criminal justice one. 

Alternatives for Minors 

It is crucial to understand how alternatives to incarceration or detention for minors are 

developed and implemented. Investigations show that incarceration and education are 

closely associated. Restorative justice in the forms of boot camps and military programs 

adopted into public education options is starting to be considered. A variety of programs 

for anger management, self-esteem, etc. have been developed and those working with 

academics are called upon to develop such alternatives. It is shown that people in 

society are willing to pay for rehabilitation for juvenile offenders as opposed to other 

forms of punishment. Kentucky has passed a bill in which the state encourages 

community-based treatment over detention for juveniles. Some of the measures 

introduced early intervention process, evidence-based tools for screening and 

assessing juveniles, or place limits the maximum out-of-home placement. 

Nancy Stein emphasizes on deinstitutionalizing young people by creating communitybased 

alternatives. Many of these alternative programs in which Stein suggests are 


ones that are started by the community as they want to reduce the percentage of 

adolescents being institutionalized. One of the community programs is the Omega Boys 

Club where their goal is to build relationships with young people and help them make 

wise decisions in life. As a result, the Omega Boys Club has contributed in decreasing 

the rate of juvenile crime. This article shows that there are many people committed in 

lowering crime rates within their communities and will do whatever they can to help 

keep the future leaders of our nation out of trouble. The constant involvement with youth 

in these not well off communities is what John Brown Childs believes as “youth who 

actively work for peace and against violence as the inspiration for strategic direction and 

community rebirth.” Thus more community based alternatives to incarceration can help 

to lower the number of people in prison. 

Alternatives for Drug Users 

Despite the efforts of organization groups, such as the American Bar Association, in 

promoting alternatives to imprisonment, they seem to be ignored when it comes to the 

federal government. Some alternatives introduced in this article include confinement, 

community service, tracking devices, and expanded terms in halfway houses. Some 

other ideas include an increase in supervision for a decrease in time as an alternative to 

long-term imprisonment. This technically wouldn't be an alternative to incarceration, but 

rather to full-term supervision. There are often cases such as with parents and drug 

abusers that need special attention and aren’t so easy to incarcerate. When it comes to 

parents, the court should determine what kind of parent the defendant is. Actions should 

be made based on that alone. Those addicted to drugs should be looked at carefully. 

For less dangerous criminals, treatment facilities should be the first option. The 


Residential Drug Abuse Program helps inmates addicted to drugs get released early, 

through the overcoming of their addiction. 

Restorative Justice 

Native American communities, particularly reservations in the United States and 

Canada, have had a reputation for high crime rates. Restorative Justice is an important 

alternative to the Prison Industrial Complex in these communities. Native Americans are 

largely overrepresented in Western penal systems, and are moving towards selfdetermination 

in administering restorative justice to their communities. Some 

alternatives that have been suggested are community-based programs, participation in 

Western sentencing circles, and re-institution of traditional corporal punishment. A 

successful example of this is the Miyo Wahkotowin Community Education Authority, 

which uses restorative techniques at the three Emineskin Cree nation schools it 

operates in Alberta, Canada. The Authority has a special Sohki program which has a 

coordinator work with students with “behavioral issues” rather than punish them and has 

had successful results. 

Canada 

Alternative Programs by Location 

In the Community Based Alternatives to Incarceration in Canada, Richard M. Zubrycki 

argues that by “the Canadian criminal justice system supporting the safe use of 

community alternatives (there would be a significant decrease) in the prison 

populations” (Zubrycki). He discusses mainly about community alternatives such as first 

time offenders receiving intervention that would help them not to commit the crime 

again. Another successful alternative is the Canadian government provides families with 

family group counseling; this is significant because it builds a stronger- closely 

connected support group that helps to decrease the chances of that person committing 

the crime again. Canada has also researched and tried to understand what Community 

Program works best for different types of crime offenders. From their research and 

perseverance “today their prison population is low and is dropping” (Zubrycki, 

Community Based Alternatives to incarceration in Canada). 

New York 

New York City, the largest city in the United States, has created important alternatives 

to incarceration (ATI) program for its prison system. Judges have the option of sending 

those with misdemeanors or felonies to this program instead of giving them a prison 

sentence. The program has four categories: general population, substance abusers, 

women, and youth. The program has a 60% success rate, which is relatively high. 

Offenders who fail the program receive a mandatory prison sentence, which gives them 

good incentive to succeed. Those who don't succeed tend to have a past with 

incarceration. As the biggest city in the United States, New York City is often a 


trendsetter for other cities. This program could be the first of many in the United States, 

which could help lower incarceration rates. 

Maryland 

Maryland started with the goal of reducing the state's prison population. They developed 

a legislative reform package that was projected to reduce the state's prison population 

by 14 percent and save $247 million over the next decade. The Justice Reinvestment 

Act signed into law by Maryland Governor Larry Hogan in May 2016 has advanced 

research-based sentencing guidelines and the policies that govern corrections in the 

state. By reducing the number of people in the state's prison population, they are also 

reducing the number of children in the state which have parents that are incarcerated. 

These policy changes have a direct effect on the lives of these children. The Justice 

Reinvestment Act made changes to mandatory minimum drug penalties and it put caps 

on the prison sentences that can be imposed for technical violations of supervision. 

Certain low-level offense are handled by an administrative parole process for nonviolent 

offenses. Maryland examined and researched why alternative sentencing is needed and 

one of the main reasons is because it discovered that nonviolent crimes accounted for 

most prison sentencing. 



IX. References 

1. https://en.wikipedia.org/wiki/Mandatory_sentencing 

2. https://www.bloomberg.com/quicktake/mandatory-minimum-sentencing 

3. https://en.wikipedia.org/wiki/Zero_tolerance 

4. http://www.sheldensays.com/costsofmandatorysentencing.htm 

5. https://econofact.org/the-economic-case-for-sentencing-reform 

6. https://www.legalmatch.com/law-library/article/8th-amendment-limitations-onsentencing.html 

7. https://www.washingtonpost.com/posteverything/wp/2017/05/15/mandatory-minimumsentences-are-cruel-and-ineffective-sessions-wants-them-back/ 

8. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/08/federal-drugsentencing-laws-bring-high-cost-low-return 

9. https://www.rand.org/pubs/research_briefs/RB6003.html 

10. https://www.aclu.org/blog/smart-justice/mass-incarceration/human-cost-mandatoryminimums 

11. https://www.pbs.org/newshour/politics/5-charts-show-mandatory-minimum-sentencesdont-work 

12. https://econofact.org/the-economic-case-for-sentencing-reform 

13. https://www.aclu.org/blog/smart-justice/mass-incarceration/human-cost-mandatoryminimums 

14. https://en.wikipedia.org/wiki/Fair_Sentencing_Act 

15. https://en.wikipedia.org/wiki/Alternatives_to_imprisonment 

16. https://www.prisonpolicy.org/scans/famm/Primer.pdf 

17. http://civilrightsdocs.info/pdf/criminal-justice/Sentencing-Fact-Sheet.pdf 

18. https://www.alec.org/app/uploads/2016/03/2016-March-ALEC-CJR-State-Factor- 

Mandatory-Minimum-Sentencing-Reform-Saves-States-Money-and-Reduces-Crime- 

Rates.pdf 


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Attachment A 

Mandatory Minimums 

(Prison Policy Institute) 















Attachment B 

Fact Sheet: Sentencing 

and Mandatory Minimums 





Attachment C 

Mandatory Minimum Sentencing Reform Saves 

States Money and Reduces Crime Rates 


















The e-Advocate Quarterly 


Issue Title Quarterly 

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The e-Advocate Monthly Review 

2018 

Transformational Problem Solving January 2018 

The Advocacy Foundation February 2018 

Opioid Initiative 

Native-American Youth March 2018 

In the Juvenile Justice System 

Barriers to Reducing Confinement April 2018 

Latino and Hispanic Youth May 2018 


Social Entrepreneurship June 2018 

The Economic Consequences of 

Homelessness in America S.Ed – June 2018 

African-American Youth July 2018 


Gang Deconstruction August 2018 

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Disenfranchised Young People 

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2019 

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Prison-Based Gerrymandering February 2019 

Literacy-Based Prison Construction March 2019 

Children of Incarcerated Parents April 2019 


African-American Youth in The May 2019 

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Mass Collaboration July 2019 

Concentrated Poverty August 2019 

De-Industrialization September 2019 

Overcoming Dyslexia October 2019 

Overcoming Attention Deficit November 2019 

The Gift of Adversity December 2019 

2020 

The Gift of Hypersensitivity January 2020 

The Gift of Introspection February 2020 

The Gift of Introversion March 2020 

The Gift of Spirituality April 2020 

The Gift of Transformation May 2020 

Property Acquisition for 

Organizational Sustainability June 2020 

Investing for Organizational 

Sustainability July 2020 

Biblical Law & Justice TLFA August 2020 

Gentrification AF September 2020 

Environmental Racism NpA October 2020 

Law for The Poor AF November 2020 

… 


2021 

Biblically Responsible Investing TLFA – January 2021 

International Criminal Procedure LMI – February 2021 

Spiritual Rights TLFA – March 2021 

The Theology of Missions TLFA – April 2021 

Legal Evangelism, Intelligence, 

Reconnaissance & Missions LMI – May 2021 

The Law of War LMI – June 2021 

Generational Progression AF – July 2021 

Predatory Lending AF – August 2021 

The Community Assessment Process NpA – September 2021 

Accountability NpA – October 2021 

Nonprofit Transparency NpA – November 2021 

Redefining Unemployment AF – December 2021 

2022 

21 st Century Slavery AF – January 2022 

Acquiesce to Righteousness TLFA – February 2022 

ComeUnity Capacity-Building NpA – March 2022 

Nonprofit Organizational Assessment NpA – April 2022 

Debt Reduction AF – May 2022 

Case Law, Statutory Law, 

Municipal Ordinances and Policy ALG – June 2022 

Organizational Dysfunction NpA - July 2022 

Institutional Racism Collab US – August 2022 


The Ripple Effects of Ministry TLFA - September 2022 

The Sarbanes-Oxley Act of 2002 NpA – October 2022 

Organized Crime (In The New Millennium) ALG – May 2022 

Nonprofit Marketing NpA – June 2022 

The Uniform Code of Military Justice AF – July 2022 

Community Policing NpA – August 2022 

Wills, Trusts & Estates AF – September 2022 

International Incidents Series 

I. Ten Conflicts to Watch In 

The New Millennium LMI – October 2022 

II. International Hotspots LMI – November 2022 

III. International Cyber Terrorism LMI – December 2022 

2023 

I. International Sex Trafficking LMI – January 2023 

II. Brexit LMI – February 2023 

III. Global Jihad LMI – March 2023 

IV. The Global Economy LMI – April 2023 

Judicial Mistakes ALG May 2023 

The Political Dynamics of Justice TJP June 2023 

Reform in The U.S. 

The Violent Crime Control and 

Law Enforcement Act of 1994 TJP July 2023 

The Cost Ineffectiveness of TJP August 2023 


In The U.S. 

… 


The e-Advocate Quarterly 

Special Editions 

Crowdfunding Winter-Spring 2017 

Social Media for Nonprofits October 2017 

Mass Media for Nonprofits November 2017 

The Opioid Crisis in America: January 2018 

Issues in Pain Management 

The Opioid Crisis in America: February 2018 

The Drug Culture in the U.S. 

The Opioid Crisis in America: March 2018 

Drug Abuse Among Veterans 

The Opioid Crisis in America: April 2018 

Drug Abuse Among America’s 

Teens 

The Opioid Crisis in America: May 2018 

Alcoholism 

The Economic Consequences of June 2018 

Homelessness in The US 

The Economic Consequences of July 2018 

Opioid Addiction in America 


The e-Advocate Journal 

of Theological Jurisprudence 

Vol. I - 2017 

The Theological Origins of Contemporary Judicial Process 

Scriptural Application to The Model Criminal Code 

Scriptural Application for Tort Reform 

Scriptural Application to Juvenile Justice Reformation 

Vol. II - 2018 

Scriptural Application for The Canons of Ethics 

Scriptural Application to Contracts Reform 

& The Uniform Commercial Code 

Scriptural Application to The Law of Property 

Scriptural Application to The Law of Evidence 


Legal Missions International 



Vol. I 2015 

I 

II 

God’s Will and The 21 st Century 

Democratic Process 

The Community 

Engagement Strategy 

Q-1 2015 

Q-2 2015 

III Foreign Policy Q-3 2015 

IV 

Public Interest Law 

in The New Millennium 

Q-4 2015 

Vol. II 2016 

V Ethiopia Q-1 2016 

VI Zimbabwe Q-2 2016 

VII Jamaica Q-3 2016 

VIII Brazil Q-4 2016 

Vol. III 2017 

IX India Q-1 2017 

X Suriname Q-2 2017 

XI The Caribbean Q-3 2017 

XII United States/ Estados Unidos Q-4 2017 

Vol. IV 2018 

XIII Cuba Q-1 2018 

XIV Guinea Q-2 2018 

XV Indonesia Q-3 2018 

XVI Sri Lanka Q-4 2018 


Vol. V 2019 

XVII Russia Q-1 2019 

XVIII Australia Q-2 2019 

XIV South Korea Q-3 2019 

XV Puerto Rico Q-4 2019 


Vol. VI 2020 

XVI Trinidad & Tobago Q-1 2020 

XVII Egypt Q-2 2020 

XVIII Sierra Leone Q-3 2020 

XIX South Africa Q-4 2020 

XX Israel Bonus 

Vol. VII 2021 

XXI Haiti Q-1 2021 

XXII Peru Q-2 2021 

XXIII Costa Rica Q-3 2021 

XXIV China Q-4 2021 

XXV Japan Bonus 

Vol VIII 2022 

XXVI Chile Q-1 2022 


The e-Advocate Juvenile Justice Report 

______ 

Vol. I – Juvenile Delinquency in The US 

Vol. II. – The Prison Industrial Complex 

Vol. III – Restorative/ Transformative Justice 

Vol. IV – The Sixth Amendment Right to The Effective Assistance of Counsel 

Vol. V – The Theological Foundations of Juvenile Justice 

Vol. VI – Collaborating to Eradicate Juvenile Delinquency 


The e-Advocate Newsletter 

Genesis of The Problem 

Family Structure 

Societal Influences 

Evidence-Based Programming 

Strengthening Assets v. Eliminating Deficits 

2012 - Juvenile Delinquency in The US 

Introduction/Ideology/Key Values 

Philosophy/Application & Practice 

Expungement & Pardons 

Pardons & Clemency 

Examples/Best Practices 

2013 - Restorative Justice in The US 

2014 - The Prison Industrial Complex 

25% of the World's Inmates Are In the US 

The Economics of Prison Enterprise 

The Federal Bureau of Prisons 

The After-Effects of Incarceration/Individual/Societal 

The Fourth Amendment Project 

The Sixth Amendment Project 

The Eighth Amendment Project 

The Adolescent Law Group 

2015 - US Constitutional Issues In The New Millennium 


2018 - The Theological Law Firm Academy 

The Theological Foundations of US Law & Government 

The Economic Consequences of Legal Decision-Making 

The Juvenile Justice Legislative Reform Initiative 

The EB-5 International Investors Initiative 

2017 - Organizational Development 

The Board of Directors 

The Inner Circle 

Staff & Management 

Succession Planning 

Bonus #1 The Budget 

Bonus #2 Data-Driven Resource Allocation 

2018 - Sustainability 

The Data-Driven Resource Allocation Process 

The Quality Assurance Initiative 

The Advocacy Foundation Endowments Initiative 

The Community Engagement Strategy 

2019 - Collaboration 

Critical Thinking for Transformative Justice 

International Labor Relations 

Immigration 

God's Will & The 21st Century Democratic Process 

The Community Engagement Strategy 

The 21st Century Charter Schools Initiative 

2020 - Community Engagement 


Extras 

The Nonprofit Advisors Group Newsletters 

The 501(c)(3) Acquisition Process 

The Board of Directors 

The Gladiator Mentality 

Strategic Planning 

Fundraising 

501(c)(3) Reinstatements 

The Collaborative US/ International Newsletters 

How You Think Is Everything 

The Reciprocal Nature of Business Relationships 

Accelerate Your Professional Development 

The Competitive Nature of Grant Writing 

Assessing The Risks 



About The Author 

John C (Jack) Johnson III 

Founder & CEO – The Advocacy Foundation, Inc. 

________ 

Jack was educated at Temple University, in Philadelphia, Pennsylvania and Rutgers 

Law School, in Camden, New Jersey. In 1999, he moved to Atlanta, Georgia to pursue 

greater opportunities to provide Advocacy and Preventive Programmatic services for atrisk/ 

at-promise young persons, their families, and Justice Professionals embedded in the 

Juvenile Justice process in order to help facilitate its transcendence into the 21 st Century. 

There, along with a small group of community and faith-based professionals, “The Advocacy Foundation, Inc." was conceived 

and developed over roughly a thirteen year period, originally chartered as a Juvenile Delinquency Prevention and Educational 

Support Services organization consisting of Mentoring, Tutoring, Counseling, Character Development, Community Change 

Management, Practitioner Re-Education & Training, and a host of related components. 

The Foundation’s Overarching Mission is “To help Individuals, Organizations, & Communities Achieve Their Full Potential”, by 

implementing a wide array of evidence-based proactive multi-disciplinary "Restorative & Transformative Justice" programs & 

projects currently throughout the northeast, southeast, and western international-waters regions, providing prevention and support 

services to at-risk/ at-promise youth, to young adults, to their families, and to Social Service, Justice and Mental 

Health professionals” in each jurisdiction served. The Foundation has since relocated its headquarters to Philadelphia, 

Pennsylvania, and been expanded to include a three-tier mission. 

In addition to his work with the Foundation, Jack also served as an Adjunct Professor of Law & Business at National-Louis 

University of Atlanta (where he taught Political Science, Business & Legal Ethics, Labor & Employment Relations, and Critical 

Thinking courses to undergraduate and graduate level students). Jack has also served as Board President for a host of wellestablished 

and up & coming nonprofit organizations throughout the region, including “Visions Unlimited Community 

Development Systems, Inc.”, a multi-million dollar, award-winning, Violence Prevention and Gang Intervention Social Service 

organization in Atlanta, as well as Vice-Chair of the Georgia/ Metropolitan Atlanta Violence Prevention Partnership, a state-wide 

300 organizational member violence prevention group led by the Morehouse School of Medicine, Emory University and The 

Original, Atlanta-Based, Martin Luther King Center. 

Attorney Johnson’s prior accomplishments include a wide-array of Professional Legal practice areas, including Private Firm, 

Corporate and Government postings, just about all of which yielded significant professional awards & accolades, the history and 

chronology of which are available for review online at LinkedIn.com. Throughout his career, Jack has served a wide variety of 

for-profit corporations, law firms, and nonprofit organizations as Board Chairman, Secretary, Associate, and General Counsel 

since 1990. 


Clayton County Youth Services Partnership, Inc. – Chair; Georgia Violence Prevention Partnership, Inc – Vice Chair; Fayette 

County NAACP - Legal Redress Committee Chairman; Clayton County Fatherhood Initiative Partnership – Principal 

Investigator; Morehouse School of Medicine School of Community Health Feasibility Study Steering Committee; Atlanta 

Violence Prevention Capacity Building Project Partner; Clayton County Minister’s Conference, President 2006-2007; Liberty In 

Life Ministries, Inc. Board Secretary; Young Adults Talk, Inc. Board of Directors; ROYAL, Inc Board of Directors; Temple 

University Alumni Association; Rutgers Law School Alumni Association; Sertoma International; Our Common Welfare Board of 

Directors President 2003-2005; River’s Edge Elementary School PTA (Co-President); Summerhill Community Ministries 

(Winter Sports Athletic Director); Outstanding Young Men of America; Employee of the Year; Academic All-American - 

Basketball; Church Trustee; Church Diaconate Ministry (Walking Deacon); Pennsylvania Commission on Crime & Delinquency 

(Nominee).

The Cost Ineffectiveness of Mandatory Minimum Sentencing In The U.S.

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