Note from the Author: Let me first state that this article has nothing to do with political party affiliation or choosing sides, but rather about the future of criminal justice reform from the academic perspective of a university professor. Please review this article in entirety and respond with a critical, yet objective mind.
On May 12, U.S. Attorney General Jeff Sessions issued what many have deemed controversial directives instituting stricter criminal sentencing guidelines. These changes represent a significant step backwards in our efforts towards reforming our nation’s criminal justice system.
Sessions’s memo directs federal prosecutors to “charge and pursue the most serious, provable offense.” That is because “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimums.” This directive, in essence, reinstates mandatory minimum sentencing and represents a significant departure from the initiatives towards criminal justice reform under the Obama administration, which had started to gain bipartisan support.
Sessions’s directives are not necessarily surprising or shocking since he has a longstanding reputation as being a zealous ultraconservative prosecutor, which as many know, is essentially the opposite of that of former Attorney General Eric Holder under President Obama.
However, those of us who are criminal justice professionals should be concerned that this administration’s desire to pursue mandatory minimums has historically proven to be discriminatory towards minorities, ineffective at reducing crime, and quite costly to enforce.
The Problem with Mandatory Minimums
Mandatory minimum sentencing stipulates that offenders sentenced under certain federal and state crimes are required to serve out predetermined minimum sentences. The specified term of imprisonment does not take into account any mitigating or extenuating factors such as the offender’s age, prior convictions, employment, and the offender’s amenability to treatment.
With mandatory minimums, the judge’s hands are essentially tied in that he or she must, by virtue of the law, sentence the offender to the mandatory minimum sentence regardless of any extenuating or mitigating factors associated with the crime or the offender.
[Related: Sentencing Bias: Why More Research is Needed]
One of the primary criticisms of mandatory minimums, especially in drug-related offenses, is that it has targeted and been disproportionately applied to minority groups, namely African Americans. The probability of incarceration at some point in an African American male’s life is currently one-in-three, yet the probability for a Caucasian male is 1-in-23, based on the most recent study from Bureau of Justice Statistics. The fact of the matter is that African Americans are disproportionately represented at every level of the criminal justice system from arrest to incarceration, which is an issue that undoubtedly warrants attention.
Mandatory Minimums and Drug Crimes
Mandatory minimum sentencing, especially when applied to drug crimes, has proven unsuccessful in reducing overall drug-related crime rates in the United States. If anything, this particular sentencing scheme has contributed, at least in part, to our nation’s already overcrowded correctional system.
A June 2017 Pew research analysis found that higher rates of imprisonment for drug offenses do not translate to lower rates of drug use, fewer drug arrests, or fewer overdose deaths. These findings support previous research that “cast doubt on the theory that stiffer prison terms deter drug use and related crime.”
Mandatory minimum sentencing is a costly, four-decade-old venture that has not produced the desirable outcomes in which it was intended. Take for instance, the opioid epidemic that we are valiantly trying to address today, but, by most accounts, failing miserably at.
The heroin epidemic has been raging for quite some time, but the recent introduction of Fentanyl and Carfentanil has made it deadlier than ever. Carfentanil is an elephant tranquilizer that is being cut with heroin on the streets. It is highly potent and said to be 10,000 times more potent than morphine. There is no denying that we are seeing increases in heroin-related overdoses across the country. Opioid use and abuse, specifically heroin, does not discriminate. There are no geographic, racial, religious, or socioeconomic boundaries that cannot be penetrated by heroin addiction.
Addiction is a public health concern that cannot be fought purely from a law enforcement or punitive front without having a rehabilitation component. The threat of arrest, prosecution, and imprisonment are not deterrents to those in the throes of addiction.
Opposition to Sessions’s Stance
The LA Times emphasized that the policy introduced by Sessions threatens to halt a push for bipartisan criminal justice reform that has been led by some of Trump’s closest advisors and embraced by key Republicans on Capitol Hill. House Speaker Paul Ryan and Sen. Rand Paul, (R-Ky.), for example, have criticized the new policy, arguing that mandatory minimums have historically and disproportionately targeted minorities because of how different drugs are categorized under the law.
I echo the sentiments from The New York University School of Law Brennan Center for Justice, a nonpartisan law and policy institute focused on democracy and justice, which was quick to voice their concerns to CNN in response to Sessions’s directives. “That approach is what led to this mess of mass incarceration,” Inimai Chettiar, the center’s program director, told CNN. “It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
To confirm that such rigorous stances on sentencing don’t work, one only has to look back four decades at the efforts of former administrations to curb drug use by putting more people in prison.
Historical Failures of the War on Drugs and Mandatory Minimums
The “War on Drugs” was initiated by former President Nixon. In June of 1971, Nixon increased both the size and presence of federal drug control agencies and enacted stringent crime control measures, including mandatory sentencing and no-knock warrants. Some speculate that Nixon’s “get tough” on crime stance targeted the antiwar left and African Americans, both of whom Nixon perceived to be in defiance of his administration. As we know, this was an era in American history admittedly plagued with civil unrest, an unpopular war, and rising drug use, particularly within mainstream, middle-class society.
The War on Drugs subsequently gained additional momentum under the Reagan administration, which was fueled, in part, by the hysteria surrounding crack cocaine, an inexpensive form of cocaine mostly confined to poor urban areas and used / abused predominantly by African Americans. In addition to crack cocaine, there was the emergence of the HIV / AIDS virus. Even though it was initially thought to only be contracted through sexual contact, predominantly within the homosexual community, research soon showed that the virus could also be contracted through the sharing of hypodermic needles among drug users. Drug users, and the traffickers supplying the drugs, became public enemy number one and the focal point for increased punitive sentencing guidelines.
Under the Clinton administration, the former democratic president initially advocated for drug treatment (i.e. rehabilitation) over incarceration during his 1992 campaign, but soon after taking office, Clinton reverted to the drug war strategies of his Republican predecessors; thereby introducing additional “get tough on crime” policies that some might say were actually more punitive in comparison to his predecessors.
When George W. Bush became president, he faced a drug war that America seemed to be losing. As a result, Bush responded with the militarization of domestic law enforcement, which targeted drug offenders (users and traffickers) in an attempt to curb drug use and trafficking.
Why the War on Drugs Won’t Work Today Either
Targeting major drug traffickers is where we need to focus our efforts. The overwhelming majority of drug users are nonviolent offenders who do not pose a threat to public safety. Incarceration leads to forced sobriety, but it does not necessarily address the psychological triggers that will likely lead to relapsing once the addict is released back into our nation’s communities. In fact, drug overdose deaths are rising faster than ever before.
Our criminal justice system should prioritize rehabilitating drug users rather than punishing them with long prison sentences. Not only would this reduce the problem of costly overcrowding in prisons, but it would eventually reform a flawed and discriminatory system. If history is anything to go by, Sessions’s mandatory minimum sentencing overhaul is a significant step backwards in our recent efforts towards reforming our nation’s criminal justice system.
About the Author: Dr. Michael Pittaro is an Assistant Professor of Criminal Justice in the School of Security and Global Studies (SSGC) with American Military University and an Adjunct Professor at East Stroudsburg University. Dr. Pittaro is a criminal justice veteran, highly experienced in working with criminal offenders in a variety of institutional and non-institutional settings.
Before pursuing a career in higher education, Dr. Pittaro worked in corrections administration; has served as the Executive Director of an outpatient drug and alcohol facility and as Executive Director of a drug and alcohol prevention agency. Dr. Pittaro has been teaching at the university level (online and on-campus) for the past 15 years while also serving internationally as an author, editor, presenter, and subject matter expert. Dr. Pittaro holds a BS in Criminal Justice; an MPA in Public Administration; and a PhD in criminal justice. To contact the author, please email IPSauthor@apus.edu.