By Zach Lisner
The Problem
When it comes to sentencing, who should have control? Currently, our nation is divided in every aspect; criminal sentencing is no exception. For most of our nation’s legal history, judges were entrusted by citizens to decide what an individual’s sentence was, based on the crime and specific circumstances. However, after the crime waves of the 1970s, Congress reacted with the 1984 Sentencing Reform Act. The Act “Requires the court to impose a sentence within the range set forth by the Commission, if one has been issued.”[1] The rationale from Congress and scholars alike was to deter individuals (especially drug traffickers) away from crime.[2] Further, the Act intended to restore Lady Justice’s blindfold, especially amid racial tensions.
However, the resulting reality was anything but intended. Local governments, now armed with federally implemented sentences showed no quarter in arresting individuals. Prosecutors were able to use the minimum sentencing as a bargaining chip for guilty pleas.[3] With no prison reform, the recidivism of individuals stayed stagnant and failed to decrease criminal activity.[4] In 1984, there were 34,000 individuals serving life sentences. By 2020, there were 203,865.[5] The 1984 Sentencing Reform Act stripped the court of its humanity. During this time, judges lost a significant portion of their function and role as ethical leaders for the community, who wouldn’t determine an individual’s sentence on numbers alone. Consequently, the country has seen overwhelming prison growth and a decline in individuals’ perception of the criminal justice system.[6]
Should it Change?
As mentioned above, the country is split on this problem. On one side of the aisle, individuals have argued against minimum sentencing for its part in the 222% increase in the prison population and its disproportionate effect on racial minorities.[7] Minimum sentences further eliminate the checks and balances system between judges and prosecuting attorneys (who historically over-prosecute in the hope of some of the charges sticking).[8] On the other side, having a set sentence decreases the court’s use of unjust sentencing practices, eliminates personal biases, and protects society from violent individuals for extended periods.[9] Further, although incarceration rates have increased, the general crime rate has decreased since the 1980s.[10] Both sides have valid arguments but are left with hard questions without good answers. One such question is whether the courts should be more concerned with the individual or society at large when determining sentencing.
Overall, the question of what to do with minimum legal sentencing is yet to be answered and is here to stay. One of the reasons that minimum sentencing has resurfaced is due to the state legalization of marijuana. Statistically, the 1984 Sentencing Reform Act has had the largest effect on drug-related offenses (as was intended by Congress). With the country’s opinions on specific drugs and drug-related activities changing, the legal world must revisit minimum sentencing, to decide whether the Act should be continued, retracted, or evolved in line with societal expectations. One viable option, which the model penal code follows, would be recommended minimum sentencing which could be adopted, but not mandated by the courts.
[1] H.R. 5773, 98th Cong. (1984).
[2] Mandatory Minimum Sentence Statistics, Fair Fight Initiative. (Sep. 1, 2022), https://www.fairfightinitiative.org/mandatory-minimum-sentence-statistics/#:~:text=In%20reality%2C%20it%20effectively%20removes,do%20their%20jobs%20%E2%80%93%20to%20judge.
[3] Id.
[4] Recidivism of Prisoners Released in 30 States in 2005, Bureau of Justice Statistics. (April 2014), https://bjs.ojp.gov/library/publications/recidivism-prisoners-released-30-states-2005-patterns-2005-2010-update.
[5] Criminal Justice Facts, The Sentencing Project. (Feb. 2020), https://www.sentencingproject.org/criminal-justice-facts/.
[6] Justin McCarthy, Americans’ Views Shift on Toughness of Justice System, Gallup. (Oct. 20, 2016), https://news.gallup.com/poll/196568/americans-views-shift-toughness-justice-system.aspx.
[7] Mandatory Minimum Sentence Statistics, Fair Fight Initiative. (Sep. 1, 2022), https://www.fairfightinitiative.org/mandatory-minimum-sentence-statistics/#:~:text=In%20reality%2C%20it%20effectively%20removes,do%20their%20jobs%20%E2%80%93%20to%20judge.
[8] Mandatory Minimums and Racial Justice, Justice Forward Virginia. (Jan. 2022), https://justiceforwardva.com/mandatory-minimums.
[9] Louise Gaille, 11 Mandatory Minimum Sentences Pros, and Cons, Vittana. (Feb. 27, 2018), https://vittana.org/11-mandatory-minimum-sentences-pros-and-cons.
[10] Former Prosecutor on Why He Supports Mandatory Minimums, NPR. (May 31, 2017), https://www.npr.org/2017/05/31/530843623/former-prosecutor-on-why-he-supports-mandatory-minimums.