With the spike in heroin-overdose deaths in recent years—a six-fold increase from 2002 to 2015—lawmakers and prosecutors are pushing for new mandatory minimums. In at least 29 states, laws have been proposed to increase penalties for heroin and fentanyl-related offenses. Pennsylvania is the latest to join the fray, with lawmakers advancing legislation to reinstate mandatory minimums the state’s supreme court found to be unconstitutional in 2015.
We’ve seen this sequence of events play out many times before on both the state and federal level—a certain type of crime starts grabbing headlines, and lawmakers respond by proposing mandatory sentences for that crime.
This began as early as 1790, when Congress responded to the problem of piracy on the high seas. In the 1920s it was robbing banks and crossing state lines. In 1965 Congress enacted a mandatory life sentence for first-degree murder of the U.S. president or a member of his staff. In the 1970s it was skyjacking.
And in the 1980s, as today, it was drug abuse. One story in particular galvanized public fear of drugs and spurred an extraordinary congressional response.
Len Bias was a star basketball player from the University of Maryland whose talent rivaled Michael Jordan’s. On June 17, 1986, the Boston Celtics selected Bias in the first round of the NBA draft. Two days later came the shocking headline: “Celtics Draftee Len Bias Dies of Heart Attack”.
When the news spread that cocaine intoxication was the cause, it didn’t take long for politicians to seize the opportunity. Three months after Bias died, Congress passed the Anti-Drug Abuse Act of 1986 establishing new mandatory minimum sentences for drug offenses.
This sweeping law, passed with little deliberation, has had a remarkable impact on the criminal-justice system: Thousands of low-level drug offenders have been and continue to be sentenced to decades in prison. In 1986 the federal prison population was 36,000. It is now over 200,000 and about half are drug offenders. Eric Sterling, a former U.S. House Judiciary Committee staffer who helped draft the law, called it “the greatest tragedy of my professional life”.
Even as the prison population soared as a result of this legislation, mandatory minimums for the crime du jour continued to proliferate. At the federal level, the number of mandatory minimums has more than doubled since 1991.
And this year, even in states that have recently passed criminal-justice reforms including relaxing mandatory penalties, hysteria over heroin-overdose deaths has renewed the appeal of these sentencing policies.
There’s little evidence that mandatory minimums are effective in stemming drug abuse. University of Minnesota Law Professor Michael Tonry concluded, “the weight of the evidence clearly shows that enactment of mandatory penalties has either no demonstrable marginal deterrent effects or short-term effects that rapidly waste away.”
After all, when the War on Drugs began, the goal was to create a drug-free society. That was 45 years ago. Illegal drugs are still widely available and the rate of addiction has not declined.
What is clear is that mandatory minimums often result in arbitrary and unduly harsh sentences. One example from the long list of prisoner profiles listed by Families Against Mandatory Minimums is the disturbing case of Todd Hannigan: “Following years of addiction and stints behind bars, in 2009, Todd went to a park and tried to end his life with a handful of Vicodin and alcohol. For that, he is now serving 15 years in prison for trafficking between 14 to 28 grams of hydrocodone, even though he demonstrated no intention of selling the pills.”
This demonstrates how mandatory minimums tie the hands of judges in cases with mitigating circumstances. No two crimes are exactly alike, and judges should be free to tailor the sentence to the individual offender.
During Hannigan’s sentencing hearing, Judge Tim Shea said, “I do think this is an inappropriate sentence under these circumstances. The legislature has, in its infinite wisdom, decided to transfer a significant amount of what was once judicial discretion to the prosecutorial arm of this state. There’s nothing I can do about that. There’s nothing I can do about that at all.”
It is the height of arrogance for a legislator to think they know better what a sentence should be for a hypothetical offender than the judge who will have an intimate understanding of the case and look the defendant in the eye.
Perhaps we should think about policies that will result in better outcomes. There are several cost-effective alternatives to incarceration, including drug-court supervision, probation, community correctional programs, and substance-abuse treatment.
Instead of reacting in haste to the latest headlines and looking for an easy way to appear “tough on crime,” lawmakers should think carefully and dispassionately before passing laws with such a far-reaching and damaging impact.