The US is home to less than 5 percent of the world’s population, but almost a quarter of the world’s prison population. With nearly 1 out of every 100 adults in prison or jail, our incarceration rate is 5 to 10 times higher than the rates in Western Europe and other democracies.
We spend over $70 billion on prisons every year. Since 1990, prison spending has risen three times quicker than spending on education nationally. In some states, the disparity is even worse. In Texas, where the disparity is greatest, prison spending grew at nearly eight times the rate as school spending.
The increased incarceration population does not necessarily mean our country has become substantially more dangerous and violent over time. It actually has to do more with politics and the enactment of mandatory minimum sentencing laws that require people convicted of particular federal and state crimes to serve a certain minimum prison term, regardless of the circumstances of each individual case.
A Timeline of Mandatory Minimum Penalties
Before 1951, offenses covered by mandatory minimum sentences included treason, murder, rape, slave trafficking, counterfeiting, piracy, and internal revenue collection.
Starting in 1951, Congress began expanding its use of mandatory minimum penalties and lengthening the required prison time. Congress enacted a mandatory minimum penalty of two years of imprisonment for violating the Narcotic Drugs Import and Export Act, which outlawed the importation, sale, purchase, and receipt of controlled substances. Second and third violations of the Act carried mandatory minimum sentences of five and 10 years of imprisonment, respectively.
When Congress created additional controlled substances offenses in 1956, it set a mandatory minimum penalty of 10 years of imprisonment for selling heroin to a juvenile and five years of imprisonment for a first offense of possessing narcotics on a vessel.
By the late 1960s, mandatory minimum sentences for drug offenses grew out of favor and most of these were repealed with the Comprehensive Drug Abuse Prevention and Control Act of 1970. However, at a press conference in June 1971, President Richard Nixon named drug abuse “public enemy number one,” initiating what would become the “War on Drugs.” The national focus meant that drug crimes received more attention from police and harsher punishment in courtrooms.
In June 1986, college basketball star Len Bias died from cocaine overdose just two days after being selected by the Boston Celtics as the second overall pick in the 1986 NBA draft. This highly politicized the drug debate during a mid-term election year and spurred the Democrats to push through a drug bill to keep them from being labeled as soft on crime. The Anti-Drug Abuse Act of 1986 allocated $1.7 billion to combating drug use including funds for new prisons, drug education, and treatment but increased the penalties for federal drug trafficking offenses by establishing mandatory minimum sentences.
A minimum sentence of 5 years was imposed for drug offenses that involved 5 grams of crack, 500 grams of cocaine, 1 kilogram of heroin, 40 grams of a substance with a detectable amount of fentanyl, 5 grams of methamphetamine, 100 kilograms, or 100 plants of marijuana. That law also required a minimum sentence of 10 years for drug offenses that involved 50 grams of crack, 5 kilograms of cocaine, 1 kilogram of heroin, 400 grams of a substance with a detectable amount of fentanyl, 50 grams of methamphetamine, 1000 kilograms, or 1000 plants of marijuana.
It’s worth noting that the quantities triggering mandatory minimum penalties differed for crack cocaine and powder cocaine. Under the so-called “100-to-1” ratio, the 1986 Act established a mandatory minimum penalty of five years of imprisonment for trafficking offenses involving at least five grams of crack cocaine, whereas trafficking offenses involving powder cocaine required at least 500 grams of the substance to trigger the same mandatory minimum. The harsh sentences on crack cocaine use disproportionately affected African-Americans in low-income communities.
The Violent Crime Control and Law Enforcement Act was passed by President Clinton in 1994. The bill called for drug courts to provide increased judicial supervision and drug treatment for non-violent offenders and boot camps for first-time young offenders. However, it established stiffer criminal penalties including a federal three strikes law, which significantly increased prison sentences for those convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limited the ability of these offenders to receive a punishment other than a life sentence. The Truth in Sentencing program also was established, which awarded grants to states that passed laws requiring that offenders serve at least 85 percent of their sentence before becoming eligible for parole.
Effects of Mandatory Minimum Sentencing
As a result of all the legislation, more people were going to jail for longer sentences and increasingly serving most, if not all, of their imposed sentence instead of getting out on parole. By 1995, there were more than 1.5 million people in prison, up from 949,000 in 1993 and 329,000 in 1980.
Mandatory minimum penalties continue to have a significant impact on the sentencing of drug offenders and on the federal prison population. Currently half of those locked up in federal prison are drug law violators. In 2016, over half of offenders carrying a drug mandatory minimum penalty faced a mandatory minimum penalty of ten years or more. In addition, the average sentence for offenders convicted of an offense carrying a drug mandatory minimum penalty was 94 months, more than double the average sentence for drug offenders convicted of an offense without a mandatory minimum penalty. The majority of drug law violators have little or no prior criminal record, so the increased prison spending is being largely wasted on nonviolent offenders who don’t pose a threat to public safety.
Extensive research has shown that excessive mandatory penalties do not deter drug crime or topple the drug market. People serving mandatory minimum sentences aren’t usually the “high-level” offenders that Congress originally intended to target. Instead, those accused of low-level drug law violations often serve longer sentences because they have don’t have information to leverage for a lower sentence.
Mandatory minimum sentencing laws can actually be harmful because it creates a one-size-fits-all system. The sentencing process is dependent upon impersonal data like drug type and quantity, and judges are restricted from handing out a fair punishment based on the offender and his or her case. Instead, the power is shifted from judges to prosecutors who frequently threaten to charge the offender with a violation that carries long mandatory minimum sentences. These threats often result in the defendant pleading guilty in exchange for a reduced sentence. In fact, every year at least 95 percent of federal drug defendants plead guilty.
According to a 2012 poll, voters strongly support reducing prison time for low-risk, non-violent offenders. Those calling for sentence reform believe that judges, who have been trained to recognize high level offenders, should have the authority to determine appropriate punishments for offenders. By not charging low-level, nonviolent drug offenders with offenses that impose mandatory minimum sentences, it is thought that our jails and prisons will not be so overcrowded and the funds can then be re-routed into prevention and drug rehabilitation.