Thursday, December 15, 2016

A Proposal to Abolish Mandatory Minimum Sentences by Cassandra (Cassie) Kinney



A mandatory minimum sentence is a court decision, where people convicted of certain crimes must be punished with at least a minimum number of years in prison (Erikson, 2013.) Regardless of the context, mandatory minimum sentences are pre-determined under a “one-size-fits-all” construct (Carle, 2013; Snyder, 2015), and do not account for individualized circumstances (Krause, 2015.) This paper is a call to action in abolishing mandatory minimum sentences, while presenting alternative policies and best practices using Critical Race theory. Alternatives to mandatory minimum sentences consider rehabilitative approaches, giving judicial discretion and flexible sentencing guidelines (Carle, 2013) to strengthen families and communities, and shifting tax dollars towards treatment programs (Snyder, 2015.)
Moreover, harsher mandatory minimum sentences have gradually increased over time (Snyder, 2015) with the Boggs Act of 1951, the Narcotics Control Act of 1956, Comprehensive Drug Abuse Prevention and Control Act of 1970, Anti-Drug Abuse Act of 1986 (Lassiter, 2015; NeSmith, 2014), and the Sentencing Reform Act of 1984 (Harris, 2016.) Mandatory minimum sentences were proposed by the American Legislative Exchange Council (ALEC), a group that also influenced laws and profited from the criminalization of undocumented immigrants as well as prison labor (Cummings, 2012; De Giorgi, 2016.) The criminal justice system is tied up in politics (Harris, 2015), social programs, and various corporations (Cummings, 2012.) Mandatory minimum sentencing has led to incarceration that is impulsive-like in a wide range of convictions (Harris, 2016) from drug offenses, immigration, firearm, theft, fraud, sex offenses, to child pornography. Offenders subjected to a mandatory minimum sentence, on average served 140 months in prison, equating to 11.6 years (Hofer & Exum, 2016.) To abolish mandatory minimum sentences is a step towards addressing unjust laws and unfair treatment of human beings. Before discussing the alternatives to mandatory minimums, it’s important to first address the racial disparities and biases that are reflected in sentencing.


RACIAL DISPARITY
Racial disparities are prevalent in mandatory minimum sentencing (Cummings, 2012; De Giorgi, 2016; Erikson, 2014; Snyder, 2015; Ulmer, Painter-Davis, & Tinik, 2016; Ward et al., 2016; Welch, 2003.) Mandatory minimum sentences were passed during the War on Drugs era, but the inception began as far back as the 1800s when US politicians criminalized Chinese immigrants on the basis for distributing opium—whether it was true or not (Snyder, 2015.) Similarly, cocaine was criminalized because the drug was associated with African Americans, then marijuana because of an association with Mexican immigrants (Snyder, 2015.) Today, almost half a million (half of all persons in jail or prison) are incarcerated for a drug related charge—an 1,100 percent increase since 1980 (Hall & Coyne, 2013.)
Social and racial control are encoded in drug laws through mandatory minimum sentencing (Cummings, 2012; Snyder, 2015; Ulmer, Painter-Davis, & Tinik, 2016; Welch, 2003.) This especially is true for locations with a higher Black and Hispanic population that has influenced police and officials to stereotype (Ulmer, Painter-Davis, & Tinik, 2016.) Additionally, the duration of prison terms for Black males is 4% longer on than White males, while duration of imprisonment for Hispanics is 6% longer than White males (Ulmer, Painter-Davis, & Tinik, 2016.) Not surprising that this continues to be perpetuated in the criminal justice system, where 38.3% of mandatory minimum penalties were applied to Hispanics, while Blacks accounted for 31.5%, Whites accounted for 27.4%, and 2.7% accounted for other races in 2010 (United States Sentencing Commission, 2012.)
Other categories where mandatory minimums are mostly applied is immigration and firearms (Erikson, 2014.) Immigration is a racially encoded law (Cummings, 2012; De Giorgi, 2016) because it almost exclusively targets Mexican immigrants, instead of White European immigrants. There is a new fear of Muslim immigrants as well since 9/11 which are associated with terrorism and having weapons. As for firearms, in a pro-2nd Amendment country, it is framed that Whites are allowed the ownership of guns with ‘stand-your-ground’ laws but persons of color are not (Miah, 2012.) Another component of racial discrimination in the prison system, is wrongful convictions and exonerations (Smith & Hattery, 2011.) Again, the racial discrimination in the prison system is a factor here because 70% of the exonerees in America have been black men who are the most wrongfully convicted, which is disproportionate to the population of black men in the United States (Smith & Hattery, 2011.) Precisely how prison does not reflect the United States population, where 37% and 22% of African American and Hispanic men make up the prison population (De Giorgi, 2016.) Young, Black men are 10 times more likely than White men to be in state or federal prison (De Giorgi, 2016) for doing the same offenses or possessing drugs at the same frequency (Lassiter, 2015; Snyder, 2015.) Additionally, there is a possible 6% of the prison population that is innocent (Smith & Hattery, 2011.)
The criminal justice system has been evolving under the Obama administration, and there is bi-partisan alignment on the issues of mandatory minimum sentencing. It begs the question in the wake of marijuana legalization in the U.S., what are the reparations for those who served time for possession, distribution, or personal use of marijuana? Further, instead of tax dollars used to house most drug offenders in prison and jail, money could be shifted to additional rehab and treatment centers established in all towns. Advantages of treatment and counseling is further discussed below. Tax dollars saved and used towards treatment centers will be discussed further in the paper.
ALTERNATIVES TO MANDATORY MINIMUMS
            Other alternatives to incarceration are used to avoid mandatory minimum sentencing such as probation, halfway houses, electronic home monitoring, drug courts, probation, parole, community service, mental health courts, restorative justice, and public shaming (De Giorgi, 2016.) The alternatives listed are affective and save money (Eisenberg, 2016.) However, electronic home monitoring is limiting; community service can be embarrassing; and the public shaming tactic is humiliating if you’re forced to wear a sign that reads “I’m a shoplifter” outside of a Wal-Mart. And, many of these programs are only used for Whites and the options are not made available for Blacks (Ward et al., 2016.) As suggested earlier, abolishing mandatory minimums is a call to action in decriminalizing drugs. With that said, there are three options the criminal justice system can choose when decriminalizing drugs: (1) where rehabilitation and counseling should be mandatory under the criminal justice system when found in possession of narcotics, (2) where rehabilitation and counseling should not be mandatory under the criminal justice system when found in possession of narcotics and instead, (3) make drug treatment centers readily available options that are voluntary, free (or affordable), and open to the public. If the criminal justice system does not change policies now, the system will continue to criminalize drug use and distribution by race, because drug laws disproportionately affect the Black and Hispanic population.
Most mandatory minimum penalties apply to drug offenses; for example, in 2013, 62.1% of all federal drug offenders were convicted of an offense carrying a mandatory minimum sentence, and in 2014 it was 50.1% (Malcolm, 2016.) In 2002, Michigan eliminated mandatory minimum sentencing for most drug offenses, giving 1,200 inmates eligibility for immediate release (Malcolm, 2016.) Between 2003 and 2012, violent crime rates dropped 13% and property crime rates dropped 24% in Michigan (Malcolm, 2016), while the overall national crime rate also dropped (Eisenberg, 2016.)  To better tackle drug addiction in the United States is with any rehabilitative approaches instead of punishment systems—no matter what the drug sentencing laws are at the state and federal level.
Subsequently, rehab is cost effective, saving billions of dollars, reduces drug abuse, and reduces recidivism because rehab confronts drug addiction and mental illness at the root cause (Snyder, 2015.) Many prisoners are addicts, and drug court programs seek to provide participants with treatment to help them stay sober (Snyder, 2015.) Rehabilitative approaches may include mental health and drug courts, requiring offenders to take urine tests, drug court supervision through appointments with counselors and case managers, attending 12-step meetings, substance abuse treatment, and community correctional programs, adding up to $1,500 to $11,000 for the average cost per participant per year (United States Government Accountability Office, 2005.) With all of these approaches combined, it would still be cheaper to rehabilitate people than incarcerate them. Thus, it is important for judicial discretion to order flexible sentencing guidelines instead of applying mandatory minimum sentences, as discussed below.

JUDICICAL DISCRETION & FLEXIBLE SENTENCING GUIDELINES 
Furthermore, the absence of judicial discretion is the result of mandatory minimum sentencing (Carle, 2013; De Giorgi, 2016; Erikson, 2014; Harris, 2016; Huang, 2010; Krause, 2015; NeSmith, 2014; Snyder, 2015). This is because prosecutor’s arguments and recommendations to the court are viewed by all court actors as having a heavier influence on the judicial decision (Harris, 2016; Ulmer, Painter-Davis, & Tinik, 2016; Ward et al., 2016.) According to Newswire, in 2015 the Women Donors Network found that 95% of all prosecutors in the United States are White, and 79% of those are White males. This absolutely affects the way cases are handled.
For example, some cases where charges were disproportionate to the seriousness of the offense, include: Kenneth Harvey, who was convicted for life in federal prison because he had crack cocaine in his possession with two prior nonviolent offenses on his record (Huang, 2010.) Second, Byron McDade, had no prior criminal history, had four children and a job, but was convicted 27 years in prison for the intent of distributing cocaine and after refusing to testify against a friend (Huang, 2010.) Another case who also had no prior criminal history, Weldon Angelos was sentenced to 61 and a half years in federal prison for distribution of marijuana at the age of 24 (Huang, 2010.) The prosecutor on the case wanted to give him a harsher penalty because later guns were found in Angelos’ possession, although he never used them, so three additional charges were added to his sentence (Huang, 2010.)
Each Judge on the cases mentioned above, believed the sentences were severe and excessive (Huang, 2010.) And because those Judges (even the same Judges that sent them to prison) requested clemency for Harvey, McDade, and Angelos, and they are out of prison as of March 2016. But, Judges must adhere to the mandatory minimum sentencing guidelines produced by the Sentencing Commission which has assigned an offense level to each of the 17 distinct quantities of drugs (Newman, 2016.) Monetary crimes are imposed and assigned the same way, except that theft can get you less time than drug charges (Newman, 2016.) For instance, theft of $10,000-$30,000 could put you 6-12 months in prison; while handling, or distributing 2.8 kilograms of cocaine, which translates to 12-15 years in prison (Newman, 2016.) Even when judicial discretion is present, Whites are court ordered to participate in treatment far more often than Blacks and Hispanics (Van Cleve, 2016; Ward et al., 2016.) There still exists a system to catch people that are deemed criminals; and once you’re in the “system”, it’s hard to untangle out of it.
Once again, mandatory minimum sentencing frames people into standard categories that will receive illogical punishments and fines. With the abolition of mandatory minimums requires the decriminalization of drugs taking into account the racial bias in enforcing these laws. Drug laws are not the only changes that need to be made in regards to mandatory minimum sentencing. “Congress passed a ‘safety valve’ law that allows limited downward departures from mandatory minimums” in 1994 (Erikson, 2014, p. 1140.) But the safety valve could hardly be applied because offenders did not meet criteria to get a reduced sentence. The Justice Safety Valve Act of 2013 aimed to counterbalance harsh sentencing (Carle, 2013.) While the legislation would have allowed judicial discretion that imposed a flexible sentence (below the mandatory minimum) in drug crimes, avoid arduous costs and lengthy sentences for certain offenders, but the bill has yet to pass (Carle, 2013.)
Under the Obama administration, the Fair Sentencing Act in 2010 was passed to reduce sentencing disparity between crack and powder cocaine (Erikson, 2014; Eisenberg, 2016; Simon, 2016; Snyder, 2015.) But, differential racial sentencing still exists when African Americans are disproportionately imprisoned for drug convictions that far exceeds the rate of their drug using population (Snyder, 2015.) Other legislation such as the Smarter Sentencing Act would have reduced mandatory minimum penalties for nonviolent offender, but the bill could not pass (NeSmith, 2014.) The underlying issues of mandatory minimum sentencing and the prison system is not merely giving more judicial discretion. Judges used to be prosecutors, and when almost all prosecutors and Judges are White in a racialized courtroom, then there are going to be biases (Van Cleve, 2016.) For example, prosecutors and Judges justify harsh sentencing and treatment of defendants through desensitizing themselves to marginalized and minority defendants (Van Cleve, 2016.) Furthermore, defendants are “de-futurized” in the eyes of the court, when prosecutors and judges justify longer sentences—by framing defendants as deserving of harsh punishment (Van Cleve, 2016, p. 55.) Mandatory minimum sentences cannot simply be reformed and the prison industrial complex cannot simply be changed (De Giorgi, 2016), because from a Critical Race and Humanist perspective, prison is costly, inefficient, and does not reduce crime and recidivism.
STRENGTHEN FAMILIES & COMMUNITIES
A new state and federal prison opened every 10 days between 1990 and 2005 in the United States to compensate for the growing population of men and women (Kirchhoff, 2010.) With the growing prison population, there are a growing number of children and families psychologically impacted (NeSmith, 2014.) The children’s television show Sesame Street featured an episode helping children to cope with the incarceration of their mothers or fathers in prison (Oleson, 2016.) Men and women are forced to live apart from their family (Snyder, 2015), they come from unstable backgrounds, or from the poorest and most dire situations (De Giorgi, 2016), as a result they miss out on life, family, opportunities, love, and their basic needs are not met. According to the Department of Justice, the number one predictor for someone to reoffend is if they don’t have a support system from families. Several devastating realities for women prisoners is that it is difficult to find a landlord willing to rent an apartment or house someone coming out of prison, in addition to finding employment with a conviction record (Belknap, 2010.) Thus, the process for women becomes even more difficult in regaining custody of their children if they have neither housing or employment (Belknap, 2010.) Undoubtedly, this creates a ripple effect where children, extended families, and neighborhoods are affected as well (NeSmith, 2014; Snyder, 2016.)
As mentioned, the stigma of a criminal record makes it harder to get a job, especially when it is hard to get a job when options are limited in your community—thus the systems of inequality perpetuate a cycle of imprisonment (De Giorgi, 2016; Harris, 2016.) This further affects children, mothers, and extended family members. It may be more difficult for family members if their adolescent son or daughter is in jail or prison. Certainly, mandatory minimums are inappropriate for juveniles based on the research on maturity level and brain development (Krause, 2015.) Giving people their lives back will reunite and strengthen families; and in fact, drug treatment programs help to restore lives of individuals, families, and communities, while saving tax dollars that would otherwise go to housing offenders in prison (Snyder, 2015.) This is further discussed below in the advantages of tax dollars towards treatment programs.
TAX DOLLARS TOWARDS TREATMENT PROGRAMS
Consequently, the budget for mass incarceration has increased, while the funds for welfare and education have decreased (Harris, 2015.) For instance, between 1986 to 2013, states increased spending on K-12 education by 69% and higher education increased by 6%, and funding for corrections increased by 141% (Harris, 2016.) Not only are tax dollars going more towards corrections, but some jurisdictions in the United States have mandatory minimum sentences for legal financial obligations (LFOs) that requires offenders to pay for the system itself (Harris, 2016.) In 44 states, judges can incarcerate people for LFOs (Harris, 2016.) In Washington and Texas, there is a $600 and $564 charge to a mandatory minimum financial sentence for every offence (Harris, 2016.) Of course, if someone cannot pay in full, then interest is added over time, and could amount to thousands of dollars (Harris, 2016.) Supposing that each offender is charged the imposed mandatory minimum legal fee of $600, then the state could accrue $12 million a year (Harris, 2016.) The amount of money to enforce this system is reclaimed from monetary sanctions imposed on offenders, thus continuing social stratification (Harris, 2016.)
With the abolition of mandatory minimum sentences, a shift from punishment to treatment and services needs to be established (De Giorgi, 2016.) Considering that one person in federal prison costs $23,476.80 annually in 1998 (Welch, 2003), the older inmates will cost twice that amount for health care needs (De Giorgi, 2016). Clearly, mandatory minimum sentences are ineffective, economically unsustainable, and perpetuate inequality in underprivileged families and communities (Snyder, 2015.) As mentioned, not only are there issues of racial discrimination, unfair sentencing laws, and an overwhelming number of poor people in prison—but also there is an overwhelming number of mentally ill prisoners. For instance, almost 25% of inmates have a serious mental illness (Sabol et al., 2009.) And, 70% of juveniles in the justice system have mental health disorders, while 20% of those with severe disorders renders them unable to function (Sabol et al., 2009.) If you don’t go into prison with a mental disorder, you are still psychologically impacted within the prison (NeSmith, 2014.) The system is not correcting or reforming a person’s behavior when they’re in prison (Belknap, 2010.)
Additionally, mandatory minimum sentences are applied to child pornography offenses (Erikson, 2014.) Although public opinion is to punish sex offenders and child pornographers harshly, this type of crime stems from a mental illness (Houtepen et al., 2014), including violent crimes which are associated with a history of childhood maltreatment (Dargis et al., 2015.) Moreover, childhood maltreatment may set the context for at risk youth to develop conduct disorders and antisocial personality disorder (Dargis et al., 2015.) Particularly a history of sexual abuse is a risk factor for conduct disorder (Dargis et al., 2015.) The demographic for offenders of a child pornography charge are those who are predominantly white, employed, and above average intelligence—where 30% had completed higher education (Houtepen et al., 2014.) Interestingly, those white, male child pornographers and sex offenders, are often framed as needing counseling, whereas people of color doing nonviolent offenses do not receive an alternative to incarceration. This further illustrates White privilege where the criminal justice works for them when they are the offender or the victim. As previously mentioned, Black men are disproportionately wrongfully convicted in cases where the crime is rape and the victim is a White female (Smith, E. & Hattery, A. J. (2011.)
There is high probability that early therapeutic intervention will reduce and prevent criminal behavior (Dargis et al., 2015.) But once again, White offenders are often framed as mentally ill and needing rehab or drug court, in contrast to people of color who are not given this option (Van Cleve, 2016.) Prison is not paying for the victim’s reparations for those who experienced harm when they need resources for them to heal. For instance, when there is a victim in a crime committed, the offender pays LFOs for restitution to the victim, but restitution is sometimes provided after the county clerks take half for the collection fee to pay for the system itself (Harris, 2016.) Can we socialize people not to do violent crime? Further discussed are the ways to reduce crime and recidivism with the information provided in the paper.
REDUCING CRIME & RECIDIVISM
Within the state of release alone, an estimated 72% of prisoners were re-arrested within 5 years, and 77% for out-of-state (De Giorgi, 2016; Durose et al., 2015.) This is important because most are not treated for their psychological problems. There are 2 million people in prison, and if we are to account for people in local jails, and on parole or probation, that number rises to 7 million (De Giorgi, 2016.) Since the 1980s, mandatory minimums increased the total prison population by 116%, and 532% for the population of incarcerated drug offenders (Lamb, 2015.) Considering that most mandatory minimums apply to drug offenses, with the decriminalization of drugs or drug treatment programs as an alternative to incarceration, this will reduce drug addiction, reduce crime and recidivism (Snyder, 2015.)
Still, these early interventions and treatment programs are usually offered for Whites, because White juveniles and adults are framed as having a mental illness when doing crime, whereas Blacks are framed as a gangster (Van Cleve, 2016; Ward et al., 2016.) Thus, a system that sets up children to fail and is imprisoning those with mental illness, the system is not helping to prevent them from criminal activity, poverty, and other issues, it is perpetuating the cycle. Treatment for the various offenders provided should adopt the Risk-need responsivity model where treatment is proportionate to offender’s risk of reoffending, as well as intervention and cognitive-behavioral and social learning methods (Zara & Farrington, 2016.)
CONCLUSION
First, mandatory minimum sentences are not an efficient tool in protecting the public, reducing crime, and it is merely a way to perpetuate the risk factors for incarceration and getting trapped in the system. Secondly, solutions can be facilitated once it is understood that there is an underlying social and racial control encoded in the criminal justice system. Third, in America, most crimes are victimless (Van Cleve, 2016.) Based on the research, there is a disproportionate population within the prison system that are poor, people of color with mental illness and addiction. From here, we uncover that these risk factors are all institutionalized and systematic forms of oppression. The prison system entraps the most vulnerable people that need necessities, treatment, and medical help. Once incarcerated, you are branded a felon, thus lose rights to vote, apply for student loans, apply for food stamps, and much more.
Finally, there is a national conversation about legalizing or decriminalizing drugs with an emphasis on rehabilitation and therapy. This means less people in prison and reduced sentencing means less tax money going towards oppressive laws, while giving more to restorative or rehabilitative services and social programs. Not only is abolishing mandatory minimums a bi-partisan proposal, but there has been a long-standing argument against mandatory minimums. Further reforms will need to be implemented to abolish the racial disparities, establish judicial discretion, offer alternatives to incarceration such as emphasize on rehabilitation, therapy, including job training, and job development in urban centers (Snyder, 2015.) Changes will work to make judges, attorneys, and other officials representative of the population rather than a racialized court room (Van Cleve, 2016.) Additionally, reparations can take the form of social programs under the direct authority and control of the community (De Giorgi, 2016), to provide solutions to the racial disparities of the criminal justice system, health care, wages, skills, and education. We cannot continue to be a culture of punishment, or a paradigm of killing. Instead we need to facilitate a culture of empathy, love, and acceptance.
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