Reforming Mandatory Sentences for Non-Violent Drug Offenders with Drug Courts

There are many aspects of our criminal justice system that need reforming whether it be our court system or our correction facilities, there is always room for improvement. One specific area that should be a concern of the people in our country is the use of mandatory sentences for nonviolent drug crimes. Throughout past presidencies, the war on drugs has grown and the need to punish major drug crimes has become a big part of political agendas. To battle drug crimes, mandatory sentences have been put in place.

Mandatory sentences are set sentences based on the characteristics of drug crimes. Characteristics include the type of drug found, the amount of the drug, any criminal history of the offender, and if the crime committed involved violence of any kind. These set sentences take away the authority from judges and give it to the prosecutors. Prosecutors can choose to present charges that carry a mandatory sentence penalty or they can choose a different charge to avoid that penalty, but the judges are forced to ignore any major details of the circumstances around a crime which stops them from using their authority as a judge to alter a sentence.

In some drug cases, mandatory sentences seem fair, if you are looking at major kingpins or cartels. But, non-violent drug crimes with amounts that just barely exceed the needed amount for a mandatory sentence penalty are far from fair and a lot of times the punishment does not fit the crime.

Our system is based on the idea that everyone has a right to a fair trial and a just sentence, but mandatory sentencing takes away any power from a judge regarding sentencing.

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By forcing the judge to ignore the specific facts of every case, mandatory sentences reduce the fairness that each individual is said to be granted by the constitution. Not only does the punishment not fit the crime but, putting non-violent drug offenders in prisons for long periods does nothing but jam up our prison system creating overcrowding issues. As time has passed, many political leaders have pushed for reform when it comes to mandatory sentences. The Bush and Obama administrations both took approaches to reform and after evaluating the needs for non-violent drug offenders, drug courts seem to be a very cost-efficient and beneficial approach. While the research is limited, the studies that have been conducted have shown profound results regarding drug courts’ effectiveness for non-violent drug offenders and low recidivism rates. If ideas and opinions continue in the direction, they have gone in the past few presidencies, our justice system could see major reform regarding mandatory sentences. But leaders have not always been against mandatory sentences. Mandatory sentences were brought into political agendas in 1951 with the Boggs Act, presented by Louisiana democrat Hale Boggs. This act was signed into law by Harry Truman. The Boggs Act is known for the introduction of mandatory sentences for first-time marijuana offenses which under this act carried a minimum sentence of 2 to 10 years and up to $20,000 in fines. As president Richard Nixon’s “war on drugs” was introduced to the people and the Drug Enforcement Agency (DEA) was created. In 1986, Ronald Reagan signed the Anti-Drug Abuse Act that funded prisons, drug education, and treatment.

Its main goal focused on mandatory sentences. By 1993 the attitude that most Americans had was that prisons were for punishing not rehabilitating. This attitude carried over to Bill Clinton’s presidency and in 1994 the Violent Crime Control and Law Enforcement Act was implemented. This act increased treatments and gun safety laws and helped fund prisons but most importantly it pushed for harsher sentences and three strikes laws. With harsher sentences growing, so were prison populations. But new administration brought new ideas and stances. In 2004, Bush’s administration introduced the Second Chance act. The Bush and Obama administrations focused on a reintegration approach and by 2010 Obama signed the Fair Sentencing Act. With Eric Holder pushing for a smart crime agenda, focus on treatment for non-violent drug offenders was in place rather than immediate incarceration. By 2014, more republicans like Texas Governor Rick Perry and Rand Paul began to join the push for reform regarding mandatory sentences. In 2016 Democratic nominee for Alabama’s U.S. senate seat, Ron Crumpton was quoted regarding mandatory minimum sentences and said, “one of the biggest social injustices the American government has ever perpetrated against its people is the passage of laws that impose mandatory minimum sentences” (“The pressing need to change mandatory minimum sentences, 2016”). Although we see both sides of politics engaging in this reform, if we fast-forward to today, we see that some political figures still hold the idea that mandatory sentences are for the good. When Jeff Sessions took his place as attorney general during Donald Trump’s presidency, Sessions voiced his support for strict punishment including mandatory sentences. The need for mandatory sentence reform is crucial to ensure fair sentencing. In 2016, the United States Sentencing Commission released a report on mandatory sentencing and in that report, it states that “56% of offenders convicted of an offense carrying a drug mandatory minimum penalty faced a mandatory penalty of ten years or greater” (Mandatory minimum penalties for drug offenses in the federal criminal justice system, 2016). The average sentence was more than double that compared to those without mandatory penalties. Another statistic from the United States Sentencing Commission stated that “58.8% who remained subject to a drug mandatory minimum penalty received a sentence above the statutorily required minimum” (Mandatory minimum penalties for drug offenses in the federal criminal justice system, 2016).

The statistics regarding drug offenses sentenced to mandatory sentences are eye-opening and certain characteristics can contribute to a mandatory sentence. Prior convictions can drastically add to the length. While the offender might face a five-year mandatory sentence, if they have any prior felony offenses, they could ultimately be looking at ten years or life. The mandatory sentences are also based on the number of drugs. For example, 100 g of heroin or 100 kg of marijuana results in a minimum of five years whereas 1 kg of heroin or 1,000 kg of marijuana is an automatic ten-year minimum (Mandatory minimum penalties for drug offenses in the federal criminal justice system, 2016). While some factors go into the minimum to maximum penalties, those penalties are set in stone. The mandatory sentences were created to deter trafficking by implementing severe sentences for major players in the drug trade but in today’s justice system we see them being given to low-risk, non-violent drug offenders. While many argue the unfairness of these sentences, there are arguments for their effectiveness. These include the prevention of the offender from future crimes, preventing unjust sentences (e.g. lenient sentences for serious crimes), decreasing any biases, and protecting society for an extended amount of time. But one could look at the many mandatory sentences that have been handed down to non-violent drug offenders and conclude that mandatory sentences do not always prevent unjust sentencing and in certain cases, there is nothing to protect society from.

For example, in 2002, a woman in Sunrise, FL, Cynthia Powell, who had no prior record was arrested for selling 35 pills containing hydrocodone to an undercover cop. According to Families Against Mandatory Minimums (FAMM), Powell was not a dealer or a drug user, the pills were a prescription for her diabetes. She was just looking to make an extra $300.00. Her charges were trafficking over 28 grams (less than 30 kilos) and possession with intent to sell or deliver a prescription drug. The 35 pills weighed exactly 29.3 grams, putting her 1.3 grams over the weight needed to guarantee a 25-year mandatory minimum. She was not shown any leniency and received the mandatory sentence of 25 years. In reality, Powell broke the law, but she was not a threat to society and her 25-year sentence did nothing for others’ safety and only shows how desperately mandatory sentences reform is needed (“Cynthia Powell: 25 Years for 35 Pills | FAMM”, 2018). Reforming mandatory sentences will take all sides of politics to get it right and by reforming, something has to be put in place to address the crimes committed by non-violent drug offenders. Drug courts are a good solution and the data available proves that. Drug courts focus on adult and juvenile offenders and parents with child welfare cases with drug and alcohol problems. Drug courts include adult courts, juvenile courts, family courts, veteran’s treatment courts, reentry courts, and DWI courts. They also use certain criteria for allowing an individual to utilize their treatments available. An offender must be 18 years or older and must not have a violent offense on their record. Drug courts use drug and alcohol rehabilitation, drug testing, and community-based substance programs. They also monitor the risks and needs of the offender to help ensure a positive outcome (“Drug Courts | National Institute of Justice”, 2018). But the question is do drug courts work? Empirical evidence has shown “that drug courts are effective in their quest to reduce recidivism among participants as well as improving the life chances of clients” (Kalich & Evans, 2006).

Studies show lower recidivism rates and lower costs compared to incarceration. Many resources address the difficulty in measuring the overall effectiveness of drug courts but the few concluded studies that have been effectively carried out show positive outcomes and low recidivism rates. One study done by the National Institute of Justice called the Multisite Adult Drug Court Evaluation (MADCE) focused on recidivism rates, programs, seem crueloutcomes, and cost benefits. This longitudinal study was carried out over five years and sampled 1,000 drug court and non-drug court probationers from 29 jurisdictions (rural, urban, and suburban areas) across eight states. There were 23 drug courts and 6 comparison groups evaluated. The study focused on how the programs implanted short-term treatment to produce long-term outcomes like less drug use and less criminal behavior. Data collection consisted of interviews, records of treatment, and drug detection, staff interviews, and budget analysis. Interviews were conducted at the beginning, the sixth-month mark, and the eighteenth-month mark along with an oral fluid sample. At the eighteenth month mark, oral samples showed significantly lower drug use than at the beginning of the study, dropping from 46% to 29%, and those who self-reported drug use also reported that it was frequently less than at the start of the program (Rossman et al., 2011). The study also showed a reduction in criminal behavior conducted by the court participants with numbers dropping from 88.2% to 43% (Rossman et al., 2011).

Not only did the study show less drug use and criminal behavior but the participants were also less likely to lack employment, educational and financial means. The studies that are available regarding the effectives of drug courts yield the same results: they work. Drug courts are cost-effective and treatment-focused. They reduce prison populations and help keep families together. By imposing mandatory sentences, not only does the individual face long years in prison for a non-violent drug crime but families face separation and children go without a parent or parents. Family drug courts have been found to “improve treatment outcomes for parents and promote family reunification” (Burrus et al., 2012). Not only does the MADCE study show positive results for drug courts but so does the Baltimore City Program in Maryland. The overall goal of studying the Baltimore City Program in Maryland was to address substance abuse issues with parents. The study followed 400 child welfare cases, half being a comparison group. The findings showed treatment

outcomes and child welfare improvement. Parents entered treatment, stayed in treatment longer, and completed more of it than those not in drug court programs (Burrus et al., 2012). Data shows that drug courts help individuals to better themselves and help keep families together during the treatment, something that cannot occur when mandatory sentences are given. Aside from the positive data shown for drug courts replacing mandatory sentences for non-violent drug offenses, one could argue that lengthy sentences for low-risk crimes violate an individual’s eighth amendment rights. The eighth amendment lays out the rights against excessive bail, fines, and cruel and unusual punishment. An excessive sentence, even if it is within the statutory range, is considered excessive if “it is grossly disproportionate to the seriousness of the offense or imposes needless or purposeless pain and suffering” (McNelis, 2017).

Life sentences without parole for non-violent drug crimes seem seemcruel and unusual when we see far too many murderers or rapists getting parole and a second chance at life. Not only is there empirical data arguing against mandatory sentences for non-violent drug crimes and support for drug courts, but the argument can be made that mandatory sentences violate the rights that are given to individuals by the eighth amendment. On the other side of the argument, some oppose drug courts. Drug users always face relapse and if relapse occurs while participating in a drug court program, the offender is sent to prison and could face more time than if they would have just pled guilty and received a sentence, to begin with. This results in a waste of resources and taxpayers’ money. Drug courts also give offenders more freedom to engage in criminal behavior.

Although relapse and reoffending are possible, the data shows that drug courts do work and that recidivism rates are low when the program is completed correctly. In conclusion, there are arguments against both mandatory sentences and drug courts. Mandatory sentences impose sentences for non-violent drug crimes that could be addressed in drug court programs. Drug courts have shown to be effective and cost-efficient. They help to provide treatment to drug offenders who need treatment rather than prison time and they work to keep families together all while protecting the rights of the individual. History shows the urge for reform and in today’s administration, aside from former attorney general Jeff Sessions, President Trump is working on a bipartisan criminal justice reform bill called the First Step Act to address mandatory sentences and place some power back into the hands of judges.