What are Mandatory Minimums?

When a person is convicted of a crime, the court has to then determine and order their punishment. In the federal court system, judges base their sentencing based on Federal Sentencing Guidelines, mandatory minimum sentencing, or a combination of both for the particular case. Sentencing guidelines are quite detailed and involve an examination of many different factors such as criminal history, supposed danger the defendant poses to society if free, the defendant’s personal qualities, and more. They are also guidelines, not requirements, so judges can, with justification, choose to go above or below what guidelines would recommend. Mandatory minimums, however, are more strict, and enforce a minimum sentence that a judge does not have discretion to change despite their legal opinion. Mandatory minimums for various crimes are determined by laws passed by Congress, and only Congress can amend these laws, not judges or the US Sentencing Commission.

The reasoning behind mandatory minimums may seem sound, as they create a standard across the country for how certain crimes should be punished. They also can go hand-in-hand with statutory maximums, which follow the same principles but impose a maximum penalty courts can sentence. However, the way these minimums have been implemented and imposed by congress are quite controversial. In this article we will address what makes them controversial and efforts to change this aspect of our criminal justice system.

courtroom, where defense attorneys will present bars and defenses to prosecution

Arguments Against Mandatory Minimums

There are many reasons why some people consider mandatory minimum sentencing to be a source of injustice. Some reasons are discussed below.

1. Sentencing is Often Too Severe

Many legal scholars and even judges have argued that mandatory minimums are often too severe for certain crimes. The key purpose of sentencing is supposed to be to protect public safety from dangerous individuals, but it is often the case with mandatory minimums that they do not help accomplish this. For example, it is all too common that non-violent drug offenders receive extremely long sentences by virtue of mandatory minimum charges stacked together for separate drug charges. In one such story, a woman named Hamedah Hasan received a life sentence for a first-time nonviolent drug offense under circumstances that most reasonable compassionate people would see as forgivable. While fleeing an abusive relationship, she stayed with her cousin who coerced her into running errands for his drug conspiracy in exchange for his protection. Due to the combination of several crack cocaine charges and mandatory minimums, her sentence stacked up to life. The sentencing judge at the time, Richard G. Kopf, knew this was completely wrong, but had no choice when faced with mandatory minimums. His only course of action was to find other ways to fight for her freedom, including writing letters to the president at the time to commute her sentence. After retroactive changes to the sentencing laws, she was freed in 2012, but had still served 18 years in prison, losing the chance to watch her own children and then grandchildren grow up.

2. Harsh Minimums Give Prosecutors too much Leverage

While the damage this causes to individuals faced with mandatory minimums is immense, it also carries a significant burden on our justice system to impose such harsh mandatory minimums. In an ideal and fair criminal justice system, a person who is obviously guilty of a crime would accept responsibility and plead guilty, while a person who is innocent will maintain their innocence.

This however, is often not the case in the US justice system, and mandatory minimums are a contributing factor to this problem. If you have ever wondered why an obviously guilty person would plead not guilty, one reason could be that while they might personally accept guilt, they do not believe the mandatory minimums are a fair punishment. This problem carries over into how prosecutors interact with defendants, guilty or innocent. On one hand, innocent people often get coerced by prosecutors to plead guilty to a lesser crime, only because if they do not they may face a harsher sentence for a greater crime that cannot be fought. On the other hand, these pleas could be offered to defendants who are likely guilty of the greater crime, in an effort to reduce the workload and cost of pursuing a trial. In essence, they contribute to a system where innocent people are afraid to fight incorrect charges, while guilty people are given an opportunity to plead to charges that are less serious than what they are actually guilty of. 

3. Minimums Create Racial Disparities

Mandatory minimums are not enforced for all kinds of crimes. They’re most notably in place for drug offenses, as well as some gun crimes, child pornography offenses, and some economic offenses. The way they have been implemented for drug offenses in particular have contributed to a great deal of excessive incarceration of Black and Latin American individuals. There have been findings that black men are 5 times more likely to face charges with mandatory minimums than the average defendant. Also, the way mandatory minimums are structured has often imposed a harsher sentence on racial minorities for similar crimes. The most notable example is the disparity in mandatory minimums between crack cocaine and powder cocaine. People arrested for crack cocaine distribution were far more likely to be black, while powder cocaine was more commonly used among wealthier white people. Mandatory minimums imposed a 100-1 disparity in sentencing for crack vs. powder cocaine, such that possession of just 5 grams of crack cocaine would trigger the same minimums as 500 grams of powder cocaine. Most drug addiction experts agree that crack cocaine is slightly more dangerous to a person than powder cocaine, but certainly not nearly the extent of the disparity in mandatory minimums. Many activists have argued that these disparities have been primarily motivated by targeting poorer urban communities of color rather than any actual difference in harm these two drugs can cause.

4. They Undermine Court's Discretion and Other Forms of Expertise

Determining what a just punishment is for a certain crime requires a balance between discretion and individual assessment of a particular case, and expertise in various fields on how best to protect the public from harm. While court discretion can vary greatly across the country, it does have the benefit of allowing unique circumstances to influence how a person is or is not punished that the court deems fair. When it comes to juries especially, this discretion and individual consideration helps jurors put their trust in the process and in making decisions on sound interpretation of the law. With mandatory minimums in cases like Hamedah Hasan’s discussed above, judges and jurors alike can feel conflicted because they may agree that a person is guilty but struggle to justify contributing to extremely harsh punishments they do not agree with.

Expertise such as legal, medical, public safety and psychology scholarship play a big role in informing the sentencing guidelines and other elements of our justice system, but are undermined when mandatory minimums are imposed. Using the crack vs. powder cocaine example described earlier, medical and public safety expertise would recommend a similar punishment as crack is only slightly more dangerous than powder cocaine, but mandatory minimums have not reflected this.

These minimums also ignore broader expertise in public safety and criminology that seek to understand what methods best address societal problems and can prevent crime. Mandatory minimums shift the focus of our justice system towards imprisonment, which is expensive and does not necessarily make the public more safe or even deter offenders from re offending once they are released.

Will Mandatory Minimums be Repealed?

Mandatory minimum laws have been amended by congress on several occasions, but overall are still in tact in ways that many activists, judges, and experts do not agree with. Today, there are several civil rights groups who are working to abolish mandatory minimums completely, or push congress to pass reforms. In congress, a bill has even been introduced by Congressional representative Maxine Waters (D-CA-43), which if enacted would repeal mandatory minimums for all federal drug offenses, except continual criminal enterprise (which applies to highest level drug traffickers). There have been other similar bills addressing gun crimes and other matters tied to mandatory minimums. At the time of writing this article, these bills have yet to be voted on in congress and there is no telling at this moment when and if they will be.


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