Summary of the Problem:  In response to public fears about the growing crack cocaine epidemic and some high-profile cocaine-related deaths, Congress in the mid-1980s adopted mandatory minimum prison sentences for drug crimes. These were expanded in following years to apply to a growing number of offenses, including gun offenses, sex crimes, identity fraud, and some crimes of violence. 

            These harsh sentencing laws have not achieved their objectives, and their failure has come at a very high price in both economic and social terms. For example: 

• Prison alone is not the most cost-effective way to increase safety. Valuable resources are being wasted on expanding prison capacity when other methods of treating offenders could eventually reduce recidivism and the number of people incarcerated.
• Mandatory minimums were designed to increase public safety through deterrence and incapacitation. They have not proven more effective than sentences that are proportionate and individualized.
• Mandatory minimums were designed to incapacitate drug kingpins and deter others from selling or using drugs. They have done little or nothing to thwart the illegal drug trade.
• Many mandatory minimum-bearing statutes overlap with state criminal code provisions. The federalization of crime is inconsistent with the long-standing principle that law enforcement and crime prevention are largely state functions.
• Mandatory minimums eliminate judicial discretion and prevent courts from fashioning sentences that include individualized consideration and comply with the purposes of sentencing set forth in the federal sentencing statute, 18 U.S.C. § 3553(a).  

            Because they so often fail to achieve legitimate goals, mandatory minimum laws should not be enacted without significant prior congressional consideration or the ability to review their effectiveness.  We suggest that all new mandatory minimum laws, therefore, be subject to a five-year sunset provision. 

            A sunset provision would shine the light of review and accountability on criminal justice legislation.  It would force Congress to rethink and reargue the value of the law, including reviewing cost and benefits.  Not only is this a fairness measure, but it is a good government measure that will give Congress and the public the chance to evaluate the effectiveness of mandatory minimum legislation.

Proposed Solutions:           

            Legislative Changes:  A sunset provision on new mandatory minimums may take one of two forms: a straight sunset provision law or the creation by Congress of a sunset commission that will offer recommendations to Congress ahead of reauthorization of mandatory minimum legislation. 

            A sunset commission would review and provide recommendations to retain, refine, or end a mandatory minimum. The commission would provide recommendations based on analysis of whether a mandatory minimum has achieved its goals.  If Congress opted to create a commission, Congress would need to clarify in legislation the following: 

• Establish criteria for appointing the commission;
• Set the length of the commission's term;
• Clarify coordination with USSC and DOJ;
• Outline powers of the commission;
• Establish criteria for reviewing mandatory minimum sentences;
• Give commission oversight and rule-making authority subject to notice and public comment; and
• Give commission oversight of existing as well as new mandatory minimum laws.                      

            Congress may also decide to apply a similar commission review requirement to existing mandatory minimums. If deemed feasible, we recommend starting first by addressing those nonviolent, first-time or low-level offenders who are affected by mandatory minimums as a matter of political expediency. 

            Legislative Appropriations (Solutions w/ Funding Requests):  A commission would require funding authorizations and appropriation.  Sunsetting mandatory minimums should reduce prison costs.

Jurisdiction: 

            Legislative Branch:  House and Senate Judiciary Committees

Background: 

            Legislative Branch:  Congress has not applied a sunset provision to mandatory minimums nor have they eliminated existing mandatory minimums.  In 1994, Congress created a safety valve designed to waive the mandatory minimum for the drug offenders who are subject to them but who meet a set of criteria.  The safety valve is limited to individual sentencing.  It does not allow for the type of serious review that would be afforded by the creation of a sunset provision.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies:  Families Against Mandatory Minimums, American Bar Association, Federal Public and Community Defenders, The Sentencing Project, Independence Institute, NAACP Legal Defense and Educational Fund, United States Judicial Conference, National Association of Criminal Defense Lawyers, the Center for Community Alternatives, International Community Corrections Association, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, and the Constitution Project.

            Potential Opposition:  OMB Watch 

            Public Opinion:   A 2007 ACLU/BRS survey found that 63 percent oppose mandatory minimums (37 percent strongly oppose).  A 2001 ACLU/BRS survey found that 61 percent oppose mandatory minimums.  Opposition has remained relatively constant. In August 2008, Families Against Mandatory Minimums released the findings of a public opinion poll it commissioned about public attitudes toward mandatory minimums. The poll, conducted by Strategy One, shows widespread support for ending mandatory minimum sentences for nonviolent offenses and that Americans will vote for candidates who feel the same way.  

• Fully 78 percent of Americans (nearly eight in 10) agree that courts - not Congress - should determine an individual's prison sentence.
• Six in 10 (59 percent) oppose mandatory minimum sentences for nonviolent offenders.
• A majority of Americans (57 percent) polled said they would likely vote for a candidate for Congress who would eliminate all mandatory minimums for nonviolent crimes.

Experts:   

• Mary Price, Families Against Mandatory Minimums
• Professor Stephen Saltzburg, George Washington University Law School
• Federal Public and Community Defenders Sentencing Resource Counsel

For Further Information:   

Families Against Mandatory Minimums/Strategy One poll on mandatory minimums (August 2008), available at http://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf

Families Against Mandatory Minimums, Correcting Course:  Lessons from the 1970 Repeal of Mandatory Minimums, available at http://www.famm.org/Repository/Files/8189_FAMM_BoggsAct_final.pdf

United States Sentencing Commission, Special Report to Congress:  Mandatory Minimum Penalties in the Federal Criminal Justice System (August 1991), available at http://www.ussc.gov/r_congress/MANMIN.PDF 

American Bar Association, Justice Kennedy Commission, Report with Recommendations, available at www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf - 2004-08-12 

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf