Mandatory minimum sentencing emerged in the 1980s during the "War on Drugs" and led to a dramatic increase in the US prison population. The prison population grew 800% between 1980-2013 due to mandatory minimums for drug offenses, disproportionately impacting minorities. Recent bills like the Smarter Sentencing Act and SAFE Justice Act aim to reform mandatory minimums by increasing judicial discretion and reducing some drug sentence lengths, though opposition remains.

1. Can’t Judge a Crime by its Mandatory Minimum:
Examining the Use of Mandatory Minimum Sentencing in the American Justice System
Ryland Robinson
Washington DC Internship
3 August 2016

2. Robinson 2
On August 3rd of 2016, President Barack Obama commuted the sentences of 214 federal
prisoners, the largest single issue of prisoner commutations in over a century.1
The majority of
those 214 individuals were serving time for drug-related offenses, and all were classified as
“non-violent offenders” by the US Department of Justice.2
This move reinforced the President’s
push for a “smarter and more equitable criminal justice system,” and while it was the most
significant single day commutations during his tenure, it was not unprecedented.3
President
Obama has commuted the sentences of 562 inmates in the eight years he has been President,
more than the last nine presidents combined.4
This leads to the question as to why President
Obama is reducing the sentences of so many individuals?
To answer it simply, American prisons are overcrowded. In July of 2015, President
Obama stated, “we should not be tolerating overcrowding in prison” and made it a point to
address the issue.5
He was not alone in this push either; in fact, politicians from both sides of the
aisle have criticized the current state of the American criminal justice system.6
Politicians are
quick to draw attention that, while the population of the United States is equal to about 5 percent
of the world’s population; our prison population makes up around 25 percent of the global
number of prisoners.7
Many blame this inflated prison population on the emergence of
mandatory minimum sentencing.
Mandatory minimum sentencing is unlike standard sentencing in which the judge could
determine precisely what type of punishment would best be suited for the individual on a case-
1
Eggleston, Neil. “President Obama Commutes the Sentence of 214 Additional People.” White House (2016)
2
Ibid
3
Ibid
4
Ibid
5
Wheaton, Sarah. “Obama Pushes for Reduced Prison Sentences.” Politico (2015)
6
John, Arit. “A Timeline of the Rise and Fall of ‘Tough on Crime Drug Sentencing.” The Wire (2014)
7
Zuckerman, Motimer B. “Get a Little Less Tough on Crime.” US News (2014)

3. Robinson 3
by-case basis, such as fines, parole, or jail time.8
Mandatory minimum sentencing, however, is a
universal punishment decided upon by Congress for a particular type of crime, regardless of
circumstance.9
This policy first saw widespread implementation in the 1980s during what was
known as the “tough on crime” era in the criminal justice system and was designed to aid the
war-on-drugs by harshly punishing those who broke the laws and acting as a deterrent for
crime.10
Advocates against mandatory minimum sentencing argue that the policy has unfairly
imprisoned too many non-violent people, with minorities being incarcerated at higher rates than
Whites.11
They further advocate that mandatory minimum sentences do not do anything to
reduce crime and increase the recidivism rate of prisoners.12
Defenders of the policy, like Senator
Tom Cotton of Arkansas, claim that there is an “under-incarceration problem.”13
They claim that
crime has dropped every year nationwide thanks to mandatory minimum sentencing and its
ability to lock up the worst of the criminals.14
However, is this true?
The question is, are mandatory minimum sentences an effective criminal justice policy?
To further explore this question, an essay is proposed to, first, carefully examine just how
mandatory minimum sentencing emerged in the United State Justice System. Second, explore the
effects it has had on a national scale since its emergence, and third, this essay will conclude with
an analysis of current mandatory minimum sentencing legislation to provide a coherent outlook
to the future of sentencing in the United States.
8
“Sentencing 101.” Families Against Mandatory Minimums (2016)
9
Ibid
10
John, “A Timeline of the Rise and Fall of ‘Tough on Crime Drug Sentencing.”
11
Zukerman, “Get a Little Less Tough on Crime.”
12
Ibid
13
Gass, Nick. “Sen. Tom Cotton: U.S. has ‘under-incarceration problem.’” Politico (2016)
14
Otis, William. “Like Less Crime? Thank Mandatory Minimums.” US News (2013)

4. Robinson 4
To fully understand the emergence of mandatory minimum sentencing as a widespread
criminal justice policy, it is essential to examine how America entered the so-called “War on
Drugs.” Mandatory minimum sentencing for drug crimes was first established by the Boggs Act
of 1951, which dictated a two year minimum for possession of cocaine, heroin, or cannabis with
increasing severity for repeat offenses.15
Twenty years later, Republican President Richard
Nixon, declared an official war on drugs by proclaiming drug abuse as “public enemy number
one in the United States.”16
It was not until 1986 that Democratic controlled Congress introduced
and passed the Anti-Drug Abuse Act of 1986 in which long mandatory minimum sentences
became a way to be truly tough on drugs.17
This momentous criminal justice bill was created and
passed largely as a result of the death of one college basketball star, Len Bias.18,19
Kevin “Len” Bias was an American basketball player for the University of Maryland who
died of a crack cocaine overdose just two days after of being drafted into the National Basketball
Association (NBA) by the Boston Celtics.20
His widely publicized death sparked a national
outcry against drug abuse right before the midterm congressional elections. Acting on this shift
in public opinion, the Speaker of the House Tip O’Neill (D-MA), using his influence as Speaker,
spearheaded the Anti-Drug Abuse Act.21
The bill became law in just four months, bypassing
hearings, consultation from federal agencies, and other red tape that would traditionally slow
15
Tilem & Associates. “A Brief History of Federal Mandatory Minimum Sentencing For Federal Drug Offenses.”
New York Criminal Attorney Blog (2009)
16
Frontline. “Thirty Years of America’s Drug War: A Chronology.” PBS (2016)
17
Schuppe, Jon. “30 Years after Basketball Star Len Bias’ Death, Its Drug War Impact Endures” NBC News (2016)
18
Ibid
19
John, “A Timeline of the Rise and Fall of ‘Tough on Crime Drug Sentencing.”
20
Schuppe, “30 Years after Basketball Star Len Bias’ Death, Its Drug War Impact Endures”
21
Ibid

5. Robinson 5
down legislation as various government departments work to analyze the full effect of an
individual piece of legislation.22
What were the effects of the Anti-Drug Abuse Act and the policy it promoted? In the
years that followed, Congress continued to strengthen and expand the use of mandatory
minimums through several different acts and amendments.23
By the early 1990s, polls showed
that the majority of Americans supported a prison system built to punish rather than
rehabilitate.24
In 1994, Democratic President Bill Clinton, extending the agenda for the “tough
on crime” movement, signed the Violent Crime Control and Law Enforcement Act further
reaffirming mandatory minimum sentencing.25
The policy was most recently expanded in 2003
when Congress created or increased nearly 40 mandatory minimum sentences.26
The policy proved to be a success in the political arena but examining its effects on the
criminal justice system leaves more room for debate on its effectiveness. Following the
implementation of mandatory minimum sentences, the US prison population skyrocketed by 800
percent between 1980 and 2013, overcrowding the prison system.27
In a 2014 testimony to
Congress, Charles Samuels Jr., Director of the Federal Bureau of Prisons, reported that “system-
wide, we are at 37 percent over capacity.”28
With this increase in prisoners came an increase in
costs for the prison system. From 1980 to 2014 it was estimated that US correctional spending
22
John, “A Timeline of the Rise and Fall of ‘Tough on Crime Drug Sentencing.”
23
Evan Bernick and Paul Larkin, “Reconsidering Mandatory Minimum Sentences: The Arguments for and Against
Potential Reforms,” The Heritage Foundation (2014)
24
John, “A Timeline of the Rise and Fall of ‘Tough on Crime Drug Sentencing.”
25
Ibid
26
Ibid
27
Zukerman, “Get a Little Less Tough on Crime.”
28
U.S. Congress, House of Representatives, Federal Bureau of Prisons FY 2014 Budget Request: Hearing Before
the Committee on Appropriations, Subcommittee on Commerce, Justice, Science and Related Agencies, 113th Cong.,
1st
sess., 2013, 318.

6. Robinson 6
had more than tripled.29
Recidivism rates have also increased nationally for drug offenders. In
1983, 50.4 percent of drug offenders were rearrested within three years; by 1994, that rate
increased to 66.7 percent.30
The rate of drug use in the United States also increased too, in fact, a
report in 2014 by the National Research Council concluded that the use of mandatory minimum
sentences “have few if any deterrent effects” negating the express purpose of the policy.31
Examining the demographics under a mandatory minimum policy provides further
perspective on its effects. In June of 2016, the Federal Bureau of Prisons listed nearly half of all
federal prisoners were serving time for drug-related offenses compared to 1980, where that
number was just under 22 percent.32,33
Upon additional inspection of the demographic, a 2015
report by Urban Institute found that 56 percent of those imprisoned for drug offenses had no
history of violence and 26 percent had no previous criminal history.34
Furthermore, the study
found that only 14 percent were considered a “leader” in the offense and less than 14 percent
were sentenced for “using violence, making a credible threat to use violence, or directing the use
of violence during the offense.”35
Racial criticism also followed the policy, pointing to the ethnic
disparities between inmates. According to the NAACP, there are, “five times as many Whites are
using drugs as African Americans, yet African Americans are sent to prison for drug offenses at
29
Picchi, Amiee. “The High Price of Incarceration in America.” CBS Money Watch (2014)
30
Bureau of Justice Statistics. “Reentry Trends In The U.S.” Office of Justice Programs (2016)
31
Public Safety Performance Project. “Federal Drug Sentencing Laws Bring High Cost, Low Return.” The Pew
Charitable Trusts (2015)
32
“Statistics – Inmate Offenses.” Federal Bureau of Prisons (2016)
33
“Fact Sheet: Trends in U.S. Corrections” The Sentencing Project (2015)
34
Charles Colson Task Force on Federal Corrections. “Who Gets Time for Federal Drug Offenses? Data Trends and
Opportunities for Reform.” Urban Institute. (2015)
35
Ibid

7. Robinson 7
ten times the rate of Whites.”36
As of 2001, for every six African American males in the United
States, one has been incarcerated.37
Today, Federal Law dictates, any person found guilty of selling 28 grams of crack
cocaine faces a minimum of five years in prison, regardless of the opinion of the judge.38
That
may be changing soon. In light of the tremendous social and financial costs, public opinion has
turned against mandatory minimum sentencing. In February of 2016, a nationwide poll was
conducted and found that 79 percent of the American public, 78 percent from democratic voters
and 73 percent from Republican voters, supported ending mandatory minimum sentencing for
federal drug cases.39
In response, Congress, with general support from the President, has
introduced two notable bills in the 114th
Congress that would work to soften mandatory
minimum sentencing and reform the criminal justice system.
The first bill, called the Smarter Sentencing Act of 2015, was introduced to the Senate by
Senator Mike Lee (R-UT), and to the House by Representative Raul Labrador (R-ID).40
The bill
enjoys broad bipartisan support, in fact, at a press conference discussing the bill Senator Dick
Durban (D-IL) challenged the press to “to find a more diverse political group gathered in one
place in the history of the United States Congress.”41
While the bill does not eliminate mandatory
minimum sentences, it does increase the use of “safety valves” or a series of exceptions to
mandatory minimum sentences under certain conditions that make it possible for judicial
36
“Criminal Justice Fact Sheet.” National Association for the Advancement of Colored People (2016)
37
Ibid
38
“Sentencing 101.” Families Against Mandatory Minimums (2016)
39
The Mellman Group & Public Opinion Strategies. “National Survey Key Findings – Federal Sentencing &
Prisons.” The Public Safety Performance Project of the Pew Charitable Trusts (2016)
40
“S. 502 / H.R. 920, The Smarter Sentencing Act.” Families Against Mandatory Minimums (2016)
41
SenatorMikeLee. “Reducing Human Cost of Mandatory Minimum Prison Sentences.” YouTube video, 5:55
(2015)

8. Robinson 8
discretion.42
It also reduces the length of time in prison for some mandatory minimum sentences,
although, it does not reduce them retroactively.43
Also notable about the bill are its inclusions of
provisions to “remedy a long-standing racial injustice and strengthen black communities.”44
The second bill, the SAFE Act, was introduced to the House by Representative James
Sensenbrenner Jr. (R-WI).45
This bill also supports the reduction of sentences and an increase in
safety valves. It also learns from the success of what the Texas legislature previously set in place.
In 2007, Texas suffered from over incarceration and needed to build eight new prisons to house
the growing number of inmates; however, the legislature rejected that proposal and instead
deferred the resources to support increases in drug courts and treatment centers.46
Following the
adoption of the law, Texas saw a 20 percent decrease in the prison population and the lowest
crime rate since 1968.47
The SAFE Act hopes to use these principles to be smarter with crime
and build a more robust and economic criminal justice system.
Although these bills will not move forward without opposition, critics like Senator Tim
Cotton adamantly oppose criminal justice reform that could worsen the “under incarceration
crisis” and that ultimately shortening sentences would be detrimental to the community.48
Reform advocates, like Amy Ralston Povah of the CAN-DO Foundation, say that is simply not
true looking at the numbers and have asked Senator Cotton to rethink his views and base them
“on facts, not myths.”49
Maybe the biggest opponent of reform is congressional gridlock. Both
42
“S. 502 / H.R. 920, The Smarter Sentencing Act.” Families Against Mandatory Minimums (2016)
43
Ibid
44
Ibid
45
“H.R. 2944, SAFE Justice Act.” Families Against Mandatory Minimums (2016)
46
Zukerman, “Get a Little Less Tough on Crime.”
47
Ibid
48
Gass, “Sen. Tom Cotton: U.S. has ‘under-incarceration problem.’”
49
Povah, Amy Ralston. “Senator Cotton’s Under Incarceration Problem.” The Hill (2016)

9. Robinson 9
the SAFE Justice Act and the Smarter Sentencing Act are stuck in committee, and have yet to
receive a hearing, without which the bills cannot move to the floor for a vote.50,51
Despite these challenges, advocates have pledged to continue to fight and introduce more
legislation in the hope of reforming the criminal justice system. Furthermore, the White House
has stated it will continue to commute sentences until President Obama leaves office in January
2017, as of June 2016 there were 11, 861 applications pending.52,53
Time will only tell what lies
in store for the criminal justice system, but if today is any indication, the era of mandatory
minimum sentencing may be coming to an end in the United States.
50
“S. 502 / H.R. 920, The Smarter Sentencing Act.” Families Against Mandatory Minimums (2016)
51
“H.R. 2944, SAFE Justice Act.” Families Against Mandatory Minimums (2016)
52
Eggleston, “President Obama Commutes the Sentence of 214 Additional People.”
53
Korte, Gregory. “Obama Issues Record-Breaking 214 Commutations.” USA Today (2016)

10. Robinson 10
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