MASS INCARCERATION

A Byproduct of Mandatory Minimum Sentencing

Mass incarceration began in the United States in 1970 when the administration of former President Richard Nixon launched its “war on crime”—a euphemism for an actual war on young Black men who were increasingly seen as menacing by Nixon’s White “silent majority.”

Thus, mass incarceration started with racism and was perpetuated through the Reagan administration with the Comprehensive Crime Control Act of 1984 and the Anti-Drug Abuse Act of 1986 and carried over into the Bill Clinton administration with the Violent Crime Control Act of 1994,

While mass incarceration reached its peak in 2009, its slowing has not measurably reduced prison populations enough to say America no longer mass incarcerates.

There are currently 2.2 million people incarcerated in federal and state penal facilities in the United States. That’s more than the 1.65 million people imprisoned in the dictatorial nation of China which has a population four times larger than the U.S.

Why does America mass incarcerate so many people?

There are a plethora of reasons for mass incarceration, including but not limited to:

·       Over-criminalization of drug use.

·       Profit motives behind the use of private prisons.

·       Exploitation of cheap inmate labor.

·       Emotional social and politically motivated legislative responses to sex offenses.

·       Widespread use of inappropriate definitions of what constitutes “violent crime.”

·       Punishing mental health disorders as criminal conduct

·       A criminal justice system flawed with historical systemic racism.

But perhaps the most compelling, and most curable, reason for mass incarceration is mandatory minimum sentencing.

 A 2023 report by The Sentencing Project open with this observation about mandatory minimums:

“Eliminating mandatory minimum sentencing laws is essential to creating a more just and equitable criminal justice system. Widespread evidence shows that mandatory minimum sentences produce substantial harm with no overall benefit to crime control. Determined by lawmakers rather than judges, these sentences represent a uniquely American approach to sentencing that has accelerated prison growth. They constrain judicial discretion, deepen racial disparities in the criminal legal system, and cause far-reaching harm to individuals, families, and communities.”

Throughout most of the 20 century, the American criminal justice system was controlled by “indeterminate sentencing”—a legislative enacted, and judicially approved, indefinite period of sentencing, e.g., 5 to 25 years. It was generally believed that a non-fixed period of penal incarceration created an incentive for inmate reform. This incentive was reinforced with penal rehabilitation programs—education, substance abuse programs, vocational training, and mental health therapy—designed to protect society through the return of “reformed” individuals to free communities.

A combination of the failure of penal rehabilitation and increasing crime rates in the 1980s and 1990s prompted state and federal legislators, criminal justice experts, penal reform advocates, and judges to advocate for an end to indeterminate sentencing and the implementation of determinate sentencing with fix mandatory minimums—a sentence that guaranteed a mandatory fixed period of incarceration.

The concept was simple: a convicted criminal with an inflexible, mandatory period of incarceration would not pose any threat to society during that period of detention. But that simple concept ushered in a harsh, and too often a racist inspired, form of retributive sentencing that led to the current state of mass incarceration which effectively established what is now referred to as the “prison industrial complex.”

The Sentencing Project points out that by 1995, all 50 states and the federal government had some form of retributive mandatory minimum sentencing for a wide variety of crimes. This draconian sentencing scheme created the below sentencing policies that have been adopted, in one or another, throughout the nation:

·       Mandatory prison sentences for many drug-related crimes and longer, mandatory minimum sentences for violent crimes and repeat offenders;

·       “Three strikes” laws that lengthened sentences, requiring minimum sentences of 25 years to life imprisonment for some, usually serious offenses; and

·       “Truth-in-sentencing” laws, which require inmates to serve most of their sentences, typically 85%, before eligibility for release.

One of the primary reasons mandatory minimum sentencing contributes so significantly to unnecessary mass incarceration rests with prosecutors. The Sentencing Project report explains why:

“A deterrence rationale underpinned mandatory minimum sentences: individuals were expected to refrain from committing new crimes if sentences were lengthened, and such sentences would also ‘send a message’ to those considering criminal acts. The laws were professed to target violent crime, but their broad authority resulted in far more drug and other nonviolent convictions than violent convictions. The use of mandatory minimums effectively vests prosecutors with powerful sentencing discretion. The prosecutor controls the decision to charge a person with a mandatory-eligible crime A deterrence rationale underpinned mandatory minimum sentences: individuals were expected to refrain from committing new crimes if sentences were lengthened, and such sentences would also ‘send a message’ to those considering criminal acts. The laws were professed to target violent crime, but their broad authority resulted in far more drug and other nonviolent convictions than violent convictions. The use of mandatory minimums effectively vests prosecutors with powerful sentencing discretion. The prosecutor controls the decision to charge a person with a mandatory-eligible crime and, in some states, the decision to apply the mandatory minimum to an eligible charge. Rather than eliminate discretion in sentencing, mandatory minimums therefore moved this power from judges to prosecutors. The threat of mandatory minimums also encourages defendants to plead to a different crime to avoid a stiff, mandatory sentence.

****

“The evidence from 35 years of mandatory minimum sentencing shows that long and harsh sentences are not effective for community safety. Prosecutors should avoid charging crimes that trigger mandatory minimums, particularly those related to drug offenses. Despite the temptation to stiffen penalties to address crime, lawmakers can turn instead to approaches that include prevention and early interventions, and more opportunities for diversion from prison.”

The hope to end mass incarceration in America lies with progressive prosecutors who maintain  equity in charging decisions, declining to prosecute many low level offenses;  supporting  reforms of the corrupt cash bail system; stop using mandatory minimum sentencing to drive harsh plea bargaining; prosecutorial integrity through full disclosure and transparency in evidentiary matters; and racial fairness in their sentencing recommendations.

 Protecting society and a fair administration of justice should be synonymous.