With over two million people in prison, the United States incarcerates more people than any other nation. And a big driver of our mass incarceration are mandatory minimum sentencing requirements.

Before mandatory minimums became so prevalent, when a person was convicted of a crime, judges had a great deal of discretion in deciding a person’s sentence. But in the 1980s and 90s, federal and state government passed laws requiring predetermined sentences for certain crimes. So whereas judges used to be able to consider the individual factors in each case to ensure a sentence made sense for each circumstance, mandatory minimums require judges to issue fixed, predetermined sentence lengths. Critics of these sentencing schemes refer to them as a cookie-cutter approach to justice.

These pre-determined sentences are called mandatory minimums. And they have wreaked havoc on Oregon and across the country.

 “The injustice of mandatory minimum sentences is impossible to ignore when you hear the stories of the victims.”

Republican Senator Rand Paul

A Little Background

During the “Tough on Crime” campaigns of the 1990s, Congress passed–and President Bill Clinton signed–the 1994 Crime Bill.  Its 356 pages of provisions proliferated the infamous Three Strikes policy and put 100,000 more police officers on the streets.  Crucially, the bill lengthened prison sentences for certain federal crimes.  And such a high-profile effort dramatically raised the prominence of mandatory minimum sentencing requirements across the nation.

One of the main arguments in favor of mandatory minimums is the theory that making prison sentences even longer would deter crime.  But that idea is not based in fact.  This National Research Council report analyzed whether longer sentences would avert crime.  Their research found that there was no conclusive evidence that longer sentences deter crime.  Meanwhile, very recent research from Pew’s Public Safety Performance Project looked at all 50 states and found no statistical relationship between imprisonment rates and drug use and related crime.

Another argument used to support the passage of mandatory minimum sentencing laws was that they would create more continuity and consistency on how people were sentenced. The argument was that mandatory minimums were more fair because they treated everyone equally. But this argument quickly became poisoned by the tragic irony of the ways mandatory minimums disproportionately impact people of color by both implementation and design. Perhaps the most well known example of this dynamic was the disparity in crack cocaine versus powder cocaine sentencing in federal drug laws.

“But in that bill, there were longer sentences,” Mr. Clinton told the N.A.A.C.P. gathering in Philadelphia. “And most of these people are in prison under state law, but the federal law set a trend. And that was overdone. We were wrong about that…we had a lot of people who were essentially locked up who were minor actors for way too long.”

“Bill Clinton Concedes His Crime Law Jailed Too Many for Too Long”–New York Times–July 15, 2015

Federal mandatory minimums adopted a scientifically unjustifiable 100:1 ratio in the amount of cocaine that triggered a 5 year mandatory minimum. 5 grams of crack triggered the same sentence as 500 grams of powder cocaine – two forms of the same drug. Because the majority of people arrested for crack offenses are African American, the 100:1 ratio resulted in vast racial disparities in the average length of sentences. On average, under the 100:1 regime, African Americans served virtually as much time in prison for non-violent drug offenses as whites did for violent offenses.

Overall, mandatory minimums have contributed to an increase in the prison population and have resulted in more people serving longer sentences.  Since 1984, the number of people serving life sentences in the U.S. has more than quadrupled.

All of this is why former President Bill Clinton, who advocated for and then signed the 1994 Crime Bill, has since changed his mind and disavowed the kind of longer sentences that mandatory minimums created.

Mandatory Minimums in Oregon

The same year Congress passed the 1994 Crime Bill, Oregon passed Measure 11.  Measure 11 established state-based mandatory minimums for certain person to person crimes.  Aside from setting out predetermined sentence lengths, it also barred a prisoner from having their sentence reduced for active participation in useful programs and for productive behavior.

Oregon’s prison population surged.  According to a report by Oregon’s Commission on Public Safety, our state’s rate of imprisonment “has grown more than three times faster than the national average”.  This has resulted in a greater and greater share of our taxpayer dollars going to maintaining prisons, rather than the programs best equipped to build safe and healthy communities.

And similar to the national level, people of color in Oregon are disproportionately impacted by mandatory minimums.  The same report from Oregon’s Commission on Public Safety showed that a person who is hispanic is almost 40% more likely than his white counterpart to be sentenced for a mandatory minimum-associated crime.  And African American youth are almost three times more likely than white youths to be indicted by a Measure 11 crime, despite crime rates being relatively even across racial demographics.

Where Do DAs Come In?

The significant rise of mandatory minimum sentencing laws in Oregon and the country, created a massive transfer of power in the criminal justice system from judges to prosecutors.

Prosecutors in the district attorney’s office control charging decisions, and mandatory minimum sentences give them an intimidating tool to influence plea negotiations. Many defendants won’t risk going to trial if they face the possibility of a long mandatory minimum sentence, even if they have a good case. So prosecutors gained tremendous leverage with the increase in mandatory minimum laws. Now in Oregon, the overwhelming majority of cases get resolved by plea agreements and over 90% of all criminal cases never go to trial.

It’s worth noting that “prosecutorial discretion” means DAs are not obligated to charge people with mandatory minimums in many cases. Having more district attorneys critique the use and impact of mandatory minimums could help improve our justice system. But it is hard for prosecutors to give up a tool that gives them so much power and influence.

Yet it is possible for district attorneys to become reform  leaders.  Larry Krasner, who will likely be the next the district attorney for Philadelphia, talked about his top priorities if he became DA. In a recent online forum he described what one of his top priorities would be as DA:

“On all pending cases [I would] decline to pursue a mandatory sentence where the law permits—and the law permits almost all the time in Pennsylvania now—so this would be immediate. There is no reason to tie judges’ hands so they cannot consider sentencing a person to an amount of time that is below a mandatory sentencing floor where the particular circumstances of the crime, the victim(s), the defendant make it the right thing to do. Nothing about this policy prohibits a judge from giving a sentence that is equal to the mandatory sentence or greater. In the same way, sentencing guidelines are often inappropriately high and I would exercise my discretion in appropriate cases to ask for sentencing below their ranges.”

Oregon’s district attorneys can follow Krasner’s lead.  If DAs hear our voices, we can move beyond mandatory minimums here at home.