Time’s Up for Mandatory Minimums

The amount of time inmates serve behind bars is getting longer. In the last 20 years alone, the average time an inmate spends behind bars increased by five years.¹ This is due in no small part to the proliferation of mandatory minimum sentencing guidelines. Established in 1984 by the Comprehensive Crime Control Act, mandatory minimums were born out of the popular “War on Drugs” belief that longer prison sentences would increase deterrence even for minor crimes.² This flurry of tough-on-crime sentencing measures culminated in the 1994 Violent Crime Control and Law Enforcement Act, which established a three strikes provision on the national level, meaning that an individual who had two prior convictions could face life in prison for a third offense.³ More than half of US states have a three strikes provision.⁴ However, how can mandatory minimum sentencing guidelines be reconciled with a Constitution that promises protection against “cruel and unusual punishments” and promises all of its citizens “equal protection under the law”? Mandatory minimum sentencing guidelines violate the Eighth Amendment and 14th Amendment’s Equal Protection Clause because they violate the legal principle of proportionality and disproportionately affect women and people of color.

Mandatory minimum sentencing guidelines violate the Eighth Amendment because they disregard the legal principle of proportionality. While there are numerous definitions of proportionality a comprehensive definition under the law is, “Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intrusions have stronger justifications, and that punishments reflect the relative severity of the offense.”⁵ Mandatory minimum sentences inherently violate this principle because they have the potential to impose disproportionately harsh sentences for relatively minor offenses in the name of deterrence. Evidence that mandatory minimums violate the Eighth Amendment comes in the form of the Solem test, which was established by the Supreme Court in Solem v. Helm. The Court stated that “A court's proportionality analysis under the Eighth Amendment should be guided by objective criteria” and established the criteria as follows: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or less serious penalties; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”⁶ Evidently, many instances of mandatory minimum sentencing guidelines violate the first Solem test as they have the potential to impose long prison sentences on minor offenses like drug possession charges. The guidelines also violate the intra- and extra- jurisdictional tests as they create situations where repeat offenders are charged longer sentences for committing the same crimes as first-time offenders and they create situations where states that have three strikes laws and mandatory minimum sentencing guidelines, such as California, impose much harsher sentences for the same crime committed than other states that do not.

Supreme Court cases that deal directly with the constitutionality of mandatory minimum sentencing guidelines have been upheld but in closely divided courts and with strong dissents. For instance, Justice Breyer’s dissent in Ewing v. California strongly argues against the California Three Strikes Law. In this case, Ewing was sentenced to 25 years to life for stealing three golf clubs under the California Three Strikes law. The Court’s opinion upheld the conviction, in part because of Ewing’s lengthy rap sheet. However, Justice Breyer’s dissent directly calls into question the constitutionality of the Three Strikes Law stating, “Outside the California's three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree (...).[It is,] at a minimum, two to three times the length of sentences that other jurisdictions would impose in similar circumstances.”⁷ Justice Breyer is implicitly arguing that the Three Strikes Law fails the second and third criteria of the Solem test and is therefore a cruel and unusual punishment. While powerful dissents give evidence that mandatory minimum sentencing guidelines violate the Eighth Amendment, the judicial record gives credence to the idea that mandatory minimums violate the 14th Amendment as well.

Mandatory minimum sentencing guidelines fail strict and intermediate scrutiny under the 14th Amendment’s Equal Protection Clause because there is present in these laws discriminatory intent on the basis of race and sex. As stated in Washington v. Davis, “A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race…an invidious discriminatory purpose may often be inferred from the totality of relevant facts.”⁸ Mandatory minimum guidelines fail strict scrutiny because they have been wielded in a way that so disproportionately impacts racial minorities so as to constitute racially discriminatory intent. Evidence for this can be found in the sentencing disparities between crack and cocaine where crack, a drug more popular in African American communities, carries harsher mandatory minimum sentencing guidelines than cocaine, a drug more popular in Caucasian communities, despite the drugs being extremely similar. The Federal Eastern District Court of New York came to this conclusion in United States v. Bannister when African American and Hispanic defendants were given lengthy sentences for minor drug charges, stating, “there is substantial evidence of racial impact and awareness of probable racially invidious effect when the applicable drug statutes were adopted to warrant a finding that the mandatory minimum sentences for crack cocaine were motivated in part by racial animus, in contravention of the Equal Protection Clause of the United States Constitution.”⁹ Evidently, the racially disparate impact of mandatory minimum sentencing guidelines is so extreme that it constitutes evidence of racially discriminatory intent thus causing them to fail strict scrutiny.

Mandatory minimum sentencing guidelines also fail intermediate scrutiny under the 14th Amendment’s Equal Protection Clause because they discriminate on the basis of sex. According to a study by the Georgetown University Law Center, “Between 1980 and 2002, the number of women in state and federal prisons has increased from 12,300 to more than 96,000. National mandatory sentencing policies disparately affect women who tend to play marginal roles in drug trafficking crimes by tying sanctions to the quantity of drugs involved in the transaction and limiting judicial discretion in considering prior criminal history and family responsibilities.”¹⁰ Due to certain drug conspiracy laws carrying heavy mandatory minimums, women are facing disproportionately long drug sentences despite playing smaller roles in drug operations than men to the point that mandatory minimum sentences are perpetuating gender discrimination.

While I argue that mandatory minimum sentencing guidelines exacerbate racial inequality in sentencing, some argue that mandatory minimum sentencing guidelines make sentencing more equitable by standardizing sentencing guidelines by crime and not allowing for judicial discretion, which has the potential to allow implicit biases into the sentencing process. Since Booker v. United States, federal sentencing guidelines have been relaxed allowing for more judicial discretion.¹¹ This has allowed opportunities for comparison between a federal sentencing structure based predominantly on strict guidelines and a new one based more on discretion. The results have been stark—the University of Chicago Journal of Legal Studies finds that, “black defendants received two months more in prison compared with their white counterparts after Booker, a four percent increase in average sentence length.”¹² Evidently, judicial discretion has exacerbated sentencing disparities between White and Black defendants.

While there may be evidence that increased judicial discretion has increased sentencing disparities between White and Black defendants, overall sentence lengths across all races have decreased due to increased use of judicial discretion in sentencing. For instance, the Huffington Post argues, “judicial discretion is leading to shorter sentences better correlated to the severity of the crimes.”¹³ Considering this fact, it stands to reason that currently both Black and White defendants are less adversely impacted by longer sentences, and racial disparities that do exist now under the new sentencing regime are felt less harshly because the overall sentence is likely to be shorter. Judicial discretion isn’t a perfect solution to bridge the racial disparity gap between White and Black defendants, but it does lower overall sentence lengths, causing inequities to be felt less sharply.

Clearly, mandatory minimum sentencing guidelines violate the Eighth Amendment and 14th Amendment’s Equal Protection Clause because they violate the legal principle of proportionality and disproportionately affect women and people of color. Considering the massive economic drain that mass incarceration has the economy and the social strain it has on a generation of inmates imprisoned by overzealous tough-on-crime laws, it is time to consider getting the legislature out of the sentencing sphere and allowing the judicial system to mete out justice by assigning punishments that fit the crime.

References

¹ “Prison Sentences Are Getting Even Longer, Particularly for Black People,” Newsweek, July 22, 2017, https://www.newsweek.com/prison-sentences-increased-2017-jail-639952.

² “Mandatory Minimums,” Equal Justice Under Law, accessed March 12, 2022, https://equaljusticeunderlaw.org/mandatory-minimums-1.

³ Ibid

⁴ Ibid

⁵ Vicki C. Jackson, “Constitutional Law in an Age of Proportionality,” accessed March 12, 2022, https://www.yalelawjournal.org/article/constitutional-law-in-an-age-of-proportionality.

⁶ Solem v. Helm, 463 U.S. 277 (1983)

⁷ Ewing v. California, 538 U.S. 11 (2003)

⁸ Washington v. Davis, 426 U.S. 229 (1976)

⁹ United States v. Bannister, 786 F. Supp. 2d 617 (E.D.N.Y. 2011)

¹⁰ “NOTE: ‘WOMEN OF CIRCUMSTANCE’ -- THE EFFECTS OF MANDATORY MINIMUM SENTENCING ON WOMEN MINIMALLY INVOLVED IN DRUG CRIMES, 41 Am. Crim. L. Rev. 1533,” accessed March 13, 2022, https://advance-lexis-com.ezp-prod1.hul.harvard.edu/document?crid=78c4a6a1-535b-4381-93b8-d4b135accbff&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A4FKP-K0R0-00CV-80B0-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=168966&pdmfid=1516831&pdisurlapi=true.

¹¹ United States v. Booker, 543 U.S. 220 (2005)

¹² Yang, Crystal S. “Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing.” The Journal of Legal Studies 44, no. 1 (2015): 75–111. https://doi.org/10.1086/680989.

¹³ “Judicial Discretion: There’s Good News, and Some Pretty Bad News,” HuffPost, November 6, 2015, https://www.huffpost.com/entry/judicial-discretion-there_b_8473376.