Prisons Bursting at the Seams: the Effects of Mandatory Sentences

An Interview with Laura Sager

Laura Sager is the national campaign director for Families Against Mandatory Minimums (FAMM), a national organization with close to 40,000 members across the United States. She has worked in numerous states over the last decade for reform of mandatory minimum sentences, working directly with scores of legislators and hundreds of families to change mandatory sentencing laws. She was key to the repeal of Michigan’s mandatory drug sentences in 2002.

Justice Matters’ editor Kathleen Pequeño interviewed her by phone while she was in her home state of Michigan, planning for a busy 2007 legislative season in several states.

Kathleen Pequeño (JM): Let’s start with a brief history of mandatory sentences… when did all this begin?

Laura Sager (LS): Mandatory minimum sentences have long been part of the United States criminal code. However, many date the current widespread use of mandatory minimum sentences to the early 1970s, when states were attempting to control drug use and sales through the “war on drugs.” New York passed the Rockefeller drug laws in 1975, Michigan passed mandatory sentences in 1978, and other states soon followed. The trend grew after the U.S. Congress passed a number of harsh mandatory minimum drug laws in the mid-1980s. Various forms of mandatory minimum sentences for drug offenses have been the engine that is fueling state prison population growth over the last three decades.

Variations on mandatory sentences include harsh sentences for repeat offenders, such as California’s “three strikes” law that requires lifelong prison terms. In Oregon, you have Measure 11, requiring mandatory prison terms for a list of crimes. In recent years, we have seen mandatory minimum sentences proposed for a whole range of crimes, most recently for sex offenses and gang involvement.

JM: So what is the alternative? What should we be doing instead?

LS: Historically there has been a tension between legislators’ desire for easy, “sound bite” solutions that impose one-size-fits-all sentences and a system where judges have the authority to impose sentences based on all facts in each individual case. Judges should be able to take into account individuals’ criminal record, their role in the offense, the seriousness of the offense and their potential for rehabilitation when imposing sentences.

One criticism of judicial discretion (judges’ ability to determine sentences) is that it can lead to wildly different sentences from person to person, even when people’s record and the facts of the case are similar. Some states have enacted flexible sentencing guideline systems that help guide judicial discretion, so sentences are more proportionate, while preserving judges’ ability to base sentences on a range of factors.

We should also eliminate mandatory sentences and sentencing enhancements that prevent judges from sentencing individuals (when appropriate) to treatment, drug courts, or rehabilitation programs that address underlying problems of substance abuse or mental illness and reduce recidivism.

One of the things I often tell people is that opposing mandatory sentences is really a conservative effort to restore the traditional American system of checks and balances in the criminal justice system. When legislators decide on a mandatory sentence for a particular offense, it may appear “fair” because people believe that everyone will then receive the same penalty for the same offense. However, what really happens is that all sentencing authority is taken away from judges (who are supposed to be impartial) and shifted to prosecutors – one party in an adversarial process. Since the sentence is already determined when there is a mandatory minimum, prosecutors effectively control sentencing decisions though their decisions about charging and plea-bargaining.

JM: People I speak to at community presentations are often surprised to learn that 95 percent of criminal cases are resolved with a plea bargain.

LS: In many cases, individuals who don’t have information to trade—or the means to hire good legal counsel—end up serving mandatory sentences because they have nothing to offer prosecutors to lower their sentence during plea bargaining. Prosecutors also often use the threat of harsh mandatory minimum sentences to discourage individuals from taking their cases to trial – thus driving up sentences overall, even if a mandatory minimum sentence is not imposed. In addition, prosecutors’ decisions are made in the privacy of their own offices, without any public oversight or right of defendants to appeal. Judges’ decisions in sentencing are a matter of public record and subject to appeal.

The American system of justice was set up with checks and balances: prosecutors charge crimes and strive to prove them, defense attorneys defend their clients, and objective judges listen to both sides and decide sentences. Mandatory sentences turn judges into rubber stamps.

JM: What trends are we seeing in the last few years where mandatory sentences are concerned?

LS: Many state prison systems are bursting at the seams and taxpayers are starting to question the cost, especially for warehousing thousands of nonviolent drug offenders. Increasingly, we see political leaders looking for a way to reduce prison populations by shifting the focus to treatment and alternatives to incarceration for the chemically addicted and mentally ill.

Unfortunately, political candidates still tend to enact new mandatory minimums for a range of other crimes as a way to prove their “tough on crime” credentials. This past year, for example, many states rushed to enact mandatory penalties for sex offenses.

JM: In Oregon in 2006, our legislature passed an expensive new set of mandatory sentences for sex offenses committed against a child under 12 years old—they reflect what you’re talking about very clearly. We brought a number of abuse survivors and advocates who work with abuse survivors to point out the problems with this law, but it passed with a strong majority. And it’ll cost much more than prevention programs or comprehensive services for families and survivors.

LS: However well-intended these laws may have been by individuals in the legislature, they are going to blow the roof off prison capacity in many states and, as you noted, many unlikely critics are concerned about their actual impact.

JM: Yes, the advocates against sexual abuse that we know are concerned that this law will put the wrong kind of pressure on families where abuse is happening. Now, the family will have to decide whether or not to report the crime, if it means one of the family members will be locked up for 25 years. It’s going to put some parents and kids in an awful position that may mean some survivors don’t get any help at all.

LS: Unfortunately, legislators continue to enact mandatory sentences that do not increase public safety, strain state resources, and too often have a disproportionate impact on people of color – and these kinds of sentences are a key reason why the U.S. has the highest rate of incarceration in the world.

JM: Can you say more about the impact of mandatory sentences on people of color?

LS: Most people are aware of state and federal mandatory sentencing laws that punish crack cocaine offenses more harshly than powder cocaine offenses. Although more whites actually use crack cocaine than African Americans, more African Americans are arrested for crack cocaine offenses and are subject to the higher penalties for what is essentially a different, cheaper form of the same drug.

A similar unintended consequence can be seen in the punishments for mandatory sentences for “drug free zone” offenses. Legislators designated “drug free” zones around schools and other similar locations hoping to protect kids by moving drug activity away from certain areas. The laws backfired. In densely populated urban areas, the zones blanket entire cities, making virtually the entire population subject to harsh penalties for minor drug offenses. So people in cities, largely people of color, face stiffer penalties than people in rural and suburban areas for the same conduct. Researchers in Massachusetts found that less than one percent of individuals convicted under these laws in that state actually committed offenses involving children or schools. In addition, these mandatory sentences stop judges from sending people to cost-effective treatment and drug court programs that really work to reduce recidivism – thus actually decreasing public safety.

JM: So there is some pretty bad news when we talk about mandatory sentences…but do you think we might be heading in the right direction in the next few years?

LS: There are many reasons to be encouraged. Legislators in many states are taking a thoughtful look at what really works to reduce the prison population. Some states have sentencing commissions that rely on objective data to develop sentencing recommendations, which slows down the rush to legislate based on sheer politics or emotion. The public now understands that drug treatment works, that mental health treatment works, and many incarcerated individuals need access to these programs instead of harsh mandatory sentences.

There is also a national movement to restore discretion to judges. Polls show that the public supports giving judges back the ability to base sentences on all the facts of an offense and that they support smart policies that reduce costs while better protecting public safety.

The recent election showed that changes in public attitude really matter at the ballot box. Advocates can win sentencing reform if they work to educate the public and support those who are champions of fair sentencing policies. It is a long process, but it’s the only way we can change bad sentencing policies. Many states are buckling under the burden of paying corrections costs and, as incarcerated populations age, the price tag for “sound bite” policies will continue to climb. The time is ripe to ask questions about fairness and effectiveness in sentencing polices on both the state and federal level.

We know that people get discouraged with the pace of change. Winning even small legislative reforms at the state level often takes several years. But families and incarcerated individuals have to know that their involvement matters, their patience matters, and that what they do today to change the political climate on these tough issues creates a snowball effect that creates the condition for greater change. It’s critically important that there are voices like the Partnership for Safety and Justice and Families Against Mandatory Minimums mobilizing their members to put these issues on the table and continue the fight for fair and just sentencing policies.

This article originally appeared in the Winter 06/07 issue of Justice Matters.