In the war on drugs, mandatory minimum sentencing is a strategy that has failed. Beginning a generation ago, legislators at both federal and state levels thought that they could "get tough on crime," especially drug crime, by removing the sentencing discretion of judges and replacing it with long minimum sentences that applied regardless of the defendant's individual circumstances. As a result, our national prison population has quadrupled, but the drug problem is no better than it was when we began what some have called our "orgy of incarceration."
Mandatory minimum sentencing seems like a simple idea. Pass a statute, as New York's legislature did in 1973, that says if you sell more than two ounces of cocaine, you will get a sentence of at least fifteen years in prison -- no ifs, ands, or buts. Encouraged by Governor Nelson A. Rockefeller, who gave his name to this statute, the legislators thought that they were getting tough on pushers, and their mental picture of the pusher was that of a professional drug dealer, one who lives off the misery of the addicted.
But the reality of the Rockefeller drug law was quite different. It applied not only to professional dealers, but also to rank amateurs such as Angela Tompkins, a seventeen-year-old recruited by her uncle to sell cocaine. Despite a chaotic childhood in which she was passed from one home to another, Angela had no previous criminal record of any sort before she sold cocaine to an undercover agent, who repeatedly insisted that she increase the amount of the sale so that it would exceed the two-ounce level. Without the mandatory minimum, a sentencing judge could have taken all these mitigating facts into account in setting a punishment that fit this young girl's crime. Instead, New York's mandatory minimum sentencing law required a fifteen-year sentence, which the New York courts reluctantly upheld on appeal. (See People v. Tompkins, 633 N.E.2d 1074 [N.Y. 1994].)
WHO REALLY SUFFERS?
Angela Tompkins's case thus shows one failing of mandatory minimum sentencing statutes: They apply so broadly that they sweep in minor criminals along with the major ones, the "kingpins," who are the real targets of the statutes. But there is an even dirtier little secret about mandatory minimums: They usually do not get the drug kingpins that the legislature was after in the first place! This failure occurs because almost all mandatory minimum sentencing provisions allow the court to ignore the minimum sentence if the prosecution stipulates that the defendant has provided "substantial assistance" in prosecuting other criminals. So what do you think that your typical high-level drug dealer does when he knows that the state has caught him red-handed? He informs on everybody else in his organization and so gets credit for substantial assistance. Consequently, the drug kingpin gets a reduced sentence, while most of his underlings -- the ones who have no one else to rat on -- get stuck with much longer mandatory minimum sentences, even though they are far less culpable than the kingpin.
Some readers unfamiliar with our legal system must be saying to themselves, "America cannot work that way! Our prosecutors would not allow that to happen." But take it from someone who has taught prosecutors: They are human like the rest of us, and they like to win. By helping to coerce guilty pleas to lesser offenses, mandatory minimum sentencing makes it far too easy for prosecutors to win. This is how it works: Mandatory minimums take sentencing power away from the judge and give it to the prosecutor, who decides whether to charge the defendant with a crime carrying a long minimum sentence or some lesser offense. In exchange for exercising this discretion in favor of the defendant, the prosecutor expects something from the defendant -- if not substantial assistance (by giving testimony, informing on others outside of the courtroom, or participating in dangerous undercover activities), then at least by pleading guilty to the lesser charge. …