What's Wrong With Mandatory Sentencing?

Aug 17, 2013
Originally published on August 19, 2013 11:56 am
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This week, U.S. Attorney General Eric Holder proposed reducing mandatory minimum sentences for some drug offenders. Federal mandated drug-sentencing guidelines have been around since the 1980s, and they are thought to contribute to the huge increase in the number of inmates in U.S. prisons. But what has the affect of mandatory sentencing been on courts and communities?

The Texas Public Policy Foundation is a conservative organization that advocates reducing the nation's prison population. Marc Levin is director of the group's Center for Effective Justice. He joins us from member station KUT in Austin. Mr. Levin, thanks so much for being with us.

MARC LEVIN: Thank you for having me.

SIMON: What did you think of the attorney general's proposal?

LEVIN: Well, you know, we launched our Right on Crime initiative in 2010, and we certainly believe in holding offenders accountable. But there are better ways to do that than mandatory minimums, particularly when it comes to non-violent offenders. And we think that the attorney general is a bit late to the party. It's five years into the administration; and we've seen states like Ohio, South Carolina, Pennsylvania, Georgia, already roll back their excessive drug-sentencing policies. So it seems to be the one area today that folks are able to get together on in Washington.

SIMON: When you talk about alternatives, like what?

LEVIN: Well, drug courts, which are tried and true in every state, as a matter of fact. But for every person that goes into a drug court there are several that go into prison for a drug offense. So there's still room to grow there. And then we also have another model, the Hawaii Hope Court, which is a little different than a drug court because it's less focused on treatment for those with a chemical dependency and more focused on kind of the recreational drug user.

And it utilizes drug testing, swift and certain sanctions, spending a weekend in jail if you test positive for drugs, but not saying we're going to send you to prison for five or ten years. So there's just a whole host of areas where research is showing us a better way for safely supervising these offenders in the community.

SIMON: But I wonder how you handle this. Mandatory sentencing came in after a terrific increase in the crime rate in the 1970s and the 1980s and, yes, there has been this enormous increase in the U.S. prison population, but also in the major cities in this country, there's been a reduction in violent crime over what it was in the '70s and '80s.

LEVIN: Well, that's a good point. In fact, it is true that - according to the best research - about 25 to 33 percent of the drop in crimes was attributable to an increase in incarceration. But most of it was due to demographic factors, due to improvements in data-driven policing to target resources to hotspots. The other thing is the research shows that you need a certain level of incarceration to keep in violent and dangerous offenders, but once you go past a certain point and you sweep in a lot of low risk, non violent offenders, who frankly usually stay for just a year, they're actually more dangerous when they come out than when they came in. So the public wants us to distinguish between those people we're afraid of and those people we're just mad at.

SIMON: Do you have any concern, Mr. Levin, that if some of these alternatives you're talking about are used more frequently that you might have a situation where - and I'll be apocryphal here - a white college kid with access to means and a good lawyer can get a very light sentence and a kid from the inner city that lacks both will still have the book thrown at him.

LEVIN: Well, you know, that is an interesting question because this decision by the attorney general was one based on discretion. The public has as very low opinion of elected officials and so it's certainly the case is if you don't think much of Congress, you wouldn't want Congress' judgment to be substituted for your own if you're on the jury, especially given that it's the jury that has access to the specific facts of the case.

And certainly, though, as you mentioned, race should absolutely not be considered and we need to make sure every offender has quality representation for those who have appointed counsel. Ideally, they could have some say in choosing their own counsel with some type of voucher or something so we can make sure they get vigorous representation in court, that evidence that may exonerate them is presented.

SIMON: Marc Levin is director of the Texas Public Policy Foundation Center for Effective Justice speaking with us from Austin. Thanks so much.

LEVIN: Thank you.

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