Mandatory Minimalism

Abstract

Both authors of this article believe that reforming the federal mandatory minimum scheme would be good for the country. At the same time, however, there are substantial political barriers to making any change. Although public support for mandatory minimums has waned in recent times, it is still possible to paint a legislator who votes to repeal mandatory minimums as being “soft on crime.” For example, when then-presidential candidate Obama called for reexamination of mandatory minimum sentences, he was attacked as “oppos[ing] mandatory prison sentences for sex offenders, drug dealers, and murderers.”

In general, advocates of further reforms will face long-standing political hurdles. Even during periods of lower crime rates, the public has expressed fear of victimization and a belief that criminals are not receiving harsh enough punishment. Lawmakers have responded in kind with new crimes and stiffer penalties, including mandatory sentences. Conversely, proposals for comprehensive reform have carried a career-ending risk for supporters, who could be labeled soft on crime by allegedly providing the means for dangerous criminals to escape with lenient sentences. This political dynamic has stymied previous efforts in Congress to reform mandatory minimums.

For these and other reasons, there may be insufficient political support for an across-the-board repeal of federal mandatory minimums. To date, systemic reform proposals have had little traction and appear unlikely to be adopted in the near term. Ironically, the congressional directive calling for a review of mandatory minimum sentencing itself contained a new mandatory minimum, and several recent bills would extend federal mandatory sentences. As a practical matter, then, any meaningful reform might have to be done in a careful, focused way to create a broad bipartisan consensus surrounding the changes. With this in mind, the two of us have considered how to modify the federal mandatory minimum scheme so as to ameliorate its most draconian and unfair expressions.