Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

5. The impact of mandatory minimum sentences (continued)

5. The impact of mandatory minimum sentences (continued)

5.4 Mandatory Sentences for Drug Offences

The most extreme manifestation of MMS for drug offences can be seen in Malaysia. In 1975, the Malaysian Parliament imposed a mandatory life sentence for drug trafficking and, in 1983, a mandatory death penalty was introduced for this crime (Harring, 1991). Over 200 death sentences were imposed between 1985 and 1989. However, the conviction rate has declined by 30% during those years and many charges are being dropped by the police and Public Prosecutor. In many cases, charges are being used as leverage to gain the cooperation of defendants. Also, in 1989, appellate judges began to reduce death sentences to life. The judiciary has developed a number of legal devices to spare defendants from the death sentence, including their conviction for drug possession rather than trafficking. The author asserts that the Malaysian experience demonstrates the limitations of a “drug war” model in dealing with the drug problem. Despite over 100 executions and many more death sentences imposed, as well as more aggressive tactics by police, drug use and trafficking remain serious social problems. This case provides another illustration of adaptive behaviour on the part of actors within the justice system in circumventing a law regarded as excessively harsh, inflexible, and overly cumbersome to enforce.

In the United States, the Anti-Drug Abuse Acts of 1986 and 1988 prescribed harsh minimum penalties at the federal level (Spencer, 1995). In 1986, a 5 to 40-year sentence, without probation or parole, was mandated for first offenders convicted of possession with intent to distribute small quantities of designated substances. The sentence was 10 years to life for larger quantities. The 1988 Amendments increased MMS, imposed these sentences for even smaller quantities, and prescribed especially tough sentences for first-time offenders possessing crack and other cocaine-based substances. Congressional debates revealed a view of drug offenders as essentially non-human and as not responding to deterrents. As a consequence, the focus of legislation turned to long-term incapacitation. Surveys in the 1990s indicate that illicit drug use remains at a high level in the US – there are about 12.5 million cocaine, hallucinogen, and heroin users annually – and many crimes continue to be drug-related. At the same time, Spencer notes that convictions and the length of sentences have increased sharply for drug offenders between 1980 and 1990, while the average length of sentences for other crimes has decreased. In 1990, the majority of federal prisoners serving MMS were first-time offenders. Furthermore, many were low-level, non-violent individuals. From a utilitarian perspective, the federal system appears to be incarcerating the wrong people; individuals who are easily replaced in the illicit market. Spencer argues that low-level drug offenders may not even consider imprisonment as punitive, due to the privations they experience in the community.

Some of the most sophisticated research in this area has been undertaken at the Rand Corporation (Caulkins et al., 1997). Through various mathematical models, Rand researchers compared the cost effectiveness of various drug prevention/control strategies, including lengthy MMS. Their analyses considered the cost of each strategy and the expected yield in terms of both drug consumption and crime reductions. Their conclusion was that conventional sentences imposed on dealers are more cost effective than long MMS reserved for fewer offenders and that treating heavy users is more cost effective than either approach in lowering drug use or drug-related crime. MMS were found to be the most cost effective strategy only in the case of the highest-level dealers; however, the low thresholds at which MMS tend to kick in means that these laws are more likely to ensnare low-level offenders. Also, high-level dealers are more likely to avoid MMS, as they are in a better position to have information to trade for an exemption from these penalties. Finally, these investigators note that the time horizon of evaluations is critical, as MMS become less cost effective over time.

Hansen (1999) asserts that the tide is turning against MMS for drug infractions. He notes that they have done little to reduce crime or to put large-scale dealers out of business. Rather, they have filled prisons with young. low-level, non-violent individuals at great cost to taxpayers. Hansen points out that, in Massachusetts, 84% of inmates serving mandatory drug sentences are first-time offenders.

Two Milwaukee field studies, involving interviews with street gang leaders and members, shed some light on the potential impact of severe and mandatory penalties for drug offences (Hagedorn, 1994). These studies reveal that gangs involved in dealing drugs are anything but a monolith. In fact, most gang members are involved intermittently in this activity, financial rewards tend to be modest (one-third earned about the minimum wage), and most of these dealers would opt for a conventional lifestyle and work, if that option was available. Others sell to support their habits and just a fraction of gang members are committed to selling drugs as a career. MMS fail to discriminate between these hardcore drug dealers and those who feel compelled to sell due to an addiction or difficulties encountered in participating steadily in the work force. The implication is that employment opportunities, more accessible drug treatment, and alternative sentences would be preferable to the “iron fist of the war on drugs.”

Harsh MMS and the “drug war” approach in general show little effect in relation to drug offences. Judges routinely circumvent the “mandatory” death sentences for drug trafficking in Malaysia and the tough MMS in the US have imprisoned mostly low-level, nonviolent offenders. MMS do not appear to influence drug consumption or drug-related crime in any measurable way. A variety of research methods concludes that treatment-based approaches are more cost effective than lengthy prison terms. MMS are blunt instruments that fail to distinguish between low and high-level, as well as hardcore versus transient drug dealers. Optimally, it would appear that tough sentences should be reserved for hardcore, high-level dealers, while treatment may be more appropriate for addicted dealers and employment opportunities may be more cost effective in relation to part-time dealers who are underemployed.