Liberals tried to create a fairer prison system. Here’s how it backfired.
Now they’re attempting to close a Pandora’s box they opened in the 1970s
By Meagan Day
After four decades of skyrocketing U.S. incarceration rates, the Senate has a chance this year to pass a bill that might help the nation reverse course. The Sentencing Reform and Corrections Act of 2015 (SRCA), would reduce federal mandatory minimum sentences for a number of crimes, particularly low-level drug offenses.
Democrats have been warning of the pitfalls of mandatory minimums for a while now, but until recently Republicans have stuck to their guns, even as the evidence mounted that mandatory minimums lead to an overcrowded, fiscally disastrous prison system. Given this state of affairs, you’d think mandatory minimums were a conservative invention, opposed by liberals from the outset. But you’d be wrong: Mandatory minimums were actually introduced in the 1970s as a liberal criminal justice reform. Make no mistake — as bipartisan as opposition to mandatory minimums is now, that’s how bipartisan support was for them in the beginning.
The federal government has had mandatory minimums from the start: mutiny on the high seas would be punished by death, as would counterfeiting currency or breaking out of prison. But for a large chunk of American history, mandatory minimums were not the norm. From the mid-19th century to the mid-20th century, the federal government and most states used an approach called “indeterminate sentencing”, meaning it was up to judges to decide whether a defendant would pay a fine or go to jail, and how much or for how long. Sentences often functioned more like recommendations than mandates, and parole boards used their own discretion in deciding whether a prisoner was fit for release, within certain parameters set out by judges.
Indeterminate sentencing was an outgrowth of two novel frameworks for understanding criminal behavior: the environmental and the psychological. As sociology gained traction as a discipline in the early 1900s, educated people began to see connections between environment and criminality. The preeminent scholar of American prisons David Rothman writes that people began to consider “the wretchedness of the social setting” from which a defendant came, which was sometimes “so great that responsibility could not be assigned in uniform and predictable fashion.” The same went for psychology: the more established the discipline became, the more legal thinkers came to believe that mental illness and incapacity ought to be considered in sentencing. The result of these new ways of understanding crime was a case-by-case approach to sentencing that persisted in most U.S. states through the 1960s.
Conservatives opposed this model in the mid-20th century because it wasn’t strict enough — they felt too many violent criminals were getting a pass from lenient judges and parole boards. Liberals dismissed these concerns as scaremongering, but they were developing their own reservations about indeterminate sentencing. The problem, according to liberal legal thinkers, was one of fairness.
Indeterminate sentencing meant that a racist judge or parole board, for example, could be routinely harsher on people of color than white people. It meant that a defendant’s future was determined by an individual judge, not the severity of the crime. Judicial discretion was supposed to eliminate inhumane punishment, but some — including civil rights and prisoners’ rights advocates — saw it as a driving force of inequality.
Liberals wanted to standardize the sentencing process to cut out bias. And so, in the 1970s, they started recommending mandatory minimums. Conservatives, who had long argued that leniency undermined public safety, were naturally on board with the initiative. That’s how in the 1970s, with bipartisan support, America replaced indeterminate sentencing with strict mandatory minimums, one state at a time.
From roughly 1975 to the mid-1980s, reformers set about implementing new sentencing policies that were specifically aimed at eliminating “racial and other unwanted disparities.” But when the War on Drugs began, the foundation laid by these reformers — comprehensive guidelines and uniform statutes — were used to impose mandatory minimums on drug offenders. Between the mid-80s and the mid-90s, mandatory minimums became legislators’ main means of appearing tough on crime and winning votes.
In the mid 1990s, liberals looked upon their creation with horror. Mandatory minimums hadn’t alleviated socioeconomic disparities in the prison system — they had worsened them considerably. Mark Osler, a prosecutor who quit after growing disgusted with the effects of mandatory minimums, explained his change of heart to Rolling Stone: “The mechanistic outcome seemed so scientific. Here’s what the person did, match it up on the grid. But it reduced everyone to a number, and there was this overwhelming sense almost like you were stacking bodies up.”
Those bodies were overwhelmingly black and male. The rate of incarceration for black men during the tough-on-crime phase of mandatory minimums was seven to ten times that of comparatively aged white men.
Scholars and researchers warned that mandatory minimums had wreaked havoc on poor communities of color at considerable cost to the taxpayer. “Now that these sentencing reforms have been in place for more than 15 years,” read a paper published by the Urban Institute in 1997:
It is clear that public support for them rested on oversimplified arguments and erroneous data… There is no evidence that the increased use of imprisonment produced measurable reductions in drug crimes. Rather, there is growing evidence that the massive increases in incarceration, particularly for drug and other nonviolent crimes, have led to a misallocation of scarce prison resources, and may be undermining families and communities, thereby contributing to crime problems. This is especially true in black, inner city communities.
Since these concerns first arose in the mid-90s, liberals have been trying to close the Pandora’s box they opened. But conservative lawmakers and public opinion have been slow on the uptake. In 2001, the public was evenly divided on the issue of mandatory minimums. By 2014, the tide had changed a bit: the majority of the public wanted to ease mandatory minimums for drug offenses, but only by a margin of 13%. That same year, Senator Chuck Grassley said that “the current system works well in preserving public safety, is not broken, and should not be ‘fixed.’”
Less than two years later, Grassley is not only on board with sentencing reform — he’s the leading sponsor of the SRCA bill. “For the first time, we are cutting back many of the most severe mandatory minimums so they apply more fairly,” he said. “We are bringing real reform to our prisons that give low-risk inmates the chance to return to society earlier, with better prospects.”
The bill has been years in the making, and it has bipartisan support — a rarity in this divided political climate. If passed, the SRCA would cede more sentencing control to judges. It would only apply to the roughly 200,000 inmates in federal custody — a tiny fraction of America’s imprisoned population — but proponents hope it will set a precedent for state penal systems and jumpstart the process of reducing America’s incarceration rate.
Detractors say the passage of the SRCA will endanger the public. “We’re going to see not only drug increases,” said Ted Cruz, “not only addiction increase, not only overdose deaths increase, we’re going to see a situation in which crime begins to increase again.”
But that’s the old party line. The bill’s significant Republican co-sponsorship is evidence of a sea change. Conservative lawmakers are still divided on the question, but more and more of them are ready to face the failure of mandatory minimums — and the change is happening quickly.
Just as bipartisan collaboration was required to make mandatory minimums the norm, so too will it be required to scale them back. Unfortunately, no amount of across-the-aisle collaboration can undo the damage that’s already been done.
