Mandatory Minimums Divide Conservatives, and Both Sides Have a Point

Here is a rare thing: a policy fight in which both sides of the right can quote the Founders and neither is making it up. One camp says the Constitution gave Congress the power to define crimes and set punishments, and that a legislature which promises a minimum sentence is simply doing its job. The other camp says the Founders distrusted fixed, one-size-fits-all rules and trusted judges and juries to fit a sentence to a man. Both camps have read Blackstone. They have simply highlighted different pages.

The subject is the mandatory minimum, a sentence that a judge must impose once a defendant is convicted of a certain offense, no matter what the judge thinks the case deserves. It has been one of the most contested features of federal criminal law for forty years, and conservatives are honestly divided over it. I think both sides have a point, and I intend to say what each point is, where each one fails and where I land.

Define the terms

A mandatory minimum is a statutory floor. If Congress says that possessing a certain quantity of a certain drug with intent to distribute carries a mandatory minimum of five years, a judge who finds the defendant guilty cannot sentence below five years, whatever the defendant's background, role or remorse. The judge may sentence above it, up to the statutory maximum. Only the floor is fixed.

A guideline is a different animal. The federal Sentencing Guidelines are a numeric system created by the United States Sentencing Commission, an agency in the judicial branch established by the Sentencing Reform Act of 1984, which scores an offense and an offender's criminal history and produces a recommended sentencing range. For many years federal judges were required to follow it. They no longer are, as we shall see.

Discretion means the power to choose within limits. The debate over mandatory minimums is, at bottom, a debate over who should hold discretion: the legislature, which sets the floor in advance; the prosecutor, who decides what to charge and therefore which floor applies; or the judge, who hears the case.

The case for mandatory minimums, stated well

Let us give the supporters of mandatory minimums their best case, in numbered premises, because it is better than their critics admit.

1. Certainty deters. A long tradition in criminology holds that the certainty of punishment deters more than its severity. A mandatory minimum is a promise: if you do this, a particular consequence follows. The promise is only useful if it is reliably kept.
2. They reduce disparity. Before the 1984 reforms, federal sentencing was famously unpredictable. Two defendants convicted of the same conduct could receive very different sentences depending on which judge drew the case. A floor, together with the guidelines, is a way to make like cases come out alike. Equal treatment is a conservative value, and the idea that the sentence should not depend on the judge's mood has real force. We discuss the principle in Equal Justice Under Law, From the Fourteenth Amendment to the Courthouse.
3. They are democratic. In a republic, the elected legislature decides how seriously to treat a crime. If voters believe that selling large quantities of a deadly drug should carry a heavy price, their representatives may write that into law. Judges, who are not elected, should apply the law, not edit it. The Supreme Court has repeatedly accepted that setting punishments is a legislative power.
4. They give prosecutors leverage against organizations. A prosecutor who wants to climb from the street dealer to the supplier needs a reason for the dealer to cooperate. A mandatory minimum supplies that reason. The prospect of a long fixed term, which the prosecutor can reduce by recommending a sentence below the minimum in exchange for substantial assistance, brings witnesses forward. Prosecutors, who see this work up close, are among the most consistent defenders of mandatory minimums.

These are serious points, and they are the reason the policy has survived decades of criticism.

The case against, stated just as well

Now the opposing case, again in words its defenders would accept.

1. Judges see the case; legislators do not. A legislature writes a rule for the average case in the abstract. A judge hears the particular defendant: the first-time offender who was a minor player in a conspiracy, the mother who held a package for her boyfriend, the young man with no record who is facing a decade. When the rule is fixed, the judge's knowledge is wasted. Our tradition of discretion at sentencing is old, and a rule that bars a judge from considering the individual runs against it.
2. The discretion does not vanish. It moves. Under a mandatory minimum, the decision about which sentence a defendant receives is made by the prosecutor, who chooses the charge and decides whether to file the paperwork that triggers a minimum, and who may offer to waive it for cooperation. That is discretion exercised privately, without a public record, by an official who is a party to the case. A fiscal conservative would ask: why do we trust the party who wants a conviction more than the neutral official whose job is to be fair?
3. They cost a great deal. Long fixed sentences fill prisons, and prisons cost money. Conservatives who watch the public purse have asked whether a very long term for a low-level offender buys enough public safety to justify its price. We look at one state's answer in Texas Chose Treatment Beds Over New Prisons in 2007, and Here Is Why.
4. They apply to people the legislature did not have in mind. The classic example is the drug-weight trigger. When Congress sets a minimum by quantity, it is trying to hit the kingpin. But weight is a poor proxy for role: a courier carrying a large load can trigger the same minimum as the man who organized the shipment.

I find the second point the strongest, and I will return to it.

The 1986 law and the 100-to-1 ratio

Nothing illustrates both cases better than the history of the Anti-Drug Abuse Act of 1986, signed in October of that year.

The background matters. Crack cocaine had spread through American cities in the mid-1980s, and the violence associated with it was real: open-air markets, turf wars, neighborhoods that lost their stability. In June 1986 the death of the basketball star Len Bias from a cocaine overdose, just after he was drafted by the Boston Celtics, heightened the sense of urgency in Washington. Congress moved quickly and passed a law with bipartisan support.

The law created tiered mandatory minimums for drug trafficking, keyed to the quantity of the drug. A trafficking offense involving 500 grams of powder cocaine carried a five-year mandatory minimum, and an offense involving 5 kilograms carried a ten-year minimum. For crack cocaine, the thresholds were 5 grams for the five-year minimum and 50 grams for the ten-year minimum. In plain arithmetic: 500 divided by 5 is 100, and 5,000 divided by 50 is 100. The result was the famous 100-to-1 ratio. A dealer of crack received the same minimum sentence as a dealer of powder cocaine who handled one hundred times as much.

Congress's reasons were not frivolous. Crack was believed to be more addictive and more closely associated with violence, and its small, cheap doses were easy to sell on the street. But the ratio rested on a weak foundation. Powder and crack are the same drug in different forms. Critics noted that the heavier penalties fell mostly on street-level sellers in cities and, because crack was disproportionately prosecuted in poor and minority neighborhoods, produced a stark racial disparity in sentences. Many people who supported tough penalties in 1986 concluded, with time, that the ratio was indefensible. Those included many conservatives, and that history is an example of the right changing its mind in response to evidence, which is not a thing to be ashamed of.

The 1994 safety valve

Congress's first correction came in 1994. The Violent Crime Control and Law Enforcement Act of that year created the safety valve, codified at 18 U.S.C. 3553(f). It allows a judge to sentence below the mandatory minimum in certain drug cases if the defendant meets a set of conditions: a limited criminal history, no violence or weapon, no leadership role in the offense, no death or serious injury resulting, and a truthful disclosure to the government of what he knows. The valve was narrow at first, and the First Step Act of 2018 widened it, a change we describe in How Earned Time Credits Work in Federal Prison, and Who Is Left Out.

The safety valve is the best evidence that the two camps are closer than their rhetoric suggests. It accepts the supporters' premise, that Congress may set a floor, and it accepts the critics' premise, that some defendants deserve an exception. The only dispute is where the line goes.

The Fair Sentencing Act of 2010

The second correction was the Fair Sentencing Act of 2010, signed on August 3, 2010 with bipartisan support. It did not eliminate the disparity between crack and powder, but it reduced it. It raised the amount of crack that triggers the five-year minimum from 5 grams to 28 grams and the amount that triggers the ten-year minimum from 50 grams to 280 grams. Checking the arithmetic: 28 times 18 is 504, close to the 500-gram powder threshold, and 280 times 18 is 5,040, close to 5,000. So the ratio fell from 100 to 1 to about 18 to 1. The Act also eliminated the five-year mandatory minimum for first-time simple possession of crack.

It took a further step in the First Step Act of 2018 to make the Fair Sentencing Act's reductions available to people who had been sentenced before it passed.

Guidelines, Booker and the role of the jury

A parallel story runs through the courts, and it is a story about the Constitution's text. The Sixth Amendment guarantees "the right to a speedy and public trial, by an impartial jury." In a line of cases beginning with Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the Supreme Court held that any fact that increases a defendant's maximum sentence must be found by a jury beyond a reasonable doubt, not by a judge by a preponderance of the evidence.

In United States v. Booker (2005), the Court applied that rule to the federal Sentencing Guidelines. In a pair of opinions, a majority concluded that mandatory guidelines, under which a judge's fact-finding could increase the sentence, violated the Sixth Amendment, and a different majority fashioned the remedy: it made the guidelines advisory rather than mandatory. The judge must still calculate the guideline range and consider it, but may sentence outside it, subject to appellate review for reasonableness. Two years later, in Kimbrough v. United States (2007), the Court held that a judge could disagree with the crack-powder ratio itself as a policy matter.

Booker did not abolish statutory mandatory minimums. Those come from Congress, not from the guidelines, and they remain binding. But the Court did hold in Alleyne v. United States (2013) that a fact that raises a mandatory minimum must be found by a jury, just as a fact that raises a maximum must be. The effect is a federal system in which the guidelines are advisory, the statutory minimums remain and the jury has a constitutional role in the facts that trigger them. Conservatives who care about the original meaning of the jury right should note that this line of cases rests on the Sixth Amendment's text and history.

Where the right is divided, and why it is not a contradiction

Look at what the two conservative camps actually believe.

The prosecutors and law-enforcement conservatives believe that criminals respond to incentives, that organized crime is dismantled from the bottom up and that a predictable sentence is a weapon in that campaign. They see the safety valve as a sensible release from a rule that is, on the whole, working.

The fiscal and limited-government conservatives believe that concentrated, unreviewable power is dangerous in any hands, that prisons are public spending that deserves scrutiny like any other and that the people closest to a case are better placed to judge it than the people furthest away. They see mandatory minimums as a version of central planning applied to human beings.

These are not contradictory impulses. They are the two conservative instincts that have always pulled against each other: the instinct for order and the instinct for restraint. Madison understood the tension in Federalist No. 51 when he wrote that men are not angels, so government must have controls, and the government must also be controlled. The question is which controls fit which power. A mandatory minimum controls the judge. A discretionary sentence controls the prosecutor. A conservative must decide which official he trusts less, or, better, build a system in which neither is trusted alone.

Where I land

I will state my view as a view. Mandatory minimums are defensible for a small set of offenses where the conduct is grave, the line is clear and the legislature has deliberately decided that no circumstances should reduce the penalty. They are a poor tool for drug offenses defined by weight, for the reason the critics give: weight does not measure culpability. A legislature that sets a minimum should also set a safety valve that is broad enough to catch the defendants it never meant to reach. And it should be honest that a floor does not eliminate discretion; it hands it to the prosecutor, so the prosecutor's charging choices should be as open to public view as a judge's sentencing reasons are.

That is a middle position, and I hold it because the facts of the 1986 law, a ratio changed by Congress itself, show that legislatures can get the numbers wrong. A rule that cannot be adjusted by the people who apply it needs especially careful drafting, and especially careful review.

For a related look at how the executive's choices shape outcomes, see Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them, and for the broader legislative history of the era, The 1994 Crime Bill, What It Actually Did and Who Wrote It.

The case in brief

1. A mandatory minimum is a floor set by Congress, and the debate over it is a debate over who should hold sentencing discretion: the legislature, the prosecutor or the judge.
2. Supporters say floors deter through certainty, reduce disparity, honor democratic choice and give prosecutors leverage against organizations; critics say they ignore the individual case, move discretion to prosecutors, cost a great deal and use weight as a poor proxy for guilt.
3. The Anti-Drug Abuse Act of 1986 set a 100-to-1 crack-to-powder ratio, which the safety valve of 1994 softened and the Fair Sentencing Act of 2010 cut to 18 to 1.
4. Booker (2005) made the Sentencing Guidelines advisory under the Sixth Amendment, Kimbrough (2007) let judges disagree with the crack ratio, and Alleyne (2013) gave juries a role in facts that raise a minimum.
5. A sensible conservative position keeps floors for grave and clearly defined offenses, pairs them with a real safety valve and makes charging decisions transparent.

What you can do: look up the mandatory minimums in your own state's criminal code for one offense you care about, and ask your state legislator whether the statute has a safety valve and when it was last reviewed.