Could HR 7194 End Some Mandatory Minimums?

In 1991, the United States Sentencing Commission submitted a report to Congress calling for the abolition of mandatory minimums. We’re on the eve of the 30-year anniversary of that report. Yet we’ve made very little progress when it comes to the unfair sentencing practice. HR 7194, also known as the Mandatory Minimum Reform Act of 2020, could change that. But will it?

What are “mandatory minimums” in sentencing?

In short, “mandatory minimums” are minimum sentences that courts must impose on people convicted of certain crimes. Federal law includes more than 150 sentences like this. While a significant portion of that 150-plus isn’t commonly used, many are. And much of it addresses drug-related crimes. Nearly every state has mandatory minimums for certain crimes (usually drug-related ones) as well.

These minimum sentences keep judges from exercising their discretion. A judge might believe the sentence required by law is too harsh for the offender or the circumstances. But they are nevertheless bound to impose it anyway.

Mandatory minimums also give prosecutors too much power during plea negotiations. If, for example, a state imposes a 25-year minimum for a sexual-assault offense, prosecutors have little incentive to budge when they offer anything less than that in exchange for a plea.

What can be done to fix the problem?

It’s not hard to find outspoken critics of mandatory minimums. Many organizations focused on criminal-justice reform like the ACLU, the Prison Policy Initiative and yours truly address them in context with other much-needed reform. But there are also organizations that are squarely devoted to fighting the unjust consequences of mandatory minimums like Families Against Mandatory Minimums.

Stated simply, “one size fits all” criminal justice doesn’t work. And mandatory minimums are exactly “one size fits all.” For example, a mandatory minimum for drug crimes imposes the same punishments based on the type and quantity of the drug involved. But they refuse to consider many other important factors, such as who the offender is, whether the crime was violent, whether the offender is dangerous, what their role was in the actual offense, and other considerations.

Depending on who you ask, there are a variety of ways to help fix the problem. One of the more common suggestions is having experts create sentencing guidelines. These guidelines would create recommendations for sentences in each case based on the offender’s record, the seriousness of the offense and several other considerations. But such a system would also give judges the power to impose sentences below or above the recommended range as well.

Federal courts and state courts across the country using sentencing guidelines like this now. Some are mandatory, meaning judges can’t depart from the recommended range, but others give judges additional flexibility. If experts successfully put together comprehensive guidelines, judges are better positioned to impose fairer and more flexible sentences than they currently can.

What is being done to fix the problem?

Frustratingly, lawmakers aren’t doing much to address the problems with mandatory minimums. Some related legislation occasionally includes reforms to mandatory minimums like the First Step Act of 2018. Yet, despite multiple decades of criticism, these unfair minimum sentences continue to dictate unjust sentences across the country. But that doesn’t mean that some lawmakers aren’t trying.

U.S. Representative Maxine Waters (D-CA) introduced HR 7194 in June 2020. Rep. Waters and several other lawmakers introduced the bill, called “the Mandatory Minimum Reform Act of 2020, “[t]o eliminate mandatory minimum sentences for all drug offenses.”

The Mandatory Minimum Reform Act of 2020 aims to fix some alarming problems caused by mandatory minimums.

The “findings” section of the bill emphasizes the fact that mandatory minimums are both on the rise and expensive to taxpayers. When Congress first imposed them for drug offenses, the bill explains, the federal prison population was 36,000. Now, three decades later, the population has increased by nearly 400%, to more than 177,000.

“According to the Bureau of Prisons,” the bill continued, “the average cost to keep one prison in Federal prison for the fiscal year of 2017 was $36,299.25, which equates to $99.45 per day.” In total, between 1980 and 2015, the annual spending on the federal prison system has increased by more than 600% according to the bill.

The alarming statistics don’t stop there. In 1986 — before the adoption of mandatory minimums for drug offenses — drug offenders served an average of 22 months in prison. After? In 2018, the average drug-trafficking sentence faced more than 10 years in prison.

What’s worse is that these unfair sentences aren’t being imposed against the most dangerous offenders. In 2016, for example, less than 30% of the convictions that came with a mandatory minimum involved the use or threat of a weapon or violence. And just over 10% involved someone who played a leadership role in the offense.

Mandatory minimums disproportionately impact minorities, especially Black Americans, as well. In 2016, for example, of the 8,342 individuals who faced mandatory-minimum sentences, more than 35% were African Americans, roughly 5% more than any other race.

While the 5% disparity might not sound significant in and of itself, context demonstrates just how drastic it truly is. As the bill states, “According to the U.S. Sentencing Commission, between 1994 and 2003, the average time served by African Americans for a drug offense increased by 62 percent, compared to a 17-percent increase among White drug defendants.”

The bill helps fix the problem by getting rid of mandatory minimums and creating oversight for the prosecution of minor drug-related offenses.

The majority of the bill eliminates the provisions imposing mandatory minimums from the Controlled Substances Act and the Controlled Substances Import and Export Act. These are straightforward amendments that simply remove the problematic provisions.

But it also aims to ensure that federal prosecutors aren’t unnecessarily prosecuting low-level drug-possession offenses. It requires the Attorney General to provide written approval before federal prosecutors prosecute someone under the Controlled Substances Act or the Controlled Substances Import and Export Act in several circumstances.

Specifically, the written-approval requirement mandates permission “where the offense involves the illegal distribution or possession of a controlled substance in an amount less than that amount specified as a minimum for an offense … or, in the case of any substance containing cocaine or cocaine base, in an amount less than 500 grams….”

Will Rep. Waters’s mandatory minimums bill finally do what it takes?

The Mandatory Minimum Reform Act of 2020 might not be a flawless fix to the problem. But it’s a step in the right direction. And attorneys, advocates and allies across the country have applauded Rep. Waters’s efforts to end this unfair sentencing practice.

That last sentence is just as true in 2020 as it was last year. And the year before. As well the year before that. And even the year before that. Just search “rep waters mandatory minimums” on Google. You’ll be flooded with her bill from 2013 trying to do the same. Or her statement from 2018 about the need to do the same. Or an article about her from 2015. And you’ll even find her testimony from 2006.

“We’re seeing a change in attitude now and the old law and order discussion and ways of campaigning have diminished quite a bit, and so I do think we have a better chance now,” Rep. Waters told Think Progress about getting Republican support ending mandatory minimums. “People’s thinking has evolved and they have come to understand that mandatory minimums are unfair, they were targeted, and that it’s costly to have low-level offenders locked up.”

Those comments by Rep. Waters are from 2015. And after the past four or so years full of “law and order,” it’s hard not to wonder whether Rep. Waters was wrong about the change in attitude then and might be even more wrong today.