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Mandatory mayhem

Law | By stripping judges of discretion and sending nonviolent criminals to prison, 'tough on crime' sentencing laws have created unintended consequences

Issue: "Dating and courtship confusion," June 4, 2011

Many biblical scholars have argued that the Old Testament's famous "an eye for an eye" codes created proportionate penalties for crimes: They ruled out a killing for an eye, or (as in some Islamic law) a hand for a piece of bread.

Has our desire to wage war on drugs created disproportionate penalties? Here are two examples:

JeDonna Young, who just turned 23, had a young son and an older boyfriend who owned multiple businesses. She also had a clean criminal record, until the day in 1978 when her boyfriend asked for a ride. She loaded his bags in her car and drove only a few blocks before the police stopped them, jumped out with guns, and found her boyfriend's drugs in the bags. Because of Michigan's mandatory minimum drug sentencing, Young's sentence was prison for life. When Michigan reformed its laws, Young was able to leave prison after only 20 years, but her son had grown up without his mother.

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Debi Campbell's crime was substantial: At 37 and homeless in California after escaping an abusive husband, she dealt drugs with the goal of getting enough money to get two of her four children back from foster care. Her mandatory minimum sentence: 19 years in prison. "I broke the law, so I knew I should be punished," Campbell says, but her sentence also punished her family. Her younger daughters flitted among foster homes and relatives. Now, one is in jail, while the other has gone through a drug rehab program.

Mandatory sentencing, part of the 1980s conservative prison reform effort to be "tough on crime," was meant to lock up drug kingpins profiting from the crack epidemic of the 1980s. In the process, the mandatory minimum for drug offenders often became five, 10, or more years, based on the type and weight of the drug and any prior offences. Those who could offer substantial information about higher-ups involved in the crime could sometimes earn reduced sentences.

In recent years many judges and evangelicals have begun to criticize mandatory minimum sentencing. "One of the worst things that happened to the justice system in this country was the notion that discretion should be taken away from judges in terms of sentencing," says a retired New Orleans judge, Calvin Johnson, a 34-year court veteran. "We have a penal system full of individuals arguably who either shouldn't be there at all, or, if at all, should be there for much shorter periods of time. . . . You have the financial consequences that society pays, but then you have the human toll on both that individual and that individual's family."

Pat Nolan, head of Justice Fellowship (JF), Prison Fellowship's program that examines criminal justice, says mandatory sentences aren't working: "We're not safer, it's bursting state budgets, and we're not changing behavior." Nolan argues for alternatives to incarceration such as home detention, supervised probation, community supervision, and treatment programs, with prison cells reserved for the violent and dangerous.

Detectives Andrea and Clark Luntsford of the Boone County, Mo., Sheriff's Department have similar suggestions. Prisoners who should be locked up, Andrea Luntsford says, are those who "don't believe that what they're doing is wrong, or they don't want to stop."

Clark Luntsford, who works in the narcotics division, argues that those who are not a danger to others should not be in prison: "You send a first-time, nonviolent offender to prison and all he gets is an education on how to be worse."

Of the 2.3 million men and women now in American prisons and jails, more than 60 percent are nonviolent offenders, and almost half of those are nonviolent drug offenders. The United States Sentencing Commission, an independent agency of the judicial branch in Washington, has been reviewing drug sentencing procedures and may soon propose less severe penalties. But two evangelicals who have visited hundreds of prisons, Chuck Colson and Mike Huckabee, are proposing more radical alternatives (see sidebar).

One reason for their proposals is that tens of thousands of parents are among the more than 500,000 nonviolent drug offenders. Buddy Osborn, who started a boxing ministry for kids in Philadelphia after serving five years in a federal penitentiary, says, "When the father, the breadwinner, is no longer around, the family is lost." A wife or girlfriend left behind finds it hard to hold down a job with two or three kids. Some turn to faster ways of making money, such as selling drugs.

Texas has been one of several states to reform its criminal justice system by emphasizing drug treatment. "When those reforms went into effect, for the first time in history any inmate who needed it got into drug treatment the next day," JF's Nolan says. Instead of building more prisons, Texas emphasized drug courts-special dockets for nonviolent substance abusers-and redirected the money saved into community treatment for the mentally ill and low-level drug addicts. The reform has not, as some may have feared, led to more criminal behavior: Crime rates have fallen in Texas since the reform went into effect, mirroring a nationwide drop in crime.

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