Monday, March 8, 2021
Stephanie Holmes Didwania (Temple University - James E. Beasley School of Law) has posted Mandatory Minimum Entrenchment and the Controlled Substances Act (Ohio State Journal of Criminal Law, Vol. 18, 2020) on SSRN. Here is the abstract:
Since their enactment in the mid-1980s, mandatory minimum sentencing provisions have been a prominent feature of the Controlled Substances Act. Observers argue that these mandatory minimum provisions generate unjustifiably harsh sentences for many federal criminal defendants convicted of drug offenses and significantly contribute to racial inequality in the federal criminal system. This essay describes another important characteristic of these mandatory minimums—their reach beyond cases in which they are actually charged. I call this phenomenon and its attendant institutional framework mandatory minimum entrenchment. Rather than conceptualizing mandatory minimums as a binary component of a defendant’s case that either applies or does not, I argue it is more realistic to confront mandatory minimums as a primary element in a larger sentencing framework.
This essay first describes the emergence of mandatory minimums, which Congress added to the Controlled Substances Act roughly fifteen years after its passage. Part II describes how mandatory minimums were hastily created in response to political and public pressure. Part III explains how mandatory minimums then became entrenched in federal sentencing of defendants convicted of drug offenses. Entrenchment flourished as the mandatory minimums for drug offenses influenced the U.S. Sentencing Commission’s drug guidelines, to which prosecutors and judges are formally and behaviorally tethered. Part III then presents a case study that illustrates mandatory minimum entrenchment: showing that sentences for low-level, nonviolent drug defendants remained relatively stable despite a sweeping 2013 policy change that meaningfully reduced mandatory minimum charging in this group. The essay ends in Part IV, which calls on Congress to amend the Controlled Substances Act to either eliminate or reduce its mandatory minimum provisions.