Let’s rethink mandatory minimum sentencing

The United States has the highest incarceration rate of any country on earth at 639 per 100,000 citizens. Whether neighbors such as Canada (104 per 100,000) and Mexico (166 per 100,000), close allies such as Britain (130 per 100,000) and Israel (234 per 100,000) or nemeses such as China (121 per 100,000) and Russia (325 per 100,000), no other nation comes close.

The homicide/violent crime rate in those countries varies widely; there appears to be no correlation between incarceration rate and violent crime rate.

Why is the U.S. such an outlier? One major reason: minimum mandatory sentencing laws, both state and federal. These laws mandate a defined prison sentence when a defendant is convicted of a certain crime, often nonviolent drug crimes. Minimum mandatory drug law sentencing is the drug prosecutor’s primary weapon. These laws increased the U.S. incarceration rate from 200 per 100,000 in 1970 to 639 per 100,000 in 2021.

Minimum mandatory sentences have been all the rage over the past 40 years. Vote-hungry legislators stumbled over themselves to introduce “tough on crime” bills to waive in front of their constituents. These laws were a moral and practical disaster.

Is it morally correct to send a 19-year-old to prison for 25 years (minimum mandatory, day for day, no parole) for illegally possessing a few ounces of opiates when violent criminals are getting a fraction of that? What public good comes of this? Prison cells are a finite resource, just like schoolhouses. When we reserve a cell for 25 years for a drug defendant, logic dictates that some other inmate must be released to make space. Too often, that inmate is a violent criminal with a long record.

We choose the most experienced and accomplished attorneys to be our judges, but minimum mandatory laws take basic legal discretion away from them and transfer it to ambitious prosecutors. Judges are powerless to circumvent these sentencing laws, even when common sense and basic considerations of justice cry out for it.

Florida has tough sentencing laws even without minimum mandatory sentencing. Under Florida law, judges may sentence an offender to the statutory maximum sentence upon conviction. That means five years for a third-degree felony such as grand theft auto, 15 years for a second-degree felony such as burglary of a dwelling, 30 years for a first-degree felony such as trafficking in large amounts of drugs, and life in prison for the most serious felonies, such as kidnapping and murder.

Clearly, judges have the power to sentence dangerous criminals to hard time. Moreover, Florida law requires inmates serve 80% of their sentences. But the central (and false) idea behind minimum-mandatory sentencing is that judges cannot be trusted to give appropriately severe sentences unless compelled to by law. Any veteran prosecutor or defense lawyer will tell you this is not the case. Politicians who support these laws often bolster their argument by cherry-picking a criminal case (out of many thousands) in which the judge imposed an overly lenient sentence to convince the public that we need these laws. The reality is that tough sentencing on violent crime is the order of the day in any court.

No objective, unbiased legal body supports minimum mandatory sentencing laws. But they get a great deal of support from prosecutors and police agencies, and it’s easy to see why. Prosecutors claim they routinely waive minimum-mandatory sentences. But even if a 15-year minimum-mandatory sentence is not imposed, it is used as an ax over defendants’ necks to force them to take a sentence of seven or eight years. Or, an innocent defendant can be coerced into taking probation and a permanent felony record by the threat of a 25-year sentence. What would an innocent defendant do if the sentence on a drug charge after trial was a minimum 25 years — and the judge was legally bound by that? Guilt or innocence falls by the wayside. Only the bravest of innocent defendants will opt for trial.

This is a scenario that plays out every day in Florida’s criminal courts. It’s unjust and has transformed our nation into the world’s largest jailer. We can abolish these laws and still maintain public safety.

Barring criminal justice reform in the Florida Legislature, only the U.S. Supreme Court can nullify these laws. It’s time for the justices to hear a case that exemplifies the injustice of minimum-mandatory sentencing. The majority of the justices were trial judges prior to appointment to our highest court. They have direct experience with these laws. With its current conservative majority, the Court has the bona fides to take the bull by the horns on this critically important issue.

Gerard S. Williams was a Broward prosecutor from 1991 through 2001 and has been a criminal defense attorney since then.