Eliminating Mandatory Minimums in Virginia

By: Kaylin Cecchini

The United States criminal justice system needs a multitude of reforms to be a productive force for justice, reduced crime and recidivism, and safety.[1] The United States, in all jurisdictions, is fond of imprisonment with “a total custodial population of more than 2.2 million people, constituting almost a quarter of the world’s inmates”.[2] Surely there are ways to meet the goals of the justice system without completely removing people from their communities, the economy, and their lives. Like when anything is amiss, it is best practice to examine what is currently being done to achieve a goal, evaluate its effectiveness in doing so, and evaluate any other associated metrics. There is an opportunity to join other states[3] by creating the kind of reform that is so sorely needed right here in Virginia; we must eliminate mandatory minimum sentences for both felony and misdemeanor convictions.

 

Mandatory minimums are ineffective in achieving the intended goals of the criminal justice system in Virginia. These laws do not deter crime[4], they are of great social and financial cost to the communities within the commonwealth[5], and they hamper judicial efficiency[6]. There are also better interventions for reducing recidivism and crime[7].

 

In addition, there are unintended consequences of their implementation. For example, there is a serious disparity in sentencing lengths even under a uniform sentencing structure, and these disparities fall on racial lines.[8] Black inmates have more mandatory minimum sentences, on average, than their white inmate counterparts: 41% of black inmates have one or more mandatory minimum sentences, meanwhile just over 25% of white inmates have one or more.[9] Whatever a person’s preferred response to crime might be, it is easily agreed upon that adjudication outcomes should not be based on race. Our constitution protects citizens from such practices.

 

Acknowledging that crime does occur, we must then evaluate what the response to it should look like in order to accomplish collective goals. There are two main themes that animate policies which respond to criminal actions: retribution and restoration.[10]

 

Retribution is a punishment based theory focusing on awarding “just deserts”.[11] This means the punishment that one deserves; under retribution the punishment should always be proportionate to the severity of the intentional crime.[12] Proponents of a retributive model of justice will prioritize causing some harm to the offender that is comparable, even if different in kind, to the harm the offender caused another.[13] This is an understandable psychological instinct experienced by all when responding to some harm.[14] For example, when the “bad guy” in a movie gets caught, killed, or jailed the audience cheers – the “bad guy” has received a punishment for his moral wrongdoings. Mandatory minimums are a clear cut tool of retributive justice. Does this provide victims with justice? In some sense, surely; the offender has had to pay for the crime with the loss of their freedom.

 

That said, if their offender is their community member and their mandatory minimum sentence is 2 years, will they reoffend against the original victim or some other neighbor once released? Maybe. Imprisonment either has no effect or may even increase the likelihood of reoffending.[15] Parole shows better results for reducing recidivism, however.[16] The Prison Fellowship says that “in one state, prisoners who were released under supervision were 36% less likely to be reincarcerated than their peers who served out their full sentences and had no supervision after release”.[17] Perhaps justice is measured by taking steps that demonstrably lessen offenders’ likelihood of reoffending, and restoring the victim to their original state prior to the harm however is feasible. This is more in line with restoration. Restorative justice is not based on punishment, rather it is based on “truth and reconciliation”.[18] This is intended to be an intimate process between the person who has been wronged and the person who has committed a wrong.

 

An analysis of public opinion is also valuable to this inquiry. What do victims want? Is there support for mandatory minimum sentencing? The answers are restorative justice and no, respectively.[19] Public opinion research on sentencing shows that when questions are very simple or restorative alternatives are not provided, people lean heavily toward sentence severity.[20] When presented with alternative interventions or confronted with application of punitive measures to specific cases, support for them dramatically reduces.[21] A national survey showed that 94% of respondents preferred harsh sentencing when presented with a simple question, but said spending money for youth programs was as favorable an option, when later provided in a second survey, as mandatory sentencing was.[22] Three Strike Laws were examined next and initially the policy garnered 88% of respondents’ support.[23] The same group was then asked to apply it to specific cases and support fell to only 17%.[24]

 

This shows that (1) harsh punishment and retributive forms of justice are only favorable in the abstract – to faceless, nameless “criminals”, and (2) the vast majority of people are completely unaware of what mandatory minimums truly are. If they had a good conceptual understanding of the policy, applying it to real situations would not create such a dramatic difference in responses for support. It is for the foregoing reasons that elimination of mandatory minimums is a solid step toward criminal justice reform in Virginia.

[1] Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 CRIME & JUST. 65, 65–66 (2009).

[2] ROY WALMSLEY, INTERNATIONAL CENTRE FOR PRISON STUDIES, WORLD PRISON POPULATION LIST (11th ed., 2016).

[3] FAMS. AGAINST MANDATORY MINIMUMS, RECENT STATE-LEVEL REFORMS TO MANDATORY MINIMUM LAWS (2016), https://famm.org/wp-content/uploads/Recent-State-Reforms.pdf.

[4] Virginia State Crime Commission, Mandatory Minimum Sentences (Jan. 2021), http://vscc.virginia.gov/2021/VSCC%20Mandatory%20Minimums%20Presentation.pdf.

[5] Walter J. Dickey, Evaluating Mandatory Minimum Sentences, D.O.J (1993), https://www.ojp.gov/ncjrs/virtual-library/abstracts/evaluating-mandatory-minimum-sentences.

[6] Walter J. Dickey, Evaluating Mandatory Minimum Sentences, D.O.J (1993), https://www.ojp.gov/ncjrs/virtual-library/abstracts/evaluating-mandatory-minimum-sentences.

[7] Mandatory Minimums and Racial Justice, JUSTICE FORWARD, https://justiceforwardva.com/mandatory-minimums.

[8] VADOC Research – Statistical Analysis and Forecast Unit, Disparities in Sentencing Among Inmates with Mandatory Minimum Sentences (Dec. 2020), https://www.vadoc.virginia.gov/media/1646/vadoc-research-disparities-in-sentencing-among-offenders-2020.pdf.

[9] Id.

[10] Erik Luna, Mandatory Minimums, 4 Car. L. Rev. 117 (2010), https://law.asu.edu/sites/default/files/pdf/academy_for_justice/7_Criminal_Justice_Reform_Vol_4_Mandatory-Minimums.pdf.

[11] Id.

[12] Kevin M. Carlsmith, The roles of retribution and utility in determining punishment, 42 Journal of Experimental Social Psychology 437, 437-51 (2005).

[13] Id.

[14]  Id.

[15] Daniel S. Nagin, Francis T. Cullen & Cheryl Lero Jonson, Imprisonment and Reoffending, 38 CRIME & JUST. 115 (2009); Michael Mueller-Smith, The Criminal and Labor Market Impacts of Incarceration (Aug. 18, 2015), https://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2015/09/incar.pdf.

[16] How Can Parole and Credit Policies Reduce Recidivism? Prison Fellowship (2020) https://www.prisonfellowship.org/2020/12/parole-and-credit-policies-reduce-recidivism/.

[17] Id.

[18] Bob Garfield & Danielle Sered, Repairing Justice: An Alternative to Prison, (Jul. 2019), Podcast, https://www.wnycstudios.org/podcasts/otm/episodes/repairing-justice-alternative-prison.

[19] Julian V. Roberts, Public Opinion and Mandatory Sentencing: A Review of International Findings, 30 J. Crim. Just. & Behavior 483, 491 (August 2003).

[20] Julian V. Roberts, Public Opinion and Mandatory Sentencing: A Review of International Findings, 30 J. Crim. Just. & Behavior 483, 493 (August 2003).

[21] Id.

[22] Julian V. Roberts, Public Opinion and Mandatory Sentencing: A Review of International Findings, 30 J. Crim. Just. & Behavior 483, 491 (August 2003).

[23] Julian V. Roberts, Public Opinion and Mandatory Sentencing: A Review of International Findings, 30 J. Crim. Just. & Behavior 483, 493 (August 2003).

[24] Id.