The War on Drugs and Mandatory Minimums

Recently, independent candidate for governor of Texas Kinky Friedman came out for the legalization of marijuana in the Lone Star State. His rationalization for marijuana’s legalization has to do with his position on crime, notably that he wants to keep minor drug offenders out of jail while putting more serious criminals (rapists, murders, pedophiles) in jail. Friedman is not the first candidate to come out for marijuana’s legalization and certainly independent and third party candidates have long promoted rehabilitation over punishment when it comes to minor drug offenses. However, Friedman’s rationalization makes for a good starting point to renewing America’s discussion about the war on drugs, which has by most accounts failed.

Perhaps the most criticized tool of the war on drugs in America is the idea of mandatory minimums, or proscribe minimum jail sentences for those who are found to use or distribute drugs. The idea behind mandatory minimums, advocated by conservative Republicans and socially conservative Democrats, is that it forces judges to enforce narcotics laws which might be given more subjective treatment on a case-by-case basis. However, many reports and studies have shown that mandatory minimums affect minority offenders far more than white offenders. One study by Harvard professor William Brownsberger showed that mandatory minimums disproportionately were applied to users of crack cocaine, which is used in greater numbers by African American males than any other racial group.

From a constitutional and judicial standpoint, mandatory minimums hardly make sense. The most compelling constitutional argument against mandatory minimums is the use of the Eight Amendment clause preventing “cruel and unusual punishment.” This provision is certainly subjective but on a spectrum between law abiding citizens and murderers, someone who uses drugs in the privacy of their homes and commits no other crime seems pretty insignificant. Therefore, the mandatory minimum sentencing guidelines imposed upon judges forces them into a decision that violates the Eighth Amendment. As well, the passage of laws by state legislatures and Congress have been subject to the interpretation of the judicial branch throughout American history. While mandatory minimum laws provide clear cut legal guidelines for judges, it ends up the discretion of the presiding judge how to sentence (or not sentence) plaintiffs before their court.