Shift the Paradigm on Mandatory Minimums

Federal prosecutors charged John with planning to rob a nonexistent drug stash house and distribute a fictitious amount of nonexistent cocaine. Suddenly, as a result of the fabricated drugs, John found himself locked in a jail cell. In such cases, the government has the power to set a high mandatory penalty by inflating the amount of nonexistent drugs they claim is in the nonexistent stash house.

Because the government in John’s case had arbitrarily chosen an enormous quantity of fabricated drugs, John faced a mandatory minimum: A one-size-fits-all penalty created by Congress that would require the judge to sentence him to 25 years behind bars. It didn’t matter that John was a veteran, a father, and an upstanding citizen who had been tricked into committing an imaginary crime. John spent years—841 days, to be exact—locked in a cage at the federal jail. His wife and children were rendered homeless; they bounced around from family member to family member, often sleeping on floors. John’s wife worked tirelessly to make ends meet while his displaced kids struggled to keep up with classes and sports—all while he sat caged, unable to help.

The Federal Criminal Justice Clinic at the University of Chicago Law School intervened on behalf of John and 42 others charged in fabricated stash house cases. Building on groundbreaking racial discrimination litigation initiated by now-Judge Candace Jackson-Akiwumi, criminal defense attorney Steven Saltzman, Assistant Federal Defender Paul Flynn, and others, Clinic professors Judith Miller, Erica Zunkel, Alison Siegler, and their students worked with a coalition of federal defenders and CJA lawyers to file motions to dismiss the cases, contending that their clients were victims of racial discrimination. See Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 1009, 1024–25 (2021); Rachel Poser, Stash-House Stings Carry Real Penalties for Fake Crimes, New Yorker (Oct. 18, 2021). After a hard-fought court battle, the lawyers convinced prosecutors to dismiss the mandatory minimums.

Instead of spending 23 more years behind bars, John returned home to his family. Soon after his release, he attended his son Tristan’s eighth-grade graduation, one of the many milestones a mandatory minimum would have locked him out of. John became a medivan driver praised by his patients as a kind man who boosts their spirits and handles their oxygen tanks and wheelchairs with care. But the outcome of John’s case is an exceptionally rare result, and advocates like Erica Zunkel continue litigating to release people serving decades-long mandatory sentences in stash house cases. See Annie Sweeney & Jason Meisner, “Like Seeing in Color After Being Colorblind”: After 12 Years in Prison for Controversial Stash-House Conviction, Dwayne White Tastes Freedom, Chi. Trib. (Aug. 20, 2021).

At the federal level, mandatory minimum penalties, like those prosecutors levied against John, form the cornerstone of what civil rights lawyer Alec Karakatsanis has called the “human caging” system. Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. L. Rev. F. 253, 262 (2015). Prosecutors’ use of mandatory minimums in over half of all federal cases has driven the exponential growth in the federal prison population in recent decades—growth that disproportionately impacts poor people of color. See Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives 9, 23 (2016), (Colson Report).

If white fathers and husbands faced the same treatment as John, no one would stand for it. As scholar Cornel West observes: “There is no doubt that if young white people were incarcerated at the same rates as young [B]lack people, the issue would be a national emergency.” Cornel West, Foreword to Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, at x (2d ed. 2012). But it’s common to depersonalize and dehumanize those on the receiving end of the criminal legal system, “stripping [them] of human qualities [until] they are no longer viewed as [people] with feelings, hopes and concerns, but as subhuman objects.” Lawton P. Cummings, Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform, 31 Cardozo L. Rev. 2139, 2154 (2010).

This is systemic racism in action. As Pulitzer Prize-winning author Isabel Wilkerson writes, “A caste system relies on dehumanization to lock the marginalized outside of the norms of humanity so that any action against them is seen as reasonable.” Isabel Wilkerson, Caste: The Origins of Our Discontents 142 (2020). Wilkerson identifies African Americans as the “out-group” the United States has “reduced . . . to an undifferentiated mass of nameless, faceless scapegoats, the shock absorbers of the [nation’s] collective fears.” Id. Racial disparities in the application of mandatory minimum penalties are a particularly stark illustration of Wilkerson’s thesis. As the Federal Criminal Justice Clinic testified before Congress in advocating for an end to mandatory minimums, “We must recognize that we are, indeed, facing a national emergency.” Controlled Substances: Federal Policies and Enforcement: Hearing Before the H. Subcomm. On Crime, Terrorism, and Homeland Security, (Statement of Alison Siegler, Erica Zunkel, and Judith P. Miller, Fed. Crim. Just. Clinic, Univ. of Chi. Law Sch.), 117th Cong. (Mar. 11, 2021).

We stand at a critical crossroads. To dismantle this country’s dehumanizing and racially skewed human caging system, we must eliminate mandatory minimums. Forget swinging the pendulum from tough-on-crime to leniency; it always swings back. Instead, it is time for a paradigm shift. A paradigm shift occurs in three phases: It starts with a dominant paradigm, moves through a crisis phase, and ends with “the crisis [being] resolved by a revolutionary change in world-view” that constitutes a new dominant paradigm. John Naughton, Thomas Kuhn: The Man Who Changed the Way the World Looked at Science, The Guardian (Aug. 28, 2012).

This article traces the mandatory minimums paradigm shift, from the dominant paradigm of mandatory minimums through the crisis phase in which that paradigm has come under fire for tying judges’ hands, shifting power to prosecutors, cementing racial and economic disparities, and failing to advance community safety. It is time to replace the debunked paradigm with a new dominant paradigm: Congress must take action, eliminate mandatory minimums, and renounce excessive punishments that are inextricably linked to slavery and racism.

The Dominant Paradigm of Mandatory Minimums

Currently, the dominant paradigm in the criminal legal system is the myth that imposing harsh mandatory minimum sentences and locking people of color in cages are necessary to keep white people safe. Over the past century, this dominant paradigm has become the subject of dispute and controversy. Congress first enacted mandatory minimums for drug offenses in the early 20th century. See Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 Ohio State J. Crim. L. 283, 295 (2020), (citing Mona Lynch, Hard Bargains: The Coercive Power of Drug Laws in Federal Court 15 (2016)). But reformers pushed back, and by midcentury, a rehabilitative sentencing model began to replace the punitive model of the past. In 1970, Congress repealed most drug-related mandatory minimums, taking more of a “public health approach” to drug policy and “acknowledging enforcement problems that had been recognized for centuries.” Stephanie Holmes Didwania, Mandatory Minimum Entrenchment and the Controlled Substances Act, 18 Ohio St. J. Crim. L. 25, 33 (2020); Michael Tonry, Mandatory Penalties, 16 Crime & Just. 243, 251 (1992).

In keeping with the chaos that arises from a paradigm shift, by the mid-’70s, anti-imprisonment and antidiscrimination reformers on the left began railing against the rehabilitative model for giving judges too much discretion and precipitating disparities. Zunkel & Siegler, supra, at 297. Paradoxically, these reformers—led by Senator Ted Kennedy—ultimately helped usher in the current tough-on-crime era. In the mid-’80s, mandatory minimums reentered the federal system with a vengeance as a pillar of President Reagan’s “War on Drugs.” By the end of the 1980s, all 50 states had enacted mandatory minimums. See Tonry, supra, at 251. The ensuing 40 years have seen an unprecedented rise in incarceration.

But the foundation of the mandatory minimums paradigm is beginning to crack, opening a critical window in which a new paradigm can emerge.

The Roots of a New Dominant Paradigm: Mandatory Minimums Are Bad Policy

Over the past decade, a new dominant paradigm has begun to take root: Bipartisan consensus that mandatory minimums are bad policy because they reallocate power from judges to prosecutors, cement racism and classism, and fail to advance community safety. One catalyst for this new consensus was Michelle Alexander’s 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander’s thesis—that mass incarceration perpetuates the racial caste system of slavery—is exactly the kind of revolutionary change in worldview that characterizes paradigm shifts. The momentum behind that new worldview has gathered strength through other seminal works, including Bryan Stevenson’s Just Mercy (2014), Ta-Nahisi Coates’ Between the World and Me (2015), James Forman’s Locking Up Our Own (2017), and Wilkerson’s Caste (2020).

The recognition that “the criminal justice system that has emerged over the past half century is [] deeply intertwined with the legacy of white supremacy” reinforces the countless policy critiques of mandatory minimums. Jeremy Travis & Bruce Western, The Era of Punitive Excess, Brennan Ctr. (Apr. 13, 2021). Federal judges have been speaking out against these severe penalties for decades. President Biden has likewise called for an end to mandatory minimums. The Biden Plan for Strengthening America’s Commitment to Justice, Biden Harris Democrats (2021). But only Congress has the power to fully abolish federal mandatory minimums.

Mandatory Minimums Tie Judges’ Hands

Mandatory minimums prevent judges from meting out justice in an individualized manner. Take Tracy Conley’s case. Tracy was having an ordinary day until he ran out of gas on his way home from work and was netted in the same kind of fabricated stash house operation as John. Even the federal judge presiding over Tracy’s case spoke of “the injustice underlying his prosecution,” accentuating that Tracy “found himself ensnared in the [government] scheme, not because he sought to rob a stash house or commit a crime, but because he did not have money to purchase gas for his trip home from his legitimate job and happened to run into” someone who brought him along to a rendezvous with the police. United States v. Conley, 2021 WL 825669, at *4 (N.D. Ill. Mar. 4, 2021). Because of mandatory minimums, the judge was forced to commit Tracy to prison for 15 years during his original sentencing hearing. As the judge herself later explained, “the fake drug amount . . . that the [prosecutors] arbitrarily decided was in the fake stash house” and other government fabrications set a 15-year minimum and required her to impose a sentence she knew was “grossly disproportionate” and unjust. Id. at *4, *5.

Pop culture focuses on trials, but, in reality, sentencing is the main event in the criminal system. The overwhelming majority of people enmeshed in the federal system are convicted and end up at sentencing. In 2019, prosecutors charged 87,266 people with federal crimes. See Dep’t of Just., United States Attorneys’ Annual Statistical Report Fiscal Year 2019, tab. 3A, at 12 (2019). Of the people who went through the full court process, 97 percent pled guilty while just 3 percent took their cases to trial. See Zunkel & Siegler, supra, at 295. Fewer than 300 people were acquitted and found not guilty at trial; the other 99.7 percent appeared before a judge for sentencing.

At sentencing, a judge decides how to punish someone who has been convicted—whether to let them return home to their family or to lock them in a prison cell. Ideally, the sentencing judge should be able to look at someone like John or Tracy as a complete human being and carefully calibrate their punishment by considering their history, their military service, the needs of their children and family, whether their crime was motivated by desperation or greed, whether they were a pawn or a kingpin, and other similarly relevant factors.

But none of this happens when a mandatory minimum shackles the judge. If a prosecutor decides to charge someone like Tracy with a crime that carries a mandatory minimum penalty and that person is convicted, the judge is required to lock that person in prison for whatever amount of time the mandatory minimum charge carries, be it 5, 10, 15, or 20 years—sometimes even life. The judge is prohibited from considering that person’s individual circumstances, accounting for the motivations behind their crime, or showing mercy. Mandatory minimums thus “act as sledgehammers rather than scalpels,” falling with equal force on people who are dramatically different from each other. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2487 (2004).

Mandatory Minimums Shift Power from Judges to Prosecutors

As Justice Breyer has observed, mandatory minimums are also unjust because they “transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring.” Harris v. United States, 536 U.S. 545, 571 (2002) (Breyer, J., concurring in part). Sentencing is supposed to be carried out by a neutral judge who decides whether to lock someone in prison after hearing arguments from both sides. But mandatory minimums upend this system by positioning one adversary—the prosecutor—as the ultimate decision-maker, thus barring the judge from considering a person’s life experience, culpability, or family responsibilities. As one former federal judge recounts: “I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge.” Shira A. Scheindlin, I Sentenced Criminals to Hundreds More Years Than I Wanted to. I Had No Choice, Wash. Post (Feb. 17, 2017).

Mandatory minimums enable prosecutors to render mitigating facts legally irrelevant. Consider Professor Paul Butler’s chilling description of the psychology of the prosecutor, based on his own experience: “In your day to day work as a prosecutor, defendant sob stories about growing up in foster care, getting beat up by the police, or not being able to afford rehab are obstacles to your success.” Paul Butler, Let’s Get Free: A Hip-Hop Theory of Justice 116 (2009).

Mandatory minimums also “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains” and convince people to cooperate in prosecutions against others. Jed S. Rakoff, Mass Incarceration: The Silence of the Judges, N.Y. Rev. of Books (May 15, 2015). This produces the Cooperation Paradox: Big fish who are more culpable and have information about other people committing crimes can avoid a mandatory minimum by cooperating in the prosecution of others. Meanwhile, little fish who are less culpable—like Tracy—are yoked with high mandatory minimums. They become casualties of a process that prioritizes increasing the number of convictions over proportionality or mercy. Consequently, the least culpable players incur the most severe punishments, while the most culpable players leverage their knowledge into lenient plea deals.

Mandatory Minimums Create Racial and Economic Disparities

Prosecutors’ power over mandatory minimums generates racial and economic disparities, obliterating any pretense of an unbiased system. To compound the problem, the binding nature of a mandatory minimum penalty means that judges have no power to rectify these government-created disparities.

“Prosecutors have not uniformly sought mandatory minimum sentences, which has led to greater disparities, particularly on the basis of race.” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 201 (2019). The fact that these sledgehammers are used primarily against people of color invokes Wilkerson’s observation that “[i]ndividuality, after all, is a luxury afforded the dominant caste.” Wilkerson, Caste, supra, at 142. The racial disparities in prosecutors’ use of mandatory minimums render the dehumanization inherent in this sentencing tool even more problematic.

Take federal drug crimes, for instance, where 70 percent of the people whom prosecutors choose to charge with a mandatory minimum are people of color. A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes. See M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, 122 J. Pol. Econ. 1320, 1324, 1349, 1350 (2014). In fact, prosecutors bring mandatory minimum charges “65% more often” against Black individuals, all else remaining equal. Id. at 1350 (emphasis added). Eliminating this charging disparity would “reduce the . . . number of [B]lack men in federal prison by almost 11,000” and would result in a cost savings of over $230 million per year. Id.

Another study similarly finds that some federal prosecutors charge Black and Latinx individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.” Cody Tuttle, Racial Disparities in Federal Sentencing: Evidence from Drug Mandatory Minimums, Job Market Paper (2019). To make matters worse, Black individuals convicted of federal drug offenses are the least likely of any racial group to receive a sentence below the mandatory minimum—a result that itself depends on the prosecutor’s acquiescence. See Zunkel & Siegler, supra, at 288.

Beyond these race-based disparities, mandatory minimums also have a disparate impact on indigent individuals. Congress chose to establish mandatory minimums for crimes “that most affect people in poverty,” and prosecutors disproportionately charge minimums for such crimes. Michael Stamm, Between a Rock and Discriminatory Place: How Sentencing Guidelines and Mandatory Minimums Should Be Employed to Reduce Poverty Discrimination in the Criminal Justice System, 24 Geo. J. on Poverty L. & Pol’y 399, 410, 400 (2017).

Mandatory Minimums Do Not Advance Public Safety and Carry High Societal Costs

Mandatory minimums are bad policy because they contribute to mass incarceration without advancing community safety. In the federal system, the average time in prison for a mandatory minimum drug crime is over 11 years, and the minimums can skyrocket as high as life. See Colson Report, supra, at 9. Since 1985, prison time served has doubled for federal drug offenses and has nearly tripled for gun offenses. See id. at 8.

Supporters of mandatory minimums contend that these high sentences advance public safety, but empirical evidence gives the lie to that theory. In reality, mandatory minimum sentences do not prevent people from committing future crimes. Instead, any prison time at all actually increases the risk of future crime. See, e.g., Francis T. Cullen et al., Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, 91 Prison J. 48S, 50S (2011); Damon M. Petrich et al., Custodial Sanctions and Reoffending: A Meta-Analytic Review, 50 Crime & Just. (2021). Florida experienced a 50 percent spike in crime rates after enacting mandatory minimums. See Mirko Bagaric et al., Nothing Seemingly Works in Sentencing: Not Mandatory Penalties; Not Discretionary Penalties—But Science Has the Answer, 53 Ind. L. Rev. 499, 513 (2020). Long sentences also make it more difficult for people to reintegrate into society. Because “incarceration is inherently criminogenic,” mandatory minimums only exacerbate this situation. Shon Hopwood, Improving Federal Sentencing, 87 UMKC L. Rev. 80, 91 (2018). More broadly, overreliance on prisons makes communities less safe by diverting resources from other critical public safety needs. In contrast, studies show that eliminating mandatory minimums does not increase crime or drug abuse. See, e.g., Nancy Gertner & Chiraag Bains, Mandatory Minimum Sentences Are Cruel and Ineffective. Sessions Wants Them Back, Wash. Post (May 15, 2017); Greg Newburn & Sal Nuzzo, Mandatory Minimums, Crime, and Drug Abuse; Lessons Learned 9 (The James Madison Inst. 2019).

The economic costs of mandatory minimums are similarly destructive: Every 15-year minimum sentence imposed today costs taxpayers over half a million dollars. See Annual Determination of Average Cost of Incarceration Fee (COIF), 84 Fed. Reg. 63,891 (Nov. 19, 2019). The Department of Justice admits that the total number of people in federal prison rose by nearly 900 percent from 1980 to 2013. “Mandatory minimums drove the increase in incarceration,” making the federal prison system seven times more expensive today than it was in 1980. Colson Report, supra, at 10–14. At the state level, the elimination of mandatory minimums has resulted in huge savings: Texas saved $2 billion, Georgia saved $20 million, and Michigan saved $15 million. See Gregory Newburn, Mandatory Minimum Sentencing Reform Saves States Money and Reduces Crime Rates 4–6 (2016).

To quote a federal judge: “[T]he long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.” Rakoff, supra. Long prison sentences also make it more difficult for people to reintegrate into society. Incarcerated individuals lose their jobs and wages, suffer mentally and physically, and face collateral consequences upon release. See Colson Report, supra, at 15. Their children have worse academic, behavioral, and emotional outcomes and are more likely to end up in prison themselves. Id.

It is time to recognize that mandatory minimums are inimical to the interests of community safety, economic efficiency, and rehabilitation.

Congress Must Codify the New Paradigm

The solution to the mandatory minimums crisis is simple: Congress must jettison the discredited paradigm, abolish mandatory minimums, and return to judges the power to treat people like human beings. To quote Justice Ruth Bader Ginsburg, “The ball is once again in Congress’s court.” Vance v. Ball State Univ., 570 U.S. 421, 470 (2013) (Ginsburg, J., dissenting).

Because federal prosecutors’ use of mandatory minimums is driving racial disparities through astronomically long and ineffective sentences, it is tempting to ask President Biden’s Department of Justice to set things right. Strikingly, although prosecutors have long been the primary proponents of mandatory minimums, even some of the nation’s chief federal prosecutors have denounced the tactic as bad policy. Former Attorney General Eric Holder criticized “draconian mandatory minimum sentences” for their tendency to “have . . . a destabilizing effect on particular communities, largely poor and of color.” Press Release, Dep’t of Just., Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013). And during his nomination hearing, current Attorney General Merrick Garland testified, “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].” Merrick Garland, Senate Judiciary Committee Holds Hearing on the Nomination of Merrick Garland to Be Attorney General, Day One (Feb. 22, 2021).

Yet despite Garland’s testimony, his Department of Justice has given no sign that it will cease charging mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors requiring the charging of mandatory minimums whenever possible. Memorandum from the Office of the Attorney General (Jan. 29, 2021). To make matters worse, Garland chose not to reinstate a 2013 Holder policy that directed prosecutors to decline to charge a mandatory minimum in nonviolent drug cases.

“Progressive” prosecution is important to dismantling mass incarceration. For example, at the pretrial jailing stage, Attorney General Garland has the power to “disrupt[] the culture of [pretrial] detention that pervades the ranks of federal prosecutors.” Alison Siegler & Kate M. Harris, How Did the “Worst of the Worst” Become 3 out of 4? Merrick Garland Can Bring Bail Reform to the Federal Justice System, N.Y. Times (Feb. 24, 2021). At the charging and sentencing stages—where mandatory minimums come into play—Garland also has real power to reduce racialized over-incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.

But progressive prosecution alone will not solve the mandatory minimums crisis. Evidence suggests that policy shifts by federal prosecutors only change things at the margins and are easily rolled back by the next administration. For example, a recent empirical analysis of the Obama administration’s efforts to temper mandatory minimums found no meaningful reduction of sentence length or racial disparities in sentencing, leading to the conclusion that the only answer is “systemic reform.” Stephanie Holmes Didwania, Mandatory Minimums and Federal Sentencing 37 (Temple U. Legal Stud. Research Paper, Paper No. 2020-01).

Given that reform efforts by the Department of Justice would provide, at best, a temporary fix, congressional action is needed to shift the paradigm and mitigate racial inequity. Congress must repeal federal mandatory minimums, make that change retroactive for those already serving mandatory minimum sentences, and incentivize states to follow suit. During his campaign, President Biden vowed to support this congressional paradigm shift: “As president, [I] will work for the passage of legislation to repeal mandatory minimums at the federal level. And, [I] will give states incentives to repeal their mandatory minimums.” The Biden Plan for Strengthening America’s Commitment to Justice, supra.

Many in Congress now recognize that systemic racism is woven into the fabric of mandatory minimums and the criminal legal system writ large. The House just passed Senator Booker’s EQUAL Act by a bipartisan vote. This bill would eliminate the crack/powder disparity that results in longer mandatory minimum sentences for Black individuals. See EQUAL Act, S. 79, 117th Cong. (2021). The Biden administration and its Department of Justice have endorsed the EQUAL Act, acknowledging that it would remedy unwarranted racial disparities. See, e.g., Sean Sullivan & Seung Min Kim, Biden Administration Endorses Bill to End Disparity in Drug Sentencing Between Crack and Powder Cocaine, Wash. Post (June 22, 2021). Attorney General Garland even appears to be requiring federal prosecutors to inform judges of this support during individual sentencing hearings. Yet the EQUAL Act faces steep opposition in the Senate.

The EQUAL Act would be an important step forward, but it would not end mandatory minimums. The most comprehensive legislative solution introduced in recent years is Representative Waters’s (D-CA) Mandatory Minimum Sentence Reform Act of 2017, which would have repealed all mandatory minimums for federal drug crimes—a true paradigm shift. See Mandatory Minimum Sentence Reform Act of 2017, H.R. 3800, 115th Cong. (2017). Senators Durbin (D-IL) and Lee’s (R-UT) bipartisan Smarter Sentencing Act of 2021 has more momentum but would enact a narrower reform, reducing mandatory minimums for certain nonviolent drug offenses and making other reforms retroactive. See Smarter Sentencing Act of 2021, S. 1013, 117th Cong. (2021).

Representative Bobby Scott’s (D-VA) SAFE Justice Act likewise does not end mandatory minimums, but it does the next best thing: It grants judges the discretion to refuse to impose a mandatory minimum if it would result in an “unjust sentence.” See SAFE Justice Act, H.R. 4261, 115th Cong. (2017). The bill also allows judges presiding over fabricated stash house cases to decline to impose mandatory minimums set by a fictitious amount of non-existent drugs. Id. Under this law, judges would finally have the authority to avoid imposing “grossly disproportionate” sentences on those like John and Tracy who are snared in fake stash house cases. See Conley, 2021 WL 825669, at *4.

It is time to institute a new paradigm, one that abjures mandatory minimums and respects human dignity. We must put an end to “the punishment bureaucracy” and the toxic and discredited notion that the caging of human beings like John and Tracy advances community safety. Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform,” 128 Yale L.J. F. 848 (2019). Attempts to stitch up the tattered old paradigm are futile and will not eradicate the spreading stain of racial inequity. We must instead heed Justice Sonia Sotomayor’s message that, until we value the lives, rights, and liberties of those on the receiving end of the system, “our justice system will be anything but.” Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).