Rethink mandatory minimums for drug crimes: Our view

The Editorial Board | USATODAY

When crime shot up from the 1970s to the early 1990s and Americans demanded a response, among the tough new restrictions were mandatory minimum sentences to guarantee that criminals who got caught went away for a long time.

Making sure that murderers do more than a year or two in prison made perfect sense then and now, but time hasn't been as kind to the idea of harsh, inflexible sentences for lesser crimes, particularly the drug offenses that account for more than half the population in federal prisons, which are running about 40% over capacity. There's been a huge dollar cost to state and federal governments and a social cost in poorer neighborhoods whose young men are disproportionately sent to prison. Something has to give.

States led the way in rethinking this, driven at first by the desperate need to save money, and then by the realization that there may be smarter and cheaper ways to cut crime than the standard prison term. Texas is a good example — a conservative, law-and-order state that was looking at a cost of more than $1 billion to build new prison capacity for more and more inmates.

Instead, the state began diverting some low-level drug offenders and other non-violent criminals into treatment and other non-prison alternatives, plus selectively paroling some prisoners and monitoring them. The state spent money on a variety of lower-cost programs. Many ex-prisoners got jobs after being trained as welders, for example.

The result: The state's prison population declined enough that for the first time, Texas began closing prisons — three so far, plus parts of others. And for anyone worried that fewer prisoners means more crime, just the opposite is happening: The crime rate in Texas, which was already declining, has continued to drop. That can't be ignored, even by longtime supporters of mandatory sentencing, a group that includes us.

So it was encouraging to hear Attorney General Eric Holder say this week that he has similar plans for the federal system when it comes to low-level drug defendants. Who is that? Specifically: small-quantity street dealers and their helpers, plus the couriers and mules who transport drugs.

If these defendants meet strict criteria — no violence, no weapons, no sales to kids and no significant criminal history — they could be candidates for non-prison programs or for lighter sentences. A courier caught carrying 5 or 10 kilograms of cocaine in his car, for example, would get an automatic 10-year sentence under current mandatory minimums. Holder has ordered U.S. attorneys to consider leaving out the amount of drugs, which is what triggers the mandatory sentence. Without the amount, sentencing guidelines for someone like this give the judge more discretion: zero to 20 years.

It would be better if Congress changed the law. There is remarkable bipartisan cooperation in the Senate on a pair of bills to give judges more discretion. But in a polarized Congress, there could be a long wait for legislation too easily demonized by those who still favor being "tough on crime" without also being smart.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.