(How Much) Do Mandatory Minimums Matter?

Abstract

For decades, advocates, lawmakers, and scholars have lambasted mandatory minimum sentencing laws, especially in the context of federal drug prosecutions. Low-level drug defendants receiving severe mandatory sentences, including life imprisonment, make national news. In 2013, Attorney General Eric Holder attempted to rectify this problem by enacting a sweeping change to mandatory minimum drug charging policy. The policy instructed all federal prosecutors to stop charging mandatory minimums in drug trafficking cases involving low-level, nonviolent defendants. This paper shows that the charging policy did not work as intended. Although prosecutors meaningfully complied with the Memo’s charging instruction, the policy change only modestly reduced sentences for eligible defendants, and it did not reduce racial disparities in sentencing. Why didn’t the policy change work as intended? The paper examines three possible explanations for the findings. First, it argues that the Holder Memo exemplifies a problem I call redundant leniency: rather than focusing on those who could benefit the most from charging leniency, it targeted a portion of defendants who already had and used opportunities to avoid mandatory minimum sentences. Second, it argues that Holder’s reform failed to account for the many ways in which mandatory minimums are reinforced by other aspects of federal criminal law, policy, and practice, a phenomenon I call mandatory minimum entrenchment. Third, I investigate but ultimately reject the hypothesis that spillover effects on ineligible defendants might mask benefits for eligible defendants. I find suggestive evidence of spillovers among a small portion of ineligible defendants—ineligible defendants with at least one eligible co-defendant experienced sentencing reductions in the post-Memo period, while other ineligible defendants do not. The paper concludes by arguing that those hoping to address mass and racially disparate incarceration must implement more systemic reforms.