This side of death nowhere is the material hand of destiny felt with more immediacy or intensity than in the law. For it is by its laws that a society usurps the power of the Moirai—the fates of Greek legend—and brings life to heel by regulating activities and behavior. On the punitive side of the equation, in the United States, the force of the law is especially sharp in the form of the mandatory sentence. This notorious hallmark of contemporary punitive practices owes much of its existence to the Comprehensive Crime Control Act of 1984.
Signed into law under President Ronald Reagan, the legislation, which was a flagship of the tough-on-crime movement, dramatically altered the criminal code. D. Lowell Jensen, the Assistant Attorney General at the time, called it “the most significant change in the Federal system of criminal law.’’ One of the law’s provisions, the Sentencing Reform Act of 1984, established the United States Sentencing Commission. This seven-member bi-partisan board was tasked with streamlining the penalties for a cornucopia of offenses—to automate them basically. One of the Commission’s nobler aim was to stop "runaway" sentences that were too onerous—a goal that while meritorious, perhaps came at too high a cost.
The history of this radical retooling in the distribution of punishment should concern any citizen. Certainly, those sanctioned with the authority to judge their fellow citizens haven’t shied from voicing their misgivings. In 2003, for instance, Supreme Court Justice Anthony Kennedy told the American Bar Association “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.”
Surveying the weaknesses of a system that markedly checks a judge’s discretionary powers to show leniency in the application of punishment, it’s easy to point towards things such as the much-remarked-over disparity in how crack and powder cocaine were treated under the law. Prior to President Obama’s signing of The Fair Sentencing Act in 2010, this amounted to a scenario whereby a person caught with five grams of crack could be charged with a sentence equal to that of having been caught with five hundred grams of powder cocaine. The impact this had on the African American community is well known. But have you considered how repeated offenses of a minor sort—as minor as a traffic violation—can necessitate jail time for those with prior convictions? Or on a larger scale, how the threat of mandatory sentences has led to a significant drop in the cases that actually make it trial?
According to one study cited by The New York Times that looked at the findings of nine states, “fewer than one in 40 felony cases now make it to trial” as compared to “one in twelve” in the 1970s. The risks of running afoul of laws that carry mandatory sentences has led to a steep increase in plea bargains which has, in effect, called into question the practical utility of citizens’ rights to a trial by their peers.
As both a reader and a writer I am fascinated by stories that turn on decisive moments in one’s life. While studying the history of mandatory sentences and the wretched toll they have taken on individual lives, I grew convinced that if more people considered this matter, even in a cursory way, it would be adjudged more of an existential threat than, say, the prospect of a terrorist attack. Because life tends to move in unexpected directions, each of us has an interest in contemplating negative outcomes; if not for our own sake, than in the interest of sparing others unnecessary deprivations and indignities.
Bearing these concerns in mind, I would like write a 2,500-5,000 word essay that explores the history of the mandatory sentence. The article would be attentive not only to the ethical and philosophical inflections of this history but its political and ideological components as well. My methodology will favor inclusiveness: human testimony, documentary film, journalism, literary, and philosophical texts will all likely play a role in the construction of the piece.
With the funds raised, I will subsidize the research and costs associated with the production of this essay.