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often longer than those violent criminals receive. When judges have discretion, they may consider a defendant’s background and impose a lighter penalty if the defendant’s personal circumstances—extreme poverty or experience of abuse, for example—warrant it. This flexibility—which is important in all criminal cases—is especially important in drug cases, as studies have indicated that many drug defendants are using or selling to support an addiction.73 Referring a defendant to treatment, rather than sending him or her to prison, may well be the most prudent choice—saving government resources and potentially saving the defendant from a lifetime of addiction. Likewise, imposing a short prison sentence (or none at all) may increase the chances that the defendant will experience successful re-entry. A lengthy prison term may increase the odds that reentry will be extremely difficult, leading to relapse, and re-imprisonment. Mandatory drug sentencing laws strip judges of their traditional role of considering all relevant circumstances in an effort to do justice in the individual case.

Nevertheless, harsh mandatory minimum sentences for drug offenders have been consistently upheld by the U.S. Supreme Court. In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.74 Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine.75 The Court found the sentences imposed in those cases “reasonably proportionate” to the offenses committed—and not “cruel and unusual” in violation of the Eighth Amendment. This ruling was remarkable given that, prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year. A life sentence for a first-time drug offense is unheard of in the rest of the developed world. Even for high-end drug crimes, most countries impose sentences that are measured in months, rather than years. For example, a conviction for selling a kilogram of heroin yields a mandatory ten-year sentence in U.S. federal court, compared with six months in prison in England.76 Remarkably, in the United States, a life sentence is deemed perfectly appropriate for a first-time drug offender.

The most famous Supreme Court decision upholding mandatory minimum sentences is Lockyer v. Andrade.77 In that case, the Court rejected constitutional challenges to sentences of twenty-five years without parole for a man who stole three golf clubs from a pro shop, and fifty years without parole for another man for stealing children’s videotapes from a Kmart store. These sentences were imposed pursuant to California’s controversial three strikes law, which mandates a sentence of twenty-five years to life for recidivists convicted of a third felony, no matter how minor. Writing for the Court’s majority, Justice Sandra Day O’Connor acknowledged that the sentences were severe but concluded that they are not grossly disproportionate to the offense, and therefore do not violate the Eighth Amendment’s ban on “cruel and unusual” punishments. In dissent, Justice David H. Souter retorted, “If Andrade’s sentence [for stealing videotapes] is not grossly disproportionate, the principle has no meaning.” Similarly, counsel for one of the defendants, University of Southern California law professor Erwin Chemerinsky, noted that the Court’s reasoning makes it extremely difficult if not impossible to challenge any recidivist sentencing law: “If these sentences aren’t cruel and unusual punishment, what would be?”78

Mandatory sentencing laws are frequently justified as necessary to keep “violent criminals” off the streets, yet these penalties are imposed most often against drug offenders and those who are guilty of nonviolent crimes. In fact, under three-strikes regimes, such as the one in California, a “repeat offender” could be someone who had a single prior case decades ago. First and