The Injustice of Mandatory Minimum Sentencing Laws in Arkansas

By Julia Capella

Disclaimer: The views expressed in this post are those of the author and do not necessarily reflect the views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Mandatory minimum sentencing laws have long been a source of controversy in the American criminal justice system. In Arkansas, these laws raise significant legal and moral concerns, particularly because they remove judicial discretion, contribute to mass incarceration, and disproportionately affect marginalized communities. While proponents may argue these laws enhance public safety, the real-world outcomes show deep inequities, constitutional challenges, and long-term consequences for individuals, families, and entire communities. Moreover, mandatory minimums often fail to account for the individual circumstances of a case, leading to punishments that may be excessively harsh and misaligned with principles of justice.

Mandatory minimum sentencing laws require judges to impose fixed minimum prison terms for specific offenses, regardless of the circumstances of the offense or the characteristics of the offender.  Ashely Nellis, How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It, THE SENTENCING PROJECT (Feb. 2024), https://www.sentencingproject.org/app/uploads/2024/01/How-Mandatory-Minimums-Perpetuate-Mass-Incarceration-and-What-to-Do-About-It.pdf. In Arkansas, such statutes are prevalent in cases involving drug offenses, violent crimes, firearm use, and repeat offenders. For example, under Arkansas Code Annotated § 5-64-401, certain drug offenses carry mandatory minimums ranging from 10 to 40 years or even life in prison. These laws are grounded in a “tough on crime” philosophy that gained traction in the 1980s and has continued to shape sentencing policies for decades, even as data now shows the flaws in this approach. Nellis, supra, at 1.

Nikki Morris discusses the evolution of such laws in her article Criminal Law–Sentencing Juveniles–Where Do We Go From Here?  Mandatory Sentencing and Retroactive Application Post-Miller, emphasizing how cases like Miller v. Alabama, 132 S. Ct. 2455 (2012), began to chip away at harsh mandatory policies, particularly for juveniles.  37 U. Ark. Little Rock L. Rev. 311, 322 (2015).  Those who originally advocated for mandatory minimums believed these laws would deter crime, incapacitate dangerous offenders, and promote uniform sentencing.  Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 Crime & Just.  65, 67 (2009). However, empirical evidence and decades of criminological research suggest otherwise. Id. In practice, these laws have instead led to overly harsh penalties and deepened systemic racial disparities. Nellis, supra, at 3.

One of the most compelling arguments against mandatory minimums is that they strip judges of their ability to tailor sentences to the unique facts and circumstances of each case. Eric Luna and Paul G. Cassell, Mandatory Minimalism, 32 Cardozo L. Rev. 1, 1 (2010). Sentencing is a complex and nuanced process that should consider the offender’s intent, role in the offense, prior history, and potential for rehabilitation. Id. at 13. Mandatory minimums eliminate this nuance, forcing judges to impose lengthy sentences even when mitigating circumstances clearly warrant leniency. Id. As a result, nonviolent drug offenders who play only minor roles in trafficking operations can still face decades in prison under Arkansas’s drug sentencing laws. See Ark. Code Ann. § 5-64-421 (subjecting defendants to a minimum of ten years of incarceration for delivering fentanyl without regard to amount). Statutes such as these force judges’ hands despite compelling evidence of coercion, addiction, mental illness, or lack of criminal sophistication. A judge, fully aware of these mitigating factors, may find the statutory minimum grossly excessive but be legally bound to impose it. This undermines the principle of proportionality, a cornerstone of American jurisprudence; that the punishment should fit both the crime and the individual.

The Arkansas Supreme Court has upheld the constitutionality of mandatory minimums, reasoning that the legislature has broad authority to set sentencing ranges and define criminal penalties.  State v. Freeman, 312 Ark. 34, 37, 846 S.W.2d 660, 661 (1993).  However, this deference to legislative power comes at a steep cost: it reduces the role of the judiciary and denies defendants the right to be sentenced based on the full context of their conduct, personal history, and rehabilitative potential. Nellis, supra, at 1.

Another troubling consequence of mandatory minimums is the shift in sentencing power from judges to prosecutors. Nellis, supra at 3. Facing the prospect of a decades-long sentence, many defendants, especially those lacking skilled, or well-resourced counsel, often plead guilty to lesser charges, even when they may have viable defenses or are legally innocent. Id. This prosecutorial discretion introduces significant disparities in sentencing outcomes. Id. Two defendants charged with the same offense may receive vastly different sentences depending on how the prosecutor chooses to charge the case, what plea bargains are offered, and whether the defendant is willing to accept a deal. This creates a system in which justice hinges less on legal merit or moral culpability and more on plea negotiations and prosecutorial strategies.

As a result, trials become rarer, evidence is scrutinized less thoroughly, and appellate review is curtailed. The defendant’s right to a jury trial, which is protected by both the Arkansas Constitution and the United States Constitution, is effectively nullified by the overwhelming risk of receiving an unjust and excessively harsh mandatory sentence. Rather than promoting fairness and due process, the system incentivizes expediency and compromise, often at the expense of truth and justice.

Mandatory minimum laws also exacerbate existing racial and socioeconomic inequalities in the criminal justice system. Nellis, supra at 2. Studies have consistently shown that Black and Hispanic defendants are more likely to be charged with offenses carrying mandatory minimums and less likely to receive favorable plea deals. Id. Arkansas is no exception. According to the Arkansas Department of Corrections, Black individuals, though only about 15% of the state’s population, represent over 40% of its prison population. Ark. Dep’t of Corr., Fiscal Year 2022 Annual Report (2022), https://doc.arkansas.gov/wp-content/uploads/DOC-Secretarys-FY22-Annual-Report_12-20-2022_FINAL_spread.pdf. Mandatory sentencing laws contribute significantly to this overrepresentation by imposing inflexible penalties that fail to account for systemic disparities in policing, prosecution, and access to effective legal representation.

These laws also disproportionately affect defendants with limited financial means. Nellis, supra at 2. Without the resources to hire experienced criminal defense attorneys or mount a robust defense, they are more likely to plead guilty and receive long sentences under mandatory minimum statutes. Id. Even in cases where an alternative resolution might be more just or appropriate, financial and structural barriers often make such outcomes unattainable for indigent defendants.

Aside from being unjust and discriminatory, mandatory minimum sentencing laws are also ineffective and prohibitively expensive. Luna and Cassell, supra at 13–14. Deterrence and incapacitation under mandatory minimum sentencing lack practical efficacy. Id. For deterrence to function effectively, it assumes that individuals both understand the legal consequences of their actions and engage in a rational cost-benefit analysis before offending. Id. However, most offenders, particularly those driven by addiction, poverty, trauma, or mental health issues, do not operate within this rational actor model. Id. This makes the logic of deterrence under mandatory minimums deeply flawed. Furthermore, maintaining individuals in prison for unnecessarily long periods places a heavy financial burden on the state, diverting taxpayer dollars from education, healthcare, rehabilitation programs, and community investment. Nellis, supra at 2. The return on this investment, in terms of public safety or recidivism reduction, is minimal at best. Id.

Ultimately, mandatory minimum sentencing laws are fundamentally unfair and undermine the core principles of justice. Arkansas’s laws are no exception. Mandatory minimum sentencing laws diminish judicial discretion, perpetuate racial and economic disparities, reduce transparency in the criminal process, and impose significant costs on the state without demonstrable benefits to public safety. A just and effective criminal justice system requires a balanced approach, one that restores judicial authority, embraces proportional sentencing, and invests in rehabilitation, reintegration, and restorative practices that promote long-term public well-being and fairness.