Mandatory Sentencing Reconsidered

Mandatory sentencing and three strikes laws have always been controversial subjects. Legislators who favor these laws reason that they are successfully curbing judges who are considered to be too lenient on criminals, and that they serve to counter a rising wave of crime. Prosecutors appreciate such laws because the laws give them discretion concerning whether or not to pursue mandatory-minimum charges when indicting someone. The general public tends to approve of mandatory sentencing because it feels good to think that some offenses bring a certain punishment, regardless of the circumstances of the case.

Why do we have such laws? Mandatory sentencing statutes permit legislators to at least appear to be tough on crime. Legislators hear the public outcry over rising crime rates and they are aware that a tough-on-crime attitude is needed to be elected and to stay in office. Mandatory sentencing laws are seen as appealing by lawmakers because they are a quick fix that can be quickly implemented, and they are easily digested with little question by the general public. But do mandatory sentences really work? Although mandatory sentencing is an overall product of a get-tough attitude toward drug crimes, do mandatory sentences really reduce the availability of drugs? Do long prison sentences really address the central problem of drug addiction?

It has been obvious to some from its conception that mandatory sentencing does lead to great injustices. Often people that are in the periphery of drug cases are arrested and are given horrendous and inappropriate sentences. It is also true that the mandatory sentencing laws – meant to be used on the bigger drug lords and dealers – are mostly affecting first-time drug offenders. There are thousands of such cases – like the woman in California who is serving a federal mandatory sentence for possession of cocaine. Her brother and three sons were arrested for selling cocaine out of her house, and despite testimony that she had no knowledge or part in the sale of the cocaine, under the mandatory sentencing laws, she still received the minimum sentence - life without chance of parole. Statistics show that more than 84 percent of those serving mandatory sentences on drug charges in Massachusetts are indeed first time offenders. Meanwhile, the bigger dealers are avoiding mandatory sentences and lengthy prison terms by bargaining with the prosecutors, using the forfeiture of money upon arrest or the sharing of information as chips.

The curbing of judicial discretion and the ultimate unfairness of mandatory sentencing laws are leading some judges to resign rather than to give unfair sentences to undeserving people. U.S. District Judge John S. Martin, a former federal prosecutor who was appointed to the bench 14 years ago by George H.W. Bush, announced in July of 2003 that he was resigning from the bench because he could no longer participate in "a sentencing system that is unnecessarily cruel and rigid." He cited the current "effort to intimidate judges" as well as the objectionable punishments meted out to first time drug offenders. Judge Martin was highly regarded as a tough, conservative judge, with a reputation for giving stern and harsh sentences in gang and drug-related cases.

Eric Sterling, the former congressional lawyer who wrote the mandatory minimums sentencing laws in 1986, says now that he regrets his actions. “Of all the things I was involved in during my nine years on the House Judiciary Committee, my role in the creation of mandatory minimums was absolutely the worst, the most counterproductive, the most unjust. Thousands of men and women are serving many years in prisons unjustly as a consequence of these laws. Sterling, who is currently the President of the Criminal Justice Policy Foundation, went on to explain that “these mandatories came in the last couple days before the Congressional recess in 1986, before they (Congress) were all going to race out of town and tell the voters about what they're doing to fight the war on drugs. No hearings, no consideration by the federal judges, no input from the Bureau of Prisons. Even the DEA didn't testify...the work that I was involved in enacting these mandatory sentences is probably the greatest tragedy of my professional life." Supreme Court Chief Justice William Rehnquist has also criticized the mandatory sentencing laws on several occasions, recently remarking that mandatory minimums are "a good example of the law of unintended consequences" because they "impose unduly harsh punishment for first-time offenders, particularly for mules who played only a minor role in a drug distribution scheme."

The general public and in turn the legislators often say that the judiciary is to blame for rising crime rates. They seem to feel that the judges are soft on crime and incompetent – but how can hamstringing the judiciary solve a problem such as this? Judges have discretion for a reason – they are depended upon to make wise and reasonable decisions on a case by case basis. Mandatory sentencing laws cripple judges in their efforts to factor in all the circumstances when deciding what an appropriate sentence is, and miscarriages of justice are all too common. Mandatory sentencing attempts to fit all crimes and all offenders into the same category; it doesn’t allow the punishment to fit the crime.

The author is a student at the University of Texas. She can be reached at cathryncrawford@washingtondispatch.com.

Cathryn Crawford; we blame the problem on the liberals.

I beg to differ. The min/mans for stiffer Fed crack laws for instance came from a broad chorus of everyone from the Judge Roy Bean types to uber-liberal black mayors rattled by the ensuant crime waves and accelerated inner city social crumbling.

The chorus of cries came because judges were reacting to the insanity of the 'war'.. They were in effect nullifying crazy 'laws', just like juries do..

Min/Mans have worked. Problem is: They are not fair, but then again neither is a fruitcake judge in SF giving a dealer a walk and some hardnose in Ohio giving the maximum for the same crime. That said, when drug dealers/smugglers of any size whether violent or first timers are frequently given sentences without parole that are twice what many murderers and rapists on state charges recieve...we have a problem....since 1987. I confess to not having the answer btw.

The 'answer' is obvious.. End the war and regulate drugs like booze..

Aside to maximum decriminalization of pot...which I have not smoked in two decades btw...neither do I drink hardly.

...I am not an end the drug war libertarian (u already knew that)

But, some sort of waiver or release clause for first time and peripheral offenders is surely justified.

The "mandatory sentencing" and "three strikes" laws were intended to help solve at least half of the problem of judges and prosecutors repeatedly showing leniency toward dangerous criminals while throwing the book at comparatively harmless ones. Unfortunately, prosecutors and judges can now use the laws to throw the book even harder at comparatively harmless criminals while they figure out ways to bend the rules to let out the dangerous ones.

After all, governments need crime. Without crime there'd be no excuse for more gun control or other police-state intrusions.

Well, it did decrease in the nineties - why is it increasing now?

My understanding is that it continues to decrease. In fact, Butterfield at the NYSlimes is (in)famous for his “Crime Falling, Yet Prisons Still Filling,” columns.

FBI Stats

Cat, good and thoughtful article. I recall this judicial tool came about at a time when crime seemed out of control. The lock 'em up and throw away the key attitude was hardening and was, at the time , roundly applauded. The unintended consequences were just glimmers on the horizon but they were there. You point out, rightly, that some of the penalties handed down are disproportionate, but the follow the rule. No discretion allowed. Now, this does not mean I think criminals should be given a hug and a kiss before sent on their way, but I do think this subject is well overdue for a revisit.

Great article, pretty Cat.

Anyone who thinks the Guidelines have made across the board sentencing "uniform" is delusional. I live in a rural federal district which has the highest average sentences in the country and the judge with the lowest rate of downward departures. The average sentence in my district is over twice the national average. The crime here is no different than in other rural districts and certainly less violent than in more metropolitan districts. The only answer to why the sentences are twice the average is the mindset of the US Atty and the judges.

Perhaps your district is different, but from my experience the guidelines have failed miserably in bringing "equity" to criminal sentencing.

That being said, the guidelines are here to stay, no one will risk the "soft on crime" claim against them even if the subject were revisited.

This is a catch 22.

The problem before is multiple offenders. We had a notorious child molestor and serial killer about 15 years ago that roamed my county and Oakland County next door. He was busted once before, I believe for murder.

Another murderer was let out and moved in my county.(and was driven out) It's stuff like this that started the 3 strikes and similar statutes in the first place.

On the same note, you have nonviolent drug users getting life sentences. Michigan was well known for the 750 lifer law. 750 grams of cocaine - automatic life sentence.(Engler actually repealed it)

In my state, judges are elected. The best thing IMO is for judges to have to face the people. Liberal judges who let Alfieros out need to get the boot. Unfortunatly, we don't do that enough out here. Discretion is important, and too many judges abuse it.

Another thing needed is for the feds(whose judges are lifers) to get pushed back out of areas that should be in state juristiction. I remember a COPS epidose when a certain amount of drugs was found. "This one we're going federal!!!".

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