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Mandatory Sentencing Reconsidered
01.20.04 | Cathryn Crawford

Posted on 01/20/2004 4:34:52 PM PST by Cathryn Crawford

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.


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government
KEYWORDS: doj; sentencingguidelines
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1 posted on 01/20/2004 4:34:52 PM PST by Cathryn Crawford
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To: Cathryn Crawford; ValenB4; Sir Gawain; gcruse; geedee; DaughterOfAnIwoJimaVet; Chad Fairbanks; ...
Ping for Cathryn Crawford's latest!

I really like this column, Cathryn. It's one of your best!! ;-)

2 posted on 01/20/2004 4:39:54 PM PST by Scenic Sounds (Sí, estamos libres sonreír otra vez - ahora y siempre.)
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To: Cathryn Crawford
Everyone with any kind of sense agrees that mandatory sentencing--even in the federal system--is a bad idea.

However, because of the political structure, you can never get anyone to vote against them, because any future opponents will beat them over the head with it, saying they are "soft on crime." You can't pick apart mandatory minimums in an 8 second sound bite on tv.

Unfortunately, they're here to stay. It is what it is.
3 posted on 01/20/2004 4:47:58 PM PST by Viva Le Dissention
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To: Scenic Sounds
Well done.
4 posted on 01/20/2004 4:48:10 PM PST by RJCogburn ("Hooray for the man from Texas!"........Mattie Ross of near Dardenelle in Yell County)
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To: Cathryn Crawford
Excellent
5 posted on 01/20/2004 4:51:19 PM PST by SJackson
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To: dennisw; Cachelot; Yehuda; Nix 2; veronica; Catspaw; knighthawk; Alouette; Optimist; weikel; ...
If you'd like to be on or off this middle east/political ping list, please FR mail me.
6 posted on 01/20/2004 4:51:47 PM PST by SJackson
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To: Cathryn Crawford
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

That is quite true from what I have observed ...to an extent. Some big fish get hammered regardless of what they have to trade and some don't trade. Little fish have less to trade to begin with. You have both the guidelines and the statuatory min-mans at work here....whichever is higher usually.

7 posted on 01/20/2004 4:52:38 PM PST by wardaddy ("either the arabs are at your throat, or at your feet")
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To: Cathryn Crawford
Good column, the difficulty now is that crime is not increasing, as it was 20 years ago, it is decreasing. What role mandatory sentencing played a generation ago to turn the tide may no longer be valid.

But as Pickering learned recently, actively fighting against mandatory sentencing unfairly applied can be used against you by politicians that put them in place and now cry about their use.
8 posted on 01/20/2004 4:52:52 PM PST by optimistically_conservative (Bill Clinton has called Clark a man of high character and integrity. What more need be said?)
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To: Cathryn Crawford
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 perception leading to mandatory sentencing was that judges were being too easy on criminals.  The Procrustean remedy had the effect of incarcerating whole splotches of Americans in the destruction of individual freedom disguised as a plan to elimnate drug use.  This program, a darling of social conservatives, has been stunningly successful in rendering aforesaid Americans into criminals, coarsening them, and making them outcasts in their own country. 

Unfortunately, the coarser society becomes, the shriller the cry from our moral minders to make sentencing even tougher.  It has reached the point where a man ain't a man if he's not been in the can.  The fallout has polluted music, fashion, and art.  Since these are liberal bastions to a large degree, we blame the problem on the liberals. 

There seems to be a contest going on that is measured by the weight of the Federal Register.  Can I outlaw you before you outlaw me?
9 posted on 01/20/2004 4:56:26 PM PST by gcruse (http://gcruse.typepad.com/)
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To: Cathryn Crawford
The memory of defendents with arm length rap sheets being turned loose over and over is slowly receding.

Hasn't anyone noticed that since mandatory minimums became common, the crime rate has been slowly but surely going down? It may not seem that way because of all the junk on the local news broadcasts. But check it out, it's true.

Sure, there are a few cases that can be written up as tradgedies. But they're rare when you count the hundreds of thousands of criminals out there.

Bottom line, getting rid of mandatory minimums helps the lawyer class more than any other. As repeat offenders are convicted over and over and over. Every time with taxpayer paid legal expenses, on the defendants side, the prosecution side, and the judges side.

I see arguments against mandatory minimums are just arguments for Lawyer Welfare.

10 posted on 01/20/2004 4:59:49 PM PST by narby (The Greens, like the Nazis before them, are inordinate, i.e., there is no limit to their demands.)
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To: gcruse; Cathryn Crawford; Travis McGee
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.

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.

11 posted on 01/20/2004 5:07:19 PM PST by wardaddy ("either the arabs are at your throat, or at your feet")
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To: Cathryn Crawford
As you know the whole reason for mandatory minimum sentences is that people were losing faith in the judges, and we all read endless horror stories of revolving door justice back in the days when judges had their customary discretion.

In a perfect world, judges are mature men of character, and you want such men to weigh all of the factors both human and legal in his ruling. But the system was broke and mandatory minimums was the fix.

We need to get back to a situation where men of character judge cases, and have the discretion their office requires and deserves. But that is the big catch.

As for the three-strikes law, I have seen violent crime fall every year since it went into effect. It used to be dangerous to walk down the street where I live, and now people walk about with no fear. You put these guys away for good, and they neither can attack anyone, nor can they rope their younger brothers into it, nor do they get girls pregnant with the next generation of malefactors.

I would be willing to adjust the threshold at which three-strikes kicks in, but it has done what the judges lacked the will to do. Take repeat felons out of my neighborhood before they can do any more damage than they already have done.
12 posted on 01/20/2004 5:11:20 PM PST by marron
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To: Cathryn Crawford
"Mandatory Minimum" sentences have proven to be a really bad idea in drug cases. One of the few good things Sinky did during his time in office was mixed in a few pardons for some egregious cases among all the campaign contributors.

Families Against Mandatory Minimums

-Eric

13 posted on 01/20/2004 5:11:45 PM PST by E Rocc (...don't whiz on the magnesium fire...)
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To: wardaddy
Min/Mans have worked.

Abortion is a hot topic, but I wonder what part of the reduction in crime can be attributed simply to Roe v Wade?

The threat of a high maximum sentence is not a deterrent.  However, keeping criminals locked up surely decreases the crime they would be committing out on the street, never mind that the incarceration may cost more than the crimes themselves. 

The only answer I can find is to eliminate victimless crimes.  Ending prohibition didn't put the country on a drinking binge.
14 posted on 01/20/2004 5:15:24 PM PST by gcruse (http://gcruse.typepad.com/)
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To: narby; Cathryn Crawford; gcruse; Travis McGee
But they're rare

Not in Federal Drug cases. I know a number of folks who can tell you otherwise. Any drug offense beyond petty that attracts the DEA and US Attorney's office is likely to carry a 10 years without parole minimum stauatory and often much more via the Congressional Guidelines. There are pot growers and ganja smugglers of note doing life right now and they may have been first offenders and no violence. Those same folks had their crime (or the bulk of it if a pattern) been committed prior to 1987, they may have done at most 6 years....normally maybe 2-5. Many folks to their chagrin did not know that little detail prior to their arrest. Gun possession crimes sentences are just as draconian btw...and often simply for regulatory discrepancies.

15 posted on 01/20/2004 5:16:16 PM PST by wardaddy ("either the arabs are at your throat, or at your feet")
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To: gcruse
Yes....abortion has depleted the "youth pool" that would have come of age gradually with the implementation of FSGA and the effect has been enhanced by that....no doubt.

A good point.
16 posted on 01/20/2004 5:18:04 PM PST by wardaddy ("either the arabs are at your throat, or at your feet")
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To: narby
The memory of defendents with arm length rap sheets being turned loose over and over is slowly receding.

I don't remember a time when drug convictions resulted in unduly lenient sentences.

Hasn't anyone noticed that since mandatory minimums became common, the crime rate has been slowly but surely going down? It may not seem that way because of all the junk on the local news broadcasts. But check it out, it's true.

Well, it did decrease in the nineties - why is it increasing now? Do you think that maybe the economy has an influence on crime rates?

17 posted on 01/20/2004 5:18:22 PM PST by Scenic Sounds (Sí, estamos libres sonreír otra vez - ahora y siempre.)
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To: Cathryn Crawford
This is no justice where laws are absolute.
18 posted on 01/20/2004 5:20:55 PM PST by ColdSteelTalon
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To: Cathryn Crawford
My neighbor was a gangster in his younger days, on his last crime he was shot and wound up having a good part of his internal organs removed... He was also on his third strike.

While he was recuperating from surgery, and sitting in jail waiting for trial, he was forced to face himself, and realized that he was headed down a dark road with no way back.

He approached the court and begged for referral to Teen Challenge, even though he was almost 40, and for some reason they gave it to him. He became a Christian, and became the man I know, who has nothing in common with the man he once was.

I have seen him in action with some of the tough kids in the neighborhood, I am very impressed with the man.

God saved him, but "3-strikes" and a bullet got his attention.
19 posted on 01/20/2004 5:21:19 PM PST by marron
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To: marron
I would be willing to adjust the threshold at which three-strikes kicks in

And only if the person convicted showed a demonstrable will to live clean.

We as a society should only relent if the person offending shows remorse and lives clean for a certain amount of time depending on the type of crime convicted of.

20 posted on 01/20/2004 5:23:38 PM PST by ColdSteelTalon
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