Friday, January 07, 2005

The War on Drugs and Mandatory Minimum Sentencing

During the 1970’s and ‘80’s the idea of “Mandatory Minimum Sentencing” became very popular to both Congress and state legislatures. It is important to note that mandatory minimums are the same across the board regardless of the role the defendant played in carrying out the crime. Prosecutors decide what charges to bring, whether or not to accept pleas, and what the final sentence will be. Judges must abide by the prosecutorial decisions rather than “judge” the matter for themselves.

One problem with giving that much power to the prosecutors rather than to the judges is that it is at the prosecutors sole discretion whether or not to charge defendants with certain crimes. Judges do not have that luxury when they are ruling on the same matters. For instance, if someone possesses a gun during the commission of a drug sale, the law is written in such a way that the punishment rises substantially. But a prosecutor is not bound by any law to charge the defendant with any particular crime at all. Therefore the prosecutor may choose to charge the defendant with the drug sale crime, leaving the possession of the gun out of it, with the hope that the defendant will plead out, thereby saving the government money by not forcing the case to trial. However, should the defendant decide to plead not guilty and the case moves forward to trial, the prosecutor is always free to at any moment amend the original complaint to add more charges. That way they still have the option (and the threat) to impose stiffer charges, which by default means a harsher punishment, upon defendants with the hopes of swaying said defendants into pleading the way the prosecution wants them to plea.

Last year a Utah federal district court judge sentenced a 25-year-old man to 55 years* in prison for selling small bags of marijuana to a police informant. During the commission of the crime, the man carried a pistol in an ankle holster and although he did not threaten anyone with the weapon, mandatory sentencing called for a stiff punishment, as he had possession of a gun during a drug deal. Even the judge admitted that the 55-year punishment did not fit the crime but the way the law was written left him no choice but to impose the mandatory minimum sentence.

It is no secret that mandatory minimum sentences have long been considered to have strong bi-partisan support. The idea is that the mandatory sentences will keep convicted criminals from committing crimes for a long time and also that the sentences will serve as a deterrent to those people not in prison who may be considering committing some sort of crime.

Another argument against mandatory minimum sentencing is the idea that the discretionary power of a judge is taken away from the judge and handed instead to the policy makers – the government. Some say that oftentimes this means the punishments are doled out in an unjust manner. Lawmakers may vote for mandatory minimums because they believe that it helps them to look tough on crime rather than because it is what is best for the people. In the federal system there are two levels of mandatory minimums and each level doubles for defendants with prior convictions. Five years is the beginning tier (becoming ten if the defendant has a prior conviction.) The second tier requires a minimum of ten years (with 20 for one prior conviction and life with two prior convictions.) Most of these people actually end up serving about 85% of their sentences due to being able to earn time off for good behavior, (which kind of detracts from the whole “mandatory minimum sentences = no parole!” thing.)

Several studies have shown that since the 1980’s the federal prisoner population has quadrupled and the average time served has doubled. The United States rate of incarceration has become 1 in 143 people.** The cost of housing this population is more that $40 billion per year.

There are several constitutional issues that I can see with mandatory minimum sentencing. The first would be with the sixth amendment wherein a defendant is guaranteed the right to a trial by jury. If mandatory minimums continue to be imposed, a jury’s power is essentially taken away. I also take issue with the blatant disregard for the eighth amendment wherein a defendant is guaranteed to not be subjected to “cruel or unusual punishment”. I do not see how justice is served by sentencing a 25-year-old to 55-years in prison for committing a nonviolent crime wherein the only “crime” committed was selling a small amount of marijuana to a cop.

In theory perhaps mandatory minimum sentencing makes sense. (But then, doesn’t communism as well??) In practice you have teenagers showing up at a party where pot is being smoked and getting arrested and then having drug charges on their records for the rest of their lives whether they were actually engaged in illegal activity or not – which is an actual situation that arose at my work last week. (And no, not all juvenile records are purged once the child reaches 18.)

*The maximum penalty for hijacking an airplane is 25 years; you would get 20 years for taking part in a terrorist bombing wherein a bystander was killed; kidnapping would warrant you a whopping 15 years.

**Compared with 1 in 1,000 in England, France, Germany, and Italy.

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