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December 30, 2012

Talk in Georgia of reform of mandatory minimum sentencing provisions

As reported in this local article, headlined "Mandatory minimum sentences face scrutiny: Some prefer to give judges more leeway in some cases," there is now serious talk of serious reform in Georgia of mandatory minimum sentencing provisions. The article starts this way:

Mandatory minimum sentences may get a hard look from state legislators in the upcoming session, and at least some Hall County leaders think that’s a good idea.  “I’m not a legal scholar or professional in the legal world,” state Rep.-elect Lee Hawkins said.  “But just looking at it from a common sense side, I question the need for mandatory minimum sentencing when we have more than capable judges who can listen to a case and make a decision based on the facts.”

The sentencing guidelines established by state law have come under increasing scrutiny as an expensive prison population continues to affect Georgia’s budget.

A criminal justice council created by Gov. Nathan Deal recommended in a 2011 report that judges be given more discretion in some cases.  The council recommended in its most recent 2012 report that the legislature consider implementing a “mandatory minimum safety valve,” which would allow judges more discretion in cases of nonviolent crimes, particularly those drug-related, or those in which criminals have cooperated with police.

For judges, the issue can be a matter of compassion. Former Superior Court Judge John Girardeau said in his experience, problems with mandatory minimums were infrequent but raised concerns.  “It doesn’t happen frequently, but there’s been enough instances where I’ve had to impose a sentence required by law that I thought under the circumstances was an unjust sentence, and that was troubling,” he said.

Hall County District Attorney Lee Darragh, though, said minimum sentencing is beneficial for prosecutors and victims.  “Mandatory minimum sentences are an invaluable tool to prosecutors in this state in ensuring justice for victims of the most serious crimes on the books,” Darragh said.

Many of the laws that created mandatory minimums began in a wave of “tough on crime” feelings in the late 1980s and early 1990s, Girardeau said.  “Back when these laws were enacted, I think there was a perception that some judges were too lenient on some crimes,” he said.

However, democracy is the remedy, Girardeau said.   “Given that our judges are elected, if judges with any consistency impose what the local community feels is being a too lenient a sentence, the judge stands for election every four years,” Girardeau said.  “People can speak at the ballot box.”

December 30, 2012 at 05:57 PM | Permalink


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Prof. Berman,

Happy holiday season. I happened to be searching for a Georgia criminal law blog and stumbled upon your posting today. I was a student of yours in 2008, in your Sentencing Law & Policy seminar. I am now a prosecutor in Savannah, GA, assigned to the misdemeanor and DUI division.

Your post today discussing Georgia sentencing law recalls to me a theme you raised in the seminar - that of actors in the sentencing process. Based on my experience in Savannah, i would agree with the notion that judges, rather than the state legislature in setting mandatory minimums, should function as the preferred actor during sentencing, as judges are closer to the evidence and the attorneys presenting the arguments. A disadvantage, however, could lie in the judge's role as gatekeeper of admissible evidence, where prejudicial evidence could motivate a judge toward a higher sentence, notwithstanding any ruling to exclude that evidence. The jury would not be a reliable or consistent actor in this scenario, so i would not suggest placing the responsibility in those hands. Civil damage awards are one thing, but criminal sentencing is another entirely.

Thanks for listening, Professor, and thanks for keeping us all informed!

- MM

Posted by: Mario Medina | Dec 30, 2012 11:09:56 PM

What about viloent offenders that has to serve 30 or more years on their first offense

Posted by: | Jan 15, 2013 2:56:04 AM

What can we do to try and help get this law changed to try and help alot of ga inmates. The prisons are to crowded and costing tax payers alot of money pls tell me who do u write to try and get this law changed...

Posted by: lissa | Jan 21, 2013 5:50:53 PM

Hello: This is very difficult. I have a 41 yr. old son in Hays Prison in GA. His sentence is 40 years for molesting his then 12 year old daughter. I, along with his fiancé, were not allowed to be in the courtroom-we were held as witnesses for the prosecution and never set foot in the courtroom. He was sentenced with no chance for parole. There is still doubt in my mind that he did this but I also know some of the facts as his brother was in there most of the time-so I can see where he could have done it. That useless info aside, what I would like to know is there any chance that during his upcoming appeal what is the possibility he could do a plea bargain and what the best outcome might be -he still denies he did it. He has had near perfect behavior while in prison Please help me to understand what the possibilities are here. Sorry for not explaining this any better. Thank you, Pat

Posted by: Pat Ogilvie | Aug 3, 2013 4:44:03 PM

sorry-concerned parent

Posted by: Pat Ogilvie | Aug 3, 2013 4:45:25 PM

Do mandatory minimum sentences actually serve any of the goals of justice, or is it a out of site out of mind justification or proliferation of an unjust biased system? As a retired military veteran, and a senior law and society major in a State University my research has been on CCA/ profiteering prisons that are understaffed with no rehabilitation programs who among other things get a certain dollar amount from the state. Now I want to take a look at these mandatory laws. These profiteering prisons siphon off the money or pay dividends to stockholders. Some of these same prisons use prison labor to undercut the business marketplace because they spend little to nothing for labor. I think the elites influence the CJ system through the legislation to punish the poor and lawyer less through mandatory sentencing. Somebody is getting paid. I think it's a wicked system, built to penalize the poor and minority. Mandatory sentencing in my opinion needs to be abolished under all circumstances. In America the lofty goals of the law has been pulled down by our inability to keep it's standards virtuous and clear. Where are the classes mandatory in school to deter in a society of freedom that choke out morality, good sense, temperance, modesty, soberness, and self control. Then you have the law that is archaic and distant to the people. The attorney has a paralegal to research the law for him to find a legal precedence or loop hole to apply. The common or poor aren't even trained on what the law says. He knows not a misdemeanor or a felony or classes of crime. If possession is nine-tenths of the law? Then why aren't the penalties taught to young men and women about to leave school and embark into a life where the rules and laws aren't talked about, but used as gotcha justice. Where are the Civic Classes,the teaching on the responsibilities of a citizen and their individual obligation to build a great society? If good behavior is not taught how is it expected ? How do we abolish these mandatory sentencing laws and teach and train the leaders of tomorrow to recognize laws that do not serve justice , restitution,deterrence and punishment?

Posted by: Michael A. Peagler Sr. | Mar 5, 2014 1:10:44 PM

I will say we need to get rid of mandatory sentensing. My son got 20 years for kidnapping. He took a guy while robbing his store across the street. He got 20 years because of mandatory sentensing. Did he do it? yes was the sentensing to high yes. I said he should get 5 to 7 years for he should pay. I do think 20 years is way too much for a first time offender. I will continue to work and try to get rid of this manadory sentensing for others that come behind my son. I will say this if he was rich or if we were able to afford a better attorney than a public defender he would not have gotten this much time.

Posted by: Stacy Liggins | Jun 7, 2014 3:56:15 PM

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