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November 18, 2008

A structural attack on mandatory minimum sentencing statutes

Writing for the Connecticut Law Tribune, Norm Pattis has this effective commentary headlined "Mandatory Sentences Lead To Major Injustices." The piece closes with this effective structural attack on mandatory minimum sentencing statutes:

Mandatory minimum sentences make a mockery of the separation of powers.  Lawmakers enact such legislation believing that they speak in the name of people who are sick and tired of coddling criminals.  Anger and passion demand action.  Lines get drawn.  But these lines become clubs wielded without discretion and review by members of the executive branch.

This isn't justice.  No one elects prosecutors.  They never appear before elected officials for reappointment decisions. They lack accountability.  Once a prosecutor has locked onto to a charge, no judge can dislodge him in the interest of justice.  And a law without sentencing guidelines blindly adheres to the fiction that one size fits all.  There are no safety valves for special cases; there are no downward departures for men and women deserving of consideration due to the sometimes special circumstances in their lives.

I am not a fan of judicial discretion.  But I trust a judge before whom I can appear and argue more than a lawmaker I will never meet.  And I trust most judges more than many prosecutors, who, by dint of our sentencing law have been made de facto kings of the courthouse.

Of course, in some states voters do elect their prosecutors.  But this does not undermine the broader applicability of the righteous concern expressed here about the extraordinary sentencing powers that mandatory minimum sentencing statutes give to prosecutors.  (Notably, prosecutors rarely deny that mandatory minimum sentencing statutes give them great charging and bargaining power, they just typically assert that they can and do use this power wisely.)

November 18, 2008 at 08:04 AM | Permalink


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FAMM has the arguments down. Pattis sounds like he hammered the op-ed out in a fit of rage. Take a deep breath, have someone else read it, then send it out. Or take a look at the website of an organization that has thought rationally about the issue. http://www.famm.org/

Pattis's quarrel is with the voters and the fact that they aren't much bothered by what some would call excessive sentencing--or at least very few politicians have come along who are good enough to make the case on that point.

The legislators don't merely "believ[e] that they speak in the name of people who are sick and tired of coddling criminals"; the response of the voters seems to indicate that they actually do speak in the name of these people.

The legislators who pass mandatory minimum sentences are elected. The attorney general of Connecticut is elected. His suggestion that prosecutors "never appear before elected officials for reappointment decisions" ignores the latter fact. I'd guess (I don't actually know) that most prosecutors are at-will employees who serve at the pleasure of the AG. Pattis's idea of "separation of powers" is basically having a defendant-friendly judge who can override the decisions of the other two branches. His op-ed is insulting.

The judges don't have to accept guilty pleas, and the defendant can always take his chances with a jury. The problem is that the elected representatives of the voters have decided that child pornography is a serious enough harm that people like his client who trade in it should be thrown away. At the bottom of all of this is the apparently unavoidable fact that his client committed a crime that the Connecticut legislature takes much more seriously than he does.

Posted by: | Nov 18, 2008 8:55:13 AM

Also, voters and legislators can be persuaded to support gentler sentencing laws. These things may be the exception rather than the rule, but they happen.

Michael Cooper, New York State Votes to Reduce Drug Sentences, N.Y. Times Dec. 8, 2004.


Posted by: | Nov 18, 2008 9:00:19 AM

I'm not away of any state where prosecutors don't report to an elected official. In the U.S., prosecutors are firmly part of the executive branch.

It wouldn't have to be so. In many countries, prosecutors are considered part of the judicial branch and more isolated from elected officials. But, in the federal system, the President appoints the Attorney General (subject to Senate confirmation) and also appoints the U.S. Attorney for each judicial district. Both serve at the pleasure of the President (unlike, e.g., the head of the IRS, the FBI Director, and the head of the SEC who serve for fixed terms).

In most states, prosecutors report either to an elected state attorney-general (e.g. Florida) or an elected prosecutor running a judicial district or county.

There may be a handful of consolidated cities and counties whre a DA is not separately elected, but they are very few. Judges are far more independent of politics -- many are appointed for secure tenure, many who are elected in name are de facto appointed.

Separation of powers are an issue, but the point of mandatory minimums is to increase the power of the legislature vis-a-vis judges in sentencing. The impact on prosecutors power that results is not an accident, but not the primary purpose of the legislation either.

Posted by: ohwilleke | Nov 18, 2008 11:18:19 AM

The attorney general in Connecticut, who is elected, handles solely civil matters. The Chief State's Attorney, who administers the division of criminal justice, and the 12 state's attorneys are appointed by a commission, which in turn is appointed, per allocations set forth by statute, by the governor. All other prosecutors are civil service-type employees -- i.e. NOT at-will employees.

Posted by: | Nov 18, 2008 11:41:12 AM

Thanks for the clarification re: prosecutors in CT.

Posted by: | Nov 18, 2008 12:49:50 PM

8:55:13 AM: "Pattis sounds like he hammered the op-ed out in a fit of rage."

I think the tone was intentional and calculated. How else to be heard above the din? I've done the same but recently decided it is not effective. If the Pattis article accepted comments there would be many posts accusing the defendant of having molested his or other children because if he had child pornography he must be doing more serious crimes. He would be called a pedophile and there would be calls for him to be castrated or shot. The media is embedded with the executive branch as cozily as the media was embedded with our troops in Iraq. That is what voters vote on. Since reporters already know who to contact in the executive, from the police to the AG, there needs to be a balance. The defense bar should start an organized campaign of its own. Volunteer defense attorneys could call reporters and offer to comment on local stories and they should slap back when the Nancy Graces slap them. A knowing grin isn't good enough. Their comments could be pro-constitution rather than pro-defendant. But that depends on the media wanting a fair and balanced report, which may not sell as many papers. So, the defense bar could start its own online newspaper and follow stories that routinely rely on the fallacy of the part equals the whole and publish the other side of the story. The news behind the news. The tone could not be the same as Pattis' all the time but if done well it could become popular and respected. There are many talented bloggers who may want to "write" for the paper. Pattis is sincere, but there is no way for him to be heard in the MSM.

Posted by: George | Nov 18, 2008 3:27:59 PM

the reliance on separation of powers notions is right on the money. One of my favorite stories about the huge shift in power from the judicial branch to the executive/prosecutors with the advent of structured sentencing grids containing numerous mandatory minimum sentences is the following. A respected judge opened court and then realized he didn't have his legislatively enacted sentencing grid with him. He leaned over to the clerk and said, "Excuse me, I have to run out to the parking lot. I left the judge in my car!"

Bruce Cunningham

Posted by: | Nov 18, 2008 8:15:27 PM

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