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September 29, 2011

Effective NY Times editorial assailing mandatory minimum sentencing laws

Today's New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined "An Invitation to Overreach."  Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms.  In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost.  These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime.  But they have made the problem much worse.  They have shifted the justice system’s attention away from deciding guilt or innocence.  In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems.  As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities.... These laws have helped fill prisons without increasing public safety.  In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

September 29, 2011 at 01:02 PM | Permalink


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In my 38 years of doing criminal defense, the biggest change I have seen is the shift in power to determine sentence from the judge to the prosecutor, primarily through the vehicle of the grid of mandatory minimum punishments. I believe it fundamentally violates the separation of powers concept enshrined in the constitution for a prosecutor to essentially render the judge irrelevant in the context of sentencing.

Judges dislike the shift as much as defendants. North Carolina's two axis sentencing grid handcuffs judges. My favorite story is the one of the judge who was getting ready to open court. He turned to the clerk and said, "excuse me, I have to run down to my office. I left the judge in my briefcase."


Posted by: bruce cunningham | Sep 29, 2011 4:24:24 PM

"These laws have helped fill prisons without increasing public safety."

This is an important -- indeed probably the central -- claim in the editorial, but it's flat-out false.

Twenty years ago, near the dawn of "incarceration nation," there were about 14,872,900 serious, non-drug crimes in the USA. Last year there were 10,329,140 -- a decrease of 4,543,760 during the explosion in incarceration. See BJS statistics, available here: http://www.disastercenter.com/crime/uscrime.htm

Levitt and Spelman, in a Universtiy of Chicago analysis, concurred in by James Q. Wilson of UCLA, have found that a quarter or more of the decrease is because more people are being imprisoned and for longer.

What that means is that we have a staggering 1,135,940 fewer serious, non-drug crimes PER YEAR now than 20 years ago BECAUSE OF mandatory minimums and other statutes increasing incarceration.

Thus the NYT's key assertion that these laws have helped fill prisons "without increasing public safety," is, not merely false, but breathtakingly so.

For those who don't like the numbers, go ahead and not like them. I didn't create them; I copied them.

Prison keeps the rest of us safer -- a lot safer.

Posted by: Bill Otis | Oct 1, 2011 9:33:54 AM

Bill no one is disputing that non-drug violent offenders should be incarcerated. I think the figures that should be looked at are sentences for non-violent, marijuana ony offenders that are serving long sentences frequently in high security facilities - at great expense. Last year there were over 800,000 arrests for marijuana offenders. Is this fiscally responsible?

The real qusetion in the opinion piece is - do mandatory minimums give prosecutors the power to sentence? That is the question getting attention.

Posted by: beth | Oct 1, 2011 3:37:48 PM

beth --

-- In order to sell its argument that we have too many MM's, the NYT asserts that those laws have helped fill prisons "without increasing public safety."

As I pointed out, the facts overwhelmingly prove that the increase in imprisonment has very much increased public safety. The NYT claim is massively false.

-- Of the marijuana arrests last year, the great majority of which would have been for having a few joints or a bong, how many resulted in a sentence of even 30 days? My guess is, hardly any. When I was an AUSA, I don't recall a sentence of any jail time at all for simple possession of user-only amounts.

-- Finally, I would point out that the figures I recounted do not include ANY drug crimes. My main point is that "incarceration nation" has resulted in at least one million fewer serious non-drug crimes per year. If we want now to repeal "incarceration nation," we should have a clear idea of what we'll be going back to. The purpose of my post was simply to spell that out more explicitly, and with more specifics, than has been done heretofore on this site.

Posted by: Bill Otis | Oct 1, 2011 4:55:00 PM

Bill, I know you didn't use any drug crimes. That was kind of what I was addressing. Really the article was about mandatory sentencing and whether it created fair sentencing. Does it give sentencing power to the execuative branch rather than the judicial?

Posted by: beth | Oct 1, 2011 7:58:18 PM

beth --

The power to select the charge to bring always lay with the prosecution, not the courts -- before the proliferation of MM's and afterward.

MM's do not give sentencing power per se to the prosecution, but they shift it in that direction, yes. That was intentional. Congress became increasingly unhappy with the lenient sentences judges were imposing in the sixties and seventies, and the rising crime rate that accompanied them. The same discontent that gave rise to MM's also gave rise to the Guidelines.

Congress will be more likely to renew its faith in the sentencing practices of judges when Congress is satisfied they have earned it. Until then, there is not going to be any major scaling back of MM's.

Posted by: Bill Otis | Oct 1, 2011 11:38:53 PM

No one wants congress or the courts to to be lenient when violent crime is involved. The question is non-violent offenders. As more people interface with the criminal justice system -and more are because of the volume of prosecutions, they are beginning to understand the consequences of mandatory minimums and the power of prosecutors in plea agreements.

You may be correct that we haven't crossed a thresh hold yet, but we will see. There is also a growing negative sentiment about the bredth and scope of the federal governent. Even conservatives are beginning to see our justice system as part of the nanny state, and an out growth of a big and costly government. There are conservatives who are concerned about civil liberties and fiscal responsibility. I don't know how this will translate to change.

Posted by: beth | Oct 2, 2011 2:08:16 AM

beth --

"There is also a growing negative sentiment about the bredth and scope of the federal governent."


"Even conservatives are beginning to see our justice system as part of the nanny state, and an out growth of a big and costly government."

Conservatives are alarmed about the explosive growth of domestic spending, for sure. The criminal justice system is part of that, but not much of a part. They are also alarmed when they see idiotic things like ten year olds being hassled by the cops for a lemonade stand, or a 14 year-old being criminally prosecuted and labelled a sex offender for sitting nude on a 12 year-old's face. Nanny state stuff like that is out of line, I agree. Government should try to stop behavior that seriously damages people.

As the numbers I put up show, we have been doing exactly that by expanding the prison population. The toll the crimes that have NOT been committed on account of this is a cost savings as well as a humanitarian advance. We'd be foolish to cashier it.

"There are conservatives who are concerned about civil liberties and fiscal responsibility. I don't know how this will translate to change."

With any luck, it will translate into a change and reduced TSA budget, so they'll quit feeling me (and everyone else) up at the airport.

Posted by: Bill Otis | Oct 2, 2011 9:54:50 AM

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