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January 22, 2013

More proof mandatory sentencing laws are never really mandatory and can enhance disparities

Guns-prison5One typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday's New York Times, which is headlined "Prison Isn’t as Mandatory as State’s Gun Laws Say." Here are excerpts:

The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically.  In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.

Five years later, though, that equation seemed decidedly more equivocal.  In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office.  In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.

Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator.  “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said.  “We’ve made a lot of progress.”

But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances.   Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.

Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness.  In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”

Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled.  For example, the new law says those penalties “shall” be imposed, not “must be.”  The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”

Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally.  “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said.  “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”...

The ratio of arrests to prison sentences is only one measure of the law’s effectiveness.  By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years.  That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.

Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try.  “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said.  (In Queens that rate is 98 percent.)...

Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low.  “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”

Though a bit confusing in its data reporting, this article still is so very telling as to how the "prerogatives of prosecutors" ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he "can’t answer what should" be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.

Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors' leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.

January 22, 2013 at 11:14 AM | Permalink


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1. How ironic that the NYT, otherwise a staunch foe of mandatory minimum sentencing, now criticizes them because they're not mandatory ENOUGH! Of course this is only because the NYT is even more in favor of ironclad gun control than it is opposed to MM's, so its opposition to the latter gets the heave-ho in this one particular area. My goodness!

2. Doug's characterization of MM's as "one-size-fits-all" is misbegotten. MM's set a floor for sentencing, but they do not by any means dictate the sentence. They represent the legislature's judgment that there are some crimes so socially menacing that they merit a floor of X years imprisonment, no matter what the extenuating circumstances may be. But a sentence could be, and in some circumstances should be, much higher than the floor. If, for example, Mr. Smith is stockpiling machine guns so that he can do a repeat of the Newtown massacre this afternoon, his sentence should be (and certainly would be) well above the minimum.

3. That MM's are not imposed in all cases in which the police arrest someone for an MM-eligible offense is portrayed as if it's some kind of scandal or gross breach in the equity of the system. Nonsense. Police do not decide the charge, and it is frequently the case that the prosecutor, who does decide it, will conclude that the defendant's behavior warrants something less. This is absolutely routine, and to see defense-types bellyaching about a prosecutor's decision to ratchet down what the cops want is just hilarious.

4. The related idea that "the discretionary decisions of prosecutors [should be] subject to greater regulation, scrutiny, accountability and review" flies in the face of the Supreme Court's holding, based on the plain text of the Constituion, that the executive branch alone has charging power. The implication that it should be subject to "review" -- plaining implying review by courts (or is it really the NACDL?) -- simply brushes aside the Constitution's separation of powers. But, hey, so what? What did the Framers know?

Posted by: Bill Otis | Jan 22, 2013 2:10:55 PM

Highlighting Doug's point, there is apparently no penalty for incontrovertible violation of NYC gun laws if your name is David Gregory.

Posted by: William Jockusch | Jan 22, 2013 2:16:17 PM


Is it the case however that the federal constitution enshrines separation of powers to the point that a state is required to follow the same formulation as the feds? I find that position to be quite a stretch. (Note I am not saying that New York's constitution does not in fact vest charging authority with prosecutors, I am merely questioning whether a state is _required_ to place such authority with an executive branch actor.)

Posted by: Soronel Haetir | Jan 22, 2013 4:01:16 PM

I suspect a big reason so many cases get bargained down is the simple lack of manpower available in prosecutors' offices and the lack of courtroom and judges to try every case. Said another way, a "legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time," is completely meaningless unless there is a concurrent legislative and executive commitment to paying for the prosecutors, judges, buildings and staff (and in cases of indigent defendants, defense counsel) to make that principle a reality.

Posted by: C60 | Jan 22, 2013 5:13:24 PM

Soronel --

That's a really interesting question that I had not thought about before. To my knowledge, there is nothing in the federal Constitution that requires the states to stucture the powers of their governments in the same way as the federal government is structured. But all the states do, so far as I am aware.

Posted by: Bill Otis | Jan 22, 2013 6:22:08 PM

William Jockusch --


Posted by: Bill Otis | Jan 22, 2013 6:25:01 PM

SH: The Supreme Court has "incorporated" the Bill of Rights to the states, through the Fourteenth Amendment. The body of the constitution has not been treated this way. However, separation of powers is the sole source of the little freedom we still have. It should apply to the states if ever tested.


Posted by: Supremacy Claus | Jan 23, 2013 7:08:57 AM

Couple of rejoinders, Bill:

MM's are, as you say, the "legislature's judgment that there are some crimes so socially menacing that they merit a floor of X years imprisonment." But that fact is what makes it a "one-size-fits-all" approach to sentencing, at least with respect to the minimum sentence, because the legislature has deemed this one minimum size to be fitting for any/all forms of the crime. (And, of course, this post was about all mandatories, not just MM, which has historically included now-unconstitutional LWOP for juves.)

You rightly note that it is "frequently the case that the prosecutor, who does decide [the charge], will conclude that the defendant's behavior warrants something less." That is the main point of this post and what I see as the fundamental problem with mandatory sentencing schemes: prosecutors become the chief (and often the only) discretionary decision-maker who gets to "conclude that the defendant's behavior warrants something less" that what the legislature said should be the minimum for that behavior. Unless you think the Framers expected/wanted the executive branch rather than the legislative and judicial branches to be responsible for sentencing policies and sentencing outcomes, you should acknowledge that the very point you stress is constitutionally troubling and you should share my constitutional and policy concern about the real-world operation of MMs.

Of course, you assert that my suggestion that "'the discretionary decisions of prosecutors [should be] subject to greater regulation, scrutiny, accountability and review' flies in the face of the Supreme Court's holding, based on the plain text of the Constitution, that the executive branch alone has charging power." Again, this reality you stress should prompt you share my concerns about MMs and they way they shift sentencing authority to prosecutors. Judicial sentencing decisions are plainly subject to "regulation, scrutiny, accountability and review." Unless you think sentencing should be a "law-free" zone, you should be very troubled by prosecutors having sentencing powers through charging unless/until you are prepared to assert/defend the notion that sentencing decisions subject not be subject to regulation, scrutiny, accountability and review.

Ultimately, Bill, your points reflect the typical hypocrisy we see among so many prosecutors concerning sentencing power/discretion and mandatory sentencing schemes: prosecutors favor these schemes ultimately because it provides them with maximum sentencing power/discretion subject to no regulation, scrutiny, accountability and review, while they also restrict dramatically the sentencing power/discretion of all other actors in the criminal justice system. But prosecutors do not defend mandatories on these terms, but instead talk about reducing disparity and ensuring just punishment, when in fact mandatories likely increase disparity and undermine just punishment because of the absence of any regulation, scrutiny, accountability and review of prosecutorial charging decisions.

In short, I think a true commitment to the Constitution's separation of powers -- rather that a commitment to prosecutorial power -- would lead you to join the criticism of mandatory sentencing schemes. But I fully understand, given your history in the executive branch, why you do not mind giving prosecutors the powers of King George as long as you alone are among those who get to decide which pounds of flesh you get to take in the name of the almighty government.

Posted by: Doug B. | Jan 23, 2013 8:42:59 AM

Separation of powers is probably not part of the "republican form of government." In other words, a state could choose (and for local governments some do choose) to meld the legislative branch and the executive branch with the executive officials serving at the pleasure of and answering to the legislature for how the executive powers are used. Ultimately, even in countries that do meld the legislative and executive branch together, individual decisions in individual cases need to be made by somebody executing executive powers to determine what charges will be filed and pursued. The prohibition on bills of attainder would preclude the legislative body from making that decision.

Posted by: tmm | Jan 23, 2013 12:24:44 PM

We should keep in mind that penalties, or what have become known as mandatory minimums are set by lawmakers before the fact at a time when the problem is not fully known. Punishments are set by judges after the fact at a time when the problem is fully knowable. In other words the problem unfolds as more and more information becomes available.

People are penalized for committing crimes and punished for committing criminal offenses. These are two different ways of thinking about the problem as it unfolds. The State has different objectives as to each. So-called mandatory minimums will continue to confound decision-makers until they get this straightened out in their minds.

Posted by: Tom McGee | Jan 23, 2013 2:16:14 PM

Prof. Berman should be commended for advocating accountability of prosecutors. They have dozens of duties to defendants enumerated in statutes covering the Rules of Conduct, of Evidence, of Criminal Procedure. Many violations wouldre be per se, subject to exemplary damages.

The Disciplinary Counsel should prosecute prosecutors. He works for the state high court, argues before it, violating due process rights of all lawyers. No human can regulate itself. The high court has also written the rules.

First step should be to move the DC to the licensing authority of the state, in the executive branch.

Posted by: Supremacy Claus | Jan 23, 2013 3:31:15 PM

Doug, with respect to mandatory minimums, they've been around for a long long time. You commit murder in say, Indiana, there's a limit to how low the sentence can be.

And perhaps one ought to observe where mandatory minimums came from--namely a pissed off electorate who witnessed the carnage wrought by lenient judges and idiots like Mike Dukakis.

Posted by: federalist | Jan 23, 2013 10:47:11 PM

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