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September 25, 2019

"How Mandatory Minimums Enable Police Misconduct"

The title of this post is the title of this notable new New York Times commentary authored by Scott Hechinger. I recommend the piece in full, and here are excerpts:

Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the recommendation of a Police Department judge, underscores why.

But the near impossibility of getting fired is only part of the crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing.

In criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals. They do so because the alternative is to risk the steep mandatory minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of these mandatory minimums to their advantage by offering comparatively less harsh plea deals before pretrial hearings and trials begin.

The result is not only the virtual loss of the jury trial — today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront police misconduct in criminal proceedings.  In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing.  A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false arrest because a plea of guilty serves as an admission that the officers’ arrest was justified....

The framers of the Constitution envisioned a far different system.  They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing crimes presented unique risks for abuse.  While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power should be vigorously challenged, without fear of reprisal or punishment, at every turn when it threatens the liberty of individuals. This original intent becomes meaningless if defendants cannot seek and receive judicial protection.  As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”...

We must abolish mandatory minimum sentences.  Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Fortunately, there is a growing national conversation among forward-thinking district attorneys and prosecutors to take police accountability more seriously.  District attorneys like Larry Krasner in Philadelphia and Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility or misconduct.  If more prosecutors start rejecting arrests from bad officers, a strong message can be sent and their ability to continue hurting people can be stymied.

Prosecutors must also end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts.  A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights.  A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.

September 25, 2019 at 08:17 PM | Permalink

Comments

“A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.”

And yet the author of the commentary lauds progressive prosecutors who vow to decline entirely the prosecution of certain crimes. I guess the author rejects the idea that crime has sufficient impact on the community in which the offender operates. Many would disagree, but they don’t get published in the NYT. Of course, the logical leap that incentives for police to follow the law are non-existent, as opposed to insufficient for the criminal defense attorney author’s personal preferences, is not explained. Probably because it’s not true.

Posted by: David | Sep 28, 2019 2:12:48 PM

The quote about disincentives highlighted above is absolutely correct.

What the piece appears to miss is that the frequency of plea bargaining is surely driven by the high costs of proceeding to trial, which in turn are driven by all the rights granted to defendants.

Posted by: William C Jockusch | Oct 2, 2019 6:15:26 AM

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