Ladies and Gentlemen,
No, I'm not just playing devils advocate to this diary which makes a good case for opposing mandatory sentencing. But there is an even better argument for mandatory minimum sentences.
So, meet me after the fold...
Mandatory sentencing isn't new. We already have mandatory sentencing for some of our laws on both the state and federal level. This is part of South Carolina's law on drug trafficking:
South Carolina Section 44-53-370 (exerpt)
(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony which is known as "trafficking in cocaine" and, upon conviction, must be punished as follows if the quantity involved is:
(a) ten grams or more, but less than twenty-eight grams:
- for a first offense, a term of imprisonment of not less than three years nor more than ten years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;
- for a second offense, a term of imprisonment of not less than five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;
- for a third or subsequent offense, a mandatory minimum term of imprisonment of not less than twenty-five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;
Mandatory minimum sentence. The federal law has mandatory minimum sentences, as well. The problem isn't that they are new, it is that not every law has one.
But first, I want to look at the two top arguments opposing mandatory minimum sentences.
- Mandatory sentencing is "one-size fits all" justice
Judge Paul G. Cassell of the United States District Court in Utah wrote:
Mandatory minimum sentences mean one-size-fits-all injustice. Each offender who comes before a federal judge for sentencing deserves to have [his or her] individual facts and circumstances considered in determining a just sentence. Yet mandatory minimum sentences require judges to put blinders on to the unique facts and circumstances of particular cases, producing what the late Chief Justice Rehnquist has aptly identified as "unintended consequences."
This is simply not true. Look at the above statute for sentencing; a judge has the leeway to sentence a first time offender anywhere from 3 years to 10 years in prison. That is hardly one-size fits all. It is no different on the federal level which is covered under Title 21 United States Code (USC):
such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both.
Sentencing is no less then 5 years and not more then 40 years. Once again, this is hardly "one-size fits all", even on the federal level. So this argument is pure fiction.
Mandatory minimum sentencing does not mean "one-size fits all". It means that regardless of race, age, or economic status, at the minimum, all people will be treated the same in the eyes of the law. There are also maximums that give the judges that very leeway they want.
- Mandatory sentencing mets out disproportionate sentences
Judge Cassell wrote:
Mandatory minimum sentences do not only harm those unfairly subject to them, but do grave damage to the federal criminal justice system -- damage that will be the focus of my testimony today. Perhaps the most serious damage is to the public's belief that the federal system is fair and rational. Mandatory minmum sentences produce sentences that can only be described as bizarre.
And he goes on to cite the case of Weldon Angelos who was sentenced to 55 years in prison under mandatory sentencing guidelines as justification to his statement.
For example, I recently had to sentence a first time offender, Mr. Weldon Angelos, to more than 55 years in prison for carrying (but not using or displaying) a gun at several marijuana deals. The sentence Angelos received far exceeded what he would have received for committing such heinous crimes as aircraft hijacking, second-degree murder, espionage, kidnapping, aggravated assault, and rape.
Seems very disproportionate, right? Espionage brings a sentence of:
shall be punished by death or by imprisonment for any term of years or for life
Which means that if you are found guilty of espionage, you can be sentenced to 1 year in prison, or to life in prison, or executed, at the discretion of the judge. When you figure that Mr. Angelos was sentenced to more then 55 years and a person convicted of espionage could be sentenced to just 1 year (by statute), that does seem unfair doesn't it.
But, it seems unfair because we are looking at two different laws that have two different sentencing requirements. If both laws had mandatory minimum sentences, then it wouldn't seen so disproportionate.
Let's look at apples vs apples. Take the case of Martha Stewart:
Stewart went to trial and was convicted in March 2004 on four counts of lying to investigators and obstruction of justice.
Stewart surprised many in September 2004, when she agreed to begin serving a five-month prison term while her appeal was still pending. In October, she reported to Alderson Federal Prison Camp in West Virginia. She was released on March 4, 2005, after which she was placed under supervised release and required to wear an ankle bracelet for an additional 5 months.
The last of her legal battles were resolved when, on August 7, 2006, the Securities and Exchange Commission announced that it had agreed to settle insider trading charges against Stewart and Peter Bacanovic relating to Stewart's sale of ImClone Systems stock in December 2001. Under the settlement, Stewart - without admitting guilt - agreed to the maximum penalty of about $195,000, or three times the losses she avoided. Stewart also agreed to a five-year bar from serving as a director of a public company and a five-year limitation on the scope of her service as an officer or employee of a public company. Stewart will be prohibited from participating in financial reporting, financial disclosure, internal controls, audits, SEC filings and monitoring compliance with the federal securities laws.
The obstruction charge itself could have landed her in prison for up to five years. Martha Stewart got 5 months in prison. What special consideration was there to warrant 5 months in prison and not 5 years other than she was rich and a celebrity?
Bounce Stewart's sentence against the sentence of http://money.cnn.com/...
Frank Quattrone, the most prominent investment banker of the 1990s tech boom, was sentenced Wednesday to 18 months in prison and two years probation for obstructing justice and witness tampering.
Different judges, different sentences, different justice; same crime. Now, consider if there was a mandatory minimum sentence for obstruction of justice. The judges could have then taken into account all of these "factors" to impose higher sentences, but, both Martha Stewart and Frank Quattrone would have, at the very least, had the exact same sentence for doing the exact same crime.
Now, I'll agree that the mandatory sentencing for drug charges should be less then the mandatory sentencing for espionage, no doubt. However, the disproportionate sentencing now is due to the fact we have mandatory sentences for some offenses while not having them for all offenses.
Consider if there was a mandatory minimum sentence of 40 years for the offense of espionage versus a mandatory minimum sentence of 5 years for a drug offense. The argument of disproportionate sentencing now evaporates.
So, instead of getting rid of mandatory sentences, I believe we should have mandatory sentences for all crimes that are felonies.
Or, we can continue to see justice like this:
Ex-Enron executives sentenced to probation for electricity market manipulation
A federal court in California sentenced two former Enron [JURIST news archive] executives Wednesday to probation for their roles in Enron's manipulation of electricity supplies during the 2000-01 West Coast energy crisis. Timothy Belden [Wikipedia profile], former head of Enron's West Coast power trading who pleaded guilty [plea agreement, PDF; WSJ report] to deliberately submitting false data to California electricity operators to drive up Enron's profits, was sentenced to two years of probation. He must also pay a $10,000 fine. Another former Enron employee, Jeffrey Richter, was also sentenced to two years probation and ordered to pay a $10,000 fine for conspiracy.
A third former Enron trader, John Forney, pleaded guilty in 2004 [JURIST report] for conspiracy to commit similar profit drives. He is expected to be sentenced next month. Belden, Richter, and Forney are the only three ex-Enron traders to be charged with manipulating the California market. The Houston Chronicle has more.
How is that for justice? A judge sentenced two ENRON executives to PROBATION for causing power outages that created emergency conditions in California. The employee's were gloating over it:
"What we need to do is to help in the cause of, ah, downfall of California," an employee is heard saying on the tapes. "You guys need to pull your megawatts out of California on a daily basis."
"They're on the ropes today," says another employee. "I exported like a f------g 400 megs."
"Wow,'' says another employee, "f--k 'em, right!"
Probation. That was all they got. Why? Because there were no minimum mandatory sentencing requirements and the "judge" just didn't feel they deserved more after causing chaos, and yes, I'm sure deaths due to the lack of power for air conditioning occurred, as well, from their actions. That isn't "justice". It is a mockery of our justice system.
Yes, it will mean retooling the laws themselves, and yes, that would take quite a lot of time and manpower. But we no longer have justice in America; what we have is a justice system that rewards the rich and punishes the poor.
What is more "fair"; everyone, regardless of race, age, or economic status getting at the minimum the same sentence for the same crime, or, only the poor who can't afford a high-priced team of lawyers going to jail while rich people get nothing?
And yes, that is exactly what happens now. When I was in law enforcement, I was in court the day a judge made the comment, in court, that because a man paid $5,000 to retain a lawyer to defend himself against a DUI charge, that was "punishment enough" for him. The poor people who couldn't afford a lawyer, well, they got "other" punishment; like fines and jail and license suspension.
If we are to go back to a rule of law that makes everyone equal, mandatory minimum sentences for all laws is a must.