Reforming sentencing laws

It's fairly axiomatic that legislatures generally play catch-up to society. Once there appears to be something of a groundswell around an issue, those men and women in the state and national capitals stick their fingers in the air, figure out where the money's coming from and raise the flag of the issue of the day.

Today that issue is mandatory minimums and over-sentencing. A seemingly odd coalition of libertarians and liberals are introducing legislative proposals that would overhaul federal sentencing laws. Among the many proposals are halving the current mandatory minimums; creating programs that will allow inmates to earn an early release; allowing inmates nearing the end of their sentences to serve the remainder in half-way houses or home arrest; and allowing judges to have a bit more discretion when sentencing defendants.

The last idea is the most intriguing. You see, while a jury has the job of determining whether or not the government has proven each and every element of its case beyond all reasonable doubt, sentencing is left in the hands of the judge. A judge who is appointed for life in order to shield him or her from political pressure. Only once upon a time some people got their panties in a wad because there was no consistency in sentencing across the nation. One might think that judges might have been using their discretion in determining what they thought was an appropriate sentence for a particular defendant.

Now this whole notion that everyone convicted of any given crime should receive roughly the same sentence is based on faulty logic and is wholly impractical. While two folks in two different parts of the country may be convicted of the exact same crime, the circumstances that brought them in front of a judge are anything but similar. What may be an appropriate sentence for Billy Bob might not be appropriate for Martha.

So into the breach stepped the Federal Sentencing Guidelines which took any tiny bit of discretion a federal judge may have had left and substituted a complex chart that told the reader exactly what the sentence should be. Sure, the guidelines were supposed to be advisory but it quickly became apparent that they were, instead, mandatory.

The result was a criminal (in)justice system in which no one risked trial since maintaining your innocence would only garner you an upward revision and a few more months behind bars to rethink your decision. Federal prosecutors would ratchet up offers as high as possible under the guidelines in order to coerce defendants into bending over and grabbing their ankles in order to avoid a worse fate.

The federally-protected right to a trial became an illusion.

[L]egal scholars like Erik Luna, a Washington and Lee University law professor who has written and testified extensively about mandatory minimum sentencing, also assert that the sentencing rules shift power from judges to prosecutors — an infringement on separation of powers doctrine. 

It's an argument George Will recently invoked: "The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the Constitutional right to a trial."

But now the bills have come due. Jails and prisons are overcrowded with addicts and other non-violent offenders serving ridiculously long sentences because of a failed drug war. Simple misdemeanor thefts are enhanced to long-term felonies because of prior convictions. No one but the private prison industry (and those receiving kickbacks on construction projects) have benefited from this arrangement. And here comes Congress riding to the rescue.

But while advocates such as Stewart, libertarian thinkers at the CATO Institute and a growing number of conservatives like columnist George Will are pushing for change, some drug prosecutors have urged caution. 

"The real power and efficacy of federal minimum mandatory sentences is our ability to hold them over certain peoples' heads in solving kingpin drug cases, or major murders," says Scott Burns, head of the National District Attorneys Association. 

Burns was among the witnesses who testified about mandatory minimums last fall before the Senate Judiciary Committee. The sentencing rules have been "an important tool" in driving down serious crime, Burns says, which over the past three decades has plummeted. 

He sees Congress' motivation as purely financial. 

"They're doing this because they are simply refusing to fund more federal prisons, period," says Burns, a former deputy director of National Drug Control Policy during the George W. Bush administration.

Of course the prosecutors are opposed to any changes in the way in which the federal courts operate. In their narrow world view, the only answer to a problem is to lock someone up for a long time and then toss him back on the street years later with little or no way to ever be a productive member of society. But what else would you expect - sentences are just numbers to a prosecutor. They have no meaning. No consequences.

Prosecutors don't deal with the mess their work leaves behind. Prosecutors don't have to hold a defendant's hand when he's just been sentenced to a double-digit term. Prosecutors don't have a console a defendant's mother or wife or children after the defendant has been led away.

Prison should be reserved for those we are afraid of, not for those we are mad at. Removing someone from society should be the final option, not the first. Maybe, if we're lucky, a little sanity will prevail in Washington.