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In our opinion: Roll back mandatory minimum sentences and allow judges to measure out punishment

Published: Thursday, March 27 2014 6:21 a.m. MDT

A bipartisan measure in Congress to roll back mandatory minimum prison terms is a welcome effort to reform federal criminal law sentencing. A system of laws must provide a way for an individual’s crimes to be weighed by a judge, not a prosecutor.

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A bipartisan measure in Congress to roll back mandatory minimum prison terms is a welcome effort to reform federal criminal law sentencing. Excessive sentences harm individuals convicted, who sometimes spend decades in jail for drug crimes far less heinous than murder or rape. More importantly, unwarranted sentences harm our penal system, mocking principles of justice and mercy.

Current sentencing standards are the result of harsh anti-criminal measures dating to the late 1980s and early 1990s, as the use of crack cocaine in urban areas reached heightened proportions. Removing discretion from judges through the imposition of mandatory sentences for particular crimes was seen as a way to get tough on drug traffickers.

This has led to an explosion in the total prison population, which has more than tripled from 443,838 in 1984 to 1,537,414 in 2011. An article in today’s Deseret News highlights the devastating impact. Stephanie Nodd of Mobile, Ala., was among those trapped by them.

Nodd, who admitted to selling crack cocaine, helped another drug dealer learn the ropes. She claimed she never handled, sold or transported drugs — but was a courier for cash. Charged in a federal drug sting with 18 kilos of cocaine, she became subject to a mandatory sentence of 30 years in prison — even though it was a first offense, and even though she committed no violent crimes.

Stephanie Nodd ended up serving 21 years. As the Deseret News reports, “the average convicted rapist in the era in which Stephanie was convicted served 5.4 years of a 12-year sentence. … Today, in her native Alabama, the mandatory minimum for Class A felonies, including rape and kidnapping, is 10 years. Manslaughter, a Class B felony, carries a minimum of two years and a maximum of 20. The typical street-level dealer, the classification that would come closest to describing Stephanie, was sometimes in and out of county lock up the same day.”

Nodd’s story is repeated endlessly across the nation. And that’s one reason we support the Smarter Sentencing Act, Senate Bill 1410, a measure brought forward by Democratic Sen. Richard Durbin, D-Ill., and Republican Sen. Mike Lee, R-Utah. The bill passed the Senate Judiciary Committee, and has the support of the U.S. attorney general.

In testimony before the committee last fall, Judge Patti Saris, chairwoman of the U.S. Sentencing Commission, highlighted how mandatory sentences backfire in the fight against crime. “In the drug context, statutory mandatory minimum penalties [are] often applied to lower-level offenders, rather than just to the high-level drug offenders that it appears Congress intended to target.” The Durbin-Lee legislation, she said, corresponds to many of the independent federal agency’s longtime recommendations.

Mandatory minimums also deny the opportunity for individuals to redeem themselves from poor choices. They wreak havoc on taxpayers. “The criminal justice system is devouring our resources,” said Harvard law professor Charles Ogletree. It is “putting people who have committed low-level offenses, who are perfectly capable of being rehabilitated, away for lengthy sentences and turning them into hardened criminals; destroying families and communities and callously throwing away lives.”

Many others share this view. Julie Stewart, president of Families Against Mandatory Minimums, said that “lately there has been a shift in thinking, perhaps a moral shift, in how law enforcement, legislators and the public look at who should be behind bars.” Kathy Saile, director of social development for the U.S. Conference of Catholic Bishops, said that mandatory minimums “fail to account for individual circumstances and eliminate chances for rehabilitation.”

The proposed reform in Congress mirrors state action to ratchet back similar sentencing structures. In 2009, New York removed a set of mandatory minimum sentences for drug crimes. Texas has also tackled the problem. Since 2007, it has put nonviolent offenders in alternate programs. Instead of needing to build more prisons, it is closing them today.

Public opinion is now pressing for changes to this mandatory minimum sentencing system. A recent poll by the Reason Foundation showed 71 percent of Americans in favor of granting more discretion to judges.

That is the proper solution. A system of laws must provide a way for an individual’s crimes to be weighed by a judge, whose duty it is to measure out appropriate punishment. Perhaps fearful of excessive leniency by some judges, in the past generation state legislatures and the federal government embarked upon a “mandatory” path, largely stripping this discretion from the judge.

As noted in the Deseret News report, “in the mandatory minimums regime, all the discretion previously held by judges now belongs to the prosecutor. Federal prosecutors have a fearsome 98 percent win rate at trial. Combined with extreme sentences, this gives them enormous leverage. Plead guilty and implicate someone in exchange for a lighter sentence. Maintain innocence and refuse to offer up other targets, and face a stiff minimum sentence when you lose.”

This unfortunate combination puts bad incentives in front of accused criminals. And it does no credit to our system of justice. We commend the Senate Judiciary Committee for acting on SB1410, the Smarter Sentencing Act, and urge its passage by the full Senate and the House.

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