Before we start, I have a small secret to share.
Those of you who regularly follow this blog will have noticed that I sort of disappeared the past few weeks. That’s because I was having open-heart surgery and recovering. Recovery is going OK, but it sort of took the wind out of my sails for a bit. I mean, it’s hard to get too excited about Supreme Court opinions, no matter what they involve, when you are looking at life and death issues up close and personal.
Which is why I’d like to thank John Oliver for helping me to get back in the saddle. His recent piece on Mandatory Minimum Prison Sentences (i.e. “mandos”) hit every mark and has motivated me to chime in.
I’ve been complaining about not only mandatory minimums per se, but also about the impact of predetermined range sentences for decades now. I remember when the “War on Drugs” first started and I was a young smart aleck Public Defender in Seattle in the 80’s. I used to enjoy standing at the front of the courtroom during breaks, crowing to the prosecutors (who all thought I was crazy) that I was happy to accept their challenge and fight back against their silly war. I was able to back that up since we went to trial a lot more in those days, largely because the Government had not yet perfected the complete destruction of Due Process eventually wrought by mandos and their ilk. Now going to trial can be an almost impossible choice for Defendants.
I liked to point out then that prosecutors were destroying the criminal justice system by using the sentence grid to force people to plead guilty; they used their power to pick the charges and the resulting automatic sentences, taking away the judges’ power to be judges and decide fair and just sentences. I tried to tell them that these sentences served no purpose since none of my clients had any idea what the sentences were before they committed their crimes. Hence they could not possibly have any deterrent effect. I used to say that they should take out full-page ads in the paper to explain the sentences so people knew what they were. Nobody wanted to listen to me.
So here I was, thirty years later, listening to Mr. Oliver make the exact same points. Déjà vu all over again. Here are some of the most important observations he made:
1. Circumstances Make a Difference
They do. This is why it is important to look at everything that happened in a case before deciding what sentence to impose. This can go both ways. Bad crimes get long sentences and less serious crimes get less. It is not one size fits all sentencing, and it requires a participating judiciary to make it work.
With mandos, one size fits all. Just plug in the drug quantity and maybe one factor, such as there was a firearm somewhere, practically anywhere, and the sentence is MANDATORY, no exceptions. Never mind if the firearm is an antique rifle hanging on the mantle that has not been fired in decades, or that the drugs were rather benign (like pot, which has long been treated the same as heroin or cocaine by the Feds, something hopefully we now all realize is a total joke). Mando is mando.
The judges are not allowed to consider the circumstances; they are forced to sign the sentence on the dotted line, a line created by the prosecutors when they decide the charge. This is the most serious problem.
2. Separation of Powers and The Right to Trial Are Good Ideas
Our Founders were geniuses when it came to creating a new form of government. Too bad that so many are constantly trying to subvert their efforts. They thought it would be a good idea to spread the power of government around evenly between the judiciary, executive and legislative branches to keep things balanced and fair. They were right.
Mandos are wrong because they circumvent this, in more ways than one. First of all, we have situations like the one described by John Oliver where a judge was forced against his better judgment to impose a 55-year sentence on a defendant who sold a small quantity of weed when he also had a gun around. The sentence was the same that an aircraft hijacking terrorist child rapist might have received. Does that seem fair and balanced? The judge had no choice because the prosecutors had decided to proceed with the charges that required a mandatory sentence, forcing him to impose that. In other words, the prosecutors took away the judge’s discretion to be a judge and imposed their own will in its place.
This is, without a doubt, the most horrible consequence of these sentences. They give the prosecutors all of the power to determine what sentences should be imposed. All the prosecutor has to do is figure out what crime to charge and they can tie the judge’s hands when it is time to impose sentences.
But it goes further than that, something touched upon by Oliver when he played the Jimmy Smits clip showing how cops extort cooperation out of people by threatening to charge them with crimes that require a mando. This happens in so many cases every single day it would make most people’s heads spin.
I spend a significant amount of my professional life telling people that if they do not take a plea bargain the prosecutor can simply change the charge and get either a mando or higher sentence range, which can prevent the judge from dishing out a less harsh sentence. In practice this varies a bit depending on whether the case is federal or state. Typically, especially in federal court, we talk to our clients about the risk of going to trial and risking a mando of ten or fifteen years or more, versus pleading guilty to a recommendation of much less than that. It’s not really a fair choice. The right to trial does not mean much when that is the choice.
3. Racial Disparity is A Big Part of the Problem
We all know that drugs impact all races, but, as I have pointed out in other posts the impact of the criminal justice system reaches much more deeply into the African American and Hispanic communities. In reality, it means that the vast majority of my clients looking at mandos are people of color, even though the drugs they sell are frequently consumed by Caucasians. That should speak for itself when it comes to fairness.
4. Criminal Conspiracies: The Best Way To Do Time For Someone Else’s Crime
This was not emphasized by Oliver, but it was touched upon. One Defendant had been a minor player in a larger conspiracy, for which she was sentenced as if she had been the Kingpin. It’s the law, unfortunately. Criminal Conspiracy is the secret due process destroying weapon in the Government’s arsenal when it comes to sending people away on disproportionate sentences. It means that if you carry a bag across the street for someone who is part of a vast criminal enterprise, you can be punished as if you had done everything everyone else in that enterprise ever did, not just for what you did. With that threat on the table most people just give up and take the blame for the crimes committed by other members of the conspiracy, even in cases where they have never met those members or even knew they existed.
What gets lost in this process is due process itself. Jury trials become a luxury or worse, a huge risk, like playing Russian Roulette with three bullets. Lose and all hope is lost. Prosecutors have not only taken away judges’ ability to impose an appropriate sentence but have also taken away the Defendants’ constitutional right to be presumed innocent and go to trial. This is why our own Supreme Court calls this federal system a System of Pleas.
Simply put, this is wrong. It’s more than wrong, it’s unconstitutional. I’ve been railing against this unfairness for years. Typically I was told, “Well, who cares? They’re all guilty anyway.” I cared. I cared because I had this naïve idea that the best way to determine guilt was to subject the evidence to close scrutiny. Scrutiny by a neutral jury who had the benefit of hearing both sides of the story, not just what the prosecutor thought. Now people are finally getting a clue. It’s about time.
Unfortunately it’s about time served in prison for many of those whose lives were ruined when they fell under the draconian sentences. It is high time we reexamine the people who are currently incarcerated under these sentences and look closely at making new laws abolishing mandos retroactive, so that people serving time for life might have hope. It’s the right thing to do.
If you would like Craig Platt’s help with a legal issue, you can find his contact information here or fill out a confidential, easy form about your case.