Mandatory Sentencing - Research Paper Example

? Mandatory Sentencing of the of the Mandatory Sentencing Introduction Crime does not pay. We can seldom argue with thispremise, and the need to inculcate this idea among the local populace of our cities and towns. However there is also a fear that in our zest to single out and punish those who are guilty of crimes against society and humanity, we are creating situations where too many people are behind bars. Indeed the rate of incarcerations in the USA is one of the highest in the world, which is shameful for a country that considers itself the world’s foremost superpower and protector of human rights. Mandatory sentencing has been cited as one of the reasons behind the overpopulation in our prisons, creating situations where crime is further exacerbated by the formation of gangs, hardcore and small time criminals being grouped together, and the fact that some criminals are in need of medical attention rather than a life of incarceration that does not remedy their particular situation or suit their particular needs. This paper will look at the issue of mandatory sentencing, its need and importance, its merits and demerits and whether it should be continued or has outlived its purpose. What is Mandatory Sentencing? Mandatory sentencing is a form of judicial punishment in which the terms and duration of the punishment have already been set in Law depending on the crimes committed and the charges filed and proven against the accused law breaker. This being the case, there is usually no or little room for a judge to intervene and set his own ruling depending on the individual circumstances of the case. Originally the need for mandatory sentencing was seen in cases of drug dealing and related offences. But later the effect of mandatory sentencing minimums was extended to gun related crimes as well, as they initially proved an effective deterrent to crime. However as we shall see much of the initial laws have been repealed and the sentencing reduced on humanitarian grounds. Even today, the debate rages on as to whether mandatory minimums still have a place and effect in law or not. There is much to support both points of view, as we shall see. The History and Uses of Mandatory Sentencing In the USA it was the 1951 Boggs Act that started the Federal mandatory minimum penalties for drug trafficking. The length of some of these sentences was then increased in 1956. However the comprehensive reforms of the 1970 Drug Abuse and Control Act repealed the earlier Boggs Acts. This was followed by the enactment of the Rockefeller Drug Laws in 1973 which helped establish minimum 15 year and life sentences for various kinds of drug offences. Obviously the intent would have been to get the offenders off the streets for a considerable amount of time and in doing so make it safer for the targeted population. Laws such as Michigan’s 650 Lifer Law took a much harder stance on drug offences and established a minimum of life imprisonment without possibility of parole for possession and dealing with 650 grams of drugs such as cocaine and heroin- it also increased the penalties for smaller offences. In 1984, the Comprehensive Crime Control Act resulted in the creation of a U.S Sentencing Commission. It also phased out parole and set mandatory sentences for gun related crimes. Two years later, in 1986 the Anti-Drug Abuse Act creates new federal minimum mandatory sentences for drug related offences. One year later, in 1987 the US Sentencing Commission enacted some guidelines to help the Courts in convicting and sentencing all federal drug related offences. In 1988, the Omnibus Drug Abuse Act not only added a mandatory minimum penalty for the possession of crack but also included conspiracy convictions in the mandatory penalty scheme. This has had little positive effects on the system since ruthless drug dealers do not care who they choose to carry out their dirty schemes to transport drugs across borders and it could often be an unwary traveler that has been trapped for no fault of his own except that he picked up the wrong baggage or befriended the wrong traveler. Films such as Brokedown Palace help highlight the predicament of such unsuspecting travelers as schoolgirls who were framed by a smooth operator. In other cases, a courier with a small quantity of drugs is caught while a bigger one is let through. Drugs are a big money game and the operators will stop at nothing to achieve their goals. In the opinion of Michael J. Sullivan, former Acting Director of the Bureau of Alcohol, Tobacco and Firearms, mandatory sentencing has helped keep serious and violent offenders off our streets for a longer duration and thereby make our streets and lives that much safer. It has also helped in achieving uniformity in sentencing certain offences, certainty of punishment and repeat violent offenders receiving enhanced sentences, as the case should be. Its corollary effect has been that lower level offenders have been able to provide information to prosecutors and legislators that could lead to the arrest and conviction of the real players and high profile figures behind organized crime (Procon website, 2012). . In a Court decision in the case of Misretta v the US (1989) the US Supreme Court ruled that federal sentencing guidelines and mandatory minimums do not violate the separation of powers between State Laws and the Federal Government. In 1990, the Supreme Court similarly ruled that the Michigan 650 Lifer Law did not violate the Eighth Amendment in terms of being a cruel and unusual punishment. This was the ruling in Harmelin v the State of Michigan. In 1991, a non-profit organization called FAMM or Families Against Mandatory Minimums was established to protest and change the laws pertaining to mandatory sentencing minimums and one of their first victories was regarding the standardization of LSD dosage weight under the US Sentencing Guidelines. As a result of FAMM’s efforts, the Congress in 1994 allowed a safety valve provision that allowed Federal Judges to exempt certain non-violent, first time offenders from mandatory sentencing policies. This was like a breath of fresh air and was sorely needed to put the law on a humanitarian level (FAMM website, 2012). In the same way, actions by FAMM in 1995 resulted in the standardization of the weight of the marijuana plant under US sentencing guidelines. In 1996, the State of Arizona allowed for the pushing of first and second time drug offenders from prison to treatment, with the passing of Proposition 200 by popular vote. In 1998, largely due to the efforts of FAMM again, the age old Michigan 650 Lifer law was repealed. This resulted in nearly 200 lifers becoming eligible for parole after having spent 15-20 years in prison. In the same year, Congress voted to increase the minimum on mandatory sentencing for gun related offences and also equated the penalties for meth with those for crack cocaine. In the year 2000, the Supreme Court ruled in the case of Apprendi v US that except for prior offences, any fact that would lead to an increase of the sentencing of an offender beyond the statutory maximum should be submitted to a jury and proved beyond reasonable doubt. In the same year, further amendments to the US sentencing guidelines helped ensure that defendants are not punished twice for the same conduct and that sentences given were based only on the offence for which the defendant had been convicted. Following Arizona’s lead, the State of California also allowed for the pushing of first and second time drug offenders from prison to treatment, with the passing of Proposition 36. This ended the harsh treatment often seen to be given to drug offenders. In 2001, the US Congress again took action regarding drug sentencing by increasing penalties for Ecstasy under the US Sentencing Laws. Now there began to be a turnaround in thinking by States regarding harsh laws because of rising costs of incarceration, overcrowding of prisons, budget cuts and the growing momentum for sentencing reforms (FAMM website, 2012). In 2002, the Michigan State legislature chose to replace mandatory minimum laws with its own sentencing rules. This resulted in the early let-off of 1200 prisoners, while 3200 more were spared from lifetime imprisonment. The US sentencing commission in the same year also chose to approve the FAMM led drug sentencing ‘cap’ that would allow the lowering of sentences for at least 1200 low-level drug offenders during a calendar year. This has paved the way for less overcrowding in the prisons. Nevertheless, in the case of Harris v the US, the US Supreme Court upholds the constitutionality of US minimum sentencing drug laws. In 2003 the PROTECT Act forced US Judges to abide by the US Sentencing Guidelines rather than allow individual judgments- ultimately it resulted in the change of US Sentencing Guidelines that prevented more lenient sentences in some cases. In a 2004 case, a decision made in Blake v Washington State prompts a review of the US sentencing guidelines when it was found necessary to repeal a law that allowed for increase in sentencing by Judges based on evidence put forward before a jury but where the offence was not admitted by the defendant. This led to a debate in 13 States about the usefulness of following the US sentencing guidelines. In 2004, the New York State legislature allowed for a change in sentencing under the Rockefeller Drug Laws by reducing sentences for A-1 felons. 450 prisoners thus became eligible for re-sentencing. In 2005, the US Supreme Court found mandatory sentencing to be unconstitutional as to the maximum possible sentencing, especially when the defendant had pleaded guilty and was cooperating with the law, and declared the sentencing guidelines to be viewed as advisory and not mandatory for the purposes of sentencing (MSNBC News Website, 2005). This decision was upheld in both US v Booker and US v Fanfan. However it ruled that mandatory minimums would not be affected. New York Governor George Pataki also allowed for a softening of Rockefeller laws in which sentencing was reduced for A-2 felons and 540 prisoners became eligible for re-sentencing (FAMM website, 2012). From all of the above, we can see that while the intent of minimum mandatory sentences and guidelines was probably to keep drug offenders off the streets for the longest time possible, it has backfired because it does not take into consideration the lesser crimes of first and second time drug offenders. It is quite likely that an innocent teenager has been duped into carrying drugs or has been made an addict so that he succumbs to pressure and carries drugs in return for his daily fix. No doubt we should all know the Law and that it should be the same for everyone, but there also is a case for lesser or first and second time offences being treated more leniently than others. At the other end of the spectrum, it has been noticed that serving long term mandatory sentences does not have a deterrent effect for the convicted felons, thus prompting a more lenient review and possibilities for re-sentencing. So what conclusion can we arrive at: is mandatory sentencing in itself bad because it treats all people equally harshly no matter if they are first-time, second-time or habitual offenders. Or that its guidelines are so harsh that States have by themselves chosen to overlook them in the light of individual circumstances, prison overcrowding, budget cuts and the like. Many think that low level drug offenders deserve more humane treatment- like medical attention and psychological counseling rather than harsh imprisonment in an environment that can only worsen their situation. The punishment should fit the crime principle is called into question here. But it is surprising that we are bowing down to administrative conditions and reducing maximum sentences which would allow hardened criminals back on the streets. On the other hand, it could also be said that the harsh mandatory minimum guidelines imposed at their inception helped create the hardened criminal by sentencing him to 20 or more years in jail. While I do support the lenient track for first and second time drug offenders, we should look at the statistics that will show us whether adopting this policy has resulted in a drop in drug related offences or not. The Case for Mandatory Sentencing The reasons for imposing mandatory sentencing on crimes of serious nature are well known. At the root of it all is the hope that it will act as a deterrent to stop, control and reduce such instances of crime. Apart from drugs, mandatory sentencing has also been applied to gun related crimes. It was hoped that by getting people who committed serious crimes off the streets like sexual abuse, armed assault, drugs and weapons related crimes it would reduce the prevalence of these offences. Also the use of mandatory minimums prevented a judge or jury from prescribing a lesser sentence for whatever reason. Also with the cooperation of low level offenders, high level offenders could be traced and put behind bars. Richard B. Roper III, Attorney General for Texas agrees that mandatory sentencing has made major gains for the justice system in crime control and reducing the unwanted disparity in sentencing that was prevalent before. It ensures consistency, truth, fairness and greater justice in sentencing. The mandatory system of sentencing coupled with the mandatory minimums best serves the nation in its efforts to reduce serious and violent crime. It has helped law enforcement greatly in the control of societal harm occurring from drug and gun related crimes. He also opined that the Department of Justice thought it fair and effective to impose mandatory minimums from the point of view of public safety while still protecting the rights of citizens (Procon website, 2012). The case for mandatory sentencing started with Richard Nixon’s War on Drugs in the 1960s. It showed that the Administration wanted to do something to control and reduce the prevalent crime rate which was a matter of national concern. The political and social climate in the 1980s was in turn driven by a heightened sense of crime. The minimum sentencing rules served as a basis for reducing the levels of crime in society through long term incarceration of criminals and thus making it safer for the rest of the population. Because of overcrowded prisons, many criminals were being let off after serving no more than 10 percent of their approved sentences, thus leading to the failure of the justice system. The mandatory minimums of fixed length were thus enacted to counter the failures of the Supervised Home Release (SHR) Program, which saw prisoners returning to the jails every now and then. The mandatory minimum sentencing laws thus sent a strong and visible signal to the people that their fears about the high rate of crimes were being acted upon and this enabled the police as well as the politicians to claim the successes of the system based upon their becoming ‘tough on crime’. The Case Against Mandatory Sentencing While mandatory minimum sentencing had earlier been seen as an effective weapon in the war on serious crimes involving drugs, property, weapons and other violent acts on especially vulnerable populations like children, mentally retarded, elderly and pregnant or the disabled, its effectiveness in recent times has been questioned. While State legislation looked at incapacitation due to mandatory sentences as a novel way to get serious offenders off the streets, the focus was usually on arresting big time criminals who could then serve long terms in prison. But by and large, these seasoned criminals proved too wily for them. The crack epidemic of the mid 1980s saw that this easily available, addictive and cheap drug was breaking down the effectiveness of the penal system. The severity of crimes that were committed was charged according to the type and weight of the drug involved, drug dependency of the user and the involvement of other innocent people in the crime. Further, the case was also put forward for leniency in punishment concerning drug dependant people, since it was known that they had an addiction and would go to any measures to feed it. It was often found that they were forced to commit other crimes to support their addiction needs. This led to more lenient sentencing for them and was a further deterrent for mandatory sentencing under tough crime rules. In one case, an 18 year old teenager accepted an offer to sell LSD to two friends from a drug dealer. He was arrested and sentenced to 10 years in prison under the mandatory minimum, though it was his first brush with the law. He had only accepted because he was late on his car payment. The drug dealer happened to be a police informant as well. In another case, a young female drove her aunt to a house where, unknown to her, the aunt supplied someone with seven kilos of cocaine. When an arrest was made, the young female was falsely implicated in the case as an accomplice just because the defendant was promised a lighter sentence. She was sentenced to 151 months in jail under the mandatory sentencing guidelines. Yet another case involved a 50 year old man and his roommate, whose apartment was raided by an informant on a tipoff to the police. Although the only thing to tie the 50 year old to the case was a dollar bill that had been used to sniff the stuff, the bags of his roommate contained residue of crack and cocaine. While he was convinced of his innocence and knew nothing of his roommate’s clandestine activities, the 50 year old was convicted and sentenced to 15 years in jail for his first offence. These instances clearly show that mandatory sentencing laws are not working properly. In most cases they are resulting in a miscarriage of justice. Applying the laws without a proper consideration of the individual facts of the case and not being able to use individual and personal discretion to reduce the terms of sentences has hurt the process of justice rather than upheld it. While it was initially thought that imposing harsh and long sentences for drug related offences would deter the drug lords and kingpin22s and prevent their accomplices from selling drugs, it is now seen that it has had little or no effect on the level of drug related crime. While the kingpins can often buy off the law and witnesses and use their ill gotten wealth to live lavish lifestyles, it is the smaller, sometimes innocent victims that are incarcerated. They can also afford to hire the best defense attorneys to plead their case, make deals with the prosecution for lenient sentences and use other means to suppress facts and convictions. Clearly the hands of the law are bound while those of the criminals have many tentacles. They use every trick in the book, fair or foul, and usually get away with it. I believe FAMM and others are doing a disservice to society by reducing sentences for hardened criminals like these. I would rather that their cases be treated like military style tribunals, because they are corrupting humanity by selling their dastardly stuff that kills, enslaves and corrupts the lives and morals of the youth and society at large, especially as they are shown living lives of opulence and plenty. This means crime pays big time. TV series like the Sopranos and movies like Scarface and the Godfather trilogy clearly sends the wrong messages to American society. Like it or not, it appears that mandatory minimums and sentencing guidelines have failed to deter or prevent drug related crimes. In fact drugs are now available more easily and at cheaper rates and more pure form on the streets than before. So the entire 20 year old affair with mandatory minimums has backfired. In relation to mandatory sentencing for drugs and gun related offences, there are often the following reasons quoted for their failure to eliminate or control crime: 1. It is seen that the judges cannot allow for discretionary judgment based on the individual circumstances of cases. 2. It is just the type and weight of the drug that determines the length of a sentence. 3. There is no room for checks and balances in case of miscarriage of justice. 4. By encouraging and rewarding those that inform on others, smaller or low level criminals can be targeted at the cost of the bigger offenders. 5. The inclusion of conspiracy laws under mandatory sentencing has tended to make lower level criminals more culpable while the rich and influential drug barons are able to squirm their way out of the reach of the Law using every trick in the book, fair or foul. 6. It has led to overcrowding of jails, increased budget, a waste of taxpayer’s money and a disproportionate number of blacks and other racial minorities being imprisoned which breaks up their family life. For all these reasons, the issue of mandatory minimums is being hotly debated even today. Criminals are seen using the law to indict innocent citizens for a reduction in sentences. The sentences for coke and crack are disproportionately severe compared to other drugs- maybe this is just because its prevalence is higher or its capacity to addict is greater or the cost of these drugs is just higher than others. It is also one more reason that blacks are claiming racial prejudice as minorities and blacks are found more involved in these crimes than white Caucasians (Welsh & Harris, 2008). While judges themselves generally favor just and equitable laws which enact appropriate and fair penalties for violators and offenders of the Law, they object to the complete removal of their discretion in cases such as the three instances quoted above. In some cases, innocent victims have also been adjudged to have fallen foul of the law. It was found that with the mandatory sentencing being the minimum, the onus of reducing the sentences was passed on to the State prosecutors. At the same time it is generally acceptable that the punishments prescribed should be based on the severity and nature of the crime, the offender’s criminal history and personal characteristics, and the presence of any other mitigating or aggravating factors. This was the intent of mandatory minimum sentencing, but under the present diluted laws the judge has many a time been forced to pass a more lenient sentence for a convicted offender in a plea-bargaining arrangement. Alternatives to Mandatory Sentencing and their Effect The results of the last 20 years have shown that sadly, mandatory sentencing has not had the desired effect on reducing or controlling drug related crime and for these reasons, its validity is being questioned today. Even seasoned crime fighters opine that at best it served as an effective stop gap arrangement in the 1980s to control the high rates of crime. The rapid influx of immigrant populations since the 1990s has once again led to an increase in crime in urban areas. While police budgets have increased and more jails have been constructed, we still face an overcrowding situation that is reminiscent of the SHR program. The mandatory sentencing minimum has also been attacked as being too harsh and anti-discriminatory as it punishes small offenders with the same penalties as for big time criminals. Moreover since the white Caucasians usually represent the top bracket in this racket, they use plea bargaining as a means of imprisoning the black population while getting a more lenient sentence themselves. The use of presumptive sentencing as under Public Act 01-99 has greatly reduced the draconian effect of the mandatory sentencing laws. It gives the judge the discretion to allow a punishment that fits the crime. Under the ‘truth-in-sentencing’ initiative, there are efforts to make the original Court sentence conform to the time served in jail. This reduces the possibility of parole because of good behavior, but it is a signal that serious crimes are being dealt with seriously. Since 1990 the Office of Alternative Sanctions has been given the responsibility to come up with alterative measures to deal with serious crime. It has later been reconstituted into the Court Support Services Division. Some of the initiatives that have been implemented so far include Patient Substance Abuse and Mental Health treatment and services, women and children’s programs, specialized programs for minority populations such as Latinos and blacks, halfway house and transitional housing programs. Educational and vocational programs are also other options that have been created to support these initiatives. It is clear that soft and alternative treatments especially for first and second time offenders are having some effect. There is a huge racial overload that has to be overcome. Earlier in 1993, discretionary parole was meted out by a board after an inmate had served at least half of his sentence. To make the law more effective, it was subsequently decided to double the time required to be served from 25 percent to 50 percent to be eligible for parole. This was in fact increased from 25 percent in 1995 to 40 percent in 1997 and then 50 percent in 1998. Clearly there are still efforts to buckle up on dealing with serious crime in a befitting manner. Under the present rules, all violent juvenile and adult offenders are to be incarcerated. They are also required to serve at least 85 percent of their sentences before being eligible for release. The Violent Offender Incarceration Program and the Truth in Sentencing programs also resulted in federal funding for creating more jails and beds. The three strikes law that was popularized in the 1990s is also in effect in many States, resulting in harsher sentences every time a criminal is caught committing an offence. It had been adopted by as many as 24 States at one time. This law gets its name and shape from the game of baseball-‘three strikes and you’re out- in effect reducing the possibility of parole after a third offence has been committed. The third strike means that the offender could get from up to 25 years to life in prison. But recently there has also been an effort in some States to roll back this harsh treatment, reducing the possibility of life sentences. For the three strikes law to be enacted in a particular case, the first two offences by the offender must be deemed violent or serious or both. This law has also been effective in reducing crime rates in California and some other States. However it is claimed that there have been miscarriages of justice here too. Conclusion To summarize, the effectiveness of mandatory sentencing can only be as harsh as society and lawgivers want them to be. In general, States have opted to move towards more effective and less restrictive strategies intended to maintain or lower the population of prison inmates, give them treatment, counseling or other means of combating crime and so reduce the possibility of their returning to jail. The presentation of the case and the working relationship between lawyer, prosecution and judge usually determines the level of punishment that is meted out in relation to a particular offence. Of course the offender’s part history and personal details will be brought into the picture and have a bearing on the decision. The case for doing away with mandatory minimums stems from a response to overcrowding in prisons, feeling that the punishment for low level and high level offenders should not be the same and that it has resulted in a disproportionate number of minority populations being incarcerated because of lack of good lawyers to plead their cases. Meanwhile the harsher sentencing guidelines, the incarceration of offenders, the building of new prisons and the billions of dollars poured into law enforcement efforts have still failed to deter drug use in the US, which is on the rise. References Families Against Mandatory Minimums (FAMM). Accessed on 31 March 2012 at http://www.famm.org. MSNBC News Website (2005). Court rejects Mandatory Sentencing Rules. Accessed on 31 March 2012 at http://www.msnbc.msn.com/id/6816943/ns/us_news-crime_and_courts/t/court-rejects-mandatory-sentencing-rules/ Welsh, W. N & Harris, P. W (2008). Criminal Justice Policy and Planning, 3rd ed. Cincinnati, Lexis Nexis, Anderson. The Procon Website (2012). Have mandatory minimum sentences been an effective tool in the war on drugs? Accessed on 31 March 2012 at http://aclu/procon.org. Read More