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Chicago Wrestles with Gun Control and Mandatory Minimums


Chicago had more than 500 murders last year.  The police chief believes that gun control is a big part of the answer, and has proposed a three-year mandatory minimum sentence for those convicted of illegal possession of a gun.

This has led to renewed interest in the Windy City about mandatory minimum sentencing generally.  Some, including me, believe that the legislature has every right to decide that, for a given crime, there is a floor below which the court should not be able to go no matter what the mitigating circumstances.  This seems no more than the logical counterpart to the notion that the legislature should be able to impose a ceiling on the sentence for a given crime, because, no matter how bad the offender may be, the act made criminal simply cannot, in fairness, warrant more than X amount of jail time.  If we can accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense  --  and almost everyone would agree we can  -- we can accept its judgment about what sentence is necessarily too lenient.

Others think that mandatory sentencing laws unwisely tie the judge's hands.  In their view, only the judge has the flesh-and-blood defendant before him, and thus he alone  --  not the legislature  --  is able to tailor the sentence to the requirements of justice.

The battle will be joined when I discuss this topic with Prof. Doug Berman of the Ohio State University on Chicago's public radio station.  The program is called "Morning Shift," and Doug and I will be on Monday at 9:15 a.m. Central Time.  The show airs on WBEZ, 91.5.


In debates over mandatory minimums, the question of their legitimacy in general is often confounded with attacks on the wisdom of particular minimums, especially in drug laws. Those two debates should be kept distinct.

Once upon a time in California, we actually had to pass a mandatory minimum law to stop judges from granting probation to armed robbers. The California Supreme Court, 4-3, struck it down as unconstitutional. There was an uproar, the court granted rehearing, and Justice Stanley Mosk switched his vote, upholding the law.


That is helpful. Thanks. I try to stay aware of the pitfalls of doing programs like this. One is what you note: Getting caught up in a discussion of a particlar MM for a particular offense. I am going to stay away from that, as you suggest, and remain focused on whether the legislature EVER has the right to impose a MM. That is much more difficult terrain for the defense side, since, for example, it's hard to argue that a MM of one year for first degree murder is something a legislature cannot legitimately decide to impose.

The other pitfall in this debate in particular is that an attempt will be made to enlist me as a backer for additional gun control measures. My tentative plan on that is to say that gun control is a complicated question, and that it is bound up with Second Amendment issues and issues of effectiveness. I would also say that, if we do a better job of controlling criminals and deranged people, the problem of guns recedes. Guns don't kill people all by themselves.

I will then return to the focus the program is designed to have, to wit, whether it is ever proper for the legislature to enact mandatory minimus.

What those who hate MMs try to do is argue from anecdotes. They'll point to a sob story and argue that we need to have individualized justice and all sorts of high-minded principles.

Ultimately, the issue is risk allocation. Where judges can be lenient, they often are, and the record of lenient judges is a sorry one, with untolled victimization. So, assuming that MMs do result in injustices at times, those injustices have to be balanced against horrific crimes that will result from liberal judges being too lenient. So in a world where perfection is impossible, who should bear the risk of sentencing policies? Innocent people or those who commit crimes. The answer seems simple.

Mandatory minimums didn't come out of nowhere.


That's a great point, and one that applies in many contexts in criminal law. It's not that a stern approach never results in injustice; it's that the alternative results in more and worse injustice. In a world in which perfection is unattainable, and the only course available is a choice between imperfect alternatives, you take the least bad. This is what liberals just refuse to, or cannot, understand.

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