My hat is off to the criminal defense bar and its allied interests on their relentlessness in attacking mandatory minimum sentencing. There was yet another article straight from their agenda on the front page of the Sunday Washington Post. It was an unvarnished puff piece about Judge Mark Bennett of Iowa.
Judge Bennett is one of the most bluntly ideological judges I have ever run across. He has compared those who back our present, successful sentencing system to the engineers of the Holocaust and to slave holders. I have discussed his views here and here.
Because the opposition to mandatory minimum sentencing makes up in outrage and persistence what it lacks in candor and common sense, I want to put up some brief reminders -- by no means an exhaustive list -- about why we should keep the present system.
1. It works.
Eric Holder famously said that we have too many people in prison for too long. But that depends on what the meaning of "too" is.
We have about 2.3 million people in prison and about 316.6 million not in prison. In other words, zero point seven percent of the population is incarcerated, while ninety-nine point three percent of the population is not incarcerated. How this amounts to "incarceration nation" is beyond me, but that is the constant, angry catchphrase of the anti-mandatory minimum campaign.
This is not to mention that the people in prison got there for a reason. The reason is typically mischaracterized as some minor pot offense, such as smoking a joint or two, or a sex offense that was no more than a high school romance, or public urination.
That narrative is point-blank false. The other side can of course come up with the occasional horror story (is there anyone above sixth grade who can't?), but, by any serious measure, the reason defendants draw significant prison time is that they have committed a serious, harmful crime, and did so with bad intent. It is deliberately deceitful to say otherwise.
2. It works better than the past system by a huge margin.
We know what giving judges more discretion does, because we've been there. In the Sixties and Seventies, we gave judges all but unlimited discretion. They rewarded us with what-me-worry sentencing, and the result was predictable. We had a national crime wave. In the two decades after 1960, crime increased by well over 300%.
It is only a small exaggeration to say that the best argument in favor of relaxing mandatory minimum sentencing is forgetfulness.
3. It works to an astonishing degree.
Mandatory sentencing (via statutes and guidelines) began to take hold in the early Nineties. Since then, the national rate of serious crime is down by 50%. If any other domestic initiative of the last generation has been anywhere near that successful, I have no idea what it would be.
Now let's pause here to ask a few questions.
Q: What is the primary purpose of the the criminal justice system generally and sentencing in particular?
A: To keep law-abiding people safe.
Q: Is determinate and mandatory sentencing the primary cause of achieving so much greater safety?
A: Probably not, but it has been a significant contributor. Other factors have been: more police, more proactive policing, and the aging of the most crime-prone segment of the population. There may be other causes as well, but to deny that incarcerating the people who commit crime helps produce less crime is wrongheaded bordering on unhinged.
Q: If it ain't broke, what do you do?
A: Very good, class!
One last word on this point: It may well be true that the system is "broke" from the standpoint of a smack pusher who just got a minimum of 20 years. I would respectfully suggest to our opponents that that is not the standpoint from which to evaluate public and legal policy.
4. It works to prevent what will happen if we retreat to the alternative.
What is going to happen if judges are licensed to cut sentences as it may please them? In order to figure that out, we need look no further than the recidivism rate (a subject our opponents are less than eager to see candidly discussed).
We know what the recidivism rate is because Eric Holder's Justice Department did a comprehensive study released last year. The news is not good.
The overall recidivism rate is 77%. In other words, when we release criminals, there is a very strong likelihood that they will get back in business and victimize yet more citizens.
There are judges, like Mark Bennett, who simply ignore this reality in favor of an unaccountably sympathetic view of hoodlums. And there are legislators right there with them. We need to keep insisting, with at least the same tenacity they have shown, that criminals aren't victims, and that the rest of us deserve to keep a sentencing system we know works rather than trade it in for one we know fails.
As U.S. District Court Judge James Browning of New Mexico previously explained: "While it is slightly interesting what federal judges have to say about mandatory minimums, their opinions are worth little more than the next citizens’, and the bottom line is that federal judges are stuck with them. If anything, federal judges’ views are
less interesting than others’ opinions, because federal judges are hardly neutral players on the subject. First, almost all judges like power and discretion, and mandatory minimums take discretion away; hence, many judges are hostile to mandatory minimums. Second, mandatory minimums are implicitly, if not expressly, a criticism of how judges have exercised their discretion; judges tend not to like criticism....if Congress wants to limit judicial discretion in sentencing, it is hardly worth a judicial
temper tantrum. Given the many complex issues that are already delegated to federal judges, it is hardly worth judicial breath or ink begging for a little more or complaining about a little less. In the end, the issue is someone else’s call, and the Court tends not to worry about things it can do nothing about."
-Zachary
It's refreshing to hear about a judge who understands that his portfolio is to do what the law commands, not what he feels is a good idea.
Nor is there any reason to think that his version of a "good idea" is better than the next man's.
In a country whose thinking is as diverse as this one's, there can be vast disagreement of the relative roles in sentencing that retribution, incapacitation, deterrence and rehabilitation should have, and -- even among those -- the degree of each. Is five years adequate retribution for Offense X? Seven years? Ten years?
I see no principled way that even a very smart person could reach a definitive conclusion on that question. The next best option is to accept what the legislature decides. A court unwilling to do that does no know what "co-equal" means.
Maybe the FedSoc at Campbell can sponsor a debate on sentencing "reform" in the fall semester. I'm all ready to let loose!