Crime and PunishmentJamie R. -- Monday, August 18, 2003 -- 07:48:13 PM
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I support a re-thinking of our sentencing guidelines. I think judges should be given back greater discretion in determining both the type of sentence and its length, depending on the circumstances and characteristics of the defendent.
An upper limit to a sentence for a given group of crimes (or type of criminal activity) is perfectly reasonable, and should be kept in place, but too often now, judges have no discretion in determining the minimum sentence to be served. There's just too much case-by-case analysis needed for me to feel that statutorily determined sentencing guidelines (where minimums are enforced and are set up by type and category of crime) are a good thing.
Especially because they don't remove discretion from the system -- they just move it from judges to prosecutors. While a judge can't reduce sentences below the minimum, a prosecutor can offer a deal based on any lesser charge.
I've represented a criminal defendant pro-bono who I was sure was innocent, at least in the sense that there wasn't the evidence necessary to convict him. (I thought he was absolutely innocent, but of course I can't be sure.) He had bought a car, at a low but not insane price, from a used car lot that turned out to be supplied by a car-theft ring. He was being prosecuted as a conspirator in the ring based only on his purchase of the car, and the possible sentence was something nuts, like 15 years. The only evidence that they had that he knew the car he bought was stolen was that (1) the car was cheap (2) it had a dent on the door characteristic of cars that have been broken into and (3) he was an immigrant from the same country as the guys who owned the car lot and ran the car-theft ring.
The deal the prosecution offered came to probation and time served (about six months), and even though we could probably have gotten him off at trial, we couldn't talk him into risking it. I can't say I blame him, but he's now a convicted felon and really shouldn't be.
I have often wondered if the growth of the private prison industry has any relationship to the simultaneous push for sentencing "guidelines" and three strikes laws. I'm not necessarily saying there is one, but it would be interesting to see who's lobbying the hardest for these sorts of statutes, and who's paying them.
I disagree with that last. Sentencing "guidelines" came about as a result of public demand, and while I prefer judicial discretion it was dissatisfaction with that approach that led to public instigation of minimum sentences--at least, that's my recollection.
I agree Cal, but I think it was an ill-conceived response to a paniced public. Now everyone is standing around thinking "Will ya look at that! I didn't foresee that consequence of our actions coming. We need to change this back!"
The concept of sentencing guidelines seemed like a good idea at the time, but it came in the same wave as "throw the book at 'em". So now you see ridiculous minimum sentences, like 15 years for things that used to be considered petty crimes (minor drug possession, "conspiracy", minor thefts). I have no problem with minimum sentencing guidelines for violent crimes, but the current situation is just out of control, IMHO.
I think the article is a little out of date. Other sites suggested only 8 states permanently bar felons from voting.
No voting while in prison seems eminently reasonable to me. Once you're out I think voting rights should be fully restored.
I'd say so, but I'd like a provision for recurring felons. Something like 3 felonies and you lose your right to vote. I know these guys aren't big voters to beign with, but it's bad for democracy to have a voting population of criminals.
I disagree, I expect a large majority of Americans still favors tough mandatory sentencing rules.
People speaking out against mandatory sentencing tend to be (like the only one quoted in this thread so far) judges, who, not surprisingly, trust their own discretion.
If you ask exactly that question: "Do you favor tough mandatory sentencing rules?", maybe. If you make it clear what the rules are, as in "Do you favor a mandatory ten year sentence for a man who knowingly bought a stolen car, and had no prior criminal history of any sort?" (roughly accurate statement of the case I worked on. I actually don't remember the exact sentence, and I'm thinking that the fifteen years I quoted above might have been high) then I don't think support would be very high. If you further ask "Do you support this system if the sentences are mandatory only from the point of view of judges, but can be negotiated down to zero by a prosecutor?" I think that would erode support further.
I was referring to what I think the support would be if a serious effort was made to repeal mandatory sentnecing standards, so that people would be listening to proponents of both sides debate, and answering in a much more informed and nuanced way than any of your questions imply.
I don't think that major changes to mandatory sentencing rules are politically possible. Perhaps there are a few specific laws that could be changed without much outcry, but not many.
Really? I disagree. I believe mandatory sentencing guidelines were sold to people without fully thinking through the consequences. Nor do I think people understand the power prosecutors now have in bargaining down sentences by how they charge the defendant. At least with judicial discretion the whole process is visible, unlike now, where it takes place behind closed doors.
I actually think this is a very viable area for further reform. Several on the Supreme Court also dislike these mandatory sentencing guidelines and have hinted that they'd like the legislature to re-think them.
By "people" here you must be referring to those people who don't watch television, because plea bargains are a pretty much nightly occurance.
Of course judges dislike them, they are a direct slap in the face of the judiciary.
Just to be clear, I think mandatory sentences are stupid, and would rather trust the judiciary. But I believe myself to be in the minority on this.
Yes, of course, but the situation now is that by removing judicial discretion the power of the prosecutor in the plea bargaining process has greatly expanded.
I really think this is just a time bomb of abuse waiting to explode and when it does, the public will again do their "aw shucks how could this have happened" routine.
My take is that the mandatory sentencing guidelines just moved the "discretion" aspect from a more neutral judiciary to a less neutral prosecutor's office. Most DA offices work too closely with the police, and have too much at stake politically, IMHO, to always be as impartial as possible. There is a LOT of pressure to convict, and a lot more media coverage of the DA than of the judge. To me, the strict mandatory sentencing, especially for petty crimes, has caused a noticable erosion in the balance of powers in this country, and has contributed mightily to the high incarceration rate.
You betcha. And as familiar as everyone is with plea bargaining, I think people really do believe that mandatory sentencing means "a criminal's sentence is determined only by the crime, not by anyone's discretion" rather than "there's just as much discretion in the system as ever, but now it's all in the hands of the prosecutor rather than the judge."
I think the voting public wants the right thing, BTW, which is a truly neutral justice system. The problem is, it is made up of people, and people have their own motivations and needs. I agree that judges did/do make some ludicrious rulings, but procecutors are no less immune to bad decisions either.