Mandatory Minimums: Right on Prof. Berman!

This item is from the blog of law professor Doug Berman …

Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums

September 18, 2013

The Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post.  A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked.   Not surprisingly, the only written statement – – supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:

Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other      crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.  Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in                 abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.  It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.

CAP COMMENTS: When Hawai`i passed Act 161 that diverted first time nonviolent drug lawbreakers to treatment instead of prison in 2002, the Prosecutors went nuts and said the same thing. So a staffer went through the files at Halawa by hand and found 48 men there who were first time nonviolent drug lawbreakers. When the prosecutors received this information, their response was “Well, they shouldn’t be there.”  Perhaps if prosecutors took responsibility and were held accountable they would be more mindful.

Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime.  Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?

NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.

CAP COMMENTS:  This is just what the NY prosecutors said (you’ll be opening the gates of hell or some such hyperbole) when their legislature reduced mandatory minimums for drugs. The results were so promising that 5 years later they eliminated mandatory minimums for drugs and let the courts decide the case, not the prosecutor.

I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences.”  More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law).

The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors’ “best player” in fighting the drug war and the broader war on crime.  In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means.  And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view.  But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with “the most effective sticks” once they are up three touchdowns.  And that is why I think it is time to see the federal prosecution team have to try to “running up the score” against serious crime at a lower human and economic costs than is currently being endured.

Right on Professor Berman!


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