All About Sentencing!

Some really interesting news is emerging about sentencing, so today’s post is all about sentencing. We CAN change this punitive paradigm, however, it will take many voices supporting smart sentencing to drown out the prosecutor’s rhetoric.  So, WE NEED TO PUMP UP THE VOLUME!

No More Super Mandatory Minimums to Punish Defendants Who Want a Trial
FAMM, October 1, 2014

Excerpt:
“Attorney General Eric Holder has issued a memo prohibiting prosecutors from using the threat of enhanced mandatory minimum sentences solely to force criminal defendants to plead guilty in drug trafficking cases. These super-sized mandatory minimums, called “section 851 enhancements,” allow prosecutors to ensure a defendant’s mandatory minimum sentence is doubled or even increased to life in prison.”

***

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders
Sentencing Law and Policy Blog, October 20, 2014

Excerpt:
“The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.

(…)

“The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants’ full speech is worth reading, and here is a notable excerpt from the text: 

“Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

“The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

“I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.”

***

Why Did the Supreme Court Sidestep Sentencing Dispute?
Scalia, Thomas and Ginsburg align in dissent over court’s refusal to hear case.
Tony Mauro, The National Law Journal, October 20, 2014

Excerpt:
“The U.S. Supreme Court’s ­refusal to add a Washington drug case to its docket would not ordinarily get much notice. But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.”

***Pope FrancisPope Francis blasts life sentences as ‘hidden death penalty’

Pontiff slates countries facilitating torture and says using prisons to fix social problems is like treating all diseases with one drug
The Guardian, October 23, 2014

Excerpt:
“Pope Francis has branded life-long prison terms “a hidden death sentence” in an attack on “penal populism” that included severe criticism of countries that facilitate torture.”

Pope Francis calls for abolishing death penalty and life imprisonment
Francis X. Rocca, Catholic News Service, Oct. 23, 2014

Excerpt:
“Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a “penal populism” that promises to solve society’s problems by punishing crime instead of pursuing social justice. …”

Pope to Association of Penal Law: Corruption is Greater Evil than Sin
News.VA Official Vatican Network, October 23, 2014

Excerpt:
“ ‘Caution in the application of penal codes,’ he concluded, ‘must be the overarching principle of legal systems … and respect for human dignity must not only act to limit the arbitrariness and excesses of government agents but as the guiding criterion for prosecuting and punishing behaviors that represent the most serious attacks on the dignity and integrity of the human person.'”

Very interesting, yes?  It is encouraging when new voices are raised in the sentencing arena. Things are changing despite prosecutors singing their same old song…’mandatory minimums are for drug traffickers’ (while we continue to lock up folks who have substance abuse disorders).

We need your voice to return discretion to the judiciary. We have 3 branches of government as a system of checks and balances. Only the court knows the circumstances of the crime and the history of the person before them. MANDATORY SENTENCING IS NOT JUSTICE.

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