Untie the Judges Hands

Imagine you are a fifty-one-year-old man and you have not eaten in two days,
and you resort to theft. Stealing a fifty-cent package of doughnuts from the corner
store. You are at your home when suddenly officers burst in and arrest you. Then
during your court proceedings, the prosecutor brings up two prior convictions from thirty
years earlier so he can charge you under mandatory sentencing laws. This means a life
sentence without parole over a fifty- cent pack of doughnuts. Though this scenario
sounds too outrageous to be true, it happened to Robert Fassbender, a California man.
States Attorney Yraceburn stated," Because of his (Fassbender) history of recidivism
and the number of crimes he's been convicted of," Fassbinder's case warranted
prosecuting as a third-strike case. (n.p.)

Advocates believe these laws are no longer being used for their purpose and have
evolved to include any defendant that has warranted prior felonies. These forty-year-old
mandatory sentencing laws which were created in defense against New Yorks heroin
problem, have always been controversial in whom they were being used against, as
well as the assigned lengths of incarceration. While prosecutors resist changes to
these laws, the United States should reconsider the policies due to evidence that it has
become a drain on the Federal and State prison system budgets, as well as a limitation
of the Judges ability to render a just sentence for the crime committed, and has no
proven evidence of lowering the crime rate as initially intended.

In the early 1980s, the United States declared an all-out war on drugs and over the past
several decades the United States of America has traveled down a dark road when it
comes to sentencing for drug offenses. One of the major tools that they used in this war
on drugs is the mandatory sentencing laws. These laws were enacted in 1984 to help
combat and get violent drug dealers off our streets. What these laws did was set a
mandatory minimum sentence that stated if you are arrested for fifteen or more grams
of crack cocaine, you would be charged as if you had five hundred grams of powder
cocaine thus getting you a minimum of a ten-year sentence in prison. If you are arrested
for growing 100 marijuana plants under these draconian laws, you would be charged as
if you were possession of 100 pounds of marijuana which carries a minimum of a five-
year sentence.

In her book A Rage to Punish judge and author Lois Forer wrote about the unintended
side effects of these laws are that many low-level, nonviolent first-time offenders are
receiving huge amounts of time in prison, while the large drug dealers that these laws
were designed to get off our streets are being allowed to make deals by turning states
evidence against their former partners. In consequence, the prosecutor can charge
them with a lesser crime, and along these lines they receive a lesser prison sentence.
Whereas the young man was growing 100 marijuana plants in his basement for him and
his friends the smoke that has no one to turn states evidence against has to serve
every single day of his time without the possibility of parole. (167)

While the laws were intended to deter crime, in reality, the crime rate in the United
States has failed to drop because of these laws. When these laws were first initiated in
1984 the reasoning behind them was to capture drug lords and use these tough, stiff
sentences. The only thing that these sentencing guidelines have done is dug into
taxpayers' pockets for the rising cost of keeping these nonviolent, low-level offenders
inside the prison system, with statistics such as an original nine-billion-dollar operating
cost in 1985 to well over fifty billion dollars a year. The United States of America should
change the mandatory minimum sentencing laws, they have proven to be ineffective
and costly.

With the economy in the turmoil that it is in America cannot continue to support these
sentencing guidelines. The Mandatory Article Sentencing declares that the laws are
becoming a huge drain on the Justice Bureaus budget, and in 2012 the United States
had far beyond more people incarcerated than any other country. Most of these
prisoners are low-level drug offenders sentenced under mandatory sentencing
guidelines with a cost draining on American taxpayers $6.8 billion a year, as of 2012.
These costs do not seem to have a ceiling and continue eating up about twenty-five
percent of the federal justice systems yearly budget. (17)

Mandatory sentencing is such a huge drain on the federal prison systems

budget, but according to Mortimer Zuckerman, it is the states that are eating the biggest
chunk of this foul-tasting pie. States are spending over than fifty billion dollars a year to
keep nonviolent drug offenders incarcerated, this is an increase from the nine billion
dollars in 1985. Zuckerman states that Gov. Rick Perry of Texas rejected a proposal to
build new prisons in Texas in 2007. Perry stated that instead of putting these nonviolent
drug users in prison the State judicial system should get them help for their addictions.
By putting them on probation and getting them in alternative treatment programs. This
move has had a huge effect on the States budget and offered an alternative to the
wrongful use of these laws. Not only has it lowered inmate population, but is has cut
nearly two billion dollars from the state's prison deficit. Since implementing the reforms
and easing the mandatory sentencing guideline, prison population has dropped by
twenty percent, and Texas now has its lowest crime rate since 1968. Mandatory
sentencing has cost the American taxpayer billions in state and federal tax revenues to
keep low-level drug offenders in prison for extended periods of time. Not only does it
cost billions, but it has added to inmate recidivism rates. After spending ten years in
prison for a possession charge many inmates dont have the skill set to blend back into
society, so many become repeat offenders. Many states are beginning to follow the
example set in Texas as far as easing sentencing guidelines. Several states are now
opting for treatment programs and probation rather than these lengthy prison
sentences. (n.p.)

The scariest thing about mandatory sentencing is that they seem to target people
according to their skin color. In the United States, if you are a black male, you have a
one in nine chance of being behind bars by the time you reach the age of twenty.
Michigan State Professor of Law Sonja Starr stated that African American men are
incarcerated at nearly seven times the rate of white men who are arrested on the same
charges. Starr conceded that certain gaps between white and black incarceration rates
could be due to social, economic conditions, as far as criminal behavior is concerned.
But many of these discrepancies can be attributed to how the criminal justice system
treats men of color. Starr has suggested that the federally mandated sentencing laws
need to be reformed to address these discrepancies. For decades now racial
inconsistency in sentencing has been the subject of debate among lawmakers. With the
Supreme Courts decision in United States v. Booker makes the federal sentencing laws
merely advisory guidelines. Decisions such as these have been the subject of much
empirical debate for a decade, and this research has begun to shape sentencing policy.
(4)

Another source reports the same information, Demetria Irwin reports that
according to the New York Civil Liberties Union (NYCLU), concedes these harsh drug
laws have affected Blacks and Latinos far more than Whites. The prison population in
New York State shows that ninety-seven percent of all defendants prosecuted for drug
offenses are Black and Latino. Robert Perry stated that The racial and ethnic
disparities among the population incarcerated for these charges are not the reflection of
a higher rate of offenders among Latinos and African Americans, but a consequence of
unjust treatment of African American and Latinos by the criminal justice system, stated
the NYCLU in a prepared statement. (6)

Many proponents of changing these harsh drug laws have countless examples to base
their reasoning on. Neil Steinberg, wrote about several in an article in Rolling Stone.
One case that Steinberg cited was that of Tonya Denise Drake, a twenty-eight-year-old
mother of four, who met a man in a parking lot and was paid $47.40 to mail a package
for him. This parcel contained ten pounds of marijuana. Since it was sent through the
United States mail, she fell under federal sentencing laws. She received ten years in
prison without the possibility of parole. Another case cited was that of forty-four-year-old
carpenter Mike Irish, Who helped unload a truck of what he believed was furniture,
actually contained hashish. For three hours of work, Mr. Irish received a twelve-year
sentence which he is still serving. Over 35 years into our nations infatuation with
mandatory sentencing laws, we still hear horror stories such as these. The federal
prison system if running at maximum capacity and has been since these draconian laws
were implemented. Nearly sixty percent of all federal inmates are there due to drug
charges. Over half of these prisoners were first-time offenders with no prior record. The
original purpose of mandatory sentencing was to bring liberal states back in line with the
federal government's war on drugs. But Congress took it to the extreme by mandating
that a person arrested with a gram of LSD would receive a five-year sentence, under
these sentencing laws if you are caught growing one hundred marijuana plants the court
must view this as if you had one hundred kilos of marijuana which carries a five-year
minimum sentence. (n.p.)

In an article in the Drake Law Review attorney David Briese states that the
mandatory sentencing laws are unjust and against a person's constitutional rights. In
this review Justice, Stevens a Supreme Court judge is quoted A judge has always had
broad discretion in imposing a sentence within the statutory range. But since the
mandatory sentencing laws went into effect many judges feel that their hands are tied.
Consequently, hindering them in their ability to hand out a sentence that is fair and just
for the crime committed. Under the mandatory sentencing laws, the sentences are set in
stone regardless of the nature or circumstances of the crime. (607).

Attorney David Briese states in the Drake law review asserts that the mandatory
sentencing laws were mainly put into effect to help prosecutors obtain confessions from
drug kingpins. These laws were worded in such a manner that the additional people a
defendant turned over to the police or turned states evidence against determines if they
receive a lighter sentence. So, the number of individuals you turn in and help convict the
lighter the sentence you receive. Therefore, the large drug dealer who brings tons of
illegal drugs into our country could turn on the very people he is selling his drugs to (our
kids) hence receiving a break on the time he is sentenced. The sentence he receives is
gaged by how many people turns in. Many have had their sentences cut in half solely by
the number of people they turned state's evidence against. Mr. Briese also goes on to
state that the poor hippie who's growing a hundred plants in his own basement for his
own use to simply smoke among him and his friends will receive a charge as if he had
one hundred pounds of marijuana. With no one to turn over to prosecutors, this man will
be forced to serve the entire twenty-five-year sentence without possibility of parole
under mandatory sentencing laws. (609)

University of Minnesota law professor Michael Tonry, has stated in many articles
that the mandatory sentencing laws were written during a very turbulent time in
America's war on drugs. And that America needs to take a long hard look at the
sentencing guidelines as they have unintended consequences. Not only do they have
the prison costs in the United States skyrocketing to well over fifty billion dollars a year
on the state level, but they are also putting very low-level drug users in prison for
extended sentences. Sentences that clearly do not fit the crime. Tonry also writes in his
many articles that not only do these laws seem unjust, but they have also made it so our
judges cannot pass down sentences that fit the crime. As a consequence, putting all the
power in the states attorneys hands as far as sentencing. Where in years past the
judges discretion in the level of culpability of the person charged with the crime was
considered when a defendant was sentenced. (506-524)

The magazine the Congressional Digest printed an article that declares as of 2012
these laws have come under heavy scrutiny advocates for reforming these tough
sentencing guidelines are coming from both political parties like Senator Patrick Leahy
and Senator Rand Paul who in 2013 introduced the Justice Safety Valve Act. This
would give sentencing judges discretion to depart from mandatory minimum sentencing
guidelines. Another bill The Smarter Sentencing Act (S.1410) was introduced by
Senators Dick Durbin (IL-D) and Mike Lee (UT-R) the same legislative year that the
Safety Valve Act was introduced. The bill S.1410 would expand on the Safety Valve Act
by reducing the minimum sentences for certain drug offenses as well as repairing the
discrepancies in the way that Crack cocaine and powdered cocaine are prosecuted.
(n.p.)

Defense Attorney Darren Gelber in an article spoke about how the mandatory
sentencing debate has reached the highest authority in the land. The Obama
Administration seem to be following suit with this trend in easing these tough laws. The
Attorney General (AG) Eric Holder sent out a memo to all federal prosecutors. Advising
that in Alleyne v. the United States, 133 S. Ct. 2151 to trigger the stiff mandatory
sentencing guidelines for an offense, certain things must be found by a jury or admitted
by a defendant in a guilty plea. Some of the criteria that they must consider now was the
crime a violent one or was a weapon used in conjunction with committing the crime.
Other factors that must be considered are, was the defendant the leader of a drug
trafficking organization or was he/she just a user. As well as the person's criminal
background do they have any prior convictions and were the priors and the new charge
the same type of felony. If these factors, as well as others, are met, then the federal
prosecutor may consider pursuing a mandatory minimum sentence. (n.p.)

It seems that only Prosecutors want to keep these harsh laws. Douglas Berman an Ohio
State Law professor claims in his article A Saner Approach to Sentencing. Eludes to the
fact that mandatory sentencing laws have turned the legal bench so to speak, by putting
the power of a sentencing judge in the hands of prosecutors. Thus, allowing them to get
more convictions by charging defendants under these laws that carry huge amounts of
prison time, and then offering them a plea bargain. This looks great on a prosecutors
record. Thus, they can claim on election years that their policy of being tough on crime
has got the criminal off city streets. Furthering their political careers and feeding an
epidemic of plea bargaining that has our prisons full to over flowing and reduced our
judges to little more than bench warmers. (n.p.)

Rachel Elise Barlow, a New York university law professor, wrote in a law review that
mandatory sentencing had removed one of the most crucial parts of the American
judicial system which is that of the jury. These laws have changed the criminal court
system by making it little more than an administrative process. With police, prosecutors,
and judges running the show with little involvement of the people. Even though the jury
was meant to be the check and balances that keep our court system in check in the age
of mandatory sentencing one of the most important aspects of our judicial system has
been put on the back burner in favor of plea bargaining to avoid heavy sentences under
these harsh sentencing laws.

In conclusion, it seems that America needs to take good long look at mandatory
sentencing laws. These laws have clearly not worked as intended. They were designed
to combat the huge influx of crime back in the late 80's and 90's during the gangland
crack and cocaine wars that tore through almost every inner-city neighborhood in
America. But in reality, what these laws have taken many nonviolent offenders and
placed them in cages for tremendous periods of time. Overcrowding our prisons and
costing tax payers billions that America can clearly not afford. It is time that we tell our
countries leaders that these laws need to be reformed or abolished.