Mandatory Prison Sentences and Two Sides of the Reform Debate
Criminal Sentencing Guidelines Need Our Attention
Criminal Justice reform is something we frequently consider. We are repeatedly told that the U.S. criminal justice system is “broken”. What does this mean? This rhetorical tactic is used to circumvent our natural skepticism when faced with proposals to change or replace what already is. As a political tool, this may be a good idea, depending on one’s preferences. Yet, “broken” implies the need for a total system makeover. This rhetoric fuels skepticism. However, reading about recent legislation in the U.S. Senate that seeks to reduce or eliminate mandatory minimum sentences for certain crimes, we are told by our political leadership that we need to “fix a broken system” by adopting the proposal a particular pol is advancing. Consider these recent quotes from Senators Cory Booker (D-N.J.) and Mike Lee (R-Utah) respectively, about the Senate Reform and Corrections Act as reported in the U.S. News and World Report (http://www.usnews.com/news/articles/2015/10/01/senates-criminal-justice-reform-bill-hailed-as-bipartisan-breakthrough) on October 1, 2015:
“For decades, our broken criminal justice system has held our nation back from realizing its full potential.” (Senator Cory Booker)
“Mass incarceration has cost taxpayers billions of dollars, drained our economy, compromised public safety, hurt our children and disproportionately affected communities of color while devaluing the very idea of justice in America.” (Senator Mike Lee)
There are compelling reasons to modify the mandatory sentencing requirements. Among the arguments is one suggesting that influence over the fate of the accused in today’s criminal proceedings has shifted from judges to prosecutors. This shift has resulted in a spike in plea agreements to avoid the imposition of mandatory minimum prison sentences. When a mandatory minimum sentence is a possibility, defense attorneys and their clients must consider the ramifications of being found guilty of the original charge and facing a multi-decade prison sentence, or taking their chances with a trial.
A 2012 article from the Huffington Post by Trymaine Lee (http://www.huffingtonpost.com/2012/05/11/marissa-alexander-sentenced_n_1510113.html) cites the case of a 31-year-old Florida mother named Marissa Alexander. Ms. Alexander was convicted of three counts of aggravated assault with a deadly weapon after she was arrested for firing a warning shot into a wall of her home to dissuade her husband (whose two children were nearby) from approaching her. She declined a plea agreement offer that would have required her to serve three years in prison because she felt she was defending herself against an abusive husband. However, Ms. Alexander was found guilty. Even though she had no criminal record and no one was injured when she fired the shot, state sentencing guidelines required a mandatory minimum sentence of 20 years imprisonment. Ms. Alexander is the mother of three children. Her example is sensational and newsworthy. Mandatory sentences, such as Ms. Alexander’s, may tilt the balance of power to the prosecution and lead to innocent defendants accepting prison terms under plea deals in lieu of facing a trial and risking a long mandatory prison stay. Is this what we want in America? Apparently not. Floridians were sufficiently affected by her case that new laws were enacted in Florida to allow warning shots in certain circumstances (http://www.huffingtonpost.com/2015/01/27/marissa-alexander-released-jail-warning-shot_n_6558814.html).
Ms. Alexander’s conviction was later overturned and she was permitted to accept the original plea deal offered to her or face a re-trial that may have required her to serve 60 years in prison instead of the prosecutions offer of three. Dare she tempt fate with another trial and mandatory minimums? She was released January 27, 2015 (http://www.huffingtonpost.com/2015/01/27/marissa-alexander-released-jail-warning-shot_n_6558814.html).
There is another side to this issue. There are areas of the country where defendants seek jury trials, knowing they will receive favorable consideration from juries in spite of strong evidence of their guilt. This occurs because jurors’ faces are seen in court and they come from the communities where crimes occur. Fear of retaliation following a guilty verdict, especially in gang-related cases, is a powerful motivator to acquit a defendant. Sympathy for the accused, in spite of the prosecution’s evidence, may also affect jury outcomes in certain circumstances. So, how can the problem of cyclical gun violence in areas of our communities be disrupted? This has been done before with resounding success but brings us full circle to mandatory sentences.
Richmond, Virginia is the capital of Virginia and was once also known as the state’s murder capital. Richmond is not a large city and is not a big generator of national news.
Following a sharp and sustained increase in gun related violence during the 1990s, a new program began in Richmond in 1997. Led by the U.S. Attorney’s Office for the Eastern District of Virginia (which included future FBI Director, James Comey) and in cooperation with the federal ATF, local police and local prosecutors, gun-related arrests that met certain criteria were adopted for federal prosecution where a mandatory five year federal prison sentence was in store for those convicted (http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=3192&issue_id=112013).
Known as Project Exile, this program was heavily publicized in the communities. It included a proactive public outreach and trust building program by the Richmond Police Department. It also leveraged a “no bail” element that helped assuage fears of jurors that testifying against a defendant who was out on bail could mean that the defendant could harm them as a consequence of their testimony. Project Exile denied bail to those individuals whose cases were adopted for federal prosecution under its terms (http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=3192&issue_id=112013).
Project Exile was highly successful. Gun crimes, especially homicides, were dramatically reduced in Richmond and the mayhem for which the city was known for so long has largely abated. Other factors also influenced the long-term change in Richmond; but Project Exile and its strict terms demonstrated that deterrence through mandatory minimum sentences is successful if properly implemented.
Project Exile had key elements that made it unique. The five year mandatory sentence in federal prison was but one part. The collaboration of prosecutors and law enforcement at the local, state, and federal levels made the program successful. Indeed, the five year minimum sentence pales in comparison to the 20 year minimum required by the Florida state statute. Ms. Alexander’s conviction, occurring at the state level, would not be impacted by the pending 2015 federal legislation. Therefore, each state must wrestle with this issue.Ultimately, the collective conscience of the citizenry must be engaged on the front end of all of these debates to achieve the balance our communities need and deserve.
Popular Security (PopSec) is a platform where multi-disciplinary professionals across federal, law enforcement, military, fire service, and emergency management fields discuss current trends and issues in the field of Homeland Security.
