Saturday, July 19, 2003

COMMON SENSE (2003): Mandatory Minimums in Connecticut (Nothing has changed)



COMMON SENSE (2003);

D E A L I N G   W I T H   T H E

L E G I S L A T U R E  O F C O N N E C T I C U T

And the continued unjust practice of imposing

MANDATORY  MINIMUM  SENTENCES.

Compiled from the writings of

JAMES RETARIDES  & MICHAEL G. SIVAK

________________________________________


Laws are not fixed in stone. We, as American Citizens, can improve, direct, and change the way we manage our country’s affairs.  We are allowed, legally, to make things better.  We are expected to build upon, to improve, and even to nullify the laws written in the past.  By law we are required to amend our mistakes.
                                  
________________________________________

There have been murmurs of discontent, not unlike the kind of subtle undulations upon the surface of the sea just before a storm.  There are signs that very soon, things may change. Opinions are shifting, minds progressing, people are beginning to rethink the status quo; for despite what you may have heard, things are very bad indeed.
The problems are blatant, though often ignored, for many wonder “just how can we change an institution that is so inherent to our collective way of life?”  No one can argue the task is not a difficult one.  But also, many would agree it is becoming increasingly important as well.
Look at the statistics: While the state of Connecticut spends around $9,000 per year on each of its public school students, it spends almost $27,000 annually on each of its nearly 20,000 incarcerated inmates.
Tough figures to justify, especially when one considers that incarceration in prison-alternative programs costs only around $5,000 per inmate. That is a savings of about $22,000 per year for only a single prisoner. A widespread doctrine of employment of such programs just might be the “shot in the arm” our ailing state budget and justice system need: less spending, greater rehabilitative results, and consequently, lower rates of recidivism, which means less people returning to prison; quid pro quo: less money spent housing future offenders. And so on, and so forth.[1]
The fiscal status of the DOC is a dire one. Though the state’s population has remained stable since 1980, and in the same time the crime rate has steadily decreased, the state’s prison population has increased fivefold.
The state prison matrix has simply been unable to keep up with the increase; and though the prison population continues to grow, the money to hire more Correctional Officers and to build more beds to accommodate the influx has simply run out.  Now inmates are sleeping on gymnasium floors, and the state’s budget continues to collapse. The dream is over, as is the post “tough on crime” honeymoon.
But there are murmurs of change.  People are beginning to look at the laws we have instituted and say “this isn’t working, we need to try something new.”
We have brains in our heads; this may be the moment to use them.
The best hope in correcting this corrections dilemma is to reconsider exactly who should be sent to prison in the first place. It is no secret that alternate forms of incarceration mean big savings for the state’s taxpayers, not to mention a probable “more just” justice system. As the system now stands, it is costing each of the state’s over 3 million households around $460 per year to run the DOC; our courts are clogged, prisons overflowing, injustice is rampant.
Recently, state legislators have begun to question the state’s current practice of what State Rep. Peter Villano calls “Warehousing human beings.”
One way some legislators believe can help clean up the justice system morass would be to grant judges greater flexibility in sentencing, allowing a judge to fashion a sentence appropriate to a particular offender and offense.
The mandatory minimum sentencing laws in place in Connecticut and other states have become notorious tools of injustice and a drain on taxpayers’ wallets.
A mandatory minimum sentence is a sentence that may not be reduced by a court under legislative authority. That means that where a judge normally has discretion as to choose a suitable punishment, taking into account mitigating factors specific to a certain incident, the judge’s hands become tied.
The mandatory sentence diminishes the judge’s inherent role, to dole out a sentence to each individual suspect, befitting of the circumstances surrounding the crime committed. Under a mandatory minimum sentence the punishment cannot fit the crime.
Historically, mandatory minimum sentences are a rarity.  It was not until the second half of the last century that mandatory minimum sentences became common practice.
First introduced as a response to the rise in drug activity, legislation soon latched on to mandatory minimums as a way of portraying a “tough” approach to dealing with crime. By the 21st Century, there were numerous mandatory minimum sentences on the books for a wide range of crimes.
The laws themselves have been thoroughly unscientific. The lengths of the mandated sentences often are not based on any empirical study, but rather are simply chosen on grounds that they “sound” strict.
People from all sectors of the criminal justice system have decried mandatory minimum sentences. As early as 1974, the American Bar Association said in its criminal justice policy, that it opposes, in principle, legislatively or administratively imposed mandatory minimum prison sentences. Recently, Supreme Court Justice Kennedy has publicly decried mandatory minimum sentences. (QUOTE) An (JUDGE RESIGNS QUOTE)
Chief Justice William Rehnquist called mandatory minimum sentences a good example of the law of unintended consequences. In 2002 Supreme Court Justice J. Breyer stated that mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency… they transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring…they are rarely based upon empirical study.
Prior to leaving his final term, Michigan Governor John Engler signed a bill eliminating mandatory minimum sentences for drug offenders. Before this action, Michigan was regarded as having the strictest drug laws in the nation.
Recently, many other states including Idaho, Maryland, and New York have begun to rethink mandatory minimum sentences as well.
Here in Connecticut, State Legislature passed an act concerning mandatory minimum sentences. The new act allows judges to deviate from the application of a mandatory minimum sentence, but only in cases involving first time drug offenders.
     The repeal of mandatory minimum sentencing policies would not only better serve the taxpayers and the state’s fiscal situation, but it would create a more “just” justice system.
     Legislators need to come up with an “outside of the box” approach to dealing with the current deficit. And we, as a society need to take a more proactive approach toward dealing with other people. Instead of giving up, we should seek to improve our collective existence. 
     Punishment should not be handed out in predetermined increments. As Judge Leon Higginbotham once said: We must remember we are not widgets or robots, but human beings. Defendants should be sentenced within the spectrum of what most judges would consider fair and reasonable.
     I’m not saying we should not be tough on crime, I’m simply saying that the punishment should fit the crime.

Simply put: mandatory minimums compromise justice by shifting sentencing discretion from judges to prosecutors


Mandatory minimum sentences completely eliminate a judge’s discretion when choosing an appropriate punishment for an offender. This curtailing of the courts traditional sentencing rights greatly undermines the integrity of the justice system as a whole. 
Under a mandatory minimum sentence, a judge must impose the set sentence without exception.  Any mitigating factors such as a defendant’s character, history, or specific circumstances that might otherwise call for a lesser sentence must be ignored. 
Because of this, mandatory minimum sentences are in conflict with the most basic notions of justice.  Under a mandatory minimum sentence the punishment cannot fit the crime.
Proponents of the deterrent role of sentencing suggest that if a person is punished for committing a crime, that person’s punishment will become an example for others.  If one person is punished for a crime, perhaps others will think twice before also committing crimes.  By the same account, the idea of deterrence follows the theory that the person punished will also be discourage from committing more crimes in the future.
Those in favor of mandatory minimum sentences declare that such sentencing provisions work toward the notions of deterrence.  Supporters contend that criminal activity will decline if potential offenders are concerned they will serve time in prison if they violate the law.
However, Agencies including the Maryland State Bar Association have asserted that this school of though is flawed since most potential offenders are completely unaware of which crimes actually carry mandatory minimum sentences.  Also, many crimes are committed on impulse without much forethought, which further detracts from the intended goal of deterrence. 
A recent bill presented before the Idaho State Legislature states that mandatory minimum sentencing, originally intended to create more consistency in sentencing and reduce sentencing disparity, has severely limited the discretion of the courts, and in doing so force judges to impose punishment inappropriate to the offense or to the circumstances of the offender.
Mandatory minimum sentences fail to create uniformity in sentencing because they force judges to take cases that differ greatly in circumstance and treat them exactly the same.
Studies have shown that mandatory minimums do nothing to end sentencing disparity, but in some cases actually intensify the problem.
The Idaho bill goes states that mandatory minimum sentences create the inability of the court to tailor punishment to fit a particular defendant’s circumstances and the specific circumstances of a case.
Judicial discretion is a key element in diverting some offenders away from repeat criminal activity. Mandatory sentences remove the flexibility judges have in determining which measure of rehabilitation an offender would benefit most from.
In Connecticut Mandatory minimum sentences continue to cause a strain on our already lean state fiscal resources.  They overburden our correctional facilities with persons who would more suitably be punished through means other than jail time.
Prosecutors, some of the few people who are actually in favor of mandatory minimums, have complained that if mandatory minimum sentencing laws were repealed, they would lose a valuable bargaining chip to compel the accused to plea bargain rather than risk taking the case to trial.
 A major criticism of mandatory minimum sentencing practice focuses on the fact that this type of sentencing shifts discretion from neutral third-party judges to adversarial and biased prosecutors.
Supreme Court Justice Stephen Breyer has stated that mandatory minimum sentences permit the prosecutor, not the judge, to select the sentence by choosing to charge, or not to charge, a violation of a statute that carries a mandatory prison term.
Prosecutors can use their own discretion in choosing what they deem to be a fitting charge. Under mandatory minimum sentencing, they alone possess the power to reduce the sentence by lowering the charge.
The main problem with this shifting of power from judges to prosecutors is that while a judge’s sentencing actions take place under public scrutiny, a prosecutor’s charging and plea-bargaining actions take place under secretive behind-closed-doors circumstances, and so are unreviewable. 
In this light, the notion of checks and balances has been dealt a double whammy, first by striping the judiciary of its role to specify sentences, then by passing that role on to the prosecutors of the executive branch whose actions cannot be evaluated for abuse.
Acknowledging budget woes and inequities in sentencing state legislators and officials say they have begun to re-evaluate the rationale behind mandatory minimum sentences.
State Sen. Martin Looney D-11, explained that, while the state’s population has remained stable over the past two decades, the prison population has tripled. The increase, due largely to the imposition of mandatory minimum sentencing, has led to the state’s now astronomical spending on corrections.
“I think there is the recognition that we need to build some greater flexibility into the system,” Looney said. “That may be one of the few silver linings of the budget cloud that we’re looking at now. Sometimes in difficult times, people become a little bit more creative in looking at things that they might not have looked at before.”
According to the Connecticut Department of Corrections, the state spends almost $600 million a year on the incarceration of only slightly over 19,000 inmates.
Each day the state spends a total of about $1.6 million to house inmates in its 18 correctional facilities. Currently it costs approximately $26,955 to house each inmate per year.
The state has asked the DOC to trim nearly $6 million from its budget; the department could lose 164 employees due to the cuts.
Looney suggests that a good way of lifting some of the state’s financial burden would be to return greater discretion to judges when it comes to sentencing, allowing judges to dictate sentences, which more appropriately suit a particular case.
“I think we need to recognize that a judge is appointed for his or her judgment, experience, understanding of the law, and how to apply the law,” Looney said. “We have to trust that discretion and allow the judge to fashion a remedy that is true justice.”
Looney went on to say that under mandatory minimums judges become bureaucrats, rather than judges because they are not functioning as an arbiter in the traditional sense.
Police Chief Robert Nolan says that mandatory minimums nullify the qualifications of our judges and detract from the distinct and specific nature of each case.
“My feeling from day one is that if we appoint judges I would hope that they are appointed on the basis that they are qualified,” Nolan said. “Every case should be a case unto itself. I don’t see a case where you can write a law that can cover all situations.”
Nolan stated that mitigating factors should always be taken into consideration during sentencing and that judges must be allowed to consider them.
“Mandatory minimum sentences take that away from the judge,” Nolan said. “It’s not democratic because every single case is different.”
“We have to focus on the particular crime, and the particular individual before us,” Looney said. “Hamstringing judges by so many mandatory minimums undermines their capacity to really do true justice.”
State Rep. Peter Villano expressed a need to put an end to the practice of simply “warehousing” offenders. He recognized a need to crack down on soft judges, but acknowledged that situations arise where mandatory minimum sentences become a tool of injustice.
State Sen. George “Doc” Gunther R-21, stated that without mandatory minimums, judges are free to sentence offenders however they see fit. He expressed a concern that, unchecked judges might be too lenient in their sentencing.
Looney stated that situations such as this should be avoided due to the judicial review practices already in place.
State Rep. Cameron Staples agreed that mandatory minimum sentences seem to be less of a benefit and more of a hindrance.
“We have to be smart,” said Staples. He went on to state that a “simple slogan” approach toward sentencing is insufficient and defective. He pointed out that while more money is going toward prisons less is being spent on education.
“It’s a damning statistic,” Looney said.
Nolan suggested that more money be spent on law enforcement rather than incarceration.
“We should be trying to be proactive to the problem rather than reactive,” Nolan said.
In Nolan’s opinion the state should explore alternate incarceration options as a cost cutting approach. He added that during his career, he has seen many people sent to prison who would be better suited for an alternative form of rehabilitation.
According to state agencies, the average cost for placing an inmate in an alternate incarceration program is around $5,000 per year, $22,000 less than the annual cost of housing an inmate in prison.
“We need to provide more support for alternative forms of incarceration,” Looney said. “We’ve made some strides in that direction in recent years, but we need to make more.”
Staples also expressed the need for greater use of alternatives to jail more appropriate to the individual.
“We’re not breaking the cycle,” Staples said.
Each official pointed to potential savings and greater rehabilitative effects of alternate forms of incarceration as reason enough to restore judges with more leeway in sentencing.
“We need to build as much flexibility into the system as we possibly can and allow judges to really deal with the facts before them,” Looney said. “That’s one of the purposes of a pre-sentence investigation before sentencing… to get a full picture. If you don’t allow the judge to use that full picture in the sentencing determination, you’re undermining the pre-sentence investigation.”
Prosecutors have complained that if mandatory minimum sentencing laws were repealed they would lose a valuable bargaining chip to compel the accused to plea bargain rather than risk taking the case to trial.
“The mandatory minimum sentences actually often become a bargaining tool,” Looney said. “There have been cases of people actually pleading guilty, and having it come out later on that they were in fact innocent. They recognized there was a danger of conviction if they went to trial and they wind up accepting the plea bargaining because they think it is a smaller risk than going to trial would have been.”
Looney called it “an unfortunate comment on what happens in the criminal justice system sometimes.”
“The statue of Lady Justice has a blindfold on, and there is a reason for it.” Nolan said. “It is supposed to be justice for all. Prosecutors, judges, police officers, we all need to remember that.”


[1] In an article by Aaron Ment, the chief court administrator of the state’s Judicial Branch, it is suggested that alternate forms of incarceration would not only be more successful in reforming inmates but would also lighten the state’s heavy fiscal burden.
Jack Cole, a retired narcotics officer with 26 years experience in the field, has expressed the need for greater use of these prison alternatives. Cole called current drug policy “institutionalized racism,” citing statistics to illustrate his claim. He said that while 72% of drug users in the United States are white, and only 13.5% are black, blacks account for 35% of all drug arrests.  He said that the stats are equally disproportionate in prosecutions, convictions, and severity of sentencing.

1 comment:

  1. I'm opposed to mandatory minimum sentences myself: They crowd jails, and thus waste public money for mere containment. And what's weird is that this has only made the bonding business more relevant and in-demand; funny since the goals of the policy are about keeping criminals behind bars and staying there. Fitting as well.

    BailBondsStGeorge.com

    ReplyDelete