I’ve been reading a tremendous book about the drug war and mass incarceration called The New Jim Crow by Michelle Alexander, which I can’t recommend enough. It shines the light on our out-of-whack criminal justice policies and how they disproportionately impact African-Americans, as well as how the stigma of a criminal record ends up attaching itself to convicts once they leave prison, with very real consequences for their future rights and privileges as American citizens.
One of the key areas of inquiry in the book involves US sentencing policies, which force mandatory minimum sentences so harsh that judges wince at handing them down. Alexander makes the point that prosecutors end up holding almost all the cards in our current system of justice. Very few cases go to trial, and so prosecutorial discretion often determines who goes to jail and for how long. And inevitably this ends up sending far more minorities to jail than whites.
Adam Liptak writes about one judge who has had enough with mandatory minimum sentences.
(Jamel) Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140. Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence. “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.” [...]
The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.
“We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”
The Dossie case illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.
Gleeson has now publicly called for Attorney General Eric Holder to end the cavalier way in which federal prosecutors seek mandatory minimum sentences, especially when directed against low-level functionaries and not the drug kingpins that Congress designed the mandatory minimum sentencing law for. Clearly the system has run amok. Mandatory minimums are now standard issue in almost all drug cases, regardless of the position of the defendant. This is done largely to start a negotiating process with the defendant, to either get his or her cooperation in additional drug busts, or to force a guilty plea and avoid trial. The law is now used for leverage, well beyond its intentions.
Unjust sentencing gets far too little scrutiny in our national debate. The one decent move on sentencing in the last few years, reducing the crack-cocaine sentencing disparity for federal crimes from 100:1 to 18:1, only made the law “one-fifth as racist as it used to be,” in the words of Adam Serwer. And that was the show of progress.
Because the prosecutor has been imbued with so much power over sentencing, it’s proper for judges to appeal to the prosecutors and not the lawmakers to end their punitive conduct. Sadly, I’m not hopeful this will lead to anything beyond raising a little awareness.