Post Date: January 1, 2014
New Year’s Day is a great time to reflect on the past and think about the future. Most of us resolve to improve some things in our lives. In that spirit, here are my recommendations for resolutions for people involved in sentencing reform:
Educate yourself about sentencing reform.
Read books, studies, law review articles, congressional testimony, blogs, and op-eds on sentencing and mandatory minimums. Look at the data. Go back and see what promises the proponents of mandatory minimums made when they were passed (Deterrence? Uniformity?) and then find out if those things actually happened. Look to the experiences of other states who have experimented with mandatory minimums. Research what happens to crime rates when mandatory minimum drug laws are repealed. Ask why otherwise pro-incarceration academics oppose mandatory minimum drug laws, and whether they might be on to something after all. Ask whether your ideological commitments really require support for mandatory minimums, or if they require something else entirely. Ask yourself why some of the most conservative groups in the country are calling for sentencing reform.
Most importantly, take some time to reflect on why you support mandatory minimums, then compare (and contrast!) your expectations with the evidence.
1. Fulfill the ethical responsibilities of your office.
According to the American Bar Association, “The duty of the prosecutor is to seek justice, not merely to convict.” Resolve to fulfill this ethical responsibility. The structural incentives built into the criminal justice system make it very easy to focus on conviction rates. I’d imagine it’s very difficult to live up to the ideal of the disinterested prosecutor seeking justice even at the expense of one’s career or ego. Nevertheless, that is the prosecutor’s charge, and you should aim to fulfill that ideal. What does that mean in practice? For starters, don’t coerce defendants into pleading guilty by threatening to stack charges or tack on lengthy mandatory minimums if your plea deals are rejected. If you find yourself doing that, ask yourself why. Ask yourself whether threatening a person with decades in prison if they exercise their constitutional rights is fulfilling or violating your ethical responsibility to seek justice.
2. Be honest about why you support mandatory minimums.
It makes sense that prosecutors would support mandatory minimums generally; I get it. Mandatory minimums are cruel, brutal hammers with which prosecutors can coerce defendants into pleading guilty. That makes prosecutors’ jobs easier, and if you think a defendant is guilty, then the easiest path to conviction is also the most just.
But sometimes prosecutors oppose mandatory minimums! It’s true! Consider that after a couple of decades of failure, Michigan’s prosecutors joined FAMM to repeal that state’s awful “650-Lifer” law, and restore judicial discretion in drug sentencing. In New York, though they resisted changes for years, prosecutors eventually came around and supported repeal of the “Rockefeller drug laws” that had filled New York’s prisons with low-level drug offenders but failed to reduce drug activity or crime. The Iowa County Prosecutors Association actually wrote a letter opposing the expansion of mandatory minimums for sex offenders, arguing that mandatory minimums do “more harm than good,” and actually reduce the likelihood of conviction. Read it for yourself!
As prosecutors in Michigan, New York, Iowa and elsewhere have shown, it is possible for prosecutors to be honest about mandatory minimums. Support them if you think they actually reduce crime and protect public safety (but show your work!). But if you’re not convinced mandatory minimums are effective – if you’re just not convinced by the available evidence – don’t pretend otherwise because mandatory minimums make your job easier or because you think it makes you look “tough on crime.”
Reflect on why you support mandatory minimums.
I’ve never understood why police officers support mandatory minimums. I assume their support derives from a genuine belief that mandatory minimums reduce crime through incapacitation and general deterrence. The reason I don’t understand that position is that it’s demonstrably false (especially with respect to drug crimes). It isn’t as if these issues haven’t been studied exhaustively. It isn’t as if there’s just no evidence out there, so we should just go with our gut and hope for the best. It simply isn’t the case that a genuinely held belief in the crime-reducing magic of mandatory minimums is as reasonable as the belief that they don’t work.
We’re right about this.
And you can be right, too! So my recommendation for law enforcement officers is: reflect on the reasons you support mandatory minimums. Do you think they deter crime? Go research the issue and see if you’re right! Do you think incapacitation of drug users reduces drug activity? Go research the issue see if you’re right! The evidence really does contradict your assumptions about the efficacy of mandatory minimums! (Would you be willing to change your position on the basis that the evidence doesn’t support the one you currently hold? Changing one’s mind is a brave act, but few are braver than our police, so I have faith.)
Secondly, ask yourself if mandatory minimums are really the best way to fight crime in your cities and counties. Think of the nearly $100 million Florida spends annually incarcerating low-level drug offenders serving mandatory minimum sentences. What if we put that money into our Sheriffs’ offices instead? What could you do with more resources that you can’t do now because they’re earmarked for the Department of Corrections? Could you hire more officers to patrol high crime areas? (There’s evidence that reduces crime!) Could you pay your officers more? Make their pensions more secure? Create a new crime-fighting program in your county? The possibilities are endless! But resources are finite and opportunity costs force us to prioritize our spending. We can keep throwing money away on inefficient incarceration, or we can give you the tools you need to fight crime. The choice really is yours! (Help us!)
Do what you can to fight for sentencing reform.We’re all here for different reasons. Some of us have a loved one in prison. Some of us see the injustices mandatory minimums cause and spend every moment we can fighting against them. Whatever has motivated you to become aware of this cause, my recommendation for your new year’s resolution is to do whatever you can to help the fight.
At the end of every Florida legislative session since 2011 I’ve been angry, upset, and bitterly disappointed in myself for failing to get our bills passed. My resolution this year is to be happy at the end of this one.
Here’s to a happy, healthy 2014! (And a new job by 2015!)
~Greg Newburn, FAMM Florida Project Director