May 2, 2013

"The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

An article in TNR by Daniel Denvir. Excerpt:
"Research over many years has shown that mandatory penalties are limited because they address severity of punishment, not certainty," says Jeremy Haile of The Sentencing Project. "Because most people engaged in criminal activity do not expect to get caught, few think about the penalties they will face if convicted."

"The decent thing to do would be to repeal all existing mandatory penalties and to enact no new ones," Tonry concludes. One reason for this is that, though they are intended to bring consistency and transparency to the justice system, mandatory minimums instead create disparity and confusion. Prosecutors use the threat of draconian sentences to compel guilty pleas to lesser charges behind closed doors and nail those who want their day in court as harshly as possible.

32 comments:

Cedarford said...

I would say that another problem is mandatory minimums can hit non-criminals with the same severe sentences as a career criminal using a firearm in the commission of a violent crime.

Laws intended for an armed robber thug can be slammed down on a grocer in Chicago who has been robbed several times and now has an (illegal in Chicago) weapon to defend himself and family workers.

Total gun bans in major US cities do not work if the police are unable to control the thugs that intend to have weapons to get their way, and thus protect the general citizenry.
And laws threatening those relatively unprotected citizens if they arm themselves against criminals, with major jail time, hurt society overall.
(But make well-to-do liberals in leafy suburbs sure feel good about their anti-gun ideology)

ed said...

There are mandatory minimum sentences because the American public do not trust either prosecutors or judges to their jobs.

Sorun said...

I have a few shotgun shells in the center console of my truck from emptying my pockets after a grouse hunt. I've since driven through both DC and Chicago. Jeez, I'd still be in the pokey if I'd been stopped and searched. I need to go get those out of there.

edutcher said...

Define "bipartisan".

Methadras said...

"Because most people engaged in criminal activity do not expect to get caught, few think about the penalties they will face if convicted."

This type of statement, and I hear it often is asinine. No ones expects anything to happen to them at any given time of the day. There, I cleared it up to cover all sequences, scenarios, and consequences.

But clearly, the real money thrust of this article is to neuter prosecutorial overreach with the threat of mandatory minimums against defendants as said:

"Prosecutors use the threat of draconian sentences to compel guilty pleas to lesser charges behind closed doors and nail those who want their day in court as harshly as possible."

That's what this is about. A mandatory minimum is out of the judges hands. It's the prosecutors playground to threaten people with. On those grounds, I'd say I'm in favor of it. You never know in this life if you would ever be sitting in front of one of these pricks as he hangs a mandatory minimum over your head.

Nomennovum said...

TNR is right.

Stopped clocks and all that.

Sigivald said...

And it's true outside of gun control, too.

Mandatory sentences - generally, in any context - are worse than anything they purport to fix.

Hagar said...

Besides prosecutorial overreach, there is the sheer mind-numbing stupidity of the bureaucracy and refusal to take personal responsibility for any decision-making.

"In this case, the sentence is obviously inapppropriate, but the law is the law. There is nothing we can do about it."

Ann Althouse said...

"There are mandatory minimum sentences because the American public do not trust either prosecutors or judges to their jobs."

Reread the last paragraph of the post and explain why mistrust of prosecutors is a reason to have mandatory minimum sentences.

I assume you're only trying to explain the political support and that you understand that the support for that reason is a mistake.

Marie said...

Mandatory minimums also have the effect of increasing the sentence length for crimes that carry no mandatory minimum.

Marie said...
This comment has been removed by the author.
edutcher said...

Ann Althouse said...

There are mandatory minimum sentences because the American public do not trust either prosecutors or judges to their jobs.

Reread the last paragraph of the post and explain why mistrust of prosecutors is a reason to have mandatory minimum sentences.


IIRC, mandatory minimums came into vogue among politicians and the electorate after plea bargaining came into vogue with prosecutors.

Hagar said...

Less serious, but he principle is the same:

Consider the stories we read every other week about a public school system somewhere, and its "zero tolerance" policies.

Methadras said...

Hagar said...

Less serious, but he principle is the same:

Consider the stories we read every other week about a public school system somewhere, and its "zero tolerance" policies.


That's just an example of the draconian nature of leftism.

ndspinelli said...

Federal mandatory minimum for crack was one of the worst boondoggles, and travesty in sentencing, ever. Made everyone feel good @ the time though!!

Marie said...

Federal mandatory minimum for crack was one of the worst boondoggles, and travesty in sentencing, ever. Made everyone feel good @ the time though!!

Yep. And the same thing is happening with child porn sentencing...now that people have begun to see the travesty in drug sentencing. After all, the prison industry must be fed. The fact that many of us despise child porn users does not make the sentencing just.

Richard Dolan said...

Mandatory minimums are a terrible idea. They are unnecessary in cases which call for a heavy sentence, and barbaric in the many cases that don't.

Gun possession as a stand-alone crime comes in all varieties of seriousness, and should result in all varieties of penalties as well. The most serious would be ex-cons convicted of crimes of violence, in possession of a gun. For them, possession is going to amount to lots of different crimes -- violation of parole usually being one of them -- and thre will be lots of grounds besides possession to impose a stiff penalty if circumstances warrant. NY has mandatory minimums for gun possession already, and the folks who often get caught up in it are visitors travelling through NY, often at the airports and trasporting a gun from wherever they live to wherever they're going. The Queens DA's office has absolute discretion in those cases whether to press charges, and they usually extract a price before declining to do so.

The idea that the American criminal justice system is too lenient is a joke to anyone who deals with it on a regular basis. The effect of mandatory minimums is simply to increase the power of prosecutors in a system in which they already have huge advantages. The reality is that mandatory minimums, combined with unreviewable prosecutorial discretion in deciding whether to seek an indictment, creates an overwhelming pressure for defendants to plead guilty to avoid being charged with an offense having a minimum.

Michael said...

An additional concern is that the police have access to weapons that can easily be planted on suspects who they would like to see put away. That could be any person who gave the policewoman a wrong look.

There will also be pushback on this because the penalties would fall disproportionately on a certain cohort.

Andy Freeman said...

> "There are mandatory minimum sentences because the American public do not trust either prosecutors or judges to their jobs."

> Reread the last paragraph of the post and explain why mistrust of prosecutors is a reason to have mandatory minimum sentences.

Which part don't you understand?

Previously, the law let prosecutors and judges exercise considerable discretion.

The electorate didn't like what they did with that much discretion, so they reduced it.

If you respond "but they can't do their job without that much discretion", we'll remember that they can't do it with that much discretion and make the obvious conclusion.

It's related to public school teachers who say that kids aren't being educated because teachers aren't paid enough. The only reason to increase salaries is to change people....

Ann Althouse said...

"Which part don't you understand?"

I don't know, but I do know which part you don't understand.

bpm4532 said...

Mandatory minimums are emotional responses to things which should have rational responses.

bpm4532 said...

it's all about how you feel...

Marie said...

Previously, the law let prosecutors and judges exercise considerable discretion.

The electorate didn't like what they did with that much discretion, so they reduced it.


Andy Freeman, I can think of maybe two times when I commented here without reading all (or most) other comments first. In neither case did it turn out as badly as it did for you today.

cubanbob said...

Methadras said...

The problem with getting rid of plea deals is the lack of judges and juries to hear the cases. If there was a practical solution to the problem then it would worth getting rid of plea deals.

CEO-MMP said...

I don't trust prosecutors to do what's just. Mandatory minimums sound good, hell I remember a time when I thought they were a good idea. But more and more they've become a cudgel, especially at the federal level and there are people in prison right now serving things like 2-5, 3-9 that plead to that rather than take a chance with a trial where the mandatory minimum was 25 to whatever. Once the fed gets you, you're screwed They have more money than you, they'll spend it to get you, and they'll take all your assets to boot.

Nah--not trusting prosecutors is a great reason not to have mandatory minimum sentences.

I'm not sure what the answer is. On the flip side, it gets tiresome to see murderers and rapists getting out in months instead of years, and I'd like some kind of mandatory add on for gun crime.

There again, it's selective enforcement. Remember Chicago gun prosecutions?

cubanbob said...

Perhaps a solution to the problem of extortionate over charging/blackmailing is not to necessarily eliminate the mandatory minimum but that the court cannot impose a sentence greater than the plea offer. I am of the belief that if the government offers a plea deal then that is what it really values the crime otherwise it wouldn't offer the deal.

Methadras said...

Marie said...

The fact that many of us despise child porn users does not make the sentencing just.


Wait a minute. SCOTUS had an opportunity to make pedos'/child pornographers/child rapists, etc. eligible for the death penalty. They failed.

Methadras said...

cubanbob said...

Methadras said...

The problem with getting rid of plea deals is the lack of judges and juries to hear the cases. If there was a practical solution to the problem then it would worth getting rid of plea deals.


So inconvenient justice is justice denied or justice expedited? You are outwardly make an argument that I've held onto for a long time, that justice is directly tied to finance. Not enough judges or juries, well, rubber stamp the sentence. It's more cost effective that way. This isn't justice. This is rather a debauchery of due process. I'll give you an example because there are many. How much did the OJ trial cost to prosecute to the City of LA? Millions? How about the trial of the cute little abuse victim that stabbed and shot her boyfriend multiple times in self defense Jodie Arias? What if there is a mistrial? Do it all over again to the tune of hundreds of thousands if not millions? How much is a DA's office willing to spend to get their man or woman and for how long. They have a near infinite reserve of cash to prolong the agony, unless of course they are being asked to track that back, in which case, guess what? Mandatory minimums require little to forethought in sentencing. Even plea dealing is in line with budgetary justice.

cubanbob said...

So inconvenient justice is justice denied or justice expedited? You are outwardly make an argument that I've held onto for a long time, that justice is directly tied to finance. Not enough judges or juries, well, rubber stamp the sentence. It's more cost effective that way. This isn't justice. This is rather a debauchery of due process. I'll give you an example because there are many. How much did the OJ trial cost to prosecute to the City of LA? Millions? How about the trial of the cute little abuse victim that stabbed and shot her boyfriend multiple times in self defense Jodie Arias? What if there is a mistrial? Do it all over again to the tune of hundreds of thousands if not millions? How much is a DA's office willing to spend to get their man or woman and for how long. They have a near infinite reserve of cash to prolong the agony, unless of course they are being asked to track that back, in which case, guess what? Mandatory minimums require little to forethought in sentencing. Even plea dealing is in line with budgetary justice."

Plea dealing is budgetary justice. Only the feds can muster the war chest to in theory try every case. The states simply don't have funds to do so. They have to use plea-extortion bargaining to coerce convictions. I am making the argument that justice is tied to money, there is no denying it. Mandatory minimums are part of the problem with excessively long terms that seem disproportionate to the offense but that is also in concert with the massive amount of overcharging by prosecutes. Being charged with a number of permutations of the vary same crime leads to over long sentences where common sense judging would result in a lesser term of punishment.

The problem is very few defendants have the money to hire the top-gun defense lawyers and even if they were to prevail all but the wealthiest would find themselves bankrupted. The state really can't afford to prosecute every felony with a jury trial. The public avoids jury service like the plague but wants criminals in prison and most criminals are just simply too stupid or amoral to be rehabilitated. This maybe the only somewhat workable system available for our culture, horrible as it is.

ed said...

@ Althouse

"Reread the last paragraph of the post and explain why mistrust of prosecutors is a reason to have mandatory minimum sentences."

Because the sentences prosecutors ask for are not always in line with what the public expects for the crime involved. Are minimum mandatory sentences used as a cudgel to force plea deals? Sure. Do they also prevent judges and prosecutors from misusing their discretion? Yes.

Discretion is only worthwhile as long as you trust the people exercising it. If you think they're a bunch of asshats then why would you trust their discretion?

Methadras said...

cubanbob said...

Plea dealing is budgetary justice. Only the feds can muster the war chest to in theory try every case. The states simply don't have funds to do so. They have to use plea-extortion bargaining to coerce convictions. I am making the argument that justice is tied to money, there is no denying it. Mandatory minimums are part of the problem with excessively long terms that seem disproportionate to the offense but that is also in concert with the massive amount of overcharging by prosecutes. Being charged with a number of permutations of the vary same crime leads to over long sentences where common sense judging would result in a lesser term of punishment.

The problem is very few defendants have the money to hire the top-gun defense lawyers and even if they were to prevail all but the wealthiest would find themselves bankrupted. The state really can't afford to prosecute every felony with a jury trial. The public avoids jury service like the plague but wants criminals in prison and most criminals are just simply too stupid or amoral to be rehabilitated. This maybe the only somewhat workable system available for our culture, horrible as it is.


Then the only option is to remove mandatory minimums. But like government that enacts taxes, they loathe repealing any once instituted. Just like the judiciary and mandatory minimums, it will not go willingly into the night. They will fight tooth and nail to prevent the 20 pound judiciary hammer from being taken away from them.

Synova said...

I thought "mandatory minimums" was something about how many guns you could have.

The mistake made me smile.

(It's finals week... my brain is semi-functional.)