Williams 1

Jeff Williams
Prof. Becker
English 102-05
06 April 2015
Final Draft Assign.
Untie the Judges Hands

Imagine you are a fifty one year old man and you have not eaten in two days,

and you resort to theft. Stealing a fifty cent package of doughnuts from the corner store.

You are at your home when suddenly officers burst in and arrest you. Then during your

court proceedings the prosecutor brings up two prior convictions from thirty years earlier

so he can charge you under mandatory sentencing laws. This means a life sentence

without parole over a fifty cent pack of doughnuts. Though this scenario sound too

outrageous to be true, it happened to Robert Fassbender, a California man. States

Attorney Yraceburn stated, Because of his (Fassbender) history of recidivism and the

number of crimes he's been convicted of, Fassbinders case warranted prosecuting as

a third-strike case. (n.p.)

Advocates believe these laws are no longer being used for their purpose and

have evolved to include any defendant that has warranted prior felonies. These forty

year old mandatory sentencing laws which were created in defense against New Yorks

heroin problem, have always been controversial in whom they were being used against,

as well as the assigned lengths of incarceration. While prosecutors resist changes to

these laws, the United States should reconsider the policies due to evidence that it has

become a drain on the Federal and State prison system budgets, as well as a limitation
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of the Judges ability to render a just sentence for the crime committed, and has no

proven evidence of lowering the crime rate as initially intended.

In the early 1980s the United States declared an all-out war on drugs and over

the past several decades the United States of America has traveled down a dark road

when it comes to sentencing for drug offenses. One of the major tools that they used in

this war on drugs is the mandatory sentencing laws. These laws were enacted in 1984

to help combat and get violent drug dealers off our streets. What these laws did was set

a mandatory minimum sentence that stated if you are arrested for fifteen or more grams

of crack cocaine, you would be charged as if you had five hundred grams of powder

cocaine thus getting you a minimum of a 10 year sentence in prison. If you are arrested

for growing 100 marijuana plants under these draconian laws you would be charged as

if you were possession of 100 pounds of marijuana which carries a minimum of a five-

year sentence.

In her book A Rage to Punish judge and author Lois Forer wrote about the

unintended side effects of these laws are that many low-level nonviolent first time

offenders are receiving huge amounts of time in prison, while the large drug dealers that

these laws were designed to get off our streets are being allowed to make deals by

turning states evidence against their former partners. In consequence the prosecutor

has the ability to charge them with a lesser crime and along these lines they receive a

lesser prison sentence. Whereas the young man growing 100 marijuana plants in his

basement for him and his friends the smoke that has no one to turn states evidence

against has to serve every single day of his time without the possibility of parole. (167)
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While the laws were intended to deter crime, in reality the crime rate in the United

States has failed to drop because of these laws. When these laws were first initiated in

1984 the reasoning behind them was to capture drug lords and use these tough stiff

sentences. The only thing that these sentencing guidelines have done is dug into

taxpayers pockets for the rising cost of keeping these nonviolent low-level offenders

inside the prison system, with statistics such as an original nine billion dollar operating

cost in 1985 to well over fifty billion dollars a year. The United States of America should

change the mandatory minimum sentencing laws, they have proven to be ineffective

and costly.

With the economy in the turmoil that it is in America cannot continue to support

these sentencing guidelines. The article Mandatory Sentencing declares that the laws

are becoming a huge drain on the Justice Bureaus budget, and in 2012 the United

States had far beyond more people incarcerated than any other country. Most of these

prisoners are low level drug offenders sentenced under mandatory sentencing

guidelines with a cost draining on American taxpayers $6.8 billion a year, as of 2012.

These costs do not seem to have a ceiling and continue eating up about twenty five

percent of the federal justice systems yearly budget. (17)

Mandatory sentencing is such a huge drain on the federal prison systems

budget, but according to Mortimer Zuckerman it is the states that are eating the biggest

chunk of this foul tasting pie. States are spending over than fifty billion dollars a year to

keep nonviolent drug offenders incarcerated, this is an increase from the nine billion

dollars in 1985. Zuckerman states that Gov. Rick Perry of Texas rejected a proposal to

build new prisons in Texas in 2007. Perry stated that instead of putting these nonviolent
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drug users in prison the State judicial system should get them help for their addictions.

By putting them on probation and getting them in alternative treatment programs. This

move has had a huge effect on the States budget and offered an alternative to the

wrongful use of these laws. Not only has it lowered inmate population, but is has cut

nearly two billion dollars from the states prison deficit. Since implementing the reforms

and easing the mandatory sentencing guideline prison population has dropped by

twenty percent and Texas now has its lowest crime rate since 1968. Mandatory

sentencing has cost the American taxpayer billions in state and federal tax revenues to

keep low level drug offenders in prison for extended periods of time. Not only does it

cost billions, but it has added to inmate recidivism rates. After spending ten years in

prison for a possession charge many inmates dont have the skill set to blend back into

society, so many become repeat offenders. Many states are beginning to follow the

example set in Texas as far as easing sentencing guidelines. Several states are now

opting for treatment programs and probation rather than these lengthy prison

sentences. (n.p.)

The scariest thing about mandatory sentencing is that they seem to target people

according to their skin color. In the United States, if you are a black male, you have a

one in nine chance of being behind bars by the time you reach the age of twenty.

Michigan State Professor of Law Sonja Starr stated that African American men are

incarcerated at nearly seven times the rate of white men who are arrested on the same

charges. Starr conceded that certain gaps between white and black incarceration rates

can be due to social economic conditions, as far as criminal behavior is concerned. But

many of these discrepancies can be attributed to how the criminal justice system treats
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men of color. Starr has suggested that the federally mandated sentencing laws need to

be reformed to address these discrepancies. For decades now racial inconsistency in

sentencing has been the subject of debate among lawmakers. With the Supreme

Courts decision in United States v. Booker makes the federal sentencing laws merely

advisory guidelines. Decisions such as these have been the subject of much empirical

debate for a decade, this research has begun to shape sentencing policy. (4)

Another source reports the same information, Demetria Irwin reports that

according to the New York Civil Liberties Union (NYCLU), concedes these harsh drug

laws have affected Blacks and Latinos far more than Whites. The prison population in

New York State shows that ninety seven percent of all defendants prosecuted for drug

offenses are Black and Latino. Robert Perry stated that The racial and ethnic

disparities among the population incarcerated for these charges are not the reflection of

a higher rate of offenders among Latinos and African Americans, but a consequence of

unjust treatment of African American and Latinos by the criminal justice system, stated

the NYCLU in a prepared statement. (6)

Many proponents of changing these harsh drug laws have countless examples to

base their reasoning on. Neil Steinberg, wrote about several in an article in Rolling

Stone. One case that Steinberg cited was that of Tonya Denise Drake, a twenty eight

year old mother of four, who met a man in a parking lot and was paid $47.40 to mail a

package for him. This parcel contained ten pounds of marijuana. Since it was sent

through the United States mail she fell under federal sentencing laws. She received ten

years in prison without the possibility of parole. Another case cited was that of forty four

year old carpenter Mike Irish, Who helped unload a truck of what he believed was
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furniture, actually contained hashish. For three hours of work Mr. Irish received a twelve

year sentence which he is still serving. Over 35 years into our nations infatuation with

mandatory sentencing laws, we are still hearing horror stories such as these. The

federal prison system if running over maximum capacity and has been since these

draconian laws were implemented. Nearly sixty percent of all federal inmates are there

due to drug charges. Over half of these prisoners were first time offenders with no prior

record. The original purpose of mandatory sentencing was to bring liberal states back in

line with the federal governments war on drugs. But congress took it to the extreme by

mandating that a person arrested with a gram of LSD would receive a five year

sentence, under these sentencing laws if you are caught growing one hundred

marijuana plants the court must view this as if you had a one hundred kilos of marijuana

which carries a five year minimum sentence. (n.p.)

In an article in the Drake Law Review attorney David Briese states that the

mandatory sentencing laws are unjust and against a person's constitutional rights. In

this review justice Stevens a Supreme Court judge is quoted A judge has always had

broad discretion in imposing a sentence within the statutory range. But since the

mandatory sentencing laws went into effect many judges feel that their hands are tied.

Consequently hindering them in their ability to hand out a sentence that is fair and just

for the crime committed. Under the mandatory sentencing laws the sentences are set in

stone regardless of the nature or circumstances of the crime. (607).

Attorney David Briese states in the Drake law review asserts that the mandatory

sentencing laws were mainly put into effect to help prosecutors obtain confessions from

drug kingpins. These laws were worded in such a manner that the additional people a
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defendant turned over to the police or turned states evidence against determines if they

receive a lighter sentence. So the number of individuals you turn in and help convict the

lighter the sentence you receive. Therefore the large drug dealer who brings tons of

illegal drugs into our country could turn on the very people he is selling his drugs to (our

kids) hence receiving a break on the time he is sentenced. The sentence he receives is

gaged by how many people turns in. Many have had their sentences cut in half solely by

the number of people they turned state's evidence against. Mr. Briese also goes on to

state that the poor hippie who's growing a hundred plants in his own basement for his

own use to simply smoke among him and his friends will receive a charge as if he had

one hundred pounds of marijuana. With no one to turn over to prosecutors this man will

be forced to serve the entire twenty five year sentence without possibility of parole

under mandatory sentencing laws. (609)

University of Minnesota law professor Michael Tonry, has stated in many articles

that the mandatory sentencing laws were written during a very turbulent time in

America's war on drugs. And that America needs to take a long hard look at the

sentencing guidelines as they are having unintended consequences. Not only do they

have the prison costs in United States skyrocketing to well over fifty billion dollars a year

on the state level, but they are also putting very low level drug users in prison for

extended sentences. Sentences that clearly do not fit the crime. Tonry also writes in his

many articles that not only do these laws seem unjust, but they have also made it so our

judges cannot pass down sentences that fit the crime. As a consequence putting all the

power in the states attorneys hands as far as sentencing. Where in years past the
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judges discretion in the level of culpability of the person charged with the crime was

considered when a defendant was sentenced. (506-524)

The magazine the Congressional Digest printed an article that declares as of

2012 these laws have come under heavy scrutiny advocates for reforming these tough

sentencing guidelines are coming from both political parties like Senator Patrick Leahy

and Senator Rand Paul who in 2013 introduced the Justice Safety Valve Act. This

would give sentencing judges discretion to depart from mandatory minimum sentencing

guidelines. Another bill The Smarter Sentencing Act (S.1410) was introduced by

Senators Dick Durbin (IL-D) and Mike Lee (UT-R) the same legislative year that the

Safety Valve Act was introduced. The bill S.1410 would expand on the Safety Valve Act

by reducing the minimum sentences for certain drug offenses as well as repairing the

discrepancies in the way that Crack cocaine and powdered cocaine are prosecuted.

(n.p.)

Defense Attorney Darren Gelber in an article spoke about how the mandatory

sentencing debate has reached the highest authority in the land. The Obama

Administration seem to be following suit with this trend in easing these tough laws. The

Attorney General (AG) Eric Holder sent out a memo to all federal prosecutors. Advising

that in Alleyne v. United States, 133 S. Ct. 2151 in order to trigger the stiff mandatory

sentencing guidelines for an offence, certain things must be found by a jury or admitted

by a defendant in a guilty plea. Some of the criteria that they must consider now, was

the crime a violent one or was a weapon used in conjunction with committing the crime.

Other factors that must be considered are, was the defendant the leader of a drug

trafficking organization or was he/she just a user. As well as the persons criminal
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background do they have any prior convictions and were the priors and the new charge

the same type of felony. If these factors as well as others are met then the federal

prosecutor may consider pursuing a mandatory minimum sentence. (n.p.)

It seems that only Prosecutors want to keep these harsh laws. Douglas Berman

an Ohio State Law professor claims in his article A Saner Approach to Sentencing.

Eludes to the fact that mandatory sentencing laws have turn the legal bench so to

speak, by putting the power of a sentencing judge in the hands of prosecutors. Thus

allowing them to get more convictions by charging defendants under these laws that

carry huge amounts of prison time, and then offering them a plea bargain. This looks

great on a prosecutors record thus they can claim on election years that their policy of

being tough on crime has got criminal off city streets. Furthering their political careers

and feeding an epidemic of plea bargaining that has our prisons full to over flowing and

reduced our judges to little more than bench warmers. (n.p.)

Rachel Elise Barlow a New York university law professor wrote in a law review

that mandatory sentencing has removed one of the most crucial parts of the American

judicial system which is that of the jury. These laws have changed the criminal court

system by making it little more than a administrative process. With police, prosecutors,

and judges running the show with little involvement of the people. Even though the jury

was meant to be the check and balances that keeps our court system in check in the

age of mandatory sentencing one of the most important aspects of our judicial system

has been put on the back burner in favor of plea bargaining to avoid heavy sentences

under these harsh sentencing laws.

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In conclusion it seems that America needs to take good long look at mandatory

sentencing laws. These laws have clearly not worked as intended. They were designed

to combat the huge influx of crime back in the late 80s and 90s during the gangland

crack and cocaine wars that tore through almost every inner city neighborhood in

America. But in reality what these laws have taken many nonviolent offenders and

placed them in cages for tremendous periods of time. Overcrowding our prisons and

costing tax payers billions that America can clearly not afford. It is time that we tell our

countries leaders that these laws need to be reformed or abolished.

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Work Cited

Barkow, Rachel E. "Recharging the Jury: The Criminal Jury's Constitutional Role In An Era Of

Mandatory Sentencing." University Of Pennsylvania Law Review 152.1 (2003): 33-127.

Academic Search Complete. Web. 13 May 2015.

Berman, Douglas A., and Harlan Protass. "A Saner Approach to Sentencing." Wall Street

Journal May 2013: Academic Search Complete. Web. 13 May 2015.

Briese, David. "The Ex Post Facto Clause and the United States Sentencing Guidelines: The

Guidelines Remain Mandatory In Defiance Of Booker." Drake Law Review 2012 60.2:

605-651. Academic Search Complete. Web. 15 Feb. 2015.

Forer, Lois G. A Rage to Punish: The Unintended Consequences of Mandatory Sentencing

New York: Norton, 1994. Print

Gelber, Darren M. "What the Holder Memo on Mandatory Minimum Drug Sentences Means."

Criminal Litigation 2013 13.4: 7-9. Academic Search Complete. Web. 15 Feb. 2015.

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