Whoever still believes that people who commit crimes get away with a mere slap on the wrist just don’t know much about how the law works.
If anything, because of the largely unmitigated power of prosecutors, more people are serving sentences far longer than necessary in prisons that specialize in punishment rather than rehabilitation. I’m often shocked at how much time my clients face for relatively minor offenses, and how little control anyone but the prosecutor has over likely sentences.
This is, in part, the fault of mandatory minimum-sentencing regimes which prosecutors use to look at a person not as an individual, but merely as a compilation of his criminal history.
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I’ll give you an example. When someone pleads guilty to a misdemeanor, even as incidental as jumping a turnstile or shop lifting, if he’s later arrested for carrying a gravity knife, the prosecutor can “bump up” the charge to a felony thereby threatening him with a far greater sentence. The defendant will often plead guilty, even if he didn’t do it, rather than risk trial to avoid the higher number. It’s implicit in the system that anyone daring to challenge their charge by going to trial will, if they lose, be punished with a much higher sentence. Once someone pleads guilty to a felony, even if they get no jail time as a sentence, he becomes a “predicate felon.” That means if that same guy then gets arrested within the next 10 years for possessing felony-weight drugs (and “felony” weight is a lot lower than you imagine), because he’s a “predicate,” he’s looking at a hefty mandatory-minimum sentence, generally far greater than what’s fair or necessary for the crime.
The prosecutor holds all the cards. Once a person becomes a “predicate,” there’s very little a defense lawyer can do to mitigate the damages except beg for mercy or win at trial. Even in the most sympathetic of cases, the judge’s hands are tied. Only a prosecutor can determine what a defendant pleads guilty to if it’s less than the indicted count.
Most shocking for clients is when they have a combination of state court convictions, let’s say two minor drug-felony convictions in state court for which they received probation on one and three years on the other, and then they get busted by the Feds for possessing or selling drugs. (It could be the same drugs they already pleaded guilty to selling in state court.) With two prior felony convictions on different dates, they are now considered “career criminals,” a category that puts them into the highest number of years on the sentencing guidelines.
Even sentencing changes approved by Congress, like the recent effort to bring the sentencing numbers for crack cocaine more in line with the guidelines for powder cocaine, cannot by law apply to “career offenders.”
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These “recidivist” statutes are not fair. Yes, in the rare case where someone is truly dangerous and must be permanently kept away from society, the numbers make more sense, but so few of the people called “career offenders” fall into this category. Get caught for two sales of a low amount of drugs (even 1 bag) to an undercover at ages 21 and 22, and on your next sale, if busted by the Feds, you become a three-time loser.
Why three times? It seems so arbitrary. Why not consider the facts involved in the conviction rather than just the fact of the conviction before determining this most extreme sentencing category? Finally, if we’re going to punish people more harshly for being rearrested after already having spent time in jail, don’t we have a responsibility to help them reform? If we’re imposing stiff sanctions for recidivism, don’t we have a correlative obligation to help them along in that goal through job training, basic skills classes, anger management, and education?
Imposing these long sentences in the hopes of scaring people from committing more crime (i.e., deterrence) is not enough. Since most people in jail are uneducated, mentally ill, poor, and often illiterate, and because having a criminal conviction excludes them from a lot of work, these aspects of education in jail and remediating some of the collateral consequences of convictions must be addressed, and are more significant in stopping recividism than stricter sentences. It’s not only the humane thing to do, but might also be the most cost effective.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.