Mandatory Minimum Sentences and the Separation of Powers


I had lunch the other day in Maine with activists seeking to reform the penal system. More and more Maine residents are finding themselves behind bars, and there are seemingly fewer resources each year to ease the burden of caring for inmates. If you divide the gross budget for the Maine penal system by the number of inmates in long-term custody, it costs the state $67,000 per year to keep inmates locked up. That's a lot of lobster.

The folks I talked to were focused on ways of making parole meaningful, a sensible idea. But I kept thinking about the great waste on the receiving end of the system: I learned that Maine is no different than most states. Judges grumble about the tendency of judges to create mandatory minimum sentences that eliminate judicial discretion at the sentencing phase.

State and federal statutes are chock full of crimes for which lawmakers have mandated that an offender must serve a given, minimum prison term. But there are cases when one size does not fit all. However, a judge is not free to disregard a mandatory minimum sentence. At least most judges conceive their job in this manner. Why, I asked at lunch the other day, weren't lawyers challenging mandatory minimums on state constitutional grounds?

I say focus on state law rather than federal. That's because in the federal system the appellate court and Supreme Court bench is so far removed from the reality of practice of law that decisions are doctrinally correct, but often pragmatically insane.

Each state, like the federal government, has a constitution that sets the metes and bounds of government institutions and defines the appropriate powers within each branch of government. The states are free to experiment with the police power and with how they organize their governments. Indeed, federal Supreme Court decisions often look to the states for guidance on open questions of federal law: how have the states interpreted and dealt with an issue that is before the Court?

Here's the nub of an argument about why mandatory minimums violate the separation of powers:

While it is the domain of the legislature to define crimes by way of legislation, it is the function of the courts to enter judgments and impose sentences. Among the factors a sentencing judge must consider when imposing sentence are the nature of the crime and the character of the defendant. Criminal jurisprudence suggests that judges consider four general factors when imposing sentence: the need to deter the individual defendant from breaking the law again; the need to deter others situated similarly to the defendant; the need to rehabilitate the defendant for his eventual return to society; and, punishment.

Certainly lawmakers have a role on weighing the severity of an offense, and nothing should prevent a legislature from specifying a mandatory minimum sentence it thinks appropriate in the typical case. But this mandatory minimum should serve as something other than an absolute that must be imposed in all cases. The court should be free to exercise its judicial function in assessing the character of the defendant, the extent of individual deterrence necessary and the goals of rehabilitation. It is often the case, especially in such cases as statutory rape, that there is no need for rehabilitation and the mere fact of an arrest is punishment enough. Yet often these defendants are whisked off to prison to serve mandatory sentences that no one really believes are fair and just.

Transform mandatory minimum sentences into rebuttable presumptions, and this problem disappears.

A rebuttable presumption is really nothing more than a point of departure. It operates in the law in such a way as to say: all things being equal, the presumption applies. However, the presumption need not apply in all cases. A person who thinks it should not apply can try to rebut it with evidence or argument. Thus, a five year mandatory minimum sentence in place as a rebuttable presumption would be the required sentence unless a judge concluded that the sentence was inappropriate.

Rebuttable presumptions honor the legislative policy of expressing lawmakers' sense of the severity of a crime and the deterrent and punishment required to send a message about what is and is not tolerated in a given community. However, rather than being an inflexible rule unreasonably applied, a presumption permits a judge to make case-specific rulings about why the general rule does not fit a particular case.

It seems to me that the climate is right to experiment with challenges to mandatory minimums on state constitutional grounds. State court judges groan privately about blind laws requiring unjust results. I say present these very judges with the chance to reclaim the dignity of the bench. It should take no revolution in judicial thinking or attitude to come to the realization that no man or woman can be justly or fairly sentences to a term of imprisonment by lawmakers unfamiliar with the defendant or his case. Mandatory minimums require just that. Justice should be blind, but there is no reason it should be dumb, too.

Comments: (2)

  • Small point. Maine does not have parole.
    Small point. Maine does not have parole.
    Posted on September 20, 2010 at 6:37 am by Anonymous
  • Actually, legislatures only got into the crime-def...
    Actually, legislatures only got into the crime-defining business about the middle of the 19th century. Before that, crimes were defined at common law and were few in number, something like 7 felonies and few odd misdemeanors.
    There was an argument, at one time, whether legislatures weren't violating the separation of powers by criminalizing things at all. Historically, that had been the business of the courts. The framers of the constitution would have perhaps seen it that way.
    When you consider the often absurd length, depth and breadth of penal codes, state and federal, it makes you long for those simpler days, doesn't it?
    Posted on September 20, 2010 at 6:03 am by Anonymous

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