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Andrea Lyon Headshot

Sense and Sentencing

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There have been some recent moves by the Obama administration to lower sentences by the federal government -- such as reducing (although not eradicating) the crack/cocaine sentencing disparity. What was a 100 to 1 disparity is now "only" an 18 to 1 disparity. I have written before about my position that we should decriminalize drugs, and won't repeat those thoughts again here. I have also talked about the prison industrial complex. The need for sentencing reform -- both legislative and ideational -- has never been so acute. Simply put, this isn't working and we can't afford it.

What I think people not involved in the criminal justice system don't know is how very difficult sentencing is to do well, and how few tools there are to do it with. The way it works -- leaving aside the death penalty -- is that a person is arrested for a crime, and if he or she is ultimately convicted either after trial or as a result of a plea of guilty, a judge must impose a sentence . The crime he has been convicted of has a range of sentences available under the law -- some offenses may be punished by prison only -- usually a mandatory minimum sentence -- and others have a range of options including probation, work release, home confinement and the like, as well as prison.

A judge has to try to fashion a sentence that takes into account the seriousness of the offense, the harm that has been done, the criminal history -- or lack thereof -- of the defendant and mitigating evidence. Mitigating evidence might include psychological or physical challenges the defendant has, situational pressures (we view a thief who steals food to eat differently than one who steals just for profit for example), restitution paid or promised and perhaps the lesser role this particular defendant played in the offense.

This is a difficult job as I mentioned, but one which judges are meant to do -- and one which judges have been kept from doing by the plethora of draconian and mandatory sentences passed by legislatures without really thinking them through. In other words, while a judge may feel -- rightfully -- that a particular defendant is deserving of a harsh sentence, but another deserving of leniency, that judge has had in recent times very little control, forced to operated within statutory schemes that were poorly conceived, expensive and often just plain foolish. What has been happening to our penal system is that the charging decision had become the de facto sentencing decision. For example, in the federal system the choice of charges regarding drugs determines whether the defendant is facing 10 year minimum or more of a range of sentencing. The United States Supreme Court has said that the rule of the sentencing guidelines (they are kind of a slide rule method of sentencing -- how many points do you get for the offense, the background of the defendant, add it all up and sentence accordingly -- no matter what else might be true) -- a rule that used to literally tie the hands of judges has been relaxed so that they are only advisory now (Blakley v. Washington), nonetheless, this one size fits all way of sentencing persists, as likely because judges are used to it as anything else.

We need to be smart on crime. Serious violent offenders need to be shut away from us for our safety -- no one would say otherwise, but the vast majority of those in prison, doing huge amounts of time at inordinate expense -- financial to us, personal to them and to their communities -- would be better served by vocational and therapeutic interventions, and we should trust our judges to be able to tell who belongs where. Prosecutors and those of us representing the defendants need to give judges enough information to work from, we should adequately fund alternative sentencing, and pass legislation which makes these alternate choices first, not last. It is encouraging to see that the Obama administration and some states are moving in this direction, and we should support their efforts. We have a much better chance of rehabilitation with someone who has been treated and trained than someone who has been incarcerated. It is time to move from the draconian to the sensible.

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