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Mandatory Minimum Cop-Out

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On Monday, Chicago Mayor Rahm Emanuel, Police Superintendent Garry McCarthy, and Cook County State's Attorney Anita Alvarez announced their support for legislation to impose mandatory minimum prison sentences for gun crimes. The move comes just months after Chicago closed the book on its deadliest year in decades; in 2012, there were 506 homicides committed in the Windy City, a disappointment after three years of decline. While the instinct to lock up dangerous, gun-toting criminals is a good one, the proposal unveiled Monday is a cop-out.

To begin with, even the name "mandatory minimum" is false advertising. Mandatory minimum sentencing laws are neither mandatory nor do they impose minimum sentences. Under a truly mandatory sentencing law, everyone arrested for the same offense would end up receiving the same sentence if convicted. But that's not how mandatory sentencing laws work. They simply transfer the discretion that a judge would have to impose an individualized sentence (based on relevant factors, such as a defendant's role in the crime, criminal history, and likelihood of reoffending) and give that discretion to prosecutors.

Under mandatory sentencing laws, prosecutors have control over sentencing because they have total and unreviewable authority to decide what charges to pursue. They can decide to give a deal to someone whose cooperation they think is helpful and, as a result, help them to avoid a mandatory sentence. Or prosecutors can charge someone with a lesser offense to avoid a mandatory minimum sentence when they recognize, contrary to what they will admit in their press releases, that the minimum sentence would be ridiculous in some cases.

Look at some recent examples from New York City, a place where Police Superintendent McCarthy served previously, and the purported model for the Mayor Emanuel's new proposal.
If New York's gun law were truly mandatory, Ryan Jerome and Meredith Graves would be two of many tourists crowding state prisons since both were arrested for inadvertently carrying illegal guns. Jerome's case attracted the most attention because he was a former Marine who was "caught" after asking a security guard at the Empire State Building where he could store his gun while visiting the popular site. In the end, he and Graves were happy to take deals that kept them out of prison. Neither was the type of offender New York legislators sought to target with its 3½ year mandatory minimum. Luckily, the mandatory minimum wasn't mandatory.

If you think Chicago will be different, think again. State Attorney Alvarez assured the Chicago Sun-Times that her office had no intention of treating everyone the same. Asked if they would prosecute all gun felons the same, i.e., charging those without a criminal background, she said, "You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they're in the system." In other words, state judges - elected by the same people Ms. Alvarez represents -- are not permitted discretion in sentencing because her office knows best and will exercise its discretion.

Minimum is not an accurate description of the proposed mandatory gun law, either. What Mayor Emanuel and the others are proposing for a minimum sentence -- three years for illegal gun possession -- is longer than many defendants receive today. Perhaps more offenders should get three years. But to simply choose a sentence that exceeds the average sentence imposed today and say that it should be the new floor is a random and baseless way to make policy. Further, oversentencing offenders isn't free. Illinois's prisons are already dangerously overcrowded and costing state taxpayers $1.7 billion to maintain.

To support their new proposal, the mayor and others point to the murder rate in New York, which has dropped to its lowest rate since 1963, and attribute it to the mandatory minimums championed by New York City Michael Bloomberg in 2007. What they do not say is that the murder rate had dropped for 17 years before that law took effect and already was at its lowest rate since 1963. Yes, the rate dipped even further, but it's not clear how much credit Bloomberg's mandatory minimums deserve. New York police officials credit other factors, such as their "hot spot" enforcement strategy. Looking elsewhere, how does one explain the historic drop in violent crime in cities like Los Angeles and Houston where no new mandatory sentences were enacted?

Chicago's own track record demonstrates the harm in reading too much into crime statistics. The state's current mandatory minimum for illegal gun possession was implemented in 2011. The next year, city homicides rose more than 16 percent. It would be as ridiculous to attribute that rise in homicides to the mandatory sentencing law as it would be to pretend another mandatory law will reduce it.

Chicago's residents deserve real solutions to address city violence. New mandatory minimums are not the answer.