Legislation mandating additional reductions

18-Jan-2016 07:06

Two bills with bipartisan support are currently under consideration.

Senators Patrick Leahy (D–VT) and Rand Paul (R–KY) have introduced the Justice Safety Valve Act of 2013,[2] which would apply to all federal mandatory minimums.

Mandatory minimum sentences have not eliminated sentencing disparities because they have not eliminated sentencing discretion; they have merely shifted that discretion from judges to prosecutors.[25] Judges may have to impose whatever punishment the law requires, but prosecutors are under no comparable obligation to charge a defendant with violating a law carrying a mandatory minimum penalty.[26] As a practical matter, prosecutors have unreviewable discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence, and over whether to engage in plea bargaining, including whether to trade away a count that includes such a law.

Moreover, even if a prosecutor brings such charges against a defendant, the prosecutor has unreviewable discretion whether to ask the district court to reduce a defendant’s sentence due to his “substantial assistance” to the government.[27] What is more, critics say, unbridled prosecutorial discretion is a greater evil than unlimited judicial discretion.

Prosecutors are not trained at sentencing and do not exercise discretion in a transparent way.[28] Critics also claim that prosecutors, who stand to gain professionally from successful convictions under mandatory minimums, do not have sufficient incentive to exercise their discretion responsibly.[29] Indeed, nowhere else in the criminal justice system does the law vest authority in one party to a dispute to decide what should be the appropriate remedy.

That decision always rests in the hands of a jury, which must make whatever findings are necessary for a punishment to be imposed, or the judge, who must enter the judgment of conviction that authorizes the correctional system to punish the now-convicted defendant.[30] Furthermore, they contend, mandatory minimum sentences do not reduce crime.

In many drug operations, if a low-level offender is incapacitated, another may quickly take his place through what is known as the “replacement effect.”[32] In drug cases, mandatory minimum sentences are also often insensitive to factors that could make incapacitation more effective, such as prior criminal history.[33] In theory, mandatory minimum sentences enable the government to “move up the chain” of large drug operations by using the assistance of convicted lower-level offenders against senior offenders.Mandatory minimum sentences are the product of good intentions, but good intentions do not always make good policy; good results are also necessary.

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