Layla's Dark and Foreboding Weblog

Note: This is a research paper I did. I wanted to put it up today, because on my way to work this morning I found out that Texas won! Granted, we won the #1 spot in the most executions, but hey, any port in a storm, right? Anyway, read on...

Oh, and this is being posted without any works sited or bibliography (merely for space), so if you'd like more info on and facts presented here, please feel free to email me with your questions.

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Has Mandatory Sentencing Overwritten Constitutional Justice?
by Layla McCabe

Everyone knows the phrase “Three-strikes and you’re out” in the baseball sense. It is also known in the United States Penal System as a method of mandatory sentencing. Though the definitions of the words “three” “strikes” and “out” vary from state to state, the intent remains the same: repeat offenders will be subjected to harsher penalties than in the past. But has mandatory sentencing given way to unfair justice?

In the United States, 24 states have enacted mandatory sentencing laws under the “Three-Strikes” statute. The general idea behind these laws is that perpetrators of serious offenses should be removed from society after committing a certain number of crimes. While most states with this legislation adhere to a “three-strike” rule, a few need only “two-strikes” and some as many as “four-strikes” to fall under this sentencing guideline.

“Strikeable crimes” vary from state to state. For example, Virginia has a textbook classification of “Three-Strikes”: murder, kidnapping, sexual assault, or conspiracy to commit any of the above will result in mandatory life in prison with no parole eligibility. Not all states share the same statutes, however. In South Carolina, embezzlement and bribery are added to the list – and a “Two-Strike” law on top of it.

Supporters of mandatory sentencing point out that by the mid-1990’s crime dropped in all major cities by at least 10% or more , and in California alone crime has dropped 45% statewide in the 10 years since the law went into effect. Many early supporters of mandatory sentencing legislation, however, have changed their views on the subject. Former Governor of Michigan, William G. Milken, signed into law a bill – the “650-lifer law” – that created the harshest mandatory drug sentencing laws in the United States. The law provided that anyone with over 650 grams of cocaine or heroin – whether it is a first offense or not – shall receive a mandatory life sentence. Milken, governor from 1969-1982, has “…since come to realize that the provisions of the law have led to terrible injustices and that signing it was a mistake – an overly punishing and cruel response that gave no discretion to a sentencing judge, even for extenuating circumstances.” Milken went on to point out that people such as Karen Shook, a mother of three, are serving time in prison merely for being “heavily addicted” making her an “easy mark” for a sting operation. Shook was charged with delivery and conspiracy to deliver cocaine when she introduced undercover officers to her dealer. Both charges carried a mandatory ten-year sentence, to be served consecutively. By the time her trial started, she had already completed a rehab program, assisted police and was so remorseful that even the officers who arrested her urged a lesser sentence. The judge tried to depart below the mandatory sentence, but it was reversed on appeal to the 20-year mandatory minimum. Her children will grow up without her, while residents of Michigan will spend more than a half a million dollars to keep her there.

Sexual assault is considered a “strikeable crime” in almost every state with mandatory sentencing regulations. Studies show that sex offenders are four times more likely to be repeat offenders than any other group, and more than half of those offenders are imprisoned on child molestation charges. In California alone, the “Three-Strikes” law has been reported to have spared Californians about 340,000 crimes per year. But contrary to those numbers, almost 60% of those incarcerated under this law are behind bars for non-violent offenses. California has also seen a significant increase in “strike cases” staying in the court system 41% longer than non-strike cases, with a higher likelihood of the case going to trial, leading to 70% of the jail population being held in “pre-trial” status.

A factor leading many police and other law enforcement officials to denounce the “Three-Strikes” law is the psychological state of the criminal while in the act of committing his or her “last strike”. Criminals are more likely to be incited to act violently while being captured or pursued. Knowing that there is “no way out” makes the criminal lose hope, some even resorting to violence against an officer because he or she has nothing left to lose. Prison officials fear that having no incentive to behave well while in prison leads to higher incidents of prisoner violence against each other and against prison guards. Michael Quinlan, director of the Bureau of Prisons under Presidents Reagan and George H.W. Bush says about mandatory minimums, “The things that matter to other inmates just don’t matter to them. You can’t get them to behave or cooperate because they know they’re not going to get any time off for good behavior, or have to worry about qualifying for parole.”

According to John J. DiIulio, a professor of public affairs and politics at Princeton University, “94% of state prisoners have committed one or more violent crimes or have served a previous sentence in jail or on probation”. At first glance, this statement seems to spell out clearly why we need such mandatory sentencing in the United States. The statement, though, is ambiguous. To say “94% of state prisoners have committed one or more violent crimes” would be reason enough to enact harsher, stronger sentences, however “…or have served a previous sentence in jail or on probation” is an entirely different story all together. Of all California’s “Three-Strikes” convictions as of 1996, 0% were for murder in the first degree, while 18% were for burglaries (the “and you’re out” sentence averaged 33.6 years) and 11.9% were from drug possession (averaging a 27.2 year sentence). Supreme Court Justice Anthony M. Kennedy has said “Our resources are misspent, our punishments too severe, our sentences too long.” Judge Vincent L. Broderick of the Judicial Conference of the United States has also voiced “the complete and unmitigated opposition of the federal judges of this country to mandatory minimums.”

By the end of 2001, over 5.6 million adults in the United States had served time in either State or Federal prison. At that rate, 6.6% of babies born that year will go to prison at some point in their lifetime. The number of sentenced inmates in 1980 hit 139,000 while in 2002, after almost nationwide enactment of mandatory sentencing laws, the number reached 476,000. In the Federal prison system, nearly 60% of convicts are there for drug offenses. Most of these offenders are what are known as “low-level” offenders, such as mules – literally a drug-carrying vessel - and many have no prior criminal records for violent offenses. These offenders have very little to offer by way of plea bargaining, and receive the maximum sentences, while the “high-level” drug offenders (major traffickers and “kingpins”) generally get a reduction in sentencing, thus beginning the cycle again.

Studies show that under the “Three-Strikes” law, California takes in 1,200 prisoners annually, which means that by the year 2026 there will be about 30,000 inmates serving sentences of 25 years to life. The average age of a “three-striker” is 36 years old, so by 2026, we will also start seeing the effects of having an aging population in prisons, and all of the healthcare costs associated with this.

While drug offenses take up a significant portion of the “Three-Strikes” population, there are other disproportionate punishments that make up the bulk of these cases. For example, Arthur Gibson, a California man, was sentenced to 25 years to life for crack possession in 2000, though his last conviction had been in the 1960’s. In July of 1997, a homeless man from Los Angeles tried to pry open a church kitchen door. He had regularly been fed by a priest there, and went back in hopes of seeing the same priest. He was sentenced to 25 years to life.

The idea of mandatory sentencing became popular in the 1980’s after President Ronald Reagan declared a “War on Drugs”. Many lawmakers jumped on board, only to jump ship a few years later when they were confronted with the facts. In the 1990’s, the fervor started again after an onslaught of violent crime, especially that of the abduction and murder of Polly Klaas. The nation was outraged to find that her murderer had been a repeat offender, let out into society to commit another heinous crime. What the voters didn’t realize was that the “Three-Strikes” law they voted for did not only address violent offenses, but that three of the four qualifying crimes it covered were in fact non-violent. Mark Klaas, the victim’s father, said “In the depth and despair which all Californians shared with my family immediately following Polly’s murder, we blindly supported the initiative in the mistaken belief that it dealt only with violent crimes. Instead, three of the four crimes it addresses are not violent.”

Because so many cities in the United States have seen a trend in crime reduction in the last decade, it would seem natural to thank harsh mandatory sentencing for the decline. The fact is, however, crime was already on a decline in the early 90’s. Mandatory sentencing and the “three-strikes” laws had little, if anything, to do with it. Too many casualties in this war are the innocent, the gullible and the naïve. 74% of strike-enhanced sentences are handed out to minorities and to the poor, showing again how unfairly these punishments are doled out.

With Federal and State judges refusing to hear drug and other non-violent cases in their courts that fall under mandatory sentencing guidelines, it’s no wonder these prisoners and their advocates are calling for sentencing reforms. Leaving the court with no leeway to determine proper punishment in even the most extenuating circumstances makes the judge nothing more than a prop in the courtroom, a presence there to merely lend an air of authority. The mandatory sentence has usurped our constitutional right to mandatory justice.