The View From Here

Push Back on Mandatory Minimums

Costly, draconian consequences of prosecutorial power don’t serve justice

by Olcott Thompson, OCDLA President

From the August/September/October 2018 issue of The Oregon Defense Attorney

I am infuriated by what is happening in Washington, D.C. but I am not sure what most of us can do — today — about that. The best thing to come out of DC recently is the Hammonds’ release from prison. While most people have focused only on the aftermath of the resentencing of father and son, the significance of their release is that the five-year mandatory minimum sentence the court was required to impose was overturned. Whatever any of us think about what the Hammonds did, the mandatory minimum sentence was and is the problem. In Oregon state court, we have many mandatory minimum sentences for many felony crimes because of the passage of Ballot Measure 11 (ORS 137.700).

The problem is the prosecution chooses the crime charged. The prosecutor’s ability to charge a crime that carries a mandatory minimum sentence upon conviction gives the prosecutor more power than anyone else, including the judge. Upon a conviction, a judge is bound to impose the mandatory minimum sentence in most cases. The judge rarely has discretion to do otherwise. Thus defendants faced with a choice between going to trial and being convicted and sentenced to a mandatory minimum sentence versus pleading guilty to a non-mandatory minimum crime — even with imposition of a heavy sentence — will choose the latter because of the risk. Mandatory minimum sentences are massive hammers that force people to take plea deals they shouldn’t to minimize time in prison.

My head hurts from banging it against the wall about mandatory minimum crimes and the prosecutors who think sentences should start at five to six years for everything and at least twice that time for any sex crime. The defendant and who she is does not matter, just the minimum sentences that can be imposed depending on what charges the prosecutor decided to get the grand jury to issue.

So what do we do about mandatory minimums?
It appears many of the people currently running the federal government are business people looking for short-term gain, no matter the long-term consequences. After all, they will not be around to deal with the consequences. This at least in part explains why immigrants are unwanted: they allegedly take current jobs from people (who are not interested in the job) and it costs money to help them be part of American society and to educate their children. That is a short-term cost. But long-term immigrants are what has made America great. The current president’s grandparents were immigrants. This short-term view also explains the administration’s stances on current environmental issues. Grab money now from land, air, and water rather than taking care of them so they can sustainably provide resources for generations to come.

What does this have to do with criminal defense?
While we must look at what happens to our clients short term, e.g., finding the best resolution we can negotiate for a defendant, we must also look at what will help the client in the long run. No defense lawyer wants to set up a client for failure. No one really wants repeat clients. It is better to have our clients succeed and never need us to defend them again than to have them come back with more charges.
The same is true with the system as a whole. We always need to keep an eye on both the short term and the long term. Short term: preserve issues for appeal, think of new ways to challenge injustices, make sure the record is complete, lay grounds in the courts and legislature for change. We must continue daily to push against wrongheaded prosecutions and sentences.

Long term, we need to continue to point out why mandatory minimum sentences are wrong: that when sentencing someone, a judge should have discretion to fashion a sentence that fits the person and what he did. We need to continue to point out that many people sentenced under Ballot Measure 11 could essentially receive the same sentence under sentencing guidelines — something the sentencing judge is in the best position to decide.

The biggest problem with mandatory minimum sentences in Oregon is that prosecutors and the public are now so used to them they think the sentences are reasonable minimum sentences, just a starting point. They think a judge should be able to exceed those sentences, while we know that in many cases the minimum sentence is also the maximum sentence.

So what do we do? We look at the long run. We continue to educate the public, legislators, and judges in particular, of the high cost of imposing these sentences. Remember, most judges and prosecutors never practiced before Ballot Measure 11 sentences existed. We must remind everyone of the “collateral” consequences: destroyed families due to the loss of a parent, the high cost annually of incarceration, the cost of the state having to support the single-parent family, etc. Fortunately, Oregon legislators have been listening and have created some alternative sentencing provisions. Even at the federal level there is recognition that there are problems with minimum sentences and disparities in how those sentences are imposed.

We need to continue to educate everyone. Education will take time, but more and more people are listening. It took 30 years to open up the grand jury charging process. Hopefully it will take less than 30 years to reform sentencing.
Keep the faith. Minimum sentences are minimums only because that is how they are labeled. They really are draconian sentences that cost the state as a whole far more than any sentence should. Minimum sentences result in warehousing people just to punish them. Keep pushing back and one day they will fall.

Meanwhile, come to seminars to learn how to push back. OCDLA has at least one seminar a month September through January. Come to one, two or all. The coast in September is one of the best times to be there, Hawaii in November is great, and what is better than the Benson in December? Hope to see you at one.

And don’t forget to vote in the November election!