The one-size-fits-all approach to justice

Ira Eisenberg

April 02, 1993|By Ira Eisenberg

I READ somewhere that Janet Reno's mother wrestled alligators. That's really interesting, for by all accounts the new attorney general intends to take on some of the monsters of injustice let loose upon the land by her immediate predecessors.

Prominent among them are a host of mandatory minimum sentencing laws that have tied judges' hands, overwhelmed the prisons, vastly increased the cost of government and made a sick joke of justice in this country. If Attorney General Reno really intends to tackle the mandatory minimum monster, alligator wrestling may come to look easy by comparison.

Penal codes have historically specified maximum sentences so authorities couldn't use the law to lock up people they disapprove of and throw away the key. But the Anti-Drug Abuse Act of 1986 reverses that tradition; it requires those convicted of drug crimes to serve a minimum sentence. It and 60 or so other mandatory minimum laws passed by Congress in recent years, plus hundreds of like statutes enacted by state legislatures, are billed as get-tough measures aimed at big-time traffickers and violent criminals. But few in fact distinguish between so-called kingpins and minor miscreants.

Most troubling of all, mandatory minimums give prosecutors the awesome power both to accuse someone of a crime and to determine his sentence.

These laws strip judges of their time-honored ability to devise punishments that fit specific crimes and to temper justice with mercy where circumstances warrant.

Under this one-size-fits-all approach to justice, someone caught with 11 pounds of marijuana must serve at least 18 to 21 months, the same stretch of hard time federal sentencing guidelines say should be meted out to those convicted of manslaughter. A pound of cocaine requires a 5 1/4 - to 6 1/2 -year sentence, or about what an armed robber might serve if he inflicts permanent or life-threatening injury on his victim. One-seventh of an ounce of LSD -- and that includes the weight of the paper in which the drug is usually impregnated -- now carries the same stiff sentence as does conspiracy to commit murder -- 6 1/2 to 8 years.

U.S. District Judge William Schwarzer wept openly in his San Francisco courtroom four years ago when the law forced him to sentence Richard Anderson, an Oakland longshoreman, to 10 years for driving a drug dealer to a neighborhood Burger King. A hard-working family man with no criminal history and many years of steady employment, Anderson had been found guilty of giving someone he barely knew a lift in exchange for gas money.

Unwittingly, he became a party to the sale of 100 grams of crack cocaine to an undercover federal narcotics agent.

At the time, Judge Schwarzer, a Republican known for his tough decisions and dour demeanor, characterized the sentence he imposed as "a grave miscarriage of justice," and he denounced the law that required it as "an unjust statute" that "makes judges clerks, or not even that, [makes them] computers automatically imposing sentences without regard to what is just and right."

Judge Schwarzer subsequently quit the bench to head the Federal Judicial Center in Washington, a research arm of the federal courts, and he has campaigned ever since for the repeal of mandatory minimum sentencing laws.

According to his agency's studies, mandatory minimum sentences are imposed disproportionately on minorities, women and low-level dealers.

Attorney General Reno knows better than most how perverse are the effects of mandatory minimum sentences. In her home state of Florida, the legislature has long competed with Congress in applying mandatory minimums to more and more offenses. That state now incarcerates more citizens per capita than any other in the union. Yet crime in Florida continues to increase, the state's prisons are overwhelmed, the criminal justice system is gridlocked, and the real bad guys -- Ms. Reno refers to them as the "mean bads" -- are spending less time behind bars than before mandatory minimums became the rule rather than the exception.

To make room for an ever-rising tide of inmates burdened with mandatory minimum sentences, the great majority of whom are relatively harmless drug offenders, Florda is letting other prisoners -- in many cases truly dangerous career criminals -- out early. As a result, the actual time a typical Florida felon is removed from the streets is less than one year, or about half of what it used to be before mandatory minimums. Meanwhile, the crime rate in Florida has increased 5 percent in the past decade.

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