More proof mandatory sentencing laws are never really mandatory and can enhance disparities
One typical argument for mandatory sentencing provisions, whether in the form of statutory minimums or rigid guideline structures, is that they ensure all persons who commit a certain kind of crime will be sure to get a certain kind of sentence. But even if one believes such one-size-fits-all approach to sentencing can be justified normatively in some settings, real-world evidence reveals again and again and again that criminal justice actors will devise various ways (some hidden, some in the open) to avoid consistent application of these mandates. The latest proof of this reality appears in this lengthy article from yesterday’s New York Times, which is headlined “Prison Isn’t as Mandatory as State’s Gun Laws Say.” Here are excerpts:
The last time New York State’s gun laws were tightened, Mayor Michael R. Bloomberg rolled out a graphic reminder of what would happen to anyone caught carrying a loaded, illegal weapon. “Guns = Prison,” public service posters proclaimed categorically. In 2006, the mandatory prison sentence was increased to 3.5 years from 1 year.
Five years later, though, that equation seemed decidedly more equivocal. In 2011, the latest year for which sentencing statistics are available, fewer than half the defendants who had been arrested for illegal possession of a loaded gun in New York City received a state prison sentence, according to an analysis of criminal justice statistics by the mayor’s office. In the Bronx, as few as 31 percent were imprisoned. In Brooklyn the rate was 41 percent; in Staten Island it was 47 percent; in Manhattan it was 68 percent; and in Queens it was 76 percent.
Still, the proportion of defendants sentenced to prison represents an improvement over previous years, said John Feinblatt, the mayor’s chief policy adviser and criminal justice coordinator. “Before the new law in 2006, which required anyone convicted of felony possession of an unlicensed loaded gun to serve three and a half years, the prison rate was 28 percent,” he said. “We’ve made a lot of progress.”
But the fact that only half the suspects arrested wind up in state prison also demonstrates that the prerogatives of prosecutors and judges still create a lot of wiggle room, particularly in cases that are weaker or have mitigating circumstances. Mr. Feinblatt said the laws had what he called a “gigantic loophole”: prison sentences are mandatory except where the interests of justice would dictate otherwise. “You could drive a Mack truck through that,” he said.
Sometimes, he said, prosecutors reduce the charges appropriately as a result of plea bargaining, which spares the time and expense of going to trial in a marginal case, as when a weapon is found in a car carrying several people and it is difficult to prove who had physical possession, or the seizure is subject to constitutional challenges over its reasonableness. In pressing for a stricter assault weapons ban last month, Gov. Andrew M. Cuomo said the law had “more holes than Swiss cheese.”
Even some of the more stringent assault weapons provisions rushed through the Legislature last week, while raising minimum penalties, have left some prosecutors puzzled. For example, the new law says those penalties “shall” be imposed, not “must be.” The law also leaves some latitude if a judge, “having regard to the nature and circumstances of the crime and to the history and character of the defendant,” finds that meting out consecutive sentences for multiple offenses “would be unduly harsh and that not imposing such sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.”
Richard A. Brown, the district attorney in Queens, has taken the word “mandatory” more literally. “The statistics bear out the effectiveness of the supply-and-demand strategy that we have been following for some time here in Queens,” he said. “On the one hand, we aggressively go after the gun supply by going after those who traffic in illegal weapons, and on the other hand we concentrate on controlling the demand for illegal guns by making it clear that if you illegally possess a gun in Queens County, there is a very strong likelihood that you are going to state prison.”…
The ratio of arrests to prison sentences is only one measure of the law’s effectiveness. By another measure, of the 448 defendants sentenced in New York State in 2011 after conviction on the top illegal gun possession charge, 437 received a term of at least three and a half years. That same year, 3,018 people were arrested on that charge in the state. State Division of Criminal Justice Services officials caution that comparisons between arrests and convictions can be imprecise because not all the cases are adjudicated in one calendar year.
Steven Reed, spokesman for the Bronx district attorney, said the comparison of arrests and prison sentences of three and a half years also did not account for the number of shorter prison sentences imposed after guilty pleas, or after the many convictions in the cases that prosecutors chose to try. “When those numbers are included, the incarceration rate for gun cases in the Bronx is nearly 85 percent,” he said. (In Queens that rate is 98 percent.)…
Still, Mr. Feinblatt, the mayor’s criminal justice coordinator, suggested that the 50 percent mandatory minimum imprisonment rate remained too low. “Maybe I can’t answer what should it be,” he said, “but when I look and see that one borough is doing 76 percent, I certainly see what it can be.”
Though a bit confusing in its data reporting, this article still is so very telling as to how the “prerogatives of prosecutors” ultimately determine whether and how mandatory sentencing provisions are applied and how the policies and practices of different local prosecutors can have more profound impact on sentencing outcomes in the shadow of mandatory sentencing laws than any other factor. And the final comment by the mayor’s criminal justice coordinator here is especially telling when he says he “can’t answer what should” be the imprisonment rate for offenders who break a law which is supposed to indicate a legislative and executive commitment to the principle that 100% of persons who commit a certain crime should get prison time.
Though sophisticated criminal justice participants already know this story well, this article provide still more evidence about the real import and impact of so-called mandatory sentencing laws: they dramatically impact the power of prosecutors to control sentencing outcomes and thus increase prosecutors’ leverage to shape all prior stages of the criminal justice system. In turn, unless and until the discretionary decisions of prosecutors are subject to greater regulation, scrutiny, accountability and review, mandatory sentencing laws are likely to enhance (and hide from view) sentencing disparites.