Argument: Mandatory minimum sentences remove undue judicial discretion.

Discretion allows for both intentional and unintentional bias. The U.S. Supreme Court recently heard a case concerning alleged corruption when a West Virginia judge ruled in favor of a plaintiff that had donated over $3 million to the judge’s election campaign. [1] Though this case is not directly linked to minimum sentences, it demonstrates that judicial corruption is an issue in the legal system today; mandatory sentencing reduces the discretion that allows unethical judicial action. Furthermore, judges may attempt to be impartial, but data shows that humans are inclined to be more sympathetic towards particular groups. For example, female defendants are less likely to receive a death sentence than male defendants, while defendants in general are seven times more likely to receive the death penalty if the victim is female; scholars suggest that these disparities are caused by societal perceptions that women need greater protection rather than any actual difference in the severity of the crime. [2] Thus even decisions that seem impartial are often not. Strict sentencing mandates are more likely to yield just decisions because they are less vulnerable to individual bias.

[1] Dahlia Lithwick, “The Great Caperton Caper: The Supreme Court Talks About Judicial Bias. Kinda,” Slate, June 8, 2009.

[2] “Studies: Gender Bias in Death Sentencing,” Death Penalty Information Center, 2011.

Candidate 1: "Minimum mandatory sentences reduce the chance of rehabilitation.

Minimum sentences force minor criminals to spend more time in prison, thereby increasing their exposure to more hardened criminals. This exposure reduces their chance of rehabilitation- other inmates act as a “bad influence.” [1] Furthermore, studies of labor market participation demonstrate that the more time a person spends outside the labor force, the more their human capital (i.e. marketable skills) deteriorate; their chance of finding well-paid work decreases with more time outside the labor force. [2] Longer prison sentences keep people from working, thereby keeping them in a cycle of unemployment that leads them back into crime.

[1] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 8. http://www.veradc.org/statements/haney_craig.pdf

[2] Francine Blau, Mariannne Ferber, and Anne Winkler, The Economics of Women, Men, and Work, 5th Edition, Pearson, NJ, 2006."
Candidate 2: "Imprisonment only yields the benefits of incapacitation if the offenders are a likely threat to society. If the criminal that is given an extensive prison sentence was unlikely to commit another crime, then his/her incapacitation did not actually protect society. Studies within prison populations demonstrate that most offenders commit relatively little crime, while a core group commits a large portion of the crime. For example, a Rand Corporation survey found that half of all burglars committed fewer than six crimes per year, while the top 10% committed over two hundred. [1] Thus society is not particularly well serve when the bottom half of burglars face long prison sentences; few burglaries are avoided, and these criminals will now have more difficulty rejoining society.

[1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178."
Candidate 3: "Judges are capable of delivering consistency. Judges are trained professionals and must demonstrate competence in order to be appointed- they are unlikely to administer completely random sentences. In order to further reduce inconsistency, the Con supports government-issued sentencing guidelines so that judges are aware of the precedent concerning sentencing for a particular crime, so long as these guidelines are not compulsory. In the unusual occurrence that a judge administers an unjustly harsh sentence, defendants may appeal their case to a higher court. Thus judicial discretion is unlikely to result in widespread inconsistent sentencing."
Candidate 4: "Mandatory sentences do not eliminate undue discretion; they merely shift the power from judges to prosecutors. Prosecutors may decide whether or not to charge defendants for violations other than the main charge. For example, a prosecutor may add weapons possession to a charge for drug sales- this additional count can drastically increase the defendant’s sentence. In the United States, defendants often cooperate with prosecutors and provide information in order to avoid such hefty sentences. Michael Simmons explains, “[…] A cooperation departure is usually the only significant sentencing factor over which a defendant has any control and– because the average cooperation departure cuts a defendant’s sentence in half- it is often a defendant’s only hope for a reduced sentence. Thus, it is not surprising that cooperation departures have fundamentally changed federal prosecutions.” [1] Prosecutors may wield this power to coerce defendants into accepting a plea bargain in cases where they might reasonably be acquitted at trial. Because prosecutors are part of the executive branch, they are more susceptible to political influence than federal judges, who are often appointed, not elected. Thus for a balance of power, it is better to allow judges to have discretion.

Debaters might instead argue that mandatory sentences are not an effective means of subduing corrupt judges, as a judge has many venues for disrupting a trial.

[1] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 935."
Candidate 5: "Mandatory sentencing gives prosecutors undue power.

Prosecutors can stack charges, which they can use to scare a defendant into accepting a plea bargain. Prosecutors are part of the executive branch; they are directly answerable to elected officials (and are often elected themselves), whereas judges are generally more removed from political influence. Politicians often promote themselves as being “tough on crime.” [1] In order to make good on this claim, they may pressure prosecutors to increase conviction rates, get longer sentences, etc. Thus political pressure may lead prosecutors to handle cases in a way that makes them more popular with the public, rather than one which gives the criminal their fair due. Because judges are less susceptible to public pressure, it is safer to entrust discretion to them.

[1] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 923."
Candidate 6: "Mandatory sentencing fills the system with “small fish.”

As noted above in response to the Pro, most convicts are not high-repeat criminals; a study similar to the one mentioned above found that in a sample of a cohort of teenage boys in Philadelphia, 33% had engaged in delinquent behavior at some point, but 60% of the crime was committed by a group of recidivists that made up only 7% of the population. [1] Harsh punishments for all offenders have led to an overcrowded prison system; overcrowding decreases safety within prisons and reduces the chance of rehabilitation because prisons have fewer resources per prisoner to provide educational and work training. [2] By filling the system with “small fish,” the Pro reduce the prison system’s ability to address serious threats to society.

[1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 176.

[2] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 6. [ http://www.veradc.org/statements/haney_craig.pdf]"
Candidate 7: "Minimum mandatory sentences are unjust.

In the United States, federal minimum sentences for narcotics-related offences have forced judges on countless occasions to deliver sentences of 20 year, 30 years, or even life imprisonment to offenders that were tangentially connected to the offense. Often, such offenders are low-income young adults that turn to drug sales for a month or two out of desperation. [1] Sometimes defendants find themselves entangled in drug busts because they are living with family members that are involved in the drug trade. [2] In a well-publicized case, Weldon Angelos was sentenced to 55 years in prison for selling marijuana because he was also in possession of a firearm. [3] All criminals are not the same; there are significant differences in the level of threat that individuals pose to society, as well as the likelihood of rehabilitation. Rigid mandatory sentences are unjust because they inevitably lead to numerous cases of disproportionate punishment. These harsh punishments consequently have disastrous impacts on the individuals, as well as their family and community.

[1] “DeJarion Echols,” Profiles of Injustice, Families Against Mandatory Minimums.

[2] “Hamedah Hasan,” Profiles of Injustice, Families Against Mandatory Minimums.

[3] “Weldon Angelos,” Profiles of Injustice, Families Against Mandatory Minimums."
Candidate 8: "Safety valves are simply a reflection of the problem with mandatory sentencing. Safety valves are proof that the inflexibility of minimum sentencing leads to injustice. Safety valves are a step in the right direction, but are themselves an inflexible form of relief. For example, safety valves often do not apply if the defendant has a history of more than one very minor offense, such as passing a bad check. [1] The better way to reduce the injustice of mandatory minimum sentences would be to eliminate the system and allow judicial discretion.

[1] “Federal Mandatory Minimum Reforms: Improve and Expand the Federal ‘Safety Valve,’” Smart on Crime: Recommendations for the Next Administration and Congress, 2008. [ http://2009transition.org/criminaljustice/index.php?option=com_content&amp;v..."
Candidate 9: "Minimum sentences have only a theoretical impact on crime rates; in reality they make no difference. The pro makes two major assumptions; first, that criminals have reasonably accurate perceptions of the legal code. Second, the pro assumes that harsh penalties have a psychological impact on potential criminals. Interviews with convicted felons found that a mere 22% even thought they knew what the punishment would be. Another 18% did not know at all, and more than a third reported that they had not thought about punishment at all at the time of the crime. [1] Thus minimum sentences are not sufficiently well publicized to have a significant deterrent effect. Furthermore, substantial evidence demonstrates that additional severity has a relatively small deterrent effect. Criminals respond much more to the chance of getting caught rather than the consequences that occur if they get caught; if a criminal’s chance of getting caught is 10%, the deterrent effect is virtually zero. [2] Thus mandatory sentences do not have a substantial deterrent effect.

[1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178.

[2] Western, 179."
Candidate 10: "Mandatory minimum sentences make juries reluctant to convict guilty defendants.

The most publicized form of jury nullification is in the case of the death penalty, wherein jurors are reluctant to sentence a person to death. However, Nancy King of the University of Chicago finds that juries are increasingly likely to acquit if a defendant might receive an unduly harsh sentence under mandatory sentencing laws or “three-strike” laws. [1] This kind of jury nullification has two implications. First, it is harmful because defendants that are guilty and ought to go to prison (albeit not for the term demanded by sentencing laws) are not held accountable for their actions at all. Second, jury nullification (a contested practice in and of itself) is a signal in a democratic society that the public considers current legislation to be unjust. Thus the jury nullification demonstrates public opposition to the unintentionally unjust consequences of mandatory sentencing.

[1] Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998, 438."

Mandatory sentences do not eliminate undue discretion; they merely shift the power from judges to prosecutors. Prosecutors may decide whether or not to charge defendants for violations other than the main charge. For example, a prosecutor may add weapons possession to a charge for drug sales- this additional count can drastically increase the defendant’s sentence. In the United States, defendants often cooperate with prosecutors and provide information in order to avoid such hefty sentences. Michael Simmons explains, “[…] A cooperation departure is usually the only significant sentencing factor over which a defendant has any control and– because the average cooperation departure cuts a defendant’s sentence in half- it is often a defendant’s only hope for a reduced sentence. Thus, it is not surprising that cooperation departures have fundamentally changed federal prosecutions.” [1] Prosecutors may wield this power to coerce defendants into accepting a plea bargain in cases where they might reasonably be acquitted at trial. Because prosecutors are part of the executive branch, they are more susceptible to political influence than federal judges, who are often appointed, not elected. Thus for a balance of power, it is better to allow judges to have discretion.

Debaters might instead argue that mandatory sentences are not an effective means of subduing corrupt judges, as a judge has many venues for disrupting a trial.

[1] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 935.
