Argument: 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 1: "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 2: "1) There are checks against jury nullification. The judicial system can reduce the impact of jury nullification by explaining to juries that their responsibility is to determine the guilt of the defendant. The judge can explain that nullification is not a legally acceptable form of dissenting from a law that one perceives as unjust. While King makes the observations noted by the Pro, she also notes that prosecutors may dismiss potential jurors that admit they will consider the severity of the punishment. [1]

(2) A careful jury is a good jury. When juries are reluctant to convict because of the death penalty, they are often asking themselves, “am I so sure that this person committed this crime that I am willing to bet their life on it?” Such hesitation is beneficial to the justice system- it reduces the number of wrongful convictions. Similarly, mandatory minimum sentences make juries realize the significance of their decisions. While this may allow some lucky criminals to evade justice, it also prevents innocent civilians from suffering punishments they do not deserve.

[1] Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998,435."
Candidate 3: "Minimum mandatory sentences increase the chance of rehabilitation. If a person receives a light punishment for his/her action, he/she sees that the action has a low cost. Conversely, if a person has firsthand experience with strong punishment for an action, they will be more reluctant to take that action in the future. Furthermore, prisons have literacy and work training programs to benefit criminals; the majority of (American) prisoners are functionally illiterate. [1] If these criminals are in prison for a short period of time, they will not be able to reap the benefits of these rehabilitating programs. Thus longer sentences (within reason) can actually be beneficial to inmates.

[1] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 85. http://www.veradc.org/statements/haney_craig.pdf"
Candidate 4: "Mandatory sentences are fairer than judicial discretion. The Con assumes that individual judges will deliver fair and proportionate punishment. However, as is discussed in the Pro arguments, judges are susceptible to many forms of implicit and explicit bias. For example, studies consistently show that minorities receive longer sentences than whites in the U.S. for comparable offenses. Mandatory sentencing eliminates the danger of individual partiality and replaces it with consistent standards. The Pro advocates a well-defined set of sentencing standards that account for factors such as prior history and cooperation so as to avoid the injustices discussed in the Con’s argument. The Pro acknowledges that sentencing standards may be imperfect, however, the flaws of these imperfections are outweighed by the elimination of personal judicial bias."
Candidate 5: "Mandatory sentencing does not provide prosecutors any additional power to do anything unethical. “Stacking charges” is another way of saying the prosecutor charges the defendant for each crime he/she committed, meaning that the defendant is being held accountable for all of his/her actions. The Con fails to demonstrate why this is problematic. Furthermore, having democratic checks ensures that the prosecution will not bring trumped-up charges. First, a jury will dismiss such charges, and possibly dismiss all charges if they feel the prosecutor is being abusive. Second, the public is unlikely to respond positively to a district attorney that wastes time and resources on putting low-level criminals in prison for long sentences rather than focusing on serious threats to public safety. Thus the ability to “stack charges” is unlikely to have an adverse impact on justice."
Candidate 6: "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 7: "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 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: "Mandatory sentences need not be excessively harsh. The Pro supports mandatory sentences that account for a criminal’s prior history and the severity of the crime; mandatory sentences can be proportionate to the scope of the crime. A crime such as murder, which poses a serious threat to public safety, should have a greater minimum punishment than petty theft. But by arguing that we should not have minimum sentences for low-level criminals, the con is essentially arguing that we should not imprison offenders unless they singlehandedly pose a dire threat to society at large. All crimes are violations of the law; if the government ignores crime on the basis that the offense is “not that serious,” it signals that laws against such offenses are not legitimate and may be ignored. Thus mandatory minimum sentences are relevant and beneficial to reducing low-level crime."
Candidate 10: "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."

Mandatory sentencing does not provide prosecutors any additional power to do anything unethical. “Stacking charges” is another way of saying the prosecutor charges the defendant for each crime he/she committed, meaning that the defendant is being held accountable for all of his/her actions. The Con fails to demonstrate why this is problematic. Furthermore, having democratic checks ensures that the prosecution will not bring trumped-up charges. First, a jury will dismiss such charges, and possibly dismiss all charges if they feel the prosecutor is being abusive. Second, the public is unlikely to respond positively to a district attorney that wastes time and resources on putting low-level criminals in prison for long sentences rather than focusing on serious threats to public safety. Thus the ability to “stack charges” is unlikely to have an adverse impact on justice.
