Have you ever heard the phrase “mandatory minimum”?

It’s usually hauled out by politicians who want to show that they’re “tough on crime”, with the idea that certain criminal activities are so horrible that anybody committing them needs to be punished severely. There’s frequently accompanying talk about how judges can’t be trusted, and how we need to make sure that we punish criminals.

Historically that seems to play pretty well with voters. And things that play well with voters get laws put on the books.

But do mandatory minimums actually work? Let’s stop and consider what a mandatory minimum actually is and isn’t.

In most cases, a mandatory minimum isn’t an increase to the potential penalty for a crime. That’s already prescribed by the legislature, and it could be changed by the legislature. If the problem were that judges needed to be able to sentence people to longer jail terms, that could be accomplished without a mandatory minimum.

This is what a mandatory minimum really is – removal of a judge’s discretion. What do we mean by “discretion”?

When a case lands before a judge, the judge has many things to consider – one of them being the penalty that will be given for that crime. The determination of guilt typically rests with a jury, and the penalty is decided by a judge.

When the judge is deciding that penalty, their job is to take everything into account. They need to hand down a sentence that respects the law, the gravity of the offense, the desire for rehabilitation of the convicted person, the need to protect the public from future crimes by this same person, and a number of other considerations.

This means that a 32-year-old mom with no other criminal history, strong ties to the community, and evidence of deep remorse is going to get a vastly different sentence from a career criminal with a high rate of recidivism, no strong community ties, and no indication whatsoever of remorse. It’s the judge’s job to weigh all of those factors, and figure out a sentence that makes sense in each case. But a mandatory minimum sentence can require the judge to actively ignore some of those factors, and pass a harsher sentence than the situation warrants.

Sometimes a variant of mandatory minimums come into play when a crime is being charged. Many people are familiar with the experience of “pleading down” a crime to something less severe – but in certain situations, the prosecutor doesn’t have any room to plea bargain. And this is true no matter how much it would make sense to do so.

Mandatory minimums can also cause clients with good cases to take settlement agreements that they wouldn’t otherwise even consider. The removal of a judge’s discretion can make the consequences of even a potential loss at trial so extreme that an initial settlement agreement becomes the better option. This means that, right now, we have potentially innocent people in jail that wouldn’t be there if it weren’t for mandatory minimums.

The common thread here is that mandatory minimums take the decision-making power from the judges & the prosecutors – who are intimately familiar with the details of each case – and move it to the legislature. Typically this stems from a partisan political strategy rather than a serious desire to see the system reformed, and it’s society that bears the cost.

If we begin from the premise that what “justice” requires can be significantly different in different cases, then mandatory minimums don’t increase justice – they decrease it. Rather than giving judges more options (like diversion courts and additional programs), they hamstring courts and force them to arrive at decisions that nobody with common sense would’ve made except for the “mandatory minimum” provisions of the law.

So next time you hear about a politician being “tough on crime”, do a little bit of research. Find out what they mean. And consider that while “tough” isn’t always bad, the goal of a system that promotes justice isn’t “being tough”, but rather being fair.

And if you find our justice system treating you unfairly, please don’t hesitate to reach out. I’ll listen, empathize, and fight for the result that you deserve!

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