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More Judicial Discretion Isn’t the Best Means of Addressing Mass Incarceration

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John Tierney’s article on mass incarceration and the (War on Some Classes of People Who Use Some) Drugs is very good:

Stephanie George and Judge Roger Vinson had quite different opinions about the lockbox seized by the police from her home in Pensacola. She insisted she had no idea that a former boyfriend had hidden it in her attic. Judge Vinson considered the lockbox, containing a half-kilogram of cocaine, to be evidence of her guilt.

But the defendant and the judge fully agreed about the fairness of the sentence he imposed in federal court.

“Even though you have been involved in drugs and drug dealing,” Judge Vinson told Ms. George, “your role has basically been as a girlfriend and bag holder and money holder but not actively involved in the drug dealing, so certainly in my judgment it does not warrant a life sentence.”

Yet the judge had no other option on that morning 15 years ago. As her stunned family watched, Ms. George, then 27, who had never been accused of violence, was led from the courtroom to serve a sentence of life without parole.

One response to this, which Tierney to his credit largely resists, is to say that judges should therefore be given more discretion. This would probably be an improvement, but it doesn’t address the real problem: nobody should serve the sentence given to George for what she allegedly did. The primary problem is not so much the lack of judicial discretion as the authorization for lengthy or life sentences for any nonviolent drug offense. One crucial reason that the W (OSCOPWHS) D has been so robust is the bracketed part of the equation: the arbitrary application of drug laws is crucial to sustaining the political support for them. If white middle class college kids were routinely locked up for decades for drug offenses, the laws would be repealed in about 5 seconds.

To be clear, despite superficially being less prone to arbitrary application, mandatory sentences (as the Supreme Court recognized with respect to the death penalty) are a counterproductive means of addressing this problem. They don’t eliminate arbitrariness from the system — they just transfer the discretion from judges to even less accountable prosecutors. But while judges giving out lengthy prison sentences for drug offenses randomly rather than systematically might be an improvement, it’s also true that Vinson shouldn’t even have the option of imposing any kind of serious jail time (let alone a life sentence) for the offense George was convicted of. The fundamental problem is the potential for long prison terms for drug offenders, not which state actor has the discretion to impose them on some people and not others. Tierney’s article does a good job, I think, of making this clear.

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