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

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 If white middle class college kids were routinely locked up for decades for drug offenses, the laws would be repealed in about 5 seconds.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.

35 comments on this post.
  1. mpowell:

    There is another issue in that article which you don’t bring up. And that is the prosecutors love the long sentences because it gives them leverage. They believe this is a good thing because it gives defendants a motivation to start talking. What is so preposterous about the whole arrangement is that it has about the same level of effectiveness as torture. Yeah, the defendant will talk. He’ll swear to whatever you want him to if it will get him out of prison sooner. Frankly, I am surprised that the rules of evidence don’t even appear to consider the low probative of this kind of testimony. Where do you find jurors naive enough to consider it seriously? White America is my guess.

  2. J. Otto Pohl:

    This appears to be a better argument in favor of legalization of drugs than an argument against mandatory sentences. It is hard to argue that people should be sent away forever for possession with intent to sell or even selling cocaine. But, should they be sent to prison at all? Victimless “crimes” shouldn’t be treated as crimes at all in the first place. On the other hand life imprisonment without possibility of parole does not seem to be at all out of place for certain violent criminals. Would anybody object to a mandatory sentence for child rape or some other equally heinous crime?

  3. njorl:

    I wonder how people would react if defense attorneys were able to offer potential witnesses lighter sentences in exchange for their testimony.

  4. rea:

    And of course, what happened in this case was that all the people who were unquestionable guilty testified against her, and without that testimony she does not get convicted. So the woman with the plausible factual defense, who goes through the whole proceeding insisting on her innocence, is the one who gets life, while the actual drug dealers she was accused of helping are out on the street today.

  5. Malaclypse:

    This appears to be a better argument in favor of legalization of drugs than an argument against mandatory sentences.

    A helpful hint about this is when Scott helpfully writes:

    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.

  6. J. Otto Pohl:

    Except he is not advocating for legalization here only that nonviolent drug crimes not be subject to life or lengthy sentences. What exactly is a lengthy sentence is up to interpretation. But, if drugs were legal there would be no prison sentences for nonviolent drug offenses what so ever which I think would be an improvement over no lengthy sentences.

  7. Malaclypse:

    But you might notice that he was not at all arguing against some mandatory sentences, unlike what you said he was arguing against.

  8. rea:

    Well, yes, the basic problem with excessive sentences for drug crimes is that durgs shouldn’t be illegal. But, in terms of how the legal system ought to work, there needs to be discretion (and rules for how the discretion is to be exercised) to tailor the sentence to the particular crime and criminal. This is true for all crimes, not just drug crimes. Yes, for example, I do object to mandatory sentences for “child rape,” given the wide range of conduct that falls within the definition of that term.

  9. J. Otto Pohl:

    No, he was arguing against lengthy sentences for nonviolent drug offenses which would include, but is not limited to mandatory sentencing. I say no sentencing is a better solution. But, if you want to disagree with me you can just come out in favor of putting all drug dealers in prison forever. That would save you the time and energy of typing a bunch of pedantic replies.

  10. TribalistMeathead:

    The other problem with Tierney’s argument is that we already give law enforcement broad discretion on when to bring charges – which is the whole reason the W(OSCOPWHS)D is only being fought against SCOP.

  11. mpowell:

    Yeah, obviously I’m just reading the article, but if all the testimony is just coming from those other defendants? If I’m on that jury, moment one we get into deliberations I’m going to make it clear that no how no way is my verdict anything but not guilty. I really don’t understand how this argument is not effective with juries in all honestly. Even granting a large dose of racism (because the other defendants are probably also black, right?)

  12. King Rat:

    This post puzzles me. I appear to agree with all of its points – greater judicial discretion is not a bad thing per se, but not the solution to the problem with incarcerating drug offenders – but I’m puzzled by the emphasis here.

    It reads to me – and I apologize if I’ve got this wrong – that Scott is saying that people shouldn’t call for increased judicial discretion because to do that is to take valuable time and attention away from ending TWO(SCOPWUS)D outright. I don’t get this – it seems to me as though this is a case where both/and logic works better than either/or logic. Furthermore, while I agree that the selective enforcement of the laws against the titular Some Classes of People is outrageous, this passage

    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.

    seems to gesture in the direction of heightening the contradictions, which I know is not a philosophy Scott subscribes to, to put it mildly.

    I realize this may all be very pointless, but I don’t quite see what the problem is in saying that the current laws should be a) applied more humanely while b) working to scrap them.

  13. Bob:

    The article also contains this sentence:
    “Her sentence reflected a revolution in public policy, often called mass incarceration, that appears increasingly dubious to both conservative and liberal social scientists.”
    I don’t pretend to be conversant with social science literature on mass incarceration, but I find it hard to believe that liberal social scientists ever saw that as a good thing vis-a-vis non-violent drug offenses. Isn’t this just more journalistic false equivalency – the “both sides do it” fallacy applied to draconian right-wing sentencing?

  14. Scott Lemieux:

    For the record, I believe that nobody should be jailed for nonviolent drug offenses.

  15. Scott Lemieux:

    I’m not opposed to increased judicial discretion per se, it’s just that we should keep in mind that it’s a marginal improvement, not a goal in itself.

  16. Malaclypse:

    Well, except I also favor legalization. You just seem to think nobody else does, for reasons I’m not clear on.

  17. L2P:

    Nothing in your post seems to relate to criminal justice.

    People will still be arrested for lots of crimes dealing with cocaine and other drugs. Forever. No matter what changes are made to current policy in the US. People are arrested for cigarette sales, for the love of god. Some day legalization advocates are going to have to deal with actual issues and not just pretend that we can just wave a wand and all our troubles go away.

    Mandatory sentences are rarely a good idea (I’d say never, but rarely is certainly correct). They are political palliatives thrown in as cheap, easy measures to show toughness on crimes, but do little and are almost always unjust.

    You talk about “child rape” deserving mandatory life sentences? So do you throw a 14 year old who has sex with a 12 year old into jail for the rest of her life? Or what about the 18 year old high school senior who was sex with his 15 year old girl friend? And then there’s that same high school senior who hooks up with a 12 year old (who looks and acts 16.) Life for him too?

    These are laws about drawing arbitrary lines. You’re now imposing incredibly harsh, non-discretionary penalties based on those arbitrary lines. Still seem like a good idea?

  18. L2P:

    For the record, no matter what happens people will be jailed for non-violent drug offenses.

    People will be jailed for selling drugs without a permit. People will be jailed for selling drugs outside of the proper zone. People will be jailed for selling too many drugs, or selling drugs outside of the proper time, or selling drugs that are too potent, or any of a number of things.

    The end of prohibition didn’t end people being sent to jail for alcohol-related crimes. I prosecuted over 50 people for ABC crimes in 2 years.

    If you think, for one second, that marijuana is going to be LESS regulated than alcohol, you’re higher than a teflon kite.

  19. Semanticleo:

    So did Obama in 2004.

    Gallup Polls say the Feds should keep their stinking fingers out of Colorado and Washington.

    Behind the scenes, the prime motivator for such excesses you describe is based upon Asset Acquisition, and should be labeled as such.

  20. Semanticleo:

    please note the exponential rise each year to 2010 (nearly $13 Billion) Imagine the fiscal cliff for jack-boots should they lose.

    http://www.drugwarfacts.org/cms/Forfeiture#Table1

  21. L2P:

    I’m not a fan of forfeiture laws, but Scalia could hold that forfeiture violates the 8th Amendment tomorrow and the drug wars would be basically the same. The vast majority of drug prosecutions don’t end up with anything that would be forfeitures.

    Forfeitures are the slimy tip of the drug war spear. They annoy rich white people in particular because they are the ONE PART of the drug war that is likely to affect rich and/or white people. No poor kid selling drugs off his bicycle or out of his mom’s apartment cares about forfeitures. But middle-class white folk get annoyed when Junior’s Mustang is getting seized.

    In fact, I’d be happier if the drug wars were run ENTIRELY by forfeitures. If all we did was take the money from the drug crimes, that would punish the money makers, not the street punks that end up bearing the brunt of it now.

    YMMV.

  22. Anon21:

    Well, if you want to get technical, even if liberal social scientists never saw mass incarceration or harsh mandatory minimums as a good thing, they could still get “increasingly dubious” of this bad policy as the magnitude of its bad effects becomes more apparent.

  23. Semanticleo:

    The vast majority of drug prosecutions don’t end up with anything that would be forfeitures.

    Do you really think Ms, George is gonna keep her house, any cash or valuable on hand?

    Have you noticed law enforcement has been the new Tax Collector for city, county, State, getting quite aggressive with traffic cites? They are desperate for cash.

    Also, the Feds…

    Governmental agencies are basing their budgets on drug war Forfeitures “For many years, law enforcement agencies around the nation have faced shrinking budgets.4 Police administrators have been forced to develop creative budgeting strategies, such as securing federal grants and partnering with community foundations.5 Though it is an enforcement tool, asset forfeiture can assist in the budgeting realm by helping to offset the costs associated with fighting crime. Doing what it takes to undermine the illicit drug trade is expensive and time-consuming. Forfeiture can help agencies target these difficult problems, sometimes without the need to seek additional outside resources to offset their costs.” U.S. Department of Justice, 2008. http://www.ij.org/images/pdf_folder/other_pubs/forfeitingaccountabilityfinal.pdf

  24. L2P:

    So you’re saying that if forfeitures disappeared tomorrow, Miami (for example) would stop enforcing drug laws? Insanity.

    At best, forfeitures are a partial offset for some law enforcement costs. They aren’t a significant part of the budget for any jurisdiction. They’re happy for the money, but if forfeitures disappeared tomorrow the war on drugs would go on pretty much exactly the same as it does now. Just without forfeitures.

  25. Semanticleo:

    I’m saying the aggressive quest to feed budgets makes more inmates which, in turn require more funds for incarceration, and further loads the courts with an already unmanageable calendar. You see this as cost effective for Public Management? There would continue to be prosecutions, but far fewer. Shouldn’t THAT be the goal?

  26. L2P:

    Forfeitures are SEPARATE FROM criminal prosecutions. SEPARATE FROM. They DO NOT directly relate to each other. Each US Attorney has a SEPARATE DEPARTMENT that handles forfeitures.

    If someone is actually prosecuted for a drug crime, whatever they find when they are arrested gets sucked up as part of the criminal prosecution as restitution. Or would, if forfeitures weren’t a thing.

  27. Semanticleo:

    This thread is already dead. Lots of lawyers populate?

    ‘Nuff said…..

  28. Semanticleo:

    L2P says:
    December 12, 2012 at 7:07 pm
    Forfeitures are SEPARATE FROM criminal prosecutions. SEPARATE FROM. They DO NOT directly relate to each other. Each US Attorney has a SEPARATE DEPARTMENT that handles forfeitures.

    If someone is actually prosecuted for a drug crime, whatever they find when they are arrested gets sucked up as part of the criminal prosecution as restitution. Or would, if forfeitures weren’t a thing.

    Oh my God. You are must be a current/former Prosecutor to be such an idiot

  29. Semanticleo:

    btw; the idiot will never see this comment because a reply button was not available.

    Meh.

  30. Johnny Sack:

    So why not remove the floor and maintain a ceiling? No minimum but a definitive statutory maximum

  31. Wrye:

    The woman’s only hope is presidential clemency? What the hell?

  32. Lurker:

    The mandatory minumum and maximum are not problems as such, but the judicial culture of applying them.

    In Finland, the penal code incorporates a statutory minimum and a maximum for every offence. And these give an extremely wide range of discretion. A very typical statutory range for a serious offence is 4 months to 4 years. For minor offences, the range is typically “fine or not more than six months in prison, fine or not more than three months in prison” or “not more than a year in prison”.

    The sentencing guideline for the judges is, roughly, the following:
    * If fine is possible, it should always be used, unless there are very aggraviting factors.
    * For a “normal” offence of its type, use about a quarter of the range. (I.e 6-8 months if the case carries 4 months to four years.)
    * For first time offenders receiving less than 2 years, always use probation, unless the aggravating factors are extreme.
    * Never use the full maximum (i.e, reserve range for future, more aggravated cases), unless the offence contains a 1st degree murder, where life sentence is mandated.
    * When several offences are sentenced at the same time, the sentences add up non-linearily (e.g 3 years + 2 years 6 months = 4 years 3 months and 3 years ´+ 2 year 6 months + 90 days = 4 years 4 months, 10 years + 11 years = 15 years)

  33. Bob:

    Anon21 – good point but I still see a huge difference between people who demanded the change now seeing it as a mistake versus those who always thought it a bad idea becoming increasingly convinced it’s a bad idea.

  34. Adara:

    THIS MAKES ME SO, SO MAD.

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