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Mandatory Sentences Lead To Major Injustices

By NORM PATTIS

Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts. The state's scattershot approach to the criminal law often works injustice and scarcely intelligible results. We can and should do better.

Here's how it looks from the trenches: Something awful happens. The news media whips folks into a frenzy. Lawmakers flock toward the clamor. Legislation is passed. Another incoherent brick is thrown at the wall. And then the courts step in with legal fictions designed to make sense of it all, the primary such fiction being the following whopper: The presumption of legislative rationality. Prosecutors, meanwhile, sit back licking their chops.

We've got mandatory minimum sentences for things make no sense. Lawmakers belch them out, judges moan and fuss, and prosecutors smile, harboring the sole discretion to select charges brought in state court. Consider the following:

A man dabbled for a time in pornography. Some of it was child pornography. He was arrested, his life undone and held out to the world for scorn. He immediately sought treatment. He was evaluated and found to be at no risk to re-offend. He has much to offer the community.

We made an application for accelerated rehabilitation, which would have resulted in no conviction for the man upon completion of probation. But AR, as it is called in the criminal courts, is a creature of statute. It’s been amended almost annually since it was enacted almost 40 years ago. The current version of the law prohibits the granting of AR to a person in possession of child pornography.

We prosecute possession of child pornography because of the great harm it does to children, correct? Well, we suggested, how about prosecuting the man under the risk of injury to a minor statute, thus removing the statutory barrier to AR? No deal, said the state.

We meet with a judge. The judge reads through the various motions, reports and letters submitted on behalf of the man, and signals to the state that misdemeanors and a suspended sentence might be appropriate. I suggest multiple counts of obscenity. No deal, the state says. It wants a conviction for possession of child pornography, and it wants jail time, too. I stagger from the courtroom to tell my client that the court cannot force the prosecutor's hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.

Mandatory minimum sentences make a mockery of the separation of powers. Lawmakers enact such legislation believing that they speak in the name of people who are sick and tired of coddling criminals. Anger and passion demand action. Lines get drawn. But these lines become clubs wielded without discretion and review by members of the executive branch.

This isn't justice. No one elects prosecutors. They never appear before elected officials for reappointment decisions. They lack accountability. Once a prosecutor has locked onto to a charge, no judge can dislodge him in the interest of justice. And a law without sentencing guidelines blindly adheres to the fiction that one size fits all. There are no safety valves for special cases; there are no downward departures for men and women deserving of consideration due to the sometimes special circumstances in their lives.

I am not a fan of judicial discretion. But I trust a judge before whom I can appear and argue more than a lawmaker I will never meet. And I trust most judges more than many prosecutors, who, by dint of our sentencing law have been made de facto kings of the courthouse. Next week, I show how we can dethrone this king in the name of justice.

Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany.