Prison overcrowding demands attention

Policy makers are again gearing up to take on the daunting problem of exponential prison growth. Unfortunately, instead of aggressively looking at system-wide reform, legislators and criminal justice practitioners continue to only peck away at the incarceration crisis.

In Pennsylvania, the focus has shifted to the review of mandatory minimum sentences (MMS). MMS are legislative enactments that require a judge to impose a minimum period of incarceration following conviction for a growing number of criminal offenses. For example, in Pennsylvania, homicide by vehicle while driving under the influence requires the imposition of a minimum of three years in prison; or the possession with intent to deliver a controlled substance within 250 feet of a playground requires the imposition of a minimum of two years in prison.

Many observers of the criminal justice system have been clamoring that MMS are filling prisons beyond capacity with low level, non-violent offenders and taking up bed space that could be utilized for violent, high-risk offenders. On the other hand, supporters believe MMS reduces crime, ensures uniformity in sentencing and serves as a useful tool for prosecutors.

Prisons are expensive

There is no question that prisons are full and a lot of money is being spent to maintain those prisons. Pennsylvania’s prison population has increased 20 percent in the last seven years, with more that 45,000 offenders locked away in the state system. According to the Pennsylvania Department of Corrections the estimated cost of housing a single prisoner is $31,625 annually. Consequently, the Department of Corrections received a 13 percent increase in its budget for 2008, increasing the annual corrections budget to about $1.6 million.

Recently, the Pennsylvania House of Representatives passed Resolution 12 that directs the Commission on Sentencing to study the use of MMS. The new study identifies three MMS issues to be explored by the commission; judicial discretion, the purposes of sentencing and criminal justice resources.

Last year the Pennsylvania Common Pleas Court judges participated in a survey examining the merits of MMS. They pointed a finger of blame squarely at the legislature, “(S)eeking to reduce crime in general by requiring the imposition of mandatory sentences on individuals, legislators pursue the interest of crime reduction with a policy that is ineffective in reducing crime and at the same time impedes the pursuit of justice.”

MMS have often been attacked by judges as divesting discretion from the court and vesting it with prosecutors. Many MMS are “notice” statutes. In order to impose the mandatory sentence a prosecutor must provide notice to the accused and the court. The prosecutor can avoid imposing the mandatory simply by not providing notice. Also, a prosecutor can withdraw a charge or not file a certain charge to avoid the imposition of an MMS. However, if the prosecutor properly pursues the MMS the judge has no choice but to impose the MMS.

Nearly one in three

How often are MMS imposed? The United States Sentencing Commission provided a glimpse into the magnitude of the problem. A review of all federal convictions in 2006 found that nearly 30 percent of all convictions consisted of a statute carrying a mandatory minimum penalty.

Would offenders receive lighter sentences if MMS were abolished? Again, a look at the federal sentencing system is instructive. In 2005, the United States Supreme Court ruled that the federal sentencing guidelines were no longer mandatory, but merely advisory. When the sentencing guideline scheme was mandatory only about four percent of sentences fell below the minimum range. Once the guidelines were deemed advisory the number of sentences below the minimum range increased more than three fold to 13 percent of all sentences. Therefore, it is safe to say the abolition of MMS will result in more lenient sentences.

It is also safe to say that re-examining MMS is really all about the “bottom line.” Legislatures across the country are looking for some mechanism to reduce the sky-rocketing cost of incarceration without appearing to be “soft” on crime. A major overhaul of the criminal justice system; pre-trial detention, plea bargains, trials and sentencing would be an enormous political risk.

Constitution counts

The economically-driven debate about MMS overlooks a troubling constitutional issue the accused’s sixth amendment right to trial by jury. The sixth amendment provides “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

MMS can be used as a tool to coerce defendants into forfeiting their right to a jury trial. When faced with the prospect of a lengthy prison stay through the imposition of an MMS, some defendants, even innocent ones, have opted for a guilty plea to a lesser non-MMS sentence.

Restoring judicial discretion will not solve the sixth amendment issue. Defendant’s who refuse to accept a plea and go to trial are often punished more severely than those who accept a plea. This disparity in sentencing is pervasive throughout the criminal justice system and has a chilling effect on defendants’ exercising their constitutional right to a trial by a jury.

There are no easy fixes to the incarceration crisis, but looking only at the “bottom line” won’t resolve the crisis or enhance justice.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. You can reach him at matthewmangino@aol.com).