Mandatory sentencing: a trying problem

READING the prosecution's terse Statement of the Case, disclosing the government's evidence, the judge wondered just what the defense could possibly be. A police officer, acting undercover, had gradually worked his way into the defendant's confidence, making larger and larger purchases of cocaine. Ten times he had bought amounts ranging up to 50 grams; during five of those buys, he had carried a concealed transmitter that broadcast the entire transaction to a tape recorder hidden in a police-manned unmarked van.

The 11th time, the order covered 250 g, to be handed over in a parking lot at 3 a.m. Again, the undercover officer was ``wired.'' When the listening detectives heard the seller say, ``Here it is; let's see the money,'' they pounced.

Now, after indictment, motions to suppress the evidence (duly denied after a full hearing), and two unavoidable postponements, the case was ready for trial.

Calling the assistant district attorney and the defense lawyer up to the bench, the judge asked the obvious question:

``Any possibility of a pretrial disposition?''

Rough translation: ``Does the defendant know he's long gone; and if so, is the prosecution prepared to show some mercy in its sentencing recommendation?''

Rougher translation: ``How far has the plea bargaining gone?''

``Sorry, Your Honor,'' defense counsel answered. ``We're looking at a minimum mandatory 10; and the government won't reduce.''

``That's right,'' said the prosecutor. ``Trafficking. Period.''

Caught cleanly, without any real hope of acquittal, the defendant was nonetheless insisting on trial. He could gain nothing by pleading guilty, because the district attorney could not make an offer worth considering.

The reason was simple: For possession with intent to distribute cocaine in an amount exceeding 200 g, the controlling statute required a 10-year sentence. Determined to stamp out drug pushing, the state legislature had deprived the judge of any leeway.

Even if the defendant admitted his guilt, and saved the government a trial, he would have to serve 10 years - committed. No suspension of sentence; no furloughs; no split sentences. Just 10 years.

Mandatory sentences reflect an understandable dissatisfaction with what people perceive to be undue judicial leniency and inexplicable sentencing disparities. Mostly, however, the concept represents a deep, popular belief that intensifying potential punishment deters potential offenders.

These are of course political sentiments. As such, their validity or invalidity, their logicality or illogicality, their accuracy or falsity, are all irrelevant to a judge's job.

Whether or not they further their advocates' social aim, however, mandatory sentences directly affect the courts' ability to deal promptly with those who commit crimes. Mandatory sentences in fact hamper the pursuit of wrongdoers. Thus a device aimed at fighting crime actually works to obstruct justice.

The most common complaint about courts is their slowness. It takes too long to bring a criminal to trial and punishment. In general, this criticism is accurate, and for good reason: Throughout the country, judges have more cases than they can handle.

Unfortunately, rigidifying the sentencing process increases the number of cases that will go to trial. Faced with the certainty (as opposed to the possibility, or even high probability) of heavy incarceration, many defendants will understandably take even prohibitively long odds.

The cost of defense often plays no part in the decision. An indigent defendant gets state-paid counsel, while in drug cases, the nature of the business ensures at least thousands for defense.

The system does retain some flexibility, because the prosecutor can reduce the charge to one not requiring a ``mandatory.'' This possibility raises its own brood of problems, substituting private prosecutorial decisions for open-court judicial sentencing.

Moreover, some classes of crime are today so politically explosive that district attorneys may well feel compelled to seek the higher punishment.

When they do, the judge thought, they always want to make sure; they never leave out even a grain. He looked with a slight shudder at the government's long witness list, realizing how many trial days it would probably take to prove the 11 sales, and remembering all the other cases on the docket.

``Very well,'' he said. ``Better bring in the jurors.''

Hiller B. Zobel sits on the Massachusetts Superior Court.

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