Rand Paul, love him or hate him, has been making some waves lately. Last month, during John Brennan's nomination to head up the CIA, Rand drew international attention for his filibuster over the Obama administration's use of drones on American soil.
Then, late last week, Senator Paul wrote an op-ed in the Washington Times, advocating for an end to mandatory minimum sentencing. It may go without saying, but for those not in the know, mandatory minimum sentences are laws that impose mandatory jail time for specific crimes regardless of the circumstances of the case.
Senator Paul's op-ed begins:
I, like anyone else, whether a member of Congress or a parent, am concerned with the well-being of our children. We all want to keep our families and our communities safe. We want to see violent predators and criminals put behind bars and punished for the harm they do to others and to society.
Judges will tell you that current federal sentencing laws — known as mandatory minimums — don't actually do anything to keep us safer. In fact, judges will tell you that mandatory minimums do much harm to taxpayers and to individuals, who may have their lives ruined for a simple mistake or minor lapse of judgment.
Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal.
This approach leads to our second problem: Washington's habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.
Paul's op-ed is worth reading in full. It is notable not just for the rarity of a conservative politician arguing against stiffer criminal penalties, but also because it comes at a time when the U.S. incarcerates more people, per capita, than any other nation on earth.
Mandatory minimum sentencing has been a staple of American justice for nearly four decades now, beginning its vast expansion in 1973 with the passage of what were colloquially known as the Rockefeller Drug Laws. These enacted stiff, mandatory penalties for non-violent drug offenses. Laws like the Rockefeller Drug Laws proliferated, and now mandatory minimum sentences are pervasive throughout our federal and state criminal justice systems.
Another (perhaps unintended) consequence of these laws to which Paul's op-ed alludes is the tremendous shift in sentencing power that comes with mandatory minimum sentencing. Not only are judges stripped of their ability to sentence below whatever the minimum because of mitigating circumstances, but prosecutors have become vested with sentencing authority.
In the normal course of events, it is the prosecuting attorney who makes the decision whether or not a person should be charged with a crime, and, if so, exactly what crime must they be charged with. When the prosecutor charges someone with a crime that carries a mandatory minimum, essentially that prosecutor is making the sentencing decision as well! This, in turn, allows the prosecutor to exert much more power in the plea-bargaining process.
For example, let's say a defendant is charged with a crime that carries a mandatory minimum sentence. The prosecutor, motivated by adding another conviction to his or her record, might offer that defendant the opportunity to plead to another crime that doesn't carry such a harsh sentence. The incentive for the defendant to plead guilty, skipping a jury trial and giving up the opportunity to be found innocent, is heightened.
It remains to be seen exactly how the current course can be reversed. But, with prisons and jails across our Commonwealth and nation bursting at the seams, it looks like political will to at least start the conversation is gaining traction.