A false move
DAs don’t need mandatory minimums to get guilty defendants to cooperate
Earlier this week, the Pennsylvania House approved a bill to reinstate some mandatory minimum prison sentences. These laws require one-size-fits-all punishments and prevent judges from considering relevant facts before imposing a sentence. The bill was strongly backed by the commonwealth’s district attorneys who say they can’t keep bad guys off the street without these laws. They’re wrong, and I should know. I used to be a prosecutor.
What astonishes me about some of the arguments I hear today is how different they are from the justifications we used to hear from proponents of mandatory sentencing. Years ago, supporters of these laws said they were needed to ensure that the most violent and dangerous offenders — the “worst of the worst” — got lengthy prison terms. By imposing a uniform sentence, these laws were also supposed to improve fairness.
What we quickly learned, however, is no two crimes and no two defendants are exactly the same. So imposing the same sentence didn’t create uniformity; it created unfairness. The low-level corner drug dealer often received the same, lengthy prison sentence as the kingpin who hired him. In fact, in a total perversion of common sense, the kingpin sometimes would get a shorter sentence because he was able to give prosecutors more information about other people whom they were investigating. In return for this information, the prosecutor would ask the judge to reduce the kingpin’s sentence.
Applying lengthy mandatory sentences to everyone might be considered “tough on crime” by some, but in reality it is a waste of taxpayer dollars and human lives. Moreover, it undermines safety because it forces the commonwealth to spend money locking up low-level offenders when that funding could be better invested in hiring more police and prosecutors. Spending on these things would actually deter crime. In fact, research shows that fear of being caught and punished is a greater deterrent to a would-be offender than fear of a severe sentence.
Today, the DAs supporting mandatory minimum sentences are no longer pretending that these lengthy prison terms are reserved for the worst offenders. Instead, these prosecutors admit that they really want mandatory minimums because they make it easier to threaten lower-level offenders into pleading guilty.
The inconvenient truth is that DAs do not need mandatory minimums to get guilty defendants to cooperate and plead guilty. Sure, being able to threaten long prison sentences might make their jobs a little easier, but prosecutors already have extraordinary and unreviewable authority to offer a defendant a better deal than they would get by going to trial and facing a judge. Defendants are usually scared and ready to take whatever gets them the shortest sentence. That is why 95 percent of all individuals charged in Pennsylvania with drug felonies plead guilty, even without mandatory minimum laws in place.
The DAs do not mention that some states, including Texas, do not have mandatory minimum sentences. Needless to say, Texas is not exactly known as being “soft” on crime and yet its prosecutors are able to prosecute and put away major dealers and other dangerous offenders without using mandatory sentences.
DAs used to argue that mandatory sentencing laws were needed to keep the public safe. This claim is demonstrably false. Over the past 20 years, dozens of states have either repealed or dramatically reformed their mandatory sentencing laws. Crime rates and prison spending dropped in all of them.
Pennsylvania’s own experience is similar. Since the Supreme Court declared many of the commonwealth’s mandatory sentencing laws unconstitutional in 2014, violent crime has decreased. Philadelphia, for example, has a lower crime rate today than it has in decades.
Contrary to the claims of some DAs, mandatory minimums do not make us safer. Nor will longer prison sentences help us combat the frightening rise in opioid addiction and overdoses. Our communities would be better served by making substance abuse treatment available to more residents than by throwing addicts in prison.
Bringing back mandatory minimum sentencing laws in Pennsylvania would be a mistake. Experts and advocates from across the ideological spectrum, including the Commonwealth Foundation, ACLU and American Conservative Union, agree. As one who personally prosecuted criminal cases and knows the system firsthand, I hope the Pennsylvania Senate will listen and reject the House bill.
Patrick Nightingale, an attorney, spent six years with the Allegheny County District Attorney’s Office and was one of the founding members of the Domestic Violence Unit. He is a member of Law Enforcement Action Partnership, a nonprofit organization of police, prosecutors and others promoting criminal justice reforms.