WASHINGTON, August 19, 2013 — Rand Paul has launched another broadside against mandatory minimum sentences.
Mandatory minimum sentences are a creation of the 1980’s war on drugs. The premise is simple: If a defendant is convicted of an offense involving a certain quantity of drugs, there is a minimum sentence the judge must impose. The judge has no discretion.
The only way around the mandatory minimum is for a defendant to cut a deal before the case goes to trial. Drug dealers can turn over evidence on the people they work with, and they do. A plea bargain will take them below the mandatory minimum. The low-level player does not and often cannot cooperate enough to get federal prosecutors to file a motion to allow a judge to go below the mandatory minimums.
In most state courts, defendants in drug cases are charged based on the amount of drugs they were actually carrying when arrested. In federal court, drug agents can use “historical cases,” which means they ask a defendant about past drug dealing and use. The defendant might say something like, “I don’t know, two or three grams a week for the last five years.” The agents add that up, then charge the defendant based on the total estimated drug use, which may soar well above the level that triggers the mandatory minimum sentence.
Rand Paul correctly denounces mandatory minimums. And then he completely misses the point.
The solution to the problem is not allowing judges more discretion. The solution to the problem is not a “safety valve.”
The problem is that we give too much power to non-elected judges and take it away from the people. The solution is to return it where it belongs.
If Rand Paul is serious about ending the abuses of mandatory minimum sentences, then he should support the restoration of jury sentencing in federal cases.
The way jury sentencing should work is very simple. Every offense in the United States Code — and there are too many of them — should have a maximum sentence, but no minimum sentence.
If the prosecution and defense cannot agree on a sentence or if the case is tried before a jury, the jury decides the sentence.
At a jury sentencing hearing, the prosecution can put on evidence that it thinks the jury should consider in determining the sentence, such as the defendant’s prior criminal record. The defense can do the same thing.
It should be the absolute province of the jury to decide length of the sentence. They should also be empowered to decide how the defendant serves his sentence. They can decide whether the defendant should be incarcerated, or serve probation. If they decide on incarceration, they can also decide how much time the defendant must serve before he is eligible for parole or other forms of release.
The federal criminal system currently operates under this byzantine system of “sentencing guidelines.” The guidelines are an offshoot of a typically bad liberal idea. Liberals believe that sentences should somehow be “consistent.”
This ignores the fact that all crimes are different, all criminals are different, all communities are different, and all judges are different.
Our founding fathers spoke reverently of the right to a jury trial. Our founding fathers recognized that only a jury trial could protect our hard-won freedoms. Incarceration is by definition a taking of liberty.
The only thing that can prevent the tyranny of a judiciary is the protection of twelve citizens who compose a jury.
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