Rand Paul and mandatory minimums: So right and so wrong

Mandatory minimum sentences are a crime against liberty. Rand Paul gets the problem but misses the solution. Photo: AP Photos

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.

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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.”

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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.

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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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More from Judson Phillips: Cold, Hard Truth
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Judson Phillips

Judson Phillips is the founder of Tea Party Nation, one of the largest Tea Party Groups in the country and the number one national tea party site on the Internet.

A lawyer by profession, Judson has been involved in politics since his teens. “Ronald Reagan inspired me,” he says.

Judson became involved in the Tea Party movement in February 2009 after hearing Rick Santelli’s rant on CNBC.   “I heard there was going to be a Tea Party in Chicago inspired by Santelli, but didn’t know if anyone was doing a rally in Nashville where I was based.  Finally I emailed Michelle Malkin and asked her if there was a Tea Party in Nashville.  Malkin sent an email back saying, ‘No, why don’t you organize one?’  I did.”

The first Tea Party in Nashville was held late February 2009 which drew a crowd of about 600. Judson then organized the Tax Day Tea Party in Nashville, which drew over 10,000 people into downtown.   It was at this time that Tea Party Nation was formed.  Later that year, Judson decided to bring activists from across the country together, so he organized the first National Tea Party Convention in February 2010, which featured Alaska’s former Governor and Republican Vice Presidential Nominee, Sarah Palin as it’s keynote speaker.

He currently manages the Tea Party Nation website, writes several daily columns and is working on more projects than any one person should.  He is a frequent guest on cable and broadcast news shows, including on Fox, MSNBC, CNN and others.

Contact Judson Phillips


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