Over the years, Georgia and the federal government have passed more sentencing laws that require a judge to sentence a defendant to at least a certain number of years for a particular offense. This is called a mandatory minimum sentence (MMS).
The best example of this is the trafficking statute in Georgia. If, for example, a person is convicted of possessing 28 grams or more of cocaine, the minimum sentence that must be imposed is 10 years in prison (with some limited exceptions). The more grams, the higher MMS.
There are legitimate public policy reasons for MMS. The strongest argument for MMS is that certain offenses demand a specified minimum sanction to ensure that anyone who commits such a crime cannot avoid a just punishment. Additionally, MMS is supposed to ensure fairness and consistency in sentencing across the state and the country.
This line of thought also shifts the balance of power from the judiciary to the legislature.
While I would normally agree with siding with the legislature on criminal matters, I cannot do so in this instance.
According to the Heritage Foundation, MMS have not eliminated sentencing disparities because they have not eliminated sentencing discretion; they have merely shifted that discretion from judges to prosecutors. Judges may have to impose whatever punishment the law requires, but prosecutors are under no comparable obligation to charge a defendant with violating a law carrying a mandatory minimum penalty.
As a practical matter, prosecutors have broad discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence. However, when charges are brought with MMS, the plea negotiation process bogs down significantly. While some cases should be tried before a jury, the majority of cases are handled by defense attorneys and prosecutors through the plea bargaining process. This is time consuming and requires a lot of work to be done properly. However, when you have skillful and honorable attorneys on both sides, they will routinely come up with a just result without the necessity of a trial.
Because of the MMS required in some criminal statutes, many cases are tried before a jury that should never have been a trial because of the overwhelming evidence of guilt. The defendant often will choose a trial because he “has nothing to lose.” Why enter a plea to the top level trafficking offense in Georgia that carries a MMS of 25 years when the maximum sentence is 30? These trials are expensive, waste taxpayer money, and waste limited judicial resources. Lastly, MMS probably does not reduce crime. As University of Minnesota Law Professor Michael Tonry has concluded, “the weight of the evidence clearly shows that enactment of mandatory penalties has either no demonstrable marginal deterrent effects or short-term effects that rapidly waste away.” In other words, MMS is not an effective tool in positively affecting crimes rates nationwide.
I realize that MMS can help elected officials gain credibility with the public by being “tough on crime.” But, many of us who work within the daily operation of the criminal justice system know that MMS does not make our state or country any tougher on crime than having laws without MMS but with very high end maximum penalties; i.e. 30 yrs in prison, life sentences, death sentences.
If our legislators would do away with MMS in Georgia, our criminal justice system, taxpayers, and the general community would be given a significant benefit.