“There is no liberty if the power of judging been not separated from the legislative and executive powers.” Montesquieu
In Georgia, other states, and the federal government, mandatory minimum laws force a judge to hand down a minimum prison sentence for certain crimes. Judges, who are hearing individual cases with unique facts, decide sentences daily. Yet, the two other branches of government do not fully trust the judiciary to carry out sentences that lawmakers feel are appropriate.
While there are some exceptions in Georgia, like when a person accused of drug trafficking assists law enforcement, most mandatory minimum sentences cannot be lowered.
Originally, these laws were passed to ensure that certain criminals served long prison sentences; however, these laws ineffective. Here are four reasons why:
1. UNFAIRNESS – Yes, life is unfair. However, we should not add to that unfairness by limiting a judge’s authority to tailor a sentence to the facts specific to the individual case. In the trafficking example above, someone who was an unimportant part of a drug trafficking ring might not want to cooperate as a confidential informant. This would make him subject to the mandatory minimums. Trafficking has three levels with three mandatory minimums depending on the weight of the drugs; 10, 15, or 25 years to serve in prison. Under these circumstances, he might receive the same minimum sentence as the ringleader of the whole operation.
2. PLEA NEGOTIATIONS – In the west Georgia area, about 85 percent of cases are resolved with a plea, dismissal, pretrial diversion, or some other way that was facilitated by negotiation. However, with many crimes that have mandatory minimums, there is no legal way to deviate to a lower sentence unless the prosecutor agrees to dismiss the more serious charge and replace it with a lesser offense. When a prosecutor refuses to reduce a charge, this means that even if he wanted to offer a reduced sentence for a plea, he would be unable to do so. This harms people who are minimally involved in an alleged crime to receive a lesser sentence, and avoid a messy trial that could potentially cost the accused, witnesses, jury, taxpayers, and the courts a lot of money on a case that should have been worked out.
3. INTERFERENCE WITH JUDGES – Governor Nathan Deal will be remembered because of his reforms in the criminal justice system. The only area that has not been addressed is giving judges more options in complicated and serious cases. Based on my experience, the judges in west Georgia want to do the right thing and dispense justice appropriately.
These laws, which allow the legislative branch to interfere with the judicial branch, remove a judge from his or her traditional and proper authority to consider the actual circumstances of an alleged crime.
Additionally, while the accused’s attorney can present mitigation evidence, like character witnesses, reports, etc., these critical ways to “humanize” the client can become unimportant because the judge is powerless to craft a just sentence.
4. BACKLOG – In dealing with COVID-19, the legal community, lead by Chief Judges John Simpson (Coweta Circuit), David Emerson (Douglas Circuit), and Meng Lim (Tallapoosa Circuit) has been working toward solutions that achieve justice in the courts. However, the caseload in each court is backing up daily. Prosecutors are feeling pressure build because of the need to advocate for their alleged victims. Justice delayed is no justice at all.
Cases with mandatory minimums further delay justice because of their high jury trial rate, challenges in negotiations, and the need to try each defendant separately in a multi-defendant case because of social distancing.
The judges in west Georgia can handle extremely challenging cases. It is time for the General Assembly to repeal mandatory minimum laws that hamper our judges, lawyers, and the criminal justice system.