Pubdate: Fri, 27 Jun 2014
Source: Bangor Daily News (ME)
Copyright: 2014 Bangor Daily News Inc.
Author: Jonathan Blanks


Imagine this: Two defendants, same age, smoke joints with some 
friends one July evening in their apartments. Neither has a criminal 
record. Both get caught; one faces an extra two years in jail.

Why? Because he shared drugs within a certain number of feet from a 
school that's been out for a month.

The so-called "Drug Free School Zone" is one of many laws that create 
extra penalties for already illegal acts with no reasonable tie to 
the public's safety or the defendant's particular circumstances.

It hasn't always been like this. Historically, U.S. law and custom 
have provided robust protections for defendants. Four amendments in 
the Bill of Rights directly address rights during criminal 
investigations. Until the 1800s, juries not only determined facts of 
law - that is, whether the law was broken - but whether the law in 
question was just in the first place.

Unfortunately, these principles have eroded over time, particularly 
in recent decades. Congress and many states have legislated harsher, 
blanket punishments for crimes considered public priorities, 
regardless of what a judge or jury might deem appropriate. Many 
times, these laws are passed with the best of intentions, often in 
response to tragedies involving young children. But they handicap 
judges and juries, making it impossible for them to determine whether 
or not a legislated punishment is reasonable given the facts of the 
case. Moreover, harsh automatic punishments give prosecutors more 
leverage to extract plea bargains from defendants, because a judge, 
upon conviction, will be obligated to inflict a harsh penalty no 
matter what sentence he thinks the defendant deserves.

In a nutshell, these laws instruct our criminal justice system, "For 
the sake of the children, don't think!"

Take, for example, Drug Free School Zones. In all 50 states, selling, 
manufacturing and sometimes just possessing illicit drugs within a 
specified distance of a school, park or day care center may trigger a 
higher punishment for the underlying drug offense. Some statutes are 
written so broadly that huge swaths of major cities - often black or 
Hispanic neighborhoods with high population densities - are covered 
by overlapping Drug Free School Zones, negating any deterrent effect 
and skewing enforcement against minority communities. These penalties 
are applied whether or not children are involved, and even if the 
school is out of session.

Sex offender registries are also problematic. Taking a hard line 
against child predators by limiting their access to children seems 
perfectly reasonable. But not all sex offenders are child predators. 
Some individuals on the registry were prosecuted years ago at 17 or 
18 for having consensual sex with their 15- or 16-year-old 
significant other. Even so, the law significantly limits where they 
can live their lives. The statutes might prevent a father from 
attending a daughter's recital at her school because he was convicted 
of public urination after too many drinks and a long line at a 
concert in college.

The War on Drugs gave rise to punitive sanctions targeted at cartels 
and gang leaders. Ramped-up, "mandatory minimum" sentencing for 
weight-based drug statutes were sold as weapons against kingpins. But 
most often, these sentences are imposed upon low-level dealers and "mules."

These broad statutes create a system that can't distinguish grown men 
from schoolchildren, serial rapists from amorous teens, or drug mules 
from kingpins. Such a system is dysfunctional - stupid, even.

Thankfully, state and federal policymakers are beginning to recognize 
this. Because stupid policy can get awfully expensive.

According to the Sentencing Project, several states, including 
Indiana, New Jersey, Kentucky, South Carolina, Delaware and 
Connecticut, have reduced the scope and breadth of their Drug Free 
School Zones. Some lowered the geographical reach, others eliminated 
or greatly reduced mandatory minimum sentence enhancements, and still 
others made the offenses at least tangentially tied to exposing 
children to the drug trade.

The Senate is considering the Smarter Sentencing Act, introduced by 
Sen. Mike Lee, R-Utah, and Richard Durbin, D-Illinois. This bill 
would reduce some mandatory minimum sentences for nonviolent drug 
offenders and allow many already incarcerated under the old 
guidelines to apply for sentence reductions

In a similar vein, the U.S. Sentencing Commission will decide whether 
to make recent two-level sentence reductions for all non-violent drug 
offenses (effective Nov. 1, 2014) retroactively applicable to all 
relevant federal prisoners. More than 50,000 current federal 
prisoners may be eligible, potentially saving hundreds of millions of 
dollars or more.

The stupid laws and rules promulgated over decades of "tough on 
crime" rhetoric will take years to reform and correct. Throwing the 
book at offenders with well-meant but misguided lawmaking has wreaked 
havoc on correctional budgets while breaking up families and damaging 
local economies in the process. Policymakers who are now 
re-evaluating laws and extending review to thousands of inmates 
subjected to blind punishment would do even better than the reforms 
above to let judges decide who is punished and how severely in the 
first place. Certainly such a system would be imperfect as well, but 
mistakes made in individual cases would harm far fewer people than 
those subjected to inflexible categorical judgment of legislators and 
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MAP posted-by: Jay Bergstrom