Mandatory Sentencing

By members of The Law Project

Vol. 2, No. 4, 1980, pp. 5-7

There is a great push on, in the media and among politicians, to institute mandatory sentencing and to otherwise impose more stringent sentences. Unless strongly opposed, this effort will likely be successful in the next session of the Georgia General Assembly. People are concerned with crime and the uncertainties of modern living, and they crave certainty. However, mandatory sentencing is not the answer. It will merely aggravate the present problem: too many people, particularly young men, are being sent to prison.

The Georgia penitentiary system is a crime. It brutalizes people, gives graduate instruction in crime and is seriously dangerous to your health. The United States regularly incarcerates more people per capita than any other country in the so-called free world except South Africa, and Georgia is regularly at the top of the list of states in per capita incarcerations. (We've also had more executions and lynchings than any other state.) Why do we pay such a price for social order when others don't seem to have to do so?

Most "crimes" in Atlanta and elsewhere are committed by young men from about age 15 to 25. (We use quotes here because there is more white collar and board room stealing, but a good part of that goes unpunished, is lightly punished or isn't even against the law.) A large number of persons caught and sentenced are Black. Blacks make up 60 percent of the prison population but only 25 percent of the general population. The Black incarceration rate nationwide is about eight times more than White incarcerations.

Poor Blacks are particularly apt to get a time sentence when for the same offense, a middle class White person would skate


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by. (Lawyers have a motto: innocent till proven broke.) Poor Blacks will be particularly affected by harsher sentences, too. For example, the Atlanta Journal & Constitution (September 9, 1979 at 5-D) reports that in 1974 only 18 percent to 33 percent of those convicted of embezzlement, fraud and tax fraud went to prison and only for a year to a year-and-a-half. But 38 percent to 60 percent of the people convicted of burglary, larceny and auto theft went to prison for an average of two-and-ahalf to five years.

The prison system is one of the last bastions of raw White racism. Middle class Blacks don't like to make an issue of this because they don't want to be accused of being soft on crime (much like moderate Whites in the 50s and 60s didn't want to be tagged as a "nigger lover"). But, it is time for all concerned citizens to be upset by the inequities of the so-called criminal justice system.

If putting more people in jail for longer periods would promote social order, it might be justifiable. But it won't. Statistics show that the rate of recidivism for persons who have been incarcerated is much higher than for persons who are given alternate methods of treatment, such as work release. And keeping people in prison is expensive in itself. This society will lose all the way around. A few years ago we did away with jury sentencing in Georgia on the ground that there was too thuch disparity in sentences. Judge sentencing did not solve the problem and has resulted in just as much disparity (and it allows the State to pistol whip defendants into guilty pleas, sometimes, by holding over their heads the certainty of a harsh judge-imposed sentence if they don't give in).

If anything, we need to go back to jury sentencing which allowed a community voice in punishment after hearing the mitigating and aggravating circumstances - rather than going further down the slippery slope to mandatory sentencing. The proponents of most of the mandatory sentencing plans try to make them more palatable to people of conscience by saying they are merely trying to eliminate "disparity'' in sentencing. The media has avidly purveyed this line. But a principle sponsor, State Sen. Bud Stumbaugh of DeKaib County, blew this cover by declaring "that determinate sentencing would help cure 'judicial leniency'." (Atlanta Journal, Sept. 18, 1979 at 10-A.)

David Evans, Georgia's Commissioner of Offender Rehabilitation and not known as a bleeding heart, sees mandatory sentencing and attempts to repeal the good time allowance for what they are. He opposes the proposals, saying "I don't want the State to overreact and start changing laws to say that we have to keep people in prison longer." (Atlanta Constitution, October 10, 1979 at 3-C.

As anybody who reads the Atlanta newspapers can see, they are cultivating an air of hysteria over the "rising crime rate". For example, the Journal, on September 17, 1979 ran a frontpage story under a headline claiming that "Leniency Trend Thwarts Justice''; an accompanying story was headlined "Disparity Marks Prison Terms." The thrust of the "Leniency" story was that in a half-dozen or so cases the recipients of short sentences went on to commit another serious crime. The existence of recidivism is hardly news; it would have been much more interesting for them to have told us what percentage of the people receiving various kinds of sentences become recidivists. In our experience, for example, a great majority of our clients who receive probation haven't entered the criminal justice system again.

The newspapers' recent scare articles never seem to mention a September 9, 1979 reprint in the Journal/Constitution "Perspective" section of a report by the director of the National Council on Crime and Delinquency's Information Center. That author makes a convincing case that it is the reporting rate, not the crime rate, that is on the rise. Citing statistics gathered by the Bureau of the Census from crime victims, rather than from police reports, he concludes that the overall rate of serious crime has remained essentially stable for many years. "Thus," he says, "the phenomenon of drastic increases in crime rates is explained by the fact that law enforcement agencies have been dipping ever deeper into the vast reservoir of unreported crime."

One thing everybody agrees on is that the mandatory sentencing proposals will cost us taxpayers a lot of money. More judges, courtrooms, prosecutors, bailiffs, clerks, jurors, and other functionaries to handle the


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increased number of trials will result from the lessened opportunities for plea bargaining. And the longer sentences will require more jails, prisons, wardens, guards, and bureaucrats.

If the legislators are really interested in reforming sentencing, reducing disparities, and saving money, they would do well to study California's fairly new sentencing law This law holds almost all sentences below about six years and removes a good bit of the judges' discretion. We don't know whether we believe California has the answer or not, but it's at least better than the double digit sentencing proposals we're seeing here.

The preceding article was provided by members of The Law Project in Atlanta.