National: Mirror, Mirror on the Wall, Who's the Fairest of them All?

Article by Brigette Sarabi

When it comes to crime and punishment, most of us want to believe that there will be a fair and even-handed hearing in open court, and that an impartial judgment will be given that holds people accountable for the harm committed, and seeks to reduce the likelihood of future harm. But if the criminal justice system were to look at itself in the magic mirror, and ask "who’s the fairest of them all?" what would the answer be?

Not judges. Mandatory sentences and various truth-in-sentencing laws at both the state and federal level have taken away the ability of judges to judge. Apparently, we don’t trust judges anymore, and we’ve decided to make them clerks pushing paper and handing out cookie-cutter sentences.

How about public defenders and defense lawyers? Those valiant defenders of the belief that each and every person accused of a crime is innocent until proven guilty? No, not the fairest.

Then it must be the prosecutors, those brave protectors of the public like Jack McCoy on the popular TV show "Law & Order," zealously making sure that crimes are punished appropriately. In truth, mandatory sentencing has taken the power to judge away from judges, and handed it to prosecutors. In a study of Oregon’s Measure 11 mandatory sentencing law, the Rand Corporation notes that "…[T]hrough selective charging practices and plea negotiation, the prosecutor determines the extent and manner in which the law will be applied…these laws [e.g. Measure 11] generally provide prosecutors with greater authority over criminal case processing than any other court practitioner." So there you have it, prosecutors have more power over criminal cases than anyone else. So presumably, they must be the fairest. Right?

Now there are some folks who think that prosecutors just want to give everyone charged with a crime the harshest sentence possible. In fact, that’s far from the truth. As the authors of the Rand study found: "Without exception, prosecutors interviewed for the study acknowledged that the measure [Oregon’s Measure 11] should not be applied in every eligible case, and that the measure, as written, provides overly long mandatory minimum sentences for many of the cases falling under its purview."

It should be heartening to anyone who cares about justice to learn that every prosecutor interviewed for that study agreed that Measure 11 provides overly long sentences in many cases. After all, rumors have floated around the state Capitol for years saying that the actual sentences required by Measure 11 were made up by a couple of guys scribbling notes on napkins at a café. So it’s encouraging to know that prosecutors, who actually have legal training on these issues, don’t think the Measure 11 sentences are based on some sort of scientific or credible evidence that proves these are the most effective sentence lengths for specific crimes. Maybe that’s because prosecutors, who see the underlying circumstances and the actual effects of law-breaking also see that each and every case is unique, because each and every case involves real people, with their individual history, circumstances, and responses.

We have lost the checks and balances that are supposed to exist in our criminal justice system. Mandatory sentencing has taken discretion away from judges, who at least had to make their judgments in open court where they could be scrutinized. Those in favor of mandatory sentences say that this is fairer, because everyone who commits the same crime does the same amount of time, no excuses. But that is simply a lie.

Since the vast majority (approximately 95%) of cases are settled through plea bargains, it is the prosecutor who now gets to decide many criminal sentences by selecting the charges someone can plead to. Plea agreements are nothing new, but the severity of mandatory sentences raise the stakes considerably. Many people accused of crime, possibly even innocent people, will choose to take a plea when threatened with an excessive mandatory sentence. According to the Rand study, "…the process by which cases are being chosen for either full or partial prosecution is unclear. Prosecutors interviewed were confident in their ability to apply the measure appropriately; however, it is not clear what criteria were used in making their decisions, or whether these criteria were consistently and equitably applied."

In other words, prosecutors are saying to the people "trust me." But without a magic mirror to see into the backrooms where plea agreements are being made, we have no idea if they are indeed fair. This is a secretive system that has no place in a democracy, a system that could be rife with abuse and we would never even know. After prisoner abuse scandals both in Iraq and states from Georgia to California, after police abuse scandals in Los Angeles, Cincinnati, Portland, Seattle and other cities, the public has every reason to fear justice behind closed doors.

In the preface to the Rand study, the authors state: "Our original proposal included an analysis of prosecutorial decisions. Though extensive efforts were made to obtain county prosecutor data during the study time frame, these data were not available." In other words, this internationally known research institution, hired by the Oregon Criminal Justice Commission, with funding provided by federal tax dollars through the National Institute of Justice, could not get data from Oregon’s prosecutors on how they were making their decisions on Measure 11 cases. It seems the magic mirror is dark. We can only hope there might be some digital photo files of plea negotiations somewhere.

This article originally appeared in the Winter 04-05 issue of Justice Matters.