Minimum sentences thwart local control


Two competing impulses — both valid — are now clashing in conservative policy debate. Law and order are good things. So is less government. But one of those values will have to give way in the question over mandatory minimum sentences.

Attorney General Eric Holder is calling on Congress and states to rethink mandatory minimum sentences for various offenses.

So which is better? Being tough on crime? Or keeping government’s dictates to a minimum? Actually, there’s a third value that should tip the scales for conservatives: local control. And mandatory minimum sentences, enacted by the legislative branch (whether at the state or federal level), reduce local control. They limit options available to judges and juries, and the ability to craft sentences that better match circumstances.

Still, many supporters of such sentences are now trying to make the case that being tough on crime should be the winning argument.

“Two generations ago, in the ’60s and ’70s, we believed we could uniformly trust judges to get it right at sentencing, with no binding input from Congress,” writes Georgetown University law professor William Otis in USA Today. “The result was a national crime wave. Big cities, for example, had twice the amount of murder they have now. By the ’80s, we had learned our lesson and embraced determinate sentencing. That meant sentencing guidelines and, for a few very serious offenses, mandatory minimums below which the judge couldn’t go.”

There are several problems with that statement, beginning with the premise that the crime wave of the 1960s and ’70s was the result of a lack of sentencing guidelines.

That’s a stretch. Those decades were a period of tremendous social change. Drugs played a major role in that change — from the casual acceptance of drug use among the middle class to the scourge drugs became to the inner cities. At the same time, we say the beginnings of the disintegration of the family as a bedrock institution of our society. Some researchers point to other culprits, such as leaded gasoline (and lead paints) and even abortion rates.

So without some demonstrable proof, Otis can’t pin the crime wave on the lack of sentencing regulations.

What’s more, even during the crime wave, there were, in fact, many judges who did “get it right at sentencing,” in Otis’ words — but the crime wave was pretty much indiscriminate in its extent and geographical area. Conservative regions with tough judges saw crime increase, too.

Otis’ main argument is that mandatory minimums shouldn’t be abandoned because they work. And success is, indeed, a powerful argument.

But there’s an even more powerful argument to be made here: Letting judges tailor their sentences to the case at hand works for more people.

That’s why local control is almost always best. By definition, most legislation handed down from on high is one-size-fits-all. That may make for good politics, but it doesn’t make for good policy.

And judges in Texas are a great example of why local control is best. If we don’t like the sentences they hand down, we can let the know directly — at the ballot box.


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