The Cons of Determinate Sentencing

Mitigating Circumstances

Crimes are acts that call for punishment but in varying degrees. For instance, a longtime drug dealer caught with 30 lbs. of heroin may deserve a long prison term. However, a casual first-time user with less than 5 oz. would have had to serve the same "15-to-life" term under the recently repealed Rockefeller Drug Laws. In other cases, an illegal act may be partly justified. A child molester killed by a victim's parent is guilty of murder but probably not worthy of the same sentence as a mafia hit man.

Particularly in the area of drug crimes, determinate sentencing has led to larger and possibly unnecessary prison populations. Together with the Second Felony Offender Law, the Rockefeller Laws tripled New York's State prison population in 12 years, according to the Partnership for Responsible Drug Information. As a result, the state has had to add 40,000 beds to its prison system at an average $100,000 each for a total cost of $4 billion. Nonetheless, the prison system is overcrowded with many non-violent offenders who could lead potentially productive lives outside prison walls.

Given the unfairness of mandatory minimums, judges and juries may be tempted to forego their duty to enforce laws so that a criminal will avoid the consequences of an unfair sentence. For instance, a three-strikes law will require a felon to go to prison for life. However, the third strike may be for a crime of far less significance than the previous two or have other mitigating circumstances. Even if a judge instructs the jury not to consider the consequences of sentencing in a decision, it will still remain an elephant in the room.

Determinate sentencing laws are often so complex that even experienced judges may not understand them and impose incorrect penalties. Miscalculations include not running a mandatory term concurrently with another sentence, imposing a penalty assessment to fines, or dismissing a sentencing allegation without stating a reason in the minutes.