Mandatory sentences hold the violent, not first offenders

A recent editorial opposed mandatory sentences in Delaware. The premise of the editorial was that our prisons are overcrowded as a result of excessive mandatory sentences, and that Delaware sends first-time offenders in possession of "a paltry amount of illegal drugs ... to prison for years." That's not true on both counts.

By suggesting incorrectly that minor offenders go to jail, or excessive numbers of drug offenders are serving mandatory sentences, you do readers a disservice. The reality is that there are no easy or simplistic solutions to prison overcrowding, and we are going to be severely challenged to address the proper balance between public safety and sentencing practices.

A fair review of the facts also will show that drug offenders incarcerated for mandatory sentences are serious criminals. According to the state's Statistical Analysis Center, a recent study of every mandatory drug sentence imposed during the last six months of 2003 revealed that the average number of prior arrests per defendant was 26.2 -- clearly indicating that public safety requires these offenders be incarcerated.

Only one of those defendants was a so-called first offender, and he was convicted of drug trafficking in a case involving an extremely large quantity of drugs and weapons.

This study reported results similar to another conducted by the Statistical Analysis Center in 2001, which showed there were literally less than a handful of first offenders serving mandatory drug sentences. The oft-repeated claim that our prisons are filled with non-violent first offenders serving mandatory drug sentences is demonstrably false.

It has been repeatedly established that Delaware is using prison space to properly incarcerate violent and repeat offenders. There are a number of reasons for this. One of the first policies I adopted upon taking office directed prosecutors to treat drug offenders according to their actual behavior and not solely on the quantity of drugs possessed. As a result, the number of offenders serving a mandatory sentence for drugs offenses, despite increased arrests, dropped significantly.

Further proof that we simply are not incarcerating minor offenders in Delaware is the difficulty the state had when first implementing the boot camp treatment program. Initially, the state promoted this as an alternative to incarceration for first- time, non-violent offenders. Although there are only 30 cadets in each class, the Department of Correction could not fill a class with persons who were in jail. Subsequent changes were made to qualifications for entry, to include violent offenders and drug dealers, so that Delaware could fully utilize boot camp as a sentencing resource.

Another important change to sentencing patterns occurred last year when, after several years of review, the General Assembly passed the most comprehensive revision of sentencing laws in Delaware in 15 years. The changes reduced most mandatory drug sentences, while the penalties for many violent crimes were increased.

The Statistical Analysis Center estimated the savings of bed space, based solely on the changes to the drug laws, was approximately 300 beds.

An important provision of that bill, which I proposed, permits the last six months of any drug sentence to be served in a treatment center. We should give those changes time to work before we consider more.

Also, over the past year, a committee comprised of representatives from the Superior Court, Parole Board, Department of Correction, SENTAC and my office has reviewed the cases of all drug offenders serving sentences of three years or more, whether mandatory or not, to determine if they are appropriately incarcerated. A few were recommended for a more thorough review by the Parole Board, but overwhelmingly the consensus of the entire group was that the inmates were deservedly incarcerated for appropriate terms.

Finally, I would like to comment on the contention that mandatory minimum sentences somehow unfairly or inappropriately affect a judge's discretion. Every time the General Assembly passes a criminal statute, it designates a crime as a felony or misdemeanor, classify it within that designation, provides for other sanctions such as loss of a driver license or fines, and, thereby, sets the maximum sentence. Each of these factors affects a judge's decision at sentencing just as a minimum mandatory sentence does. It is not inappropriate for legislators to make such provisions. Mandatory sentences are a proper exercise of the Legislature's authority to reflect the public view of the severity of crimes and sanctions that should be imposed.

They were not adopted out of disrespect for our judiciary's competency. Mandatory provisions have been a part of the Criminal Code in Delaware since at least the 1950s.

The public debate over how to allocate prison beds and whether to expand prison capacity is an important one. The issues defy easy solution.

The inmates in our prisons are overwhelmingly violent and repeat offenders. Deciding how we should protect society from them while ensuring their rehabilitation is no easy task. We cannot make good decisions, that serve the people of Delaware well if the debate is clouded with falsehoods.

M. Jane Brady is Delaware attorney general.