Stop Mandatory Terms

Delaware is a leader in the legal field. The U.S. Chamber of Commerce has recognized our judiciary as the top in the country. Our bar has been acclaimed as outstanding.

Another opportunity to show leadership is before the General Assembly. House Bill 181 would repeal mandatory minimum sentence laws regarding drug offenses.

Mandatory minimum sentence laws were originally enacted in New York under Gov. Nelson Rockefeller in reaction to a rising crime rate. They require a predetermined prison term based solely on the type and weight of drug possessed. The result of draconian statutes is judges lost discretion to see that punishment fit the crime. Instead, the power of sentencing was transferred to the prosecuting attorney, who can fix the prison sentence by selecting the statute under which to charge a suspect.

The judge is thus reduced to a clerk, announcing the sentence required by the statute. Aggravating and mitigating circumstances determined by Delaware's Sentencing Accountability Commission are brushed aside.

The prosecutor, and not the impartial judge, also can push a defendant into a guilty plea by threatening a stiffer penalty under a mandatory minimum statute.

Former Delaware Chief Justice E. Norman Veasey has stated: "The basic problem with these laws is that they take away sentencing authority from the impartial judge who has heard the facts of each individual case, thus requiring the judge to impose a mandatory sentence whether or not it is inappropriate or highly unjust."

Furthermore, these laws are stuffing prisons with people who should not be incarcerated for excessive terms, or who could be assigned to treatment instead. The United States has the highest incarceration rate in the world. And Delaware has one of the highest incarcerations rates among the states, burdening taxpayers with taxes. This tiny state has a prison population of 6,700.

Already, 19 states have rolled back or restructured their mandatory sentence laws, especially regarding drugs. Michigan has repealed nearly all of such laws, and is estimated to have saved more than $40 million in 2003 alone. Pennsylvania acted in 2004 to substitute monitored treatment for incarceration, and is expected to save more than $20 million a year.

At least four U.S. Supreme Court justices, each of the 12 U.S. Circuit Courts of Appeals, the American Bar Association, the Judicial Conference of the United States and the National Association of Veteran Police Officers have called for the repeal of mandatory minimums. Nevertheless, courage is required to overcome the political right.

Already, 34 members of the Delaware House of Representatives and the Senate have agreed to bipartisan sponsorship of House Bill 181. So do many local church and social work groups.

Thoughtful change will permit crafting sentences for drug violations based on the characteristics and record of individuals rather than a group.

There are concerns that use of a weapon during the commission of a felony, causing physical injury and prior convictions would not receive proper attention from a judge. Every one of those factors would be subject to existing laws.

There is no good reason to delay the reinstitution of sentencing based upon individual characteristics.

Victor F. Battaglia Sr. of Wilmington and Edmund N. Carpenter II of Centreville are lawyers.