Mandatory Sentencing

Marvin Manross^*

ABSTRACT: This is the transcript of a conference presentation in which Mr. Manross discusses the problems with Arizona's mandatory sentencing laws.  A result of these laws is the imposition of such long sentences that defendants are placed under tremendous pressure to accept a plea bargain, even if they are innocent.  At the same time, families are more likely to protect actual abusers.
  

They tell me on the schedule that I should speak on mandatory sentencing.  While I can do that, I have to confess to you that I cringe every time I hear that word.  The reason that I cringe is that it represents to me a failure on the part of the reasoning members of the community to package a concept adequately.  This is not mandatory sentencing.  It is mandatory overkill.

On the abortion issue we find people saying, "I'm pro choice."  Almost any segment of society identifies with, "People ought to have choices."  The other side says, "I'm pro life."  How can you be against life?

What we have done here is allow one side of this issue called mandatory sentencing to identify with the concept that criminals should face swift, prompt and sure punishment.  It's mandatory that if you commit crimes you're going to be punished.  That's a concept a lot of people can agree with.  It's a concept that I agree with.  But the mandatory sentencing that we have here in Arizona, if we can continue to use that term, is something else completely.

I hate statistics, but let me give you a few here.  Dangerous crimes against children are defined in this state rather specifically.  But in many of the jurisdictions of the United States what is a mandatory sentencing, what is a potentially "rest of your life" type of sentence, in many jurisdictions of this country is a misdemeanor.  The minimum Arizona sentence for a dangerous crime against children is more than the maximum in 36 other states.  The last time I looked, the minimum Arizona sentence was more than the minimum sentence in all 50 states and federal statues on the same subject.  The maximum Arizona sentence is more than the maximum of 46 states.  Of the states that have a higher maximum, all of them have tremendously low minimums.

What we've got here is a situation where we not only have tremendously tough sentencing laws, but also very high minimums so that anyone who is convicted of this type of crime is facing some very severe punishment.  Nobody is in favor of child molesting.  Nobody wants sympathy for child molesters.  But those facts which I hope to develop here get in the way of other things.

Think about it on a national level.  What would it be like if George Bush got on the phone and called up Sadam Hussein and said, "Sadam, we've gotten together with Congress today and we've decided that if you guys don't get out of Kuwait, we're going to bomb the entire middle east."  Or maybe if we put it on a micro level, some of you can recall your parents telling you, "If you do that again, we're going to ground you for the rest of your life."  Or maybe, "If you do that again," my mother used to tell me, "I'll break every bone in your body."

Now look at this.  What are we doing here?  Its an emotional response, first of all.  It represents a loss of control on the part of your mom when she says something like that, because she doesn't know what else to do.  It's gotten out of hand, it's not well thought out, and what we've done here in Arizona is taken that kind of emotional response and we've made it the law.  And we're not just threatening to do it, we're actually following through on these emotional "threats."  There are a lot of things about mandatory sentencing that I can talk about, but, essentially, if we just think about it in terms of what it costs society, I think that we'll focus on the right things.

First of all, let's talk about financial costs.  Since 1978, the prison population in Arizona has quadrupled.  The budget for our prison system has tripled.  They tell me that it costs an excess of $30,000 to house an inmate in Arizona State Prison for one year.  We have skyrocketing prison costs.  We have overcrowding.  With overcrowding we have increased violence.  And guess what?  Even though we've got tough laws it's not a death sentence, and these people may eventually come back out into society.  We have no rehabilitation programs and these people are ultimately going to be turned loose on us again.

But the major cost to society with mandatory sentencing is what it does to the quality of justice.  In the traditional system, a person goes to trial and he's either acquitted or he's found guilty.  If he's found guilty, the judge looks into his background, looks into his character, considers the nature of the crime and comes up with an appropriate sentence taking into consideration all those circumstances.

With mandatory sentencing we've done something completely different.  We've taken the power away from the judge to consider all of those factors and the legislature has essentially said, "Judge, we don't trust you anymore.  We want you to sentence everybody with extremely, extremely tough sentencing.  We want you to put this person away for the rest of his life."

In Arizona, we have a concept that is unique, it exists in no other state of the union.  It is something called "Hannah priors."  Essentially what this means is that when the police officer is interviewing a child to determine whether or not he has been molested or sexually abused in any way, and the child says, in response to a leading question perhaps, "Yes, that has happened," then the next question the detective asks is, "How many other times did it happen?"  The child then assumes that it must have happened more than once because otherwise the officer wouldn't be asking that type of question; so he comes up with a number.  Under Arizona law, whatever that number is, is the number of priors you have for sentencing purposes.  Even though you have never been convicted of anything, if the child says, "Well, you know, it happened 10 times," you are a 10-time loser when you stand in front of the judge, as if you had been convicted 10 times previously and this was the 11th time.

Essentially, regardless of what the numbers say, and I can tell you what all the numbers are, they start at about 12 years and they go up from there, and 12 years is the mitigated sentence, the 17 years is what you actually get.  This is flat time, this is not eligible for parole, ever.  In fact, we have recently stricken the provision in the law that said, "After you do all 35 to 55 years or whatever, you are on parole the rest of your life."  Our Supreme Court has stricken that as being unconstitutional.  So essentially, what happens now, is that you go down there without any rehabilitation, if you get out of prison at all, you are under no constraints whatsoever, and you are turned loose on society again and you don't have to report to anybody.  And with Hannah priors you can almost guarantee that in any given case you're looking at the rest of your life.  There is no discretion in the courts, you will get prison time and you will get a bunch of it.

So what happens here, when we don't trust the judge and we have Hannah priors, is that we have taken all the sentencing discretion away from the judge and given it to the prosecutor.  The prosecutor has virtually unlimited discretion to decide what kind of a charge he wants to bring against you, and how many charges he wants to bring against you, and whether or not he wants to allege that it was dangerous, and whether or not he wants to allege Hannah priors.  If the prosecutor so chooses, you are basically charged with those ten counts of child molest because the child says, "It happened 10 times, I can't remember any of them, but I'm sure that it was 10 times."  Even if the child isn't sure, the police officer will come in with the hearsay rules that we have and tell the jury that, in fact, it happened 10 times, and if the jury convicts you of 10 times you will basically do 10 times 17 years, as a minimum.  In fact, I think that's even wrong.  I think that once you get passed a first or second prior it's life, or 35 years to the parole board.  By way of comparison, if you murdered a person, you would be in front of a parole board in 25 years.  But if you only touched them in a sexual way you wouldn't find yourself at the parole board before 35 years (for each count).

What happens when the prosecutor has the complete discretion to decide the sentencing is only insidious when you start thinking of what happens with a particular prosecutor.  Although we would like to say that a prosecutor's job is to do justice, in practice the prosecutor's job to move cases.  He basically has 25 new cases coming in the front door every week and he's got to kick some out the back door, otherwise the system entirely bogs down.  There are only three ways he can move cases.  One is by going to trial which is the most difficult.  The second way that he can move cases is by dismissing them.  If he dismisses them, however, his career as a prosecutor is likely to be short lived.  So that leaves him one other alternative — that of plea bargaining.  A prosecutor has every motivation in the world to try to get the defendant to plea bargain.  One of the ways that he can get the defendant to agree to a plea bargain is by alleging Hannah priors, by alleging dangerous crimes against children, by making it so terribly awful for him to go to trial, and then offering him something that is ostensibly better.

The system that we have here in Arizona is a little bit like having the home team pitcher calling the balls and strikes.  When he throws a ball he says, "Well, that one was a strike."  He throws another one and says, "Well ... I think that one was a strike, too."  We no longer have the traditional system of the judge looking for justice, we no longer have the system of trying to have the punishment fit the crime.  We have a system of where the prosecutor is trying to coerce the defendant into pleading guilty.

So essentially what happens in my law practice — and over the past decade I have spent a substantial portion of my time representing people falsely accused of child sexual offenses — is, when I interview a client for the first time, I tell him, "I'm not interested in taking your case if you want probation, because I can tell you that the prosecutor, in a lot of cases that I would consider taking to trial, would offer you probation.  He will recognize that this is a case that he could lose.  He does not have any evidence other than a twisted, coerced story from a child that is likely to change, and probably is changing as we speak right now.  If you are interested in taking probation, you do not need me.  If you are interested in going to trial and risking your entire life savings and your entire life, then we should talk further."

We have a system that is perverted.  It's kind of like when you were a little kid.  Many of you used to flip quarters for lunch money or toss pennies in a line.  When you did that, your friend that you were playing with had a similar risk.  He could lose just as much as you could.  Well, I'm here to tell you that the prosecutor in a child molestation trial never goes to prison.  He has no risk similar to yours.  It is as if we were flicking for $100 bills and even though you might be willing to flip quarters for $100 bills, if you win, I only have to pay you $100.  But if I win, I get to put a gun to your head and blow your brains out.  It is not fair any longer and that is the fundamental problem that has occurred here in Arizona with mandatory sentencing.  It is not fair.

What happens is the prosecutor uses these sentencing tools as a means of manipulating the persons who would otherwise exercise their right to a trial into giving up that right to a trial simply because the risk is too high.

Another thing that we need to think about in this mandatory sentencing issue is that, why are we doing it in the first place?  You have to keep in mind that mandatory sentencing is a back-end solution.  It does not stop crime, it basically is a response which acknowledges that you have failed at stopping the crime.  We're saying, "Now look!  What are we going to do about it."  The whole purpose in having tough laws is hopefully, to deter people from committing crimes.  Only in this particular area of the law, in child sexual offenses, we know, behaviorally, that pedophiles are among the most resistant to change.  They do it because they want to.  They do it because they are compelled to.  They do not want to be rehabilitated.  They do not want to stop, and they will do everything they can to continue.  They do not stop because we have tough laws out there.  What happens in actual fact, with these tough laws out there, is we find that their families protect them.  Quite frequently, for better or worse, the persons who are actually molesting children are the economic providers of that family unit, and the families see that they are going to lose that economic support if they turn in this person who is molesting the children in the family.

We have a mandatory reporting requirement here so that if they try to get help, or if you as a spouse in that family unit were to try to get some help for someone that is abusing the children, every psychologist, every social worker, every nurse, every hospital, everybody that you could possibly turn to for any relief, has a mandatory duty under pain of losing their license, to turn you (or your spouse) in to the authorities, to subject the offender to the rest of your life in prison.

You can't get any help.  And so what happens is we have built in a trap with this mandatory tough sentencing that allows the prosecutor to pervert the system of justice, and requires the family unit to protect the molester.  Thank you, Roland Summit.  This is not a good system.  It is a terrible system.

What happens in the system that we have here, is that innocent people plead guilty to avoid the disastrous consequences.  I can tell you that as a pragmatist, and most attorneys are pragmatists, sometimes we have to tell our clients, "It just simply isn't worth the risks in going to trial."  We are faced with lies.  We are faced with perversion.  We are faced with all kinds of snake oil, psychology, psychiatry, and litmus tests to prove that this child is telling the truth.  And sometimes we have to tell people who are telling us that they are innocent, "You've got to evaluate whether or not these risks are worthwhile."

The poor sometimes end up pleading guilty because they don't trust their public defenders.  And the middle class certainly end up pleading guilty sometimes because they simply cannot afford the quality type defense that it takes to defeat one of these charges.

On every level that you look at this mandatory, sentencing law, it does not work to deter — it perverts our system of justice.  It is not fair.  And it's barbaric.  The attempt to have the legislature decide in advance what an individual's sentence should be is just something that is foreign to me as an attorney that has practiced for almost 20 years.

It is like one of my law school professors told me in law school when we were discussing what a bill of attainder under the constitution was: "Imagine an island in the Pacific enacting a law that would say, 'Well, Marv, you've just been declared guilty of first degree murder and this law says that you're going to be shot on sight.'"  That's a little bit like mandatory sentencing.  We are deciding in advance that because of the Christy Ann Fornoff case and other cases of that nature (well-publicized sexual assault or murder involving children victimized by senseless acts of cruel and depraved violence) that the emotional response, the unthought-out response is going to be made the law of this state.  It is your mother saying, "I'm going to break every bone in your body."  Your mother said that in the hopes that you would conform.  The legislature, if they thought about it, would realize that it doesn't work to make these criminals conform.  It doesn't work.  What it does do, is pervert our system of justice and it is absolutely wrong.

In this state, if you're 50 years old, you can almost guarantee that you will spend the rest of your life in jail. In fact, if you are a young man, and I've represented people less than 20 years old facing the rest of their life in jail, the minimum that they could get here in Arizona is every day, day for day, 12 years, and that's if the judge likes you.  If the judge just doesn't like you or just doesn't know anything about you, you're supposed to get 17 years per count.  I've never seen one of these kinds of cases where, when a detective asks a little girl, "Well, how many times did it happen?", she doesn't always say more than once.  As soon as she says that, you're looking at Hannah priors and you are coming before the judge as a 2-or 3- or 4- or 5- or 6- or 10-time loser, which essentially is a life in prison sentence in this state.

It's irrational.  We need expanded, not diminished options in these sentencing discretions.  We need to support, to maintain funding for non-prison options.  We need to maintain funding for front-end solutions.  Sentencing people does not solve the problem.  Getting tough on crime does not make crime go away.  We need tough laws and we need to treat criminals firmly.  But we don't solve crime problems when our total response to crime is tough mandatory sentencing laws.