Mandatory Minimums and Plea Bargaining

Scott Hechinger, attorney and policy director for the Brooklyn Defender Services, has a fascinating op-ed in today’s New York Times, calling for the end of mandatory minimums. He argues that one of the problems with mandatory minimums is that they make police misconduct more difficult to manage.

From the perspective of negotiation, mandatory minimums represent a “credible threat” that prosecutors can use to convince a defendant to take a plea deal. One possible upside of mandatory minimums is that they remove some discretion from prosecutors (and judges) and create more “knowns” in a process that is largely opaque. But this loss of discretion arguably makes bargaining power even more disparate in favor of the prosecution, which can use the minimums as strong negative leverage in the negotiation. This leverage, in addition to the prosecution’s already large number of persuasive tools (e.g., exploding offers, adding enhancements and charges, etc.), helps explain why even innocent people might choose to take a plea.

Hechinger takes this analysis a step further, pointing out that mandatory minimums in the plea bargaining context make possible continued abuses on the part of police. Most people plead guilty (95% of all convictions are from guilty pleas). Once people have pled guilty, they can no longer argue that the police acted in violation of their Constitutional rights. In other words, the guilty plea serves to insulate bad cops from being held accountable for their misconduct. And because mandatory minimums make guilty pleas easier to get, they likewise make police misconduct easier for the criminal justice system to ignore.

Related to all this, I received a notice from Carolina Academic Press yesterday stating that Andrea and Cynthia’s book, Negotiating Crime, is coming out this October! Not a moment too soon.

3 thoughts on “Mandatory Minimums and Plea Bargaining”

  1. This article presents a couple interesting points about the pros and cons of mandatory minimums. I think the author made a strong point when discussing how mandatory minimums remove some discretion from the prosecution. This removes some abuse of power by the prosecution in the types of sentences they offer when offering a plea bargain. With the mandatory minimum being the highest sentence they can threaten, the accused knows he is not getting an answer from the prosecution that is way out of proportion. However, with these mandatory minimums, it almost suggests the accused to take any deal that the prosecution offers that is less than the mandatory minimum. This packs on some added pressure for the accused to accept the deal and perhaps even takes away some bargaining power on their end.

    Further, I do agree that mandatory minimums can act as a shield for police misconduct. With the added pressure of accept a deal because it is even just a smidge less than the minimum, there is no further review, it ends here. The accused cannot appeal the decision when he/she pleads guilty. Thus, if there was any police misconduct, it is buried away. This could potentially lead to a cycle of repeated police misconduct because it is easier for them to “get away” with their actions where mandatory minimums apply.

    Lastly, I think that mandatory minimums could potentially be appropriate for some types of crimes but I do not think all. I believe this especially to be true in drug cases. With drug offenses, there is wide room for abuse of discretion in a variety of stages, particularly at the law enforcement level. This could be particularly damaging, especially if there is agreement that mandatory minimums shield the police from accountability of misconduct.

  2. I found the article to be interesting. While I can agree with the idea that mandatory minimums do often cause people to accept deals that are better then what they could be facing, I have a hard time having the focus of the article saying that it is mostly to shield police misconduct.

    Prior to this article I hadn’t thought about the mandatory minimums or the one time deals. Though I do find that there being some kind of scale to know what you are up against for a specific crime, I don’t think it is always used in the most positive means. Charged persons are likely to see the reduced plea deal as a better option then what they could get in court. I would also think that this is even more true for the poor and socially stigmatized individuals would find themselves in the position to have to choose. The less information someone has, and the less they can afford a good attorney who has their interests at heart, the better a plea deal looks as it is a certainty they can see versus the one the harsher one that they may end up with.

    While any role can have the negative actors, I find that the prosecutor is the one that has the position to control how the plea bargains are shaped, communicated, and utilized. It is this position that has visibility to other areas of the criminal justice system that can gate the negative actors of the other area. As was spoken about previously, this is a good means to not utilize/or believe cops that seem to always have the same times of crimes. It is also a means to maybe really look at the more minor crimes, especially where there is no previous record, and decide if it is really necessary to bring the charge in the first place.

    In the end, I find it is the prosecutors role to make sure that pleas bargains and the mandatory minimum are used in a means that is beneficial to society as a whole and not just to their particular role.

  3. As I read this article, I was focused more on the issues surrounding plea bargaining rather than mandatory minimum sentencing. While I do agree that mandatory minimum sentencing is an overlooked culprit in insulating police misconduct and plays a major role as to whether or not a defendant accepts a plea bargain, I do not believe abolishing mandatory minimum sentencing will create the ending the author is seeking.

    As the author stated, “95 percent of convictions come from guilty pleas instead of jury verdicts.” While prosecutors may use the fear of mandatory minimums to their advantage in offering plea deals, I think the “one-time offer” deals and policies that recommend plea offers be increased with each subsequent offer play a significant role in pressuring defendants to make abrupt and arguably involuntary decisions. I also believe defendants are more inclined to accept a plea deal due to fear of the unknown; in accepting a plea deal you know right away what your punishment is instead of waiting years to go to trial and leaving your fate in the hands of 14 strangers.

    However, if a defendant is brave enough to exercise his constitutional rights, I strongly agree with the creation of a “do not call” list of officers who are deemed unreliable due to previous instances of misconduct.

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