Eliminating Mandatory-Minimum Sentencing Laws

Commentary: A former judge’s call to eliminate mandatory-minimum sentencing laws
Nancy Gertner
Jan. 8, 2023

There is no other way to put it: In my nearly two decades on the federal bench, I presided over a system of mass incarceration.

While I strove to do justice, too often mandatory-minimum sentencing laws transformed my role from judge to a cog in the wheel, requiring prison terms that were unfair, unjust and disproportionate.

I sentenced young people to mandatory minimums without regard to the substance abuse I saw, the mental health treatment they needed, the trauma they had almost universally suffered, and the impact on their families and communities of disappearing them into cages for years or decades.

While on the bench, my colleagues and I did what we could to address America’s failed experiment in mass incarceration, but it was not enough. We expressed our objections in articles and open court. In U.S. v. Vasquez, my colleague Judge John Gleeson was especially direct: “As a result of the … five-year mandatory minimum, there was no judging going on at Vasquez’s sentencing. … [T]he prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.”

We were not able to consider the facts before us. We were just clerks, signing our names on the dotted line.

Our horror stories could continue. One of the men I sentenced lost his parents to prison and drugs. At 14 he lived on the street and dealt drugs to purchase school supplies for his siblings. By the time he reached adulthood, he had a record that triggered a mandatory minimum sentence of 10 years – and there was nothing I could do about it.

That is why I support the passage of three bills that aim to address injustices in New York’s sentencing laws: the Eliminating Mandatory Minimums Act, the Second Look Act and the Earned Time Act.

The cornerstone of our criminal legal system is the right to a fair trial. But in New York, 98 percent of cases are resolved by guilty plea. The reason for this is as disturbing as it is simple. Mandatory minimums serve to coerce defendants, innocent and guilty alike, to take plea deals rather than risk severe sentences for exercising a basic right assured to them by the Constitution. Put simply, our current laws punish people who exercise their right to trial.

The Eliminating Mandatory Minimums Act is a critical step toward ending the coercion of plea deals and allowing judges to make individualized determinations based on facts of the case at hand. This legislation would allow judges to consider mitigating circumstances and vest sentencing power with judges – not prosecutors.

The Second Look Act would allow incarcerated people to petition for resentencing. Judges could revisit overly long sentences where appropriate. In so doing, we could address decades of unjust sentencing that devastated families and communities.

Finally, the Earned Time Act encourages incarcerated people to seek out education, employment, and rehabilitative programs while serving their sentences. This bill rewards incarcerated people who are actively working to become contributing members of society by allowing them to earn good-time and merit-time credit. Incentivizing participation in programs is an essential step toward building a world where people come out of prison better prepared to be assets to our community than when they were sentenced.

I was appointed to the bench in 1994, the same year that the notorious ‘94 crime bill was passed, dramatically reducing access to earned time, ballooning prison populations, and eliminating college access for incarcerated students. Nearly three decades later, even President Joe Biden, the bill’s chief architect, has called for change, including the elimination of mandatory minimums and the expansion of earned-credit programs.

Passing the Eliminating Mandatory Minimums Act, the Second Look Act, and the Earned Time Act are critical steps toward realizing a fairer and more just legal system.

Nancy Gertner is a former judge and a senior lecturer on law at Harvard University.

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