North of the border today, there is an interesting interview with retired Canadian prosecutor Robert Gidden in Macleans. One standard prosecutor line in support of mandatory minimum sentences is that they help prosecutors get guilty pleas more easily. Gidden, for one, rejects that, and makes some other good comments, too:
Q What do you see as the main developments in federal criminal justice policy since the Conservatives came to power in 2006, and what do you make of them?
A Generally speaking the removal of judicial discretion means the accused will face a mandatory minimum penalty on many offences. The public likes that because they don’t like judges being soft on crime. The problem is there is no incentive for an accused not to fight every inch. That means the opportunity to resolve a case in a way that probably would be acceptable to the public is gone. Cases that would otherwise be relatively smooth or straightforward become very, very difficult battles.
Q So you don’t think uniform, tough penalties make sense?In the United States, the U.S. Sentencing Commission recently found (see page 145 of this report) that federal offenders facing a mandatory minimum plead guilty less often than those who aren't (94.1% vs. 97.5%).
A If you put every case that you have in the system through the most rigorous examination, you’ll break the system. There needs to be a balance.
What might be a balanced approach? How about a broader, more inclusive safety valve that applies to more mandatory minimum offenses? People eligible for the safety valve plead guilty at higher rates than those who can't benefit from it (99.4% vs. 94.6%).
An expanded safety valve wouldn't remove mandatory minimums, but it also wouldn't jam the system, and it would prevent some of the unusual, absurd, and unintended results mandatory minimums create. It's something both Canada and the United States should adopt.