Former Morris County Prosecutor and current Criminal Defense Attorney Robert Bianchi is our guest contributor this week. If you would like to be a guest contributor and write a post for our website, send an e-mail to kristen.accardi@townsquaremedia.com

By: Robert Bianchi

We get it — there is a need to be “tough on crime.”  I am all for that — that is, within reason.

Criminals that are a danger to the public need to be deterred, punished and removed from society. But, is that what we are doing in the criminal justice system in a way that makes sense? Clearly to those that do this for a living, the answer is “no.”

There is not a citizen that would argue that we shouldn’t live in safe communities. But, it seems the public has adopted “tough sentencing laws” as the way to achieve this goal, that is until they, their family, or their friends are ensnared in a web of mandatory sentencing laws that, as I like to say, “hits a fly with a sledgehammer.”

These laws need to be revisited, and they need to be revisited now.

Since the mid-80s, a slew of feel good mandatory sentencing laws were rolled out, at first for limited crimes, but it has since escalated to all sorts of other crimes, as well. The laws sound reasonable on paper, but in practice, we have taken generations of people, especially persons in urban cities, and “stacked them like cordwood” in jail for offenses that in the suburbs with a more affluent, mostly white community, receive a mere slap on the wrists.

It’s just a fact!

Here’s an example. Many drug offenses are upgraded as to sentencing if they occur within 1,000 feet of a school, or 500 feet of a park or museum. These offenses receive a mandatory minimum sentence of three years in state prison, if convicted.

Maps are created with big blue circles denoting what streets in a town are within those parameters, and which streets are not. In places like Jersey City, Camden, Newark, Trenton and other big urban cities, virtually every street mandates a mandatory state prison sentence for many drug offenses.  So, when I was an assistant prosecutor in Hudson County, many drug offenders went to jail for offenses that in more affluent areas places they would not. Simply where a person lived and worked alone was the difference as to whether they went to jail, or not.

When I was the prosecutor in Morris County, however, most areas are not within the enhanced sentencing zones. The result? The urban areas (populated by high percentages of minorities) are by law punished harsher than those in suburban areas. And, a lot harsher. In suburban areas not within a school zone, the sentence for the same crime in an urban area is a probation, or perhaps a program called Pre-trial Intervention, where the case is actually dismissed after a period of time, and importantly, the offender will not have a criminal record dogging them for the rest of their lives.

Many posture that prosecutors and police are discriminating against minorities, citing statistics that show minorities are far more likely to get jail time for drug offenses, as opposed to whites. The stats are mostly accurate, but the motive or reason that is ascribed to these stats is mostly off.

Now, I am not saying racism is not existent in the system, because it is. Many times, there are implicit biases that people are not even aware of, but have serious impacts nevertheless. I have spent half of my career as a prosecutor and know racism (again, not that this does not also exist) is not the main reason for the unacceptable disparities in sentencing for drug offenses in New Jersey. Rather, the problem is the laws by definition adversely impacts minorities in devastating, and far harsher ways.

Most in the system know these laws are a disaster, but it seems to be getting worse as it seems we are addicted to passing more and more draconian laws.

And so, the carnage continues.

In fact, there are mandatory sentencing laws that apply to government officials that are also out of control, ensnaring officials, (mainly police and teachers), in a way that is so excessive that a minor rule or policy infraction, may land them in state prison for a minimum of five years. Like the drug laws, we see savable people that made a minor mistake, sent up the river for far too long to be considered “just and reasonable.”

Here is another ugly fact. It is what I call “criminal claims adjusting.” Prosecutors and judges are overworked. The “doing more with less” theory means that these professional attorneys and judges are unable to keep up with daunting caseloads. They do not have time to put in the quality analysis, and with great pressure to dispose of cases at speeds too fast to accommodate, in order to keep the system moving, more bad things happen.  We begin to “claims adjust” to get cases off the calendar, so the system does not collapse.

With so many cases, and so many mostly minority defendants ensnared with drug laws that are excessive to them and not others, prosecutors have to be very careful not to “claims adjust.” In other words, it eventually becomes easy not to see people, but case jackets that need to go away. And, this is why great prosecutors fight to remember that their decisions are affecting real life people that may have made a minor mistake, but are otherwise good souls. But even so, prosecutors and judges still have their hands tied by the laws in many instances and are required by law to impose excessive punishments.  They have no choice, and we should change that and entrust them to have more flexibility to determine on a case by case basis what is a just and fair sentence.

There is much to discuss with cogent sentencing laws that protect the community, but that too, are rational, reasonable, and measured. We are, however, far from the place where the rule of reason and balance are at play.

Mandatory sentencing has needlessly ruined the lives of many defendants and their families. It has done nothing but excessively criminalize our youth. How do we end it?  Firstly, prosecutors and judges need to be appointed based upon a career of excellence, and not mere politics. We need the most experienced and wisest prosecutors and judges that know better how to achieve a balance and just result. It is our best chance at sensible policies that protect the community from crime, but do so in a rational and measure way.

One size fits all punishment, especially one that by definition punishment that discriminates against minorities more than whites, has to end.  It serves no purpose and does not protect the community. Rather, it incarcerates our minority youth in such a drastic way, merely because they were born and raised in a city where the laws are far more draconian. And in return, they leave prison with no other choice many times but to resort to crime to get by in life. To me, it is not just about the discriminating effect (intolerable as that is) that make these laws bad, but it is importantly a simple fundamental moral wrong to allow this to continue.

Is it any wonder then, that soon these defendants become what we wish to prevent, persons continuing to commit crime, as for them there is no other way to make it after the brutal justice system has had its lashing.

I end with this. Prosecutors and the judges are not “bad” people. It is quite the opposite.  Attacks upon them, perhaps at times warranted, does not solve the problem. They are mostly good and hardworking public servants. It is the law that is the problem, and they are required to follow that law, irrespective if personally they disagree with it.

And, lest people think it only minorities that are the only subject to these draconian mandatory sentencing laws, perhaps we next can discuss the carnage of mandatory sentencing laws for government officials, especially for cops and teachers. I have some hair-raising stories that people would not believe about those cases, as well.

Bottom line — stop the madness!

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