Pubdate: Sun, 21 Jul 2002
Source: Denver Post (CO)
Webpage: www.denverpost.com/Stories/0,1413,36%257E73%257E742882,00.html
Copyright: 2002 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Bob Ewegen, Denver Post Deputy Editorial Page Editor

MANDATORY MADNESS GRIPS OUR SYSTEM

As Pete Chronis' thoughtful article on this page makes clear, Colorado 
lawmakers have painted themselves into a corner where a single sentence - 
life without possibility of parole - is applied to a bafflingly wide 
variety of criminal offenses.

Like many policy blunders, the trend for mandatory minimum sentences began 
with good intentions. In the '70s, some reformers were distraught because 
criminals received widely disparate sentences for seemingly similar crimes. 
Standardizing sentences would help restore confidence in the law, so they 
thought.

Alas, that fuzzy-minded notion was quickly transmuted into a kind of 
sentencing arms race, ending in uniform sentences that were uniformly 
Draconian. The process was at its most pathetic in Congress in 1986, when 
politicians of both parties vied to show how "tough on drugs" they were.

Eric E. Sterling was counsel to the U.S. House Committee on the Judiciary 
from 1979 to 1989 and participated in the passage of the mandatory minimum 
sentencing laws. He reflected on the frenzied atmosphere for PBS's "Frontline."

"There have been literally thousands of instances of injustice where minor 
co-conspirators in cases, the lowest-level participants, have been given 
the sentences that Congress intended for the highest kingpins. Families are 
wrecked, children are orphaned, the taxpayers are paying a fortune for 
excessive punishment.

"These laws came about in an incredible conjunction between politics and 
hysteria. It was 1986, Tip O'Neill comes back from the July 4th district 
recess and everybody's talking about the death of the Boston Celtics' pick, 
Len Bias. That's all his constituents are talking to him about. And he has 
the insight, "Drugs, it's drugs. I can take this issue into the election.' 
He calls the Democratic leadership together in the House of Representatives 
and says, "I want a drug bill, I want it in four weeks.' And it set off 
kind of a stampede.

"Everybody started trying to get out front on the drug issue

... not just the Judiciary Committee - Foreign Affairs, Ways and Means, 
Agriculture, Armed Services. Everybody's fighting to get their face on 
television, talking about the drug problem. And these mandatories came in 
the last couple days before the congressional recess, before they were all 
going to race out of town and tell the voters about what they're doing to 
fight the war on drugs. No hearings, no consideration by the federal 
judges, no input from the Bureau of Prisons. Even the DEA didn't testify. 
The whole thing is kind of cobbled together with chewing gum and baling 
wire. Numbers are picked out of air. And we see what these consequences are 
of that kind of legislating.

... Ten-year mandatory minimum, routine sentences are 15, 20, 30 years, 
without parole. Then you have conspiracy, and suddenly you have people 
facing 50 years, people facing either life in virtual terms or as a real 
sentence.

"That's what's happening. Fifteen thousand federal drug cases a year, the 
bulk of them mandatory minimum cases. Most of them minor offenders. Only 10 
percent of all the federal drug cases are high- level traffickers. You 
wonder, who's asleep at the switch at the Justice Department?

"... Now of course you can't change it, because that's "soft on drugs.' "

A similar escalation took place at the state level. When I began covering 
the Colorado legislature in 1973, a "life sentence" meant the defendant had 
to serve at least 10 years in prison before being eligible for parole - 
though that parole was by no means automatic. Then the legislature doubled 
it to 20 years before being eligible for parole. Then lawmakers doubled it 
again to 40 years. Finally, we reached today's law, where life without the 
possibility of parole is the minimum sentence for a first-degree murder or 
felony-murder conviction.

But mandatory minimum sentences haven't achieved the reformers' dreams of 
meting out similar sentences for similar offenses. Consider the cases of 
Edward Robert Brown and Lisl Auman.

Brown, 20, is a double murderer convicted of killing Felix Sharp during a 
house party in Montbello on March 23, 2001. He previously pleaded guilty to 
first-degree murder in the June 1, 2001, shooting death of DeMarco Taylor, 
19, at 14th Avenue and Trenton Street.

Brown was sentenced on May 20 to consecutive life sentences for both 
killings. As a practical matter, that's the same sentence - life without 
parole - that Lisl Auman received after being convicted in the Nov. 12, 
1997, death of Denver police officer Bruce VanderJagt.

Yet Auman didn't kill anybody. Her conviction for felony murder merely 
means that Vanderjagt's death occurred during the course of a felony that 
Auman planned and carried out. The facts, as determined by the jury, are 
that Auman planned the robbery of her ex-boyfriend's apartment and 
recruited some accomplices. After her gang broke in, residents of the 
apartment house called the police. Auman and accomplice Matteus Jaehnig 
then led police on a high-speed chase.

Jaehnig drove, but at one point Auman took the wheel so Jaehnig could fire 
his assault rifle at pursuing officers. After the chase ended, Jaehnig fled 
on foot. Auman was apprehended and in police custody when Jaehnig killed 
VanderJagt before committing suicide.

Auman's crimes clearly deserve punishment. But what kind of punishment? The 
clearest indication that her penalty - life without parole - is too extreme 
is that Denver District Attorney Bill Ritter offered her a plea bargain 
calling for a nominal 30-year sentence.

Thirty years doesn't look much better until you consider that if she kept 
her nose clean in prison she would have been eligible for parole after 
serving about 11 years.

In any event, Auman scornfully rejected the plea bargain, refusing to 
discuss anything except probation. By cutting off negotiations, she missed 
an even better offer: Ritter had authorized deputy DA Dan Twining to go as 
low as 18 years in Auman's case, which would have let her apply for parole 
in less than seven years.

Critics of mandatory minimum sentences have long argued that they don't 
remove discretion from the criminal-justice system. They simply shift that 
discretion from the people best qualified to exercise it, the trial judges, 
to district attorneys. DAs, after all, determine what charges to file and, 
hence, the penalties that a conviction will yield.

Ritter didn't abuse his discretion, offering Auman a deal that, if 
anything, leaned to the lenient side. Auman may have been foolish for 
scorning Ritter's offer. But she did, after all, have the constitutional 
right to go to trial.

So no one can blame Ritter, and no one can blame Auman for insisting on a 
trial - but no one is happy with the outcome in this case. So where does 
the blame lie?

With the mandatory minimum sentencing craze, that's where. If the 
felony-murder law gave judges a range of 20 to 40 years - with life without 
parole available if specific aggravating factors were met - the sentencing 
judge could have given Auman that 20-year minimum. That's in the ballpark 
with what Ritter sought and, while it recognizes that Auman had committed a 
serious crime that led directly to the death of a peace officer, it also 
recognizes that she didn't deliberately plan that death and is unlikely to 
reoffend if she eventually returns to society.

As it is, Auman now has just two realistic chances to avoid dying in 
prison: A governor could someday decide to commute her sentence, or the 
appellate courts might find some technicality to overturn her conviction 
and order a new trial - at which time Ritter might renew his plea offer and 
Auman might accept it.

But why should justice rely on a politically charged decision by a governor 
or an appellate court's review of issues that are at best secondary to the 
case? The U.S. Congress and the Colorado legislature both need to replace 
the runaway system of mandatory minimum sentences with laws that once again 
give trial judges the discretion they need to make the punishment fit the crime.
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