American Bar Association Testifies that U.S. Mandatory Minimums Raise Serious Human Rights Concerns

WASHINGTON, D.C. March 3, 2006 — Saying that mandatory minimums are a “one-way ratchet upwards” and cannot “satisfy the basic dictates of fairness,” Judge Patricia Wald, testifying on behalf of the American Bar Association, raised a host of concerns about such sentencing practices in testimony before an Organization of American States Commission that is examining the issue.

“There is no question that crimes must be punished and that prison serves a legitimate…purpose, but only if it is proportionate,” said Wald, adding “unduly long and punitive sentences are counter-productive, and candidly many of our mandatory minimums approach the cruel and unusual level as compared to other countries as well as to our own past practices.”

Wald noted that mandatory minimums lead to an array of problems, including:

• “Arbitrary” sentences that focus on “offense characteristics” instead of the offender and the actual crime.
• “Disparities that determinate sentencing was intended to eliminate” because so much of the sentencing is now determined by charging decisions, or by a form of drug involved in a crime.
• “Unchecked power” by prosecutors that Wald says, “dangerously disturbs the balance between the parties in an adversarial system, and deprives defendants of access to an impartial decisionmaker in the all-important area of sentencing.”

Wald tied congressional moves to force mandatory minimums to a range of policy decisions that, “in the aggregate, produced a steady, dramatic and unprecedented increase in the population of the nation’s prisons and jails,” despite a decrease in the number of serious crimes committed in the past several years.”

And she noted that this rise had led to many other consequences, including an increase in women in prison. “A person with sympathetic mitigating factors based on background, family status or community ties would receive the same punishment as a hardened criminal,” Wald explained.

The ABA has long opposed mandatory minimum sentencing. Following a 2003 speech to the ABA in which U.S. Supreme Court Associate Justice Anthony Kennedy called mandatory minimums “unwise or unjust,” the ABA established a commission to investigate the state of sentencing and corrections in the United States and adopted additional policy designed to serve as a blueprint for reform.

Wald, retired chief judge of the United States Court of Appeals for the District of Columbia Circuit and former judge at the International Criminal Tribunal for the Former Yugoslavia, concluded by saying that she was “saddened to see that the sentences imposed on war crimes perpetrators responsible for the deaths and suffering of hundreds of innocent civilians often did not come near those imposed in my own country for dealing in a few bags of illegal drugs.”

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.