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Minimum mandatory sentence laws are arbitrary, capricious and an affront to the American and Maine systems of justice as well as their respective constitutional foundations: The Separation of Powers.

Minimum mandatory sentences for criminal convictions have existed in America for over six decades and have proliferated at both the Federal and State levels (including Maine) ever since. These sentences are legislatively mandated leaving judges without any flexibility or discretion to vary from them regardless of the specific facts of each case, the defendant’s individual circumstances or the other myriad of considerations that should factor into the fashioning of an appropriate sentence.

Arbitrary and capricious is a phrase, in legalese, which is usually applied in the judicial review of agency actions: administrative law. However, it is not limited to that discipline. Black’s Law Dictionary defines “arbitrary and capricious” as:

“A willful and unreasonable action without consideration or in disregard of facts or law or determining principle.”

The legislature, the constitutional body that enacts our laws, is at best, ill-equipped to consider the particular facts of each case. Thus, they disregard them and attach minimum mandatory sentences to laws criminalizing certain behavior in a Draconian manner and without determining principle.

Some Maine examples:

A is caught selling lots of cocaine to five strangers on the Reiche School (West Side of Portland) playground during recess. A is 40 years old and his stranger customers happen to be barely over 18 years old. If convicted, A gets a four year minimum mandatory sentence (maximum 30). The mandatory minimum sentence is based upon the legislature’s “safe zone policy”, an attempt to keep children’s areas drug free.

B is caught selling a very small amount of cocaine to his best friend and co-worker. Both are 50 years old. The transaction occurs in July at 3:00 am in B’s single family home. B’s home is not within eyesight of Reiche School which is closed for the summer and never open for students at 3:00 am. However, as a “crow flies”, the edge of B’s lawn is 900 feet from the edge of Reiche School’s large parking lot. Even though the playground is 1,200 feet away from B’s lawn (further from his house) and the closed school even further still, B is in big trouble. The legislature has chosen to draw an arbitrary line at selling drugs within 1,000 feet of a school (defined by locus to real property). That is the arbitrarily designated “safe zone”. The dimensions of the “safe zone” are not the problem. The legislatively mandated minimum sentence is a major problem.

If convicted, B will be sentenced to the same minimum mandatory four year sentence that A received. This is the result of the legislature’s “willful and unreasonable action without consideration of the facts … [and] without determining principle.”

More Maine examples:

A is arrested for operating under the influence (OUI) and is taken to a police station five minutes away an provides a breath sample of 0.15. A was stopped for having a burned out plate light with no erratic operation. A is 67 years old and has never committed a moving violation.

Because the legislature arbitrarily, without consideration of the facts and in disregard of distinguishing principle, enacted a law mandating a minimum mandatory 48 hour jail sentence for anyone convicted of OUI with a test of 0.15 or higher, the judge must, upon conviction, send A to jail (in addition to a mandatory minimum fine and loss of license).

B is stopped for speeding and erratic operation and eventually arrested for OUI. Because he was stopped on the Turnpike, it takes the Trooper an hour to transport B to a police station with a working Intoxilyzer. B provides a 0.14 breath sample. B was over 0.15 at the time he was stopped, but due to the relatively long time it took to obtain his breath sample, his BAC fell below that magic arbitrary number. B is 30 years old and has three prior speeding convictions. Because of the legislature’s arbitrary and capricious enactment of minimum mandatory sentences, the judge is not required to send B to jail and likely will not upon a guilty plea.

These are a few examples of many; some are more absurd, more egregious, but equally arbitrary and capricious.

The separation of powers, under the Federal and Maine constitutions, is and always has been a fundamental foundation of our system of government including our criminal justice system. Without delving back into the writings of Locke and Montesquieu, the basic concept is one of checks and balances. Both constitutions provide for three branches of government (the executive branch, the legislative branch and the judicial branch) with defined rolls. The concept of checks and balances, among other things, prohibits one branch from usurping the constitutionally delegated authority of any other.

The legislature is charged with making laws. The executive branch is charged with executing or enforcing those laws. The roll of the judiciary is to interpret the laws, including the constitutions as well as legislative enactments, and to administer them fairly to all.

The Maine Criminal Code (a set of laws duly enacted by the legislature) is a codification of defined crimes. It includes sentencing provisions depending on legislatively determined severity of those crimes generally. The Code provides ranges of allowable sentences for each crime logically, not arbitrarily, in accordance with the severity of each. The Code even suggests a non-exhaustive list of criteria that judges should consider when fashioning sentences, including the criterion of fashioning individualized sentencing depending upon a myriad of considerations for each case. Moreover, the legislature codified what the Maine Supreme Judicial Court previously laid out as a three step analysis that judges should adhere to when pronouncing their reasons for handing down individualized sentences. This analysis is designed to ensure that there is adequate information available for effective appellate (higher court) review of the appropriateness of each individual sentence. In other words, the analysis is required to ensure that the sentence was fair in light of the full myriad of specific circumstances rather than the product of some arbitrary and capricious machinations.

The foregoing paragraph does not constitute an affront to constitutional principles, least of all the separation of powers. On the contrary, the foregoing paragraph is an illustration of how those principles should work.

The affront is manifested in the legislative usurpation of the constitutionally mandated authority vested in the judiciary by the enactment of laws requiring minimum mandatory sentences “without consideration of or in disregard of facts… or without determining principle”. On the one hand, the legislature has passed statutes that suggest a broad non-exhausted list of criteria that judges should consider in fashioning individualized sentences —-stressing the need for individualized sentences, as well as statues requiring judges to articulate a three-step analysis defining their reasoning for imposing each individualized sentence. That is all in line with what our respective constitutions require of the judiciary.

On the other hand, that same legislative body has stripped the judiciary, judges, of their constitutional authority by mandating that certain minimum sentences must be meted out “without consideration of or in disregard of facts… or without determining principle .”

The facts are: First, the Federal and Maine constitutions charge the legislature to enact laws. They charge the executive branch (chief executives, prosecutors and other law enforcement officers) with executing or enforcing those laws. It is the sole province of the judiciary to interpret and administer the law fairly to all. Second, as a practical matter, judges are in an infinitely better position to administer the laws fairly, including the imposition of sentences, on a case by case basis in consideration of all the facts, the law and with determining principles, than a legislative body devoid of such information.

Bottom line: Legislators, stay in your lane. Let the judges judge.

If you or a loved one has been charged with a crime, call me for a free consultation at NICHOLS & CHURCHILL at 207-879-4000. I am in The Time & Temperature Building, 477 Congress Street, Portland, Maine 04101. Check me out at www.nicholschurchill.com.

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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