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.