Bolstered by similar national trends, Rhode Island has enacted several positive and significant criminal justice reform measures over the past few years. Unfortunately, every step forward by the General Assembly seems to be accompanied by a step back.

There is perhaps no better example than the legislature’s troubling and out-dated embrace of the widely discredited practice of mandatory sentencing. For those readers needing a refresher, “mandatory sentencing” is when the legislature forces a judge to impose a prison sentence without the possibility of probation or parole, undercutting judicial discretion.  The unfortunate practice is ineffective, unjust, and a major driver of the mass incarceration problem in this country.

Notwithstanding that general view, state legislators are expected this week to pass legislation – banning so-called “ghost guns” – that includes a mandatory sentence provision for second time offenders. It mirrors the General Assembly’s enactment of two similar mandatory sentencing laws in 2018. Surprisingly, the support for these provisions transcends political labels, earning the votes – and, in some cases, the sponsorship – of liberals, moderates and conservative legislators alike.

Yet mandatory sentencing is contrary to the justice reinvestment reforms the General Assembly has enacted, and rightly touted, in recent years. Indeed, despite its virtually unanimous support by members of the Rhode Island General Assembly, mandatory sentencing has been criticized nationally by organizations across the political spectrum – from the ACLU and the NAACP to the Heritage Foundation and American Conservative Union – as well as a distinguished commission chaired many years ago by former U.S. Supreme Court Justice Anthony Kennedy, whom nobody would call soft on crime.

The American Bar Association, another opponent, has summed up well the misleading nature of mandatory sentencing:

Aside from the fact that mandatory minimums are inconsistent with the notion that sentences should consider all of the relevant circumstances of an offense by an offender, they tend to shift sentencing discretion away from courts to prosecutors. Prosecutors do not charge all defendants who are eligible for mandatory minimum sentences with crimes triggering those sentences. If the prosecutor charges a crime carrying a mandatory minimum sentence, the judge has no discretion … to impose a lower sentence. If the prosecutor chooses not to charge a crime carrying a mandatory minimum sentence, the normal sentencing rules apply. 

While the “ghost gun” bill’s mandatory sentencing applies only to second convictions, it  unfavorably resembles harmful “three strikes legislation” that once permeated criminal sentencing laws, requiring judges to imprison repeat offenders regardless of how unjust the punishment might be in a specific case. Whether it is for the first or second offense, mandatory sentencing undermines individualized justice and inappropriately ties the hands of judges. Further, while this legislation does not specify the minimum time a second-time defendant must spend in prison, the evidence is overwhelming that even short prison stays have an extremely disruptive influence on offenders and their families.

Just as importantly, these sentencing schemes tend to have the opposite of the intended effect – forcing individuals to plead to other offenses, even if they may be innocent, in order to avoid the potential imposition of a mandatory sentence. Often, the threat alone of facing such a sentence is enough to force criminal defendants to plead and relieve prosecutors of their burden of proof in questionable cases.

This regressive practice is already codified in a few state laws, but a poor sentencing scheme is not made more effective the more often it is adopted.  Those who sincerely desire criminal justice reform should be concerned to see this archaic approach to sentencing once again creep towards becoming the norm. One cannot claim to support both mandatory sentencing and criminal justice reform. We hope our legislators will uphold its recent reforms and reject this dubious approach to crime prevention.