Richard A. Oppel Jr. of the New York Times  just published a article  entitled " Sentencing Shift Gives New Leverage to Prosecutors". From my perspective handling criminal cases in Tennessee , Mr Oppel is right on target. Under Tennessee criminal sentencing laws , there are mandatory minimum sentences in certain criminal offenses.Some prosecutors use those mandatory sentences to drive a plea bargain that sometimes a citizen accused has to accept or risk going to prison for years.

Prosecutors have lobbied the State Legislators for tough mandatory sentences on some criminal offenses. Child rape , aggravated sexual battery , aggravated robbery and first and second degree murder cases have mandatory minimum punishment. Those are violent crimes and should have severe punishment if convicted. However , the hammer has been given to the prosecutors in drug cases to force onerous plea bargain agreements. The prosecutors want to take the discretion away from judges in sentencing. Once someone is convicted of a crime , the trial court holds a sentencing hearing to determine the length and manner of the service of the sentence. Mandatory sentences takes that out of the judge’s hands.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The prosecutors and the police now have that power. The drug free school zone act gives the prosecutors that unfair advantage. For example, a person that is arrested for possession to sell cocaine of over .5 grams in a school zone is facing 15-25 years at 100% in prison with no chance of probation. My problem with the drug free school zone act is that it is arbitrary. The drug activity must occur within 1000 feet of a school zone , but there is no nexus requirement that school must be in session. The worst example is driving down I-65 South and one passes several schools. A person has no intent to sell or possess drugs in a school zone but they can be charged for it.

The  plea  bargain is your client is facing 15-25 on a drug free school zone case so the assistant district attorney offers 15 years at 30% to serve. You go to trial you risk spending years in jail. What is worse is the police can wait to make an arrest. Why arrest someone now ? When they can wait until they drive down Charlotte Avenue past a public school. So the police can dictate the charge and the punishment.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

With that said , our founding fathers created a separation of powers to balance the power between the executive branch and the judiciary. Now , it appears there is no one to keep big brother in check. Let’s keep an eye out in a few years on what it is costing Tennesseans to keep a drug offender in jail.