President's Corner

by Robert B. Young, Esquire

There are two topics this month, both serious in concept. One is minimum mandatory sentencing; the other – superficially far more frivolous, but also important in its end – is our fundraiser for Make-A-Wish Foundation.

On the lighter side first is the show the Bar Association is producing to take place Saturday, November 6th at 8:00 p.m. at Adas Kodesch Shel Emeth Synagogue in Wilmington, and Sunday, November 7th at 2:00 p.m. at the Murphey School in Dover. Rehearsals have begun, and we’ll be getting close to curtain by the time you get this. I’ve been just amazed with the terrific performances. Most in the cast and our little orchestra – all of whom are Delaware lawyers – have college backgrounds in music or theater, or are members of performing bands, or have done multiple musical productions previously, and so on. The talent is impressive.

And yet, with all that, their commitment to this is even more impressive.

We are attempting to raise a considerable and significant amount for Make-A-Wish. That is, as you well know, a wonderful group created to provide some hugely deserved pleasure for children stricken with terrible afflictions that no one, particularly children, should have to endure.

A by-product of that endeavor will be to make visible to the public, in a way both very pleasant and very strong, how lawyers, through the volunteering of their time and funds, are constantly benefiting the community, without thought of economic return.

So, what do you do to insure the success of this? That’s the easy part: make reservations for you and any other significant others and friends and associates, and come to the show.
T

he show itself is Macbeth: A Family Musical, bearing a loose relationship to the original version, but rolling from song to song, with nothing but great tunes. I really think you will thoroughly enjoy it. And I believe that it will make a substantial gain in the public perception of the varied ways that we benefit the community.

So, come out; support your fellow Bar Association members; and, most of all, have a great time at Macbeth.

Next, we come to the consideration of the topic of minimum mandatory sentencing. We have considered this at length at the Executive Committee. During that consideration, we heard presentations from representatives of SURJ (Stand Up for what’s Right and Just), which group supports the significant reduction of minimum mandatory sentencing; and we heard from Attorney General Jane Brady, who – for the most part – opposes alterations in our present statutory scheme. After the discussion, we decided that the Bar Association would support the idea of SURJ position, and would respond to legislation which might be proposed. Since that time, I’ve met again with Ms. Brady for another review of her perspective. There is no doubt of the sincerity of her position that the present minimums should remain mandatory. She points out that legislative control of sentencing is nothing unusual. Indeed, the categorization of activities into misdemeanors and felonies of various degrees is certainly an aspect of just that.

That is undisputable. Nevertheless, there is a decided difference between ranges of sentences, where incarceration is an option, and the absence of any option. So, while the Legislature may have the authority to create minimum mandatory sentences, the question of why our Legislature should deprive our judiciary – nationally recognized for its excellence – of the opportunity, the obligation, of assessing each case on its own merits cannot be answered. Additionally, and I would consider this merely a tangential benefit, the cost of the minimum mandatory system is tremendous, when compared to alternative approaches to sentencing. As a good friend said to me: “Just look at a hospital: what’s more expensive – inpatient or outpatient? It’s the same thing with incarceration.”

As you probably recall, in the wake of an address by U.S. Supreme Court Justice Kennedy in August 2003, the American Bar Association created a commission to examine fundamental concerns about the fairness and the wisdom and the efficacy of criminal justice throughout the nation. That commission was comprised of representatives from every segment of the criminal justice community, including judges, prosecutors, corrections officials, sentencing commissioners and – I hasten to add – victims advocacy groups.

In July of this year, that commission presented its recommendations to the ABA’s House of Delegates. All were approved. That document is in several segments: Justice Kennedy’s Challenge and Basic Principles; the Recommendations on Sentencing; the Recommendations on Actual and Perceived Bias; the Recommendation to Established Standards for Sentence Reduction; the Recommendation to Ensure Security. This approximately 100 page document is available for your review. If you would like a copy, please simply call the Bar Association. About half of it is devoted to the minimum mandatory issue.

The determinations of the Commission stressed that: “Lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community ... and alternatives to incarceration should be available for offenders who pose minimal risk to the community.” The recommendations, as suggested, urge the repeal of minimum mandatory sentences, particularly with respect to drug crimes.

The considerations and deliberations of that Commission; and of SURJ (the officers and Board members of which include many of Delaware’s most respected lawyers – which list is also available at the Bar Association); and of judges, who have expressed themselves on this topic; and, for that matter, of the Bar Association have been serious and thoughtful, intellectually honest, and of high integrity.

We urge you to become informed about this terribly important topic. If the opportunity arises for you to address legislation or to confer with a legislator or to consider a candidate, we hope you will press the importance of reviewing, in part or in whole, the minimum mandatory sentence considerations, which are poor solutions – on both philosophic and economic terms – to our criminal justice system.

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Rob is a partner with Young and Young and he can be reached at (302) 674-8822 or ryoung@youngandyounglaw.com

Return to October 2004 Table of Contents.