Superheroes are totally in vogue right now. From Iron Man and the X-Men on the big screen, to the Flash and Marvel’s Agents of S.H.I.E.L.D. on television, there are spandex-laden crusaders all over the place. I recently came across a new show called Gotham – disclaimer alert: I haven’t actually watched the show (yet!) – that got me thinking about the criminal justice system. As in, what the heck is wrong with the criminal justice system in Gotham?

And I don’t mean the presence of all of the costumed criminals. (I get the whole I-created-you-you-created-me thing.) I mean, specifically, what are the release policies of the Gotham Bureau of Prisons (GBOP?) that allow these ridiculous criminals to be back out on the streets within one week of committing their heinous crimes? It’s a recurring issue: Batman catches bad guy, gives bad guy to Commissioner Gordon, wakes up one week later, finds bad guy back on the streets again. Often wearing a clown makeup or a daytime tuxedo. With costumed henchmen, who are comfortable standing next to someone more unpredictably dangerous than a microwaved Hot Pocket. You really can’t advertise your presence in a place any more obviously than in clown makeup with henchmen. So these guys aren’t fugitives. They’re just out. Again.

More often than not these guys are chucked into Arkham Asylum all together for a while (top notch idea!). They watch a little TV, get a little treatment by equally deranged mental health professionals, and bang! They’re out and about again. It’s enough to drive someone, well … batty. It’s like Gotham has a catch-and-release policy for the criminally insane.

On the other hand, the U.S. justice system is grappling with the opposite problem right now, with bipartisan support for the idea that incarceration rates are too long and skew heavily by race. We’re not talking about your sociopathic Jokers, Riddlers, or Penguins who are out in days – we’re taking about your average person locked up for years for any number of drug-related offenses.

Mandatory minimum sentences and the U.S. Sentencing Guidelines have triggered these longer terms of incarceration. Now, as a means to reduce the length of prison terms, the U.S. Department of Justice has a Smart on Crime initiative aimed at seeking “alternatives to incarceration for people convicted of low-level, non-violent drug offenses.” The Justice Department has also relaxed the use of mandatory minimum sentences and enhancements that are usually filed before a defendant goes to trial.

Let me explain the process in plain English: right now, a certain quantity of drugs triggers a floor for punishment. That means that if you traffic in narcotics of certain amounts, the minimum term you can get is five years, or ten years, and so on. There is no discretion for a court to sentence below these mandatory minimums absent the cooperation of the accused with the government and some other factors. So even where a defendant is a non-violent first-time offender, he or she could be incarcerated for at least five or ten years simply based on the amount of drugs trafficked. There are also circumstances where a defendant’s term of imprisonment can be increased if he elects to proceed to trial.

What’s more, in some circuits, it is the total drug amount in conspiracy that triggers the mandatory minimum. So, join a conspiracy in which your personal amount of drug dealing is very low but the overall conspiracy has a lot of drugs, and you can still have a minimum five or ten year sentence. 

So, a draconian result that needs to be fixed, right? Or … maybe instead a useful bargaining chip?

Wait, what?

Let’s look at it a different way. Large-scale drug organization prosecutions are largely built from the ground up, meaning that the cooperation of low-level players is the key to working up to the prosecution of the organization heads. It’s not like a financial fraud where there are email or bank records or some intersection with what I call the “legitimate world.” A drug organization is comprised of big criminals bossing little criminals around, no intersection with the legitimate world occurring until they spend the money. So you need the testimony of people involved in the conspiracy for convictions. And drug organizations can be notoriously cranky when the little criminals testify against the big ones – so much so that consequences include decapitation. (Drug organizations are a terrible way to get … err … ahead in life.) So compelling low-level players to testify largely comes down to leverage: i.e., does the benefit to the accused outweigh the risk. Put a different way, does the risk of a ten year minimum in prison compel a little criminal to testify against a big criminal in exchange for a significantly lower sentence? Or does the removal of that high mandatory minimum ensure that the little criminal declines to cooperate and not risk his head and still get a lower sentence.

What’s more, the DOJ policy statement references rising prison costs and associated budget issues in support of reducing prison terms. Is cost a valid consideration for determining appropriate sentencing ranges? Think about that for a minute. Should a criminal get less time just because it’s expensive to keep her locked up?

Ooooo, that’s interesting.

So the mandatory minimum sentence is not quite as easy an issue as it appears at first blush. It’s one that the Justice Department is going to struggle with for a while as it reconciles its intended  usefulness with its unintended consequences. But there is one area of clear consensus.

It’s sure better than anything Gotham’s got.