Kokomo Tribune; Kokomo, Indiana

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January 8, 2014

Judges need flexibility

Mandatory sentences tie hands of judicial branch.

Activist judges who try to legislate from the bench have, rightfully, been the subject of a great deal of criticism. But we also need to begin turning a critical eye on legislators who want to be judges from the Statehouse.

We fully understand and even agree with the intent of a bill designed by state Sen. Jim Merritt, R-Indianapolis, that would require Indiana judges to add 20 years onto the prison sentences of people who use a firearm during a violent crime. Gun violence is a problem, but as we have said many times on this page it is the criminals who need to be punished, rather than law abiding gun owners.

Adding an additional 20 years for using a gun to commit a crime is one way to tackle that problem without punishing responsible gun owners. And it is a solution many law enforcement officers like [Grant County] Prosecutor Jim Luttrull and Sheriff Darrell Himelick believe will serve as a deterrent.

Yes, such a law might well serve as a deterrent, but we elect judges because not every case is the same. We expect those on the bench to weigh all the factors when issuing a sentence. We are not all going to agree on every sentence — just recently we took exception with [former Marion Fire] Chief Steve Gorrell’s punishment — but overall judges get it right much more often than not.

Yet lawmakers continue to try and tie judges’ hands with more and more mandatory minimums. And some, such as columnist George Will, have argued that severe mandatory minimums have encouraged some prosecutors to overcharge defendants as a way to pressure them into plea bargains.

Still, there are ways to make Merritt’s proposal work for prosecutors and still give judges the discretion they need. For example, the additional 20 year sentence could be an option for the judge to increase the sentence for a violent offender, or to waive for a first-time offender with no past record. Or, as is the case with the habitual offender enhancement, it could be an option presented for the jury to decide. The option could even be left up to the judge unless a weapon is discharged, in which case the 20 years become automatic.

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