Mandatory sentences can rule out fairness

Posted Jan. 23, 2009, at 10:51 p.m.

Like hundreds of laws before it, Tina’s Law was passed in 2006 after a flurry of aptly emotional and angry testimony before the Maine Legislature. The testimony came from people mourning the senseless death of a vibrant woman from Scarborough and from citizens tired of sharing the road with those with a reckless disregard for its rules.

Tina’s Law was passed after a trucker with a suspended license and 63 previous driving infractions slammed into a car driven by 40-year-old Tina Turcotte, killing her.

The law established mandatory minimum sentences for the “worst of the worst” drivers. Earlier this month, Tina’s Law helped send 27-year-old Iver D. Cardwell Jr. to prison for five years. Last year, Cardwell crashed his car into a school bus in front of John Bapst Memorial High School in Bangor. He was drunk and operating with a revoked license at the time. It was a perfect example of a law working just as intended.

Cardwell’s driving record is atrocious. He clearly would continue to drive if not sent to prison and he has proven that he is a threat to anyone on the road with him.

But just a month before Cardwell was sentenced, a judge in Franklin County Superior Court made a decision that called into question the true judiciousness of Tina’s Law.

Justice Michaela Murphy, a strong-willed jurist who proved herself throughout her years of lawyering as one unafraid of controversy, ruled that a two-year “mandatory minimum” sentence imposed upon a 60-year-old Vietnam veteran with a not-so-pretty driving past was excessive.

Gerald Gilman of Mercer has four operating-under-the-influence convictions, a driving-to-endanger conviction, three operating-after-suspension convictions and one operating-after-revocation conviction.

That qualified him as a prime candidate for the Tina’s Law mandatory minimum sentence of two years in prison. But after his latest conviction — in February 2008 for driving as a habitual offender — his sentence was appealed to Superior Court. Murphy found it to be “constitutionally excessive” and instead sentenced him to 90 days in jail, fined him $1,000 and ordered him to perform 500 hours of community service.

See, the Gerald Gilman of old is apparently not the Gerald Gilman of today. Though suffering from severe post-traumatic stress disorder, depression and suicidal urges, Gilman has begun to pull his life together. He stopped drinking in 2006.

He seeks regular care at the Togus Veterans Affairs hospital and gets rides back and forth to the Farmington Elks Lodge, where he works as a volunteer. When he couldn’t catch a ride last year, he decided to drive and was pulled over for speeding.

Gerald Gilman may well be a sympathetic case while Iver Cardwell is not. Laws with mandatory sentences, however, do not generally have “sympathy clauses” attached.

Cardwell sits in prison. It’s exactly where he should be. Gilman’s case is headed to Maine’s Supreme Judicial Court, which will determine whether Murphy had the right to reduce the sentence. Perhaps that’s exactly where it should be.

There is something to be said for mandatory minimum sentences, even very long ones, such as in Tina’s Law. But the passage of such bills needs careful consideration and scrutiny, for they reduce the control and the level of judiciousness afforded to the judges we rely on to hand down fair and effective decisions.

reneeordway@gmail.com

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