Wiseman issued the suggestion as he postponed the sentencing of Jian Xin Xiao, 41, for Aug. 10, 2011.
Xiao was convicted by a jury of trafficking of controlled substance on March 18, 2011, and by the court of illegal possession of controlled substance the following month.
According to Wiseman, “It is interesting to note that Public Law 11-24 amended the previous law with respect to importing methamphetamine or ice into the commonwealth providing that if it is more than five grams the mandatory sentence of 25 years with no parole or suspension applies while trafficking of ice does not have any weight requirement. This is troubling because for the most part, there would not be any trafficking, or little of it, if there was no import of it.”
Xiao, Wiseman said, was convicted of selling three grams of ice, but “with none of these aggravating factors present will receive a mandatory sentence of 25 years. As a result, there is a gross disproportionality which the court urges the Legislature to look into.”
Xiao under the mandated sentence “is to be penalized and treated the same as a defendant who may be convicted of trafficking five to 100 kilos of ice and who may also have several prior convictions, and who may have sold ice to school kids.”
Wiseman noted that Xiao has no criminal conviction and the amount of drugs he was convicted of was three grams.
“Mandatory incarceration statutes curb the discretion of prosecutors and judges over certain offenses or types of offenders. The divesting of prosecutors and judges of the time honored control over criminal sentences is of concern because the discretion is the touchstone of a judicial sentence. A sentence should reflect a deliberate sentencing plan and be tailored to the particular offense and offender, such as the criminal history of the defendant, was he serving on probation at time of offense, was there harm to any victim, was the offense committed at a school or other public institution, were weapons used during the crime…. In a mandated sentence such as in this case these and other factors have no bearing on the sentence.”
Wiseman said most jurisdictions enumerate within their criminal code the intended purposes of sentencing.
“Notwithstanding the said findings and purposes in this particular statute,” Wiseman added, “the CNMI does not have any intended general sentencing purpose stated in the code.”
Assistant Attorney General Russel Lorfing is prosecuting the case while Chief Public Defender Adam Hardwicke is representing Xiao, who was remanded to the custody of the Department of Corrections after the hearing.
