Doug Berman and Bill Otis

Professor Doug Berman knows more about federal sentencing than any judge I know.  That doesn’t make him right, just extraordinarily knowledgeable.  Bill Otis, a former Justice Department official, is not far behind Professor Berman.  That doesn’t make him right, just extraordinarily knowledgeable.

They have a fundamental disagreement about statutory mandatory minimums, and the current Congressional study (and legislation) regarding a proposal to give sentencing judge more power to go below statutory minimum sentences.  See here.  Professor Berman proposes a debate between the two.  That is a wonderful idea, and I heartily second it.

My view about statutory minimum sentences is that they grossly distort the purposes of Guideline sentencing in the federal courts.  If I had my choice, I would eliminate statutory minimum sentences but make the Guidelines more like binding rules.  This is because I am not a fan of open-ended judicial discretion, but I also think some limited form of judicial discretion at sentencing is a good thing.  Assuming the Supreme Court will not change its ill-advised, unprincipled, and historically inaccurate rulings in Apprendi and Booker and their spawn, I would have juries decide facts that trigger application of those rules.

In the end, however, what I think is elevator music, that is, just noise.  What Doug Berman and Bill Otis express in reasoned oral discourse is important.  Congress, the Commission and the rest of us would benefit greatly if the two of them had it out, live and in person in a venue that would truly allow them to engage each other.  I urge both of them to do it.


2 responses

  1. I’m less enamored of hard floors on punishment than I am of hard upper limits.

    The quality of mercy is not strain’d,
    It droppeth as the gentle rain from heaven
    Upon the place beneath: it is twice blest;
    It blesseth him that gives and him that takes:
    ‘Tis mightiest in the mightiest: it becomes
    The throned monarch better than his crown;
    His sceptre shows the force of temporal power,
    The attribute to awe and majesty,
    Wherein doth sit the dread and fear of kings;
    But mercy is above this sceptred sway;
    It is enthroned in the hearts of kings,
    It is an attribute to God himself….

    I have no fear of a judge’s mercy, even when I’m the victim of the man to whom the judge shows mercy. Certainly, mistakes will be made by individual judges (especially when one is merciful toward the man who attacked me or mine…), but I think the error rate will be far less than the rate driven by a one-size fits all government mandate.

    On the other hand, maybe in addition to the jury deciding the related facts, that body also should decide the punishment to be meted out, with the government’s sentencing guidelines being exactly that–advice.

    I also suggest that §3553(a) needs revisiting and at the least, its subpara (2) entirely rethought after public debate in our townhalls and community centers. Until there’s a current consensus on the “need for punishment” more concrete than “he screwed up, nail him,” sentencing guidelines can only be chasing chimera across dry sand in a windy night.

    There isn’t even consensus on what is murder from a legal standpoint. Aside from the Byzantine maze of the various degrees of murder it’s possible to parse out from the act of killing someone, there are too many corner cases (that Byzantine business). Here’s one for illustration. Say I kill my wife. That’s murder. But wait–she suffered from a horrendous and painful disease, the doctors could do nothing for her, even the pain meds had stopped working utterly, yet the disease would not kill her any time soon. I simply put my wife out of her misery.

    I’m a skilled systems engineer; I need no training to a useful skill. I don’t have any other wives, much less any in this state; I’m unlikely to engage in another such killing: the public needs no protection from me. Did I have a second wife in such a state (or acquire one who descended to such a state), I would kill her, too without hesitation–deterrence can have no effect on me. It is, indeed, a highly serious act, this killing; I’m well aware of that. But see “deterrence.” And so on. What punishment exists that fits this act, which may not even be a crime except in the artificial legalist way that a law says it is.

    My act would be a moral one, the validity of which is open to enthusiastic and principled debate from a number of sides. The law is powerless to deal with this in any just way, yet it must deal with it in some way, or the overarching law that governs killing must be reduced to enumerations of what is permitted and what is not, rather than an elucidation of a principle. Oh, wait….

    Just law has no need (and no legitimate authority) to manufacture crimes to bar.

    Eric Hines

    *Uncited. That’s an exercise for the student.

  2. Perhaps a prior question that must be answered concerns whether law should provide incentives regarding specific behaviors or justice regarding outcomes of those behaviors.

    Eric Hines

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