Good questions from a very bright journalism student

I get questions at this blog’s e-mail address from college and law students fairly frequently. I always try to answer them, and this time I thought a blog post might be instructive. Here are four question that a bright journalism student sent me. He has a deadline, so my answers will be brief, and, I hope, to the point:

1) In your decades of courtroom experience, how have the mandatory minimum sentence laws changed the power dynamic between prosecutors and judges? In your view, are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Yes, mandatory minimum sentences give much more power to prosecutors since they get to determine what charges to file and thereby decide whether to trigger a statutory minimum. Attorney General Holder has done some things to encourage prosecutors to avoid mandatory minimums where they are inappropriate and that is a good thing.

As to the second part of your question, there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books. That said, if you believe in the Sentencing Guidelines, as I do, mandatory minimum sentences distort them because they require the Sentencing Commission to implement those minimums and then peg the rest of the sentences around those benchmarks. In order to maintain proportionality between offenders mandatory minimums tend to drive up sentences under the Guidelines when there is frequently no good theoretical reason to do so.

2) While mandatory minimum sentences have been accused of creating one-size-fits-all sentencing, what about the possibility that eliminating them would create a nebulous system wherein the judge’s ideological beliefs would influence sentencing to the point of creating a roulette-like situation for defendants? Considering this possibility seems especially salient in the wake of United States v Booker, which made the federal sentencing guidelines advisory rather than mandatory.

This question reflects a very sophisticated understanding of the problem. The reason for the Sentencing Guidelines was primarily to avoid unwarranted sentencing disparity among like offenders. Now, judges are much more free to impose their personal preferences when they sentence people. That is becoming a big problem with judges across the nation, and even in the same district, imposing vastly different sentences for similar offenders. A good example may be found in child pornography sentences that seem to vary widely despite the similarity of offense and offenders. Thus, selective mandatory minimums are a way of imposing a minimum level of equality, albeit it at a great cost.

3) Prosecutors argue that the threat of minimum sentencing is a useful tool in extracting information that can lead to capturing bigger fish in exchange for a plea bargain, but do you feel this way of doing things can lead to a defendant being implicitly punished for exercising their Sixth Amendment rights?

Yes, but only sorta. There is no doubt that people facing a stiff mandatory minimum sentence take on more risk by deciding to go to trial when facing a mandatory minimum. But it is also true that mandatory minimum sentences provide an incentive for criminals to cooperate with the government. Whether the cost–a “tax” on the right to trial–is worth the benefit–cooperation–is a policy question that is hard to answer. On balance, I would do away with mandatory minimums not because of the trial “tax” but because they skew the Guidelines and detract from the Sentencing Commission’s ability to do the job it was designed to do by imposing external minimums that may have little or nothing to do with the proper sentence.

4) Is there a poignant case that you presided over which illustrates the ineffectiveness or insensibility of these laws? Or conversely, their necessity.

I sentenced a young black man (around 30) to a mandatory life sentence because of two relatively minor prior drug felonies after he rolled the dice and went to trial on a third drug charge. The evidence against this fellow was overwhelming and he was an idiot for going to trial. He had a good lawyer who he ignored. He fully knew the risks. He was involved with crack and powder cocaine. He was not a drug king pin, but he did harm to his community by making crack and selling the drug. No guns were involved, and he was not otherwise violent. I leave it you to judge whether sending a 30-year-old drug dealer to prison for the rest of his life because of two relatively minor prior drug felonies is good or bad policy.

For experienced prosecutors and criminal defense lawyers who read this blog, I urge you to add your comments so that the journalism student will have the benefit of your wisdom. Thanks.

RGK

11 responses

  1. The unasked, but to me more interesting question, given Congress’ motivation to impose mandatory minimums, is what sentence would you have imposed if you had complete discretion?

  2. Terry,

    I haven’t given it much thought.

    Shooting from the hip, about 20 years sounds about right given what I remember of the quantity (not insubstantial), the number of folks involved–the fellow was clearly the leader–and the criminal history. With good time, that means about 17 years. As you know, crack does horrible things to the weakest among us. See here. All the best.

    RGK

  3. You write, “no good theoretical reason to do so.” Do you really mean theoretical in this context? It would seem to make more sense to write, “no good reason to do so in a specific case.”

    My question is as follows: Is the real problem with mandatory sentences an issue of kind or of degree? Is the problem with mandatory sentences the fact that they are mandatory and thus infringe on the case by case nature of judicial decision making or is the problem that so many mandatory minimum sentences are set so high, creating a hydraulic force resulting in high sentences for everyone. If you perceive both to be a problem, which is the bigger problem in your mind?

  4. Kenneth,

    I am OK with “specific.” Both are a problem, but the big problem is that they screw up the work of the Sentencing Commission. Everytime there is a mandatory minimum the Commission must change its algorithms for sentences above and below the minimum in order to do the will of Congress and attempt to avoid sentencing disparity when there may be no good empirical basis for doing so. All the best.

    RGK

  5. The root cause of the problem is that judges do not agree on what punishment fits the crime. What can be done about that? Is peer review a possible approach where a fraction of the sentences (say 5%) are randomly selected for review?

  6. Anony.,

    Some judges have suggested informal consultation between judges of the same court. That doesn’t work in my opinion because judges are very indepedent. I would have no objection to “peer” review but you would run into the same problem as noted above.

    The real answer is put some teeth back into the Guidelines. However, that will not happen in my lifetime given the Supreme Court’s decisions on this subject.

    So, my friend, I think we are stuck with the present system. All the best.

    RGK

  7. Rarely did the MM mean much to my clients, as their weight was so high that a 121 month sentence was a gift. The answer is relative to the fit of MM within the sentencing scheme. What was considered a devastatingly serious sentence 25 years ago, pre-Mistretta, is today considered a slap on the wrist.

    It’s all relative. It all fits together. For those with guidelines below the MM, especially pre-valve days, it was ridiculous and created the snitch culture that pushed defts to turn in their mother, manufacture crimes, exaggerate, do anything they could for their 5K1.1 letter.

    Now that we’ve got Booker, we live with the consequences of 20+ years of Guidelines, framing sentencing in decades instead of years, as if that was how it always was. And journalism students ask if this changed the “dynamic of power.”

  8. To the journalism student: This commentator, who is an extraordinarily accomplished criminal defense lawyer, has accurately described the past and the present.

    Thanks SHG.

    All the best.

    RGK

  9. Judge-for 21 years I was the First Assistant at our Atlanta Federal Defender Program, and for the past 8 we’ve had our little 2-man criminal defense firm specializing in federal cases. In other words, lots of experience with the Guidelines and MM sentencing schemes.

    Your points are good ones, but I have to comment on your recollection of the 30-year old who “rolled the dice” and went to trial against overwhelming evidence, yielding a life sentence because of his 2 priors. This resulted in the taxpayers footing the bill for the remainder of this man’s life, a stupid waste on both ends of the equation. Why? Because the US Attorney insisted on using the section 851 enhancements to yield a life sentence. We all know that MM’s are not really mandatory when it comes to enhanced time for repeat offenders, they only become so when the individual prosecutor asks for them pursuant to the statutory scheme. I place much of the blame at the feet of supervisory personnel in the various US Attorney’s offices, older AUSA’s who for many years regularly approved using the enhancements to cause disproportionately long sentences. I know, I know, the threat of the enhanced sentence often leads to cooperation or a deal that avoids a trial. But why is the taxpayer held hostage to the foolishness of the individual Defendant who stupidly goes to trial.

    One additional point. My experience has been that on occasion some youngish AUSA is out to make a name for him or herself. They relish the chance to get a lengthy sentence against a repeat offender facing a MM scheme, and really do not want a plea. In those cases, which I’ve seen unfortunately too often, a Judge and an experienced defense lawyer and even a not crazy Defendant all are forced against the wall by an ambitious prosecutor. Not good.

    Always glad to read your blog, keep up the great work.

  10. Paul,

    Your point about the economics is a very good one, and it is a point that I have not adequately considered. As a utilitarian (most of the time), I am ashamed to admit my indolence.

    I am blessed here by experienced AUSAs. In the case I wrote about, and while I don’t feel comfortable going into the details, arguably there was a good policy rationale for the section 851 information. But, I agree with you that such is not always the case.

    Thanks for taking the time to share your extensive experience. I really appreciate it.

    All the best.

    RGK

  11. Pingback: Judge Kopf on Mandatory Minimums | Double Aspect

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