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.


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