Perhaps it is chemo fog, but I’m getting soft on crime

I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines. See, e.g., Prepared Testimony of Richard G. Kopf, United States District Judge, District of Nebraska for the United States Sentencing Commission, Washington, D.C. (presented on Tuesday, February 15, 2005) (asserting that district judge’s should be required to provide a “plainly superior, principled reason why the advisory Guidelines should not be given decisive weight” when sentencing particular individuals).  Given that background, I write today about statutory minimum sentences and the evolving controversy about whether they should be retained.

Reducing federal prison populations is all the rage. Some want to do it for monetary reasons, but others want to do it because they believe there are “non-violent” drug dealers sentenced to terms of federal imprisonment that are far too long and those long sentences fall disproportionately on black and Hispanic people. Whatever the motivation, Congress is considering slashing or doing away with mandatory minimum sentences.

This week thoughtful and highly regarded former prosecutors, including two men who served with distinction as Attorney General, sent the Senate majority and minority leaders a letter opposing reduction of mandatory minimum sentences for drug dealers.  One of the signatories, former Attorney General Mukasey served 18 years as federal district judge sentencing people. These folks are brilliant, tough, and experienced and they are motivated by an intense desire to protect the public from the drug predators that currently prowl about in numbers that would stagger the uninformed.

The letter reads as follows:

May 12, 2014

The Honorable Harry Reid
Majority Leader

The Honorable Mitch McConnell
Minority Leader

United States Senate
Washington, DC 20510

Re: Federal Criminal Sentencing Reform

Dear Majority Leader Reid and Minority Leader McConnell:

As former government officials who served in the war on drugs, we care deeply about our nation’s system of justice. During our tenure, we labored to see that justice was well served, the guilty punished and the innocent protected. We recognize the ongoing need to continue to improve how the nation deals with crime.

Significant components of our statutory framework for sentencing lie at the heart of our nation’s success in confronting crime. Collectively, these sentencing measures have helped substantially to reduce crime throughout our nation over the past thirty years. A series of laws, beginning with the Sentencing Reform Act of 1984, have dramatically lessened the financial and human toll of crime on Americans. Critical to these laws has been the role of mandatory minimum sentencing and the exercise by Congress of its Constitutional prerogative to establish the minimum of years of detention served by a federal offender. While federal judges are properly entrusted with great discretion, strong mandatory minimums are needed to insure both that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences. In addition, and of central importance, prosecutors use strong mandatory minimums, along with safety-valves built into the current system, to induce cooperation from so-called “smaller fish,” to build cases against kingpins and leaders of criminal organizations.

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals. We are concerned specifically by proposals thatwould slash current mandatory minimum penalties over federal drug trafficking offenses — by asmuch as fifty percent. We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law foralmost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperationand, thus, breaking down drug conspiracies, large criminal organizations andviolent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

Sincerely yours,

William P. Barr
Former United States Attorney General

Michael B. Mukasey
Former United States Attorney General

Samuel K. Skinner
Former White House Chief of Staff and Former United States Attorney, Northern District of Illinois

William Bennett
Former Director of the White House Office of National Drug Control Policy

John P. Walters
Former Director of the White House Office of National Drug Control Policy

Mark Filip
Former United States Deputy Attorney General

Paul J. McNulty
Former United States Deputy Attorney General and Former United States Attorney, Eastern District of Virginia

George J. Terwilliger III
Former United States Deputy Attorney General and Former United States Attorney, District of Vermont

Larry D. Thompson
Former United States Deputy Attorney General and Former United States Attorney, Northern District of Georgia

Peter Bensinger
Former Administrator, Drug Enforcement Administration

Jack Lawn
Former Administrator, Drug Enforcement Administration

Karen Tandy
Former Administrator, Drug Enforcement Administration

Greg Brower
Former United States Attorney, District of Nevada

A. Bates Butler III
Former United States Attorney, District of Arizona

Richard Cullen
Former United States Attorney, Eastern District, Virginia

James R. “Russ” Dedrick, Former United States Attorney, Eastern District, Tennessee and Eastern District, North Carolina

Troy A. Eid
Former United States Attorney, District of Colorado

Gregory J. Fouratt
Former United States Attorney, District of New Mexico

John W. Gill, Jr.
Former United States Attorney, Eastern District, Tennessee

John F. Hoehner
Former United States Attorney, Northern District, Indiana

Tim Johnson
Former United States Attorney, Southern District, Texas

Gregory G. Lockhart
Former United States Attorney, Southern District, Ohio

Alice H. Martin
Former United States Attorney, Northern District, Alabama

James A. McDevitt
Former United States Attorney, Eastern District of Washington

Patrick Molloy
Former United States Attorney, Eastern District, Kentucky

A. John Pappalardo
Former United States Attorney, Massachusetts

Wayne A. Rich. Jr
Former United States Attorney, Southern District, West Virginia

Kenneth W. Sukhia
Former United States Attorney, Northern District of Florida

Ronald Woods
Former United States Attorney, Southern District, Texas

Reprinted from Crime and Consequences.

I agree with much of what is contained in the letter.  In particular, and despite weak liberal reasoning to the contrary, harsh federal drug sentences have undoubtedly reduced federal crime rates for drug offenses to record lows. Mandatory minimum sentenced undoubtedly help prosecutors squeeze lesser drug dealers so that the prosecutors can get at bigger fish. To say that the federal prisons are largely comprised of “non-violent” drug dealers defies the reality of the terribly vicious and violent drug business. Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.

But I have come to the conclusion after these twenty two years that mandatory minimum sentences for drug offenders should be totally eliminated or at least scaled back such that they play no part in most federal drug cases. Here, in summary fashion, is why I have come to that conclusion:

  1. If Congress intends to maintain the Sentencing Commission and the ideals behind the Sentencing Reform Act of 1984, which is my paramount desire and concern, then mandatory minimum sentences must go.  It makes no sense to give the Commission the power to build a rational and empirically driven sentencing scheme and then instruct the Commission that no matter how rational and data-driven that scheme might be the design must be arbitrarily altered by fixed numbers.  If we are to have a panel of thoughtful sentencing experts backed up social scientists of high repute (the Commission) Congress must set the Commission free.
  2. We must decide who sentences.  Statutory minimum sentences essentially bifurcate the act of sentencing between the Executive branch and the Judicial branch.  The prosecutor picks a sentence of a certain number of years (the statutory minimum) and anything more is left to the judge. This dichotomy is both theoretically confusing and it also practically produces sentencing disparity by allowing prosecutors to pick and choose when “they will sentence” and when they will allow the sentencing judge to fully perform the act of sentencing.
  3. If the coercive power of a statutory minimum to obtain cooperation is necessary, the Commission could implement a rationalized but far more consistent equivalent by rewarding offenders who cooperate with the government.  For example, think of the role reduction Guidelines as model. Through a similar Guidelines approach, a cooperating individual might receive anywhere from a one point reduction and up to a four point (or greater) reduction for cooperation if sought by the government and approved by the judge. The Commission has always been sensitive to the interests of the Department of Justice and there is no reason to think that future Commissions, unconstrained by statutory minimums, would ignore the legitimate needs of DOJ.
  4. The authors of the letter add that they fear the Commission is moving to otherwise reduce drug sentences and imply that elimination of mandatory minimums is an example of a Commission gone rogue. No one who has followed the Commission over the years would classify it as soft on crime. While prosecutors may think the Commission is going too far reducing base offense levels for drugs, the cure for that is a debate with the Commission and not the blunderbusses of statutory minimums.

So, there is my story and I’m sticking to it. If I am getting soft on crime, then so be it.

RGK

Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?

Judge-BennettAlthough we often disagree, Mark Bennett is a dear, dear friend. More relevant to this post, he is one of the nicest, most intellectually honest, smartest and prolific of all federal trial judges. He has written an opinion regarding disparity in drug sentencing regarding section 851 enhancements for prior drug sentences. Mark’s opinion is featured in Professor Berman’s preeminent sentencing blog here. From London, I can see that the opinion has already generated 22 comments on SL&P. With all this in mind, here is my take:

This opinion is one of the most important federal sentencing decisions to be issued by any court at any time. It highlights dramatically and exactly what happens when we ignore unwarranted sentencing disparity whether that disparity is generated by judges doing their own things or by prosecutors using the Guidelines and statutory minimums as bargaining tools to extort guilty pleas from defendants who dare to say, “prove it.” Again, this is a big, big deal.

Pursuant to the penalty provisions set forth in 21 U.S.C. § 841(b)(1), enhanced penalties, including
increased mandatory minimum and maximum terms of imprisonment, apply if the
defendant has a prior conviction for a “felony drug offense.” “Felony drug offense” is
defined as “an offense that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44). These enhancements are usually referred to as
“§ 851 enhancements” because 21 U.S.C. § 851 establishes and prescribes certain
notice and other procedural requirements that trigger them.

Among other things, Mark found that a few miles (as between Sioux City, Iowa and Sioux City, Nebraska) can make a damning difference.  He writes:

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

Id. at slip op. p. 3 (emphasis added).

I have a lot of reactions to Mark’s opinion. But, here are my two strongest ones, framed in the form of questions.

  1. What the hell is going at the United States Attorney’s office in Omaha (and elsewhere) that allows disparities like this to exit–if a section 851 enhancement applies, why is the government not pressing it on a principled and consistent basis whether or not the defendant elects to go to trial?
  2. What, if anything, should the judges in Nebraska (and elsewhere) do to see to it that such disparities are reduced?

I trust that Deb Gilg, our very able United States Attorney, will have an answer to my first question. Once I have that, I will press hard  for an answer to the second one.

RGK

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