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.


The Judicial Conference and mandatory minimums

Today, the chair of the Judicial Conference Criminal Law Committee wrote in support of Congress’s efforts “to review and ameliorate the deleterious and unwanted consequences spawned by mandatory minimum sentencing provisions.

The press release from the Administrative Office and the letter from Judge Robert Holmes Bell was prompted by a Senate Judiciary Committee hearing on reevaluating the effectiveness of federal mandatory minimum sentences. The Judicial Conference has a long-standing policy of opposing mandatory minimum sentences.

In his letter, Bell also expressed “strong support” for legislation such as the “Justice Safety Valve Act of 2013” that would “help avoid the fiscal and social costs associated with mandatory minimums.”

Aside from my disagreement with the assertion that “cost containment” policies for the judiciary ought to inform the length of supervised release terms, and while not agreeing entirely with all the other reasoning in Judge Bell’s letter, I am strong supporter of doing away with statutory mandatory minimums except in rare circumstances. In short, statutory mandatory minimums impede the drafting of thoughtful sentencing guidelines by the expert body created by Congress to write those guidelines–the Sentencing Commission.

Regarding “cost” and “supervised release” issues, Judge Bell briefly discusses those issues at pages 3-4 of his letter. Note that the judge believes that reducing supervised release terms will save the judiciary money, but he also argues that the risk of reducing prison terms can be ameliorated by supervised release conducted under auspices of the judiciary.  If that is true, one should surely doubt that there will ever be any true cost savings for the judiciary by fiddling around with statutory minimums. By the way, I entirely agree that reducing costs to the Bureau of Prisons (a creature of the Executive branch) by releasing more people earlier from prison is likely to result in a net cost savings to the government as a whole because it is truism that it costs more to house a prisoner than it costs to supervise that same offender in the free world.  That said, on the cost issue, the judiciary cannot preserve the proverbial cake while eating it too. But, my disagreement on this “cost” issue is a quibble in the greater scheme of things. Except for rare cases, mandatory minimums should be abolished.


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