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May 19, 2010

US Sentencing Commission announces big public hearing on mandatory minimums

As detailed via this little notice, the United States Sentencing Commission has scheduled a public hearing for all day next Thursday at the Thurgood Marshall Federal Judiciary Building in Washington, D.C. As the notice explains, the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The list of invited witnesses scheduled to testify next week at the USSC can be found here, though who will testify on behalf of the United States Department of Justice is not indicated (and may not yet be known).

I suspect all the testimony at this hearing will be interesting, even though the positions likely to be taken by certain witnesses are obvious.  (For example, I fully expect that Julie Stewart, the President of Families Against Mandatory Minimums, will be testifying against the use of statutory mandatory minimum penalties in federal sentencing.)   But, except for coming out against crack/powder sentencing disparity, the Obama Justice Department has not yet had too much to say about mandatory minimums.  It will not be able to dodge taking at least some positions in this USSC hearing, and so everyone should stay tuned. 

This official press release from the USSC provides more backgrounds on this hearing and provides this explanation of how Congress has made it happen:

In October 2010 [sic; should be 2009], Congress directed the Commission to undertake a comprehensive review of these penalties as part of the Matthew Shepard and James Byrd Hate Crimes Prevention Act (Sec. 4713 of Pub. L. No. 111—84)....  [A] report is due to Congress no later than October 28, 2010.

Congress provided a detailed list of topics it expects the Commission to cover in its report, including –

  • assessing the effects of mandatory minimum sentencing on the goal of eliminating unwarranted sentencing disparity, the other goals of sentencing, and the federal prison population;
  • assessing the compatibility of mandatory minimum sentencing laws and the current federal guidelines system;
  • describing the interaction between mandatory minimum sentencing and plea agreements; and
  • discussing means other than mandatory minimums by which Congress can act in regard to sentencing policy.
The Commission expects that these topics, as well as other issues associated with federal statutory mandatory minimum penalties and the federal sentencing system, will be addressed during the hearing.

May 19, 2010 at 05:32 PM | Permalink

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Comments

"describing the interaction between mandatory minimum sentencing and plea agreements; and "

Will anyone dare say "extortion."

But I've been giving this some thought, which probably worth less in the big picture than a spilled cup of coffee.

What if sentences were measured in terms of the average life span? If so measured, many sentences could be viewed as death in prison, which is most severe.

And what if parole boards could petition the court for a new sentencing hearing? In other words, the inmate would have to convince the board there was a viable case for modification (by proof of rehabilitation efforts and so forth). This system wouldn't clog the courts with frivolous petitions but the court could be a check and balance on the parole board. Then, if the sentencing court agrees the original sentence is more than necessary given the current circumstances, the sentence could be modified to anything from immediate supervised release to a sooner release date, or no break at all.

What do you think, Mr. Bill?

Posted by: George | May 20, 2010 2:34:43 AM

Given Chief Justice Roberts's concurrence in Graham, might he be a candidate for a fifth vote for Justice Thomas's dissent in Harris?

Posted by: Ed Unneland | May 20, 2010 1:27:29 PM

Dr. George --

I think dynamic sentencing is an intruiging idea, with two caveats. First, the sentence served must be just punishment regardless of the prisoner's rehabiliitation. Second, it would have to work both ways. Some people do get less dangerous and more socialized in prison; that's true, and it is both just and economical to reward it. Others get more dangerous. In and ideal world, the former merit shorter terms, and the latter longer ones, cf. Comstock.

Posted by: Bill Otis | May 20, 2010 1:44:06 PM

Amazing. We agree on something. Your caveats are reasonable too. Of course some get more dangerous, and that could at times be because prison itself is a hopeless society. In other words, where there is hope of modification, and less "nothing to lose" attitude, there would likely be less inclination to submit to the prison culture of hopelessness. And of course those who became more violent in prison wouldn't be likely to gain the board's support to begin with and would not likely make it before the judge. In those cases where the inmate does make it before a judge, the judge would of course consider the circumstances of the crime and weigh it against the other factors. A serial killer wouldn't get any love, but someone sentenced to 55 years for a pot sale while merely possessing a gun might.

Your "Dr." joke is amusing, but lest something think it accurate, I am neither a doctor nor a lawyer.

Posted by: George | May 20, 2010 2:22:05 PM

Question: Are the first five groups to testify/present a mix of pro and con views?
I'm presuming that the "advocacy groups'are, well advocates.

Posted by: Joann | May 20, 2010 3:38:27 PM

I'm curious who appointed the current members of the U.S. Sentencing Commission. My intuition is that they are probably still mostly George W. Bush appointees.

Given this situation and the fact that the U.S. Sentencing Commission has been anything but bold for a very long time, it is hard to expect much for this report requirement.

Posted by: ohwilleke | May 20, 2010 7:25:42 PM

Mandatory minimums are for prosecutors; they make coercing plea agreements a snap.

So considering that for the past 40 years, few politicians (including appellate and supreme court justices) have dared deny prosecutors anything, it's unlikely the vaunted MM hearing will make much news.

Just curious, Bill. I'm sure you've sent scads of people to prison. But something George said made me wonder if you've ever visited a prison... spent time visiting with prison officials... talked at length with ex-cons?

I suspect most of the productive (just?) punishment occurs in the first year or two for most prisoners. Much of the rest of it, the piling on of years and decades) is mostly for show; serving to grind down souls and institutionalize people who might otherwise (but for the need to aggrandize politicians yearning to look tough) have had a shot at a second chance and productive lives.

I wonder, too, Bill, about your views on what constitutes "just punishment". Two years, five, 10, 20, 30. Sometimes it's hard to fight the feeling it's all somewhat arbitrary ...herculean efforts to make it appear reasoned and mathematically sound notwithstanding.

Posted by: John K | May 20, 2010 9:14:53 PM

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