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September 26, 2010

Making the case for sentencing reform in the form of "Mandatory Minimalism"

I am pleased to see this new article, titled "Mandatory Minimalism," about reforming mandatory minimum sentencing statutes authored by Professors Paul Cassell and Erik Luna.   (Though Cassell was once a federal judge, luna is likely now more famous for once having been cited by Lindsay Lohan).  Here are two paragraphs from the article's introduction:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims.  The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system).  If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms.  Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying.  It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system.  Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena.  Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps.  Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.

September 26, 2010 at 04:32 PM | Permalink


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Are those two lawyers? If they are, nothing they can say has the slightest merit or validity. Every utterance has the taint of rent seeking and of their indoctrination by the criminal cult enterprise that is the profession. The Supremacy has had some legal training. Nothing it says should be trusted. For example, it advocates torts as a remedy to the failures of the criminal law, generating massive lawyer employment and massive lawyer enrichment at the expense of the taxpayer, a source of money that dwarfs the usual defendant.

That being said, all law making is human experimentation. If the goal is to reduce crime victimization, then this proposal should be enacted and tracked for effect in a small jurisdiction, then retested in a larger jurisdiction if it works. One cannot judge it without measurement of its effect in the real world.

Posted by: Supremacy Claus | Sep 26, 2010 6:36:56 PM

The authors are both professors.

Posted by: guest | Oct 5, 2010 3:32:10 PM

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