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April 24, 2013

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

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\\ Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue
sentences below mandatory minimums.//

Any difference herewith from downward departures?

Posted by: Adamakis | Apr 24, 2013 3:40:21 PM

Adamkis, currently judges can't go below a statutory mandatory minimum penalty (as opposed to the advisory guideline range) absent a substantial assistance motion filed by the government. In other words, right now, prosecutors essentially control whether a judge can impose a sentence below the mandatory minimum and the permissible reasons for going below the mandatory minimum are extremely limited.

Posted by: Fed Defender | Apr 24, 2013 3:48:02 PM

You sort of nailed the basics, Adamakis, as the bill text I have seen would require district judges to explain IN WRITING (subject to appellate review) why the 3553(a) sentencing purposes call for a sentence below the otherwise applicable mandatory minimum. Thus, we would have a kind of "old school" pre-Booker departure jurisprudence develop as to whether, when and how district judges would be permitted to sentence a particular defendant below the otherwise applicable mandatory minimum.

As I mention in my post above now, federal prosecutors have long had discretionary authority to get around mandatory minimums via charging and bargaining choices, although prosecutors have no obligation to explain and defend how they use this power and it is not subject to any transparency or outside review.

Posted by: Doug B. | Apr 24, 2013 3:54:13 PM

The true solution is for Holder to have his Legal Beagles back off on the MM. We know that congress cannot get anything passed, so this is about the only avenue for success... Simple and effective..,.
But will it happen...Not in our lifetime....

This pumps the feds up and gives them a sense of purpose and Tru Grit... Even if they've never seen a John Wayne movie..

Posted by: MidWestGuy | Apr 24, 2013 4:58:05 PM

Somehow, I suspect, if this does manage to pass, it will do so only after legislators find a way to carve out CP offenders.

Posted by: AnonymousOne | Apr 24, 2013 5:44:39 PM

Will the bill also allow judges to go above the statutory maximum?

Why not? Isn't the much ballyhooed "discretion" just as valuable at one point in the statutory range as it is at another?

No? All the talk about "discretion" is just a dodge to get to lower sentences? It's just a results-oriented maneuver designed for defendants? "Discretion" is trotted out as the fig leaf to throw off the public?

Oh, OK.

Never mind.

Posted by: Bill Otis | Apr 24, 2013 6:06:10 PM

Bill, we see lots and lots of complaints from judges and defense attorneys that some statutory minimums are set too high for some low-level defendants. Can you point to any significant examples of judges or prosecutors complaining that some statutory maximums are set too low for some high-level defendants?

Notably, not too long ago, there had been a little grousing about the stat max for child porn possession being too low because it was set at 10 years. But all that really meant, functionally, was that prosecutors would have to (a) charge a number of CP possession counts based on different images in order to be able to stack the stat max AND/OR (b) charge a receipt offense which carried a stat max of 20 years.

And, to finish the story, Congress responded to a problem that really was not a problem by RAISING the stat max for CP possession to 20 years not too long ago.

Meanwhile, you often talk a lot about the value --- and constitutional import --- of prosecutorial discretion. Is that also your fig leaf for a "results-oriented maneuver designed for defendants" or is there a special reason that discretion is always critical/valuable in the hand of the executive brnach but not in the hands of the judiciary?

Posted by: Doug B. | Apr 24, 2013 6:48:57 PM

Doug --

"Meanwhile, you often talk a lot about the value --- and constitutional import --- of prosecutorial discretion."

Which "talk" I have yet to see rebutted.

"Is that also your fig leaf for a 'results-oriented maneuver designed for defendants' or is there a special reason that discretion is always critical/valuable in the hand of the executive brnach but not in the hands of the judiciary?"

No fig leaf needed, because it's out in the open that the prosecution is in a political branch (thus appropriately focused on policy choices, be they from Holder or Mukasey), while the courts are in the judicial branch (thus appropriately bound by law, not policy choices).

But I digress. My comment showed that "judicial discretion" is just the better-sounding front man for getting to lower sentences -- a point you don't contest and all but admit.

Posted by: Bill Otis | Apr 24, 2013 7:06:41 PM

I think "judicial discretion" is, in this setting, more properly described as "front-man" for allowing an objective, law-bound, decision-maker assess and impose -- while making a transparent record, after a fair/open adversarial process, and subject to review -- a sentence that he/she thinks best serves legal ends. In lots of federal cases, this may mean lower sentences, though in lots of state cases is often means higher sentences.

Meanwhile, you admit that prosecutors are guided only by policy and politics, not law -- and they also do not have to make a transparent record, nor engage in a fair/open adversarial process or be subject to judicial review. In light of that reality, what is the basis for asserting that prosecutors should be, formally or functionally, at the heart of sentencing decision-making? Do you think sentencing is an area better controlled and guided by policy and politics and unaccountable hidden decision-making, rather than by law and open and reviewable decision-making?

Posted by: Doug B. | Apr 24, 2013 7:40:24 PM

Right now, prosecutors can go below the statutory maximum by charging a different crime. (They can also go above it, in a sense, by charging multiple offenses, or seeking consecutive sentences, and other methods occasionally employed in the rare cases where the statutory max is perceived too lenient. Indeed, judges also have some leweway in this regard, at least in consecutive vs. concurrent, but that is all beside the present point.) This bill merely gives judges some parity in sentencing discretion--it gives the judge some of the same downward discretion that the prosecutor already has. Why is such parity a bad thing? After all, why should discretion be limited to prosecutors, and not judges?

Posted by: AnonymousOne | Apr 24, 2013 7:58:34 PM

Doug --

"I think 'judicial discretion' is, in this setting, more properly described as 'front-man' for allowing an objective, law-bound, decision-maker assess and impose -- while making a transparent record, after a fair/open adversarial process, and subject to review -- a sentence that he/she thinks best serves legal ends."

Of course it was exactly such swooning trust in judges' wildly varying decisions, anchored to a content-free, idiosyncratic standard of "a sentence that he/she thinks best serves legal ends," that prompted Congress to enact MM's in the first place.

Personally, I favor cutting the people's representatives in on the deal, rather than cutting them out. What part of the Constitution, or sound policy, says that Congress cannot decide that some rock-bottom minimum should be the floor?

"In lots of federal cases, this may mean lower sentences, though in lots of state cases is often means higher sentences."

Assuming this to be true, it's not relevant, because the only bill we're talking about is federal.

"Meanwhile, you admit that prosecutors are guided only by policy and politics, not law..."

I admit no such thing. I said they are guided by politics (as they should be, being politically-empowered officers), but never said they are guided ONLY by politics.

"...and they also do not have to make a transparent record, nor engage in a fair/open adversarial process or be subject to judicial review."

As you have pointed out many times, almost all federal cases are resolved by plea bargains. Such bargains are fully set forth at the Rule 11 proceeding, where the defendant and his counsel, in open court, are carefully questioned by the judge about the content of the bargain, what their understanding of it is, whether its statement of facts is accurate, whether the client is satisfied with the assistance he has received, and on and on. And if it's not subject to judicial review, you would need to explain how Lafler and Frye ever got to the Supreme Court, much less decided in the defendants' favor. You'd also need to explain (or explain away) the zillions of habeas petitions the courts rule on each year.

"In light of that reality, what is the basis for asserting that prosecutors should be, formally or functionally, at the heart of sentencing decision-making?"

If the facts support the prosecutor's chosen charge, he has every right to lodge that charge. And if Congress has decided to attach a MM upon conviction, that is Congress's prerogative.

Who would you suggest choose the charge? The defendant? Ha! The court? Is that what the Constitution designates as a judicial function?

"Do you think sentencing is an area better controlled and guided by policy and politics and unaccountable hidden decision-making, rather than by law and open and reviewable decision-making?"

I think, as Congress thought (and thinks), that a system of unbridled judicial discretion was unjust and unsatisfactory. I also think that justice is better served by a shared functioning of the three branches, in which Congress, with input from the Sentencing Commission, decides the maximum and minimum sentencing limits; the prosecutor decides the charge based on the facts before him; the defense decides whether to plead to that charge, negotiate to a different charge, or go to trial; and the judge decides what sentence, within Constitutional and statutory parameters, to impose.

What is going on with this proposed legislation is a turning away from that and back to the bad old days. It's a power grab by judges, understandably relished by the defense because they know full well that it means lower sentences.

Do you disagree that that is the engine behind the enthusiasm for this proposal?

Posted by: Bill Otis | Apr 25, 2013 12:00:01 AM

"A power grab by judges" passed by both houses of Congress and signed by the President. Sounds like a real threat to the balance of powers...

Posted by: Anon | Apr 25, 2013 8:48:11 AM

The issue, Bill, is not who selects the charge, but who selects the final sentence. In the federal system, the evidence shows that prosecutors sometimes choose the charge in order to choose the sentence, and that sometimes prosecutors choose sentences that the judge thinks is too long in light of the sentencing laws passed by Congress.

My enthusiasm for a bill to give federal judges a bit more sentencing discretion is based on my view that I think judges, not prosecutors, should decide on the final sentence, subject to legal standards and review. But if you think prosecutors should select the final sentence, I understand your dislike for anything that would change the federal status quo

Posted by: Doug B. | Apr 25, 2013 9:16:43 AM

Doug --

-- First, I want to go back to ask where you got the idea that I "admit[ted] that prosecutors are guided only by policy and politics, not law..."

Where did I say "only"?

-- "The issue, Bill, is not who selects the charge, but who selects the final sentence."

I'm glad to see you don't contest the fact that only the prosecutor is Constitutionally empowered to select the charge. As to sentencing: I spent many years as a courtroom lawyer, and never once did I see the AUSA pronounce sentence. It was always the judge. Still is.

-- " In the federal system, the evidence shows that prosecutors sometimes choose the charge in order to choose the sentence..."

They choose the charge based on what the evidence supports (evidence being the thing that never seems to get talked about in discussions like this). If the defendant thinks the evidence does NOT support the prosecutor's charge, he has the Constitutional right to compel the prosecutor to go to trial and prove it, every element, BRD to a jury full of neutral strangers.

-- "...and that sometimes prosecutors choose sentences that the judge thinks is too long in light of the sentencing laws passed by Congress."

Then the judge has two options. One is to find the required sentence an Eighth Amendment violation, and let the government appeal if it cares to. The other is to be modest enough to understand that Congress gets a say too, and that (occasional and inevitable) disagreements with Congress are part of life.

-- "My enthusiasm for a bill to give federal judges a bit more sentencing discretion is based on my view that I think judges, not prosecutors, should decide on the final sentence, subject to legal standards and review. But if you think prosecutors should select the final sentence, I understand your dislike for anything that would change the federal status quo."

Actually, I have proposed the biggest change in the status quo out there, and did so years ago: Repeal the SRA, abolish the USSC, and adopt a new sentencing statute requiring the government to prove above-the-max sentencing factors BRD and reinstating mandatory guidelines.

P.S. I'm not buying that the Leahy-Rand bill would merely confer "a bit more discretion." It would, and is designed to, open a loophole in statutory sentencng through which the Jack Weinsteins and John Gleesons of the bench will drive a truck the size of the Queen Mary.

Posted by: Bill Otis | Apr 25, 2013 10:46:45 AM

Anon --

"'A power grab by judges' passed by both houses of Congress and signed by the President. Sounds like a real threat to the balance of powers..."

That it's a power grab by judges is EXACTLY THE REASON it hasn't been and won't be passed by both houses of Congress or signed by the President.

Nice imagination, though.

Posted by: Bill Otis | Apr 25, 2013 10:51:00 AM

The bigger the truck that is driven thru the MM and all of the federal guidelines, the better off we will be, as a nation....And Yes, prison has been a fator to lower crime, but not the largest piece..

Posted by: MidWestGuy | Apr 25, 2013 10:54:53 AM

Bill, you are dodging the real/hard cases in order to preserve your (self-serving?) view that everything works well in the current federal system. In child porn cases, for example, federal prosecutors can and do sometimes decide whether to accept a plea to CP possession or receipt because of whatever (unexplained and unreviewable) view the prosecutor has about whether a particular defendant must get at least 5 years. Given that the stat maxs are now the same for these overlapping offenses, that choice is only really now about a prosecutors' policy/politics-influenced judgment that a judge is unable to follow applicable law to reach a proper sentence under 3553(a).

(Side note: You are right, and I am sorry, that I wrongly added the word "only" to your account of what influences federal prosecutors. But the broader concern is that we do not know, nor are we apparently allowed to know, what influences federal prosecutors. They are not formally subject to law in this setting because their charging/bargaining discretion is entirely free from any legal constraints and not subject to any legal rule -- nor any formal or informal duty of explanation. In this respect, prosecutors are more like kings --- and often given broad fiefdoms by Congress --- and a lot less like regulated officials subject to the rule of law. I understand that, perhaps because you once were one of these kings and because you have more respect for these kings than for others in the criminal justice system, you are fine with letting these kings determine sentencing outcomes by (mysterious) fiat given their (unexaplined) assessments of policy, politics and whatever else may motivate them. In contrast, as a rule-of-law guy, I want more transparent and reviewable law-structured actors in charge of deciding who is to lose their liberty for how long.)

Formally and functionally, a MM-system based on charging/bargaining without any viable judicial exception is only doing something consequential when it enables prosecutors to possess (unexplained and unreviewable) discretion to pick which defendants must get sentenced to at least 5 or 10 or 15 or more years in prison and which ones won't. Notably, the USSC's recent study in the CP context highlights that there is no sound basis to believe that prosecutorial sentencing choices are being made consistently or fairly within one district or through the nation (and the same idea emerged from the USSC's broader studies of MMs for all other crimes). Indeed, research suggests that this kind of prosecutorial sentencing decision-making is a principle factor in racial and other pernicious disparities sometimes found in sentencing lengths in federal sentences.

Even as a huge fan of a robust 8th Amendment jurisprudence, I do not think the only sensible response when a federal judge thinks a federal prosecutor has used charging/bargaining power to require a sentence that is too long in light of Congress's stated sentencing goals should be a constitutional ruling/rejection. (That said, I do wish more judges had the stones to make such a ruling a lot more often.) Because I think judges ought to have some means to check the (unexplained and unreviewable) power of prosecutors without always resorting to the constitution, I strongly favor this bill and hope others will, too.

My sense is that the only sound basis for opposing this bill is to be prepared and eager (as you seem to be) to advocate that it is fine to have prosecutors pick sentencing outcomes subject only to constitutional rejection when that choice seems too extreme. I think this is a defensible position based on the notion, which I think you embrace, that prosecutors serving as kings who sometimes rule sentencing with an iron fist helps to lower crime and a stronger commitment to the rule of law and checks/balances in this setting might increase crime. But please be honest that this is what drives your view that this bill is a bad idea --- I fear that the Obama Administration holds this view (especially now that they are in charge of who gets to be prosecutor/kings at sentencing), but will do its darnedest to avoid being honest about the reality that they prefer that sometimes their prosecutors rather than judges get to script sentencing outcomes.

ADDENDUM: Put even more simply, this bill could be seen as a means by Congress to allow judges, subject to law, explanation and review, to double check whether the concur in all cases with the sentencing choices made by the (hopefully benevolent) despots that now get to be the only ones in control as to whether, when and how MMs will apply to certain offenders. I think that would be an improvement on the status quo, and I hope other members of Congress as well as the Obama Administration see matters this way. I fear they may not, and I fear even more that they will not be honest about what aspects of policy and politics really drives their affinity for the (hopefully benevolent) despotism that MMs functionally represent in the federal sentencing system.

Posted by: Doug B. | Apr 25, 2013 11:43:19 AM

@Doug:
You pretty mucg nailed this one Doug Via.

The issue, Bill, is not who selects the charge, but who selects the final sentence. In the federal system, the evidence shows that prosecutors sometimes choose the charge in order to choose the sentence, and that sometimes prosecutors choose sentences that the judge thinks is too long in light of the sentencing laws passed by Congress.

Posted by: MidWestGuy | Apr 25, 2013 1:38:20 PM

Doug --

Just briefly, four points.

First, if a king is one who cannot be removed from power by democratic processes, federal judges come a lot closer to meeting that definition than do federal prosecutors. US Attorneys serve until the next election; judges serve for life. And if you want to know who controls the courtroom, go down to one and see if the prosecutor tells the judge what to do or vice versa.

Second, you again omitted the key point that the charge the prosecutor brings is determined by the evidence, not by some "kingly" (and impliedly arbitrary) choice. Relatedly, you are mistaken in characterizing my view as that the "only sensible response" here is for the judge to issue a Constitutional ruling to rid the case of an unjust MM sentence. To the contrary, I was at pains to say that, if the defendant believes the government does not have the evidence to prove the charge that brings the MM sentence, he can and should go to trial to put the government to its proof.

If the government comes up short, too bad for it.

If, on the other hand, the government adduces the needed evidence, why should it refrain from bringing a charge the evidence proves? How is that a scandal?

Third, I don't know why you would think my position is "self-serving." I have not been in the USAO since the Clinton Administration, and I don't make a dime from my blogging or commenting on blogs. Moreover, over the last several years, I have criticized DOJ more than I have praised it.

Finally, you do not deny that charging authority rests solely with the executive branch, and is not Constitutionally subject to review by the judicial branch (of which the USSC is a part). When X has sole authority in any given matter, one can say, as you have, that X is (or is like) a "king" with arbitrary, unreviewable, high-handed authority.

But such a criticism is sterile. The buck stops with the judicial branch on some things (is Obamacare Constitutional, does the Sixth Amendment apply to plea bargaining, etc.). It stops with the executive branch on others (who gets nominated to be Secretary of this or that department). Bringing such criminal charges as it thinks appropriate is one of the functions given over to the executive. This was the Framers' decision, not mine.

Posted by: Bill Otis | Apr 25, 2013 3:16:00 PM

Doug:

Thank you for your comments. I think that they are based on the current realities. "Politics", i.e., sausage-making, should not be the primary basis for what passes as justice.

We are not as close to the angels as some people think.

Posted by: albeed | Apr 25, 2013 10:14:19 PM

Yet again, Bill, you are talking about charging generalities, not the realities of how MMs operate in the federal sentencing system. The same evidence in virtually every modern downloading case supports a CP possession charge with no MM and CP receipt charge with a 5-year MM. How does a federal prosecutor decide? The problem is we do not know they do now, and it seems we are not even allowed to try to find out through legal/open means.

Should we criticize every possession charge because it could have been a receipt charge with a 5-year MM? Should we criticize the fact that this choice is made differently in each district without any explanation why (especially when there is evidence that potentially pernicious factors like race/class may be unconsciously playing a role)? Again, the problem is we do not know how these decisions are made, and it seems we are not even allowed to try to find out through legal/open means.

What this bill would do is simply allow a federal judge to decide on the record and subject to legal standards/review, if she thinks a 5-year MM is excessive after prosecutor decides (for some unknown and unreviewable reason) to charge receipt rather than possession, that a sentence less than 5 years would be just and effective.

The issue is not that it is a scandal that federal prosecutors select charges --- it is that it is potentially unjust and a mini-form of tyranny if/when the selection of the charge (1) is done without being subject to law/explanation/review AND (2) that charge selection mandates a particular sentence that cannot be reasonably adjusted by the decision-makers who are supposed to have primary sentencing authority. Ergo, I support a bill that seeks to subject this prosecutorial sentencing power to a sentencing check/balance.

Again, I am eager for you to tell me whether you think it is, as a policy matter, a good idea to check/balance what are, in practice, sentencing decisions by federal prosecutors or if you think current system giving prosecutors this unchecked and non-transparent power is better. (P.S. I think your view is self-serving because you like to preserve and promote a world in which charging/sentencing decisions by prosecutors are seen as always sound and justified because judges cannot be trusted to use sentencing power wisely. And that is all I want to expose --- that opposition to this bill has to be based on a view that federal prosecutors are better/wiser sentencing decision-makers than federal judges. I think this is a potentially defensible position, but I want the debate to be honest and straight-forward on this front, especially since you started this comment thread by asserting that discussion of judicial discretion was a "fig leaf" here.)

Posted by: Doug B. | Apr 26, 2013 9:28:44 AM

Doug --

It IS a fig leaf. Why won't those on your side just say what they want -- lower sentences for drug pushers and people who get their jollies looking at pictures of eight year-olds getting raped (euphemistically referred to as "CP").

What this fight is really about has zip to do with "judicial discretion" -- were it otherwise, there would be an equal push to allow judges to push through statutory maximums.

Since you perforce concede that the Constitution gives prosecutors ALONE charging power, the idea that the judiciary can act as a check on that power is a non-starter. If you want more transparency, regularization and accountability in charging decisions, that's fine with me, but it will have to come from reforms WITHIN THE BRANCH THAT HAS THE AUTHORITY TO MAKE THOSE DECISIONS, and that is the executive branch. So perhaps the person to accuse of being self-serving is Eric Holder, since he, not me, could effect more transparency within the executive branch.

I might add that the proposed solution -- letting judges SENTENCE below the statutory minimum -- will do absolutely nothing to solve what you say is the problem, that being lack of transparency, etc., in the CHARGING decision. It will just let criminals off with lesser sentences.

The fact that your chosen solution is such an obvious mismatch to your statement of the problem is a tipoff that the solution is actually an answer to a DIFFERENT problem (or what the defense side sees as a problem): excessively long sentences.

Posted by: Bill Otis | Apr 26, 2013 12:40:50 PM

well you know how i feel bill. I think the judge should be allowed to go either way. IF the judge can show a legal reason to do it based on the evidence on which the individual was Convicted.

we won't even talk about the criminal stupdity of using info from UNconvicted crimes being used!

Posted by: rodsmith | Apr 26, 2013 3:41:47 PM

Bill, there are lots and lots and lots of problems with certain federal MMs. I will list just a few here:

--- they sometimes require costly prison sentences longer than a judge thinks justified by 3553(a),
--- they can and will often be used/threaened by prosecutors to demand pleas and waivers of appeal,
--- (unless/until Harris is reversed) prosecutors need not prove facts triggering MMs to a jury BRD,
--- there is evidence of considerable racial/geographical disparities resulting from the lack of transparency, regularization and accountability in charging decisions (AND YOU KEEP ASSERTING THAT NOBODY BUT THOSE OFFICIAL WHO CAUSE THESE PROBLEMS WITH MMs ARE ALLOWED TO TRY TO FIX THESE PROBLEMS)
--- judges and prosecutors now have to (and sometimes will) resort to extra-legal (and arguably illegal) means to avoid the application of MMs that seem excessive
--- they do not apply at all to many relatively serious crimes committed by prominent folks (e.g., Ebbers, Madoff, Scooter Libby, Jesse Jackson Jr.), and they do apply to many relatively minor crimes committed by not-so-prominent folks (e.g., anyone who receives four pictures of child porn or 29 grams of crack).

Sadly, the Justice Safety Valve Act of 2013 will not fix all of these problems, but it will make some of them go away and make others less bad. And I agree 100% that the failure of DOJ and Holder (and others now prosecutors or fans of prosecutors) to support this kind of legislation is a self-serving conclusion that prosecutorial power to pick SENTENCES is better than balanced powers between prosecutors and judges to pick sentences.

I could go on and on, but it continues to be very clear that you are not willing to concede that there are any problems with the MM status quo, and you seem much too eager to assert that all that really bothers me (and Rand Paul, it seems) and so many others is just the --- serious but not exclusive problem --- of when MMs call for excessively long sentences in certain cases. I am sure that is one, of many, reasons I hope this Act has some legs. But, with prominent persons like you so eager to obfuscate the issues in order to preserve federal prosecutorial power, I am not holding my breath.

Posted by: Doug B. | Apr 26, 2013 6:42:06 PM

Doug --

You keep shifting ground. You first say the problem is that prosecutors do their dirty work in secret, so we need to bring in the courts to fix this out in the open. When I point out that the dirty work (deciding what charge to bring) is assigned to the prosecutor by the Constitution (a fact you don't dispute but never acknowledge either), you change the direction of your fire from process difficulties to substantive ones (basically, that the sentences imposed are too long).

On some specific points you raise:

1. MM's "can and will often be used/threaened by prosecutors to demand pleas and waivers of appeal..."

Prosecutors can "demand" the moon. So what? Every defendant is free to tell the prosecutor to perform a difficult anatomical act on himself, and that he'll see him in court.

As to the waivers of appeal, you bet they will be demanded, since they have been approved by every court of appeals over more than two decades of childish defense foot-stomping. You often point out that the system needs to save money, and cutting down on the number of appeals does just that. Why should prosecutors put aside a fully proper tool that saves a bundle for the taxpayers and brings at least a glimmer of finality to litigation?

2. "there is evidence of considerable racial/geographical disparities resulting from the lack of transparency, regularization and accountability in charging decisions..."

Geographic disparity is to be expected if not welcomed in a country founded on federalism (a principle that, in the context of pot legalization, has your enthusiastic support). As to racial disparity, gads, is this getting old? There is racial disparity because of behavioral and cultural disparities among races, as the almost complete absence of Asians (who have also faced white bigotry) from the criminal justice system shows. (There is also age disparity, which you forgot to mention. This is because ages 20-30 commit vastly more crime than ages 50-60, not because society has it in for young people).

I'll take up more of your response tomorrow.

Posted by: Bill Otis | Apr 26, 2013 11:38:20 PM

Mandatory minimums are a misnomer. They are not mandatory on the prosecutor. No congressional prescription seems to be, as prosecutors can charge no crime or charge multiple crimes. Prosecutors essentially set the sentencing range, not Congress, and nor judges.

I want reform, in the form of this Act (imperfect as it may be), for two reasons. First, just as Doug has made clear, there are serious policy problems with the MM system, including vast, unchecked concentration of power in a single branch of government. Second, I do think that the MMs do great injustice; many inflexible, fact-insensitive things do. And on MMs, I am not alone. A fast-growing number of judges of all political stripes feel similarly. These neutral arbiters, who hear all the individual facts, are powerless to spare defendants and their families from the indiscriminate nature of this Congressional one-size-fits-all legislation, wielded by unreviewable and unchecked decisionmakers. (And it does go both ways; if I thought sentences were too lenient, I'd say the same thing. They aren't. Nobody really suggests that. And prosecutors can always charge multiple crimes and seek consecutive terms, as occasionally happens.)

I welcome this legislation. And I welcome a renewed, thoughtful focus on sentencing. Perhaps the days are past where a junior senator or congressman could spend a minute's thought, double the penalties for some loathed group of criminals, and ensure quick and thoughtless passage knowing that any opponent would be painted a lover of that loathed group.

Posted by: AnonymousOne | Apr 27, 2013 12:42:44 AM

Doug (cont'd) --

3. "...resulting from the lack of transparency, regularization and accountability in charging decisions (AND YOU KEEP ASSERTING THAT NOBODY BUT THOSE OFFICIAL WHO CAUSE THESE PROBLEMS WITH MMs ARE ALLOWED TO TRY TO FIX THESE PROBLEMS)."

AND I WILL CONTINUE TO ASSERT IT (in caps, since otherwise it doesn't seem to be getting through), as long as the Constitution vests charging power solely in the executive. If you want to fix "those who cause these problems," get the Constitution amended, or use the political process to replace the executive with someone better (as I urged six months ago, to no avail).

And it's not just that courts have no authority to charge. It's that rigging sentencing to please defendants (which is what this proposal is actually about) will do absolutely nothing to change charging, SINCE SENTENCING COMES AT THE OTHER END OF THE PROCESS.

4. "judges and prosecutors now have to (and sometimes will) resort to extra-legal (and arguably illegal) means to avoid the application of MMs that seem excessive."

Could you give specifics? Could you cite a case whose holding recapitulates your "illegal maneuver" claim here?

There is nothing new or even slightly irregular about this: A prosecutor can, as an act of leniency -- sometimes bargained for and sometimes not -- bring a lesser charge than the evidence would justify, or no charge at all. Do you object to this? I didn't think so. Could you tell me why that is illegal, extra-legal or even bad practice?

What you actually want is for the judicial branch to have unlimited sentencing power, rather than have to share it with the elected branches, because you know there are the Jack Weinstein's and John Gleeson's out there who can be counted on to blow kisses to every drug dealer in sight rather than impose anything even resembling a serious sentence.

Well, OK, I understand why the defense side wants this, but I would ask you to understand why it hasn't happened for a generation and isn't going to happen now. The public does not share a swooning, make-every-excuse view of criminals -- the kind that Weinstein recently went on and on about for 400 PAGES -- and a dozen or two dozen sorehead judges on one extreme of the sentencing spectrum don't get to call the shots for everyone else.

Posted by: Bill Otis | Apr 27, 2013 9:50:40 AM

“Why won't those on your side just say what they want -- lower sentences for drug pushers and people who get their jollies looking at pictures of eight year-olds getting raped (euphemistically referred to as "CP").”

You have it wrong. It is your “rape” term that is a gross mischaracterization. Let’s be clear about what most CP depicts, so people don’t get the wrong impression (and there seems to be much public confusion). Few of these images depict someone restrained or bound, screaming or bruised or bleeding. Indeed, much of it looks indistinguishable from what adults regularly do, save for one fact—a difference in age. (Now I’m not saying it’s OK; but just that your terminology misrepresents things). We’ve deemed children incapable of consenting to sexual activity (and for some reason, also call any such activity “rape”). We’ve also deemed children incapable of entering into contract, or consenting to medical procedures. And we believe it bad if they do. But it is wrong to say that people get their “jollies” looking at kids being “raped” unless you clarify that you do not mean anything like the kind of “rape” referenced when adults are involved. Many of these people get their jollies seeing children on the receiving end of sexual affection that with adults is harmless, but with children can be quite harmful. To me, that sickness is quite different than rape. It is a age-misdirected yet very nefarious affection, rather than some guy chasing a kid, beating him, and forcibly penetrating him.

This is collateral to the issue being discussed, but I need to cut in because this kind of rhetoric obfuscates the issue, and is a mainstay of prosecutorial rhetoric.

Posted by: ClericHolder | Apr 27, 2013 3:54:25 PM

ClericHolder --

All intercourse between an adult and a child is rape because, as you point out, a child cannot give knowing consent. Some of the rape depicted in CP is statutory rape; some of it is rape to which the child "consents" only because of inducements (like candy or a joint or a pretty dress); and some of it is forcible rape in the classic sense.

I hope this clarifies my comment.

Posted by: Bill Otis | Apr 27, 2013 5:14:16 PM

Thanks Bill.

Posted by: ClericHolder | Apr 27, 2013 7:47:10 PM

"What you actually want is for the judicial branch to have unlimited sentencing power, rather than have to share it with the elected branches, because you know there are the Jack Weinstein's and John Gleeson's out there who can be counted on to blow kisses to every drug dealer in sight rather than impose anything even resembling a serious sentence."

This is unfair to the judges you mentioned and to those who advocate MM reform.

First, Gleeson and Weinstein give plenty of long sentences--you just don't read about or highlight them. However, they are most vocal in reluctance to impose lengthy, life-destroying sentences on every low-level drug dealer or 19-year-old CP-viewer). But they are small cogs and beside the point.

Second, and more importantly, I know, as AO, posted, that there are tons of judges who think that the 5-year MM for many CP cases is unjust (and many of these were former AUSAs, repubs and dems). I know the same for drugs. Not all of them are looking to "blow kisses" to dangerous people. It is unfair to imply that this is about getting across-the-board leniency for very dangerous people, or some way to avoid any serious sentences (as if 4 years in federal prison wasn't "serious").

Also, you ignore appellate sentencing review. Judges do have to account to someone. Sentences have been reversed, in every circuit.

You can criticize some MM-reform supporters as motivated by a liberal agenda. That is true and fine (though there are some who oppose it for other policy reasons, or for both). But I think you aren't being quite fair in characterizing that liberal agenda as some way to shower very bad people with no punishment at all. That doesn't fit with the vast majority of those--on both aisles and from varied backgrounds--that feel MMs can do injustice.

Posted by: Mary Waldron | Apr 27, 2013 9:05:57 PM

interesting bill!


"All intercourse between an adult and a child is rape because, as you point out, a child cannot give knowing consent."

Last time i looked both state and federal law also said any sexual activity between prisoners and their jailers is RAPE as well. Since legally they also cannot concent!

But for some reason in that thread about the 4 preg female prison guards i never heard anything mentioned about rape charges against them?

Posted by: rodsmith | Apr 28, 2013 12:37:47 AM

Doug (cont'd) --

5. MM's "do not apply at all to many relatively serious crimes committed by prominent folks (e.g., Ebbers, Madoff, Scooter Libby, Jesse Jackson Jr.)..."

The proposed bill will do nothing to fix that, obviously.

"...and they do apply to many relatively minor crimes committed by not-so-prominent folks (e.g., anyone who receives four pictures of child porn or 29 grams of crack)."

What is viewed as a "minor crime" lies in the eye of the beholder. If you have any documentation that a majority of the public, or a majority of either house of Congress, views either CP or crack dealing as "minor," of course that would be highly relevant, and I'm sure I'm not the only commenter who'd like to see it.

6. "...it continues to be very clear that you are not willing to concede that there are any problems with the MM status quo..."

What I do not concede is that this sweeping bill, which would effectively repeal every MM out there, is the CORRECT REMEDY for such problems as there may be with the status quo.

"...and you seem much too eager to assert that all that really bothers me (and Rand Paul, it seems) and so many others is just the --- serious but not exclusive problem --- of when MMs call for excessively long sentences in certain cases."

What is "excessively long" is, again, in the eye of the beholder. The majority of beholders who comment here would doubtless agree with you. But the majority of commenters here are very much defense-oriented, and not a bit representative of the majority of the electorate.

7. "I am sure that is one, of many, reasons I hope this Act has some legs. But, with prominent persons like you so eager to obfuscate the issues in order to preserve federal prosecutorial power, I am not holding my breath."

I'm just a "po' country lawyer," in Sam Ervin's famous phrase, a part time law professor and an over-the-hill prosecutor. Sure, there are a few people I talk to in this town, and a few who talk to me, but I've been kicking around here for so long, that's hardly surprising.

My basic objection to this bill is that it would do away with the last vestige of determinate sentencing, and effectively end the rule of law in sentencing in favor of a return to exactly the kind of runaway judicial imperialism that prompted the SRA, and the growth of MM's, to begin with.

Binding guidelines went bye-bye eight years ago. Only MM's remain of anything that seriously could be called law-based sentencing.

Everything in public policy is trade-off's. It is true that, every now and again, we get a sentence under MM's that looks unjust -- and looks that way, not just to "defendants-are-wonderful" liberals, but to more mainstream people like my friend Paul Cassell who, when he was a judge, wrote a famous opinion critical of a mandatory minimum he had to give in one case. Thus, Doug, you are simply incorrect in saying that I see no problems with the current MM regime.

What you miss is that I think the current set of problems is nowhere near as bad as the problems this bill would create. Where there is no longer ANY substantive statutory constraint on sentencing, where EVERY sentence if up for grabs, it won't be just Weinstein and Gleeson. It will be every Weinstein and Gleeson wannabe, all eager to preen to an adoring press about how compassionate they are. I mean, sure, how pleasing it must be to get some fawning article in the New York Times, and all you have to do is give a crack dealer a big break. He won't be a problem in the neighborhood YOU live in, so, hey, what the heck. Plus it must feel great to go on the rubber chicken circuit at defense bar banquets and receive the "Social Justice Champion of the Year Award" or whatever they call these things.

No thanks. With the advent of advisory guidelines, discretion has made as much of a comeback (more, in my view) as is healthy in a system that retains any regard for the rule of LAW in sentencing.

To adopt this bill is to tell judges: Do anything you please. We in Congress surrender all power to say that there is ever, EVER, a rock bottom minimum for any offense, no matter how awful.

The reason the bill is going nowhere has nothing to do with my "prominence." The reason is that Congress, quite rightly, is not about to tell judges any such thing.

Posted by: Bill Otis | Apr 28, 2013 8:01:04 AM

Mary Waldron stated: "Second, and more importantly, I know, as AO, posted, that there are tons of judges who think that the 5-year MM for many CP cases is unjust (and many of these were former AUSAs, repubs and dems)."

Republican judge, Democrat judge, libertarian judge, whatever. What makes a judge's "opinions" more relevant than those of the branches who are subject to the vote of the people?

Judges are already far too powerful, much more so than the founders intended.

Posted by: TarlsQtr1 | Apr 28, 2013 11:15:00 AM

Tarls,

I think that Congress is much to thoughtless, much more so than the founders intended. I have the most respect for Congress when it really digs deep to promulgate thoughtful legislation. For instance, when I see hearings, evidence, careful study, thoughtful debate, etc. There are some excellent examples of such legislation. But sadly, that is not how plenty of sentencing legislation comes about. Instead, much results from no hearings, no testimony, no evidence, no study, nothing. Instead, one senator or congressperson proposes something, appends it to some other bill, and nobody really cares enough (or wants to be labeled soft on pedophiles) to say anything about it. I have the least respect for Congress in those instances. I also think that the founders would be shocked at the manner in which this this body has devolved.

Judges aren't perfect either. But Congress needs to do its job.

Of course, there is also the argument that certain matters cannot reliably be left to Congress, because it is too prone to capture by passion and emotion, or the vagaries of a particular majority. The Constitution thus walls off certain decisions from Congress. Nobody seems to take issue with that, though the second I suggest that there should be others that are walled-ff, suddenly I lack faith in democracy. That's just wrong. I do have faith, but I'm also realistic. I know that on certain matters, the political process is not reliable. I simply differ with the founders in where to draw that line. But putting aside that thornier question, my main point is that I'd have more respect for legislation--even if I disagreed with it--if it was the product of a process that I thought could produce reasonable legislation. That is, I recognize that thoughtful people can disagree with me, and respect that, but I don't respect thoughtless disagreement.

Posted by: Subethis | Apr 28, 2013 3:02:18 PM

Subethis --

You are correct that, "The Constitution...walls off certain decisions from Congress." But the current batch of mandatory minimums are not among the walled-off decisions. They have been challenged in court many times on constitutional grounds, both facially and as applied, and the challenges have gone nowhere.

I fully agree that Congress should think more about some of the disasters it enacts (e.g., Obamacare), but this is the system we have. Over 200 years, it has made us the preeminent nation on the earth. The Founders surely knew that legislators don't always think things through, but I have no confidence that I know better a system than they did.

Posted by: Bill Otis | Apr 28, 2013 4:40:22 PM

Subethis i have no respect for the fucked up joke that calls itself a congress. They have not managed to pass a budget in a decade. The ones who have been there the last 50 years or so have taken the "preeminent nation on the earth" as Bill calls it and turned it into a brokendown bankrupt joke of the world!

As for our founders. If they were here today. That bunch of fuckups would be DEAD! and they would be the ones doing the killing!

Posted by: rodsmith | Apr 29, 2013 2:28:01 PM

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