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June 26, 2013

An argument that the "Leahy/Paul bill is a disaster" from Bill Otis

I was intrigued to see that frequent commentor and former Justice Department official Bill Otis has this lengthy new post over at Crime & Consequences explaining in detail why he believe that the Justice Safety Valve Act proposed by Senators Patrick Leahy and Rand Paul "is a disaster, both for US Attorneys Offices and, more importantly, for the country."  I recommend all readers head over to C&C to see all of what Bill has to say in opposition to a bill that would allow judges to sentence below applicable mandatory minimum statutes if and when they believed such a sentence would achieve the sentencing purposes Congress set forth in 3553(a).

To whet appettites, here are a few key sentences from a few the key paragraphs from Bill's commentary:

If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't. Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker. For the reasons I shall now explain, the ensuing one-way ratchet downhill will produce at least three perverse results.

First, it will end the rule of law in sentencing. For those who believe that the rule of law is better than the rule of taste, this would be a loss of enormous magnitude....

The second perverse result is that this bill is certain to increase crime. One hardly need be a genius to understand that, when you have muggers, drug pushers and the rest of them in prison and off the streets, the streets are safer....

The third adverse effect of ending mandatory minimums is that it will increase the cost and litigiousness, and decrease the effectiveness, of the AUSA's work....

In a future post, I will explain why I think Bill's concerns are in some ways overstated and in other ways misguided.  But, perhaps more importantly, I am glad to see someone explain in detail the basis for possible opposition to the Justice Safety Valve Act.  And I hope that the debate over this important federal sentencing reform bill not only takes place on blogs, but also in the hall of Congress through formal hearings concerning the bill in the weeks and months ahead.

Some recent and older related posts:

June 26, 2013 at 04:02 PM | Permalink

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Comments

Doug --

If there is a Congressional hearing on this bill, I should be pleased to sit at the witness table with you and, in effect, have a live debate on the merits.

Thanks for taking note of my entry.

Posted by: Bill Otis | Jun 26, 2013 5:25:20 PM

Why don't you try to get Georgetown to put a public forum/debate together on this topic, or perhaps a joint Federalist Society/ACS event? I'd be eager to go over all these issues with, and I suspect we could/would do a nice public service (and get some media coverage) if we could put this together effectively come the fall? What say you?

Posted by: Doug B. | Jun 26, 2013 7:09:08 PM

Can anyone explain how this bill isn't simply saying "no more mandatory minimums?"

Given that the judge is always supposed to use the 3553(a) factors and only sentence to as much is needed to meet those factors, the only thing preventing the lower sentences before was the MMs. A bill that says you can sentence below the MM is really just saying there is no more MMs.

Is there something making the phrasing they are using relevant or is it simply to hide the true effect of the bill?

Posted by: Matt | Jun 26, 2013 7:55:20 PM

Matt I can explain.
It simply is an escape for a chosen few that a judge deems it unnecessary to warehouse for eternity for no good reason. For others, or almost all they will continue to get nailed to the cross, as generations before have.. Actually pretty simple.

Posted by: MidWestguy | Jun 26, 2013 8:17:41 PM

Doug --

My guess is that my schedule is more flexible than yours, since I will be off next semester. So I should be the one to accommodate; maybe we can hold the debate at Ohio State, like last time.

My only condition is that the portrait of you hanging on the outside the auditorium be less than 15' x 20'.

Posted by: Bill Otis | Jun 26, 2013 11:24:35 PM

"In a future post, I will explain why I think Bill's concerns are in some ways overstated and in other ways misguided."

In ways true and uncomfortable ... like the facts of biology to homosexual reproduction.

Posted by: Adamakis | Jun 27, 2013 8:24:55 AM

Bill loves mandatory minimums because people must be treated alike. This is the supreme end of the criminal law. And every serious crime must have a minimum time of imprisonment regardless of circumemstances. Hence, the 35 year old person with 2 prior felony convictions for burglary and one for rape who downloads child pornography must get at least the minimum mandatory of 5 years. I understand that part. But, according to Bill, so must the first-time 18 year old, bi-polar teenager, who has attempted suicide 3 times, and who was raised in foster homes, who downloads for the first time from curiosity. Makes perfect sense and yields perfect justice. Really?

Posted by: observer | Jun 27, 2013 9:07:53 AM

@ observer

The scenario you describe is far superior to the one you desire, that both get a stern scolding and a free subscription to Lollipop magazine.

Posted by: TarlsQtr1 | Jun 27, 2013 9:52:41 AM

The ultimate question is who drafts the laws in this Country. In most of the country, we no longer have common law crimes and we have not had federal common law crimes since the early 1800s. That means that the legislature defines the range of punishment for these offenses.

For each offense, the legislature (for federal offenses Congress) has decided the available range of punishment and whether probation can be granted for that offense. Maybe that decision is wrong on some individual offenses. If it is Congress should amend the range of punishment for that offense. To write a law saying that judges can ignore the authorized minimum punishment seems to be a revolutionary shift of power from the legislature to the judiciary.

Posted by: tmm | Jun 27, 2013 10:14:40 AM

The problem I have with the "rule of law" defense of mandatory minimums is that, in fact, there are all sorts of ways in which the rule of law is perverted in our system, in many cases because of the existence of mandatory minimums. What I mean by this is that prosecutors, not legislators, decide what laws will be used to charge defendants, and these decisions are deeply inconsistent from prosecutor to prosecutor and district to district. An example: under 18 USC 924(e), a defendant with three qualifying priors is subject to a mandatory minimum of 15 years. But a good defense lawyer may be able to secure (or a soft-hearted prosecutor may charge out of the gate) a plea to a charge of possession of a stolen gun, which has no mandatory minimum and a cap of 10 years. Charge bargaining, which I understand Mr. Otis disapproves of, is fundamentally at odds with incantations about the value of the "rule of law."

Vesting the discretion about the extent of punishment in a single member of the executive branch (whose title to his position has not been voted on by Congress) has no less potential to frustrate the intent of Congress than vesting that discretion in a member of the judiciary for whom the Congress sat as the gatekeeper for membership. It all depends who you trust more to make that decision.

Posted by: AFPD | Jun 27, 2013 10:48:55 AM

observer --

"Bill loves mandatory minimums because people must be treated alike."

Don't tell me what I "love," hotshot, and I never said and don't believe that all "people should be treated alike."

"This is the supreme end of the criminal law."

Actually, the supreme end of criminal law is to convict and punish the guilty and free the innocent.

"And every serious crime must have a minimum time of imprisonment regardless of circumemstances."

Would you mind quoting anything I have said to the effect that "every" serious crime must have a MM?

"Hence, the 35 year old person with 2 prior felony convictions for burglary and one for rape who downloads child pornography must get at least the minimum mandatory of 5 years. I understand that part."

Actually, your pal should be in for a good deal longer than five years.

"But, according to Bill, so must the first-time 18 year old, bi-polar teenager, who has attempted suicide 3 times, and who was raised in foster homes, who downloads for the first time from curiosity."

I just love it when you characters claim that people download this stuff "from curiosity." Do you expect anyone but a fool to fall for that? And being bi-polar and depressed does not make a person get off on seeing pictures of an eight year-old being forced to have sex with an animal.

While we're at it, could you cite for me any circuit court opinion, ever, that says that five years -- which is not exactly life for an 18 year-old -- is even close to being cruel and unusual punishment? Going into orbit over a FIVE YEAR sentence shows, not how far off base the law is, but how far off base you are.

"Makes perfect sense and yields perfect justice. Really?"

No system yields perfect justice (if you can suggest one, I'd be happy to take a look, however). But a system containing MM's more nearly provides sound justice than the anything-goes system you want, which would equally allow your 35 year-old (and the next and the next with some judges) to escape anything a normal person would regard as just punishment.

But that's the whole idea, isn't it?

Posted by: Bill Otis | Jun 27, 2013 11:33:11 AM

tmm --

Nailed it, as you often do.

Posted by: Bill Otis | Jun 27, 2013 11:36:47 AM

well bill when i look at this!

"If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't. Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker."

What it tells me is that the judges have decided that our glorious do-nothing congress is like usual talking out it's collective ass.

Posted by: rodsmith | Jun 27, 2013 11:54:43 AM

AFPD --

A few points if I might.

1. It is not a perversion of the rule of law, but its expression, that prosecutors decide whether and what to charge. That's what the Constitution dictates. Following the Constitution is obeying, not perverting, the rule of law. And the Framers of course knew that prosecutors (like judges and defense lawyers) would differ in temperament and outlook.

2. That discretion is exercised, and may be abused, in one part of the system is hardly a reason to expand the room for irrationally disparate outcomes. It is, to the contrary, a reason to do the opposite.

3. In your example, the more stringent prosecutor is doing something the law fully allows, and the more lenient is bending to give the defendant a break. It is true that this will produce a disparate outcome on the same (or similar) facts, but that is not something the defense has any standing to complain about -- unless, that is, the defense wants to bar acts of prosecutorial grace (which would be new to me).

Grace (on the front end) by prosecutorial decision-making, and (on the back end) by the power of clemency, is both conceptually and Constitutionally different from legislation -- and, more to the point, was DESIGNED to be different.

4. I am not an opponent of all discretion. I simply believe that Congress is well within its rights to decide that some sorts of very bad behavior deserve a certain rock-bottom minimum punishment. And I will say again now what I've said before: If federal MM's were one year instead of five or ten years, we wouldn't even be having this debate. Experienced practitioners (of which you are one) know that what really gives the defense bar heartburn is the length, not the fact, of MM's.

Posted by: Bill Otis | Jun 27, 2013 12:03:07 PM

AFPD. Unless you are talking about creating a system in which the prosecution is forced by mandamus to charge the maximum allowable offense and take it to trial, the ability of the prosecution to choose what offenses should proceed remains regardless of the range of punishment. Unless you make the available punishment for all offenses the same (say 1 day to life imprisonment or death), then the prosecutor will always have some impact on what punishments are available. That goes with the power of the executive branch to choose how to execute the law.

The question is what should the range of punishment be for a particular offense. That should be a legislative decision that clearly informs the public, the victim, and the defendant about what punishment he is facing. If the legislature believes that a five-year minimum is too much, they are free to change that minimum to one-year. I may oppose specific proposed changes, but I do not generally have a problem with the legislature recalibrating the ranges of punishment to reflect changes of opinions as to the appropriate minimum and maximum.

What I oppose is a statutory scheme that says that the minimum penalty for an offense is five-years, but then says that the judge is not really bound by the range of punishment created by the legislature. If instead of saying that the judge was free to go below the minimum because he thought the minimum was too much, the proposal was to allow a judge to exceed the maximum because she thought it was too little, defense attorneys would quickly complain about the constitutionality of the new statute. I think what is good for the goose is good for the gander.

The range of punishment should be what the statute says it is, not what a judge thinks it is. If you think there are too many triggers that bump up the range of punishment, repeal those additional elements and only have one simple offense with a wider range of punishment. I know from state court experience (prosecutors and defense attorneys in my state have been working for several years on a comprehensive redraft of the criminal code) that most defense attorneys seem to want more lesser-included offenses with minor distinctions and significantly different ranges of punishment, not fewer.

Posted by: tmm | Jun 27, 2013 2:44:07 PM

Nice job, tmm.

Posted by: TarlsQtr1 | Jun 27, 2013 5:30:41 PM

Ditto.

Posted by: Bill Otis | Jun 27, 2013 5:53:40 PM

"Congress is well within its rights to decide that some sorts of very bad behavior deserve a certain rock-bottom minimum punishment."

Or that, in some cases, it might not. So there's obviously no "rule of law" problem in Congress's deciding that sentencing judges should enjoy discretion over presumptive statutory minimums as a check on the charging discretion that Bill (rightly or wrongly) takes as a constitutional gimme for federal prosecutors.

Posted by: Michael Drake | Jun 27, 2013 7:58:41 PM

Michael Drake --

"So there's obviously no 'rule of law' problem in Congress's deciding that sentencing judges should enjoy discretion over presumptive statutory minimums as a check on the charging discretion that Bill (rightly or wrongly) takes as a constitutional gimme for federal prosecutors."

Rightly or wrongly??? If you have any authority that charging discretion resides in some branch other than the executive branch, please cite.

Posted by: Bill Otis | Jun 27, 2013 9:59:29 PM

"Rightly or wrongly??? If you have any authority that charging discretion resides in some branch other than the executive branch."

I didn't suggest the discretion resides in some other branch. I just don't take it for granted that there's anything properly constitutional in granting (1) unreviewable (2) charging discretion (3) to individual AUSAs, who after all (3) owe their existence to statute. Obviously, courts have acquiesced in this state of affairs, on purported separation-of-powers grounds, but such acquiescence is far from clearly mandated by constitutional text, structure, or history.

Posted by: Michael Drake | Jun 28, 2013 9:24:33 AM

Michael Drake --

Well, if you want to make an argument in court that the Constitution vests charging authority in some branch OTHER THAN the executive branch, I'll be eager to see it. And sight unseen, I'll bet you $100 to $1 here and now that it loses.

A hundred bucks, Michael. You can get that incredibly cute kid of yours a lot of ice cream cones for $100. Are we on???

Posted by: Bill Otis | Jun 28, 2013 9:59:23 AM

Michael, an individual AUSA has unreviewable discretion?

That's news to me. I always thought the US Attorney could review any decision made by his subordinates.

Posted by: Kent Scheidegger | Jun 28, 2013 10:08:27 AM

To say the AUSA has unreviewable charging discretion is not accurate for a different reason. For felony charging, the defendant has a right to a grand jury indictment. While one can argue that grand juries fail to properly exercise their power to determine the appropriate charge, they do have the power. I know its a quaint that that grand juries should actually use that power, and I remember about 20 years ago when a state grand jury in Texas made news for actually remembering that they, not the local DA, had the final word on charges, but it is their power, not the AUSA or the US Attorney or the Attorney General or the President.

Aside from the grand jury check on the initial decision, who else other than an attorney in the executive branch representing the US is supposed to make the decisions for the US as a party once the case has been filed. Congress is supposed to make the laws, not carry them out. The judiciary is supposed to be a neutral resolver of cases and controversies brought to it. The executive branch is the branch constitutionally charged with making those decisions necessary to carry out the laws (including the criminal laws) that have been enacted.

Posted by: tmm | Jun 28, 2013 10:22:22 AM

Kent and tmm --

Michael has a habit of SUGGESTING legal conclusions (there's nothing explicitly constitutional in the grant of charging power solely to the executive) without DOCUMENTING them -- which is why I asked him to produce an argument.

Of course, some defendants, when unsatisfied with the prosecutor's decision to charge this or that, have their own ways of advancing the ball -- ways that involve a degree of zealousness not normally associated with "argument."

http://www.huffingtonpost.com/2013/04/18/eric-william-charged-capital-murder_n_3111215.html

Posted by: Bill Otis | Jun 28, 2013 10:55:56 AM

Kent says that it's "news to him" that AUSA decisions aren't "reviewable," because "the US Attorney c[an] review any decision made by his subordinates." But it's news to me that the term "reviewability" in legal contexts would connote, much less denote, optional review by line managers.

tmm's point is a fair enough point of clarification, but I was talking about judicial review. (And even if I'd been talking more generally about checks on charging authority, tmm appears to grant that the grand jury isn't much of one.)

Bill challenges me to "make an argument in court that the Constitution vests charging authority in some branch OTHER THAN the executive branch." This, after I had explicitly stated — in the very first sentence of my response to his similar misreading in his previous comment — that "I didn't suggest the discretion [to charge] resides in some other branch." I really don't know how I could have been more clear about that.

Anyway, as for "documenting" any particular legal claim, I wasn't aware doing so was de rigueur in blog comments. But, okay — for "documentation" that the constitutional link between executive powers and unreviewable line AUSA charging discretion is less than clear, see, e.g., Rebecca Krauss, "The Theory Of Prosecutorial Discretion In Federal Law: Origins And Developments," 6 Seton Hall Circuit Rev. 1 (2009) (pdf).

That'll have to be my last word in this thread.

Posted by: Michael Drake | Jun 28, 2013 11:59:58 AM

Most analysis of the role of juries and grand juries in the framing generation do consider them to be part of the judicial branch. They are appointed by the courts. To say they are not particularly effective is the same as saying that courts are not particularly effective in providing recovery for victims of corporate fraud. The problem in both cases is not that the courts/grand juries lack the power; it's that the procedural rules constrain the use of the power. If, as many on the defense side feel, the modern grand jury system for the most part fails to act as effectively as the modern grand jury did in the 1800s, propose a reform that will restore that check.

But back to the original point of the Professor's post, seeing a need to cure prosecutorial abuse of discretion is not the same thing as believing that a particular offense has the wrong range of punishment. If the ranges of punishments for federal offenses are wrong, amend the actual statute to give the courts more discretion. Do not pass a law that creates a legislative untruth (that is, here is what we say the range of punishment for the offense is, but it's not really the range of punishment because the court is free to make up its own range of punishment at will).

Posted by: tmm | Jun 28, 2013 12:21:59 PM

Okay, maybe next-to-last word. To tmm's response, a couple of quick points.

You say that "[m]ost analysis of the role of juries and grand juries in the framing generation do consider them to be part of the judicial branch." Are you sure about that? See, e.g., United States v. Williams, 504 U.S. 36, 47 (1992) (noting that "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside").

You also say that there's something "untrue" in the sentencing scheme that would result from this proposed change in the law. But what's "untrue" about providing hard maximums and presumptive minimums by statute? If I'm not mistaken,* no penal statute actually uses the phrase "mandatory minimum." Rather, the minimums stated in statutes are mandatory by dint of there being no statutory authorization to vary from them. This bill would provide that authorization. What's puzzling about that?

*To be clear, I don't there would be anything terribly problematic about a bill that converted expressly "mandatory" statutory minimums into discretionary ones. It's just that this bill is particularly unproblematic given that, as I believe is the case, the language in these statutes doesn't even include the word "mandatory."

Posted by: Michael Drake | Jun 28, 2013 2:20:32 PM

Michael Drake --

You are well suited to your work as a defense lawyer. In your next to last paragraph here (Michael Drake | Jun 28, 2013 11:59:58 AM) you admit that charging discretion resides solely in the executive branch, then, in the final paragraph, use muffled language to suggest (again without really arguing) that your admission in the paragraph before might not be all that true!

And, yes, there's a reason you do this kind of hairsplitting two-step in a blog comment rather than in court, the reason being that the blog audience consists mostly like-minded pro-criminal types, while the audience in court tends to be neutral and therefore less likely to indulge the fancy dance.

Posted by: Bill Otis | Jun 28, 2013 3:20:55 PM

"Muffled"? Whatevs, Bill.

Anyway, if the issue ever comes up in court, I'll be happy to make the argument and take your bet. Now you'll excuse me while I go get my kid* $101 worth of ice cream cones.

*I do appreciate your assessment of his cuteness; I'll be sure to pass it along.

Posted by: Michael Drake | Jun 28, 2013 5:14:35 PM

Michael, a range of punishment is either the authorized range of punishment or it isn't. If there is no minimum range, the statute establishing the range of punishment should be modified to state that the range of punishment is anything up to the maximum. That is writing the statute on an honest way.

Providing in a statute that the punishment shall be no less than x is not providing a presumptive minimum, it is providing an actual minimum. A presumptive minimum is an oxymoron. If its only presumptive, then its not a real minimum.

Having created a mininimum in the actual section governing the offense and then saying in another section that a court need not abide by the statutory minimum is amendment by implication which is disfavored. At best, it is hiding the ball from the public, cowardly creating cover for the logical consequences of the new statute. If the legislature wants to repeal any mandatory minimum, they should have the guts to say we do not think that possessing a firearm should have a minimum penalty of five years rather than saying it's a minimum penalty of five years unless a judge thinks it should be something else. If Congress merely wants a presumptive minimum, they can add a subsection establishing a guideline minimum.

Posted by: tmm | Jun 28, 2013 5:27:44 PM

Michael Drake --

The price of ice cream must be going up in California. Either that or the AFD's are making more than I think.

P.S. If you're really planning on raising the argument that courts can review prosecutorial charging decisions, and betting that you're going to win, perhaps you should be saving some of that moola.

Posted by: Bill Otis | Jun 28, 2013 5:39:41 PM

Bill Otis, you write to Michael Drake about a "pro-criminal" type. D you always assume that anyone who disagrees with you is a "pro-criminal" type?. In any event, I haven't met too many people who are "pro-ciminal." Have you? Who?

Posted by: observer12 | Jun 28, 2013 8:50:44 PM

observer 12 --

"Bill Otis, you write to Michael Drake about a "pro-criminal" type. D you always assume that anyone who disagrees with you is a "pro-criminal" type?"

No.

"In any event, I haven't met too many people who are 'pro-ciminal.' Have you?"

You bet.

"Who?"

When I was in the USAO, I toured a few prison facilities. I assume the criminals in there were pro-themselves. I assume their families are as well. People who voluntarily choose to work for them, turning down other options, get thrown in, too. And some of the commenters on this blog, although I have not "met" them in the conventional sense, make it obvious that they are pro-criminal by uniformly taking the criminal's side of virtually any question. Is this supposed to persuade me they're ANTI-criminal? What an odd way to express it.

When time after time after time, the criminal is portrayed as the innocent, hapless victim, and the prosecutor as a Nazi thug, then, you bet, the persons doing that portrayal paint themselves as pro-criminal. If they don't like the label, tough. They can switch sides anytime. When you pick your team, you wear the team jersey.

Posted by: Bill Otis | Jun 28, 2013 10:58:15 PM

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