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June 6, 2013

George Will joins chorus calling for federal mandatory minimum sentencing reform

I am pleased to see this new op-ed by George Will in the Washington Post, which is headlined "Leahy and Paul plan on mandatory sentencing makes sense," urging federal sentencing reform with points that go beyond those I made in my co-authored Wall Street Journal commentary last month urging President Obama to get behind the Justice Safety Valve Act of 2013. Here are excerpts from Will's column:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year.  They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas).  The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 people are sentenced in federal courts each year.  There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration.  There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed.  This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal.  No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums.  This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge.  Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and “the bedrock principle that people should be treated as individuals.”...

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day.  And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”...

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

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"Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties."

But the Leahy/Rand bill would not "make mandatory minimums less severe." It would effectively eliminate them altogether. Between that and Booker/Gall/Kimbrough, a judge could sentence any defendant to anything -- or nothing.

If we want to have the ever-hyped "dialogue" about actually making MM's less severe -- say, by reducing a MM from 10 to 7 years -- fine, we can have that dialogue. But it's depressing that a man of George Will's intelligence would confuse two very different concepts: "Make less severe" and "Get rid of."

Posted by: Bill Otis | Jun 6, 2013 11:51:07 AM

The problem here is that the problem unfolds. Penalties are fixed before the fact by law-makers for the commission of crimes. Their objective is to forestall criminal behavior. At that point the problem is not fully knowable. Penalties are imposed after the fact. Punishment is fixed by a judge after the fact, within a range that was set by law-makers before the fact. At that point the problem is fully knowable. Punishments are designed to restore order, restore equity and restore rectitude.

In practice penalties are misused as mandatory minimums. The point is that there is a place for both penalties and punishment. They have different objectives. I believe the Leahy/Rand Bill is an oversimplification

Posted by: Tom McGee | Jun 6, 2013 3:24:47 PM

So let's start the dialogue you wish, Bill: what MM would you be willing/eager to "make less severe"?

And how should that get done?

Once I here how you conduct that conversation, I will decide whether you are right to beat up on George Will for this phrasing (while, as I recall, you and others sought to defend Sensenbrenner for his judge-shopping comment in this same context).

Posted by: Doug B. | Jun 6, 2013 6:17:18 PM

Doug --

First things first.

The first thing is whether you agree that a proposal effectively to end MM's (Leahy/Paul) is a different and more drastic step than what George will says he wants, i.e., to make MM's "less severe." Whether I am right to "beat up" on Will for that scarcely depends on what "conversation" I am willing to have. It depends on whether the logic of Will's argument supports its conclusion. (It doesn't, and it's not just a matter of, as you put it, "phrasing").

Second, you'll need to show me where I "defended" Sensenbrenner's remark about judge shopping. In fact, I said the remark was completely mistaken and "out of left field." That's a pretty odd "defense," wouldn't you say?

I did, however, question the value of your calling the man "stunningly idiotic," devoting an entire post to ridicule, and putting up a picture of him designed to make him look even fatter than Chris Christie (or Jerold Nadler, now that I think of it).

Still, as you know, I'm an accommodating man. So I'll at least preliminarily begin the dialogue by saying that, like the rest of the human race, I like to get something for what I give up. What I'd like to get from Leahy and Paul in exchange for shorter MM's is their introduction of a bill to overrule the Booker remedy (as Breyer more-or-less explicitly invited Congress to do) and return to a mandatory guidelines system with de novo appellate review.

When they give their promise to do that, we can start the dialogue in earnest.

Since I know you have appeared before Congress as an expert witness on sentencing, and are otherwise prudently regarded as the 800 pound gorilla of sentencing law, I know you've got the clout!

(I am, by contrast, as Sam Ervin said, a "po' country lawyer" living on the fringes of DC, eking out a living as a low-ranking professor).

Posted by: Bill Otis | Jun 6, 2013 7:07:05 PM

The system is not just broke. The federal criminal unjustice system is systemically a fraud on America.

Posted by: Liberty1st | Jun 6, 2013 11:30:07 PM

The entire concept of justice needs a look-see. My personal bugaboo is this constant "victims' rights vs. offenders' rights" tug-of-war that goes on, usually brought out by the finite, all-inclusive sentence that precludes rational judgments. We need more decisions that incorporate hard time with no parole, followed with a separately sentenced, mandatory rehabilitative parole time period (or probation w/o incarceration if warranted) that ensures the offender is heavily escorted through the societal reintegration process. One without the other is not justice but vengeance, either for or against the victim or offender.

This will eliminate most (not all!) recidivism, with assurance that the victim knows that the offender is in jail for hard time with no chance at getting out of prison during that state. I've opined at length on this before in response to a Bill Otis (incarceration-centric) and Grits for Breakfast (rehab-centric) discussion.

Posted by: Eric Knight | Jun 6, 2013 11:46:41 PM

Actually, Bill, I appeared before Congress in 2007 to discuss President Bush's decision to commute Scooter Libby's prison sentence (which you suggested in a prominent WaPo op-ed), whereas you appeared before Congress in 2011 to discuss federal sentencing since Booker. Ergo, your "po' country lawyer" claim, while amusing, is transparently false.

On to the merits, I agree that the Justice Safety Valve Act of 2013 is different AND better than simply making existing MMs "less severe" because it would require sentencing judges to explain on the record in a written, appealable opinion why and how they conclude that the 3553(a) factors call for a lesser sentence before imposing one below an otherwise applicable MM. Right now, prosecutors can/will/do use charging/bargaining discretion to go below an otherwise applicable MM without any explanation or review. Had I been the WaPo editor for Will's piece, I would have suggested changing the phrase "less severe" to something like "subject to judicial review" for accuracy.

As for the horse trades you propose, you let the curtain slip on your prosecutorial perspective when you indicate you feel you would be "giving up" something when simply noting which MMs you think could/should be less severe. What your comment highlights is that existing MMs are not about achieving sentencing justice or consistency, but rather about enhancing prosecutorial power. George Will is astutely stressing this concern, and your very comments help reveal that prosecutorial power, not sentencing justice, explains your affinity for MMs (and also severe mandatory federal guidelines). This MM power-play reality also explains why Prez Obama spoke out against MMs before he served as the head of the federal executive branch, whereas now he apparently shares your affinity for these tools.

Finally, as you know, Rs controlled both houses of Congress and the White House for two full years after Booker and yet made no real effort to restore the pre-Booker system. Indeed, a number of folks more often associated with the left --- ranging from the ABA to The Constitution Project to former USSC Chair Judge Sessions --- have proposed a revised mandatory guideline system in the wake of Booker. You should be complaining to your GOP friends rather than to me about your concerns that the Booker remedy remains the law of the land nearly a decade since Breyer put the sentencing reform ball in Congress's court.

Please understand, Bill, I do not mind you complaining about George Will's poor word choice or about my (overstated?) attacks on Sensenbrenner. What I do mind are less than candid claims or inaccurate assertions used to justify weak sentencing arguments. Reasonable argument can be made that giving federal prosecutors unreviewable sentencing power through MMs does more good than harm. But defend that reality, rather than join Sensenbrenner in seeking to distract from a genuine debate on that important issue by raising red herrings like Booker reforms and/or the semantics of Will's final few sentences.

Posted by: Doug B. | Jun 7, 2013 6:38:12 AM

Doug --

-- As noted, I'm just a po' country lawyer.

-- I guess you're not taking up my proposed trade. Oh well.

-- "As for the horse trades you propose, you let the curtain slip on your prosecutorial perspective..."

When did I ever put up a curtain? I have been more candid than any of your commenters in setting forth my background -- at DOJ and the USAO -- and in being front-and-center about my generally (but not uniformly) pro-prosecution perspective on things. That's not a curtain; it's a window.

-- The reason there are mandatory minimums is that Congress was fed up with the Jack Weinsteins and Nancy Gertners of the world and was going to put a stop to it. If there hadn't been irresponsible, rehab-uber-alles sentencing in the 60's and 70's, there never would have been MM's in the 80's and 90's. The judges have only themselves to blame.

-- You omit the single most important thing Leahy/Paul would do, to wit, effectively (but completely) repeal every MM out there. Sure, the judge would have to give reasons for going below. Big deal. They're already supposed to give reasons for their sentences, and the requirement would be toothless anyway, since appellate courts are now supposed to (and do) give only very deferential review.

-- If you think prosecutorial discretion is too great and too hidden from view, you should be talking to Eric Holder and Pat Leahy, not me. Instead of the current bill, couldn't they work on a bill to make the process for charging decisions more transparent? Sure they could. And if they came up with such a bill, I would be likely to support it (not certain because I would want to see the actual text, as any sane person would).

One of the reasons I'm transparent on this blog, and supported an open file policy in the USAO, is that I believe in transparency. Too bad your many anonymous commenters don't.

-- It's quite true that the R's controlled all the political branches for two years after Booker. What you omit to mention is that the D's controlled them for twice as long immediately after that. The R's failed in their obligation to restore the rule of law, for which they should be ashamed. The D's repeated that failure for twice the time, for which they should, I guess, be twice as ashamed.

OK, enough for the shame. Now that power is split, let's get moving to restore the rule of law in sentencing with mandatory guidelines, open up transparency at DOJ about charging decisions (and search warrant applications -- oh wait, that's a different problem), keep mandatory minimums until all the Jack Weinsteins, et al., promise to quit the pro-defendant crusade, and then we can discuss whether a reduction in the severity in MM's might be appropriate.

That's my platform. Are you ready to support me for AG after Holder leaves? I'm sure I'm real popular with WHCO just now (and yes, that's a bigger joke than anything about the po' country lawyer).

-- I'll be at the Young Scholars Conference for the rest of the weekend, and thus out of pocket until next week. Don't play too much golf.

Posted by: Bill Otis | Jun 7, 2013 9:47:57 AM

I know how/why guidelines and MMs came to be way back when, Bill, but you keep failing to acknowledge that the real import/impact of MMs is NOW as a tool of prosecutorial sentencing power. I get that you and others thinks some judges have used their sentencing powers poorly, but if you really favor transparency over sentencing severity/prosecutorial power you should still support the Paul/Leahy bill because it will foster much greater sentencing transparency in all courtrooms.

(Notably, you can criticize the Weinsteins and Gertners for their judicial sentencing decisions because judges make their decisions on the record and subject to public and judicial review. In contrast, we both cannot know the names nor do we have any ready means to find out who is truly to "blame" for the thousands of prosecutorial sentencing decisions made each year in the hidden recesses of US Attorneys' offices and Main Justice.)

But, I surmise you do not favor the Paul/Leahy bill because you in fact sentencing severity/prosecutorial power over transparency. That's fine, and you likely have much company as I suspect, if truly honest, folks ranging from AG Holder to Rep. Sensenbrenner to Sen. Grassley would agree with you that sentencing severity/prosecutorial power over transparency. All I want you and others to do is be honest that these are the true value driving your policy positions. If you really thought they were noble values, you would not resist their embrace. But the fact that you and AG Holder and Rep. Sensenbrenner rather talk about other stuff will always lead me to be suspicious about your asserted claims.

P.S.: I do appreciate your personal transparency on this blog, and I wish other commentors would have the same ethos. But I suspect many persons who work in the federal sentencing system have come to discover that transparency tends to be punished more than rewarded. And that is why I think all who truly favor transparency, as you claim, ought to favor any bill like the Paul/Leahy one which will at least move the needle a little bit in that direction at only a relatively small expense to sentencing severity/prosecutorial power.

Enjoy your days being a Young scholar, Bill.

Posted by: Doug B. | Jun 7, 2013 11:15:46 AM

I can't tell you what a relief it is to read through a comment thread here that hasn't degenerated into a food fight by the third entry.

I agree with Bill that Will mischaracterizes the Leahy/Rand bill. Slightly.

But Bill's own characterization does much the same, since it suggests that the bill would eliminate all of the regulative effects flowing from the current menu of mandatory minimums would be eliminated. That's clearly far from true — just as it was far from true to suppose that Booker would completely eliminate the regulative effects of the guidelines. (Maybe in the long term this will turn out to be true. But at least in the case of Booker, we're at Year 8, post, and yet absent government-sponsored departures, almost all sentences imposed continue to be within the guidelines.)

In any case, Bill doesn't grapple with the much more fundamental concern that, as Will puts it, the current scheme is a result of Congress's "act[ing] like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm." This dynamic might give prosecutors like Bill more of the power they crave. But it's hard to see how that grant of power can be justified.

Posted by: Michael Drake | Jun 7, 2013 6:26:38 PM

(I should have said government-sponsored departures and variances.)

Posted by: Michael Drake | Jun 7, 2013 6:28:58 PM

Whether or not it makes sense to expand safety-valve treatment or get rid of MMs, Will's column is shoddily and lazily reasoned.

His libertarian bête noir, criminalization of regulatory offenses, has nothing to do with statutory mandatory minimums, because Congress has not enacted mandatory minimums for those crimes. (In any case, those crimes produce only a tiny share of the federal prison population.)

Mandatory minimums generally stem from convictions for drugs (mandatory minimums under 21 USC 841 based on drug quantity), guns (18 USC 922 et seq), child porn (18 USC 2252 et seq.), and various violent crimes, such as VICAR/RICO murder and federal crimes where death results.

The last of these doesn't strike me as a huge problem where the public is crying out for change. (Do the Congressmen think that organized crime killers should serve less than 20 years?). The second (guns) is likely an area where the man-mins could be adjusted, but where the public likely would not support wholesale elimination. CP is an area where many (most?) judges, and probably also prosecutors, think the man-min should be applicable only for production/distribution, and not for receipt (which basically amounts to simple possession). And drugs are an area where there already is a safety valve, but where the criminal-history limitations are viewed by many as too severe.

So much more limited fixes could be enacted, and may strike a better balance.

Posted by: Will is Confused | Jun 8, 2013 12:10:29 PM

Doug --

Hoping to focus the discussion, let me ask just one question: Your major complaint appears to be that prosecutorial charging decisions are hidden from view, while judicial sentencing decisions are accompanied by reasons.

How would Leahy/Paul, which so far as I can see says zero about charging, improve the transparency of charging decisions?

Posted by: Bill Otis | Jun 11, 2013 10:39:50 AM

Michael Drake --

I am not suggesting that Leahy/Paul would eliminate ALL the "regulative effects" of MM's. Most judges would, I think, continue to respect them, at least outside of the CP area (maybe some drug sentences, as well).

The point of MM's, however, was not to constrain the majority of judges. It was to constrain the minority -- the Gleesons, Bennetts, Weinsteins and Gertners -- who have a bee in their bonnet, are ideologically hell-bent about the supposed excessiveness of sentencing, and basically want Pat Leahy's job without ever running for it.

It's a few bad apples that spoil the sentencing barrel for the majority of judges. But for as long as we have those bad apples, Congress is very unlikely to stand down.

"In any case, Bill doesn't grapple with the much more fundamental concern that, as Will puts it, the current scheme is a result of Congress's 'act[ing] like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm.'"

But to me it is not a "concern" that Congress reflects public opinion. The outcry against MM's is loud on this blog but not even a blip on the screen of public opinion. Not a single criminal law issue, much less any sentencing issue, even registered as a question of concern in last year's election. As long as crime trends lower, as it has for a generation, and as long as increased imprisonment is (correctly) credited with a past of that welcome trend, the public will see sentencing law as one of the few government successes.

"This dynamic might give prosecutors like Bill more of the power they crave."

Only (1) I'm not a prosecutor, and (2) I walked away from my prosecutor's job almost 15 years ago. How is it that I "crave" power when I voluntarily relinquished it?

I remain, however, concerned about power -- the power of criminals to ruin (and in extreme cases, take) the lives of normal citizens who did them no wrong. Does that power concern you? Do you think society should undertake no serious measures to curtail it?

Posted by: Bill Otis | Jun 11, 2013 11:01:50 AM

"How is it that I "crave" power when I voluntarily relinquished it?"

You were the one using the present tense. ("I like to get something for what I give up....") I was obliging the conceit.

It's obvious that no one thinks that society "should undertake no serious measures to curtail" the "power of criminals," such as it is. But an unwise exercise of power by an individual is no license for ignoring the unwise exercise of power by the state.

Posted by: Michael Drake | Jun 14, 2013 2:33:08 PM

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