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August 13, 2013

Shouldn't AG Holder's speech impact federal judges at sentencing ... such as Jesse Jackson Jr.'s?

In this post late yesterday, I provided a lot of lengthy excerpts from Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms.  Today I have been thinking about an abridged summary of the AG's speech which, were I advocating for a federal defendant in court at sentencing, I might commit to memory:

Attorney General Eric Holder, the nation's top prosecutor and leader of the federal criminal justice system, has expressly complained that “our system is in too many respects broken.”  AG Holder has called some federal mandatory minimum prison terms “excessive” and “draconian” and asserted “they oftentimes generate unfairly long sentences”; he has asserted that “people of color often face harsher punishments than their peers” and called this “reality” both “shameful” and “unworthy of our great country.” 

Most fundamentally, AG Holder has now repeatedly lamented that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” and he has cajoled “every member of our profession” to recognize that “it’s well past time” to consider a “fundamentally new approach” in order to “break free of a tired status quo” and “take bold steps to reform and strengthen America’s criminal justice system.”

Indeed, AG Holder has said that “together we must declare that we will no longer settle for such an unjust and unsustainable status quo” and that “this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers.” For these reasons, your honor, I respectfully contend that imposing a guideline sentence (or whatever prison sentence sought by the prosecution) would risk reinforcing an unjust and unsustainable status quo.
I would think this advocacy could and should be especially effective when defendants are people of color whom, according to the US Attorney General, "often face harsher punishments than their peers.” People like, for example, Jesse Jackson Jr. and Sandi Jackson who, as detailed in recent press reports here and here, are scheduled to be sentencing tomorrow in federal district court in DC.

August 13, 2013 at 07:25 PM | Permalink

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Prof. Berman:

Couldn't have said it better myself. I expect lots of defense lawyers will be quoting your summary verbatim. Nicely done!

Posted by: Michael R. Levine | Aug 13, 2013 8:42:07 PM

"according to the US Attorney General"--Therein lies the problem Doug. Eric "Marc Rich" Holder has been caught before misleading on issues of race and crime. You, of course, know this, but parrot him anyway.

As for JJJ's sentence, I don't think someone with his background should get one iota of mercy. 60 months.

Posted by: federalist | Aug 13, 2013 9:26:40 PM

I "parrot" Holder, federalist, because he is the Attorney General and also because I wanted to suggest through this post that the biggest and most immediate impact of his speech could (and perhaps should) be in the day-to-day sentencing decision-making of federal judges nationwide. (For those scoring at home, if federal judges were to, on average, reduce their sentences by just one month at sentencing in light of Holder's stated concerns, there would be roughly 7000 less years of federal imprisonment imposed over the next 12 months, saving the federal taxpayer roughly $200 million.)

Posted by: Doug B. | Aug 13, 2013 9:49:26 PM

"Good" people of colour such as Jesse Jackson Jr.,
deserve especially lenient sentencing and treatment.

Descendants of slaveowners as well as creepy crackers who have benefited from white privilege,
deserve Draconian legal measures meted out with the same prejudice & intensity as an IRS investigation of a Tea Party or Evangelical group.

Posted by: Adamakis | Aug 13, 2013 10:01:05 PM

And the judge will say, "The AG was talking about drugs and low-level offenders. You, Mr. Jackson, are a public official, born with a birthright to a seat in Congress, and you chose, despite every advantage, to misuse it. And, unlike the low-level drug offender, for whom a long sentence carries very little deterrent value, given that no one has heard of him/her and that he/she can be so easily replaced, you, Mr. Jackson, are well-known, and a stiff sentence might very well deter others."

I don't wish the outcome on JJJ and I think the Blago sentence was disgracefully wrong, but I see very little value in Holder's speech for JJJ's defense team.

Posted by: Thinkaboutit | Aug 13, 2013 10:30:47 PM

Good post Doug. It would be nice if federal judges would back off on the mandatorys.
I am impressed that they want to. BUT, I am a realist. The DOJ has allocated more money for AUSA and Judges, and significantly less for PD's.

What Mr Holder has done was to trump the Paul bill first.
Most drug defendents are cat 3-6, therefore they have criminal history. That is a necessary prong that will leave most getting the MM. They won't report the drug qty at first, but at sentencing they will. The jig is up.
Yes it will help a chosen few, but the other 95 pct of drug cases will be unaffected. Most get an extremely high sentence without an MM being invoked.

The Feds will never ever, drop the MM. Will claim they need it to force info from defendents to get at the king pins. Crapola. They have paid informants and lots mid level
Dudes that rat them out.

Same game, different name...please excuse me for not being positive. If this would help
Youngs ACCA case, hey, wow, then it has teeth that is applicable across the board.

As far as the criminal history. What is rape and robbery, 2 or 3 points each.
So a guy that raped and had robbery in his history, his points add up to the same
As one that had weed, 2 owi (remember owi not a violent crime). And a few 1 point Mickey Mouse charges. There is no difference between the 2. Tell holder to go back in his office, get another cup of coffee and get to work, cause he has a lot to do.

Actually congress is the group that has the work to do. Holder actually is making a good hearted effort, self correcting. Congress is totally wortlhless.

But I am way off the subject again. My point, it's not a big deal holders efforts.
Make congress fix the mess they created in 1986, that's a long time to run with a screwed up system. Close enough for govt work...

Posted by: MidWestguy | Aug 13, 2013 10:44:07 PM

Well, geez Doug, if we simply did away with prisons, how much money would we save. Heck, that juvenile who murdered a 12 year old girl is going to get no more than 17 years for the crime--perhaps I should be happy--after all we're going to save some money. And of that 7000 years, how many crimes would be committed in those 7000 years that would not have otherwise been committed? And that $200MM savings--is that the marginal cost savings? If not, then the figure is misleading because of the sunk costs.

But back to the point about Holder--we all know that Holder is a dishonest man who has made the USDOJ a joke. (For example, the Civil Rights Division has a lawyer, Daryl Foster, on the payroll--this guy cheated the government by running personal trips through the reimbursement system.) So when you uncritically pass things he says along, you basically vouch for him.

You know what would save a lot of money---an effective death penalty. Maybe if Holder would adopt some regs that allowed fast-tracking of death cases, we could save a lot more than $200MM.

Posted by: federalist | Aug 13, 2013 10:51:12 PM

"I don't wish the outcome on JJJ and I think the Blago sentence was disgracefully wrong, but I see very little value in Holder's speech for JJJ's defense team."

That's interesting. Blago attempted to blackmail a company into firing people by threatening to abuse his power. That is the very definition of tyranny. In my mind, a life sentence would have been appropriate.

Posted by: federalist | Aug 13, 2013 10:54:35 PM

Thanks, federalist. I once thought like you.

Posted by: Thinkaboutit | Aug 13, 2013 11:20:56 PM

The DOJ has already set out the guidelines for cases that qualify for leaving out the mandatory minimum drug amounts:

[I]n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

To me, the most important one of those guidelines, and the one that tends to limit their effectiveness, is the last one. A defendant who has three or more criminal history points does not qualify. Well, a defendant with 1 or 0 points normally qualifies for safety valve anyway, so the policy does little for that defendant. So the policy will be meaningful mostly for those defendants with 2 criminal history points. This is a large subset of defendants, certainly, but as I pointed out in another thread, relevant conduct will still place those defendants near or above the mandatory minimum. This is where Holder's remarks should be brought to judges' attention. Being a pessimist, I expect the judges who would vary downward anyway will cite those remarks to justify their variances, and those who would not will pretty much ignore them.

On the other hand, the policy will require prosecutors to calculate defendants' criminal history scores pre-indictment. AUSAs might find it simpler not to charge drug amounts in run-of-the-mill cases without trying to figure out an accurate score; if so, then the policy will have a broader impact.


Posted by: C.E. | Aug 14, 2013 12:05:51 AM

I take satisfaction in the fact that Doug and so many commenters understand whose interests our nation's Number One prosecutor is really out to advance.

Posted by: Bill Otis | Aug 14, 2013 12:37:33 AM

Generally speaking Bill, 'rats have a soft spot for criminals, unless it's some ordinary citizen caught up in the maw of some draconian anti-gun law or some guy who had the right to defend himself. "rats generally keep these thoughts to themselves and are quite willing to support patent injustice (e.g., Gerald Amirault) to for political reasons (by the way, how can anyone respect him/herself for supporting Barack Obama after he supported Martha Coakley for US Senate?).

You libs are upset about Holder locking away so many---guess what---you own it--you voted for Obama. You also own the fact that Jon Corzine ('rat-NJ) never was prosecuted for a lay-up willful blindness case.

Posted by: federalist | Aug 14, 2013 1:12:52 AM

@federalist: The trends Holder is seeking to reverse have been decades in the making, under presidents of both parties. After all, the single greatest piece of mischief in the last 30 years, the Sentencing Reform Act, was enacted under a Democratic president.

Posted by: Marc Shepherd | Aug 14, 2013 8:28:03 AM

@Doug: Today I have been thinking about an abridged summary of the AG's speech which, were I advocating for a federal defendant in court at sentencing, I might commit to memory.

The AG's speech seemed targeted primarily at drug offenses. Although JJJ is obviously a "person of color," I don't think he was the type of defendant the AG had in mind.

@federalist: And of that 7000 years, how many crimes would be committed in those 7000 years that would not have otherwise been committed?

Probably very few. I mean, imagine the defendant sentenced to 120 months in prison (a 10-year MM). If you lop one month off that sentence, the deterrent effect is probably identical. Those not deterred or rehabilitated by 119 months aren't going to be deterred by 120.

I realize you could keep making that argument down to zero months, but I assume you understand basic math. Over a one-year sentence, a two-year sentence is a 100 percent increase. Over a 119-month sentence, a 120-month sentence is a 0.8 percent increase.

There is a point -- we could argue about where it occurs, but surely it exists -- where adding extra time is meaningless. Either you've achieved the desired rehabilitative and deterrent effect, and any more time is a waste. Or the defendant is beyond saving, and what you really want is LWOP.

Posted by: Marc Shepherd | Aug 14, 2013 8:53:09 AM

@ C.E.
You cited the last prong in holders statement.

"* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions"

Its a very important item, it weeds out almost all drug defendents.
If they went thru cat 3 or 4 it would have a large impact. Which is what the goal is.. Myself, the MM need to be repealed. Their goal was ONLY intended to be used to get to the KingPins, its been abused on all that qualify..

@Bill
I agree with you that Holder is grooming himself for another job and is self serving...Hes along the same lines lines as Blago, but goes about achieving his goals different.

Posted by: MidWest Guy | Aug 14, 2013 9:47:26 AM

Marc Shepherd --

Actually, the SRA was enacted in 1984, under Reagan. It was co-sponsored by Ted Kennedy and Strom Thurmond. The Senate was then in Republican hands, and the Democrats had the house.

I set forth my take on the current controversy last night on MSNBC's Hardball. It's here if you wish to see Darth Vader: http://www.nbcnews.com/id/3036697/#52748033

Posted by: Bill Otis | Aug 14, 2013 9:52:24 AM

"Holder is grooming himself for another job and is self serving."

This makes him typical. John Adams once noted self-interest is a major driver of human nature, including for public servants. It is selectively cited as an issue at times, but so it is. We set up our government, including checks to it, with this in mind.

As to Jackson, I see one "Doug Berman" is cited in at least one of those press reports. Is he getting a "harsher" sentence than others of his "peers"? Various pols have got prison time. If he and his wife gets what Berman suggests, is it "harsher" than the norm? Doesn't sound like it. I'm sure defense attorneys can cite his language though (1) the Jacksons don't seem like a typical example (2) it's general language that "YMMV" when it comes to individual sentences.

Posted by: Joe | Aug 14, 2013 12:15:55 PM

2 1/2 years: racism again!
[And a thinly veiled attempt to smear the President.]

- - - If Mr. Jackson had decided to run for the United States Senate in 2004, Mr. Obama most likely would not be president.
That year and again in 2008, Mr. Obama, seeking to bolster his credibility with African-Americans, enlisted the younger
Mr. Jackson for crucial help."
--|NYTimes. 2/24/13|

credibility

Posted by: Adamakis | Aug 14, 2013 1:10:21 PM

Bill,

You are as ubiquitous as Honey Boo Boo. ;-)

Posted by: TarlsQtr1 | Aug 14, 2013 2:04:33 PM

TarlsQtr1 --

And here I thought we were friends. Harummmmmph.

Posted by: Bill Otis | Aug 14, 2013 2:40:32 PM

Congratulations to Doug for being cited in today's lead editorial in the Washington Post, http://www.washingtonpost.com/opinions/drug-prosecution-reform-still-needs-congresss-help/2013/08/13/39edcfac-045f-11e3-88d6-d5795fab4637_story.html

I believe I'll be having my say in another paper in a couple of days, but for now, hats off to Doug. Not many of us law professors get or warrant that kind of prominence.

Posted by: Bill Otis | Aug 14, 2013 2:46:00 PM

Professor Otis Sir:

I witnessed your performance on MSNBC last night. Congratulations! Make-up did an excellent job of hiding the horns (JK). I usually cannot stand the Network but was informed that you would be on.

Although I agree with you on several (but not most) things, I believe that there is hope for you because when you are wrong, you are wrong for the right reasons. For one, you are conservative which means you do NOT have to make a 180 degree turn.

With Professor Berman cited in todays WP, I shall now refer to all law professors as, "Your Royal High Priest of Statism". Doug included!

However, I generally prefer rodsmith's informality.

Posted by: albeed | Aug 14, 2013 3:43:11 PM

albeed --

Thank you. But I must disagree on one thing: I thought the make-up artist left the horns showing. Drat! I asked her to keep working until I looked like Tom Cruise. She doubled over with laughter. This was not the most encouraging way to start the show, but what the heck..............

Doug generally looks a lot better than I do in his TV appearances, but he's cheating. He's younger.

Posted by: Bill Otis | Aug 14, 2013 6:12:28 PM

My husband had a judge that sentenced below the minimum with the facts in front of him. It was a very fair sentence, but 3 weeks later he had to re-sentence to the minimum. I wish we could use this to get him home on the original sentence.

Posted by: Jill | Aug 14, 2013 6:50:26 PM

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