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September 21, 2013

"(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform"

The title of this post is the title of this (quite timely) new article now available via SSRN and authored by R. Michael Cassidy. Among the reasons this article is notable is because its author was a state prosecutur for nearly a decade. Here is the abstract:

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends.  While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena.  The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities.

Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.  Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts.  The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.

Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences.  Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above.  A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature.  While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them.  The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.

Based on this abstract, I surmise that the author would assert not merely that Attorney General Holder's recent policy changes concerning charging practices in drug cases was a good idea, but that they were ethically required. I hope to see discussion of prosecutorial ethics among prosecutors in the comments to this post.

Some recent and older related posts:

September 21, 2013 at 11:24 AM | Permalink

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Comments

The arrogance of this guy is jaw-dropping. Because HE thinks MM's are poor policy, no one is allowed to disagree, and prosecutors who do are, not merely mistaken, uninformed or stupid, but UNETHICAL.

If he was this stuck on the utter unarguability of his conclusions when he was a prosecutor, I can only thank God that he's no longer in that business.

P.S. He hasn't been in a prosecutor's office for 17 years, during which time he has made his living currying favor with his fellow lefty academics in the cozy confines of a Massachusetts law school.

P.P.S. If this is what he actually thinks, he should file ethics charges against some Massachusetts prosecutor who has spoken up in favor of MM's. Can anyone guess why he doesn't do that?

Posted by: Bill Otis | Sep 21, 2013 11:48:54 AM

Why anyone would bother reading this drivel is beyond me.

Posted by: federalist | Sep 21, 2013 12:24:40 PM

federalist --

It's considerably worse than just drivel. The first thing wrong with it is its preposterous assumption that there is no rational argument to be had in favor of MM's.

The second thing wrong with it is that, having assumed the invincible correctness of its position, the remedy for prosecutors in dissent is to be branded "unethical." The thuggishness of this "remedy" is astounding.

The third thing wrong with it is its flagrant unconstitutionality. Under the First Amendment, no one can be coerced into saying or believing anything. But Prof. Cassidy would use the coercive power of ethics sanctions -- ultimately backed up by the state supreme court -- to force prosecutors into supporting Cassidy's version of sentencing "reform."

This is liberalism at its classic best: If you can't persuade the opposition by argument, put a (metaphorical) gun to their head. That's just so cute!

Let's see how many of the liberals on this board think there's the least little thing wrong with this tactic. It's not a particularly promising sign that Doug puts up this article with a notation, not about its obvious arrogance and thuggishness, but instead about how noteworthy it is coming from a former prosecutor.

Yikes.

Posted by: Bill Otis | Sep 21, 2013 1:01:03 PM

I hear you Bill. The best response is laughter. This guy's a fool, and Doug didn't exactly cover himself with glory by touting this nonsense.

Posted by: federalist | Sep 21, 2013 1:29:05 PM

It strikes me that a far more nuanced discussion of mandatory minimums is needed.

Generic MM's are deeply flawed. By this I mean MM's that aggregate all of the State's sentencing objectives, some of which are fixed and others that change. MM's of this kind mix apples and oranges. Generic plea bargains are bad news. They do not distinguish between penalties and punishment. We penalize people who commit crimes; crimes are wrong. We punish people who commit offenses; offenses are bad. What's more, MM's do not distinguish between accountability and risk. They do not recognize the complexity of the problem.

On the other hand there are good reasons for delineated MM's. Threatened penalties that are enforced do forestall further crimes to some extent. Punishment warnings that are enforced do underwrite important social norms. Risk control should not be bargained. Who can say today how dangerous an offender will be in five years.

Bill, apparently you are in the former camp. If so, I think you are dead wrong. Generic MM's are simple minded; they give away the store.

The latter view calls for a paradigm shift, from intuitive to reasoned decision-making. This would be in line with the Duel Mode Theory of Cognition, which is now widely accepted in the scientific community.

Posted by: Tom McGee | Sep 21, 2013 1:50:42 PM

The ethics boards of the bars or of the Supreme Courts enforce only 4 rules, those furthering the interest of the criminal cult. They will destroy any lawyer who commingles funds, drinks on the job, disrespects a judge during a trial (after trial is OK), practicing without admission or supervision by an admitted lawyer.

So this proposal is theoretical at best. It illustrates that prosecutors are as dependent and caring of criminals for their jobs as the defense bar and the judge.

All prosecutors are at will employees (by contract agreement, can be fired for no reason or for an evil reason without recourse) of elected or appointed political officials. They will do as they are told or risk losing job and pension. The officials respond to the newspapers, even if a crime is rare and not indicative of any trend. As such, MM and guidelines are more reliable and fairer.

If lawyer ethics aspires to fairness, and the duty of the prosecutor is to be transparent and fair, then this article proposes the reverse, arbitrary, biased, emotional decisions. Black gangbanger kills girlfriend. Blonde cheerleader kills boyfriend, the story is big in the papers. You decide the sentences. Or should you not be trusted, and should the legislature or a judicial commission decide the sentence with notice ahead of the crimes.

Posted by: Supremacy Claus | Sep 22, 2013 10:24:20 AM

Prosecutors do work as part of committees for their state bars reviewing legislation and do make recommendations to reduce mandatory minimums when appropriate.

However, different prosecutors will weigh proposed changes differently and there are no "right" answer as to what mandatory minimums are appropriate and which ones are inappropriate. Furthermore, consideration of what mandatory minimums are appropriate is an offense-by-offense matter.

My problem throughout this debate on mandatory minimums is exemplified by use of semantically meaningless terms like "most" drug and non-violent offenses. "Most" does not identify the specific mandatory minimum to be changed. It is also exemplified by proposals to repeal by implication -- i.e. statutes allowing judges to opt to ignore all mandatory minimums. Identify the statutes that you want to change, tell me the language you want to replace them with, and I might as a minister of justice agree with you. Lump everything together, and I am going to say go back to the drawing board.

Posted by: tmm | Sep 24, 2013 10:06:30 AM

tmm --

Their whole point is to hide behind vague phrasing. This is why Leahy/Paul is a general statute, carefully avoiding specifics on the crimes to which it would apply.

Let's see the particulars and some transparency. If Congress wants to repeal the MM on heroin, let it write and pass a statute specifically for that. Same deal with meth. And LSD. And PCP. While we're at it, they can also take a roll call vote on repealing the MM for child pornography, and for use of firearms.

Of course there will be no such vote, and if there were one, every single measure would be defeated.

Liberals are all for transparency and accountability -- except when it might frustrate their agenda. In that case, they're all for, as you aptly put it, "semantically meaningless terms" so the electorate won't know what they're actually proposing to do.

Posted by: Bill Otis | Sep 24, 2013 12:05:14 PM

Bill, as a moderate liberal who has dealt with conservative proposals, the sin of wanting transparency except when folks want to hide something is committed by both sides. In this case, the push is coming from both the left and the right.

I think a debate on mandatory minimums on possession might result in something like the fair sentencing act, bumping up the quantity required to trigger the mandatory minimums. I think those that want a modification of the MMs for child pornography would have trouble getting more than a handful of votes -- even liberals see possession of child porn as deserving incarceration.

Posted by: tmm | Sep 24, 2013 2:36:55 PM

tmm --

I'll replace "liberals" with "those seeking to end mandatory minimum sentencing."

My own view is that abolition of MM's would win in one area only: pot. For everything else, CP, firearms, hard drugs, it would go down by a huge margin. It is for that reason that, as you say, MM opponents avoid saying specifically what they're talking about.

I have a few friends who are liberals but quite clear-eyed as prosecutors. I've always found that to be a curious combination. The baseline of the prosecution business is the belief that people are responsible for what they do. The baseline of liberalism, as I have seen it practiced in this town, is that people aren't really, truly responsible for what they do, so someone else should have to pay their bills for them.

Someday, I'd like to hear your views on where I'm getting this wrong.

Posted by: Bill Otis | Sep 24, 2013 3:29:25 PM

Bill,

I am glad you finally seem to recognize that your throwing around of the term "liberal" is incredibly imprecise and lazy. What in the world does "liberalism" on foreign policy or taxes have to do with one's views of sentencing policy? There is, of course, not a thing inherently "liberal" about wanting to get smarter, more sophisticated, more empirical, and more rational about sentencing policy. Indeed, nowadays many of the most elequent voices for reforms might be called "conservatives" in other contexts. E.g., Ed Meese, Mike Lee, Newt Gingrich. You seem to enjoy getting mileage out of claiming that all in favor of sentencing reforms are "lefty academics" in "cozy confines" or some such nonsense. If that view ever had a grain of truth, it has none now. You seem to like strawmen arguments more than actually engaging on the merits and recognizing the broad consensus among the thoughtful that mandatory minimums and other harsh features of the US sentencing regime are badly in need of reform. And, yes, I am what might be termed a "conservative" on many, many issues.

Posted by: Mike | Sep 24, 2013 5:02:58 PM

Mike --

"I am glad you finally seem to recognize that your throwing around of the term 'liberal' is incredibly imprecise and lazy."

It's shorthand, yup. Should I use "pro-criminal" from now on?

"There is, of course, not a thing inherently 'liberal' about wanting to get smarter, more sophisticated, more empirical, and more rational about sentencing policy."

Perhaps you could tell us what is smarter, more rational, etc., about turning away from a policy that has contributed to far less crime in order to return to the feckless (and dangerous) policies that contributed to far more.

"You seem to enjoy getting mileage out of claiming that all in favor of sentencing reforms are 'lefty academics' in 'cozy confines' or some such nonsense."

I'll be happy to see you cite the comment in which I said that "all" in favor of "reforms" are lefty academics. Should I wait? Or was that just your "incredibly imprecise and lazy" phrasing?

"You seem to like strawmen arguments more than actually engaging on the merits and recognizing the broad consensus among the thoughtful that mandatory minimums and other harsh features of the US sentencing regime are badly in need of reform."

I've engaged on the merits far more than you even attempt to -- for example, in my hour-long FedSoc podcast debate with our host, or my debate with a FAMM representative on the PBS News Hour, or my op-ed in USA Today. Your comment here, by contrast, is nothing but ipse dixit, name-dropping and conclusory cheerleading.

But I'll be happy to engage on the merits, should you care to. You can start by giving your name and background. Or are you just a hide-behind-the-curtain Internet nobody? Is that it?

Posted by: Bill Otis | Sep 24, 2013 9:54:17 PM

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