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September 7, 2013

Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?

As part of our Federalist Society Teleforum earlier this week (noted/linked here), Bill Otis started with a thorough and thoughtful defense of federal mandatory minimum sentencing statutes.  Helpfully, Bill has posted the full text of his "opening statement" at Crime & Consequences. I recommend a careful reading of Bill's advocacy, both to see how strong it is in many spots and also to notice its potential weaknesses.

As the title of this post highlights, I see one fatal weakness in Bill's advocacy for current federal mandatory minimums (FMMs).  Specifically, these passages showcase that, while Bill claims he is eager to champion FMMs as a benefit to the "rule of law" at sentencing, what Bill really favors is the "rule of prosecutors" at sentencing that FMMs in fact facilitate:

"The Attorney General's remarks [to the ABA suggests] ... he wants to discard the last pillar of law-driven sentencing, to embrace a luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic....
"It is one thing, and wise, to give judges substantial discretion.  It's another to give them all of it.  Because judges vary widely in temperament, ideology and experience, letting individual judges decide without legislative constraint what the sentence will be is sure to lead to irrational disparity.  Without Congressionally-imposed floors, we'll go back to the luck-of-the-draw.  Some judges will stick with mandatory sentences and some won't. Nearly identical defendants with similar records will get widely varying treatment based solely on whose courtroom they're assigned to....
"Finally, existing law already provides at least three escape hatches for deserving defendants facing a mandatory minimum.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and makes a clean breast of his crimes.  This "safety valve," as it's known, has been in the law for almost 20 years.  Separately, under existing law (Section 3553(e)), a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice.  Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down conspiracies.

These are all important points, but they are in significant tension.  Notably, despite his advocacy for "Congressionally-imposed floors," Bill seems to endorse the "three escape hatches for deserving defendants" that emerges from plea bargaining, providing substantial assistance or satisfying the statutory safety valve.  What he does not mention is that individual federal prosecutors (operating off-the-record and not subject to any legal constraint or review) generally have complete or nearly complete control as to whether and when a defendant is "deserving" of benefiting from these escape hatches.  In other words, it is FMMs with their prosecutor-controlled escape hatches in the current federal system that in fact create a true and pure "luck-of-the-draw system," but one in which it is only individual federal prosecutors get to "decide without legislative constraint what the sentence will be" because they get to decide, without any legal constraint or accountability, whether and when any Congressionally-imposed floors will be in play at sentencing.

Bill is often quick to assert in this setting that the Constitution demands prosecutors have complete and unfettered charging and bargaining discretion.  But the Constitution plainly does not demand that Congress enact FMMs that function to enhance the most pernicious idiosyncratic aspects of "luck of the prosecutor" federal sentencing.  Moreover, and even more worrisome, evidence collected by the US Sentencing Commission and federal judges and researchers about how federal prosecutors use their lawless discretionary powers in the modern federal sentencing era suggests defendants would be lucky to get "luck of the draw" sentencing from prosecutors.  Much of the most cogent and comprehensive data analysis at least suggest that race and others very suspect sentencing factors disproportionately impact how prosecutors exercise their lawless discretion in the shadow of current FMMs.  In other words, FMMs do not merely facilitate luck-of-the-draw prosecutorial sentencing, but may well foster discriminatory sentencing decision-making.

(As a relevant aside, I must note that Bill again avoids any discussion of perhaps the most troublesome of FMMs because neither law or logic begins to explain when and how idiosyncratic federal prosecutors use their charging and bargain powers to "decide without legislative constraint what the sentence will be." I speak here of federal child porn sentencing provisions in which downloaders charged by prosecutors with possession offenses face no mandatory minimum term, but those charged with receipt offenses face a FMM. In recent years, hundreds of "identical defendants with similar records [who download CP] get widely varying treatment based solely on" whether a federal prosecutor decided to charge a possession or receipt offense. And, of course, while the US Sentencing Commission and other researchers can and do scour transparent and documented courtroom sentencing decisions in CP cases to see if and when there is lots of unjustified sentencing disparity as a result of judicial sentencing discretion, it is near impossible even to collect data from the hidden and undocumented prosecutorial sentencing decisions that FMMs facilitate.)

In sum, I share Bill's profound disaffinity for a lawless "luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic." But that disaffinity is what makes me an advocate for reforming or eliminating many current FMMs. Both formally and functionally, the rule of law and our constitutional system of check-and-balances are better served by a federal sentencing system with few if any FMMs. But, if you prefer a "rule of prosecutors" to the "rule of law," if you think a lawless luck-of-the-draw system is okay as long as it is mostly run by partisan prosecutors, then the current FMM reality should be to your liking as well as to Bill's.

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Comments

Obviously, this could be the opening bell to Round 2 of the debate, which I welcome.

There is too much here for me to attempt to rebut just sitting on my backside one sunny Saturday afternoon, but a very few things do come to mind.

1. Doug's principal problem is that prosecutors retain wide-ranging discretion. But neither the AG's speech nor any of the bills pending in Congress SAY A SINGLE WORD about that. That they leave the main problem (in Doug's view) not merely unsolved but unaddressed is reason enough to reject them.

2. Actually, they would make the problem worse, by adding one layer of arbitrariness (the courts') on top of the first layer (the prosecutors').

3. Do I "assert in this setting that the Constitution demands prosecutors have complete and unfettered charging and bargaining discretion"?

No, I actually said very little about prosecutors' bargaining discretion being conferred by the Constitution. Indeed, it was not clear until Santobello that plea bargaining was constitutionally acceptable. As to charging, however, yes, the Constitution leaves that exclusively to the executive branch, a fact that, notably, Doug does not dispute.

4. Doug can't have it both ways. That is, he can't complain that the current MM system is freakishly harsh because it provides no way out for exceptional cases and deserving defendants, then turn around and claim that the system is freakishly harsh because it actually DOES provide such a way out -- indeed three ways out.

As I say, I'm not going to attempt here and now to rebut everything Doug has said (nor has he attempted to rebut everything I've said). I just want to give a preview of, perhaps, the next Great Debate.

Posted by: Bill Otis | Sep 7, 2013 4:05:28 PM

Both judge and prosecutors are lawyers, and owe their jobs to the criminal. The irremediable economic conflict of interest is solvable by an algebraic formula that factors in the facts and comes to same sentence, by machine, expressing the will of the legislature. They are lawyers too, but do not owe their jobs to the criminal.

As a high school grad, I should be able to get the correct answer to the sentence formula. Never have.

Posted by: Supremacy Claus | Sep 7, 2013 4:15:11 PM

Here is the trouble I have with mandatory minimums. They are set by lawmakers before the fact, which is a time when the problem is not fully knowable. They are based on suppositions. At that point, nothing has been substantiated. Offenders do not even have names. How do you calibrate potential risk? How bad will the offense be?

Posted by: Tom McGee | Sep 7, 2013 5:07:02 PM

Bill,

I certainly can't speak for Doug, but it strikes me that his argument regarding your fourth point is that the three stated "escape valves" are offered — or withheld — so arbitrarily they don't serve as "escape valves" at all. Thus no inconsistency.

I'd be curious to hear Doug's response, of course. It's been terrific having a chance to read both points of view, and both have been well-stated.

Posted by: tyler | Sep 7, 2013 7:04:03 PM

tyler --

I had a debate on PBS with a FAMM representative, and on MSNBC "Hardball" with an ACLU representative. Both were enthusiastic about the present safety valve; they emphasized that it's been used thousands of times, and in effect supported Holder's announcement as an expansion of it. They were not at all of the view that it "does not serve as a 'safety valve' at all."

Posted by: Bill Otis | Sep 7, 2013 8:18:59 PM

It is as if the lawyer believes the margins need to be debated, the core is OK. No. The lawyer run criminal law has us suffer 20 million felonies, and gets the wrong guy a lot of the time. Then it conducts a witch hunt on the productive male, and crushes self help in crime. Absolute, mandatory sentences that incapacitated millions of ultra-violent criminals, whatever their fictitious non-violent adjudicated charge, was a tiny island of success in the 1990's in a Pacific of abject lawyer failure. That is why both right and left wing lawyers want them gone. Less crime, fewer lawyer jobs. The lawyer has no pity of the crime victim.

Posted by: Supremacy Claus | Sep 8, 2013 8:56:51 AM

I know that Prof. Berman is too good a human being to trade the lives of thousands of victims for a few lousy lawyer jobs. So he should stop defending the standard profession orthodoxy, and start thinking of ways to improve this profession in utter failure. It provides an essential utility product, the rule of law, as necessary as water and electricity.

The aims of the guidelines was absolutely not procedural, to standardize and make predictable sentencing. It was quite substantive, to attenuate the massive tsunami of criminality resulting from the traitors on the Supreme Court of the 1960's. Crime was out of control. The aim of the guidelines was to stop the pro-criminal traitors on the bench. Imagine a nation filled with judges like Justice Sotomayor, hate filled feminists, pro-criminal, rent seeking lawyers. Congress was getting an earful about massive criminality. It sought to restrain the lawyers on the bench, by making the guidelines mandatory. They worked, in the greatest achievement of the lawyer profession of the 20th Century, the 40% across the board cut in crime. Not uniformity, not predictability, but longer sentences and the adoption of incapacitation as the primary aim of prison. It is the longer resulting sentences that dropped crime rates. Judges screamed because they were going to lose their jobs as crime dropped, not because they lost discretion.

As they say, the Supreme Court reads the papers. So they waited to strike back until we entered a period of low crime. Now, all that will be gone. Try walking in the big city these days, then say crime is still low in frequency. Everything criminal from the 80's is coming back our way. The Obama administration is also cooking the books on the Victim Survey, saying the methodology of this Gold Standard of measuring crime needed tweaking, when it needed no such thing. We know crime is rising thanks to the Supreme Court.

Posted by: Supremacy Claus | Sep 9, 2013 12:02:01 AM

Prosecutorial discretion in charging decisions is inherent in a universe of limited resources, particular in the Anglo-American advocacy model of judicial proceeding in which the court serves as a referee betweeen prosecutor and defendant. Under this system, a prosecutor gets to decide what case she thinks she can make in light of the resouces that she is willing to devote to this case.

Unless the alternative proposal is a system in which every offense carries a range of punishment from one day to the death penalty (or to go to an investigatory system more like Code Law countries), the exercise of discretion by the prosecutor as to the available charges will have an impact on the potential punishment. As such, any talk about the impact of prosecutorial discretion is ultimately a red herring in the discussion of mandatory minimums. Instead, the question is whether we as a society believe that some offenses (and which offenses) are serious enough that, if the prosecutor can prove that a person is guilty, then that person deserve a prison sentence in excess of X years.

Posted by: tmm | Sep 9, 2013 9:44:44 AM

tmm --

A very clear-eyed analysis, as usual. I would add only a couple of things.

First, while, as you say, prosecutorial discretion is inherent given that crimes can occur with all manner of varying detail and someone has to decide what to charge, such discretion could be exercised with more transparency and accountability. That is, I take it, the gist of Doug's concerns.

The problem is that the proposed remedy -- watering down MM's (Holder's proposal) or allowing the courts to circumvent MM's at will (Leahy/Paul) -- does absolutely nothing to advance those goals. And while doing nothing to fix the problem, they will create other, quite serious problems.

First, they effectively make the court, which is supposedly neutral, a partisan for the defendant. It would never, under these proposals, be the case that the court could raise the charge if it thought the prosecutor undercharged. It could only be the case that the court, for all practical purposes, would veto the prosecutor's decision to charge a MM-eligible charge. But acting in favor of only one side is the definition of a partisan.

Second and relatedly, it would allow the courts to usurp by indirection a power never given them directly by the Constitution, to wit, the power to decide what charge to bring. For obvious reasons, the Framers feared, and thus forbade, any one branch from both bringing and deciding criminal charges.

Rather than create new problems that would be constitutionally problematic and erode the rule of law, what we ought to do is address the existing ones (assuming, as Doug does and I will arguendo, that they are problems). For example, the Department itself could establish procedures for review of MM charges (much as USAO's across the country have committees to review whether to make substantial assistance motions, thus to encourage greater uniformity). It could also offer to provide more transparency by inviting Congressional staffers to visit USAO's and sit in on how the decision is made to charge, or decline from charging, a MM-eligible offense.

I'm all for greater transparency and accountability (to the electorate) from DOJ. If a solution is needed, let's adopt one that fits the problem at hand, rather than one that's just a thinly disguised method of getting shorter sentences for meth and heroin pushers.

Posted by: Bill Otis | Sep 9, 2013 10:39:18 AM

The debate is similar to appellate arguments but divorced from the biggest factual effect of mandatory minimums.

Crime was rampant. Congress heard the outcry. They said all kinds of masking statements. However, sentence lengths increased, with more criminals in prison, fewer on the street. Incapacitation became primary, rehab secondary. Crime dropped.

Now, prisons are emptying, crime is going back up. No lawyer is making that simple but only valid point.

Posted by: Supremacy Claus | Sep 9, 2013 11:45:52 AM

Doug, might I suggest an alternative title? I see the false choice as being "rule of law" versus "rule of law enforcement". DB

Posted by: W. David Ball | Sep 9, 2013 2:55:51 PM

I am glad to see the debate here continue, though I fear Bill seeks to avoid coming to terms with "the gist of [my] concerns" when I assail his discussion of a "luck of the draw" system. I am eager (as I surmise Bill also may be) for greater transparency and accountability in prosecutorial charging/bargaining discretion. But my main concerns is NOT that prosecutors now make hidden and unaccountable charging/bargaining decisions, but rather (1) that no current federal law does --- or in Bill's view constitutionally can --- establish any "rule of law" limits (i.e., legally enforceable) on the execise of prosecutorial discretion in charging/bargaining decisions, and (2) that FMMs mean that the necessarily result of necessarily "lawless" prosecutorial discretion in these charging/bargaining decisions radically alters whether/when an impartial sentence judge can decide it would serve no justifiable purpose to lock up a defendant for five or ten or 15 or 20 years.

In other words, because there are right not no legally enforceable limits on the execise of federal prosecutorial discretion in charging/bargaining decisions, prosecutorial discreation is necessarily less constrained by law (i.e., is necessarily more lawless) and thus is also necessarily more subject to "luck-of-the-draw" realities. Thus, to favor any system which heigthens the impact/import of federal prosecutorial discretion in charging/bargaining decisions at sentencing --- which current FMMs necessarily do --- is to embrace an inherently lawless luck-of-the-draw system over an imperfect but still more law-impacted judicial sentencing structure.

Bill shows his hand in his latest comments when he says that give sentencing judges full authority to impose what, according to the law of 3553(a) passed by Congress, they consider legally justified will "effectively make the court, which is supposedly neutral, a partisan for the defendant." No, Bill, what these proposals do is allow the court, which is neutral, to sentence based on the enforceable law of 3553(a), rather than based on the FMMs floors that an unregulated and avowedly partisan prosecutors has decided to bring forward.

Bill in this way shows what he really favors, as I said before, is a system dominated by the "rule of prosecutors" rather than the "rule of law": Bill's view is that anytime a nuetral judge concludes (based on the formal law of 3553(a)) that a partisan prosecutor is seeking to impose too high a sentence then that judge is a defense partisan rather than a nuetral judge. In Bill's mind, judges are not really umpires as the Chief Justice suggests if and whenever they question what the partisan prosecutor demands. (I suppose I understand why a former prosecutor like Bill might say a judge is not really neutral if he does not agree with prosecutors all the time, but my own understanding of neutrality would demand that a judge not always agree with one side or the other.)

I could go on, but the basic point is simple: federal judges are subject to (loose but enforceable and appealable) legal rules when picking sentences; federal prosecutors are not subject to any legal rules when making charging/bargaining decisions involving FMMs (which serve to pick sentences). Ergo, sentencing is necessarily an inherently more lawless, luck-of-the-draw system when prosecutors pick sentences via FMMs than when judges pick sentences subject to the extent and enforceable laws of 3553 et seq.

Critical point here, and one that Bill seems afraid to make (though I think it ultimately drives his claim): it is possible and perhaps not unreasonable to assert that crime will be lower if partisan federal prosecutors pick all (or most or many) federal sentences rather than letting judges decide sentences. But the point of my post here was not to discuss whether FMMs reduce crime, but only whether they further "law-driven sentencing" and I assert they do not, either in theory or in practice.

Posted by: Doug B. | Sep 9, 2013 5:43:05 PM

Doug --

1. "But my main concerns is NOT that prosecutors now make hidden and unaccountable charging/bargaining decisions, but rather (1) that no current federal law does --- or in Bill's view constitutionally can --- establish any "rule of law" limits (i.e., legally enforceable) on the execise of prosecutorial discretion in charging/bargaining decisions..."

You give away the game right off the bat.

By saying that you want "legally enforceable" limits on prosecutorial discretion in charging, what you necessarily and quite plainly mean is that the defendant should have a right to go to a judge and get the judge to declare that the charge cannot stand, and has to be replaced (if the defendant is to be held accountable at all) by a different and lesser charge.

In other words, you want the judge to have what indirectly (but quite certainly) amounts to charging power.

Sorry. For that you need a constitutional amendment.

P.S. One thing that always gets omitted from this discussion is that it is THE DEFENDANT'S pre-indictment choices about his own behavior that give the prosecutor the choices you decry.

The complaint that it's all the prosecutor's freakish charging power loses a great deal of its steam when one recalls that THE WHOLE THING STARTED with the DEFENDANT'S behavior. But I never hear that the saintly meth-peddling or CP-distributing defendant assumes any risk at all from his own choices.

2. "...and (2) that FMMs mean that the necessarily result of necessarily "lawless" prosecutorial discretion in these charging/bargaining decisions radically alters whether/when an impartial sentence judge can decide it would serve no justifiable purpose to lock up a defendant for five or ten or 15 or 20 years."

Again, you give up the game when you put "lawless" in quotation marks. Doing so is an implicit recognition that it is ANYTHING BUT lawless for the prosecutor to bring a charge that fits the defendant's behavior.

Yes, the prosecutor could bring a lesser charge, absolutely. For that matter, he could bring no charge at all, isn't that true? Under your theory, if the judge believes drugs should be legalized, and thus that it would "serve no justifiable purpose" for the defendant to serve even five minutes in prison, why shouldn't the now All Powerful and Imperial Jurist be able to order that no charge be brought at all?

What you actually want is a merger between the charging and the adjudicating branches -- a merger that the Framers rejected precisely because it is the road, not to leniency (although it may so appear now), but to tyranny.

Posted by: Bill Otis | Sep 9, 2013 7:45:28 PM

Bill Otis--

Obviously you misunderstand the role that intuitive and reasoned prototypes play in modeling correction plans that include mandatory minimums. These prototypes are used by lawmakers before the fact, which is a time when the problem is not fully knowable. Correction prototypes are not plans themselves. They are based on suppositions. After the fact when the problem becomes fully knowable, they are advisory at best, because one's understanding of the problem unfolds. At that point, correction plans are modeled by intuitive or reasoned exemplars, not prototypes; e.g., prison, probation and so on. Correction plans should be based on facts, not suppositions.

Posted by: Tom McGee | Sep 9, 2013 8:07:30 PM

Tom McGee --

"Obviously you misunderstand the role that intuitive and reasoned prototypes play in modeling correction plans that include mandatory minimums. These prototypes are used by lawmakers before the fact, which is a time when the problem is not fully knowable."

That's right -- it's not FULLY knowable, but some things are plenty knowable.

What's known in the Montana case, for example, is that the defendant was guilty of child rape. There are simply no circumstances in which a 30 sentence for such a crime is acceptable -- unless, that is, you think child rape is a minor offense.

If you don't, and no normal person does, then you have just conceded the case for the legislature to establish a sentence below which even the most reckless and indecent judge may go.

Posted by: Bill Otis | Sep 9, 2013 8:59:21 PM

Bill:

While I do not agree with the 30 day sentence, please stop using the word rape out of its historical context. The term was bastardized by feminists and now you too (When it is to lawmakers, prosecutors and your advantage):

Websters 7th New Collegiate Dictionary:

1: an act or instance of robbing or despoiling or carrying away a person by FORCE.

2a: the unlawful carnal knowledge of a woman by a man without her consent and CHIEFLY by force or deception.

If you must use the word rape, please put the word statutory in front of it in reference to the Montana case.

PS: I think that Mandatory Minimums are the product of the sick and unproductive minds of our worthless legislators who are becoming evermore lost (and more worthless) as time goes on. We lose respect of the justice system when more and more "rules" can get you in trouble. Look at the Indiana man who got sentenced to 8 months in the pen for coaching federal job applicants how to "beat" lie detectors.

We should then be able to use these same lie detectors on our lawmakers and judicial adjudicators, or should we continue on the road to hell and believe that they are more worthy than the rest of us for their diligence and honesty.

When you talk about never telling lies, should this not also apply to our government?

Posted by: albeed | Sep 9, 2013 9:58:34 PM

Ultimately, the question is should the nature of the offense matter to the punishment options available? Should the punishment options for murder differ from the punishment options for stealing? Should the punishment options for murder in the first degree (however a state or the federal government defines that offense) differ from the punishment options for manslaughter? If you think that the offense of conviction should influence the punishment available, then the government employee who chooses what charges to file and pursue (and in our system that goverment employee is the prosecutor)is going to have an impact on the available punishment.

That discretion, however, is not entirely unreviewable. The prosecutor has to be able to prove that charge in court or reach a deal on some other charge with the accused that the accused agrees is accurate. However, I know of no pragmatic way to review why a prosecutor opted for murder 1st in one case and manslaughter in a second case. Such a review would require laying all of the evidence in both cases out on the table along with a prosecutor's hunches as to which evidence is credible and how the local juries are likely to react to that evidence.

Knowing that human beings (both prosecutors and judges) will have to make decisions that impact what a particular defendant gets, is it wrong for the legislature to say that some offenses are so terrible that the legislature will create a minimum sentence. Individuals can (and will) disagree about what offenses should not be eligible for probation or parole and individuals can (and will) disagree about what the range of punishment should be for any given offense. However, if the legislature is not responsible for establishing the available range of punishment who should be (and who can be under our separation of powers system)? Is there anybody seriously proposing that every offense should be punishable by a range from 1 day to life and a $1 fine to a $1 billion fine?

Posted by: tmm | Sep 10, 2013 9:45:30 AM

Mr Bill: "As to charging, however, yes, the Constitution leaves that exclusively to the executive branch, a fact that, notably, Doug does not dispute."

But where? You never cite the Constitution.

I can by citing the CRS Annotated Constitution's Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...."

Indeed, as previously argued but you ignored, prosecutions were private and funded by the complainant at the Founding. In the early days of our Republic, "prosecutor" was simply anyone who voluntarily went before the grand Jury with a complaint. — United States v. Sandford, Fed. Case No.16, 221 (C.Ct.D.C. 1806). Quoting Private Prosecutions.

As I previously linked: "The Attorney General is authorized in the U.S. Code, 28 USC Sec 503 (or Title 28, Part 2, Chapter 31, section 503 for us mortals)." That is not the Constitution is it? What's more, 28 USC Sec 503 appears to be in the judicial branch section. I find this fascinating even if I'm wrong.

Perhaps there is a simple explanation on both sides of this debate. The Grand Jury is currently an executive branch function instead of a 100% independent body as the Founders intended. This is what Mr. Bill has been arguing without saying so. There was a time when the Grand Jury would appoint an attorney general based on the evidence. Now if the AG says "If it walks like a ham sandwich, talks like a ham sandwich, and quacks like a ham sandwich, it is a ham sandwich and you must indict." The GJ must agree because it must indict all ham sandwiches.

When considering an indictment based on the evidence the Grand Jury should be able to consider the potential sentence and the alleged harm based on the evidence it subpenas. That would include FMMs and include whether the potential punishment is proportionate to the alleged crime.

An independent Grand Jury could reject a suggested indictment that was too severe or too light based on the evidence even if done in secrecy. That was the Framers intent.

Another interesting question is if any court or executive branch entity would have the authority and jurisdiction to require the grand jury to neglect its jury nullification authority. Perhaps that is the predominate reason for its secrecy.

Posted by: George | Sep 10, 2013 2:33:14 PM

Bill, you are the one who does not get it, as right now in every federal juridiction, the "All Powerful and Imperial Federal Prosecutors" ARE EVERY SINGLE DAY able to decide, based on whim or caprice or skin color or bank account size, that no charge be brought when, say, a defendant is found with 10 images of naked children downloaded on his computer. Or... that prosecutor can decide, based on whim or caprice or skin color or bank account size, to charge CP possession, which has no sentencing minimum.... Or that prosecutor can decide, based on whim or caprice or skin color or bank account size, charge CP receipt, which has a five year MM federal prison sentence.

You are right, of course, that the offender's decision to download the 10 images of naked kids is what must happen to get this lawless system started. If that was not needed, the system would not only be lawless, it would also be fascist/totalitarian, and I am not making that claim. What makes the charging decision LAWLESS is that a federal prosecutor in any federal district, with full transparency on local TV, could spin a big "luck-of-the-charging-draw" wheel with the names of three downloaders of 10 images of naked children and let the wheel pick which defendant gets a pass, which gets a federal CP possession charge with no mandatory time, and which gets a federal CP receipt charge with 5 years of mandatory federal prison time. And though we all likely would criticize that prosecutor for his random showmanship, there IS NO EXTANT FEDERAL LAW BY WHICH WE COULD FORMALLY CRITICIZE (OR SEEK REVIEW OF) THIS PROSECUTORIAL DECISION TO ADOPT an actual "luck-of-the-draw" charging policy for three idential defendants.

In contrast, if a sentencing judge handed down federal CP sentences this way, his decisions for all three defendants would be properly reversed for not following the enforceable law Congress has put forward to govern how judges as suppose to sentence under 3553(a). That is why I describe federal prosecutorial charging discretion formally (and properly) to be "lawless," while I describe federal judicial sentencing discretion to be subject to the rule of law. I get you generally like how most federal prosecutors make sentencing decisions under our lawless charging system more than how most federal judges make sentencing decisions under 3553(a). But that is because, as I have said repeatedly, you really prefer

Again, here, you retreat to the assertion that the Constitution requires federal prosecutorial charging discretion to be lawless. Fine, I am not fighting here whether federal law can or should try to control federal prosecutorial charging discretion. What I am fighting is your claim that giving federal prosecutorial more sentencing power via FMMs is a way to bring more law to sentencing. In fact, that is exactly backward: because you say the Constitution PREVENTS any legal limits on federal prosecutors, it is those eager to give more sentencing power to prosecutors via FMMs who are trying embracing "a luck-of-the-draw system."

We agree that the Framers sought to prevent a "merger between the charging and the adjudicating branches ... because it is the road ... to tyranny." But do you not appreciate that picking a sentence is the job for the "adjudicating branches" and that FMMs serve to merge charging and sentencing in the kind of CP downloading case I mention. Indeed, given that 95% of all federal criminal cases result from pleas, the only thing left to "adjudicate" is the sentence. But FMMs create the very merger that you seem to understand the Framers wanted to avoid. That is why I generally oppose nearly all FMMs, and why I think you should, too.

Posted by: Doug B. | Sep 10, 2013 3:23:04 PM

George --

Honestly, this is getting old.

Charging is the sole province of the executive branch. Sorry you don't believe this, but that's how it works. Have you wondered why you're getting zero support for your view that charging authority lies elsewhere?

And no, I'm not talking about the grand jury, which is not part of any of the three branches. In order for its charges to go to court, however, they have to be signed by the prosecutor and (of course) litigated by him.

Really, George. You're beginning to sound like some of those tax protesters I prosecuted who claim that the Sixteenth Amendment was never properly ratified.

Next stop: George Bush was in on 9-11.

Posted by: Bill Otis | Sep 10, 2013 3:29:41 PM

Mr. Bill: "Next stop: George Bush was in on 9-11."

Your concession is accepted. You cannot cite a reliable source for this claim anymore than you can cite where the Constitution leaves charging power "exclusively to the executive branch."

How it works and what the Constitution actually says can be two different things. Charging power is apparently bestowed by Congress in 28 USC Sec 503, which unfortunately had the unintended consequence of crippling the grand jury over time.

"Also, grand juries could refuse to indict whenever they doubted a criminal statute's constitutionality. Trial juries, widely viewed as the lower half of a bicameral judiciary, likewise had the power (and perhaps even the right and duty) to acquit with finality in such cases, even if the bench had already adjudged the law to be constitutionally sound. " Akhil Reed Amar, America's Constitution: A Biography, p 61.

Posted by: George | Sep 10, 2013 5:44:38 PM

George --

I'll ask again: Do you think there's a reason not a single commenter has backed your assertion that some branch other than the executive has the authority to bring a criminal charge?

Neither you nor my friend Akhil has ever prosecuted a criminal case. You can insist all you care to, and have the highest degree of confidence in your non-existent legal education and experience, but it's not going to change reality.

Posted by: Bill Otis | Sep 10, 2013 6:28:56 PM

Doug --

"Or that prosecutor can decide, based on whim or caprice or skin color or bank account size, charge CP receipt, which has a five year MM federal prison sentence."

You don't really believe that a prosecutorial decision to charge someone with a serious felony "based on...skin color" would stand, do you?

We'll put to one side the question whether such a thing actually happens (I doubt it does, although I wouldn't completely put it past the present DOJ to charge George Zimmerman principally because of his race). The question is whether a race-based charging decision would stand against a challenge of selective prosecution.

Actually, it's not a question, since the answer is obvious, and I'm sure you know it.

What you're doing is conflating discretion with arbitrariness, and then (I assume simply for incendiary purposes) conflating arbitrariness with racism. But they're all different, and the law treats them differently.

I have never spoken up for a system without some degree of discretion since, for one thing, such a system is not possible.

I have instead spoken up for a system in which (1) the discretion of government officers the voters can remove is greater than that of those they can't; (2) discretion is cabined by more rather than less binding rules; and (3) INVIDIOUS discrimination (i.e., race) is never tolerated in any government actor, but non-invidious discrimination (based, for example, on any given administration's decision to emphasize environmental crimes (disproportionately committed by whites, incidentally)) is allowed.

I really don't know why you want to make prosecutors the devil. I also don't know why you won't support my proposal for greater transparency and accountability from AUSA's, and instead seem to want only to eliminate MM's across the board (as in Leahy/Paul) so that fruitcake judges like this creep in Montana can coddle child rapists and have a better chance of getting away with it.

"Indeed, given that 95% of all federal criminal cases result from pleas, the only thing left to "adjudicate" is the sentence. But FMMs create the very merger that you seem to understand the Framers wanted to avoid. That is why I generally oppose nearly all FMMs, and why I think you should, too."

But MM's are not imposed or even applicable in anything close to 95% of federal criminal convictions. I don't know what the percentage is, but it's a small minority. Isn't that right?

As I've said, I'm all for giving judges substantial discretion. I'm not for giving them all of it, because no one branch is to be trusted with all of it (which is why we have, inter alia, Section 3553(f)). The application of MM's to a small minority of convictions does not make the executive branch the snarling, and still less the Klan-like, leviathan you portray.

Posted by: Bill Otis | Sep 10, 2013 7:01:35 PM

Well, Otis in some classes of cases, meth, for example, over 80% of defendants in federal court last year faced MM' s. but then u are so good at ignoring facts you don't love

Posted by: Steve Prof | Sep 10, 2013 7:17:43 PM

Mr. Bill: "I'll ask again: Do you think there's a reason not a single commenter has backed your assertion that some branch other than the executive has the authority to bring a criminal charge?"

That is because they are so shocked and dumbfounded to learn the AG is not a god bestowed from the Constitution but is a mere statutory mortal. Once they come out their shock the revolution can begin.

Only a grand jury, and not a judge, could authorize a criminal indictment. No matter how clear the proof against a man, grand jurors were free to just say no and thereby spare the potential defendant from even having to stand trial (unless prosecutors tried to proceed by "information"--a disfavored process nowhere mentioned in the original Constitution and all but prohibited by the later Fifth Amendment). Even if a grand jury said yes to the prosecution, criminal trial jurors were free to say no--or more precisely, "not guilty"--and no judge could stop or reverse them, no matter how clear (to the judge) the defendant's guilt. In short, eighteenth-century criminal jurors had both the right and the power to acquit against the evidence....

Alongside their right and power to acquit against the evidence, eighteenth-century jurors also claimed the right and power to consider legal as well as factual issues--to judge both law and fact "complicatedly"--when rendering any general verdict.

Ibid, p 238.

Posted by: George | Sep 10, 2013 10:48:14 PM

Make that "complicately", a new word to me and my spell checker.

Posted by: George | Sep 10, 2013 10:56:57 PM

George --

Fine. Let's assume, as you do, that you know more about the Constitution than, not only I, but the numerous law professors and experienced practitioners who comment here.

It's fine with me, because you STILL come out on my side in my debate with Doug. Doug wants federal judges to be able effectively to nullify what he views as arbitrary prosecutorial charging decisions in MM cases. The practical effect would be that judges could re-charge the case at a reduced, non-MM level.

But in order to engineer a charge at ANY level, the judge would have to have SOME constitutional authority to charge.

You neither cite nor attempt to cite any such authority. Instead, you say that it's the grand jury that has the authority to bring charges. But the grand jury is not part of the judicial (or any other) branch. Therefore, on your own account, the theory that the judicial branch has any charging authority finds no support in the Constitution.

Thank you!

Posted by: Bill Otis | Sep 11, 2013 9:23:28 AM

As I see it, prosecutors are supposed to unfold the problem, which h is antisocial behavior. For the most part, they miss the mark.

Posted by: Tom McGee | Sep 11, 2013 9:36:11 AM

Is there a criminal offense in the world without a mandatory minimum? That mandatory minimum might be probation, but it is still a mandatory minimum. The judge is not free after a finding of guilt to say "we're done here, go your way and sin no more." Likewise, at both the state and federal levels, there are degree of offenses or "enhancement" factors that can change the options for the judge.

The issue seems to be that a lot of folks do not like the current sentences set by federal law. Rather than a blanket statement that mandatory minimums are bad (but mandatory maximums are apparently good), let's be honest and say that we mean that we think that the authorized punishment options for certain offenses are disproportionate to the seriousness of those offenses and the enhancement factors in the statute are arbitrary, then set about calling for those specific punishment options and enhancement factors to be changed. Or is there anyone here thinking that a one day sentence should be an available option for a pre-meditated homicide?

Posted by: tmm | Sep 11, 2013 10:03:56 AM

tmm --

Or as I said in my teleforum debate with Doug, "We can have worthwhile debates about which crimes warrant mandatories, and how high or low the minimum should be. But we cannot sensibly debate the Framers' wisdom that the power of government is best exercised when it is distributed among the branches, not concentrated in a single branch, much less a single person, whether or not he is wearing a robe."

You drive the point home by adding: "[I]s there anyone here thinking that a one day sentence should be an available option for a pre-meditated homicide?"

It's that question, or its variant, that I'm having such a hard time getting answered. The reason is simple: If the other side takes the view that either no or an indecently low sentence should be allowed for a very serious crime, they have exposed themselves as crazy. If, on the other hand, the other side admits that some sentences are indeed too low for the legislature to allow, they have conceded the case.

Posted by: Bill Otis | Sep 11, 2013 10:18:29 AM

Bill, thanks for continuing the debate, in part because it helps highlight how much critical distance there is between your (quite reasonable) points in theory and the federal prosecutorial/judicial sentencing realities on the ground.

For starters, you focus on my concern (which you perhaps share) that a federal prosecutor might charge someone with a serious felony "based on...skin color". The problem is, because prosecutors make their charging/bargaining decision hidden and without giving reasons (and US v. Armstrong prevents even discovery about these decisions), we cannot ever possibly find out if such a decision were ever in fact made on the pernicious basis of race. (The fact that you think this is even possible in a high-profile case you care about should help you appreciate why others might fear this reality in lower-profile cases they care about.)

You also notably avoid my (more realistic) concerns that federal prosecutors might be making some charging/bargaining decisions with sentencing outcomes in mind based on "whim or caprice ... or bank account size." Again, my worry is that we cannot even find out what goes into prosecutorial discretion because prosecutors are eager and effective preventing any peek behind the curtain. And the absence of any law here means that prosecutors could, if they so wish, formally or functionally adopt a "luck-of-the-draw" approach to these critical decision without violating their oaths or even being reasonably subject to any legal scrutiny.

Please understand, I do NOT mean to make prosecutors out as the devil (just like I assume you do not think judges are the devil). But to the extent you eagerly highlight that there are "fruitcake judges like this creep in Montana," I do not understand why you do not see the even bigger risk that possible "fruitcake" prosecutors may present to the effective and just administration of the federal criminal justice system. In the federal system, I sure hope we screen out judge fruitcakes by requiring Prez appointment and Senate confirmation. We do not have such a check on fruitcake prosecutors, who are not only NOT subject to direct political control, but also often are "career" employees who can (and sometimes will) actively resist orders coming from those in political control.

(As a relevant aside, dare I suggest you never see or assert that any judge who gives an extremely LONG sentence is a fruitcake --- e.g., did you give that label to the Florida judge who gave Terrance Graham an LWOP sentence for two robberies? In the end, Bill, your eagerness for sentencing severity and prosecutorial power colors your arguments --- just as my eagerness for sentencing parsimony and transparent checks-and-balances colors mine.)

Most central, perhaps, to our continuing debate Bill is your lack of understanding concerning how consequential FMMs are in all drug, CP and gun cases. Start with CP downloading cases where 100% of the time --- that is, in EVERY SINGLE CASE --- an FMM of 5-years for receipt is applicable (but often does not get charged or is bargained away). In drug cases, the recent "Quick Fact" series by the USSC reports that in 83% of the meth cases a FMM is in play for the offense of conviction, and in 66% of heroin cases, and 40% or marijuana cases. In other words, FMMs are in play for use/manipulation by prosecutors in the VAST MAJORITY of all drug cases and all CP cases. (The gun data is more complicated, in part because ACCA and 924(c) FMMs are even more subject to prosecutorial manipulation than others.)

If, in fact, FMMs only were really in play in a few or even only a significant minority of drug cases, this would not be a debate worth having at this great length. But that is just NOT the reality on the ground, and I am a bit disappointed and surprised that the nation's leading critic of what Holder said/did last month concerning federal sentencing and FMMs is, in fact, so out of touch with the reality of the federal sentencing system and the impact and import of FMMs. And, it is because you are such an important and effective voice in this debate, Bill, that accounts for why I am spending so much time trying to help you better understand the errors of your "rule of law" advocacy here and to perhaps get you to see that Rand Paul and Mike Lee and others are astute and more informed with their fears that the current federal sentencing system makes it much too easy for prosecutors to act in devilish ways without any review of accountability.

Posted by: Doug B. | Sep 11, 2013 10:59:23 AM

Doug --

"For starters, you focus on my concern (which you perhaps share) that a federal prosecutor might charge someone with a serious felony "based on...skin color". The problem is, because prosecutors make their charging/bargaining decision hidden and without giving reasons (and US v. Armstrong prevents even discovery about these decisions), we cannot ever possibly find out if such a decision were ever made on the pernicious basis of race."

Not so. The defendant files a motion to dismiss based on racially selective prosecution. Armstrong does NOT prevent discovery. It requires a threshold showing, yes (to prevent litigation of facially frivolous claims), but the government as a practical matter is required (and I assure you, is happy) to take on an accusation of racism.

I know. When exactly that motion was filed in a case I handled, I was more than happy to explain in gory detail every decision to indict or not indict. United States v. Olvis, 97 F.3d 739 (4th Cir. 1996), available at: http://www.leagle.com/decision/199683697F3d739_1727

The government is an institutional litigant and cannot afford to rest on the "required threshold" standard. If you're an AUSA, and someone accuses you of racist decision-making, you come at them with both barrels, which is what I did. You can read the results for yourself.

As I say, what would be useful, and what I support, is greater visibility and POLITICAL accountability for prosecutorial decision-making. As Olvis shows, I was willing to put my money where my mouth is.

I'll stop with that for now.

Posted by: Bill Otis | Sep 11, 2013 11:26:43 AM

The safety valve that Mr. Otis speaks of is NOT available to everyone who faces a mandatory minimum. My husband would have been eligible except for his charge didn't allow for it. He was even sentenced below the minimum initially, but not out of line with the information that the judge had and the criminal history. The safety valve would have been the perfect thing to be used in our situation. And prosecutors are good at trying to get a plea fast and furious by threatening to add more charges if the plea is not on their timeline.

Posted by: Jill | Sep 11, 2013 6:50:32 PM

Mr. Bill's straw man: "It's fine with me, because you STILL come out on my side in my debate with Doug. Doug wants federal judges to be able effectively to nullify what he views as arbitrary prosecutorial charging decisions in MM cases. The practical effect would be that judges could re-charge the case at a reduced, non-MM level."

Our host can of course speak for himself but I failed to see where he argued that.

My point is that the solutions were built-in to the Constitution already with the Fifth Amendment grand jury clause. Legislatures would have to pass laws the grand jury was willing to indict people for and prosecutors would have to bring charges they knew the grand jury would accept. For that to be effective, the grand jury would have to be 100% independent. IOW, I'm arguing the problems you and our host are debating were brought about due to the disintegration of the grand jury. It has come to the point it in practice serves as an executive branch rubber stamp instead of the independent check on lawmaking and law enforcement it was intended to be. The result is the the country is getting crushed under the weight of its laws and regulations with relativity impotent checks and balances to slow the assembly line down.

Just imagine for a moment, if you would, what difference it would make if lawmakers and prosecutors knew they would have to hurdle the grand jury with every new law or prosecution. Now, it is not a factor at all because grand juries are ignorant of the power they should have.

Posted by: George | Sep 11, 2013 11:15:20 PM

George --

"The result is the country is getting crushed under the weight of its laws and regulations with relativity impotent checks and balances to slow the assembly line down."

Crime is down by more than 50% over the last generation; we are safer now than at any time since the 1950's; and criminal defendants have more and more refined procedural protections than at any time in the nation's history.

If that's getting "crushed," we should get crushed more often.

Posted by: Bill Otis | Sep 11, 2013 11:28:35 PM

Mr. Bill: "we are safer now than at any time since the 1950's"

You argued that in the Federalist debate. You neglect to provide support that a crushing legal system is a necessary and sufficient cause. Indeed, it was not necessary in the 1950s when "crime was down" to your relative satisfaction, so to complete your argument it is necessary to include why it is necessary now but it wasn't then. I suspect you'll again try to blame the 60s, but then what about the 20s? Why didn't we build and maintain a "crushing" bureaucratic criminal system then and stick to it? Because it wasn't necessary, as now.

But I think your real bottom line is that you prefer the Executive branch having power over the grand jury, which is what actually got crushed, instead of an independent grand jury having power.

Posted by: George | Sep 12, 2013 12:12:44 AM

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