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September 18, 2013

Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums

The Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post.  A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked.   Not surprisingly, the only written statement supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:

Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.  Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.  It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.

Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime.  Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?

NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.

I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."  More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law). 

The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' "best player" in fighting the drug war and the broader war on crime.  In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means.  And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view.  But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with "the most effective sticks" once they are up three touchdowns.  And that is why I think it is time to see the federal prosecution team have to try to "running up the score" against serious crime at a lower human and economic costs than is currently being endured.

A few recent related posts:

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1. "The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' 'best player' in fighting the drug war and the broader war on crime."

Well, that might be the essence of "this defense," but the essence of the broader defense is simply that there are some crimes so awful that the legislature has and should exercise the authority to say to judges that there is a rock-bottom minimum below which they can't go.

Example (hat tip to tmm on a different thread): Would anyone say that the legislature should not decree that a judge cannot go below a one-year prison term for a conviction for premeditated, first degree murder?

If anyone wants to make that case, I'd love to hear it. Thus far, no one has stepped forward to explain why a guy who does a premeditated murder should not serve at least a year. Now why would that be?

2. "I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with 'the most effective sticks' once they are up three touchdowns. And that is why I think it is time to see the federal prosecution team have to try to 'running up the score' against serious crime at a lower human and economic costs than is currently being endured."

My goodness. We're not talking here about two high school teams of equal moral worth, only your kid plays for the one that's getting whumped, so you want the opponent to ease off. We talking about one "team" of prosecutors and another "team" of guys who have chosen to make a quick buck pushing drugs, including to teenagers and addicts on their way to an overdose death. There is no moral equivalence there.

If anyone on the Quick Buck Team wants to "lower human and economic costs" than are imposed by imprisonment, he has it ENTIRELY IN HIS POWER to do so: Become a free agent, sign with the Get A Normal Job Team, and join the rest of us in living law-abiding life.

Posted by: Bill Otis | Sep 18, 2013 11:19:49 AM

The state prosecutor blows his credibility early on, when he says: "US Attorneys have never, to my knowledge, prosecuted low level [drug] offenses." He's not being dishonest, he qualifies his statement with the caveat "to my knowledge." But therein lies the rub. He's wrong. U.S. Attorneys do sometimes prosecute low-level drug offenders -- most commonly when they're seeking to "move up the food chain" to get more serious offenders. I'll stay out of the debate about whether this is a good thing or a bad thing; my point is that the state prosecutor isn't well-informed re what federal prosecutors "never" do.

Posted by: AFPD | Sep 18, 2013 11:44:04 AM

On point 1, Bill: I think a case could be made for a lesser sentence for a "premeditated murder" committed by, say, an army doctor or an elderly husband to end the extraordinary suffering of a severely injuried or ailing person who is on a very slow path to a very painful and certain death. Of course, prosecutors likely would not charge or get a conviction for premeditated, first degree murder in this case, though they might threaten to do so if they thought this would speed a plea or cooperation that the prosector might want. (The (in)famous Dudley and Stephens case provides another example in which at least an argument could be made that a "premeditated murder" committed under extreme circumstances justifies a sentence other than imprisonment.)

On point 2, Bill: You are right, Bill, that the sports metaphor is imperfect, but I might assert that the moral perspective here should be viewed the other way, especially in a nation "conceived in liberty" where we pledge allegience to "liberty and justice for all": one team is full of private individuals who, though having done wrong, wants merely a chance to argue to a nuetral judge that he/she now is eager to become a "free agent, sign with the Get A Normal Job Team, and join the rest of us in living law-abiding life." The other team is full of taxpayer-funded federal buearucrats who believe that their government jobs become much easier if/when they alone can threaten to perminently deprive liberty by locking someone in a cage for many years (and thereby get a quick plea and/or cooperation).

I understand fully your perspective, Bill, that in the context of federal crime and punishment "Team Big-Federal (Exclusively-Executive) Government Power" should always seek to run up the score against "Team Private Individuals." But, notably, a whole lots of folks on the GOP side are finally coming to understand that this "rooting strategy" can be very costly and not always in the best long-term interest of the "home of the free and the land of the brave."

Posted by: Doug B. | Sep 18, 2013 11:45:48 AM

By "'running up the score' against serious crime," you mean "reducing serious crime," right? Most would probably agree that's one score that can't ever be run up too high. Lives are at stake here. It's a puzzling argument that the case for mandatory minimums would be stronger if the crime rate were as high as it were 20 years ago, but not today, after mandatory minimums have contributed to major reductions in the crime rate.

Posted by: Anon | Sep 18, 2013 12:31:35 PM

And let's not forget, while the crime rate today looks good compared to its peak in the early '90s, it's still higher than it was back in the '50s and '60s. There's still plenty of room to run up the score even more.

Posted by: Anon | Sep 18, 2013 12:34:32 PM

Doug --

Point 1: The case you posit is such an extreme outlier that it doesn't really illuminate the policy debate. But even if taken on its own terms, it's not persuasive: Individual persons do not get to decide for themselves the circumstances under which it is permissible to take another's life. If mercy killing is to be legalized (or is to be made second degree rather than first degree murder), that is a job for legal process, not for individuals. It's not unheard of for Spouse X to claim mercy killing, only to find out that he'd spent years fighting with Spouse Y, whose fortune he stood to inherit.

The whole point of the social compact is that individuals surrender to legal process the right to make life-and-death decisions over other people. It's quite true that legal process can be maddening and is plenty fallible. But individual decisions can be vastly more fallible, not to mention self-interested and corrupt.

2. Being a conservative, I oppose the government's doing for people what they can easily do for themselves. Since a person can easily decline to become a drug dealer in favor of becoming an employee in a normal business, I have no problem is his having to assume the consequences of his greed. The huge majority of people make an honest living, and if Mr. Drug Dealer wants to do it the quick, dirty way, he can pay the price.

I also want to say a word about this line: "I understand fully your perspective, Bill, that in the context of federal crime and punishment "Team Big-Federal (Exclusively-Executive) Government Power" should always seek to run up the score against "Team Private Individuals."

The phrase I would note is "run up the score." What exactly is the "score" in this context? The score I know about is the crime score: Over the last generation, we have indeed run up the score against crime victimization, as the country has become safer and safer, and hard-earned property and savings have become more and more secure. I am all in favor of continuing to "run up" that score.

What's the alternative? Increasing incarceration has helped lower crime -- a fact no serious person doubts anymore. What that means is that less incarceration will, over time (more than two or three years), increase crime.

How much more crime, of what types, and which particular victims, are you willing to see more of as we decrease incarceration?

Posted by: Bill Otis | Sep 18, 2013 12:45:42 PM

AFPD --

Replace "never prosecute" with "very seldom prosecute," and that fixes the problem. It also does not detract from Burns' main point that the present federal MM's do not, in any sense meaningful for broad law and policy changes, routinely "ensnare" low-level drug dealers.

What present law does is put some minimal brake on the Weinsteins, Gleesons and Bennetts of the world, and others like them, who are chomping at the bit to de facto legalize drugs by handing out nothing sentences.

It's a power grab by judges, who utterly resent the notion that the legislature might "intrude" on their Imperial Power to do whatever they like. It is, of course, precisely the judges who complain the most who most need the constraint.

Unless you're for eliminating mandatory maximums too, so that hard line judges can go to town at sentencing without any legislatively-imposed boundaries. Are you in favor of that?

Posted by: Bill Otis | Sep 18, 2013 1:48:34 PM

Bill --

No, I'm not in favor of eliminating statutory maximums, as I suspect you know. My guess is you're not in favor of it either.

Re federal prosecution of low-level drug offenders, my experience in over 2 decades as an AFPD, is that the feds "generally don't prosecute low level drug offenders;" I wouldn't go so far as "very seldom." As we both know, though, prosecutorial discretion is exercised very differently in different federal districts. In the district you practiced in, I'm sure it was very seldom." In my district, that is not true. We agree, though, that the D.A.'s "never" statement was wrong.

Call me a purist, but I think if someone goes to the trouble of preparing a statement in an attempt to influence Congress on a very important matter of public policy, he or she should get the facts straight. And, yes, I hold that opinion regardless of the position the lobbyist is taking - i.e., I think liberal lobbyists should have their facts straight, too, before attempting to influence a congressional decision.

Perhaps the best practice would be for Congress to just gather the statistics.

Posted by: AFPD | Sep 18, 2013 2:17:24 PM

Well I guess I must take the Bull by the horns and spoil the little party.

If you qualify for a MM or an enhancement, it is extremely rare that you donot get it plus a little more.
Downward departures and variances are seldom granted....Why....Because they can and there is nothing on Gods green earth that can change it... The idea to give the Judge a choice not to sentence the MM
is ridiculous... Look at our National debt, its the way it is because we have Federal peiople
that have a Paper @ssHole...Simply put...Most have never done a job outside of Federal work, so they
didn't participate in the real world...

Most anything Federal is over done, ineffective and the costs are totally out of control..
Wait till they start Taxing your 401K's, they need the $$$$ and it won't be long.
Decades of spending like a bunch of drunks without a conscience and here we are..
We got hereby people saying,well its not a very big pcnt of the budget...We don't have a budget.
If its not absolutely necessary, then don't do it.. Its still money..
Feds think they need the MM to force things to get to the top of the food chain on crime..
Hows that working for you federal Thugs...Disgusting bunch of worthless self serving
over paid slime bags.
Now, do you really want to know how I feel about the federal Govnt...
Oh well, its close enough for govt work boys, lets not make a decision, that a 3rd grader can do.

This only address the 841 enhancements, the 851 still runs rampede...Go Bill Go...Glory Days..

Posted by: MidWest Guy | Sep 18, 2013 2:36:41 PM

AFPD --

"No, I'm not in favor of eliminating statutory maximums, as I suspect you know. My guess is you're not in favor of it either."

Correct. Neither maxima nor minima should be eliminated, for mirror-image reasons. Congress can properly determine that some crimes are so awful that there's going to be a floor no matter how sympathetic the defendant is, and can also properly determine that justice for other crimes reaches so far and no farther, so there's going to be a ceiling no matter how awful the defendant is. I simply do not see how a reasonable person can argue with that.

"Call me a purist, but I think if someone goes to the trouble of preparing a statement in an attempt to influence Congress on a very important matter of public policy, he or she should get the facts straight."

Also correct. Words have meanings, and "never" does not mean "seldom."

I didn't see his testimony, so I can't comment beyond that. There have been occasions when I testified before Congress, and when I got something wrong, I wrote a letter to correct it.

People do botch their lines, however. I doubt there's a single place I haven't botched one or another -- not in Congress, in court, in class, on TV, in debates, you name it. Public speaking is harder than it looks. You have to process a lot of information and respond very, very quickly.

Still, you are correct: When you're speaking from a prepared text and with plenty of notice, you have to get it right.

Posted by: Bill Otis | Sep 18, 2013 2:45:36 PM

Great discussion, here, which I hope keep going. For the record, the quoted text above comes from Burn's written testimony, and I share the view of both AFPD and Bill that "seldom" or "generally do not" would have made Burn's claim both more accurate and more above-board.

As for metaphors and clarity, all should know that I dream of living in a world with zero violent crime, as well as zero non-violent crime, as well as zero serious crime, as well as zero non-serious crime. That is not what we are really debating, and that is not what I mean when talking about "running up the scope." Rather, what is truly at issue here are the "score" of months of the severe deprivation of human liberty that imprisonment necessarily entails. That is the "score" that federal prosecutors now get a chance to "run up" thanks to FMMs. And it is a costly score, both in economic terms and human terms.

As I said, I think a reasonable case can be made -- both in economic and human terms --- for to allow federal prosecutors to "run up" the months of incaration score and its related costs using FMMs if/when crime is relatively high and if/when other more-cost-effectve means to reduce crime are proving ineffective. And arguably that was the state of affairs circa 1984. But now crime is relatively low AND states are showing considerable success continuing to reduce from by more-cost-effectve means than long terms of incrceration. Ergo, time to consider more balance here --- and I favor a balance which allows federal judges to have more of a say in most/all cases as to whether prosecutors' request to "run up" the months of incaration score and its related costs is worthwhile.

That is all that this debate is REALLY about: whether and how, when Congress defines a federal crime, they should also give federal prosecutors --- and only federal prosecutors --- the authority to threaten that, absent a plea and/or cooperation, anyone who may be reasonably found guilty of that crime with at least 60 or 120 or 180 or 240 months of incaration NO MATTER WHAT A JUDGE MIGHT THINK SHOULD BE THE RIGHT "INCARCERATION SCORE."

Notably, I generally do not have a problem with mandatory restitution statutes or mandatory community service or even mandatory shaming sentences. It is costly incarceration, in light of current conditions and current cost/benefit trade offs, that concerns me and now many others. Combine that with my sense that "Team Big-Federal (Exclusively-Executive) Government Power" always can leverage resources better than "Team Private Individual" and I favor having Congress at least giving federal judges a little more authority to check/balance how "Team Big-Federal (Exclusively-Executive) Government Power" want to use federal taxpayer dollars in the name of keeping us safe.

Posted by: Doug B. | Sep 18, 2013 4:10:00 PM

Has there ever been a case where a judge said the statutory maximum was too low and therefore stopped the judge from imposing a just sentence? If more than one, how many? 2? The opponents of mandatory minimums can point to hundreds of cases where they - and the sentencing judges - believe, whether you agree or disagree with them, that the sentence was too long. So why compare maximums and minimums? The comparison only seems useful if someone argues that Congress does not have the constitutional authority to pass minimums, but I don't know anyone here or anywhere who is making that argument.

Posted by: Thinkaboutit | Sep 18, 2013 4:31:19 PM

Thinkaboutit --

"Has there ever been a case where a judge said the statutory maximum was too low and therefore stopped the judge from imposing a just sentence?"

Sure. Every few months you hear a judge in a state with no DP tell the killer, "It's a good thing for you that there is no death penalty in this state." And no, I can't give you case names, but I've been around long enough to have heard this more than a few times.

Posted by: Bill Otis | Sep 18, 2013 4:46:51 PM

I am a criminal defense lawyer with long experience in the federal system. This man is so clearly misinformed, it is scary. Consider this critically important but patently false statement he made:"While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge."

Posted by: Gary G Becker | Sep 18, 2013 5:03:17 PM

It seems to me that all those in favor of MM have never "made a mistake or had a lapse of judgement". Prosecuters do in fact send first time offenders to prison. Internet crimes are federal offenses, they cross state and country lines. It only takes one small lapse of judgement, one time, to land you in prison with a mandatory minimum and a felon conviction hung around your neck for the rest of your life. And if the prosecuters think there is any "rehab" going on in prisons, there isn't, first time offenders would be better served on the outside getting treatment or rehab.
So, if you, or a family member or a friend of yours has never, ever made a mistake, just wait, sooner or later someone you know will, and they'll end up in a prison with an MM, and then maybe you'll change your view point. Don't be so harsh, anyone of us could be next, you never know.

Posted by: kat | Sep 18, 2013 5:03:53 PM

I am struck by this statement, which does NOT necessarily apply to drug crimes only:

"The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders"

My spouse..a first time, non-violent, Older (age 50) (so more medical problems) offender has a 25 year sentence. So I'm further struck by:

"Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America. The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison. "

It is absolutely NOT Difficult to be sentenced to prison in Federal court...especially if you have the nerve to go to trial..then afterwords be slammed with every enhancement possible.

Spouse is up for direct appeal...Prayers are with him every day.
As for myself, one of the tiny minority of persons who went to trial and was acquitted of all counts (accused of buying a boat! The horror of my crime upon society!)
I think the vast majority of sentencing options, mandatory and otherwise, have been ratcheted up entirely too high. I faced a possible 20 years for buying a boat!

Posted by: folly | Sep 18, 2013 5:06:22 PM

Too cute by half, Bill.

Posted by: Thinkaboutit | Sep 18, 2013 6:06:37 PM

Glad we found some common ground, Bill.

Posted by: AFPD | Sep 18, 2013 6:32:56 PM

Every crime can be characterized as a mistake in judgment, that does not make it so whether it is downloading child pornography, starting a career as a mule for a major drug opertaion,or killing your ex-spouse because you did not want to pay child support.

While recognizing that every district at the federal level and every county at the state level has discretion that results in some distinctions, my experience at the state level is that it takes something significant before the federal prosecutors will take over a drug case or a first time felon committing a dual state-federal offense. It is also my experience that first time non-violent offenders on "lesser" felonies do not go to prison until they have screwed up probation. From looking at the statistics from the various states and the federal system, my experience seems to be the norm as noted in the NDAA's testimony.

As I have stated elsewhere, my bottom line on this is that those opposing mandatory minimums should present the specific offenses that require -- in their opinion -- harsh mandatory minimums and less discuss them. My hunch is that, on some of the mandatory minimums (e.g. child pornography), the public would strongly disagree, but might agree on others. Trying to implicitly repeal mandatory minimums by a backdoor (something we are taught in law school as contrary to the canons of construction) is a way to avoid debating the individual mandatory minimums, particularly those that the public would support.

Posted by: tmm | Sep 18, 2013 6:41:18 PM

@tmm

I'm sure it is indeed your experience at the state level "that it takes something significant before the federal prosecutors will TAKE OVER a drug case." (emphasis added) But that isn't usually how the low-level drug offenders get swept up by the feds. They get swept up when the feds are going after a big fish and sweep up everyone around the big fish - either b/c they're not at that point sure who are the big fishes and who are the little ones, or b/c they hope the little fishes will roll over and help them catch the big fishes. But once the little fishes are swept up in the federal net, it's very rare for the feds to let go (i.e., to release the little fish to state prosecution).

Posted by: AFPD | Sep 18, 2013 6:53:36 PM

I was just glad to be listening to Burns today when he said that if federal prosecutors were focused on getting convictions and long sentences and not just doing justice that he would be surprised. Maybe he will have time to read Judge Engelhardt's order in the Katrina officers' civil rights prosecution. Sick stuff. Oh, I no, just 3-4 bad apples. Most prosecutors don't do everything to win. They just seek justice. Etc. Etc.

Qualsiasi Mezzo: Danziger Bridge
By Solomon Wisenberg Share
Move over, Emmet Sullivan and Carmac Carney. Add Kurt D. Engelhardt to the Honor Roll roster of federal district judges willing to speak truth to the U.S. Department of Justice. Willing to speak truth and to do something about it. Here is Judge Engelhardt's Danziger Bridge Mistrial Order, issued yesterday in the Eastern District of Louisiana, and dismissing without prejudice all guilty verdicts obtained by the government in United States v. Kenneth Bowen, et al. This was the federal civil rights prosecution of New Orleans police officers allegedly involved in a horrfic shooting of civilians in the wake of Hurricane Katrina.

The mistrial was granted primarily due to a secret campaign of prejudicial publicity carried out through social media by members of the U.S. Attorney's Office in New Orleans and a DOJ Civil Rights Division attorney in DC. But Judge Engelhardt's opinion raises several other troubling issues concerning the conduct of the trial, DOJ's post-trial investigation of what happened during the trial, and possible meddling by the Deputy AG's office in that investigation.

I will have more to say about these issues in the coming days. It is clear that Judge Engelhardt does not believe he has received anything like the full story from DOJ. It is clear that appointment of a Special Counsel to investigate the entire affair is in order. And it is clear, if history is any judge, that no such appointment will be forthcoming from this attorney general.

Judge Engelhardt's opinion is lengthy, but one that should be required reading for every criminal defense attorney who practices in federal court and every DOJ prosecutor throughout the land. For now, I leave you with Judge Engelhardt's stirring words, taken from some of the closing paragraphs:

On July 12, 2010, the indictment in this case was announced with much fanfare, a major press conference provided over by U.S. Attorney General Eric Holder, and widespread media attention. On that occasion, a DOJ representative said that the indictments 'are a reminder that the Constitution and the rule of law do not take a holiday--even after a hurricane.' While quite true in every respect, the Court must remind the DOJ that the Code of Federal Regulations, and various Rules of Professional Responsibility, and ethics likewise do not take a holiday--even in a high-stakes criminal prosecution, and even in the anonymity of cyberspace. While fully appreciating the horrific events of September 4, 2005, and those who tragically sufferred as a result, the Court simply cannot allow the integrity of the justice system to become a casualty in a mere prosecutorial game of qualsiasi mezzo.
Some may consider the undersigned's view of the cited rules and regulations as atavistic; but courts can ignore this online 'secret' social media misconduct at their own peril. Indeed the time may soon come when, some day, some court may overlook, minimize, accept, or deem such prosecutorial misconduct harmless 'fun.' Today is not that day, and Section N of the United States District Court for the Eastern District of Louisiana is not that court.

Posted by: Thinkaboutit | Sep 18, 2013 10:31:48 PM

Oops, I "know," not "no."

Posted by: Thinkaboutit | Sep 18, 2013 10:33:27 PM

Who makes the choice about whether a defendant has Possession of or Receipt of CP?
I think it is the prosecutor's choice. How do they make that decision? If it is a first time offender why would they choose Receipt knowing that it is a 5 year mandatory minimum?

Posted by: athought | Sep 18, 2013 11:33:33 PM

Can't wait till some prosecuters son or daughter mistakenly downloads CP while trying to dowmload adult porn. Then will we hear them cry "mandatory minimums are too harsh".
Lawyers, especially prosecuters, need to get over themselves. While they think they may know what goes on in the courtroom, when it comes to the lives they destroy sending non-violent first-time offenders to prison, they know nothing!

Posted by: kat | Sep 19, 2013 8:20:23 AM

kat --

"Can't wait till some prosecuters son or daughter mistakenly downloads CP while trying to dowmload adult porn. Then will we hear them cry "mandatory minimums are too harsh". Lawyers, especially prosecuters, need to get over themselves."

And you need to get over the idea that someone who has eight zillion pictures of little girls being forced to submit to sex with animals is just some absent-minded teenager looking for pictures out of Playboy.

If it were your little girl in those pictures, you wouldn't be so blase' about it. But since it's someone else's kid, well, hey, look, other people's kids aren't as important as yours, right?

Posted by: Bill Otis | Sep 19, 2013 9:34:30 AM

Bill,

The average MM CP case is nothing like what you describe, even it if is not an accident. And I think it truly astonishing that a first-time offender can receive an MM of 5 years for a crime that essentially involves looking at something--a digital copy of an image. I think that were it not for the (largely irrational) hysteria about this subject, the penalties imposed for such an odd crime would be considered shocking. You can sit in your house one day, look at something for 5 minutes, and your life on this planet is done.

Babs

Posted by: Babs | Sep 19, 2013 10:49:39 AM

Babs/kat:

Bill has defined CP all by himself, bless his little mind. Just like our liars in Congress and the DOJ.

It ALL exclusively consists of infants to 10 year olds being FORCED to have sex with who knows what, don't you know.

That he will not even consider any other possibilities demonstrates the practical limitations of his mind, like the fact that receiving a teenager's "sexting" will get you the same penalty!

No. Bill, the all knowing arrogant Professor knows everything that can be!

Posted by: albeed | Sep 19, 2013 11:09:24 AM

Babs --

"The average MM CP case is nothing like what you describe..."

And it's not just two 15 year-old's sexting each other, is it -- like what the pro-CP crowd relentlessly describes.

And what in your view is the "average" CP case? How many images? Of what? How old are the kids? What are they doing? What are they doing consensually? How long has the viewer been at it?

I'd like some specifics on what you consider "average."

"...even it if is not an accident."

Thank you for the belated, if indirect, admission that it's not just someone innocently "researching" his "social studies project" who just adventitiously "stumbles across" CP.

"You can sit in your house one day, look at something for 5 minutes, and your life on this planet is done."

You really think your "average" defendant has done this for just 5 minutes? You know perfectly well that's hogwash, don't you?

Posted by: Bill Otis | Sep 19, 2013 11:37:29 AM

albeed --

"Bill has defined CP all by himself..."

I've given an example of it, yes.

"...bless his little mind."

I know, I know, albeed, you're way smarter than I, not to mention the rest of the world. You've been through that before.

"Just like our liars in Congress and the DOJ."

Yes, there are liars in DOJ and Congress. There are incomparably more on the Internet.

"It ALL exclusively consists of infants to 10 year olds being FORCED to have sex with who knows what, don't you know."

Not that you'd give a hoot if it did. Nor should such a thing be prosecuted, since prosecutors are government employees, and such employees are, as you have told us over and over, total dopes and parasites.

"Bill, the all knowing arrogant Professor knows everything that can be!"

You're too old by a considerable measure to have the manners of a poorly behaved sixth grader. Maybe you should clean it up, ya think?

Posted by: Bill Otis | Sep 19, 2013 11:46:40 AM

Babs stated: "You can sit in your house one day, look at something for 5 minutes, and your life on this planet is done."

I am more worried about the kid on the screen and her life on this planet being "done." The kid whose images, in this digital age, will never be off every hard drive or every screen even when she is an old woman.

I can only guess at why you are only worried about the diaper snipers in this scenario.

Posted by: TarlsQtr1 | Sep 19, 2013 11:57:39 AM

Bill:

Yes, I should and will clean it up, as should you.

I thought your reply to kat was mean-spirited and did not address the issues but followed the old LE/DOJ Party Line regarding CP.

kat has commented here before and CONSISTENTLY maintains that what happened to someone dear to her was an accident, not willful. But, you see, intent doesn't matter in these cases. Be afraid - yes, be VERY afraid.

Maybe, just maybe, she has an important point to make and we (and you) should listen!

Posted by: albeed | Sep 19, 2013 12:00:04 PM

TarlsQtr1 --

The pro-CP crowd of course wants to pretend that it's all teenagers sexting each other, and utterly refuses to give specifics about what's actually going on. They also want to pretend that it's an accidental, gosh-look-at-what-showed-up, one-shot-only sort of thing.

Good grief.

This is much like pretending that our prisons are bulging with people who just smoked a couple of joints, or that the increase in incarceration has contributed nothing or next to nothing to the massive decrease in crime.

Once liberals start down the path of dishonesty, there's no obvious place to stop.

Oh, by the way, did I tell you that, if you like your health insurance, you'll be able to keep it, no problem...........

Posted by: Bill Otis | Sep 19, 2013 12:11:49 PM

albeed,

I have worked with literally thousands of inmates, met their family members, etc. They almost all "consistently" maintained that they were innocent or it was an "accident." Many even convinced themselves into believing it. That argument is as unimpressive as they come.

Now, it is statistically possible that Kat's case was an accident. I readily admit that. However, the odds are stacked in a manner to invite a healthy dose of skepticism. If I were so obviously railroaded by "the system", I would WANT to share a the case number, transcripts, etc. Has that been offered? Even if it is the case, is such a statistical outlier relevant to the main fact, that such cases are not the "average?"

Posted by: TarlsQtr1 | Sep 19, 2013 12:22:13 PM

Bill,

Yep, make your case using any imminent mistakes (any system this large will make mistakes) in the system and pretend they are the norm.

It is thoroughly dishonest but even more effective.

Posted by: TarlsQtr1 | Sep 19, 2013 12:24:24 PM

Good Grief Bill:

OMG, the Pro-CP crowd, that's your response! You're the one who said it's all baby r-p-rs, not me. Did your alter ego show up just in time so you don't have to address any other possibility?

You use the term liberal incorrectly and toooo often as a poor man's excuse.

BTW, TQ, your term diaper s----r say a lot more about you than you know.

Off to Lunch. I'm finished on this thread!

Posted by: albeed | Sep 19, 2013 12:28:37 PM

Bill, Tarls-
I truly hope that neither you, nor anyone you love, ever does anything by mistake. You might just wake up to a new reality!

Posted by: kat | Sep 19, 2013 12:41:06 PM

kat --

"I truly hope that neither you, nor anyone you love, ever does anything by mistake. You might just wake up to a new reality!"

I've done thousands of things by mistake, and not one of them has involved my looking at or having any desire to look at a little girl getting raped or otherwise abused.

Among the other things I have not done by mistake are rob a bank, sell drugs, belt Granny over the head to get her purse, and all the rest of the stuff I routinely hear from the defense was just, uh, an aberrant episode of "poor judgment."

You don't need to worry about any "new reality." Just telling the truth about the present reality would be a good start.

Posted by: Bill Otis | Sep 19, 2013 12:51:12 PM

Bill-
Can't wait for Alzheimer's to kick in for you, no control of any mistakes you make, what will you do?
And, by the way, you make an awful lot of assumptions as to how or why CP ends up on someone's computer.
Trying to put this in the nicest way possible...
don't know you, but the words arrogant, self-righteous old coot come to mind.

Posted by: kat | Sep 19, 2013 1:10:10 PM

Hi Kat,

I have hundreds of members of my family, friends, co-workers, and acquaintances. None, to my knowledge, have ever made the "mistake" of downloading child porn, raping a kid, murdering, robbing, etc. and then getting caught for it.

The people who I know who HAVE committed crimes did not make mistakes. They made choices.

In other words, I will take my chances.

Posted by: TarlsQtr1 | Sep 19, 2013 1:16:42 PM

Some of the argument here about mandatory minimums seem to confuse the punishment that should be imposed for a wrongful conviction (correct answer is none) with the punishment that should be imposed for a person who actually has the mental state to commit a serious crime.

Given that the victim in child pornography is too young to consent, I believe that the manufacture and possession of child pornography is a serious crime. (If you are concerned about the Romeo-Juliet sexting situation, I am all ears for drafting an exception to exclude that situation.) Believing that possession of child pornography is a serious crime (and that the public agrees with me), I want to have the debate about the appropriate punishment for that crime. I do not want somebody to slip in a backdoor exception to that punishment in another part of the code that does not expressly indicate that it allows a lower punishment for possession of child pornography.

Posted by: tmm | Sep 19, 2013 1:21:39 PM

albeed,

Your insistence that the "average" person arrested for CP is anything but a lowlife says more about you than you know. Apparently you have never heard of a dysphemism.

The phrase is actually illustrative in a manner that you just cannot grasp. It actually delineates between true dirtbags (those with real kiddie porn and child molesters) from the teen sexters who could not be confused with being a "diaper sniper."

Your faux outrage is nonetheless amusing.

Posted by: TarlsQtr1 | Sep 19, 2013 1:26:21 PM

"You can sit in your house one day, look at something for 5 minutes, and your life on this planet is done."

You really think your "average" defendant has done this for just 5 minutes? You know perfectly well that's hogwash, don't you?

I did not say that was the avergae defendant, only that one can spend 5 minutes viewing images and one's life can then be totally destroyed. I do think that is astonishing. And yes, the federal government has prosecuted such people, and would not hesitate to. There is a reason some think the MMs too harsh, and want, through legislation, to give judges the ability to avoid them, just as prosecutors can.

Posted by: Babs | Sep 19, 2013 1:43:23 PM

kat --

"Can't wait for Alzheimer's to kick in for you, no control of any mistakes you make, what will you do?"

CP is not a strict liability crime, and not a single defendant I ever heard of has used Alzheimer's as a defense. Got any cases to cite where that's happened?

(And one must take note of how those allegedly speaking for "compassion" hope their adversaries get Alzheimer's. You liberals are so cute).

"And, by the way, you make an awful lot of assumptions as to how or why CP ends up on someone's computer."

I don't have a lot of experience with it, true. Why don't you tell us?

"Trying to put this in the nicest way possible...
don't know you, but the words arrogant, self-righteous old coot come to mind."

Guilty as to old coot. As to arrogant, I'd have a hard time beating your ally albeed, who tells us in every other post how smart he is. As to self-righteous, peter, with his braying, on-high lectures about how Amerika is CowboyLand for its use of the death penalty, outdoes virtually anyone here.

As to your position: The words complacent, indulgent, and snuggling with child molesters come to mind.

Posted by: Bill Otis | Sep 19, 2013 2:04:24 PM

Babs,

There are a LOT of things one can do for 5 minutes that will destroy his life.

Molest a kid, shoot a cop, rape the neighbor, smoke crack, rob a bank. In fact, most take far less than 5 minutes.

How long does one have to peer at some a$$hole raping a kid before it becomes worthy of ruining his life? 10 minutes? 1 hour? 1 month?

Why don't the other crimes I mentioned get the free five minute mulligan? Or do they?

Posted by: TarlsQtr1 | Sep 19, 2013 2:09:16 PM

Babs --

Since you didn't answer, I'll ask again:

What in your view is the "average" CP case? How many images? Of what? How old are the kids? What are they doing? What are they doing consensually? How long has the viewer been at it? I'd like some specifics on what you consider "average."

P.S. The idea that an exemption to MM's will be used just for those who looked for five minutes (assuming there are any such people) is a complete fraud. Indeed, Jack Weinstein in New York has already put aside an MM for someone he admitted in his interminable opinion did it for FOUR YEARS. Doug blogged about Weinstein's opus here, http://sentencing.typepad.com/sentencing_law_and_policy/2011/03/judge-weinstein-issues-420-page-tentative-opinion-indicating-views-on-unconstitutionality-of-5-year-.html

What you're trying to do is effectively de-criminalize CP because, so it certainly seems, you just don't see that much wrong with it.

Fine. Let a thousand flowers bloom. I just wish Leahy had called you as a witness at his hearing so we can see more of what's actually behind the movement to end MM's.

Posted by: Bill Otis | Sep 19, 2013 2:22:47 PM

Bill-
You said it all, you don't have alot of experience regarding how CP ends up on one's computer. Let me enlighten you, interested in antiques, type in snuff boxes, and you would be surprised at the amount of snuff films available. Interested in horticulture, type in hot boxes for orchid growing, you're a learned man, I don't have to tell you what websites automatically pop up, that have nothing to do with any horticulture I know of. Add to the equation people with not alot of computer experience who don't understand that "sharefiles" actually have to be shut off, and it is a recipe for disaster.
Do I have compassion for people like you, no, sorry. And you won't ever understand until it happens to you or someone you care about. I used to be just as closed minded as you, thought everyone in prison deserved to be there because the justice system was always right. Well, I learned that isn't the case. The US Sentencing Comission is rallying Congress to make changes in the MM, why, because they realize they made a mistake throwing first-time, non-violent offenders in prisons for 5-10. Mistakes happen. People make choices, yes, and sometimes they unfortunately make the wrong choice. Does that make them bad, no. A 5 second CP video equates to 75 pics. If you take a bathroom break while on your computer, before you know it, it's downloaded thousands of pics. Pics, incidentally that are probably twenty years old already. By all means, prosecute the producers of CP, prosecute the distributers and traffikers of CP, but prosecuting those who viewed twenty year old images, that are free and never taken down by the feds, for a few minutes, is ridiculous. Do I feel for the victims in the videos, sure, but the real culprit is the person who made the video and distributed it, not those who ran across it, free, on the internet.
And once again, watch those assumptions Bill, I am neither complacent nor indulgent regarding those who molest children, you wrongly assume all those who viewed CP are child molesters, when in fact, most of those first time offenders have never had any physical contact with children nor have they ever solicited any child in person or on the internet. Enough of a pissing contest with you, on to the next thread.

Posted by: kat | Sep 19, 2013 3:28:15 PM

Weak.

I just Googled "snuff boxes" and not one "snuff film" website came up on the first page (I did not check later pages).

Posted by: TarlsQtr1 | Sep 19, 2013 3:36:04 PM

"The pro-CP crowd of course wants to pretend that it's all teenagers sexting each other, and utterly refuses to give specifics about what's actually going on. They also want to pretend that it's an accidental, gosh-look-at-what-showed-up, one-shot-only sort of thing."

The pro-CP crowd? My husband is doing four years in fed for possession of CP and even HE's not pro CP. I don't know ANYONE who is pro CP--certainly not me. Looking at CP is wrong. Molesting children to create it is wrong. The difference is that one of those involves actual molestation. The other is looking at a digital image.

People doing time for CP possession or receipt did not molest the child but the time given to them is often longer than the sentences given to those who DID molest children.

If I look at a photo of a child who is a victim of a beating, am I guilty of the beating?

Society's attitudes toward CP are not likely to change even if it were decriminalized. I cannot think of another crime where looking at the evidence of the crime is also a crime.

Posted by: marie | Sep 19, 2013 7:00:43 PM

tq - weak, really??? please, you sound like the weak minded one now let's have those forensic guys check out that computer of yours

Posted by: walter | Sep 19, 2013 7:04:55 PM

Marie,

If you cannot see why victimizing some young kid over and over again with his or her image being spread around the internet (which can never be eradicated once it is up) is different than watching a video of a bank robbery, you are nearly as sick as the guy holding the camera.

Posted by: Tarlsqtr1 | Sep 20, 2013 12:16:50 AM

Marie,

Your problem is seeing a legitimate issue that molesters sometimes get a lesser sentence than CP possessors and believing that the only solution is to lessen the sentence for possessors.

Walter,

Put up or shut up. I will submit all of my PCs, laptops, tablets, and smartphones to a reputable computer forensic specialist of your choice to a search of child pornography with some caveats. 1. It is at your expense. 2. You do the same. 3. The results are posted here.

You need to stop projecting your disgusting habits onto others.

Posted by: Tarlsqtr1 | Sep 20, 2013 7:16:51 AM

TQ, I've heard that before. Are we victimizing the Nanking rape victims again by looking at their photos? Are we victimizing the murdered again by looking at photos of their bodies? No matter how much you want to think I do, I do not say it is okay to look at CP for entertainment. Just as it is not okay to look at a video of a beheading for entertainment, which is legal. A photo of a crime scene is exactly that. People are put in prison not for possessing/receiving/distributing a CP image so much as they are put in prison for what you imagine they are thinking or what you fear they want to do. We should not put people in prison for what goes on in their heads.

Posted by: marie | Sep 20, 2013 7:26:15 AM

Marie,

Not analogous. You need to compare apples to apples instead of apples to sofas.

Historical pictures are far different than CP. There are legitimate reasons to look at such photos.Please tell me that you can see the difference.

And "murdered people" are dead. They are victims no more.

The internet is ubiquitous. That a young woman who was victimized has to walk down the street the rest of her life and worry about being recognized is a damn shame. Your premise that these things are downloaded "accidentally" is absurd in almost every case. I am not going to "accidentally" download CP by going to the websites for ESPN, this blog, or Googling "snuff boxes." It will not even happen if you go to, for the lack of a better phrase, "mainstream porn websites". Such "accidents" happen when someone goes looking for it or at least willingly lives in the gray area of what is legal and illegal.

I am reminded of the stories I heard time after time when I taught in prison. Inmate A would tell me how he was innocent and got busted for his buddy's drugs and stolen car. Then we would dig deeper. I would find out that his friend picked him up in his new Cadillac Escalade. Then I would ask what the guy did for a living and he would say that he never had a "real job". The inmate was shocked, I mean SHOCKED, that they were pulled over, the car was stolen, and there was a gun and drugs under the seat.

Yep. He was "innocent."

Posted by: TarlsQtr1 | Sep 20, 2013 10:44:25 AM

Tarls,

Your bank robbery analogy is wide of the mark. There are hundreds of images on Youtube of people being beaten, humiliated, and victimized. The local news is also filled with such images (and it's a far stretch to argue that most of them are newsworthy or that, even if so, the images are necessary rather than a narrative). Marie is right to call attention to the oddity of a crime which, in large measure, consists of seeing an image of another crime having been committed.

I think there are legitimate reasons why one might not view that act of viewing as criminal or, or we do, view it far more leniently than others. For instance, if a government secret is unlawfully made public, we could punish anyone who repeated it as though they had divulged it in the first instance; we could punish them quite lightly, as more tenuously connected to the primary harm; or we could not punish them at all (I believe we do this latter option). That's not to say there is no harm in repetition. It is, instead, to say that this is a peculiar kind of crime for which there are reasonable arguments against criminalization, or against severe sentences.

A final note about decorum. A lot of those posting here have been are family members of CP offenders, and have endured much suffering. Have some compassion for them. Even if you think a person misguided or wrong, I don't think that accusing someone of being "as sick as..." is a decent thing to say. I would hope that EVERYONE here speaks civilly, no matter what their position.

Babs

Posted by: Babs | Sep 20, 2013 5:07:24 PM

How easy is it to get Child Pornography on your computer? Pretty easy. You probably wouldn't even know it was there unless you had a forensic exam.
Read this article from the BBC. "Website servers hacked to host child abuse images"
http://www.bbc.co.uk/news/uk-23551290

Posted by: athought | Sep 21, 2013 12:52:31 AM

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