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December 3, 2013

Calling out DOJ for talking the talk, but not walking the walk, on mandatory minimums

Andrew Cohen has this lengthy and effective new piece via The Atlantic highlighting a case in the SCOTUS cert pool that highlights the ways federal prosecutors are able to use mandatory minimums to force judges to impose lengthy prison terms for drug offenders. The piece's headline and sub-head highlight its themes: "Attorney General Mean What He Says About Sentencing Reform?: Eric Holder has spent a great deal of time and energy lately advocating for reforms to mandatory minimum sentences. So why is the federal government trying to stiff Clarvee Gomez in court?".  And here is how piece starts and concludes:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.

In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).

The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers....

The government's positions in this case — both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys — are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer....

Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so — or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time — and this is as good a case as any to start.

December 3, 2013 at 10:28 AM | Permalink


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There's some good structural arguments related to the role of the Grand Jury that would appeal to Justice Scalia. It's an interesting argument overall. The only trick is Booker. The trial court didn't sentence him to a ten year minimum mandatory, he sentenced him to a ten year sentence. I think it's possible to say he abused his discretion, but that isn't the same thing as saying there was constitutional error in not having a jury find the facts.

I agree that the DOJ should confess error to be consistent with their stated policies. Although is it up to them or the SG now?

Posted by: Erik M | Dec 3, 2013 11:24:36 AM

Re Erik M.'s comment above: The district judge sentenced Gomez to a ten-year mandatory, even though he was only charged with a five-year in the indictment (and even though the jury found only a drug quantity sufficient to support a five-year mandatory as well). It wasn't a guideline / Booker sentence. There's no dispute that the sentence was erroneous -- the only issue is whether the error was "harmless."

Posted by: Correction | Dec 3, 2013 11:43:21 AM

Thanks for the correction. I guess that makes me just more confused. How can an illegal sentence be harmless? At a minimum, assuming harmless error could apply, how can it be harmless beyond a reasonable doubt? I guess I assumed some things that weren't there because it's hard to make sense of the case otherwise.

Posted by: Erik M | Dec 3, 2013 3:31:53 PM

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