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January 31, 2014

Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

The very serious question and inquiry in the title of this post is prompted by this notable recent post by Bill Otis that I just saw over at Crime & Consequences.  Bill's post is titled "Hundreds of Career Prosecutors Revolt Against Holder," and here is how the post gets started and its main points:

I spent 25 years [at DOJ], split between Main Justice in Washington and the US Attorney's Office.  Today something happened that, in my experience, is unprecedented.  Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.   If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate. That legislation would drastically cut back on mandatory minimum sentences for drug pushers -- not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs....

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer... [and] a letter [was sent by] the National Association of Assistant United States Attorneys [to] Mr. Holder three days ago....

[T]he fact that hundreds of career prosecutors -- not political appointees, but the men and women in US Attorney's Offices across the country hired on merit -- have revolted against the Attorney General is a development whose importance is difficult to overstate.

Career prosecutors, I can tell you from experience, are uncomfortable taking any role in what could be portrayed as a political issue. They are Republicans, Democrats and Independents, and generally have all the differences of opinion one would expect from a group so large and diverse. They view divorcing themselves from politics as essential. That they have spoken up here, and done so publicly, is a testament to how dreadfully damaging they know the Durbin-Lee bill would be.

I concur completely with Bill's claim in this post that it would be huge "Page One" news if, in fact, there were hundreds of federal prosecutors who "broke into open revolt against the Attorney General."  But I must question whether the mere fact that a letter signed by Robert Gay Guthrie, the President of the National Association of Assistant United States Attorneys, and sent to Attorney General Holder concerning these matters really is evidence of an "open revolt" by hundreds of federal prosecutors.

I believe the letter referenced by Bill Otis above is available at this link via the website of the National Association of Assistant United States Attorneys.  The only "open" name on the letter that I see is Robert Gay Guthrie.  The letter does use the term "we" consistently, so I surmise this letter represents the views of more than just Mr. Guthrie.  But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this two-page letter as proof of an on-going open revolt.  Indeed, the tone and text of the letter does not even strike me as a "revolt" as much as an expression of a viewpoint.

In addition, I cannot help but notice that a lot of the concepts (and even some phrases) in the NAAUSA letter sound like comments often made by Bill Otis here and in other writings he has done in support of the existing system of federal mandatory minimums.  I have heard rumors that Bill serves as a lobbyist for the National Association of Assistant United States Attorneys, and thus I must wonder aloud whether the only person really in "open revolt" right now against AG Holder is Bill Otis.  That said, if Bill helped ghost-write this letter for the National Association of Assistant United States Attorneys and Robert Gay Guthrie, even Bill's own efforts to revolt is not really all that "open."

I raise these matters not because I am troubled that Bill Otis and Robert Gay Guthrie and other past and present federal prosecutors might weigh in on this important on-going federal sentencing reform debate.  But I am truly puzzled by Bill's assertion that there is now an "open revolt against the Attorney General" involving hundreds of federal prosecutors and by his surprise that a simple two-page letter from NAAUSA has not become a "Page One story."

I hope that Bill will use the comments here to explain just why he sees this letter as evidence of an "open revolt" and perhaps he can also name some of the "hundreds" of federal prosecutors who he may know to be a formal part of this "open revolt."  I also hope, if in fact there is now an on-going "open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing" as Bill Otis asserts, that some current federal prosecutors (1) will openly state here or elsewhere that they signed off on this letter and did so as part of an effort to revolt against AG Holder, and (2) will openly discuss any other activities planned as part of this revolt.

I know Bill Otis feels very strongly that the current federal mandatory minimum sentencing provisions should not be reformed.  But, until reading Bill's post, I was not aware that "hundreds" of current federal prosecutors shared his perspective.  And, of course, yesterday 13 of 18 Senators on the Senate Judiciary Committee voted in favor of drug sentencing reform, and I now wonder if they were fully aware of what Bill calls an "open revolt against the Attorney General."  Finally, my own assessment of the prospects of the Smarter Sentencing Act becoming enacted law is sure to be impacted by the nature and dynamics of any on-going  "open revolt against the Attorney General" by hundreds of federal prosecutors.

A few recent related posts:

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I have this idea that neither BO or DB should be taken totally at face value here -- the tone of each should be taken with a grain of salt.

Posted by: Joe | Jan 31, 2014 5:48:18 PM

Not just Bill Otis supports the continuation of mandatory minimums, the greatest lawyer achievement of the 20th Century, saving the legal profession from a lynch mob, by dropping crime by 40% across the board in the 1990's. But, your humble ambassador from earth is a strong supporter of any law that reduces the discretion of pro-criminal lawyers and judges, and that increases incapacitation, the sole useful and mature goal of the criminal law, the only lawful and only useful one. As stated elsewhere, crack induced a huge wave of murder of competitors fighting over lucrative street corner territories. One dealer ran into the lobby of an apartment building with which I was familiar, and was shot repeatedly in front of the neighbors. No one testified out of fear. So your non-violent drug offenders may well be serial killers of competitors, as part of the business method.

Posted by: Supremacy Claus | Jan 31, 2014 7:26:15 PM

I recommend American Gangster, a movie based on a true story, with Denzel Washington's Academy award winning performance, if law students want to get a feel for conditions in our cities before Sentencing guidelines, and why public outrage and wrath resulted in these increases in incpacitation.

Posted by: Supremacy Claus | Jan 31, 2014 7:29:33 PM

"but the men and women in US Attorney's Offices across the country hired on merit"

Bwahahahaha.

I always love it when someone sneaks such subtle trolling into their faux outrage. That Bill, is a mighty fine piece of snark.

Posted by: Daniel | Jan 31, 2014 8:01:55 PM

I perused the NAAUSA website. There are 216 members who pipe in on their "discussion board." So, a couple of hundred as opposed to maybe 500o plus AUSA's.

The articulated NAAUSA position from the Sept/Oct newsletter on mandatory minimums is: "Critics of the proposals contend they will prompt at least three results. First, critics say the proposals will end the rule of law in sentencing. Second, they will likely increase crime. And third, they will increase litigation cost and litigiousness, and decrease the effectiveness of law enforcement and prosecutorial efforts. Obviously, if the minimum vanishes, the prosecutor’s power vanishes with it. That could lead to less cooperation, less effectiveness in stopping criminals, and therefore more crime victims. When one very important tool of investigations and prosecutions is eliminated, their effectiveness could decline. As a result, the government will have to invest the public’s scarce tax dollars into litigating cases—cases that, under present law, the defendant has a strong incentive to settle through a plea bargain, given the lure of a lighter sentence to which only the prosecutor holds the key. A better alternative is for Congress in certain instances to thoughtfully and selectively make a particular mandatory minimum lower." So they are worried about losing power. Maybe the people not government functionaries should wield the power.

Interestingly, the NAAUSA website indicates: "NAAUSA's survey on Mandatory Minimums generated hundreds of comments opposing proposed legislation to change Mandatory Minimums. A summary of the survey results will be published in the next issue of the NAAUSA News." That issue has not been published on the website. So we can't evaluate the "data" behind the Mr. Guthrie's letter



Posted by: ? | Jan 31, 2014 8:45:03 PM

Doug --

I am not speaking for NAAUSA and have no portfolio to do so. I am a member, however (membership is open to former AUSA's as well as currents), so, unlike you, I know something about how it works.

NAAUSA polled its membership (between 1200 and 1300, almost all currents) on the question whether present MM statutes should be preserved or changed in the ways now under consideration. Roughly 80%, probably slightly more if I'm remembering correctly, said they should be preserved. Many, many current AUSA's attached personal statements detailing how MM's have worked to break down dangerous drug gangs in cases they were familiar with.

The question was then considered whether the membership's views were so strong and so widely held that they should be communicated to the Attorney General. The answer was a resounding yes.

It is true that the letter is phrased in polite and respectful language, which is appropriate both given the high position of the Attorney General's Office, and the fact that, of course, he's the boss. But it is clear to anyone involved in the process, as it should be clear to you, even as a complete outsider, that the letter states strong and unambiguous opposition to the AG's stance. The letter was also furnished to members (of both parties) of the Senate Judiciary Committee and their staffs. It was, as is predictably the case in these matters, inserted into the Congressional Record. That makes it public, as anyone conversant with the ways of Congress would fully have expected.

But, hey, I'll tell ya what. If, as you seem to think, you know the views of AUSA's better than I do, and better than NAAUSA does -- a thought that's silly on its face, but what the heck -- then go right down to your local US Attorney's Office and take your own poll as to what the thoughts are about whether we should preserve the current system, or adopt legislation that would be a windfall to heroin dealers, et al., by slashing sentencing into little pieces.

I will happily state under oath that the letter states the views of the great majority of the membership of NAAUSA, and, very likely, of the great majority of all AUSA's. Will you state under oath to the contrary?

Didn't think so.

P.S. Should I tell the Columbus Office to expect you?

Posted by: Bill Otis | Jan 31, 2014 9:00:38 PM

You are recommending watching a movie based on a true story from the late 60's and early 70's when this is 2014. What inner city do you reside in where things are still like this today? "The lock them away, throw away the key" steamed from an era when crack was out of control and they didn't know what to do to curb drug crime. Yet, today they still haven't been able to get a hold of the so called "drug war" that they have been fighting for years. Of course, we know this unfairly targets minorities. So let's not change the mess that was create from years ago. Really?!

Posted by: Jubria | Jan 31, 2014 9:01:22 PM

Daniel - laughing about line AUSAs hired on merit? Go down to your nearest federal courthouse and watch regular line AUSAs putting on a federal trial or arguing a federal appeal. More often than not, they far outshine an average attorney.

Don't confuse the line AUSAs with the politically appointed U.S. Attorneys.

Posted by: Domino | Jan 31, 2014 9:19:34 PM

"But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this single two-page letter as proof of an on-going open revolt."

Mr. Berman - don't hold your breath waiting for line AUSAs to openly comment on this issue and go against their boss. Not gonna happen. Just to be clear, I believe that the survey that Bill mentioned in his previous post was sent to and completed by both member and non-member AUSAs of NAAUSA.

Posted by: Domino | Jan 31, 2014 9:25:50 PM

Domino --

Nailed it. I might note in addition that US Attorney's Offices get the pick of the litter. A zillion years ago when I was on the hiring committee at the USA for EDVA, we turned down several former Supreme Court clerks.

Since then, getting a job there has become even harder.

But don't take my word for it. Ask any of the AFPD's who occasionally comment here about whether it's easy or hard to get a job in the USAO, and about the kind of credentials an applicant must present even to get considered.

Posted by: Bill Otis | Jan 31, 2014 9:34:53 PM

"A zillion years ago when I was on the hiring committee at the USA for EDVA, we turned down several former Supreme Court clerks...."

Wow, that sounds more competitive than becoming a law professor.

Posted by: Steve | Jan 31, 2014 9:52:12 PM

Steve --

The competition for each right now is brutal. Partly, this is because the market is shrinking. Law school hiring is way down, and I think there's a freeze or quasi-freeze on hiring at the USAO's. I consider myself fortunate to have been successful at having helped to get some of my former students clerkships.

Posted by: Bill Otis | Jan 31, 2014 9:58:03 PM

Bill: Tell me if I understand you correctly. You were or they are now hiring only academic elites of the elites, with higher expectations than even the Supreme Court. Does that mean the current hires are academically perfect? To achieve perfection, doesn't one have to study 100 hours a week, to the exclusion of other human interests and activities? Have any ever had sex for example, with a human being?

Do were really want a set of nerds, possibly verging on Asperger's Syndrome, obsessively focusing on law books, rather than street savvy scoundrels and goof offs that know their customers because they hung out with them in their wasted youths?

Can these nerds handle Al Qaeda, when one tries to stick a pencil in their eye during interrogation, or will they run out screaming?

If this is true, it is highly disturbing news to an ordinary taxpayer like me. I think their ilk would be great at witch hunting sharp business practices, going after Martha Stewart and spending $2 million on a $40,000 beef and on lying to the FBI, but will not be able to realize the implication of many Arabs attending flight schools.

All polices, including the FBI are the agents of the prosecutor, and all federal crimes including 9/11 are the full responsibility of these PC, naive nerds.

I have proposed excluding the lawyer by an Amendment from all policy positions. That necessity is of an emergent nature when it comes to grads of law schools in the top tercile.

Posted by: Supremacy Claus | Jan 31, 2014 10:04:24 PM

Jubria: Please tell if you are young or old, and have direct memory of the crime situations in our cities, that motivated the development of the guidelines taking away judge discretion.

In recent surveys, posted on this blog, there were far more downward deviations than upward deviations. Prof. Berman likes the blood lead level theory. I like the obesity epidemic, marijuana, video addiction theory. There is no denying that when the guidelines reached the street level court, crime dropped 40%, as fast as you can snap your finger.

That, to me, was the greatest lawyer accomplishment of the 20th Century, and I am sincere in my congratulations and admiration of the profession. They showed they can move fast, they are effective if forced, that is why their all around failures are so frustrating and disappointing, very bright people in failure to generate a few lousy government jobs. Scalia led the charge against the guidelines after a brief interval of serious lawyer unemployment.

The drop in crime was not a coincidence after the mandatory guidelines. The changing of the guidelines to discretionary was not a coincidence after lawyer unemployment increased.

Posted by: Supremacy Claus | Jan 31, 2014 10:12:13 PM

Doug --

One additional point I neglected to mention.

It's passing curious that you find suspicious -- or say you find suspicious -- the fact that the NAAUSA letter is signed only by its president. You wonder whether this means that only the president (or the president and I) are really opposed to the AG's position supporting drug dealers.

How's that? When a letter to a cabinet officer is signed "only" by the president of the ACLU, or Common Cause, or the Chamber of Commerce, or FAMM, or the Teamsters, or the NACDL, have you ever wondered in print, or anywhere at all, whether it's JUST the president speaking?

Of course not. You know full well that, in those contexts as in this one, the president speaks in a representative capacity for the whole organization.

Your "wondering" about this utterly standard practice, and accompanying demand that I give the names of specific AUSA's who have the temerity to disagree with the Attorney General, is thus beyond curious.

Individual names would be highly useful, however, in one context. They would be useful as the predicate for retaliation against those individual AUSA's. A leery person might wonder if that's what lies behind your otherwise inexplicable demand for names.

P.S. To allay any fears, I, of course, would not be so leery, because I know that this administration would never have said anything like, "Don't think we're not keeping score, brother."

Posted by: Bill Otis | Jan 31, 2014 10:34:09 PM

It's a bit curious that AUSAs are suddenly so exercised about sentencing, given that I've heard numerous judges and probation officers complain that the government is often nowhere to be found when it comes time to deal with difficult sentencing issues, submitting cursory evidence and lazily "deferring to the court" (or the PO) when there's a need to figure out if something is a crime of violence or the like. The FDs have really run laps around DOJ when it comes to sentencing in the post-Booker era. It may be (to the extent this is a real phenomenon and not, as Doug suggests, an astroturf operation run from Otis's basement) that some AUSAs have come to realize that this weakness in handling contested sentencing issues means that man mins are all the more important to them.

Posted by: Jay | Jan 31, 2014 11:52:11 PM

Jay --

Better an astroturf operation run out of my basement than the meth lab run out of your client's.

But still, I'm sure that, as you say, you and your pals are soooooo much smarter than the prosecutors when it comes to sentencing issues.

That's why you win such a big majority of your sentencing appeals.

I mean, you DO win a majority of them, right? Against these klutzes?

Posted by: Bill Otis | Feb 1, 2014 12:07:54 AM

A Year After Release, Only 2 Percent of Three Strikers Charged With New Crimes

Posted by: George | Feb 1, 2014 1:25:47 AM

So Bill Otis wrote a misleading post on Crime & Consequences...

Nothing new or surprising in that. I don't understand why it merits a separate article.

Posted by: James | Feb 1, 2014 1:50:57 AM

James --

The board would be better positioned to assess your opinion if you would say what specific language in my entry you regard as misleading and what evidence you have for that view.

Otherwise, there is "nothing new or surprising" about some anonymous nobody just spitting. It happens here all the time.

Posted by: Bill Otis | Feb 1, 2014 3:23:09 AM

Thanks for elaborating, Bill. Please understand that the key concern for me that prompted this post is your assertion that there is now an "open revolt" that should be Page One news. And I asked for names of those involved in this revolt because it is not really "open" if nearly all the participants are hidden. (We all know the names of all the judges who vocally complain about the current federal drug MMs; I am interested in more information about prosecutors who you claim are so eager to preserve the current federal drug MMs.)

I do not doubt that some (large?) percentage of the 5000+ federal prosecutors reported in a survey that they do not want to see significant changes to existing MMs. But that is neither surprising nor a matter worth a Page One story. Is this fact alone evidence of an open revolt? (Also, I am inclined to guess that the survey was focused mostly on the Justice Safety Valve Act, which would have impacted all MMs; the Smarter Sentencing Act is only focused on drug MMs.)

Again, Bill, my concern here is with rhetoric and transparency. If you said many AUSAs disagree with AG Holder's claim that the CJ system is broken, that's fine. If you said many AUSAs reported a strong desire to preserve the federal sentencing status quo, fine. But saying there is an "open revolt" that should be Page One news suggests that this disagreement between some line prosecutors and AG Holder is at great risk of undermining the effective functioning of the Department of Justice for years to come.

I suspect if you took a poll of AUSAs and asked whether they thought crack-powder cocaine sentencing should be 1 to 1 (which the Obama Admin advocated for in 2009), some percentage would say no. Similarly, a poll of views on GTMO or Fast and Furious or NSA programming would likely lead to some percentage saying they disagree with what Main Justice has to say on these high-profile matters. But, again, I do not think that would be front page news indicating an "open revolt."

Finally, Bill, I remain curious to know if you played a role in the survey of prosecutors and/or the drafting of this letter. You often say you support greater transparency among prosecutors, so I am just eager for greater transparency concerning the survey and this letter from NAAUSA to AG Holder. Did the survey ask only about the Smarter Sentencing Act or also about the Justice Safety Valve Act? Did you play any role in the decision to draft and send this letter to AG Holder? Especially because you no longer work the DOJ, I see no clear reason why you would need to keep opaque your role in this process or your work with NAAUSA. Thanks.

Posted by: Doug B. | Feb 1, 2014 6:39:50 AM

I think we should also not fail to mention one of other biggest fallacies of Otis's post: merely because prosecutors oppose it does NOT in any way mean it "is a testament to how dreadfully damaging" it would be. It's that biased cockamamie thinking that gets us bad policy.

Posted by: Evan | Feb 1, 2014 9:36:17 AM

Prof. Berman. I hope you spend a few minutes in your classes telling students all prosecutors are at will employees. That they cannot oppose their boss who may decide policy for political purposes. What implication for discretion, for offers? I have often argued if the public feels oppressed by the hierarchy, the lawyer is doubly so, and the judge triply so. No civil service. No unions. That means, no pushback at all when the boss says drop this case. What is the reason for thispetty tyranny? Lawyers have allowed it.

Posted by: Supremacy Claus | Feb 1, 2014 1:30:58 PM

Doug --

1. You whistle past the fact that you openly questioned whether the NAAUSA letter faithfully represents the view of the majority of AUSA's. As "evidence" of this, you pointed to the fact that its letter to Holder was signed "only" by its president.

But it's not even remotely possible that you considered that suspicious. A man of your intelligence and experience knows that similar letters to the AG and other cabinet officers VIRTUALLY ALWAYS bear only the signature of the writing organization's president. There was absolutely nothing, zero, zip, nada, irregular in NAAUSA's letter following this standard practice.

But still you demanded that I give names of individual AUSA's. Why? If I did that, the ONLY purpose it would serve would be to facilitate retaliation against them by higher ups at DOJ.

2. "We all know the names of all the judges who vocally complain about the current federal drug MMs; I am interested in more information about prosecutors who you claim are so eager to preserve the current federal drug MMs."

Judges can't be fired, now can they? And they can't be reassigned to the office in Fargo. And they can't be transferred from the major felony unit to the prisoner petition section.

I repeat: The only reason there could be an interest in individual names is to facilitate retaliation against individual prosecutors. The question here is not about names; it's about issues.

3. What's actually going on here is that you and, to judge from the thread, many of your allies, want to trivialize the opposition of these hundreds of career prosecutors because you know that it's at least potentially a big political headache for drug dealers' new best friend, the S.1410-hugging Eric Holder.

The reason it's a potentially big headache for Holder isn't a bit hard to figure out. I explained it on C&C, in this entry: http://www.crimeandconsequences.com/crimblog/2014/01/not-a-peep.html#more

I'll just give you how I start out:

Suppose a politically appointed bigwig at the Justice Department made a decision on a major, hot-button issue that was unpopular with Liberal Orthodoxy, and did so contrary to the advice of, say, half a dozen of so of the career lawyers working under him? Do you think the mainstream media might do a story about that?

Let's get more specific. Suppose, say, Alberto Gonzales had gone before Congress to ask it to water down voting rights laws, contrary to the advice of dozens of career lawyers in the Civil Rights Division. Do you think the mainstream media might do a story about that?

Let me revise that question. Do you think the mainstream media would go ballistic, and that, say, the New York Times would run a ten-part series on how politics had overtaken sound, experienced judgment in running the Justice Department?

One more question.

When Eric Holder endorses legislation whose principal beneficiaries will be drug pushers -- and we're talking here not just about pot, but about the mortally dangerous drugs like heroin, meth, PCP and Ecstasy -- and does so contrary to the views, not of dozens, but of hundreds of career lawyers, do you think the mainstream media would do a story about that? ###


So, yes, I understand why the Attorney General's politically astute allies, like (in this instance) a distinguished professor at the Moritz College of Law, would want to undermine the bona fides of NAAUSA's opposition.

4. "I do not doubt that some (large?) percentage of the 5000+ federal prosecutors reported in a survey that they do not want to see significant changes to existing MMs."

Thank you for conceding that there are, as I said, hundreds of career lawyers who oppose the AG's pro-druggie stance. Glad we've laid that one to rest.

5. The revolt is "open" because NAAUSA sent a copy of its letter to Holder to the members of the SJC, knowing that it was virtually certain to become public at the SJC's well-reported hearing on Thursday.

It would have been possible, of course, to get right in the AG's face by holding a press conference, but these matters require a degree of judgment and restraint. Such a move could have been seen as overly aggressive, disrespectful and premature.

That AUSA's have some manners and still respect the Attorney General, while publicly and strongly disagreeing with him, is no evidence that the revolt is anything but open. As I say, you are welcome to visit your local USAO to assess it for yourself. Do you plan to?

6. I am, by a huge measure, the most transparent commenter on this blog. Unlike the numerous anonymous guttersnipes who comment here -- some of them on this very thread -- I use my real name and give my educational and professional background. I have often given the citations to cases I argued.

In exchange for this transparency -- of which you now want more -- I have been called egomaniacal, self-absorbed, imperious, narcissistic, and a few other choice adjectives.

While I believe in transparency, apparently to a far greater extent than the huge majority of your audience, I also believe in other important values. People from here and there, some inside the Beltway and some not, call me from time to time to seek my assistance, or advice with some project they're handling. When they do, they expect that I will use discretion in the amount I reveal to others, which amount generally varies between approximately zero and exactly zero.

If I start blabbing the details about who I talk to and the advice I give, I will lose, or more correctly forfeit, the trust of those who seek my help. Since I give extracurricular assistance only to people I think are the good guys, I never charge for it and I never talk about it (except to my wife).

I will thus say only that I am not a lobbyist for anyone. I am, however, an eager practitioner of First Amendment rights, and am grateful, as ever, that you give me the opportunity to exercise them on your blog.


Posted by: Bill Otis | Feb 1, 2014 1:54:17 PM

Doug:

Love the debate going on between you and Bill Otis. This is among the many reasons I love your blog. Suggest you and Bill have some sort of Lincoln-Douglas type debate on the merits of the new clemency “policy” (if that’s what it is). The media would LOVE that. Both of you are engaging and passionate, but more importantly, it would give the public exposure to all the nuances of this extremely important seismic shift in incarceration policy. What is going on here between you both desperately needs to be aired before a far wider audience.

But rather than hold it in a typical academic setting, would be great theater (and quite appropriate) to hold one in a federal prison. (I would suggest FCI-Elkton, a very nice, clean facility as far as federal prisons go).

-Mark

Posted by: Mark H. Allenbaugh | Feb 1, 2014 2:36:02 PM

Mark --

Thanks for your observations.

I have a couple of my own. First, I don't think there's so much a seismic shift going on as there is (1) simply that we have a Democratic AG, for the moment; and (2) some of the Tea Party people are at this point so distrustful of government generally that it has spilled over into distrust of MM's.

This too shall pass, as they say. Politics in this town comes in cycles.

Second, rather than having the debate in a prison, let's have it in the Boston Common, which can attract a more numerous and, uh, diverse audience. The added bonus is that it's reasonably near the Boston Marathon finish line, which might remind folks that criminals occasionally have some unfortunate anti-social tendencies.

Posted by: Bill Otis | Feb 1, 2014 2:54:53 PM

Bill, my chief interest is to assess whether you are accurately representing the views of hundreds of prosecutors. Given how you misunderstood and misrepresented my views in an earlier thread, and how misrepresentation in this setting could be so important, I am just looking for clarity and transparency. Will you or other make public for me or other to see the survey you purport to represent?

In addition, will you confirm that you played a role in the drafting of the letters sent to AG Holder and the SJC?

Posted by: Doug B. | Feb 1, 2014 3:14:54 PM

Doug --

"Bill, my chief interest is to assess whether you are accurately representing the views of hundreds of prosecutors."

I don't think so. It's to belittle the importance of hundreds of career attorneys' publicly opposing the AG's policy, and to divert attention onto me personally.

If Michael Mukasey had gone before Congress to recommend higher drug penalties, and your side got hold of a memo from even THREE career people who opposed it, you and like-minded members of the media would go to town about how DOJ was being taken over by a political agenda and disregarding the impartial judgment of careerists.

As I've said before, I am not a lobbyist or spokesman for NAAUSA. If you want information about the details of their survey, you'll have to ask them directly.

"Given how you misunderstood and misrepresented my views in an earlier thread, and how misrepresentation in this setting could be so important, I am just looking for clarity and transparency."

No, you're looking for me to break faith with people who properly expect me to keep what they talk to me about to myself. This is not exactly an unknown duty for lawyers, and I am going to honor it.

(I do, however, agree that misrepresentation would be important, which is why I said this in my first response to you: "I will happily state under oath that the letter states the views of the great majority of the membership of NAAUSA, and, very likely, of the great majority of all [5200] AUSA's. Will you state under oath to the contrary?). Will you?

"In addition, will you confirm that you played a role in the drafting of the letters sent to AG Holder and the SJC?"

I don't think you're hearing me. I do not break confidences. But I'll be happy to say this: Assuming arguendo that people in NAAUSA have read some of the numerous things I've said about MM's in public debates with you; in USA Today, US News & World Report, and the LA Daily Journal; on this blog and on C&C; on CNN, MSNBC's Hardball, and PBS -- assuming that, I would be honored if they asked me for advice and repeated some of what I have said. And I would give them advice, you bet, just as I have advised many others -- some who agree with me and some who don't but think I'm a good advocate -- since I retired from the USAO 15 years ago.

You once (at least once, it could be more) did a tape for the NACDL. That you did so does not in any way impeach the authenticity of that organization's views, nor does it make them merely your mouthpiece. It means that they regard you as an able advocate and want your help in best presenting their beliefs.

Have I ever implied there's anything wrong or sneaky about that? Of course not. That's because there isn't.


Posted by: Bill Otis | Feb 1, 2014 4:08:26 PM

Bill, I will do a separate post to clarify and highlight that I do not seek to "belittle the importance of hundreds of career attorneys' publicly opposing the AG's policy." My primary goal is to understand the background and basis for the representation you made about an "open revolt" and your concerns about the lack of publicity concerning this "revolt."

I will plan to ask NAAUSA directly about these matters, and I do not want you to break faith with anyone. I just want an understanding of whether current active prosecutors or just a former prosecutors like you are most troubled by what AG Holder is advocating and the sentencing reform making its way through Congress. Intriguingly, I have seen very few persons other than you, Bill, aggressively defend the federal sentencing status quo. It may be that hundred of current prosecutors want to do so, but are unable to speak up except via NAAUSA. That is what I am trying to understand, and along the way I find it notable and significant that much of the rhetoric and language being used by NAAUSA is what you --- and seemingly only you --- have been saying publicly in other settings.

I am not trying to "impeach" anyone or any organization, and this is not about who is one whose "side." For me, this is about getting a full understanding of various positions of various informed actors about a very important issue concerning federal sentencing reform, and I am on the "side" of robust open debate concerning ideas and perspectives. I apologize if you think I am trying to make this about you in any way, and I will highlight this reality in a coming post in which I will try extra hard to make this just about the issues which we both agree are very important.

Posted by: Doug B. | Feb 1, 2014 4:38:45 PM

Even for Mr. Otis, it's rather breathtaking to claim signing on to a letter — without, you know, actually signing on to it — "exemplifies guts." It strikes me as quite the opposite.

On a related note: If hundreds of AUSAs had signed on to a letter questioning the wisdom of mandatory minimums while John Ashcroft was Attorney General, I wonder if Bill would have found that act quite as praiseworthy.


Posted by: tyler | Feb 1, 2014 4:52:45 PM

Bill, in all seriousness, I suspect part of Doug's doubts about there being an "open revolt" stem from actually knowing line AUSAs. In my experience, most are small c-conservatives, but not nearly as ideological or partisan on these issues as you, with due respect, are. Given the modesty and bipartisan nature of this bill, I'm just skeptical that opposition is actually so widespread. I mean, the characterization of AUSAs as this ideological rigid bloc is belied by the number who leave to become defense attorneys, and is also undercut by the very same super-high qualifications you rightly note are now required for the job. Those standards are fine, but the result is that USAOs younger ranks are largely career-ladder climbers there for a few years, not the semi-mythical crusty "career prosecutor" who is implacably opposed to all leniency. IOW, times change, even at DOJ.

Posted by: Jay | Feb 1, 2014 5:42:26 PM

While Jay is correct that most AUSAs are small c conservatives and the career prosecutor is a rarity in the federal system, my direct experience with federal prosecutors over 20 plus years tells me that they strongly believe in the importance of mandatory minimums in "appropriate" cases. I emphasize appropriate cases because the characterization of mandatory minimums being applied to non-violent, first offenders is largely mythical. Violence is part and parcel of drug dealing-crack cocaine distribution in particular. The violent acts may not have been charged as part of the conspiracy or may not have resulted in a count of conviction. Rest assured it is implicit in the conduct of most all drug conspirators and is routinely present in the prior criminal history of most drug offenders.

Posted by: mjs | Feb 1, 2014 7:20:38 PM

Jay --

"Bill, in all seriousness, I suspect part of Doug's doubts about there being an "open revolt" stem from actually knowing line AUSAs."

I suppose it's possible that Doug and/or you, know as many AUSA's as I do, but it's pretty unlikely.

"In my experience, most are small c-conservatives, but not nearly as ideological or partisan on these issues as you, with due respect, are."

It is exactly my point that the MM question is not partisan with AUSA's. As I noted in one of my entries on C&C, "Career DOJ lawyers come in all flavors -- Republican, Democratic and Independent; conservative, liberal and moderate. Some have a few years' experience, and some have many. For 13 of the last 21 years, they have been hired by Democratic administrations. When hundreds of them take the risks of speaking out against the Attorney General on a matter this important, that is a news story."

This is not a partisan issue with AUSA's anymore than it is with defense counsel. It's about their everyday jobs.

"Given the modesty and bipartisan nature of this bill, I'm just skeptical that opposition is actually so widespread."

Slashing MM's by half is anything but modest. If there were a bill to INCREASE them by half, would you say it was "modest?" And the Republicans supporting the bill are mostly of the Tea Party variety. My experience with AUSA's is that almost none of them share the Tea Party's bone-deep hostility to government.

"I mean, the characterization of AUSAs as this ideological rigid bloc is belied by the number who leave to become defense attorneys..."

As noted above, I never characterized them AUSA's as such a bloc. Indeed I said exactly the opposite. This is not an ideological question as ordinarily understood. It has almost nothing to do with the overarching issues that separate Left and Right. It has to do with the relatively tiny (but very important to everyday practitioners of federal criminal law) question of whether we're going to preserve, or significantly water down, sentences that prosecutors overwhelmingly believe have helped reduce crime.

"USAOs younger ranks are largely career-ladder climbers there for a few years, not the semi-mythical crusty "career prosecutor" who is implacably opposed to all leniency. IOW, times change, even at DOJ."

In my time in the USAO, the majority were there for exactly the reasons you note -- to spend a few years learning how it all works, get something useful on your resume', then go make actual money.

But people partake of the ethos of the organizations to which they work (as they should -- enthusiasm for what you do is a good thing).

I believe I have a pretty good idea of how they AUSA's think, having been one for a long time, and keeping in occasional contact with my old buddies still in the Office. As I said to Doug, I would be perfectly willing to declare under oath that the great majority oppose the AG's endorsement of the Lee-Durbin bill.

Posted by: Bill Otis | Feb 1, 2014 8:44:39 PM

Bill:
Please elaborate on how winning sentencing appeals is a valid proxy for being on the right side of sentencing issues. (Your submission at Posted by: Bill Otis | Feb 1, 2014 12:07:54 AM).
Isn't a better measure of being on the right side of sentencing issues, how many times a District Judge sides with one's position concerning a unique fact pattern and unique defendant?
For 27 years, I been getting district judges to rely and act on the issues I raise and I have never had an AUSA appeal a sentence the AUSA disagreed with. In fact, I have won a few sentencing appeals where the District Judge didn't go along with my plan. But that was because the DJ decision was an outlier -- not mainstream. I, without a doubt, understand both the standard and scope of review on appeal. That why I want to discuss the validity of your measurement of "success."
Please elaborate.

Simply another "anonymous guttersnipe" trying to understand how to measure success.

Posted by: ? | Feb 1, 2014 8:59:57 PM

You know, I don't personally think it matters of 100% of AUSAs were opposed to a change if a policy was a bad policy. That's why the Attorney General has to make the hard decisions. A prosecutor is an adversarial position so of course there would be some who object to limits on their advantage, but that's hardly dispositive.

Posted by: Erik M | Feb 2, 2014 12:40:34 AM

Erik M --

Of course the opposition of career people is not dispositive on the substantive question. That's not the point in this segment of the dispute. Here's the point:

Suppose Alberto Gonzales had gone before Congress to ask it to water down voting rights laws, contrary to the advice of dozens of career lawyers in the Civil Rights Division. The NYT gets ahold of their memo to Gonzales explaining why he's on the wrong track.

There is no chance, as in zero, that the headline in the NYT the next day is anything other than, "Reckless Political Agenda at DOJ Trumps Seasoned Judgment of Professionals."

Haven't we all seen that time and again? But in this instance, when the AG goes against the advice, not of dozens, but of hundreds of career people, the press is ever so quiet.

Whatever happened to all that career professionalism the press told us so much about when Ashcroft and Gonzales were at the helm?

Posted by: Bill Otis | Feb 2, 2014 3:52:09 AM

For your analogy to be spot on, Bill, you would need duly elected Rs and some of the most liberal Ds to be on the same page with AG Gonzales urging Congress to pass a bi-partisan bill seeking "to water down voting rights laws, contrary to the advice of dozens of career lawyers in the Civil Rights Division." That is the big difference here: your views and those expressed by NAAUSA seem to be the significant outliers here, not the views of AG Holder.

Indeed, what is really a big shame is the failure of much media --- traditional or new --- to sufficiently highlight and praise the Tea Party folks urging drug war reforms here and elsewhere. Though you call these Tea Party elected officials "useful idoits," I suspect others would have a different view. Indeed, to the extent we are focused on the media, I keep wondering why I have not yet seen any covered of the SSA on Fox News. Fox is (wrongly) accused of being a far-right-wing mouthpiece, but they are notably silent when the far-right supports sentencing reform. What gives?

Posted by: Doug B. | Feb 2, 2014 10:05:53 AM

Doug --

"For your analogy to be spot on, Bill, you would need duly elected Rs and some of the most liberal Ds to be on the same page with AG Gonzales urging Congress to pass a bi-partisan bill seeking "to water down voting rights laws, contrary to the advice of dozens of career lawyers in the Civil Rights Division." That is the big difference here: your views and those expressed by NAAUSA seem to be the significant outliers here, not the views of AG Holder."

Wrongo.

The question is not whether the AG's stance will be shared by some significant number of members of Congress. That will almost always be the case, as it is here. The AG is shrewd; he's striking while the iron is hot (to wit, while the D's still control the Senate).

The question, instead, is whether, when the AG takes a position at odds with the advice of career people, is that a big news story?

It was certainly big enough when this happened in the last administration.

So why the change now?

We both know the answer to that. It's that the great majority of the media want more voting rights and less incarceration. That's the reason, and the only reason, that when a relative handful of career people disagreed with Gonzalez or Ashcroft, outraged stories appeared on all the major networks about how "Reckless Political Agenda at DOJ Tramples Seasoned Judgment of Professionals" -- but now, the opposition of HUNDREDS of those same professionals gets barely a whisper.

Or, to be more succinct about it: When the media sees a story that will advance its own biases, the story gets hyped, and when it sees a story that will harm its biases, the story gets buried.

Posted by: Bill Otis | Feb 2, 2014 2:25:18 PM

I agree with you 100%, Bill, that when "the media sees a story that will advance its own biases, the story gets hyped, and when it sees a story that will harm its biases, the story gets buried." That is why I wonder about why Fox News is not hyping Tea Party support for sentencing reforms -- nor have I seen other usual GOP-supporting media stars like Limbaugh or Hannity talking one whit about the modern drug war and various on-going effort to scale back this part of government.

My conclusion, like yours, is that the media is biased. However the real bias is toward big government by all media --- in part because big government makes their jobs easier and cheaper --- and that more broadly explains why it is hard to find any mention of any aspect of the SSA in any mainstream media outlets, let alone one that drills down into the opaque views of NAAUSA. And that is why I can fins 100s of stories about the government's latest report on the Keystone pipeline, but no coverage of the US Sentencing Commission's reports about problems with the drug guidelines. And so it goes.

Posted by: Doug B. | Feb 2, 2014 4:34:54 PM

Until we can constitutionally separate punishment (incarceration) and rehabilitation (reintegration) into two separate entities, and not have to split both within a finite sentencing framework, we will always have this never-ending argument.

Posted by: Eric Knight | Feb 2, 2014 10:20:50 PM

I am 37 and my age has nothing to do with where I have been in my life. I have lived in high crime areas. I have seen people killed over territorial areas for profit due to drugs. I have known people from both sides of this drug war. I know of people that have never had a criminal history in their lives and are doing 25 years, because they did something stupid trying to pay for school and take care of their family. I have had and still have family member that are addicts. I have been one of the fortunate ones to make it out of this with an education. Everyone has their opinion on this, but if you have never walk a step in those shoes, you wouldn't understand. So yes, I take offense when being asked to watch a movie that keeps defining these outdated guidelines.

Posted by: Jubria | Feb 2, 2014 11:53:55 PM

Jubria: I lived in Washington Heights, near the location of the movie, had a half dozen black guys in leather coats just standing at the entrance of the building across the street. Had one of them chased into my lobby screaming for his life, and shot many times in front of silent neighbors. Any one trying to chase them, scare this human vermin a little, they were the ones the police went after. Then a lawyer protected criminal did something to a member of my family which I will not discuss in public.

That is why I want them all dead at the earliest age possible. These criminals had the full protection of the lawyer traitor. The tiniest safety measure, mandatory minimums, removing the discretion of pro-criminal judges, that dropped crime 40% across the board, has to be reversed, with Scalia, leading the charge of the traitors to our country.

Stop being a race traitor. Stop voting for the Democratic Party, whose terror branch, the KKK killed 5000 people over 100 years. Now the terror arm, the feminist lawyer, kills an excess of 5000 black murder victims each year for decades, having become 100 times more lethal than the Klan. The Klan was not only an arm of the Democratic Party, it was founded as a fraternal organization by a judge and 2 lawyers. How could they lynch a person in front of 100's of spectators and not face prosecution? They had immunity. Did you know they lynched rich blacks and Jews and took their assets? They had a business plan, similar to that of the lawyer profession of today.

All race whores are traitors to their race. They go after the police and white power elite not to protect black victims, but to protect black criminals. They are enabled by Ivy indoctrinated rent seeking lawyers. These internal enemies have fully infiltrated our government and make 99% of the policy decisions.

Posted by: Supremacy Claus | Feb 3, 2014 12:23:07 AM

To take just one example, when the AMA & ABA filed briefs supporting the juvenile defendant in Miller v. Alabama, should we have assumed that all doctors and lawyers -- or even a majority, or a substantial plurality -- shared the opinions expressed in those briefs?

Similarly, do we assume the partisan positions taken by labor leaders or heads of state education associations really reflect the views of a majority of steel workers/airline pilots/teachers?

Generally, I assume unless proven otherwise that those groups are headed by political/policy elites who are more or less out of touch with the opinions of the dues-paying rank and file. (Expressly partisan/issue-oriented groups like the ACLU, FAMM, Operation Rescue are a bit different.)

Now, it may be that the NAAUSA leadership is more in line with its members than other organizations. And perhaps the survey referenced in the letter is a meaningful measure of that (although we all know how easy it is to manipulate survey results). But it is silly to say that just because the president of a professional association has signed a letter, we should assume that the majority of the membership would endorse those views.

Just as it is silly to characterize individuals who have are unnamed and incapable of being individually identified as "openly" opposing anything.

And just as it is silly to expect to have your cake and eat it too in the sense of attempting to hide behind the confidentiality of counsel provided to an advocacy group, while also injecting yourself into the debate as one of the main public proponents of the group's position. (When doing consulting/policy work, I always thought I had to make a choice fairly early on as to whether I would be acting as confidential counsel or as part of the public advocacy team. It never occurred to me I could choose both, as the occasion suited, and just put my rhetorical bluster on blast mode whenever anyone tried to call me on it.)

I don't have time to circle back and defend myself against the non-responsive attacks against my anonymity, etc., so I will just say judge for yourself whether these points receive any persuasive, substantive rebuttal (rather than the typical - and masterful - rhetorical smokescreens).

Posted by: anon | Feb 3, 2014 11:29:05 AM

"Unlike the numerous anonymous guttersnipes who comment here..."

Such an elitest statement, take your pompous opinions somewhere else if you can't handle the heat jerk.
If you don't have the integrity to stand up for what you helped write or at least acknowledge you had no input on it, in answer to a direct question, it's not worth the paper it's written on and your much worse than the so-called anonymous political opinion posters that you so eloquently like to call "guttersnipes". For someone with such a high regard themself and their accomplishments you sound like a small person indeed.

Posted by: Victor Ramirez | Feb 3, 2014 6:32:48 PM

Victor Ramirez --

"Such an elitest statement, take your pompous opinions somewhere else if you can't handle the heat jerk."

WOW! You are soooooo macho. From a distance.

"If you don't have the integrity to stand up for what you helped write or at least acknowledge you had no input on it, in answer to a direct question, it's not worth the paper it's written on..."

Whether the arguments set forth in NAAUSA's letter to the Attorney General are "worth the paper" they are written on depends on their content, which you don't mention.

As to my integrity, if I had the approbation of people like you, I'd worry.

"For someone with such a high regard themself and their accomplishments you sound like a small person indeed."

I AM small. 5'7", to be exact.

As to my accomplishments, such as they may be, I noted them in part in response to your fellow anonymous guttersnipe's remarks that I am, among a number other unpleasant things, a useless idiot.

I haven't decided whether that's better or worse than a being called a blood-luster or a Nazi or the other stuff you people think constitutes "argument." Do you have an opinion?

Posted by: Bill Otis | Feb 3, 2014 10:38:14 PM

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