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February 6, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 at 06:32 PM | Permalink

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Doug --

"An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it...."

In other words, approximately 400 AUSA's oppose the Smarter Sentencing Act.

Thank you. Perhaps you will now retract your all-but-direct accusation a few days ago that it's just Gay Guthrie and me.

I said on Crime and Consequences that it's hundreds of career people, and it is in fact hundreds. It may be thousands: If more than 60% of those who responded oppose it, then, extrapolating that percentage to the approximately 5300 AUSA's overall, close to 3000, or possibly more than 3000, oppose it.

If hundreds or possibly thousands of career people at the Justice Department had, say, opposed a plan by Alberto Gonzales to water down voting rights statutes, do you think maybe more than just HuffPo would be covering that?

Do you think it might get coverage in the NYT, the LAT, and the WaPo?

And they wouldn't have been just covering it. They would have had lead editorials calling for Gonzales's impeachment.

But the mainstream media remain all but silent about the scale of the opposition by career people to Holder's campaign to slash sentences for drug pushers.

Now ain't that somethin'?

Posted by: Bill Otis | Feb 6, 2014 8:02:49 PM

Isn't the more remarkable thing that, even taking this organization's claims at face value, ONLY 60% of its already self-selected membership (20% of all AUSAs) opposes legislation that is intended to lessen their power in litigation? I mean, I doubt organizations composed of civil defense lawyers are able to muster only 60% support for tort reform, or that only 60% of NACDL supports eliminating man mins. Obviously lawyers will normally be expected to oppose legislation that disfavors the position they routinely take in litigation. (And of course, Bill routinely takes to this blog to denigrate the morality and motives of criminal defense lawyers writ large, using just this sort of argument.) So why are the views of AUSAs imbued with some kind of wise omniscience that no other group of attorneys gets?

Posted by: Jay | Feb 6, 2014 8:23:06 PM

(Another group AUSAs are apparently set aside from is all other government employees -- can you imagine any other group of bureaucrats who would get so much deference for their self-interested turf-defending?)

Posted by: Jay | Feb 6, 2014 8:27:28 PM

Jay --

"Isn't the more remarkable thing that, even taking this organization's claims at face value, ONLY 60% of its already self-selected membership (20% of all AUSAs) opposes legislation that is intended to lessen their power in litigation?"

It's intended to do what it actually does, to wit, dramatically slash the sentences of drug pushers.

I continue to be amazed about how lawyers think it's all about them and their power. NEWSFLASH: It's about the parties, not the lawyers.

"Bill routinely takes to this blog to denigrate the morality and motives of criminal defense lawyers writ large, using just this sort of argument."

I don't think much of lawyers who use deceit and intentionally misleading tactics, you bet. Do you? And are you telling me that defense lawyers won't use such tactics when they think it will serve the defendant?

"So why are the views of AUSAs imbued with some kind of wise omniscience that no other group of attorneys gets?"

Did anyone say they're omniscient? Where was that? Could you quote it? Or is this just more defense lawyer deceit?

Posted by: Bill Otis | Feb 6, 2014 8:46:20 PM

Bill, I want and need to see the survey instrument and results before saying anything conclusively about the survey and the results. I want to see if the SSA was the focal point of the survey and if the survey accurately indicated that the SSA only lowers MMs, not eliminates them. If you can get me the survey and results, great. I have asked NAAUSA and gotten no response.

I have said before and will say again that I know federal prosecutors --- including Holder --- want to keep MMs. But do they all openly oppose reducing the MMs for nonviolent drug offenders? Again, I will need to see the survey and the results myself before I can come to a conclusion.

Until NAAUSA makes the survey and results available for review, it is hard to fault the media for failing to report what it cannot assess. Plus, how can or should I be confident the 12% of AUSAs responding are representative?

Again, I want to provide accurate info without rhetoric or spin. But I am finding that very are to do in this context. Can you help me get access to this info?

Posted by: Doug B. | Feb 6, 2014 9:38:51 PM

And one correction: the SSA is not a plan by Holder. It is a bipartisan reform bill Holder supports. That lots of AUSAs do not support the SSA is a story I want to cover, but doing so continues to be a challenge unless and until I get info from you or NAAUSA.

Posted by: Doug B. | Feb 6, 2014 9:41:42 PM

An awful lot of huffing and puffing to avoid my pretty simple point, Bill. No one should be surprised when people support what's in their institutional interest. Lawyers aren't immune from that. Even AUSAs aren't immune from it. Of course you're right that this interest has a lot to do with the client (hence why civil defense attorneys support higher evidentiary standards for experts and tort reform), but I'm not sure how that's supposed to cut against the basic point, which is that it's not some shocking revelation that a slight majority of AUSAs may oppose something that reduces the power of their client, the executive branch (if you prefer that to saying it's about them as lawyers).

Again, is there any other group of attorneys who you would suggest deserves this much deference for taking such a plainly self (or client)-interested view?

Posted by: Jay | Feb 6, 2014 10:11:10 PM

"[A]re you telling me that defense lawyers won't use such [dishonest and misleading] tactics when they think it will serve [their client]?"

Are you telling me government lawyers won't?

Posted by: Michael Drake | Feb 7, 2014 12:31:49 AM

Doug --

"I want and need to see the survey instrument and results before saying anything conclusively about the survey and the results."

Then why did you so directly suggest only a few days ago that only the NAAUSA President and I were opposed to the SSA?

"I want to see if the SSA was the focal point of the survey and if the survey accurately indicated that the SSA only lowers MMs, not eliminates them."

The article YOU just quoted says this (emphasis added): "An online poll conducted by the group...found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the SMARTER SENTENCING ACT, while more than 60 percent opposed it...."

Do you have any basis beyond speculation to suggest that, when the article talks specifically about the Smarter Sentencing Act, it really meant something else?

"If you can get me the survey and results, great. I have asked NAAUSA and gotten no response."

They are not mine to give. If it were up to me, NAAUSA would be much more proactive in spreading this information. It is not up to me. I agree with NAAUSA and its position on MM's; I don't run it and I don't have its files.

"I have said before and will say again that I know federal prosecutors --- including Holder --- want to keep MMs..."

I have no such information about Holder. For all I know, he supports Leahy/Paul, which would eliminate MM's, but knows it's too radical to pass, so he'll take what he believes he can get -- just as both Leahy and Paul themselves did, when they voted for the Durbin-Lee bill.

"... But do they all openly oppose reducing the MMs for nonviolent drug offenders? Again, I will need to see the survey and the results myself before I can come to a conclusion."

Only I never said that "all" federal prosecutors oppose reducing MM's, and I never said NAAUSA takes any such position, which, to my knowledge, it does not. Every organization has a scattering of dissidents.

And I'm still not buying your desire to control the vocabulary to feature "non-violent" and pretend that it means "non-harmful." That is simply not so. Whatever pusher sold Philip Seymour Hoffman the batch that killed him committed a non-violent but extremely harmful crime. Selling this stuff to addicts is not only illegal, it's grossly immoral. It contributes to the ruination of countless lives and to thousands of deaths each year. To keep saying "non-violent" is a complete whitewash. But it's a whitewash highly useful for the people who want to drastically cut back on sentences for traffickers, which is why they keep repeating it.

"Until NAAUSA makes the survey and results available for review, it is hard to fault the media for failing to report what it cannot assess."

That's a joke, right? The media ALL THE TIME report survey results they make zero effort to check -- as long as those results favor the cause they're pushing. The only reason you have so much interest in this case is that the results DO NOT favor your cause.

In addition, your comment here flatly contradicts the headline you wrote for this entry, which is, "Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention."

So which is it? Are the media giving the story "(too) much attention" or are they "failing to report" the story?

Finally, let's just cut to the chase: Do you really, truly entertain the belief that a majority of career federal prosecutors do NOT oppose slashing MM's by half?

Posted by: Bill Otis | Feb 7, 2014 3:17:27 AM

Supporter of the SSA

Hi I view this site along with many others daily to see if there have been any updates on sentencing reform in congress. Its amazes me that anyone can think a 10 year sentence isn't too long for a first time "non-violent" not a "non-harmful" offender. Though it may be harmful that's not what they're talking about. The people buying are doing so under their own freewill. No one is using force in a violent way to make them do drugs. It is sad that drugs are so easily obtained. In most cases the people selling the drugs are addicts themselves trying to support their habits. Addiction is a sickness not a crime and should have a sentence that fits it. I think a shorter sentence would be sufficient for a person that is willing to learn from their mistakes and put that time behind them and continue the rest of their lives being a productive citizen in society. The people that don't learn and end up there again should get a way stiffer sentence. I just wish people would see how outrageous these sentences being handed out are and how many families are being effected across our country.

Posted by: Renniks | Feb 7, 2014 5:36:30 AM

I think we should release all of these "non-violent" convicted drug dealers today. The only caveat is this---they all must be released to half-way houses where they must live for one year. And, the half-way houses must satisfy one of the following requirements: (1) be located in a nice gated community; (2) be located next door to a fancy private elementary or middle school; or (3) be located next door to the home of a law professor, judge, member of Congress, criminal defense attorney, or member of the ACLU.

It was my experience that the good, hard-working, honest people who lived next door to dealers were the ones begging and pleading for the police/mayor/city council/district attorney/US Attorney to "DO SOMETHING" about the drug dealers. Those good, hard-working, honest people would often rejoice when a drug dealer's house was raided by police. Finally, their kids could play in the yard again, they could sit on their front porch on a nice evening, they could live their lives without being afraid of the merchant of death living next door. So, unless you live in a crime-riddled neighborhood where drug dealers hang out on corners, dirty needles scatter your yard, addicts harass your kids at the bus stop, and gunshots wake you up at night, I don't really think it is fair for you talk about how "non-violent" these drug dealers are. As the Fifth Circuit once said: "Except in rare cases, the murderer's red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner's evil image--others who create others still, across our land and down our generations, sparing not even the unborn."

Posted by: Zachary B. | Feb 7, 2014 7:44:18 AM

Bill, you are right that I would like to see the SSA pass because I think the current federal drug mandatories do more harm than good for society. I also think you are right that much of the media wants the SSA passed, as there have been lots and lots of editorials in support of AG Holder's sentencing reform statements. And, as you know, support is bi-partisan with high-profile leaders in both parties pushing for a range of reforms, including the SSA. And that is why I agree that any opposition to SSA should be a subject of considerable reporting and discussion.

What has driven my suspicions about your claims at C&C and elsewhere was your statement that hundreds of federal prosecutors were in "open revolt" over Holder's support for the SSA. The only persons I have direct evidence of being "open" in their opposition to the SSA are you and NAAUSA Prez Guthrie. Indeed, the media often asks me for names of folks who defend federal MMs as they exist now, and the only name I know to give them is yours, Bill, because you are the only one who I have seen publicly and openly express lots of criticism of Holder's sentencing reform efforts.

Like all sentencing stories, I wish the mainstream media was covering this issue a lot more and a lot better. But I am trying my best to encourage such coverage, and apparently this is working to some extent as now NAAUSA is overwhelmed with media inquiry. Disappointingly, though, the extra attention is not leading to greater transparency or even clarity about what the NAAUSA survey asked or discovered. And given that, as you highlight, you and the media (and me) have stated and unstated agendas, I keep hoping the basic information will be made available to all by NAAUSA as soon as possible rather than be subject to representation by you or HuffPost reporters or others.

I do often feel I have to assume the worst about federal prosecutors and what is said about their views them and what they do because their work is so opaque and so lacking in rule-of-law and check-and-balances (unlike judges, whose work is always on the record, and subject to legal constraints and appeals).

Notably, when the US Sentencing Commission surveyed judges, we got to see the survey questions and all the result in a clear and cogent report. But here all we see are representations based on representations based on an on-line survey in which, I fear, only those AUSAs most concerned about MM reform were likely to respond.

(P.S. I will do a separate post on the non-violent issue to allow a distinct debate over this important bit of semantics that rightly is your focus now.)

Posted by: Doug B. | Feb 7, 2014 9:05:45 AM

Sorry, Bill, I did not respond to your "cutting to the chase": I am sure a majority of federal prosecutors opposed the JSVA, which would have affected all MMs and taken away a whole lot of prosecutorial power. But I suspect there are lots of difference of opinions on drug mandatories among career prosecutors.

One reason for my view here is based on the last round of statutory reform in the FSA. I am inclined to believe --- perhaps wrongly --- that a majority of federal prosecutors were SUPPORTIVE of cutting crack MMs. Assuming that is true, then it is wrong to assume prosecutors oppose all MM reform, the devil is just in the details. And, especially because the reforms in the SSA seem to me to be pretty modest, I want to know and see for myself whether the NAAUSA survey focused on the specifics of the SSA and how respondent spoke to that issue. (Indeed, a close read of the NAAUSA comments from prosecutors include statements that even those who oppose wholesale reform of MMs are prepared to concede that some MMs are set to high.)

Posted by: Doug B. | Feb 7, 2014 9:18:11 AM

I am sort of confused on this. Why would anyone believe that federal prosecutors or any member of the executive branch would willingly renounce power once given? How on Earth would they be viewed as objective?

Posted by: guttersnipe | Feb 7, 2014 9:52:00 AM

Doug --

1. The SSA would not slash MM's by a "modest" amount, as I keep hearing. It would slash them by 50%, and would do so for every drug, including all the worst and most dangerous. This is not about pot. It's about cutting in half the MM's for dealers in meth, heroin, Ecstasy and boatload more.

2. There are over 5000 Assistant US Attorneys.

3. I said at C&C that "hundreds" of them are revolting against Holder's support for the 50% cut.

4. In order to believe me when I say that, all you would have to believe is that six percent of AUSA's are against the SSA and Holder's support for it. Six percent.

5. Do you actually believe that not even six percent of AUSA's are against the SSA and Holder's support for it?

With all respect, you do not believe any such thing. Nor could any sensible person. As I have pointed out, the figure is almost certainly in the thousands, not the hundreds.

P.S. I see that many of your commenters think that ALL federal prosecutors are in revolt against the SSA, because it would "reduce their power," and, as your ally guttersnipe says (just below your comment), no one in the executive branch willingly gives up power.

Perhaps you should debate with those folks, rather than me, the extent of AUSA opposition to the SSA.

Posted by: Bill Otis | Feb 7, 2014 11:24:42 AM

guttersnipe --

1. If you want to take the position that there are no anonymous guttersnipes who comment here, you go right ahead. In fact there are several people who routinely post personal attacks against conservative posters, and some of those attacks are disgusting. One of them that I recall just now said that conservative commenters "lick their private parts," like a dog.

As long as stuff like that shows up here, I will continue to call it what it is, that being anonymous guttersniping. If you don't like it, I suggest you call upon the people doing it to stop.

2. The so-called Smarter Sentencing Act is about -- guess what? -- sentencing. The reason you want to shift the discussion to the as-ever power-mad and Satanic prosecutors is to avoid this fact, and specifically to avoid the fact of the 50% reductions designed to benefit the very worst drugs and the very worst drug dealers.

Posted by: Bill Otis | Feb 7, 2014 11:39:52 AM

Zachary B. --

"As the Fifth Circuit once said: "Except in rare cases, the murderer's red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner's evil image--others who create others still, across our land and down our generations, sparing not even the unborn.'"

That's a great quotation, and apt to the pro-SSA side's ceaseless attempt to hornswoggle us into believing that "non-violent" is the same thing as "non-harmful."

This is one of the most disingenuous things the pro-SSA side does, and they do it all the time.

Thanks for your comment.

Posted by: Bill Otis | Feb 7, 2014 11:49:48 AM

Bill:

You LIE!

"One of them that I recall just now said that conservative commenters "lick their private parts," like a dog."

Show me where it was said "conservative commenter" in this regards! The comment was about police wonder dogs (you know, drug dogs that alert) who need to be cross examined on the witness stand and SOME commenters. Unlike many commenters, the meaningless words liberal or conservative are not easily thrown around by the original author without additional qualifications.

A retraction is demanded, but it is not expected from a so-called Big Government Conservative.

Posted by: albeed | Feb 7, 2014 1:50:22 PM

Bill, you said at C&C in the post that got this debate started that "Hundreds of career lawyers broke into open revolt against the Attorney General," and that this should be a "Page One" story. All I have been trying to do for a week now is pull the curtain back on these statements in order to (1) give this important sentencing issue/debate the coverage it merits, and (2) better understand the basis for you assertion that there is an "open revolt" against AG Holder that should be "Page One" news.

Now it seems you have retreated to the statement that "six percent" of AUSAs have expressed (in an opaque on-line survey and not really openly) an opinion that is "against the SSA and Holder's support for it." If that is all you were saying, then I think the "Page One" story should be that perhaps well over 90% of active federal prosecutors who get power from drug MMs may well believe that a reduction of that power would be appropriate.

What I continue to focus on, and continue to fail to get clarity on, is the claim that this is an OPEN revolt by anyone others than Bill Otis (and perhaps also Robert Gay Guthrie, though I have not been able to find any statement from him on this matter and the NAAUSA has no additional information posted). Words have meaning and consequences, Bill, and "career [AUSAs breaking into] open revolt against the Attorney General" is a huge deal. That is why I keep seeking information to support this statement and that is why it is notable and telling that the revolt now appears much different after a week of inquiry and silence from everyone except you, Bill.

I have heard personally via e-mail from one AUSA and one former AUSA telling me that there is considerable concern within the AUSA rank-and-file about AG Holder's leadership on this issue. But a true open revolt would involve resignations, and op-eds, and open statements on this matter from AUSAs rather than just opaque representations about an opaque on-line survey.

Unlike albeed, I am not seeking any kind of retraction, nor am I even asserting you are playing loose with the facts, Bill. Rather, I am just trying to fully understand and report the full story of how line prosecutors view the SSA and Holder's support for it. I continue to appreciate your engagement on this front, and I hope we can continue to bring more light rather than just heat to this important matter of public policy debate.

Posted by: Doug B. | Feb 7, 2014 2:28:04 PM

Why does this Bill Otis guy think people like him should be able to imprison other people for engaging in non-violent drug offenses? Does he have any medical or scientific expertise that enables him to distinguish between the physiological effects of different types of drugs, or is he just another blow-hard in the war on drugs who thinks he knows better than other purportedly free members of society? Does he actually believe, as suggested in one of his nauseating posts above, that prosecutors are more moral than defense attorneys? (Is the dimwit unfamiliar with history?) Why does anybody think a meaningful exchange is possible with such a palpably vacuous and sick twist?

Posted by: Dan Sierra | Feb 7, 2014 3:23:45 PM

albeed --

I must be out of my mind to spend the time tracking this down, but what the heck.

Let's start with the basics. Anyone who says that commenters of ANY political persuasion "lick their private parts" like a dog is just unbelievably juvenile. If you said such a thing at a seventh grade debate, the teacher would send you to the principal's office.

So let's see what you actually said, which you conspicuously avoid quoting. Here it is:

"I think that the 'guilty couple' instead should have demanded that their dog do what Police Wonder Dogs are capable of doing when they 'alert' and made it testify on behalf of itself in court, if it had not already died. Like most dogs and some commenters here, it probably would have licked its private parts instead."

This was the thread: http://sentencing.typepad.com/sentencing_law_and_policy/2013/11/what-message-does-six-month-prison-sentence-in-high-profile-nj-animal-cruelty-case-really-send.html

When I asked you to name the commenters who "lick their private parts," you refused (emphasis added): "When you respond to my answer to you on a previous post that YOU specifically requested and then ignored, I may respond to your above inquiry. REST ASSURED THAT IT IS PROBABLY NOT YOU."

Oh, OK, it's "probably" not me, but it's commenters with views like mine -- in other words, conservative commenters.

But you made it even clearer a bit down the thread, when, after some testy exchanges with TarlsQtr and (on a prior thread) with Adamakis, you said to me: "With special friends like TQ and ADMKS, who needs enemies."

Both TarlsQtr and Adamakis are conservative commenters. And it's amply clear, given your remarks, that it is those two to whom you were referring as "licking their private parts," even if it "probably" wasn't me.

There's your "retraction." Have a good time with it.

P.S. I would probably ask you to try to at least imitate a mature person, but I have seen enough of your comments to know that that's never going to happen.

Posted by: Bill Otis | Feb 7, 2014 3:29:58 PM

Doug --

1. It's beyond bizarre for you to think that you know more about the beliefs of AUSA's than I do.

2. You continue with the fiction that a letter to the AG denouncing his support for the SSA -- a letter on NAAUSA stationery, by the head of the NAAUSA, expressly presenting the views of that organization -- does not represent to views of hundreds (at least) of AUSA's.

When a letter to the AG signed by the head of the ACLU appears, have you ever questioned whether it represents the views of the majority of the ACLU?

Of course you haven't. This is not because you adhere more to the views of the ACLU than to those of NAAUSA, but because such questioning would be silly.

It's silly here, too.

3. Let me ask again: Do you actually believe that, out of 5000-plus AUSA's, there aren't, at the minimum, hundreds who vehemently disagree with Holder's support for the SSA?

4. I used the six percent illustration simply to demonstrate that my headline at C&C speaking of "hundreds" of AUSA's was correct -- and was correct even if one were to adopt, as you apparently do, the bizarre belief that NAAUSA's letter was simply a personal frolic by its president.

5. You're trying to get a lot of semantic mileage out of my use of the word "revolt." It's a clever move, but semantic is still just semantic, and it's passing obvious that "revolt" in this context does mean taking to barricades in the street.

It is extremely unusual for AUSA's to take a position on a bill in Congress about substantive law, and truly remarkable, and courageous, for them to take a stance against the Attorney General. In the context of public debate about legislation, and the participation in that debate, not by the Occupy crowd and other rock-throwers, but by career professionals with families to support, even the strongest disagreement is going to come in the form of a letter.

Posted by: Bill Otis | Feb 7, 2014 4:03:49 PM

Doug --

Errata: "... it's passing obvious that "revolt" in this context does NOT mean taking to barricades in the street."

Posted by: Bill Otis | Feb 7, 2014 4:07:31 PM

Bill:

1. I do not claim to know more about the beliefs of AUSA's than you, that is why I keep inquiring about all this and giving it so much attention: I want to know all about the beliefs of AUSA's on this important matter.

2. Are you asserting that the NAAUSA letter represents the view of a majority of NAAUSA members? A majority of AUSAs? Nearly all NAAUSA members? nearly all AUSAs? I am not trying to be silly, just trying to understand the views of both NAAUSA members and AUSAs more generally.

3. I do not know how many AUSAs vehemently disagree with Holder's support for the SSA? That is what I am trying to find out. I know you, Bill, vehemently disagree with Holder's support for the SSA. I also know lots and lots of AUSAs think MMs are very important to their day-to-day work. But I do not know if they "vehemently disagree" with Holder's position on the SSA. Ergo, my inquiries.

4. I never said, nor ever thought, that the "NAAUSA's letter was simply a personal frolic by its president." Rather, I think it was the product of a genuine and well-intentioned effort by you and others working with and within NAAUSA to facilitate input by AUSAs on the issue of MM reform. But that effort needs to be explained for me to better understand the views of AUSAs on this issue and to help ensure this becomes an ACCURATE "Page One" story.

5. The recent history with the FSA and other drug sentencing reform, not to mention testimony given to the US Sentencing Commission from prosecutors in various setting, leads me to be very interested to hear directly from AUSAs (and lot of others in law enforcement) about whether they believe the MM status quo or reforms in the SSA would be better for our nation. Again, Bill, because you are vocal and consistent in your support for the status quo, I am sure you view the current MM status quo to be better than the SSA reform. I also know that AG Holder and 13 members of the Senate Judiciary Committee, now think the SSA is an improvement over the MM status quo. And if I could do a survey myself of all AUSAs on the topic, I would. It seems NAAUSA did some kind of survey, but a week after you made a big deal about the NAAUSA letter, I still have no information and see no reporting about what lies behind that letter.

I am not trying to get semantic mileage out of anything, rather I am trying to accurately cover and understand a story that you, Bill, claim merits lots and lots of attention. And yet the more attention I give this, the more slippery the story seems to be and I do not know how to make it less slippery. I am hopeful it will become less slippery as I did more and harder to try to find out what is really going on. But one week into this effort, I have not made much progress. I guess it is good I am not really a part of the media and instead have a real day-job.

Posted by: Doug B. | Feb 7, 2014 5:24:31 PM

Bill Otis "doth protest too much, methinks."

Posted by: William S. | Feb 7, 2014 8:15:54 PM

Professor Berman,

Thank you for keeping us updated on this saga. I wrote a post on my blog just regarding my take on the issue.

I want judges to take each crime that is pled to, and each defendant who admits to that crime, to be judged individually. I don't want daddy (the AUSA) to be the one to do it.

That is all.

Posted by: justin eisele | Feb 7, 2014 9:04:29 PM

Bill:

Your research efforts were truly both unexpected and extraordinary, however your rationalization is not a retraction.

Your arguments wouldn't get an indictment much less a conviction.

Posted by: albeed | Feb 7, 2014 9:17:02 PM

But Justin, Bill Otis thinks he's your Daddy. He knows better than you what you should and should not do. And, if you don't conduct yourself in accordance with his beliefs about how you should behave, he'll try to spank you.

Posted by: V for Vendetta | Feb 7, 2014 9:24:26 PM

Bill Otis has seldom said so little of substance in so many words as in this comment thread, which is no small feat. We are told that some unspecified but large number of AUSAs opposes the SVA. We're never quite told why this matters (or how anyone knows, but Doug's already covered that topic), but don't ask, because that would be changing the subject -- to talk about lawyers rather than the topic at hand. Even though, erm, the conversation began because Bill Otis wanted us all to know what a group of lawyers think about something that directly impacts their prerogatives and power.

Later Mr. Bill protests: if you commies think it's all about power, why don't ALL AUSAs oppose it! But Bill, that's what I said last night, and you acted like it was dumb : ( I agree -- it is noteworthy that so many AUSAs apparently don't oppose it, against their material interests. Don't you care what they think?

Also, defense attorneys lie a lot. Also, internet commenters are mean sometimes. Also, Mr. Bill knows many AUSAs. More AUSAs than Doug Berman even knew existed. AUSAs here. AUSAs there. AUSAs everywhere.

Posted by: Jay | Feb 7, 2014 10:47:38 PM

The beatings will continue, until the morale improves.

Spot on, right.

Posted by: Midwest Guy | Feb 8, 2014 12:48:35 AM

Brief commendation to Bill Otis for being the only one to support the self-evident recommendation of Zachary B, to place all released drug dealers into the neighborhoods of the advocates of their release.

Competition for territory caused a wave of murders, so the dealers may be serial killers of competitors. Not a word about the murder victims of these dealers.

Adjudicated charge is fictitious. At least look at the indictment charge before release.

Each released person will commit hundreds of crimes a year, and cause $millions in damages to real estate values, being a small natural disaster loosed on minority neighborhoods.

Posted by: Supremacy Claus | Feb 8, 2014 10:52:05 PM

As a civilian, I am disappointed by the personal remarks of the commentators. I like a good debate, where adversaries bash each other with facts, the most persuasive of all arguments.

Personal remarks are the same as knocking over your King in a hopeless chess board position, it is unconditional, abject surrender and disappointing.

Both sides have a lot of facts to use. Please stop the personal remarks because they are disappointing and frustrating to the ordinary reader.

Posted by: Supremacy Claus | Feb 8, 2014 10:56:22 PM

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