March 19, 2014
"Efficiency shouldn’t trump effectiveness in drug sentencing"
The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform. Here is the full text of the letter as published:
As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.” At best, the objections by some federal prosecutors to sentencing reform ring hollow. At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.
Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial. That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem. If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.
The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.” It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.
Mandatory minimums do create efficiency. But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.
Some prior posts about federal prosecutorial perspectives on sentencing reform:
- "Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Are we "headed for a crime-riddled future" without mandatory minimums?
- "Prosecutors Wrong to Oppose Sentencing Reform"
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
March 19, 2014 at 10:20 AM | Permalink
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If Osler actually wants to know what's effective in sentencing, it's not that hard to find out.
Fifty years of experience over fifty states shows the answer: Prison is effective at reducing crime. It's not the only effective measure, but it is one of them.
Pie-in-the-sky rehab is not effective, as the Sixties and Seventies proved, but Osler simply refuses to recognize or understand this fact.
Posted by: Bill Otis | Mar 19, 2014 11:38:21 AM
My view of Mr. Osler's comments:
"Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial."
"That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem."
"If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago."
"The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.” It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like."
Posted by: Michael R. Levine | Mar 19, 2014 12:59:03 PM
I agree with Osler and Levine.
Posted by: Dave from Texas | Mar 19, 2014 1:07:47 PM
I hate to say it, but Osler is correct.
Posted by: current AUSA | Mar 19, 2014 1:08:47 PM
Michael R. Levine ,
Umm, I see no contradiction between "the MM statutes help prosecutors to move up drug networks" and "the vast majority of convicts are low rungs in those networks". (Note I am not saying such drug networks actually are rolled up in reality, only that as I said I see no contradiction in the two conditions). Even if drug networks were in fact rolled up I would still expect that most of those caught would be at the lower levels. Either because they are caught during the moving up process or as part of a sweep down after the top level is caught.
Posted by: Soronel Haetir | Mar 19, 2014 1:31:09 PM
I am on board with Bill here. The mandatory minimums absolutely provide efficiency, and this efficiency is what our system needs. I understand how some see it as "bullying" of these lower level offenders. But pleading out the minimums in my mind is an effective means of getting to those higher on the food chain. It also provides a good deal of deterrence, if one understands that their crimes will come with a minimum 2- year sentence then you may be more willing to resort to more legitimate professions. Do mandatory minimums always provide individualized justice? No. But I would prefer a system where crimnals are bullied into stopping other bullies than one in which we obtain individualized justice for drug dealers.
Another quick point- I also feel that mandatory minimums and sentencing guidleines can provide more individualized and more predictable justice. By setting mandatory minimums you also avoid situations where people committing the same crime in the same manner are given largely disparate sentences. The mandatory minimums give us better consequences for justice than just leaving it to each judges or jury s discretion.
Posted by: Chris LaRocco(OSU Student) | Mar 19, 2014 1:50:30 PM
well the only problem Chris and Bill and Soronel is WHERE are those so-called high lvl convictions?
Or is this simply another of those "lier laws" passed to do one thing when the state pretty much knew it would never be used for that.
a perfect example would be the "rico" law passed to take down mafia kingpins and not sure it's ever been used to get one.
but it's got plenty of low-lvl fish though.
Posted by: rodsmith | Mar 19, 2014 3:02:53 PM
I'd appreciate your entry here, but I must ask, have you considered the myriad effects of "mandatory minimums for all" as a sentencing prediction? There are many crimes that carry 10 year mandatory minimums, even if the defendant has never committed a crime before (criminal history 1). A criminals guideline score may be 40 months, but now he must serve 120. Should the prosecutor be able to choose whether that individual gets a guideline score or mandatory minimum? Should the judge? What if there are mitigating factors that would make an individual less culpable than the run of the mill offender. Politicians have consistently raised mandatory minimums (what was once no mandatory may have turned to 5, then turned to 10, etc.) So the punishment is variable depending on the year, not the defendants circumstances.
The guidelines, for all thier imperfections, remain a great tool to even out sentencing variances. Mandatory minimums cause a lot of families a lot of pain. I have seen it.
Hope this was clear, typing on my phone and extremely fatigued.
Posted by: Skeptical | Mar 19, 2014 10:52:13 PM
"Should the prosecutor be able to choose whether that individual gets a guideline score or mandatory minimum?"
Prosecutors should be able to charge an offense that fits what the defendant actually did. Indeed, that's the main thing prosecutors should do. If they want to charge more leniently, they may have their reasons, but simply because some defendants are given leniency is hardly a reason all should be.
"What if there are mitigating factors that would make an individual less culpable than the run of the mill offender."
Then bring that up in plea bargaining -- which is, of course, what routinely happens. And over 95% of federal cases are resolved by such bargains, and it is standard practice, with low level players, for AUSA's to give up the most serious charge in such bargaining.
Or go for one of the two existing escape hatches -- either the Safety Valve, which is utterly routine (used over 70,000 times) or the substantial assistance route.
Or seek clemency. Just recently more than three dozen got it from the President.
"So the punishment is variable depending on the year, not the defendants circumstances."
True in a way. In the years of the Sixties and Seventies, punishments were nothing like what they are now. Of course crime was twice as high and rising sharply, a fact that, oddly, you omit. Is that because public policy about crime should ignore how much crime there actually is?
"Mandatory minimums cause a lot of families a lot of pain. I have seen it."
What causes the pain is Daddy's decision that he'd rather make a quick buck with drugs than get a normal job like the rest of us.
Do you ever tire of making excuses for people who, knowing full well that their conduct was illegal, went right ahead, thus making their own bed? And now it's up to me to unmake it for them?
Posted by: Bill Otis | Mar 20, 2014 9:49:12 AM
Skeptical, your problem is not with mandatory minimums but with the mandatory minimums for some offenses (and the fact that the U.S. Sentencing Commission has promulgated guidelines that are inconsistent with those mandatory minimums).
The legislative branch has the obligation to define the possible punishments for each offense. By definition, every offense has a mandatory minimum, but, in some cases, that mandatory minimum is probation. In a rational justice system, the mandatory minimum for more severe offenses is higher than for less severe offenses. The legislature draws the boundary between those degrees of offenses, but a prosecutor reviewing the evidence can decide that -- even if an offender is actually guilty of the higher offense -- the case is too close to the boundary or there are other mitigating circumstances that support allowing a plea to the lower offense.
The problem is not the concept of a mandatory minimum, but the exact mandatory minimums under current federal law for specific offenses. For some offenses, some believe that the mandatory minimum for that particular offense is too high -- or that the difference between the mandatory minimum for the greater offense and the expected sentence for the lesser offense is too large for even an innocent defendant to take the risk of a trial. Most of the argument, however, is an attack on the very concept that a mandatory minimum could ever be appropriate rather than a discussion of why the penalties for a specific offense should be amended.
Posted by: tmm | Mar 20, 2014 11:54:11 AM
If you have an opinion you'd care to share: What is your view of the extent of lowering MM's as proposed in the currently pending so-called Smarter Sentencing Act?
Posted by: Bill Otis | Mar 20, 2014 3:51:31 PM
Bill, not doing federal practice, I haven't personally looked at the specifics of any federal sentencing bill. My bottom line on any sentencing debate comes down to four core beliefs: 1) the law should clearly establish the sentencing range available for an offense -- both the "base" range and any exceptions that increase or decrease that range; 2) the sentence imposed should be closely related to the time served in the majority of cases; 3) the ranges of punishment should reflect a rational ranking of the seriousness of the offense with higher sentences being reserved for the more serious offenses and lower sentences for less serious offenses; and 4) repeat offenders should do more time compared to first time offenders. I think to the extent that any bill modifies current sentencing ranges, those modifications should be specific and the proponents should clearly identify which punishments they feel are out of sync with a rational sentencing system and why they feel that way. Likewise, the opponents should be prepared to say why a particular sentencing range is appropriate.
Posted by: tmm | Mar 20, 2014 5:06:30 PM
Thanks for your thoughts.
What do I need to say to get you to resume teaching?
Posted by: Bill Otis | Mar 20, 2014 5:22:07 PM
I would agree with the sentiment that mandatory minimums floor at much too high of a level, particularly for "vice" offenses, such as drug and sex offenses.
In order to understand why I feel that way, I feel that I have to almost beg a question: Politicians love to target vices to look tough on crime. So when panic erupts over heroin overdoses or children speaking to strangers on the internet/pornography, Politicians again attack low hanging fruit of vices, which when combined with harsh sentencing that makes the low level pusher culpable for the entirety of a drug organizations stockpile, or a child "enticer" that was solicited by an undercover agent posing as an adult with access to a minor, the mandatory minimums warp and fail to deliver the rational sentencing.
The prosecutor holds the cards, because it will make even first time offenders culpable in ways that are not rational. This is an adversarial system, the defendant should not have to beg his adversary for a sentence in line with his culpability. The judge is to be the arbiter in this way, but he cannot in this way.
I think most disturbing to me are the vice reverse sting operations. We see them time and again, and there's little we can do for them at the federal level. Even given Judge Wright's chastisement of the ATF earlier this week for "manufacturing" crime, outside of acquittal the judge would still have to sentence to the statutory minimum (https://www.documentcloud.org/documents/1088923-031118524877.html). Because imperfect entrapment is rewarded the same as no government overreach at all, the judge remains a bystander in the sentencing. Mandatory minimum (which Congress has insited on raising time and time again) , next case. There just simply aren't any remedies, so the punishment becimes detached from the defendants actual conduct.
There are many, many issues with "three strikes" laws that all lawyers have to contend with, but those particular problems are enumerated in enough places on the Internet already. federal level.
Posted by: Skeptical | Mar 21, 2014 2:37:05 AM
I appologize, whenever I have been posting recently, it has been late (long, long days) and I have been doing so on my phone. Please excuse the tyops and grammatical issues.
Posted by: Skeptical | Mar 21, 2014 2:47:14 AM
Earlier on this thread, I said that prosecutors should charge the offense that fits what the defendant actually did; indeed, that's the main thing prosecutors should do. If they want to charge more leniently, they may have their reasons, but simply because some defendants are given leniency is hardly a reason all must be.
Do you disagree with that?
The reason we have MM's is not, as you seem to think, that prosecutors lust for power. It's that judges cannot be trusted, as they proved for at least 20 years during the 60's and 70's (and this is not to mention the judges who actually sell light sentences, a la Operation Greylord).
Judges exploited a we-get-do-do-anything system to impose their ideology, and the resulting national crime wave (do you doubt there was a crime wave?) was not something the county was happy with. So there was a relative shift of power somewhat away from judges and somewhat toward the political branches.
The results have been super -- much less crime. You're not happy about that?
If a drug pusher doesn't want a tough MM, he has the easiest option in the world: Get a normal job like everyone else. It's just amazing that anyone would turn himself into a pretzel over those who, because of the allure of a fast buck, made their own bed. It's past time for these people to quit whining and understand that society is not the one who chose for them to become a trafficker.
Posted by: Bill Otis | Mar 21, 2014 7:40:11 AM
very nice bill. But of course the prosecutors have also proved they can't be trusted either. Of course the whole govt has the same problem. They now rank ABOVE used car salesman as the biggest liers in the world.
Posted by: rodsmith | Mar 25, 2014 7:43:50 PM