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March 14, 2014

"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"

The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms.  Here are excerpts:

Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies 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....

Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....

The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”

The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.

But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”

Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...

Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”

Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”

In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”

Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:

March 14, 2014 at 09:23 AM | Permalink

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Comments

Many of these prosecutors haven't a CLUE as to how this "one size fits all" present day structure really affects the inmates families, the inmates futures or our country overall. Until if affects their little "Johnny" or "Suzie" they will never get to experience the hell of being on that side of the fence. Most of these cases a are Conspiracy cases where someone could have been just riding in a car.. But if at the wrong place with the wrong people, they could get 20 years because of some mandatory minimum that The ENTIRE group on the conspiracy faces.

Also these people against this are probably stockholders (or investors in other capacities) in the VERY profitable companies who operate within the Prison system. They sell $15 MP3 players for $70. Every song costs $1.50. There is a 300% markup on tshirts and shoes, it costs over a $100 to use the phone, taking pictures on visits cost $$$, and then these inmates are working for pennies while many are producing items that will be SOLD at very high profits! It's a multi-billion dollar empire.... And then they lie an say the money is going back into the "helping the inmates."

The Director of the Bureau of prisons didn't even know the size of a cell for solitary confinement was when asked recently... More reasons to show that these people came NO clue!!

If they were so worried about public safety... What about the over crowding of prisons??? The violence in prisons? Why would a person who had a few grams of cocaine go to prison for 15 years, miss being in his kids' lives, get a felony on his record, come home to and face trying to look for a job who WILL hire him... There is a major domino affect!

And they are worries about losing the leverage of getting people to cooperate... These people are clueless ... Book smart - no street smarts or common sense. And besides that... The bigger question is ... How are the drugs still steadily coming into the country????

Until it happens to their little "Suzie" or "Johnny" - they have no clue! But then again... They would haul ass to pull some strings and do some favors to get their babies and loves ones out of those situations FAST!!!

I support this proposal!! It makes sense ... For the prisoners who are targeted for .. Makes sense!

Posted by: Kim Lugo | Mar 14, 2014 9:57:02 AM

From the article (emphasis added): "In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions INTERNALLY, but they don’t make policy."

And all this time I thought that government employees, being, ya know, citizens and all, were free to express EXTERNALLY their opinions about issues of public importance, Pickering v. Board of Education, 391 U.S. 563 (1968)(unanimous opinion).

Apparently, it's too much to expect "a Justice Department official" to understand the Supreme Court's 46 year-old holding on a matter of basic First Amendment law.

Posted by: Bill Otis | Mar 14, 2014 10:02:10 AM

Kim Lugo --

How could anyone disagree with you that people who want to make a fast buck selling dangerous drugs are unfairly targeted by The Fascist Machine, and that they bear no responsibility for, and should not be punished on account of, their own intentional behavior?

As you show, this is totally obvious.

Posted by: Bill Otis | Mar 14, 2014 10:17:58 AM

"and would be more equitable to certain defendants who can face severe sentences "

If the minimum is unwarranted in some particular case there is no law I am aware of that actually requires that the particular crime be charged or pursued even if it is charged initially. And in fact, as I understand it, dismissing such charges that could be proven but would often produce little gain are one of the often-used carrots in the plea bargaining mix.

Posted by: Soronel Haetir | Mar 14, 2014 10:23:00 AM

Soronel --

Absolutely correct. And the Justice Department person who implied otherwise was being intentionally misleading.

Posted by: Bill Otis | Mar 14, 2014 11:09:45 AM

I always thought this part was really funny! as well as two-faced.

"and then these inmates are working for pennies while many are producing items that will be SOLD at very high profits! It's a multi-billion dollar empire"

especially considering all the shit we give China over their prison labor system. I still can't figure out why our prisoners go alone with it. My response would be "get fucked" to the guard trying to get me to do it.

as for this bit bill.

"And all this time I thought that government employees, being, ya know, citizens and all, were free to express EXTERNALLY their opinions about issues of public importance,"

actually bill as a private citizen their are allowed to have their own opinion and spout it to the sky. But once they walk out and announce "I'm a us assistant district attorney! then they keep their personal opinions to them self and spout the govt position PERIOD!."

they don't get to use their office to convey some type of legitmacey to their opinion and positon using that office.

as for the chase you cite. that's just another fine example of the criminal stupidity coming from the former united states of America's injustice system.

Posted by: rodsmith | Mar 14, 2014 12:34:46 PM

rodsmith: you dont want to be the nail sticking out in a building full of hammers you cant leave. The UNICOR jobs are the highest paying in the fed, up to around $1. 50 an hour. Not everyone inside has people outside to help them, so those jobs are sought after.

I love hearing Sally Yates, a politician and likely reptile, wax compassionate about her offices charging decisions. Worked cases in her district that still haunt me (to be fair, she was only directly involved with one other than press release quotes) . I'm looking for the statistics we pulled but the Northern District of Georgia had one of the highest federal guilty plea percentages in the South.

Posted by: Happy in Virginia | Mar 14, 2014 12:54:58 PM

rodsmith --

"they don't get to use their office to convey some type of legitmacey to their opinion and positon using that office."

That's a wonderfully apt description of exactly what the Attorney General is doing.

Posted by: Bill Otis | Mar 14, 2014 1:40:07 PM

I have such mixed thoughts on this topic. On one hand I think there is a sound basis as a matter of public policy why MM exist. At the same time, I often think that Congress has set the floor too high, precisely to use it as a tool in plea bargaining--the result is as a matter of public policy we accept some injustice in the individual case in pursuit of the larger good of dismantling criminal organizations. A proposition that also leaves me uncomfortable.

@soronel. Your comment missed the point. The problem is that there are many reasons why a prosecutor may or may not charge a specific crime. For example, a prosecutor may disagree with a MM as a matter of policy but still feel ethically obligated to charge that crime because the facts support such a charge. The question in my mind isn't /how/ the prosecutor uses the MM as a legal tool; the question is should they have access to that legal tool at all.

Posted by: Daniel | Mar 14, 2014 3:00:16 PM

that is true bill. but unlike the low lvl prosecutors. He is the top political appointee. He's main purpose IS to set policy.

Posted by: rodsmith | Mar 15, 2014 4:08:57 AM

rodsmith --

Actually, the AG's main purpose is to enforce existing law.

Posted by: Bill Otis | Mar 15, 2014 7:14:58 AM

Seems to me any active AUSA speaking out against the very sound positions articulated by AG Holder should be fired for insubordination or lacking the good sense and responsibility we should be seeking in our prosecutors. These types strike me as power hungry and/or sadistic and not the type of folks who should be key actors in our criminal justice system. Bill Otis is a disgrace for helping these people. What is wrong with you? You have nothing better to do then support those who would keep in place our monstrosity of a criminal justice system? There is a term for those like you and you wife who help tthe fascists suppress liberty and eliminate supposed undesirables from society -- kapos.

Posted by: Tom | Mar 15, 2014 9:24:07 AM

Bill -- It's funny, but as I recall, DOJ has had both an "Office of Legal Policy,' headed by an AAG, and, within the criminal division, an "Office of Policy and Legislation," even during Republican presidencies. What were they doing back in the Reagan and Bush years? Surely not lobbying for any changes in the law or sentencing guidelines, right?

Posted by: Jay | Mar 15, 2014 1:34:30 PM

In 2011, NAAUSA opposed retroactive application of the Fair Sentencing Act guideline amendments, predicting immeasurable crime, great costs, and erosion of confidence in the system:

"Retroactive application of reduced penalties now in place would be a windfall. On the other hand, reopening thousands of cases litigated over the last two decades would come at great cost to the federal criminal justice system and the American people. Every time an amendment is made retroactive and cases reopened for litigation, the stability of the system is eroded and the confidence of the public is undermined."

http://www.naausa.org/2013/index.php/news/naausa-news/59-opposition-fsa

Have any of these dire predictions come true?

Posted by: Jeremy Haile | Mar 15, 2014 2:02:20 PM

Tom --

"Seems to me any active AUSA speaking out against the very sound positions articulated by AG Holder should be fired for insubordination or lacking the good sense and responsibility we should be seeking in our prosecutors."

Seems to you that the Supreme Court got it wrong in Pickering v. Board of Education, 391 U.S. 563 (1968). That's OK. It's only 46 years old.

"These types strike me as power hungry and/or sadistic and not the type of folks who should be key actors in our criminal justice system. Bill Otis is a disgrace for helping these people."

I know, I know Only the judges who sell light sentences should be "key actors in the justice system." Remember Operation Greylord? Judges taking payoffs from -- ready now -- defense lawyers! More zealous advocacy!!

But you're only getting started, Tom. You go on to say (emphasis added):

"You have nothing better to do then support those who would keep in place our monstrosity of a criminal justice system? There is a term for those like you AND YOU[R] WIFE who help the fascists suppress liberty and eliminate supposed undesirables from society -- kapos."

Finally, unquestionable proof that there is nothing too low and too vile for you Lefties.

-- My wife is the co-founder of a national organization devoted to free speech and debate of legal issues. It has recently welcomed such speakers as Walter Dellinger, Nadine Strossen and Laurence Tribe.

-- If you knew my wife, her family and their history -- which I'm extremely grateful you don't -- you would understand just how gross and appalling your remark is.

-- It's also stupid. A kapo was a Jewish prisoner who cooperated with the Nazis in turning on his own people. Your gripe against me is the opposite: That I line up with my supposed upper-class buddies to oppress people of the lower classes. Read some basic history while you're reading Pickering.

-- Of course the essence of the vileness of your comment has nothing to do with its stupidity or even its intended hurtfulness. It's that it targets my family. Neither my wife nor any other member of my family has said one word on this blog. Guttersniping insults to them are beneath any known standard for statements on a blog that even pretends to be civilized.

Doug does not block comments. It is a policy with which I agree; he doesn't have the time, for one thing. He depends instead on the basic decency of the people who post here to keep comments out of the gutter.

Congratulations Tom, whoever you are. All by yourself, you have made such reliance impossible. Still, you're due some credit: You have illustrated in newly vivid tones just how low you people can get.

Posted by: Bill Otis | Mar 15, 2014 3:13:40 PM

Bill,

there is , to be sure, a level of inflated rhetoric in this comment forum that is getting unfortunate. But with all due respect, I believe there is a level of frustration with your intransigent views and propensity to insult and question the motives of those with whom you disagree. There is a good opportunity now to address some of the excesses of our sentencing regime, and there seems to be near consensus among those with knowledge of the issue that there are far too many imprisoned on draconian drug sentences. It seems as people of good will -- from various parts of the political spectrum -- should be able to work towards reform. It is very unfortunate that you and a few others continue to beat old chestnuts to oppose reform to try to bolster those in the political sphere who play to racist sentiments in their constituencies. I don't believe you are a racist or a fascist as some have called you, but you should do some reflection about who your views tend to bolster. Isn't it telling that many Republicans are now advocating reform? I am proud to be one of them. Instead of complaining. about the flack you receive, why not reach for common ground?

Posted by: Liberty Lawyer | Mar 15, 2014 5:25:25 PM

hmm

"rodsmith --

Actually, the AG's main purpose is to enforce existing law."

True a long long long long time ago. That was before the career politicians took over. Now it's a political office. Any hack off the street could do the job.

Posted by: rodsmith | Mar 16, 2014 1:34:26 AM

It's also worth noting that Bill's understanding of Pickering (and its progeny) is incomplete in implying that all speech about a matter of public concern is protected. In fact, there is not an unlimited right to speak on matters of public concern if the speech would adversely affect the government's ability to efficiently provide services. I'm not sure than an AUSA decrying DOJ policy governing his work would be on the winning side of the Pickering/Connick balancing test.

Posted by: Jay | Mar 16, 2014 1:38:42 AM

Jay, if nothing else, Mr. Otis is very smart and very knowledgeable about the law. I doubt that his understanding of Pickering is "incomplete."

Of course, your are probably right with your more nuanced take on Pickering. But I don't think it is an incorrect understanding of Pickering at issue. I just think that it is Mr. Otis's style to stake out a relatively absolutist position and defend it vigorously. It is a frustrating style, but it plays to his strength. He is very good at arguing. So, in this case his argument does have a basis in Pickering, although there are substantial counterarguments. But a large chunk of the audience isn't familiar with Pickering, and another large chunk may be bowled over by his aggressive assertion of its meaning. So he probably advances his cause more by doubling down on a maximalist view of Pickering/free speech than by acknowledging the balancing test, contrary precedents, etc.

I actually think there is something instructive here in terms of advocacy. Too many lawyers, in my view, have a tendency to get lost in the weeds and lose track of the ultimate goals of their arguments. Mr. Otis never does that. And what he understands here is that this is not an argument about Pickering. It is an argument about mandatory minimum policy, and Pickering is just a tool in that argument. If properly motivated, he could probably do equally well arguing that Pickering *doesn't* protect the speech at issue here. Like they used to say about one of those old famous sports coaches, "He could take his'n and beat your'n, and then he could take your'n and beat his'n." If I needed a bulldog lawyer and had the money, I would hire him. As for the policy side of things, I find it regretful that Mr. Otis employs his considerable skills to advocate for what, to me, are almost invariably negative/destructive social policies. But he does but on a rhetorical clinic of a sort in these comments. (And bumblers like "Tom" who try to play the game by upping the ante on ad hominem stuff and personal attacks are playing right into his hand. First, they are generally bringing a knife to a gun fight. Second they are serving up exactly the kind of straw man that BO has shown he can deploy so effectively to support his arguments.)

Posted by: anon | Mar 17, 2014 11:29:14 AM

anon -- I agree in general, but saying your adversary (or a party before you, if you're the judge) "misunderstands" the precedent is generally how lawyers talk, since it sounds more polite than saying they're intentionally fudging it to win (the upshot of what you're saying).

As to Pickering, I'm not sure if Bill actually knows anything about government employee speech cases or is just using it as a talking point here, so it's possible that saying his understanding is "incomplete" is actually true here.

And yeah, you accurately diagnose why many of us find his commentary here so pointless. It's necessary to develop a certain approach to courtroom advocacy when you're litigating individual cases, but it's not all that constructive to wander around conducting every conversation like it's a closing argument. For whatever reason, long-term criminal litigators on both sides seem particularly prone to that approach, though.

Posted by: Jay | Mar 17, 2014 3:07:28 PM

Tom, writes to Bill Otis: "There is a term for those like you and you wife who help tthe fascists suppress liberty and eliminate supposed undesirables from society -- kapos."

Tom, this is an atrocious slur and calumny on an honorable man and his equally honorable wife. A new low in ad hominem attacks on this blog. Shame on you.

Posted by: Michael R. Levine | Mar 17, 2014 11:21:05 PM

Michael,

Thanks. To go after the family members of posters, and go after them in that particular way, is utterly out of bounds. If the comments section has come to that, it has lost something of considerable value.

You shouldn't be the only one who straightforwardly condemns something like that, and it's unfortunate that you are.

Thank you.

Posted by: Bill Otis | Mar 18, 2014 11:17:16 AM

Jay --

1. If an AUSA is disciplined simply for publicly questioning Holder's support for the proposed SSA, I'll represent him pro bono and clean DOJ's clock, under Pickering. (Of course DOJ will try no such thing, not simply because they'll lose, but because NAAUSA is similar to a labor union, and a Democratic administration doesn't want to go there).

It's beyond serious dispute that MM sentencing is a matter of important public policy, which is the heartland protection carved out by Pickering. That by itself will do the trick.

That conclusion is somewhat supported by Connick, a 1983 case in which the Court would not allow discharge based on an ADA's criticism of the internal operation of his office. Likewise with a 1980 (I think) case, Branti, in which a broad minded (haha) Public Defender tried to fire several APD's for being -- get this -- Republican.

The most troublesome case from the AUSA's point of view would be Garcetti v. Ceballos (2006) in which the Court upheld an employee's firing because his statement critical of management was made pursuant to his official duties. But that case, decided 5-4, would not bail out DOJ here, since the AUSA criticism is not made pursuant to such duties (such as writing a sentencing memo), but opposes simply a possible FUTURE change in the law.

As I say, if DOJ wants to try it, I hope they feel free. I have the time to wait for them.

2. "... many of us find his commentary here so pointless."

I rather think you find my commentary annoying rather than pointless, because I don't toe the Criminals-Are-Victims line. But if you do find it pointless, fine, I don't recall asking you to read it.

3. Do you agree or disagree with Michael R. Levine?

Posted by: Bill Otis | Mar 19, 2014 4:30:52 AM

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