DOJ Form Letters and Mandatory Minima

Post from Ron:
The ABA Justice Kennedy Commission (background here) leads off with this recommendation:

[The] American Bar Association urges that states, territories and the federal government: (1) Repeal mandatory minimum sentence statutes ...

The report is full of general and specific observations about sentencing, some of them widely shared and others more contested. You can see, though, why the position against mandatory minimum sentences is fast becoming the focal point of the debate that the Report is generating.

The mandatory minimum recommendation is also drawing a response now from the Department of Justice. Various U.S. Attorneys around the country are publishing op-ed articles in local newspapers making the argument for continued use of mandatory minimum sentences. Each is tailored to the specific district, but the identical language and paragraph structure in many of the letters makes it clear that they are all drawn from the same template. For an example of the DOJ Form Letter, see here.

I believe the letters are wrong on the merits. The first basic argument in the DOJ Form Letter is that crime has gone down during years when DOJ has relied more heavily on mandatory minimum sentences, therefore the mandatories must have caused the decline in crime. Lots of criminologists are convinced (and I am convinced too, though I am not a criminologist) that large increases in the use of incarceration will have a positive effect on crime rates. But that surely doesn't mean the each and every device (like mandatories) that we use to increase the use of prisons should be praised for reducing crime. And it doesn't mean that every reduction in the use of prison will lead to greater crime.

In short, the DOJ Form Letter is conflating two different questions: the overall scale of the prison system, and the flexibility of the laws that send people into prison. Inflexible sentencing laws controlled by prosecutors and nobody else are not necessary to get whatever mix of crime control and prison costs (both fiscal and human) that the public wants.

The second argument of the DOJ Form Letter is that the federal mandatory minimum sentences allow for a "safety valve," so they not so inflexible after all and produce no real injustice. Again, I think the letters are wrong on the merits. The safety valve is not available as a practical matter in very many cases, and it is quite easy to find examples of people who are serving pointless and cruel sentences for crimes that deserved a lesser sentence.

Apart from the merits, I must also offer this bleak observation about the political environment. The Department of Justice was asked repeatedly to take part in the deliberations of the ABA Commission, and they stayed away. They sent no representatives, offered no advice, exchanged no views. Now that DOJ is responding with guns blazing, it does not bode well for the quality of debate and exchange that will need to happen if Congress decides to refashion federal sentencing. Why can't DOJ follow the path of so many state prosecutors, who manage to participate in real debates about sentencing in their states without the scorched earth tactics?