Substance, procedure and the future of mandatory minimums

Emily Bazelon, who this summer wrote this great Boston Globe story focused on Justice Breyer's central place in federal sentencing reforms, now has this Slate commentary discussing the Angelos case (background here, commentary here and here) and the future of mandatory minimum sentencing provisions.  The piece is generally effective and a useful read, though it ultimately conflates issues of substance and procedure when it concludes with a discussion of Blakely and Harris.

The Slate piece starts solidly by using the Angelos case as a launching pad for the standard policy attack on mandatory minimums.  The piece assails mandatories for depriving judges of discretion to make mitigating adjustments in sympathetic cases, and it also effectively spotlights that prosecutors have broad charging and bargaining discretion in the application of mandatories.  (I particularly liked the phrase that, for prosecutors, "mandatory minimums are the ace in the hole of plea bargaining.")

After this effective criticism of the substance of mandatory minimums, the piece then suggests that, in the wake of Blakely, the Supreme Court might "throw out mandatory minimums" by reconsidering its 2002 Harris decision (which presently allows judges to find those facts that aggravate minimum sentences).  The problem is that a reversal of Harris would not alter the substance of madatory minimums, only the procedures through which these statutes must be administered. 

Even if Harris were reversed, Congress and state legislatures could (and likely still would) rely on mandatory minimums to restrict judicial sentencing discretion; a reversal of Harris would simply require juries to find (or defendants to admit) those facts which called for the application of a mandatory minimum sentence.  (Notably, in the Angelos case, a jury did find the facts supporting the applicable minimums; a reversal of Harris would do Weldon Angelos no good.)

Of course, many commentators (and apparently even Harris swing vote Justice Breyer) believe that the jury trial rule for sentencing maximums applied in Apprendi and Blakely ought logically also to apply to mandatory minimums.  Indeed, the long-term validity of Harris was the subject of much discussion at the US Sentencing Commission's hearings last week (details here). But it is important to be mindful of the fact that, as I explained in this post concerning  Booker and Fanfan, the Apprendi/Blakely line of cases are only technically concerned with required sentencing procedures, not specific substantive sentencing outcomes.

UPDATE: Emily Bazelon was kind enough to write to me with a helpful clarification of her point at the end of he Slate commentary.  Here's what she had to say:

Of course you're right that Congress could save mandatory-minimums if Harris were overturned.... But my overall point was that a reversal of Harris would spur new debate about whether the federal system should have automatic harsh penalties, as well as how they would be administered with jury fact-finding. In terms of generating momentum to reduce the number of mandatory-minimums — and perhaps, if I'm being optimistic, to get rid of the practice all together — I think a reversal of Harris would be significant. And like all important Supreme Court decisions, it could have other consequences that are hard to foresee.