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April 22, 2005

More sentencing rhetoric and reality inside the Beltway

This morning I received a copy of an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker.  I do not have all the details concerning the origins and use of this research paper, but the document, which is entitled simply "Mandatory Minimum Penalties" and principally promotes the mandatory minimum penalties appearing in the "The Gang Deterrence and Community Protection Act of 2005," is a fascinating read even without knowing its background.  (FAMM's website here provides  background on the gang bill and a different view of all of these issues.)

This document, which can be downloaded below, is full of rhetoric concerning the value and need for mandatory minimum penalties (quote from page 2: "Given the elimination of an effective determinate sentencing guideline system [in Booker], Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public.").  The document also includes a section extolling the benefits of the death penalty (heading from page 16: "Research Shows That the Death Penalty Saves Lives.") . 

Many claims in the document are arguably accurate, although the presentation is full of over-statement and is quite one-sided on all the issues covered.  For example, the document asserts at pp. 8-11 that "Every defendant may obtain a reduced sentence" based on providing substantial assistance in the prosecution of others (emphasis in original) and claims that without "stiff mandatory minimum sentences ... offenders have no incentive to cooperate with authorities."  But, of course, offenders without information about other offenders cannot get a departure based on substantial assistance no matter how much they cooperate, and federal offenders not subject to mandatory minimum sentences have lots of incentives to cooperate (see, e.g., Rowland and Fastow, as just two white-collar examples.)  Similarly, a footnote in the discussion of the death penalty asserts that "specific data show[s] that the death penalty system, far from broken, is indeed working well," though there is no mention of innocent persons released from death row or the high reversal rate of death sentences.

I understand that an effort is underway to develop a "response" to this document in order to provide a more balanced view on these sentencing issues.  (Of course, the US Sentencing Commission over a decade ago in its 1991 USSC report on mandatory sentencing effectively presented a more balanced view and documented some failings and harms of mandatory sentencing provisions ).  Perhaps readers can use the comments to note aspects of this document that merit a more complete account of the reality that should accompany all the rhetoric.

Download mandatory_minimum_paper_on_benefits.rtf

April 22, 2005 at 10:49 AM | Permalink


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Who is peddling this drivel?

Prof. Berman is too kind. This report is filled to overflowing with biased, one-sided half-truths. The blatant misrepresentation that the government (admirable as its lawyers usually are) only flips up instead of down should be enough to send this report to the circular file. Mules (particularly the poor ones from foreign countries) often know nothing useful about the person who gave them the drugs and nothing at all about the person who was supposed to receive the drugs. Contrary to the report's assertion, these pathetic (but lawbreaking) people are not thumbing their nose at the system; they can offer the system nothing the system wants.

If the USSC wants to reclaim its relevance, it needs to speak out on this topic. Congress can pass mandatory penalities if it so chooses. It can even try to justify them on the grounds of retribution and democratic will. However, it cannot fairly justify these misguided policies on many of the bases presented in this report. It is incumbent on the USSC to say so.

Posted by: hey | Apr 22, 2005 12:06:35 PM

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