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February 9, 2012

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

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"Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree."

Having served 18 years in a United States Attorney's Office, I can tell you that that sentence is an outright lie.

Posted by: Bill Otis | Feb 9, 2012 3:51:24 PM

Bill, how much power do judges have after they calculate the guideline in a mandatory guideline regime? I am seriously just asking based on your experience.

Posted by: Thinkaboutit | Feb 9, 2012 5:34:24 PM

An outright lie, really? Do you know many judges who have refused to impose a 15-year mandatory in an Armed Career Criminal case or a 10-year (or more) mandatory in a drug case? I sure don't, though I've known many who imposed such sentences with clenched teeth in cases where their hands were tied by a prosecutor's unilateral and unreviewable charging decision.

Maybe judges had slightly more leeway to redress prosecutorial over-reach in the Guidelines context but a check of the minuscule non-government-sponsored downward departure rates in many districts during the pre-Booker era will quickly show that it is far closer to the truth than not.

Posted by: Fed Defender | Feb 9, 2012 5:35:14 PM

Fed Defender -- If memory serves, Bill was an AUSA a long, long time ago - before the sentencing guidelines (even the mandatory ones) were in effect. I don't believe he has any experience with the practice of law under the modern federal sentencing scheme - so his proclamations need to be considered with that in mind.

Posted by: another fed defender | Feb 9, 2012 7:41:57 PM

There Bill goes again. Pathetic.

Posted by: Steve Prof | Feb 9, 2012 7:44:11 PM

Thinkaboutit --

Under the now defunct mandatory guideline regime, the judge could depart if he found a factor "of a kind, or to a degree" the Sentencing Commission did not consider in promulgating the guidelines. Departures were given in about 35% of the cases (it's now 45%). The majority of the departures were downward ones asked for by the government, but a large minority were allowed without a government request and often over the government's opposition.

Judges also had (and have) the power to move the range itself, and move within the range. Each range varies by roughly 25%, top to bottom, and the judge can go anywhere in that range for pretty much any reason he wants to. (Virtually all sentences are given at or near the bottom of the range).

The judge gets to move the range by finding acceptance of responsibility (or not), which, when found, will push the range down by about 25%, or 37% in a more heavily sentenced case. In addition, the judge can make virtually unappealable factual findings about role in the offense, which, again, can move the range considerably.

Now, of course, under the new regime of Booker-Gall-Kimbrough-Spears-Nelson, the judge has much more liberty to do as he pleases. He can disregard Congressional policy choices in favor of his own. The old guidelines, which, as I have explained, were never as rigid as their opponents portrayed them to be, have been watered down yet more. The SCOTUS has said point-blank that a sentencing judge cannot even presume that a guidelines sentence is REASONABLE, much less correct, and still less mandatory.

These facts alone (there are more) fully vindicate my statement that it is a point-blank lie to say, as FAMM did, that, "Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree." Indeed, the scope of the lie is astounding.

Posted by: Bill Otis | Feb 9, 2012 7:55:05 PM

Fed defender & another fed defender --

See my note to Thinkaboutit, above. FAMM's statement that, "Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree" is a point-blank lie, as both of you full well know (if you are indeed federal defenders).

Now that I think about it, I'll bet a good deal that your appellate briefs are chock full of statements to the effect that "the district court was fully free, under the law (Booker, Kimbrough, et al.), to disregard the prosecutor's recommendation and impose the more humane and nuanced sentence about which the government fecklessly complains."

Would I be getting warm?

Posted by: Bill Otis | Feb 9, 2012 8:05:24 PM

"Virtually all sentences are given at or near the bottom of the range."

Says Bill, who does not deny that he has never practiced a day under the federal sentencing guidelines, mandatory or advisory.

Having served more than 20 years in a Federal Public Defender's Office (and still serving), I can tell you that Bill's statement is an outright lie. (Or - giving Bill more benefit of the doubt than he perhaps deserves, an outright reflection of the fact that he doesn't actually practice in the federal criminal justice system and, when he did, it was under the pre-guideline regime.)

He also ignores that, when a statutory mandatory mimimum is involved, it is indeed the prosecutor who gets to dictate what sentence a defendant will receive. This omission is curious given that, even back when Bill was an AUSA, statutory mandatory minimums existed.

Posted by: another fed defender | Feb 9, 2012 8:14:18 PM

Bill, do you disagree that racial disparity exists in the system? It seems that is the question here, not whether a single sentence in this op-ed is 100% accurate.

Here is a link to a resource that readers may find of interest: http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf

Posted by: jennifer | Feb 9, 2012 8:15:07 PM

Bill - nope, not getting warm. In the district I practice in, the government doesn't generally appeal downward variances. (Sometimes the government doesn't even oppose them in the first place.)

Posted by: another fed defender | Feb 9, 2012 8:18:17 PM

It seems to me that the power the prosecutor has that is without a doubt the most powerful is the authority to charge. The charges determine the sentencing range. This is an enormous power given to the prosecutor because of mandatory minimums.

Posted by: beth | Feb 9, 2012 8:40:03 PM

-- Since I use my real name here, those interested in when I was in the USAO can look it up. I'm not that hard to find.

-- I am going to stay on topic, which is this statement by FAMM:

"Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree."

That statement is not and does not purport to be limited to STATUTORY mandatory minimums, and I am going to address it as stated, not as many of you want to massage it.

-- another fed defender's statement that I practiced only under a pre-guideline regime is completely false. I suppose I shouldn't be surprised that lies are enlisted to defend lies.

-- jennifer's attempt to turn the present specific focus on supposed overarching prosecutorial power in sentencing into a discussion of race is not going to work. I full well understand why the defender peanut gallery wants to divert attention to something else, but I won't be going along. Jennifer seems to be a pleasant person, however, so in a future setting I might go where she wants to take me.

Posted by: Bill Otis | Feb 9, 2012 8:55:58 PM


I'll give you the benefit of the doubt and assume you misread and/or misunderstood FAMM's point which was talking about the severe limitations on a judge's discretion under a mandatory guidelines system or when faced with a mandatory minimum. Clearly FAMM (and I) understand that post-Booker, a judge does have much greater authority over a sentence (except in cases of mandatory minimums)-- indeed that is kind of the point. FAMM wants to preserve the advisory guidelines system, in part to avoid or mitigate the extreme prosecutorial discretion that exists under a mandatory system. And, yes, under the current system, my briefs often raise issues based on this newfound judicial freedom and autonomy; arguments that were wholly unavailable before Booker.

Finally, you are sorely mistaken about the frequency of non-government sponsored departures pre-Booker. In many circuits they were rare beasts indeed. For example, according to the Commission's 2005 data, in the Fourth Circuit, 2.9% of cases involved such departures (43 out of 1489 cases!); in the First, 3.8%, the Fifth, 2.5%., etc, etc. The highest rate was in the Second Circuit at 13.1% but this was an extreme outlier.

But, hey, don't let the facts get in the way of your mystifying claim that "a large minority were made without a government request and often over the government's opposition."

Posted by: Fed Defender | Feb 9, 2012 9:14:48 PM

Fed Defender --

I do not want or need the "benefit of a doubt" from you, nor am I going to be led into a discussion of FAMM's "general points."

For at least the third time, I will quote the specific sentence from FAMM: "Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree."

That statement is not and does not purport to be limited to STATUTORY mandatory minimums, and I am going to address it as stated, not as many of you would like to change it or divert attention to gauzier topics.

The statement is, for the third time, a point-blank lie. I would be perfectly willing so to state under oath. Would you be willing to contradict me under oath?

P.S. Neither the advisory guidelines, nor the mandatory ones, nor statutory mandatory minimums made any change whatever in the prosecutor's Constitutionally based power, now and for the last 200 years, to decide what charges to bring.

Posted by: Bill Otis | Feb 9, 2012 9:53:45 PM


Appreciate your willingness to engage but your reading of the FAMM article is almost willfully obtuse. The sentence exists as part of a paragraph which is about a prosecutor's power to dictate sentencing outcomes under a mandatory system or in connection with statutory mandatories. FAMM is in no way suggesting they possess this degree of power under advisory guidelines. How do I know this? I read the sentence immediately preceding the one you are fixated on which states "Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors" and the one which immediately follows which states it would be a mistake to return this power to prosecutors by reinstituting mandatory guidelines.

The assertion that, under the mandatory guidelines, prosecutors exercised a pre-eminent degree of control over sentences is not a lie; it is not even controversial. Indeed, I doubt that the any of the AUSAs I work with would disagree with it. They just see it as a feature not a bug.

Finally, it is true that prosecutors have historically enjoyed unfettered control over charging decisions and, of course, Booker does nothing to change that. They have not, however, historically enjoyed such control over sentences which have traditionally been the prerogative of the legislature and the courts.

Posted by: Fed Defender | Feb 9, 2012 10:17:42 PM

Sometimes, prosecutorial decisions do dictate whether a judge has discretion or not in sentencing. If, as a prosecutor, I have the discretion to charge a defendant with one, two, or three readibly provable offenses under 18 U.S.C. 924(C), I can decide whether he is necessarily facing a minimum of 5 yrs, 30 yrs, or 55 years in prison, consecutive to whatever he might face on related, predicate offenses. And there is nothing whatsoever the sentencing judge can do about that. Some child porn and related cases might fit this description as well.

In other cases, we have very little discretion at all, except save for the decision of whether to charge at all. For example, if we charge a defendant with being a felon in possession of a firearm, whether he ends up being sentenced as an armed career criminal is totally out of our control. If he has the misfortune of having accumulated a qualifying criminal history, he gets 15 years, and there is nothing either the prosecutor, the judge, or the defense counsel can do to ameliorate that situation, except in a circumstance where a defendant might benefit from a substantial assistance motion, which is not common in such cases, at least in my district.

In most other cases, while a prosecutor's decision about what to charge certainly has an impact on what a defendant's ultimate sentence might be (it always has had some impact, even before the guidelines), I don't think it is any where nearly as determinative now, especially post-Booker, and especially with judges becoming more comfortable exercising the discretion Booker and its progeny have given them.

Posted by: rick | Feb 9, 2012 10:42:15 PM

Rick is correct in my experience.

Posted by: Lawdevil | Feb 10, 2012 12:30:26 AM

Assuming the accuracy of the study by the Mich. law professor and the Canadian economist, isn't the point here that race is playing a role in discretionary prosecutorial charging decisions?

In light of 1) the impact of charging decisions on sentences ultimately imposed, and 2) the obvious impropriety of sentencing variances based solely on race, isn't the upshot that efforts should be undertaken to completely eliminate race as a factor affecting sentences?

And, seriously, among those of us who regularly practice in federal court, where the vast majority of cases are resolved by plea bargains, is there really any room for doubt that the greatest control over sentencing is vested in the federal prosecutor? Who has the power to make a 5K motion based on substantial assistance? Who has the power to dismiss drug distribution charges in an indictment, that carry 5-, 10-, or 20-year mandatory minimums, in favor of an information setting forth a phone-count, with a four-year statutory maximum, etc.?

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Posted by: Family Lawyer San Mateo | Feb 10, 2012 3:23:10 AM

rick and Lawdevil --

Having read your comments, I surmise you would agree with me that FAMM is making a false statement when it claims (without any limitation to 924(c) or any other statutory mandatory minimum) that, "Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree." Am I correct in so surmising?

I would note in passing that, even where a statutory mandatory minimum is involved, FAMM's broadbrush statement is STILL false. Suppose, for example, the judge in a 924(c) case regards the defendant as all but certain to kill someone next time. The judge is not restricted to (say), a 5 year sentence. That is the minimum, yes, but it is not the maximum. Since discretion can be exercised in both directions, it's simply false to say that the judge in a 924(c) case has NO power to vary from the minimum: He can go up; he just can't go down. The preserved and exclusively judicial discretion to go up means that it is the court, not the prosecution, that has the final say-so on sentencing.

One other point deserves mention. The prosecutorial decision whether to charge a mandatory minimum offense is not made from bile or a crapshoot. It's made from looking at the evidence. If a 924(c) charge is readily provable, it's SOP to bring it. Indeed, for a prosecutor to FAIL to bring a readily provable 924(c) charge would be highly irregular. In the Eastern District of Virginia, and undoubtedly elsewhere, the practice of whistling past such a charge was called "swallowing the gun" -- a euphemism for making a not very savory deal with the defendant.

Many comments on this thread assume or imply that prosecutors charge mandatory minimum offenses simply on whim. My experience is that that's so much baloney.

I'm sure the defense bar would like AUSA's to ignore the evidence, but my conception of the job when I held it was to look at the evidence squarely, and look at all of it.

Posted by: Bill Otis | Feb 10, 2012 4:01:35 AM

Question for the fed defenders here.

How come you do not move for total e-dsicovery of the prosecutor for an improper motive and of the judge for bias?Why do you always betray your client by laying down and nver attacking the other side to dsiqualify, embarass, and destroy their lives by publishing the content of their child porn ridden computers on the net?

Examples of improper motives? Revenue generation. Any feminist utterance should result in a mistrial, and ethics charges as might any KKK utterance. Refer any chld porn to the FBI. Any support for the War on Drugs is a price support for Al Qaeda and Mexican drug cartels.

I will tell why you betray your client and refuse to attack the other side. You owe your worthless government make work job to the proscutor and to the buffoon on the bench, and not to the client. In the absence of innocence, what you do is morally reprehensible. You try your hardest to street serial killers, terrorists, and fraudsters who have destroyed $billions in economic value. Meanwhile, you allow productive male business men to get rolled by your pals, the prosecutors to the tune of $billions. As a result of your betrayal, manufacturing has moved overseas.

Prosecutors allow 90% of crime to go unanswered, prosecute the wrong guy much of the time, and enrich the enemies of the United States, including terrorists, child porn producers, and drug cartels. I can't say which side is more morally disgusting. I can say both sides are in utter failure. I have advocated excluding lawyers from all benches. One cannot exclude the lawyer from prosecution of defense work. One should deter them. End all self-dealt prosecutor immunity from tort liability. The defense lawyer and the judge should have to pay exemplary damages from personal assets for streeting a killer who kills again. Buy insurance if you do not like that idea. As everyone else has to.

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Posted by: web development | Feb 10, 2012 5:15:43 AM

Um.....guys.....isn't the truth this:

In some cases, depending on the general offense type, the criminal history of the defendant, the quality of the evidence, or any combination of these, prosecutors have up to and including absolute power to control the sentencing options, and in other cases, virtually none. The FAMM piece seems to be focused on the former kinds of cases.

Also, maybe extrapolating one's own experiences into a generalization of the entire federal court system is not so helpful, since every circuit, district and courtroom have their own complexion and tendencies.

Posted by: USPO | Feb 10, 2012 6:38:48 AM

I agree with most of what rick and USPO wrote. Obviously, a prosecutor's power is not absolute. FAMM does not claim otherwise. But under a mandatory guidelines system or in the context of mandatory minimums, it is enormous and, without effective judicial oversight, can be abused.

The Starr/Rehavi study provides empirical support for that claim. The study, which I have read, found that even among similarly situated defendants- same conduct, criminal history, etc- prosecutors were more likely to charge black defendants with mandatory minimum offenses than white defendants. As a result, black defendants ended up with higher sentences than their white counterparts. They do not assert that this bias was conscious or malicious, only that it existed. I'm not a social scientist and am not qualified to judge the quality of their analysis or statistical validity of the data but I do observe that the data did come straight from the USSC.

I think, at a minimum, this belies Bill's claim that it is SOP for AUSAs to charge all readily provable offenses (and thank god for that, given the over-federalization of criminal law, the courts would be clogged for decades). This was ostensibly official DOJ policy under the GWB administration (see the Ashcroft memo) but, as far as I know, it is not current DOJ policy which gives prosecutors significantly more leeway in their charging decisions.

Either way, whether charging is automatic or discretionary, if the punishment outcomes the charging decision produces are unreviewable or unalterable, as is true in mandatory minimum cases and to a slightly lesser degree under mandatory guidelines, the possibility for mischief and unwarranted disparity of treatment will be ever-present. Prosecutors are no more pure or infallible than judges (or defense counsel!) and a rational sentencing system should take account of that fact and should provide a mechanism for correction when their charging decisions produces unjust results (either up or down). The advisory guideline system does this much more effectively than the mandatory system.

Posted by: Fed Defender | Feb 10, 2012 7:43:45 AM

As a current federal prosecutor, I go where the evidence and DOJ policy takes me. If I have evidence that proves a 924(c) or an 841(a)(1)(A) beyond a reasonable doubt, then DOJ policy tells me to charge it, and I do. There's a safety-valve that is available to some non-violent first-time offenders that lets them avoid the mandatory minimum in 841 cases. But if the evidence is there, the evidence is there. End of story. Occasionally, defense attorneys will meet with my front office to make a pitch for us to drop a 924(c), but we very, very rarely do so, for all of the reasons listed in this posting. We strive to treat everyone the same. If the evidence is there, then the evidence is there.

Posted by: domino | Feb 10, 2012 8:27:38 AM

Domino, I bet most prosecutors are like you and strive to treat everyone the same. I also believe that is what most judges do. But only judges are being attacked when their efforts appear to come up short. Judges don't attack prosecutors for giving our ridiculously lenient deals to cooperators. So why doesn't DOJ stick up for judges (and judicial discretion) even though judges will sometimes take a different view of defendants than the prosecutors do?

Posted by: Thinkaboutit | Feb 10, 2012 9:27:17 AM

Q: Why am I the only one here who actually quotes what FAMM said?

A: Because what it said is, as written, false. It's so overblown as to be untrue. The reason others won't quote it is to work around this fact, and focus instead principally on statutory mandatory minimums. But statutory mandatory minimums (a) are a small fraction of the total number of federal prosecutions, (b) were adopted by Congress PRECISELY SO THAT THEY WOULD BE USED, NOT IGNORED, by federal prosecutors, and (c) were supported and passed because it was CONGRESS which distrusted what it viewed as excessively lenient sentencing.

Here again is FAMM's claim: "Prosecutors...get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree."

I said before that is a lie. It still is.

To USPO: A great deal of what you say is correct, and so I want to repeat it verbatim with emphasis I am supplying:

"In SOME cases, DEPENDING ON THE GENERAL TYPE OF OFFENSE, THE CRIMINAL HISTORY OF THE DEFENDANT, THE QUALITY OF THE EVIDENCE or any combination of these, prosecutors have up to and including absolute power to control the sentencing OPTIONS, and IN OTHER CASES, VIRTUALLY NONE. The FAMM piece seems to be focused on the former kinds of cases."

A few points.

1. The FAMM sentence I quoted doesn't say anything about being limited to the former kinds of cases.

2. Obviously, SOME cases is not ALL cases.

3. Your emphasis on the type of crime, criminal history, and quality of the evidence is right on. Particularly noteworthy is that you do not include racial bias as among the factors having an influence. This is a key point, since the FAMM'S whole point is to suggest, sometimes subtly and sometimes less so, that prosecutors push the sentencing system to harm blacks.

4. The power to control sentencing OPTIONS is something different from the power to control "WHAT SENTENCE THE DEFENDANT WILL RECIEVE," which is the exact wording of what FAMM falsely claimed.

5. Your observation that in some cases, prosecutors have virtually no power to control the sentence by itself puts the lie to FAMM'S claim.

To Fed Defender: You say, "Obviously, a prosecutor's power is not absolute. FAMM does not claim otherwise."

Well, actually, it does.

Again, I will quote what FAMM explicitly claims (emphasis added): "Prosecutors...get to DICTATE what sentence a defendant WILL RECEIVE if found guilty since judges have LITTLE OR NO POWER TO DISAGREE."

Excuse me, but when FAMM claims that prosecutors get to DICTATE the sentence, that most certainly is a claim that their power is absolute. If FAMM had wanted to say "influence," it easily could have. It didn't.

"But under a mandatory guidelines system or in the context of mandatory minimums, it is enormous and, without effective judicial oversight, can be abused."

Two points. First, we don't have a mandatory guidelines system and have not had for SEVEN YEARS. Has FAMM been living in a cave? Second, as I noted, it is only a small minority of federal charges in which a statutory mandatory minimum offense is alleged. It's dishonest for FAMM knowingly to paint the entire system in a color that applies to only a small part of it.

Nor is it up to the judiciary to monitor the "abuse" of prosecutors' charging authority. As the Supreme Court said in Armstrong, and as you have acknowledged, charging authority rests exclusively with the executive branch. Abusive charging can be investigated by Congress, and of course an abusive AG can effectively be removed by the voters in the next election.

For the moment, I won't ask what you mean exactly by "abusive charges." Do you mean ones for which the evidence is lacking? If so, take to the jury and embarrass the erring prosecutor with an acquittal. If not -- if the charges are in fact backed up by evidence -- why is it "abusive" to bring them?

Lastly, for the moment, let me say that I appreciate your professional tone. If you had been the one writing the FAMM statement, I suspect we would have seen considerably less florid and exaggerated language.

Posted by: Bill Otis | Feb 10, 2012 1:56:23 PM

Unfortunately prosecuting and defending a defendant becomes a blood sport. This puts into question the truth in the outcome. It frequently sounds more like rooting for a sports team.

Posted by: beth | Feb 10, 2012 3:26:53 PM

Bill, thanks for the compliment. I do appreciate it, as I appreciate your willingness to debate these issues that are so important to both of us.

Having said that, I think we will have to agree to disagree about the meaning of the FAMM piece. I simply do not think that sentence about a prosecutor's ability to "dictate" a sentence can be read and understood without reference to the rest of the paragraph.

Here's what I think FAMM is saying; you tell me where I am wrong:

The first paragraph states there is a growing push to "fix" the Guidelines by making them more mandatory. FAMM obviously thinks this is a bad idea and one reason why they think this is that "Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors" which in FAMM's view allows prosecutors to "dictate" sentences in a manner that leaves judges very little discretion. The WHOLE POINT of the paragraph is that advisory guidelines ameliorate this problem by limiting a prosecutor's ability to dictate sentences and that therefore the "restoration of mandatory guidelines" would be a mistake. These are quotes straight from the piece.

I'm sure you and FAMM disagree on how much power over sentencing it is wise to grant prosecutors. But I have absolutely no doubt that FAMM agrees with you that, at least under the current system, a prosecutor's ability to "dictate" a sentence is greatly diminished. They just want to keep it that way.

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