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April 5, 2013

Rand Paul begins forceful pitch in campaign against federal mandatory minimums

Rand Paul

I suspect that US Attorney General Eric Holder and US Senator Rand Paul do not have the same position on a lot of different issues.  And yet, today in the post right after this post covering a big speech by AG Holder in which he suggests exploring ways "to give judges more flexibility in determining certain sentences," I get to highlight this new op-ed in the Washington Times by Senator Paul which assails federal minimum sentencing laws for taking sentencing authority "away from the jury and judge."

I urge everyone to read Senator Paul's op-ed in full, and here are just a few passages that prompted me to find and post the picture that accompanies this posting:

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

Last year in my community, a family lost one of their sons to an overdose. They almost lost their other son to a mandatory minimum sentencing. Federal law requires a mandatory 20-year sentence if a death occurs, even an accidental one. If prosecutors had charged the surviving brother in federal court, he would have received a mandatory 20-year sentence.

When a crime is committed, it should fall to the local prosecutor, judge and jury to determine the guilt or innocence, as well as determine the just punishment for the crime. In the current system of federal mandatory-minimum sentencing, the authority is taken away from the jury and judge, and given by the legislature to the executive. Prosecutors already have tremendous power because they collect the evidence and choose which crimes to charge. If a mandatory penalty is attached to that crime, the prosecutor then exerts much influence over the entire procedure, including the sentence.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right.

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion.

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Some might think it is unusual for a conservative Republican to join a liberal Democrat on such a bill, but contrary to popular belief, the protection of civil liberties and adherence to the Constitution should be a bipartisan effort....

I will speak more about this in a speech I am giving at Howard University on April 10.  I hope to engage conservatives and liberals in a discussion of how the federal government should handle mandatory minimums and the reforms needed to secure our Fourth, Fifth and Sixth Amendment rights.  How much of our liberty are we willing to yield to the government in the name of a false sense security?  This is a debate that crosses many issues, and deserves full and fair exploration.

Ever the sentencing geek, I am already giddy in anticipation concerning Senator Paul's upcoming speech on these issues at Howard University. The setting is notable in part because way back in 2007, as blogged here and here, then-Senator Obama gave a big speech about the need for federal criminal justice reforms.   I would be foolish to assert that talking the talk about criminal justice at Howard University is a key step toward becoming US President, but I do not think it is foolish to assert that Rand Paul has (in my view, wisely) perhaps figured out that it may be politically valuable to speak forcefully and in constitutional terms about the need for significant federal criminal justice reform.

Some recent and older related posts:

April 5, 2013 at 03:46 PM | Permalink


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Doug, in my forty years of doing criminal defense, the biggest shift I have seen is the balance of sentencing power swinging from the judge to the prosecutor. North Carolina's extremely complicated grid of potential sentences has created a system where prosecutors can place tremendous pressure on defendants to plead guilty and accept long sentences rather than go to trial and risk a much longer sentence. There are some prosecutors around the state who pride themselves on how "creative" they can be to impose a trial penalty, a practice which I believe is blatantly unconstitutional.

I look forward to what Sen. Paul has to say on April 10.


Posted by: bruce cunningham | Apr 5, 2013 4:03:27 PM

I remain cynical as to whether it is affirmatively politically valuable to speak out on these issues in this direction. But getting to the point where it is not affirmatively politically dangerous to do so is an accomplishment not to be sneezed at.

Posted by: JWB | Apr 5, 2013 4:47:00 PM

JWB --

Your cynicism is well grounded. Sen. Paul knows exactly what he's doing, to wit, laying the groundwork for his 2016 Presidential run. He knows his current pitch will be well received by groups with a great deal of money to contribute to their anointed candidate.

Posted by: Bill Otis | Apr 5, 2013 5:10:44 PM

Maybe I'm not cynical enough, because I don't see the obvious donor-base angle. If Sen. Paul ever gets anywhere in the polls, the liberal media will go back to their prior storyline of OMG HE WANTS TO REPEAL THE CIVIL RIGHTS ACT. On the other hand, if criticizing DOJ overreach becomes as guaranteed an applause line to GOP primary voters as criticizing the IRS (not that winning GOP candidates ever really do much to change the IRS . . .) that would be pretty interesting. FWIW, while I'm sure he's sensitive to political advantage, I see no reason to doubt Sen. Paul's sincerity. If we could use a man like Herbert Hoover again (Coolidge would be better), we should be willing to roll back DOJ to its pre-1933 dimensions (except without the Volstead Act enforcers).

Posted by: JWB | Apr 5, 2013 5:41:18 PM

I have questions about the historical accuracy of Senator Paul's statements. There have always been sentencing ranges with a minimum punishment and a maximum punishment as well as non-probationable offenses. The problem is not the concept of a mandatory minimum but rather the details of what triggers a different minimum sentence and how much of a bump is caused by that trigger.

The other part of Senator Paul's complaint has to do with the over-federalization of the criminal law. While the generic complaint is something that I sympathize with, both sides of the aisle tend to introduce legislation increasing the number of federal offenses to respond to the issue du jour, and there are some offenses which should be handled by the federal prosecutor instead of, as all too often occurs, left to the state prosecutor because the charge does not meet the criteria of a given US Attorney.

Posted by: tmm | Apr 5, 2013 6:14:20 PM

I applaud Paul's stance. For more reading he had written a book "Government Bullies" just published in September 2012, further crystalizing his stance on Over Criminalization in this country...so it is Not just mandatory minimums he is attacking. As readers know, I was accused of Federal Crimes for buying a boat, and allowing my spouse to remove spouse's name from a joint account. (these every day activities become crimes IF the Government could convince a jury that I knew I was handling money from a criminal source---they could not--- it all hinged on KNOWING in my case. Any transaction with money you might even should have SUSPECTED came from a criminal source could potentially land you in prison. For me, this made the Government the Thought Police--"Did the defendant Know..?" Because, as just stated, buying a boat is generally not considered a crime. There was absolutely no negotiating with the prosecutor in my case. I had to have a Jury tell him I was innocent.
Our Justice System does need reforms...the US should not be proud of its label:
Incarceration Nation.

Posted by: folly | Apr 8, 2013 1:58:07 PM

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