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September 3, 2013

Bill and Doug's excellent adventure ... debating mandatory minimums in Federalist Society Teleforum

Bill and tedFor anyone who especially enjoys the verbal sparring between me and Bill Otis in the comments to this blog, you may want to quickly become a member of the Federalist Society so you can hear us go at in for a full hour as part of this exciting event being put on this afternoon by the FedSoc folks:

Is Eric Holder Right About Mandatory Minimums?

Criminal Law & Procedure Practice Group

Douglas Berman, William G. Otis

Start : Tuesday, September 3, 2013 2:00 PM

Location:  Federalist Society Teleforum Conference Call

On August 12, U.S. Attorney General Eric Holder announced that the Justice Department will no longer pursue mandatory minimum sentences for what he described as certain low-level, nonviolent drug offenders.  Our experts will discuss Holder’s announcement and approach.  In addition, they will address a variety of other issues related to mandatory minimum sentencing, including the question whether or not mandatory minimums are conceptually sound.


  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law, The Ohio State University

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Post-forum UPDATE: As you might have expected, Bill and I had a grand time talking past each other in an effort to highlight the pros and cons of mandatory minumum sentencing statutes. In all seriousness, I share Bill's perspective appearing in the comments below that "listeners got a full airing of the most persuasive points on both sides." And, valuably, you can still hear for yourself as a podcast of the hour-long discussion is now available from The Federalist Society via this link.

September 3, 2013 at 11:35 AM | Permalink


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Bill has very little ground to stand on with the MM, the way Ag Holder has stated the changes.
They will still exist so they can threaten and bully defiendents like the thugs the Feds are.

As far as having Congress make the law and not Ag Holder to encourage when to enforce which laws, its a no brainer... They just aren't goi ng to push the MM on defendents less than a specified History category....It really won't have much of a change in the totality of federal sentenceing. But if you happen to be one that was spared a major MM, then it is huge.. They still have the 851 enhancements, (which are extra extra insane enhancements) so what is the problem here...

Doug you will win this debate hands down, I will bet Obamas job on it.. (risky devil aren't I)

Now on totally removing all MM's....I would vote for that, also to get psuedo conversions cut back the same as they did for crack. ALso to give 40% good time days... Even though crime has dropped, you don't keep people locked up from 20-40 yrs because it tripped some federal trigger, lurking in the background
that had nothing to do with the instant offense..Guidelines need to be 100% rewritten...

Posted by: MidWestGuy | Sep 3, 2013 12:36:40 PM

We have just completed the teleforum, and I want to thank Doug for his extremely thoughtful and informed discussion. I think listeners got a full airing of the most persuasive points on both sides.

Posted by: Bill Otis | Sep 3, 2013 3:19:28 PM

Hi Bill, I know you did an excellent job of supporting the MM's.

The above post was just my view point, in advance..

You are a smart talented guy Bill...Just on the other side of the fence
with me on the enhancements and amt of time assigned...But you support your thoughts and I support mine just the same...I know you saw a lot more cases than I ever will, therfore some tough nuts to crack and others that maybe needed to be removed from the gene pool. But on my end, the garden variety drug case is from Smallville and is just trying to crank out his next batch or buy it...Many history points are
accumulated by various ways. OWI's, domestic violence, posession, no drivers license etc...These are a typical and puts many in Cat 6 and some in Career Offender classification...They absolutely get hammered to the wall, with no recourse...A large part of it is psuedo to weed conversion, 1000 ft and owi's count 2 points each.. Pretty much hosed going forward...

If only Congress could actually express what and how they feel, instead of how they are told to respond, things would be much better.
Oh well, we are still supposed to have the best system, but somehow its awfully ineffective. Billions are wasted every yr, and the govt doesn't learn....

Posted by: MidWest Guy | Sep 3, 2013 4:34:21 PM

Bill, Would you be willing to provide your opening comments? I would like to post them, unedited, and without commentary, on my blog.

Posted by: P.S. Ruckman, Jr. | Sep 5, 2013 11:12:20 AM

Prof. Ruckman --

I am humbled by your request and happy to comply.

I have just today put up my opening statement on Crime & Consequences: http://www.crimeandconsequences.com/crimblog/2013/09/the-case-for-mandatory-minimum.html

Should there be commentary from your readers, I'd be interested to see it.

Did you happen to listen in? If you have any assessment, I'd be very interested in that as well.

Thank you for your request.

Posted by: Bill Otis | Sep 5, 2013 6:04:28 PM

Bill, thanks! I just posted it up.

I have listened to the discussion, front to back, maybe 5 times now. And will probably listen to it more tomorrow. I found it utterly fascinating, although I was somewhat offended that Berman wanted to send me to prison for running a stop sign last week :-)

But, seriously, I thought your opening statement was absolutely delicious, informative and compelling. I have been doing some back and forth with my clemency peers, over the last couple of weeks, as well as 2-3 federal prosecutors with whom I am friends, trying to get a bigger picture of things and, well, I haven't really done very good at it. I don't blame them, of course. Your statement, however, did a wonderful job of framing the discussion for me. I feel like I have much better idea of what I need to think about / study more carefully, and how I need to assess my future thoughts and considerations.

So, it was pretty much everything I wanted in an opening statement on this topic. I appreciate your effort, and your sharing it.

Posted by: PSRuckman | Sep 5, 2013 7:20:14 PM

Kudos, Mr. Bill. Good job on the debate. You even had me convinced at times until Prof. Berman's rebuttal. His red light analogy was colorful (red) and effective.

I'm not sure about your reliance on the 60s and 70s though as the source of all evil when crime jumped. Has anyone compared it to the Roaring 20s during Prohibition? Was incarceration nation necessary then? Did it solve the problem? IOW, it is easy to say severe sentencing at a prosecutor's discretion is the panacea, but was it in the past? Maybe other factors were more important then and now. Or maybe incarceration nation was necessary but only for a while. The sky didn't fall down during the 40s and 50s when the per capita incarceration was much, much less than during Prohibition, assuming the incarceration rate was necessary and did jump. Maybe I'm reflecting on this having just watched Ken Burn's Prohibition set in another very complicated time.

You also repeated that the Constitution gives the AG its power, but where is that?

Q41. "I'm writing a paper regarding the implications of Janet Reno appointing a special prosecutor in certain instances. Does anyone know where the office of the attorney general is authorized? What are it's specific responsibilities?"

A. The Attorney General is authorized in the U.S. Code, 28 USC Sec 503 (or Title 28, Part 2, Chapter 31, section 503 for us mortals). Specifically:

The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. The Attorney General is the head of the Department of Justice.

The duties of the AG are those of the Department of Justice, as set out in Title 28, Part 2. The first Attorney General was Edmund Randolph, appointed by George Washington in 1789.

Is this answer wrong?

Posted by: George | Sep 5, 2013 8:31:24 PM

Prof. Ruckman --

Happy to help. I might be doing a piece in the Federal Sentencing Reporter on this in the bye-and-bye, for which my opening statement will be the framework.

Posted by: Bill Otis | Sep 6, 2013 12:19:51 AM

Bill, I will also own up to the fact that you touched a soft spot when you mentioned James Q. Wilson. I never met him personally, but he was extraordinarily kind to me professionally, and my quality of life was significantly enhanced by his generosity. Toward the end of his life, he also compensated me from his personal checking account, over the summers, to read and critique chapters in his American Government text. I found his response to criticism a model to which I aspire. I felt very lucky to have known him. And I miss him a great deal. Best,

Posted by: P.S. Ruckman, Jr. | Sep 6, 2013 9:18:35 AM

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