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December 28, 2013

George Will laments "mandatory minimums as sledgehammers"

This past week, Washington Post columnist George Will made heavy use of recent opinions by Judge John Gleeson to join the chorus of commentators lamenting federal mandatory minimum sentencing statutes.  Here are the closing paragraphs from this commentary, headlined "The sledgehammer justice of mandatory minimum sentences":

Kenneth Harvey was 24 in 1989 when he committed a crack cocaine offense. He had two prior offenses that qualified as felony drug convictions even though they were not deemed serious enough for imprisonment. They, however, enabled the government to make an 851 filing. He will die in prison. Harvey is 48.

Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”

Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount.

December 28, 2013 at 10:10 AM | Permalink


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The adjudicated charge is likely fictitious unless a full trial. Is the adjudicated charge pretextual incapacitation of a mass murderer of drug rivals? If his crimes have been far more damaging, the sentencing is useful, as tax evasion life sentence had to stand for the mass murders of Al Capone.

Please, stop these sob about vicious drug dealers who may have killed many, kidnapped and tortured little kids until payment due was received, unless all the facts of their criminality have been learned.

Also, great conduct and progress in prison merely proves, the criminal is a good responder to structured settings, and should stay in one permanently, now, for his own good, and not just for the public safety.

Posted by: Supremacy Claus | Dec 28, 2013 9:45:51 PM

Why all the fuss about mandatory minimums? As bad as they are, MMs seem only marginally more cruel and excessive than garden-variety sentencing-guidelines punishments. Certainly the way prosecutors stack and manipulate ordinary guidelines charges typically provides as much (often more) coercive power to leverage confessions (amass and brandish trial penalties) as MMs do.

Nonetheless, it's good any time a respected commentator of Will's stature discovers the dark arts at work in the nation's incarceration system. I hope he didn't have to learn that dismal lesson the way most Americans do -- after a relative or other loved one has been ensnared by the system.

Try to imagine how much trouble Congress would be in if the Judicial branch had the wherewithal to declare war on lawmakers the way Congress aggressively neutered judges with MMs and draconian sentencing guidelines.

Maybe Congress' success at turning judges into clerks (and judges meekly/eagerly acquiescing) reflects the larger victory by conservative congresses over the past few decades in packing courts with arch-conservative judges while cowing progressive lawmakers into picking no-threat moderates.

Posted by: John K | Dec 29, 2013 11:42:50 AM

Did you read Will's column, SC? Kenneth Harvey wasn't a baby-torturing, serial-killing drug dealer. He was a petty drug offender who wanted a trial to dispute new charges against him.

Try to imagine -- if you can -- that sometimes things don't work the way you imagine they do. Sometimes plea bargaining goes the other way: prosecutors throw the book at innocent, wrongly accused citizens who end up falsely admitting guilt to avoid disasters like the one that consumed Will's guy.

In other words, plea-bargaining is not always a case of big crimes being reduced to little ones. Often it's just the opposite.

Posted by: John K | Dec 29, 2013 12:34:58 PM

John: Good points. The real reason for mandatory guidelines was not to increase uniformity and justice levels. It was to take discretion away from judges who allowed massive criminality in the 1970's and 1980's, and to prevent crime. Prof. Berman asked me about this purpose, and I referred him to the The Comprehensive Crime Control Act of 1984 (Pub.L. 98–473, S. 1762, 98 Stat. 1976, enacted October 12, 1984), it started the Sentencing Commission, reenacted the federal death penalty, addressed armed repeat offenders, gave the Secret Service jurisdiction over credit card fraud, and other anti-crime measures. The nation was tired of massive criminality. They did not say it explicitly, but the Congress wanted more people in prison.

I cannot determine the unstated facts of the long sentence from the article. But you support the lifetime incarceration of Al Capone for tax evasion, given the inability of corrupt or afraid state officials to put him away for his mass murder of hundreds of people. The St. Valentine Day's Massacre was the last straw for the public. Otherwise, is a lifelong sentence for not handing in paper work fair? No. He died of tertiary syphilis in federal prison.

As to false convictions of innocent people, including the the quarter of innocent people on death row who were made to confess, I have strongly supported the tort liability of prosecutors both for over charging/ stacking and failing to exercise discretion and not prosecuting a bad guy who foreseeably hurts subsequent victims. Although the activity of prosecutors (intentionally hurting people) qualifies them as dangerous in ordinary use, and subject to strict liability, strict liability would bankrupt government in a short time. I think they should be subject to professional standards of due care. Convicting an innocent person is prosecutorial malpractice. If he engages in corrupt practice violating any rule, such as withholding exonerating evidence, that should be an intentional tort subject to exemplary damages. The prosecutor should be forced to carry professional liability insurance.

The Supreme Court has repeatedly granted prosecutors absolute immunity from tort liability no matter how bad the conduct of the prosecutor. Your beef is with them, not with me.

Posted by: Supremacy Claus | Dec 29, 2013 2:03:00 PM

John K., I think that you only look at one side of the equation---there's a reason for MMs and harsh sentences--namely the phenomenon of revolving door justice. Blaming "arch-conservatives" (and I'll count myself among that group) for the imposition of harsh sentences is silly. America, as a whole, became sick and tired of the spectacle of serious offenders not getting serious time and wreaking havoc. How many kids never got a chance because some liberal sentencer or liberal parole policy released some animal out on the streets?

I am a forceful advocate of a robust system of executive clemency. And I fully understand that a prison bed is a scarce resource (and that doesn't take into account the lost opportunity cost of someone who would, on the outside, contribute to society). But whining about meanie Congress ignores the fact that criminals are dangerous, and the liberals had their chance, and a lot of innocent people paid dearly for it. How would you like to live every day of your life knowing that some criminal who should have been locked up killed your child?

I am not familiar with Mr. Harvey's case. Perhaps 24 years is enough. If it is, I hope that President Obama takes a look at his sentence and considers commutation.

Posted by: federalist | Dec 29, 2013 4:32:39 PM

John K --

"...prosecutors throw the book at innocent, wrongly accused citizens who end up falsely admitting guilt to avoid disasters like the one that consumed Will's guy."

That sentence is a fantasy.

You can find some wild exception, sure. But I repeat, and would happily state under oath, it's a fantasy.

This is what actually happens: Prosecutors pare down the provable charges dramatically just to insure the case goes smoothly, and guilty defendants concretely in a state of denial refuse to admit what they've done -- to the extent such a refusal is even remotely plausible -- because they want to evade responsibility for their greed-driven acts. They have no problem lying in order to accomplish the evasion.

I saw this happen again and again and again, and I'll say that under oath as well. And any honest defense lawyer will agree with it, although perhaps not in public.

Posted by: Bill Otis | Dec 29, 2013 5:25:09 PM

Bill: Not quite. Prosecutors allow 90% of violent crime to go unanswered, then waste $2 million in tax money prosecuting Martha Stewart for a $40,000 beef, but mostly for lying to the FBI, solely to see their names in the paper. Meanwhile, MS13 illegal alien gangbangers behead people who offended them with impunity. I am sorry, but the FBI is an internal enemy, allowing 9/11 to proceed unfettered for political correctness purposes, and in collaboration with the Arab enemy. Patriotic Americans have a duty to refuse to cooperate with these low life traitors, America haters, these worthless, make work government job fillers, coffee drinking, rent seekers. Many are law school grads, compounding their toxicity to the nation.

Someone is beating his own frail mother with a tire iron outside an office. A friend runs out yelling to stop. He removes a pistol from a bag. Does not point it, puts it back in two seconds after the beating stops. The mother and her son beating her thank him later for preventing a serious injury and a big mistake.

Who gets prosecuted? My friend is arrested and processed, spends night in jail. The person who stopped the harm, and caused none gets prosecuted for aggravated assault. He has to plea down, feeling afraid for his freedom. Licensing hassles ensue.

To me, a charge, an investigation is always a great opportunity to destroy the life of a lawyer, and to deter the profession. As they give no quarter, so none should be given, and driving the lawyer enemy out of the state, out of the profession, preferably to suicide is a blessing. The profession is the internal enemy, which has taken over all the policy positions of our government. They are the Nazis, we are all the Jews, everyone productive in the nation. Killing them is not desirable, it is an absolute duty.

My friend just wanted out of the nightmare, so turned down my offer to work with his lawyer to counter attack this vile feminist pig, attacking the person who stopped a crime. Was the original attacker prosecuted? Hell, no. He was a criminal, a client of the vile feminist lawyer, including prosecutors.

What is it with the Florida prosecutor? Then I read this.

This filth prosecutes George Zimmerman after the local police files no charge.

They get 20 years for a woman who fired into the ceiling to warn her ultra violent husband.

These pro-criminal traitors should be personally destroyed. To deter.

Because of their immunity, violence has full justification even down to formal logic. If tort liability is a substitute for violence, then immunity justifies violence (the contra-positive of a true proposition is always true). I would support a direct action group of crime victims and their families bringing the unspeakable violence to the lawyer profession protecting the violent criminal predator from being killed.

Even if a naive prosecutor wants to do the right thing, he is an at will employee, and has no protection from political pressure of the political hack running his division.

Posted by: Supremacy Claus | Dec 29, 2013 8:13:06 PM

S.c. you write :"I am sorry, but the FBI is an internal enemy, allowing 9/11 to proceed unfettered for political correctness purposes, and in collaboration with the Arab enemy."

You rabid and vile screed is the product of a very sick mind.

Posted by: anon | Dec 30, 2013 4:49:44 PM

The FBI was OK when it reserved terrifying powers for mob bosses and drug lords. Eventually it began using them against every citizen who had the misfortune of popping up on its radar.

The few agents I've seen in action struck me as macho,, ex-military types willing to do or say anything to turn citizen-suspects into inmates without any real regard for truth or fairness -- let alone justice.

Posted by: John K | Dec 31, 2013 8:46:13 AM

Anon. No one was fired after 9/11. How bigger a mistake does it take to get fired at the FBI? If were the supervisor of the lone female agent reporting Arabs taking flying lessons, I would have decency and shame to hang myself.

Posted by: Supremacy Claus | Dec 31, 2013 12:44:23 PM

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