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December 4, 2013

"The wrong people decide who goes to prison"

The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler.  Here are some of the on-the-mark views coming today from these Marks:

Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law.  Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.  It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good.  Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way.  Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....

Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence....   [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.

The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.

There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time.  In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee.  In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.

In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used.  It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.

The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough.  It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.

December 4, 2013 at 11:30 AM | Permalink


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"The wrong people decide who goes to prison" by US District Judge Mark Bennett and Prof. Mark Osler
Doesn’t Judge Mark Bennett decide?

Posted by: Adamakis | Dec 4, 2013 12:18:42 PM

// There is also breathtaking disparity … For example, in Florida, prosecutors in the Northern District
apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time. //

So when judges make largely unaccountable decisions, it's "discretion" at work; when prosecutors charge
and have to prove allegations before the judges, it's "disparity" at play?

Posted by: Adamakis | Dec 4, 2013 12:28:51 PM

I agree with Prof. Osler, the wrong people. Nearly all adjudicated charges are fictitious. It is unknown if the non-violent dealer has killed hundreds of competitors to maintain market share. We do know crime is very high.

The authors are quite mistaken about the reason for guidelines. Not uniformity, but to remove sentencing from criminal coddling judges causing Fallujah like conditions in our central cities in the 1970's and 1980's.

Seasoned detectives should review appeals of convictions for mistaken verdicts. Psychologists should determine. and review sentences for optimum public safety. Both should have tort liability if their mistakes damage an innocent defendant.

Posted by: Supremacy Claus | Dec 4, 2013 1:46:57 PM

The opening line is this: "Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law."

And right there, the authors give away the game. Not once in this screed do they bother to mention the huge reduction in crime caused in significant part by harsher sentencing. Not once. Instead, the result of honesty in sentencing and massively less crime is "tragic." Far out!

The decrease in crime afflicting our people literally does not count. The ONLY thing that counts is for pro-druggie judges like Bennett to have yet more power to help increase overdosing, addiction and misery (and don't let me leave out Jack Weinstein and his love affair with CP distributors).

Zero percent concern for the 99% who are not in federal (or any other) prison, and overweening concern for the less than 1% whose desire to make a fast buck puts them on the wrong side of an indictment.

There is this virtue, though: at least Osler and Bennett make no pretense about how radical they are, and how enthusiastic to take the side of heroin pushers and defilers of eight year-olds.

I hope their view get LOTS of coverage, and I thank Doug for putting them up here.

Posted by: Bill Otis | Dec 4, 2013 6:31:59 PM

Seems to me they are saying that the tragic transformation of criminal law was that sentencing discretion was now the perogative of prosecutors not judges. There is room to debate that dvelopment.

Posted by: beth | Dec 4, 2013 6:37:28 PM

The tragedy referred to is the disparity in sentencing, not the simple fact that prosecutors rather than judges are causing them. But the sad reality is that many federal prosecutors are scalp hunters, careerists, or self-righteous folks who want to crush the accused without regard to counterbalancing considerations. Judges May sentence based on their own motivations too, but there is a lot of sense to splitting charging and (effective) sentencing decisions between branches.

One of the most interesting subtexts in the Apprendi line of cases has been the unintended consequences of the drift away from entirely determinate sentencing. Though the modern climate would probably produce overly harsh determinate sentences (at least in non-white collar contexts) you can see the appeal in light of all this.

Posted by: Merritt | Dec 4, 2013 9:54:36 PM

The ultimate question is how narrow should a legislature define the sentencing range.

A narrow sentencing range has the advantage of precisely defining the punishment for a criminal act and giving notice of the likely sentence that an offender will receive if found guilty of committing an offense.

The purported disadvantage of a narrow sentencing range is that it increases the importance of charge bargaining (which allegedly gives the executive branch too much leverage in plea negotiations). In plain English, if the presence or absence of an additional element (say over or under 10 kilos of marijuana in a possession case or whether a defendant deliberated in a murder case), makes a significant difference in the available sentencing range, then the prosecutor's decision on whether to attempt to prove that additional element (assuming that she has substantial evidence to support the element) matters greatly to the defendant and gives her something that she can use in plea negotiations (just as a defendant can use the threat of going to trial if the prosecutor does not make a better offer).

Does a narrower range of punishment make it easier for both sides to reach a plea agreement (particularly in districts and with judges who only allow charge bargaining but not sentence bargaining)?

Those are the systematic issues with mandatory minimums and guidelines and similar restrictions on judicial discretion. Whether the sentencing range for a particular offense is the appropriate sentencing range is another issue that has nothing to do with judicial discretion and has everything to do with what a person should get for a particular crime. Since we elect legislatures to reflect society's view of what qualifies as a more serious offense, I am not offended by the legislature defining what it believes merits additional punishment. To the extent that anyone disagrees with legislative decision to tie an increased punishment to a certain enhancing element, that is something that warrants debate on that particular law rather than an attempt to convert a disagreement with particular statutes into a systematic issue.

Posted by: tmm | Dec 5, 2013 9:54:43 AM

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