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February 20, 2014

Are we "headed for a crime-riddled future" without mandatory minimums?

The question in the title of this post is drawn from a notable quote toward the end of this notable new article from The Economist. The article is headlined "Sentencing reform: Kinder, gentler; Less time inside for less-serious crimes." Here are excerpts:

Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences.  The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then.  But it appears to have given sentencing reform a strong shot in the arm.

In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges....

Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly.  Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced....

Not everyone is happy with these changes.  The National Association of Assistant United States Attorneys (NAAUSA), which represents a minority of federal prosecutors, urged senators not to “weaken the benefits of mandatory minimum sentencing” — ie, the fact that harsh sentences terrify defendants into co-operating with prosecutors.  One member of the NAAUSA frets that without mandatory minimums, “we are headed for a crime-riddled future.”

Yet reform continues. Barack Obama has yet to commute many long federal sentences, but the Justice Department wants to find more candidates for presidential clemency.  On February 11th Mr Holder urged states to repeal laws that bar ex-convicts from voting. Anecdotal evidence from federal courts in Tennessee, Vermont and Virginia shows that some judges are already shifting position because they expect the Smarter Sentencing Act to pass.  Advocates for ever-harsher sentences appear to be losing the whip hand.

February 20, 2014 at 06:23 PM | Permalink


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Many prosecutors are really great people, but others have wielded power spectacularly poorly, including many that have ascended the ranks of the DoJ or have ambition to do so. I'm an outside observer, however. Perhaps it's just here in the south.

Federal sentencing hearings can be a circus of distorted facts that would survive less time than a belch at trial, but are considered relevant conduct. While I'm used to it most of the time, like Posner, I lose sleep some nights.

Posted by: Conclusory | Feb 20, 2014 7:48:23 PM

A crime ridden future with a massive terrorist attack thrown in would be good for this country. It might motivate it to move against the internal traitors in the lawyer hierarchy.

"It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences."

I can report that it is part of the job description of these drug dealers to kill rivals seeking to invade their territory, with 12 year olds being used because the lawyer will not penalize them too much.

Posted by: Supremacy Claus | Feb 20, 2014 9:31:56 PM

Mandatory minimums for drug crimes are justified with the canard that they apply mainly to the worst offenders. But in reality, they mostly get applied to mules and patsies. True drug kingpins usually are facing so much time under the guidelines, after adding up relevant conduct and offense circumstances, that they would welcome a sentence at the mandatory minimum. More importantly, however, mandatory minimums have not made an appreciable dent in drug trafficking since they were adopted 30 years ago. We continue to see truly astounding amounts of drugs being transported in individual shipments: marijuana by the metric ton, 99% pure methamphetamine, cocaine, and heroin by the kilogram, all of which entail lengthy mandatory minimum sentences. Judges hate them, and with good reason, because even very strict judges believe they should be able to treat different defendants differently and that the crime alone does not define the defendant. They are dreadfully expensive in the long run. Prosecutors tend to like them because they believe the minimums operate as a sort of bargaining chip, but in my experience they aren't even that, because prosecutors are required to indict drug amounts and are not permitted to negotiate that issue. It's not a bargaining chip if you can't actually bargain with it. At the margin, they might even encourage more trials, not fewer, because why bother pleading guilty if the outcome is essentially the same either way? So they end up being just this thing that hangs over the criminal justice system like a bad stench that won't go away.

In the end, the only people who benefit from mandatory minimums are the ones who get paid to run prisons--to those people, mandatory minimums are the gift that keeps on giving.

By the way, that memo by Attorney General Holder mentioned above seems to be routinely ignored. I have yet to see a prosecutor comply with it. I'm curious to know if it's changed anything in any districts.

Posted by: C.E. | Feb 21, 2014 12:51:20 AM

We had mandatory minimums imposed in 1951, and they were increased in 1956. We got rid of them in the 1970s for the same reasons some people think we should get rid of them today. What happened to crime in the 1970s and 1980s? It sky-rocketed. So, Congress passed tough mandatory minimums in 1986 and 1988. What has happened to crime? It has went way down. And, now here we are talking about getting rid of the mandatory minimums again. What is it they say about those who fail to learn from history?

Posted by: Zachary B. | Feb 21, 2014 9:24:11 AM

It depends upon what mandatory minimums are being eliminated/reduced.

First, I can't see there ever being a time in which some offenses do not have a mandatory minimum (anybody really proposing lowering the minimum sentence for a cold-blooded murder to one day. As I have noted previously, every offense (both state and federal) has a range of punishment options which can be described as a mandatory minimum and a mandatory maximum. An argument that mandatory minimums are bad (but mandatory maximums are good) is over-simplistic. The debate really needs to be offense specific. Are some federal mandatory minimums for "low" level drug offenses too high? Maybe. Are federal mandatory minimums for weapons offenses to high? I do not see that type of argument having much traction outside the defense bar and the gun lobby.

Second, most offenses (including most of the serious offenses) are handled in state court, so I really do not see how any change to the penalties available in the rare drug case or rare robbery case that ends up in federal court is going to dramatically alter the level of crime. Now, if we are talking massive reductions in penalties under state law, then perhaps we need to be concerned about the level of incapacitation and deterrence and what that will do to crime levels.

Posted by: tmm | Feb 21, 2014 10:20:58 AM

"A crime ridden future with a massive terrorist attack" -- Sup. Clause

Exclusive: Islamist Terror Enclave Discovered in Texas
FBI documents obtained by Clarion confirm the find and show the U.S. government’s concern about its links to terrorism.
|BY RYAN MAURO | Tue, February 18, 2014

A Clarion Project investigation has discovered a jihadist enclave in Texas where a deadly shooting took place in 2002. Declassified FBI documents obtained by Clarion confirm the find and show the U.S. government’s concern about its links to terrorism. The investigation was completed with help from ACT! For America Houston.

The enclave belongs to the network of Muslims of the Americas, a radical group linked to a Pakistani militant group called Jamaat ul-Fuqra. Its members are devoted followers of Sheikh Mubarak Ali Gilani, an extremist cleric in Pakistan, connected to "Shoe Bomber" Richard Reid, as well as to the beheading of Wall Street Journal reporter, Daniel Pearl in 2002. [Daniel Pearl was on his way to interview Gilani when he was abducted.]

Muslims of the Americas
The organization says it has a network of 22 “villages” around the U.S., with Islamberg as its main headquarters in New York. The Clarion Project obtained secret MOA footage showing female members receiving paramilitary training at Islamberg. It was featured on the Kelly File on FOX News Channel in October. A second MOA tape released by Clarion shows its spokesman declaring the U.S. to be a Muslim-majority country.

A 2007 FBI record states that MOA members have been involved in at least 10 murders, one disappearance, three firebombings, one attempted firebombing, two explosive bombings and one attempted bombing. It states:

The documented propensity for violence by this organization supports the belief the leadership of the MOA extols
membership to pursue a policy of jihad or holy war against individuals or groups it considers enemies of Islam,
which includes the U.S. Government. Members of the MOA are encouraged to travel to Pakistan to receive
religious and military/terrorist training from Sheikh Gilani

The document also says that, "The MOA is now an autonomous organization which possesses an infrastructure capable of planning and mounting terrorist campaigns overseas and within the U.S."
The declassified FBI documents show that the extremist group has been in Texas since the 1980s.

--- more at: www.clarionproject.org/analysis/exclusive-clarion-project-discovers-texas-terror-enclave ;

Posted by: Adamakis | Feb 21, 2014 10:23:05 AM

Before crimes are committed the state threatens potential offenders. If you commit crime X, you will be penalized in a particular way. Threats are designed to forestall the commission of specific crimes at some point in the future.

The problem unfolds. When it is established that a person committed that crime, a court must impose that penalty; otherwise the state’s prior threated penalty would be meaningless. In addition the court punishes that person, who has then been found to be a criminal offender. Punishment is a strategy that has several different objectives that are also forward looking. A penalty is not punishment; rather it is the fulfillment of a threat that was made before the fact.

What’s the matter with this formulation? Well, it doesn’t work that way. In practice little or no distinction is made between threatened penalties for committing a crime and ex post facto punishment for committing a criminal offense. Clarity has given away to obfuscation. Just pile it all together and call it a mandatory minimum for the sake of plea-bargaining. Surely you lawyers can do better.

Posted by: Tom McGee | Feb 21, 2014 6:03:29 PM

It depends but overall it shouldn't be an issue, while folks are incarcerated to prevent new crimes, incarceration and being denied jobs and benefits make folks more predisposed to crime and since its drug possession, the consequence of loss of employment, not being able to pay the bills for any family or rent, and of course probably not getting much in the way of education and skills training although prisons like to tout "skills".

In addition it can lower crime by focusing on other crimes if police are not as focused. It's a first step in fairness, sentencing fairness is para mount, the more serious the crime, the greater the penalty should generally be to discourage those crimes, in the case of simple viewing and possessing of drugs and child porn (can include teens "sexting") rather than murder and actually sexually abusing someone and other crimes. Yes, and its also important to point out that folks may end up behind bars due to threat of mandatory minimums if they don't cut deals with the prosecutors, however they should not have that leverage as the sentencing is inappropriate. Using that logic would mean that all crimes should basically carry a long sentence and brings the issue about juries and proper defense counsel although certain studies shown that federal attorneys are generally adequately paid in defense although probably not enough, it may be better than state indigent defense courts, but it still raises the issue since generally if a private lawyer gets a better outcome, a drug defendant who is indigent could suffer.

Posted by: Kris | Feb 25, 2014 3:36:22 AM

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