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February 1, 2014

Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act

Over at Crime & Consequences, Bill Otis complains in posts here and here about the lack of media coverage of the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Specifically, in this post, Bill states that AG Holder's decision to express support for the Smarter Sentencing Act (SSA)  is "contrary to the views, not of dozens, but of hundreds of career lawyers," which "subvert[s] the experience and judgment of the Department's career lawyers" and is thus "a very big story."  In Bill's words, when "hundreds of [DOJ lawyers] take the risks of speaking out against the Attorney General on a matter this important, that is a news story."

I agree that this is a "very big story," especially for those interested in federal sentencing reforms and the use of mandatory minimums in the prosecution of the federal drug war.  Consequently, I am eager to give this story all the attention it merits and to do so in thorough and fair ways to help ensure all federal prosecutors' views on the Smarter Sentencing Act are widely known and widely understood.

Helpfully, a few hours of research on the NAAUSA website provided me with a much fuller understanding of NAAUSA's expressed opposition to the SSA.  This Sept/Oct 2013 NAAUSA newsletter has a lengthy piece headlined "Members Asked to Weigh In on the Debate on Mandatory Minimums," which includes a report of a on-going survey of federal prosecutors in the works concerning their views on MMs.  In turn, this two-page NAAUSA position paper on mandatory minimums thereafter states that a "recent NAAUSA survey documented strong opposition to any weakening of mandatory minimums." And this eleven-page NAAUSA document provides lengthy statements from prosecutors in response to the survey.

In an effort to provide very thorough and fair coverage of prosecutors' views here, I am eager to see (and to post here and publish in the Federal Sentencing Reporter) the survey instrument sent to NAAUSA members and the full results.  The statements from prosecutors reprinted in this document does reveal strong opposition to eliminating federal mandatory minimum provisions.  However, many comments express the strongest concerns about the possibility of eliminating all federal mandatory minimums, whereas the Smarter Sentencing Act endorsed by AG Holder only calls for reducing the length of mandatory minimums only for drug offenses.  

Especially because the SSA is going to be up for further debate in Congress following its passage through the Senate Judiciary Committee, and especially because the views of career DOJ lawyers are very important in this debate, I am genuinely eager to provide here as much coverage of prosecutorial perspectives as possible.  And I would be eager for readers to use to comments to help me fully and fairly cover this "very big story" and ask the right sets of questions of relevant stakeholders as I do.

A few recent related posts:

UPDATED MEDIA COVERAGE: A few helpful commentors have provided links to some additional "new media" coverage of the SSA and prosecutorial perspectives on its proposed reforms.

At TalkLeft in this post titled "Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.," Jeralyn provides a very helpful and effective review of the process through which the SSA was amended and was voted through the Senate Judiciary Committee. I found especially interesting this account of the various amendments offered to the SSA:

In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.  The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible.  It increases penalties for domestic violence offenses.  It adds new mandatory minimum sentences for some terror and arms-related crimes.

Grassley didn't get everything he wanted.  His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.

Consistent with the themes of this post, I wonder if career DOJ prosecutors favor abolishing the Sentencing Commission.  To my knowledge, the Bll Otis is the only person who has publicly called for abolishing the US Sentencing Commission, though perhaps again there may be reason to believe Senator Grassley's efforts to this end are channelling the interests of hundreds of prosecutors.  

And at Simple Justice in this post titled "The Great Prosecutor Revolt of 2014 (Update)," Scott notes that Bill Otis is concerned that the "mainstream media isn’t 'covering' the career prosecutor revolt and he indicates that he will be "doing everything [he] can to get [the] story out."

February 1, 2014 at 06:23 PM | Permalink


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If hearing from organized AUSA's is important for validating the SSA, why hasn't the NAFUSA "National Association of Former United States Attorneys" chimed in? Should not an inquiring Congress need to know?
? aka "anonymous guttersnipe"

Posted by: ? | Feb 1, 2014 9:12:12 PM

Maybe the executive should knock it down. TalkLeft has the details and they ain't pretty. Wait for a better version.

Posted by: George | Feb 2, 2014 12:14:48 AM

The Great Prosecutor Revolt of 2014

Nailed it!

Posted by: George | Feb 2, 2014 12:27:20 AM

What you and your unhinged cite refer to as extortion, the Supreme Court refers to as plea bargaining. Bordenkircher v. Hayes, 434 U.S. 357 (1978) (http://scholar.google.com/scholar_case?case=3433599856216279138&hl=en&as_sdt=6&as_vis=1&oi=scholarr).

Just to make it easy, I'll lay out the facts and then give you the heart of the holding. From the opinion:

The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison...After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act...which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions.[2] Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.


Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, at 752. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U. S., at 758. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial...

While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"—and permissible—"attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. ###

Just a couple of other things for your amusement. The deciding vote in Bordenkircher was cast by John Paul Stevens, a liberal darling for decades. And if, notwithstanding Bordenkircher's holding, you continue to insist that pleas are wrenched from defendants, let me remind you that Rule 11, Fed. R. Crim. P. -- far from allowing "extorted" pleas from innocent men -- REQUIRES the judge to determine, among many other things, that there is a factual basis for the plea and that it is given voluntarily. If the judge does not so find, he cannot accept it, period.

I am well aware of the standard hokum that innocent people are routinely hustled into jail by amoral prosecutors. OK, fine, look, will you please give it a rest? It's just the defense bar's PR to cover the fact that the client is guilty but is in denial -- which happens ALL THE TIME -- so the thing to do is change the subject to how Satanic the prosecutor is. This is immediately followed by the even more indignant (if wonderfully ironic) claim that everything the client solemnly admitted at the Rule 11 proceeding an hour ago was a pack of lies.

Earth to George: Defendants plead guilty because they are guilty. If they want a trial, at which the government bears the burden has to get all 12 (but the defendant only has to get one), fine, go for it. That's what I always preferred when I was practicing. Just stop complaining.

Posted by: Bill Otis | Feb 2, 2014 3:32:10 AM

Earth to Bill: Defendants plead guilty because they are guilty AND they know their sentence will be lower if they plead. And this is true with or without the mandatory minimum sentencing provisions at issue in the SSA (most fraud defendants plea guilty even though there are no MMs for fraud offenses).

At issue in the debate over MM reform is whether and how partisan prosecutors, rather than neutral judges, will decide whether and how much a plea discount a defendant will get. Because the SSA does not eliminate any MMs, prosecutors will still have enormous bargaining power, just a little less than they have now in nonviolent drug cases. That is why I have been wondering aloud if there really is so much strong disagreement among line prosecutors toward AG Holder's willingness to endorse the SSA's change to only the severity of one set of MMs.

As I have explained before, I am sure most federal prosecutors do not want all MMs eliminated because they would then lose a lot of plea bargaining power. But AG Holder has not expressed support for eliminating any MMs, and I believe the Obama Administration has advocated for cybercrime bills that add MMs.

I know many academics and folks in the defense bar (as well as Rand Paul and Patrick Leahy) would seek to have all MMs essentially eliminated because they generally believe neutral judges rather than partisan prosecutors should determine the extent of a plea discount on the record and subject to appellate review. But AG Holder has not yet been convinced of the wisdom of this approach, and I do not find it at all surprising that prosecutors do not generally favor giving up the sentencing powers bestowed by MMs.

But, again, at issue now is the SSA, which is only about slightly decreasing these sentencing powers in nonviolent drug cases. I continue to eager to know more about whether all, most, many, some or just a few career DOJ prosecutors really consider it horrific that AG Holder has expressed support for reducing the severity of MMs in drug cases.

Posted by: Doug B. | Feb 2, 2014 7:53:54 AM

Yes, please, let's change the system so that everything depends on how lucky you are in your judge assignment. At least with MMs, there's a small level of consistency among sentences that are driven by the elements of the offense (not by "partisan prosecutors"). Last I checked, a prosecutor couldn't convict someone of a charge - any charge, even one carrying a MM - unless each element was proven beyond a reasonable doubt.

If anything, I think that maybe some MMs should be lowered, but not abolished. For example, maybe lower the 20-year MM for 1 kilo of heroin with 1 prior possession conviction. Maybe disqualify mere possession offenses as a qualifying prior conviction for the jump from 10 years to 20 years.

But other MMs should stay the way they are. I'm fine with the 5-year MM for possessing a firearm in furtherance of another felony offense. Fine with the 7-year MM if you brandish that firearm. And fine with the 10-year MM if you discharge that firearm.

Posted by: Domino | Feb 2, 2014 11:19:25 AM

Where do you get the "partisan prosecutors" bit, Doug? Federal prosecutions are done by AUSAs and DOJ Trial Attorneys, who are civil servants. The US Attorney and Main Justice AAGs and DAAGs are political employees, but they almost never weigh in on individual cases. Indeed, most federal judges have far more partisan history (from donations and campaign work in their pre-nomination days) than your standard AUSA.

DA offices may be different, of course, but are not relevant when discussing federal man-mins.

Posted by: Laura | Feb 2, 2014 11:21:54 AM

Maybe the revolt (if that's what it is) isn't a bigger story because it's not -- as Bill asserts -- unprecedented. Far from it. Certainly I'm not aware of even a single initiative to tweak, bridle or blunt unfettered prosecutorial power in the past 40 years that hasn't rallied sky-is-falling opposition from prosecutors.

An instance that leaps to mind was the 1998 Citizens Protection Act HR 3396..."To establish standards of conduct for Department of Justice employees, and to establish a review board to monitor compliance with such standards."

The bill initially passed in the House but was eviscerated and ultimately killed by frenzied prosecutors. One headline that appeared over a story on that bill read: "Congress says 'Enough' to Overzealous Prosecutors." Of course prosecutors prevailed which suggests they take a backseat to no one -- not even members of Congress -- when it comes to demagoguery.

News is considered big, Bill, only to the extent it is actually news. Prosecutors clinging claw and fang to their unholy powers is old stuff.

As for prosecutors' lopsided success rates in appellate courts there's not much mystery there. Over the past few decades, right-wing Republicans have targeted the courts in their remake-America crusade (It's all about the courts, folks," as Rush Limbaugh often reminds the dittoheads). Conservative lawmakers consistently appoint conservative, law/order Republicans (typically ex-prosecutors and corporate lawyers) and delay/oppose Democratic appointments. I haven't found a firm number anywhere, but in her book, Contempt; How the Right is Wronging American Justice, Catherine Crier estimated upwards of 70 percent of federal court judges are Republican appointees. The one uniting principle that seems to guide these judges is the "most-favorable light" bias prosecutors and district judges enjoy.

And not until they figured out it's woefully expensive to pack prisons with citizens that don't need to be in prison did some Republican lawmakers cave to the notion tough sentencing has gotten out of hand...thanks in no small part to MMs and the ghastly power prosecutors routinely use to impose draconian sentences.

Posted by: John K | Feb 2, 2014 11:24:52 AM

By "partisan" in this context, Laura, I mean having a vested interest in the outcome of a specific case, and I am sorry for using a term which has a political connotation in this setting. In legal parlance, we talk about the parties being partisans to a legal dispute, so that a prosecutor and a defense attorney would be partisans at sentencing who would give their party-oriented perspective on a proper sentence or any other legal matter. A neutral judge (or sometimes a jury), in turn, would then resolve the dispute between the parties.

I hope this clarification makes sense, Laura, in part because the key to my disaffinity for MMs is that I do not favor EITHER set of criminal justice lawyers/partisans having absolute veto power over specific sentencing outcomes. I suspect very few citizens (or defendants, for that matter) would favor often allowing federal defense attorneys the unregulated and unreviewed power to block efforts by federal judges to be able to give a prison sentence of more than five years to a violent repeat federal felon, in large part because those defense attorneys have a vested "partisan" interest in using such a veto power to serve their own "partisan" concerns in the operation of the federal criminal justice system. I know I would advocate against such a system giving such unregulated and unreviewed sentencing power to "partisan" federal defense attorneys.

But at issue now here in the debate over the SSA is the unregulated and unreviewed sentencing power of partisan federal prosecutors who can and often do use their charging powers to block efforts by federal judges to be able to give a prison sentence of less than five years to a nonviolent first-time drug offender. And, critically, the SSA still preserved prosecutorial sentencing veto power, it just would provide a minimum of two years rather than longer when limiting the power of neutral judges as sentencing.

Posted by: Doug B. | Feb 2, 2014 11:47:37 AM

I served 10 years in the U.S.A.F. Unfortunately after the death of my mother, I took a wrong turn and starting using cocaine to numb the pain. I hate using that as an excuse, but after losing my father at the age of 5 and losing my mother at 25, I felt lost. To make a long story short, I got caught with these drugs and was given a plea deal of a mandatory prison term of 12 months. I was promised that I could get out and get my record expunged and try to move on with my life. I was told since it was a non-violent crime, that I would be able to move on. Well that wasn't true! You're not allowed to expunge a sentence if you have mandatory time. Well, I did the crime and have done my time. Why can't I move on and get a good job? Why do I have to continue to be punished? What happened to second chances? Is this one transgression more telling about the person that I am or is the 10 years of service? Like it or not, I fought for this country and I would like to move forward with my life. One mistake doesn't tell the whole story

Posted by: Elton Rogers | Feb 2, 2014 11:52:19 AM

Doug --

"Earth to Bill: Defendants plead guilty because they are guilty AND they know their sentence will be lower if they plead."

Pluto to Doug: Welcome home!

You give away the game in the first part of your sentence -- that they plead guilty because they are guilty. Why on earth (or Pluto) should it bother anyone that a guilty person pleads guilty?

Whatever part of the game is left, you give away in the second part of your sentence. Mandatory minimums, indeed even the guidelines, have zip to do with the plea-over-trial benefit. That benefit has existed probably from the time the first plea bargain was done a zillion years ago. All that mandatory sentencing does is give the defendant a better idea of HOW MUCH the benefit will be.

Is that a bad thing?

Posted by: Bill Otis | Feb 2, 2014 1:13:51 PM

Doug --

"At issue in the debate over MM reform is whether and how partisan prosecutors, rather than neutral judges, will decide whether and how much a plea discount a defendant will get."

Bordenkircher, which considered a defendant's challenge to the prosecutor's discretionary choice whether to charge a MM offense, held that allowing prosecutors to do just that satisfies due process. By constantly referring to prosecutors who follow Bordenkircher as extortionists, what you're saying is that the Supreme Court approved extortion.

Is that what you think?

Still, as you have said, the "mere" fact that prosecutors are following Supreme Court law does not per se settle the question whether MM's are wise as a policy matter.

This is what the defense side is not getting: The public and Congress turned to mandatory sentencing (guidelines and statutes) BECAUSE JUDGES PROVED THEY COULD NOT BE TRUSTED. We gave judges free rein for two full decades -- the Sixties and Seventies -- and what they gave us back was a crime wave.

Naïve, feckless, defendants-are-really-victims sentencing was not the sole cause of the crime wave, sure, but it was a contributor. The public caught on and shifted a measure of power away from the judges who abused it and toward prosecutors.

What happened then?

Right. As incarceration went way up, crime went way down.

Bottom line: Since MM's and the plea bargaining that used them are both constitutional and beneficial to the public, they have earned their place in the law.

Judges eager to go back to the bad old days of unlimited sentencing power -- judges like Jack Weinstein -- are of course hopping mad about this.

Too bad. The system is not designed to make judges happy or give them unlimited power. It is also not designed to make inmates happy -- they earned their way to their convictions.

If judges had behaved better in the Sixties and Seventies, and criminals could manage to refrain from peddling heroin and their other goodies, we wouldn't even be having this conversation. It was THEIR choices, and the damage to public well-being that those choices brought about, that accounts for the problem -- not Satanic prosecutors.

P.S. If you believe that Weinstein, Mark Bennett, John Gleeson, Nancy Gertner & Co. and not "partisans," you really ARE on Pluto. Weinstein by himself wrote FOUR HUNDRED PAGES proving (to a shocked Second Circuit) what a pro-defendant partisan he is.

Do you disagree?

And, truth be told, the defense side wants to tank MM's PRECISELY BECAUSE they want to give such robe-wearing partisans the ability to run wild.

Posted by: Bill Otis | Feb 2, 2014 1:49:41 PM

Given laws as vague and sweeping as those prosecutors routinely rely on as defaults and carry prison terms measured in decades (wire fraud and money laundering for example), guilty or innocent probably isn't always the best question.

Better questions might be whether the nature of suspicious acts actually merits the hype prosecutors characteristically pack into charging documents. In other words, has the citizen been wrongly accused? Should the matter have been handled as a civil dispute instead of criminal? Is the trial penalty so harsh as to render meaningless the quality of the confession? And so forth.

Often I leave this continuing debate wondering if Bill Otis believes -- as he repeatedly seems to suggest -- that citizens who attract the attention of agents/prosecutors deserve whatever terrible outcome the system inflicts on them regardless of how innocuous their offending conduct might actually have been.

Say it isn't so, Bill.

Posted by: John K | Feb 2, 2014 2:28:30 PM

John K --

Be happy, my good man. It ain't so.

You have no idea, or you seem to have no idea, of how many thousands of cases get watered down, shifted to civil enforcement or simply dropped because the degree of damage the potential defendant did was insufficient to warrant a big time (or perhaps any) prosecution.

One of the reasons you get so exercised about white collar prosecutions is that you see only the ones that get brought, and miss the many that don't.

It would make you feel better if you remembered this simple truth: You don't see what you don't see.

Posted by: Bill Otis | Feb 2, 2014 2:38:19 PM

Mr. Bill, there you go blowing up the straw man again. The debate is not about if plea bargains are legal. They are. The debate is about if plea bargains are actually bargains.

So Hayes could get life if he didn't take the deal, and he did. What was life back then given parole? 7 years, 10 years, what? It almost certainly wasn't 25 to life with enhancements stacked on top, for a total of 55 years (10 for using paper across state lines, 10 for using a toxic substance (ink) that crossed state lines, and 10 for using some brand of software that a terrorist once used.)

Also, nothing in your cite quote claims life was mandatory and the judge didn't have any discretion. Presumably the judge either encouraged the life sentence or didn't disagree with it. That is another point of debate not taken up by your cite (Bordenkircher v. Hayes, 434 U.S. 357 (1978)). Indeed, the California Supreme Court found there was a violation of the balance of powers if a court did not have the authority to strike a strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497).

But most important is an article I already cited. The sky did not fall down when California voters amended the 3 strikes law by releasing many "dangerous" 3rd strikers:

A Year After Release, Only 2 Percent of Three Strikers Charged With New Crimes

Since most recidivism occurs in the first year after release, that strongly suggests 98% of the sentences were more than necessary for public safety. They were certainly more than necessary in terms of any hope for rehabilitation.

Posted by: George | Feb 2, 2014 2:49:01 PM

George --

Nothing in Bordenkircher suggests its holding depends on whether the prosecutor is "threatening" 10 years, or 20 or 30 or life. The WHOLE POINT of the holding is that WHATEVER the prosecutor is "threatening," that is an inevitable part of a system that allows move and counter-move in plea negotiations. Since that system is legal (and, indeed, demanded by defense lawyers -- watch what happens when a prosecutor refuses to negotiate (it ain't pretty)), it simply makes no difference, for Due Process purposes, what the prosecutor is offering or refusing to offer.

The premise of Bordenkircher is that the defendant remains free to go to trial. The reason they hardly ever choose that option is well known: They know they'll lose.

Evidence counts. Juries pay attention.

Look, as I've said many times, I'd much prefer it if many more defendants would tell the government to get lost and insist on a trial. The reason I prefer this is not that I'm in love with defendants. It's that, after a very short while of getting their clocks cleaned and enraging the judge with their nonsense "defenses," they'll be right back banging on the USAO's door bellowing that, "You heartless pigs know no bounds in refusing to make a deal and forcing us to trial!!!"

Posted by: Bill Otis | Feb 2, 2014 3:33:17 PM

Bill, you would be a vocal advocate AGAINST mandatory minimums if you really meant it that you would "much prefer it if many more defendants would tell the government to get lost and insist on a trial." You assert, wrongly, that mandatory minimums ... have zip to do with the plea-over-trial benefit," whereas you know well that MMs are what enable prosecutors to control the exact amount of the "plea-over-trial benefit" rather than having judges decide how much the benefit will be.

Judges always can and likely always will give plea discounts, but MMs put a floor on how judges can sentence; prosecutors are quick to stress (and rational defendants learn quickly from competent lawyers) that prosecutors will raise those floors as high as they can absent a plea/cooperation (see, e.g., Weldon Angelos, facing an MM "floor" of 105 years for marijuana dealing with legal guns around because he would not plead guilty OR Chris Williams facing an MM "floor" of 80 years for marijuana dealing with legal guns around because he would not plead guilty). Only because of MMs is Angelos now serving a 55-year prison term for going to trial rather than the 16 years offered in a deal --- after he in fact WAS ACQUITTED on two counts used by prosecutors to threaten another 50 mandatory years --- a sentence that wild liberal judge Paul Cassell described as cruel and unjust; only because of the power of MMs was Williams facing 80 years and forced to waive all his rights to get that down to 5.

You are right, of course, that MM's and the plea bargaining that uses them to encourage pleas are constitutional. But as I keep stressing here, though they are clearly beneficial to federal prosecutors whose job is made easier by wielding exclusive sentencing power, the debate over the SSA is exactly about whether the current federal MMs are still beneficial to the system as a whole. Last week, 13 of 18 members of the Senate Judiciary Committee voted to make changes to the status quo of MMs, and I hope we will continue to have a robust and honest discussion about whether we should worry more about current DOJ prosecutors (like former AUSA Bill Otis) should get to "run wild" without being subject to any transparency or rule-of-law OR whether current federaal judges (like former AUSA John Gleeson) should get to "run wild" while being subject to transparency and the rule-of-law.

Last but not least, though I know some others like to call prosecutors "Satanic" or "extortionists," I do not believe I have ever used these terms, and I do not generally view such over-the-top rhetoric helpful to a sound reasoned discussion of these important issue. But since you now are talking about "revolt" by DOJ prosecutors, I sense that rhetoric is much more your specialty than sober reasoning. Fortunately, principled small-govt conservatives like Ted Cruz and Mike Lee and Rand Paul have finally come to see through such rhetoric, and thus changes to MMs law may be on the way. But, worrisomely, big government fans among both Rs and Ds may be disinclined to understand that this form of excessive government power is among the most corrosive within a country dedicated to human freedom and liberty and eager to limit the growth of government.

Posted by: Doug B. | Feb 2, 2014 4:20:58 PM

Doug --

"Bill, you would be a vocal advocate AGAINST mandatory minimums if you really meant it that you would 'much prefer it if many more defendants would tell the government to get lost and insist on a trial.'"

Nope. It wouldn't make a particle of difference. Defendants would still plead because they'd still be guilty.

"You assert, wrongly, that mandatory minimums ... have zip to do with the plea-over-trial benefit," whereas you know well that MMs are what enable prosecutors to control the exact amount of the "plea-over-trial benefit" rather than having judges decide how much the benefit will be."

That sentence gets it mileage only out of its conflating the EXISTENCE of the plea benefit (which is what I was talking about) with the AMOUNT of the trial benefit (which is what you are talking about). But if a point be made of it, the amount, while influenced for sure by the MM, would also, although to a lesser extent, be influenced by ANY sentencing range.

One of the reasons I keep asking, nay, begging you to go down to the courthouse is so that you can see for yourself if AUSA's are really the extortionists you (and many others) keep claiming. You're one of the few here with a reasonably open mind. Since you like "evidence-based" outcomes, just visit any federal criminal courtroom at random, stay there as long as you like, and do a blog entry about whether what you saw going on from the prosecutor was extortion.

For an empiricist, it would be a good use of the time.

Posted by: Bill Otis | Feb 2, 2014 5:00:16 PM

Again, Bill, I do not think prosecutors are "extortionists," and that is not why I support reform of the federal MM status quo. Use these silly terms all you want, but then you only retard rather than advance a serious discussion of these important reform issues.

What I know from representing/helping defendants myself (mostly in habeas appeals, though sometimes as amicus) and from talking to lots and lots and lots of federal prosecutors and defense attorneys is that the prospect/reality of an MM can create even-greater-than-otherwise pressure on a defendant to waive a whole bunch of rights, including the right to trial and appeal in order to make the government actually prove and defend its charges. You are right, of course, that the government will USUALLY win when it has to prove what it alleges -- but not always -- and the issue here is really whether the crude tools of the current federal MMs are an ideal way to strike a balance between prosecutorial needs and society's interests. Especially in the context of non-violent drug offenses --- which is all the SSA really addresses --- I think a rebalance of interest is needed (as was done, incompletely, with the FSA).

I suspect I am involved in many more on-going federal sentencing cases than you are, but I would still be eager for us to take a joint trip to talk to all the federal prosecutors in whatever district you want us to visit together. Indeed, as others have suggested, I would love for such an event to be a public Lincon-Douglas type-discussion. (Of course, I want to play Lincoln, but I am sure you do, too.) Since it seems you have Senator Grassley's ear --- at least so I surmise given that he seek to abolish the Sentencing Commission as you have urged --- perhaps you can get him to arrange for such an event?

Posted by: Doug B. | Feb 2, 2014 5:50:24 PM

Elton Rogers: The Supreme Court has ruled the collateral civil consequences of a criminal conviction are regulatory, and not punitive, thus not covered by the Eighth Amendment prohibition against excessive fines, and cruel punishments. So the legal alien deported after paying a fine for jumping a turnstile was not being punished (exile was seen as worse than death and prohibited by the Founding Fathers), he was being regulated.

OK. Regulation. If a regulation is excessive and over-reaching, it violates Fifth Amendment Takings Clause.

I have repeatedly argued that only consequences relevant to the indicted crime should stand, and that all other collateral consequences are a regulatory taking. In reality they are often harsher punishment than the punishment for the conviction. So a rapist should be excluded from jobs involving intimate contact with bodies, such as nursing or medicine, or even school bus driver. He should be allowed to do warehouse work. A thief may cut hair in a barber shop, but not be allowed to visit customers in their homes.

Getting back to prosecutors, after Padilla, it should be malpractice for the prosecutor to fail to warn the defendant of these consequences in a plea deal. It is 100% certain that prosecutors should have liability to defendants, because they have numerous duties to them enumerated in statutes. All negligence or worse would be per se, and subject to exemplary damages given their facial nature.

If you wish to sue the state or federal government for the collateral, civil consequences of your conviction, I am willing to discuss your problems privately, and to help you find competent, aggressive representation. You might serve as lead plaintiff in a constitutional tort class action. Contact Prof. Berman via email, listing the facts of your case, and its civil consequences. Ask him to forward it to the Daddy of Supremacy Claus. The judge will want to know, what was your damage. Make sure you list concrete, measurable damages.

Posted by: Supremacy Claus | Feb 2, 2014 7:37:04 PM

Doug --

A quickie. Isn't the Super Bowl on?

You say: "I do not think prosecutors are 'extortionists,' and that is not why I support reform of the federal MM status quo. Use these silly terms all you want, but then you only retard rather than advance a serious discussion of these important reform issues."

It is true, so far as I can remember, that you did not use the word "extortion." Instead you said this, a full eight days ago (emphasis added): "I concur the Constitution places charging power in the hands of prosecutors and that SCOTUS has approved against a constitutional attack the lawfulness of prosecutor using their unregulated powers TO THREATEN/BULLY DEFENDANTS INTO PLEADING GUILTY based on the threat of increased charges..."

Maybe I need a new dictionary, but the one I have right now strongly suggests that "to threaten/bully defendants into pleading guilty based on the threat of increased charges" means exactly the same thing as "to extort defendants into pleading guilty based on the threat of increased charges."

Am I getting this wrong?

If not, perhaps we should revisit the question of who is using inflammatory and "silly" terms -- like "bully" and "threaten" -- that retard the discussion.

Posted by: Bill Otis | Feb 2, 2014 7:49:31 PM


I do not have a lawyers eloquence or wit, but I have a few simple questions:

1. Do you acknowledge that people do plead guilty to certain offenses that they may have taken to trial otherwise (without mandatory minimums)? I am one of these people, so I can assure you that we do exist, in muted voice.
2. Can you see the lives of families of these offenders are demolished, even if the crime was victimless?

Finally, do you realize that you come off like the Stewart Baker of sentencing? Do you think history will smile on your position or view it as barbaric?

Posted by: Angry Offender | Feb 3, 2014 4:32:51 AM

Bill, the use of the term bully may be a little strong, though talking about threats seem spot on. What terms should I use to describe how prosecutors treated Weldon Angelos and Chris Williams?

Posted by: Doug B. | Feb 3, 2014 8:29:33 AM

Someone mentioned the phrase "mutuality of advantage." Perhaps, Bill.

Some ways to balance the potential bullying of defendants, even innocent ones, or ones that do not belong in prison, such as Martha Stewart:

1) Total e-discovery of prosecutor work and private computers to find an improper motive. All child porn referred to the FBI for investigation, including embedded type, Which just as criminal, so said the Court.

2) Full personal tort liability, not taxpayer liability, for any deviations from the multiple duties of prosecutors to defendants in statutes covering Evidence, Procedure, and Professional Conduct. Let prosecutors buy liability insurance as everyone else has to, to deter misconduct. Insurance companies will refuse to cover the careless prosec

3) Allow the use of discovered misconduct to be used in bargaining over the charges, even though the prosecutor misconduct is irrelevant to the charges. To deter. I support torts as a shortcut to regulation with flexibility and case dependency.

Posted by: Supremacy Claus | Feb 3, 2014 11:04:58 AM

Doug -

"Bill, the use of the term bully may be a little strong..."

Then maybe it was less than an ideal move to go after me for using "silly terms" that only "retard" the discussion.

"...though talking about threats seem spot on."

I agree with that, as long as the context is clear. A criminal's threatening to blow your head off if you don't hand over your wallet is a different sort of thing from the parties' threats, in negotiating the settlement of a lawsuit (which is what plea bargaining is), to take actions A,B, or C if you don't agree to X, Y, or Z.

"What terms should I use to describe how prosecutors treated Weldon Angelos and Chris Williams?"

Excessive. But, if I'm recalling correctly, both had a hand in reaching their own fate, by turning down offered deals that would have been far more lenient.

Posted by: Bill Otis | Feb 3, 2014 1:13:56 PM

Angry Offender --

"Do you acknowledge that people do plead guilty to certain offenses that they may have taken to trial otherwise (without mandatory minimums)? I am one of these people, so I can assure you that we do exist, in muted voice."

Before I can fairly develop an answer to that question, I need to know whether you were, in fact, guilty. And by "guilty," I don't have anything fancy in mind. A person is guilty if, when of sound mind, the did the acts alleged in the indictment.

Were you guilty?

"Can you see the lives of families of these offenders are demolished, even if the crime was victimless?"

No, I don't. First, it's a hardship to have, say, the father taken out of the house, but that same hardship happened thousands of time in wars, recent and past. Hardship is not demolition.

Second, when the offender does something he knows in advance is criminal and can result in his incarceration, but goes ahead anyway, then HE bears the responsibility for what happens next. Or are you taking the position that you bear no responsibility?

Third, while there are many who view drug selling as a victimless crime, I am not among them. A consensual transaction is not the same as a victimless one. Philip Seymour Hoffman undoubtedly consented to -- indeed he almost surely sought out -- the heroin trafficker who sold him his overdose batch, but, in my judgment, and the judgment of all the most radical libertarian/leftists, heroin pushers belong in jail. They belong there because, knowingly and out of sheer greed, and not caring a whit, they facilitate the deaths of their fellow creatures.

Posted by: Bill Otis | Feb 3, 2014 1:34:48 PM

i'm not sure how much sympathy i have for a heroin dealer but if changing our drug laws has the effect that more addicts will not die, i'm for that. even if that means hearoin dealers are punished less.locking up heroin dealers and throwing away the key hasn't helped keep people alive. & if we really do care about keeping addicts alive, trying to get clean,perhaps we shd trying implementing policies & programs that actually accomplish that goal. that actually really save people's lives. mothers & fathers, sons & daughters. what wd it really mean for us if hoffman's dealer wd rot away in jail if it that is at that defeats our ability to do what might have kept hoffman alive? hoffman, & countless of our unnamed neighbors, friends, family members are more than just their addictions. They are people that love, that are loved and do good things with their lives in spite of their the worst tendencies & diseases & mistakes.


Posted by: anonymous | Feb 3, 2014 4:34:04 PM

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