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April 1, 2014

Forecasting the uncertain present and future of federal legislative sentencing reform

Writing for CQ Weekly (which calls itself the "definitive source for news about Congress") John Gramlich has this fascinating and lengthy new article about the state of federal sentencing reform efforts. The piece is headlined "The Prison Debate, Freshly Unlocked," and here are excerpts from a piece that merits a full read:

A bipartisan Senate coalition intent on shrinking the swollen federal prison population will see its toughest test yet in the weeks ahead. Party leaders face the delicate task of shepherding legislation through a politically charged chamber that could ease punishment for tens of thousands of felons — in an election year, no less.

The political stakes, particularly for Democrats, are substantial.  Control of the Senate is up for grabs in November and if Majority Leader Harry Reid of Nevada presses forward with a debate over crime and punishment, he could force members of his own caucus to cast difficult votes on a subject that has haunted the party in the past.  Many vulnerable Democrats want to focus on jobs rather than softening criminal penalties.

Despite the risks, it’s clear that Congress is closer than it has been in decades to slowing the growth of the federal prison population, which has ballooned to about 216,000 today from 25,000 in 1980.  Overhaul supporters have covered their bases, building consensus and deliberately pushing legislation through the committee process. But floor consideration will pressure any cracks in the coalition, given lingering reservations from influential lawmakers in both parties and opposition from prosecutors, which could stoke public fears about crime.

Reid has two bills on his slate, both of which would cut criminal penalties for a broad cross-section of federal offenses.  One would slash mandatory minimum sentences for some drug offenders by as much as 60 percent and give judges more leeway to impose lighter penalties than those set out in statute.  It also would allow crack cocaine users and dealers who were sentenced under a system that Congress abolished in 2010 to seek shorter sentences retroactively.

The other measure would allow as many as 34,000 currently incarcerated inmates — more than 15 percent of the federal correctional population — to leave prison early, provided they successfully complete rehabilitation programs first.

Both bills have support from opposite ends of the ideological spectrum, further undermining the decades-old caricature of party orthodoxy on criminal justice: that Republicans are “tough on crime” while Democrats are “soft.”...

Predicting the outcome of an election year Senate debate about criminal justice is not easy. Reid is still weighing whether to bring the legislation up in a year in which his party is at risk of losing control of the Senate for the first time since 2007.

And even if legislation passes the Senate, finding a path through the House is more difficult.  The House Judiciary Committee has set up a task force to examine sentencing and prison population issues.  But House leadership has, so far, shown no interest in taking up companion bills to the Senate measures. House Judiciary Chairman Robert W. Goodlatte, a Virginia Republican, said his panel “is taking a comprehensive look at the prison reform issue, and plans to continue its review over the next several months.”...

Lobbying from law enforcement organizations could still prove pivotal in this debate, particularly if it focuses on the specter of increased crime.  The sentencing bill sponsored by Durbin and Lee has sparked notable opposition from the National Association of Assistant U.S. Attorneys, a prosecutors’ group that took the rare step of publicly breaking with Attorney General Eric H. Holder Jr. — their boss — to denounce the legislation and warn that it could endanger public safety....

Meanwhile, the Fraternal Order of Police ... has its own concerns about any proposals that might reduce time behind bars.  The group is still evaluating both bills.  “The argument that we hear most often for reducing the prison population is cost,” James Pasco, the executive director of the group’s legislative advocacy center, says.  “Well, you know, the fact of the matter is if somebody commits a crime serious enough for lengthy incarceration, it’s at variance with common sense to suggest that’s not a good penalty just because it costs too much.”

“We have had conversations with the administration and we’ve had conversations with both sides in Judiciary, and they are aware of our apprehensions [about the bills],” Pasco added. “But the game really begins now.”

Bipartisan opposition from a handful of holdouts could make for speed bumps on the floor, if not outright problems.  California Democrat Dianne Feinstein, a senior member of the Judiciary panel, warned that the early-release bill could endanger public safety because “we do not know the facts of any of the 34,000 inmates estimated to be affected by this bill.”

Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, also withheld his support for the early-release bill by voting “present” in committee. Leahy expressed concerns that the measure, which would let lower-risk inmates earn credits allowing them to transfer from prison to halfway houses and other forms of supervision, could worsen “racial and socioeconomic disparities in our prison system” and place an unfunded mandate on the Bureau of Prisons by requiring the agency to do widespread risk assessments on the inmates it incarcerates.

Holder has endorsed the sentencing measure, but stopped short of endorsing the early-release proposal, telling the U.S. Sentencing Commission in March that it needs changes to make it “as good as it might be.”

The sentencing bill also faces likely amendments.  In an interview with CQ Roll Call, South Carolina Republican Lindsey Graham said he and fellow Judiciary member Charles E. Schumer, a New York Democrat, are working on an amendment that would scale back some of the bill’s sentencing reductions.

Republicans, for their part, are divided about whether they want both measures to reach the floor at all.  Tea-party-backed members such as Lee and Paul support both bills, but Cornyn and the ranking Republican on the Judiciary Committee, Charles E. Grassley of Iowa, represent the party’s establishment wing and support only the early-release measure.  “If Sen. Reid would take up the prison reform legislation, I think then it has a good chance of passing. It’s got good, strong bipartisan support,” Cornyn, the Senate minority whip, says. “If they’re going to try to pair it with the sentencing reform, I think that’s a problem.”

In the Senate, where opposition from even a single member can stop legislation dead, Alabama Republican Jeff Sessions is still evaluating his options to oppose both bills. Sessions, another member of the Judiciary Committee and a former federal prosecutor who helped broker a new law in 2010 to reduce sentencing disparities between crack and powder cocaine offenses, voted against both of the new proposals in committee.

“One of the reasons people want to reduce sentences is because the crime rate is down,” Sessions said. “They think that just happened. But a fundamental reason is we enhanced enforcement, we enhanced the likelihood that you’d be apprehended and actually convicted, and we enhanced the penalties.  I believe the changes in the law that they have proposed are larger and more impactful than the sponsors fully realize.”

Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.

April 1, 2014 at 07:11 PM | Permalink


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I think it more likely than not that Reid will bring something to the floor, although I don't know what.

The House is a different matter.

I was asked to speak to the Senate Republican Policy Committee, and did so yesterday.


Posted by: Bill Otis | Apr 1, 2014 7:36:33 PM

Thanks, Bill. Upon reading the start of your remarks, I wondered if you believed even judges appointed by Reagan and Bush I and II are all "naive and ideologically driven" or if those adjectives only apply in your mind to judges appointed by other Prez. I also wonder why you think senate confirmed judges are more likely to be naive than federal prosecutors.

I ask because you often complain about how you and partisan prosecutors get described, but your description of our federal judges seemed especially unkind. And if you do not mean this label to apply to all judges, I would be grateful to hear from you examples of say a dozen federal district judges who merit these labels.

Posted by: Doug B. | Apr 1, 2014 9:29:26 PM

Congress can not decide on when to go off on Christmas vacation. They might address this after the 2016 elections.

Posted by: Liberty1st | Apr 1, 2014 9:30:49 PM

Liberty1st pretty much summed it up for me. I do think some are sincere. But the powers to be count tally the votes firts before they press on. Its a shame, but its how the feds operate. CYA is the nbr one topic and controls their every move. Whatever happened to pushing for something worth while, even if its not popular.

Posted by: Midwestguy | Apr 1, 2014 9:47:35 PM

Doug --

"And if you do not mean this label to apply to all judges, I would be grateful to hear from you examples of say a dozen federal district judges who merit these labels."

I generally say explicitly what I mean, and I did not say or in any way imply that "all" judges are naïve and/or ideologically driven.

Recently, you seem to have taken to making up positions for me that you have to know I don't hold. The absurd position that "all" federal judges are naïve or ideologically-driven is the latest. Last week it was that I must support Obamacare, and that my backing the continued criminalization of drugs is comparable to support for slavery. That was especially rich.

For the clear minority of federal judges who are naïve or ideologically-driven, I never limited it to district judges; that too is your creation, not mine.

Easily the most prominent ideologically-driven judges were Republican appointees: the brilliant William Brennan and the not-so-brilliant Earl Warren. Blackmun and Stevens were ideologically driven in their opposition to the death penalty -- do you doubt it? Mike Bright on the Eighth Circuit and Stephen Reinhardt on the Ninth are flaming ideologues. On the district bench, Nancy Gertner was in orbit (until, may God be praised, she left for your alma mater). Mark Bennett in Iowa is an ideologue, and his public campaigning for the defense is grossly inappropriate for a judge. John Gleeson and Jack Weinstein in EDNY are shameless, particularly the latter for his lawless diatribe (which you still refuse to condemn) in the Corey Reingold child pornography extravaganza. Judge William F. Martini in the District of New Jersey was so active in trying to bring about the acquittal of murderous defense attorney Paul Bergrin that he had to be removed mid-trial, http://www.nj.com/news/index.ssf/2012/06/judge_removed_from_bergrin_mur.html.

This is not to mention the Chicago judge I mentioned just yesterday on C&C -- the one who got an acquittal by reason of insanity when charged with punching a court clerk, and now wants back on the bench because -- get this -- she's better about taking her meds. http://www.crimeandconsequences.com/crimblog/2014/03/trusting-the-discretion-of-jud.html

It is also not to mention the federal judges who sold acquittals or are criminals themselves, see, e.g., Alcee Hastings, Walter Nixon, Harry Claiborne, Samuel Kent, Thomas Porteous and Jack Camp.

Fine group we have here, wouldn't you say? Or am I being "especially unkind?"

Posted by: Bill Otis | Apr 1, 2014 10:37:46 PM

Are these folks all also naive? And, again, are you saying these folks and other like senate confirmed judges are more naive and ideological than the prosecutors who wield opaque and unexplained sentencing power via MMs? Judge Gleeson, for one, used to be US Attorney? Did he somehow become more ideological and naive by virtue of his appointment to the judiciary and senate confirmation?

I am pleased you named names, as it helps me better understand what you really mean by ideologically driven ---- namely, says a lot of things that Bill Otis considers wrong. You are, of course, entitled to have this self-serving view... As do we all. But the only clear commonality among the judges you list is that they respect criminal defendants more than you do.

Sorry if you feel I am putting words in your mouth, that is not my intent. My intent is to understand the word and ideas you peddle to powerful people in important settings. I would not bother to try to understand your claims and views --- and their implications and consequences --- if you were only delivering speeches at rotary clubs in Hawaii. But you have the ears of the old GOP, and those ears matter a lot in these discussion.

Perhaps I am wrong in my assessments, but I wonder if there are any still sitting modern GOP judges (e.g., Reagan or Bush appointees) you would put on your naive and ideological hit list. Again, just trying to better understand your views and beliefs.

Posted by: Doug B. | Apr 1, 2014 11:54:08 PM

Bill's rhetorical point seems to fail for another reason. On one hand he freely admits that the number of judges who are "naive and ideologically" motivated is a "clear minority" and indeed he mentions several judges who were actual criminals, a tiny minority. Yet this clear minority of judges--which includes the tiny minority that are actual criminals themselves--should cause the nation to give pause to sentencing reform. That strikes me as weak. No matter what reform is proposed some judge has the ability to abuse it--that adheres in the definition of discretion--the better question is whether or not the majority of judges will abuse any new power under the proposed reforms. Bill has now admitted he thinks they won't.

Posted by: Daniel | Apr 2, 2014 1:11:54 AM

Your obsession with blaming prosecutors has truly gone off the deep end.

-- "And, again, are you saying these folks and other like senate confirmed judges are more naive and ideological than the prosecutors who wield opaque and unexplained sentencing power via MMs?"

1. Prosecutors do not sentence anyone.

2. The decision what to charge is vested by the Constitution in the executive branch. If you don't like that, and you don't, get the Constitution amended.

3. The SSA does not do one single thing to make this prosecutorial power less "opaque and unexplained." Zero. Nothing. Why don't you talk to the Democratic Caucus to get them to put in something like that? Have you written to Leahy? Durbin? Eric Holder?

-- "I am pleased you named names, as it helps me better understand what you really mean by ideologically driven ---- namely, says a lot of things that Bill Otis considers wrong."

No, it means "ideologically driven." If you want to write my comments for me, go ahead. But until you do, I'm the one who decides what their content will be.

If a point be made of it, however, you bet I consider prejudgment wrong. I consider Weinstein's gushing and illegal embrace of kiddie porn wrong too, while we're at it, and I see you STILL refuse either to defend it or condemn it. I consider accepting defense bribes to grant acquittals and low sentences wrong as well.

Oh. Wait. I guess I should cut some slack to "zealous advocacy."

-- "Sorry if you feel I am putting words in your mouth, that is not my intent."

Of course it's your intent, which is why you did it originally by attributing to me the absurd position that "all" federal judges are naïve or ideologically driven, and you do again this time by saying that when I say "ideologically driven," I mean nothing more than the emotive impression of what I "consider wrong."

-- "But the only clear commonality among the judges you list is that they respect criminal defendants more than you do."

Actually, a half dozen off them were outright criminals, which -- I'll have to remember -- now equates to "respecting criminal defendants" more than I do.

If a point be made of it, though, no, I do not respect criminal defendants or anyone else who doesn't earn respect.

For example, I don't respect the lady who pushed her husband off the cliff and ferociously lied about it, no.

Do you?

I don't respect Corey Reingold, a repeat distributor of CP and admitted molester of his eight year-old half-sister.

Do you?

I don't respect OJ Simpson, who knifed to death two people and got away with it (in criminal court, anyway).

Do you?

Is there some reason I should respect these people? What would that be?

-- "My intent is to understand the word and ideas you peddle to powerful people in important settings."

That's easy. Read what I said in the Senate, where it's fully explained. Don't just stop after two paragraphs. I would particularly like to see your response to my explanation of the three powerful misconceptions SSA backers are peddling.

-- "Perhaps I am wrong in my assessments, but I wonder if there are any still sitting modern GOP judges (e.g., Reagan or Bush appointees) you would put on your naive and ideological hit list."

Nice use of the phrase "hit list," which of course connotes a compilation of murder targets. Unlike famed defense lawyer Paul Bergrin, who actually did have a hit list, I don't.

But that's cool. You asked me for judges I considered naïve or ideologically driven; I complied with your request by naming them; and you promptly accuse me of having the "hit list" you asked me to provide an hour earlier.

The judge who so much favored Bergrin that he had to be removed mid-trial, was, incidentally, appointed by George W. Bush.

-- What you're trying to avoid, without a great deal of success, is that there are in fact ideological, pro-defense judges. Indeed, at least three of them -- Bright, Bennett and Gleeson -- have been the subjects of any number of glowing posts by you, PRECISELY BECAUSE THEIR PRO-DEFENSE IDEOLOGY GIBES WITH YOURS.

-- What's going on is pretty plain by now. You want to cut Congress out of ANY binding say-so at sentencing, and give the judicial branch 100% of the power 100% of the time, despite knowing (or more likely because you know) that some judges are hell-bent for soft sentencing.

And then there are those who are just flat-out corrupt, but you want to give all power to them too, including even the power to review charging decisions.

Why you fume so much at the constitutional separation of powers that has served the country so well for so long is beyond me -- beyond me, that is, unless the Framers did "a lot of things that Doug Berman considers wrong."

Posted by: Bill Otis | Apr 2, 2014 1:33:36 AM

Daniel --

"That strikes me as weak. No matter what reform is proposed some judge has the ability to abuse it--that adheres in the definition of discretion..."

The WHOLE POINT of mandatory minimums is that they are NOT DISCRETIONARY.

That is also he whole reason Doug is so furious about them. They mean that the Weinstein's of the world won't be able to pull it off.

P.S. As to your pat on the back to vaguely-described "sentencing reform": The only bill even being considered, the Smarter Sentencing Act, does not do away with any MM's, meaning the your beloved "discretion" will still not have free rein. The bill does not eliminate the fact or the concept of mandatory minimums; it simply lowers them in order to enable druggies to get out more quickly to resume business.

Posted by: Bill Otis | Apr 2, 2014 1:47:17 AM

Bill, you have it backwards. I never blame prosecutors or judges for anything unless they are corrupt. (ergo, i am fine with a hit list of judicial criminal.) i favor checks and balances, which MMs can distort. And that in the end the real reason you favor them -- federal MMs mean prosecutors get sentencing power in some cases unchecked by judges. It is that simple --- this is about who gets the last say on sentencing certain defendants for certain crimes. MMs give prosecutors the last say, and that seem like bad policy to me, especially when the MMs are lengthy for nonviolent drug offenses.

I am not fuming about what the constitution says, but i do get frustrated by your unwillingness to acknowledge that the MM debate is really about who has sentencing power. The heart of your argument for MMs is that we should not trust judges to have the last word about sentencing in some cases, but we should trust prosecutors to have the last word in these cases. I just disagree with sentencing law premised on the foundation that prosecutors as a class are more trustworthy than judges as class, especially because there is no transparency or review of what prosecutors do.

I do not respect the bad actors you discuss, but I see the importance of a legal system respecting the rights of all people in the CJ system, especially when the state wants to deprive them of life, liberty or property. I find it telling that you think judges who hold these views --- as did the Framers --- are somehow not to be respected or trusted. I am not trying to cut Congress out of anything, but rather want Congress to see that a more balanced sentencing system than we have now could be more just and more effective. I think the FSA passed in 2010 was a step in that direction, and the SSA is another such step. Do you also predict doom and gloom from the passage of the FSA? Has it been awful since 2010 in the USA?

As for your misconceptions re the SSA, they are all too simplistic. Nobody supports the SSA because of a huge concern about pot possessors being in prison. Rather, they fear that mandatory sentencing for even traffickers may not be just or effective when prosecutors alone completely control which trafficker get breaks and which do not. Similarly, all SSA supporters are concerned about crime rates and public safety, they just stress what you like to ignore concerning a recent history of state and federal reformed drug laws that seem to be resulting in less imprisonment AND less crime.

I think all judges are hell bent on just and effective sentencing, which leads some to seem soft in your eyes and others to seem harsh in mine. (And i continue to be stunned by you eagerness to keep harping Weinstein for his effort to give one CP defendant only 30 months in prison, while you have not said a peep about hundreds of other judges who have sentenced similar CP downloaders to much less, including, e.g. Judge Graham, in the Blistine case giving a CP defendant only 1 day. Is Judge Graham also a naive ideologue? Why do you keep attacking Weinstein and not so many other judges who have given far less to arguably similar defendants?

I do not consider a pro-prosecution judge to be, per se, a naive and untrustworthy judge, and thus I do not urge Congress to create or preserve laws that significantly limit the power of all judges to decide in individual cases that a long prison term is just and effective. In contrast, you seem to see any pro-defense judge as per se naive and untrustworthy, and thus urge Congress to create and preserve laws that significantly limit the power of all judges to decide in individual cases that a short prison term is just and effective. Do I have that basically right?

Posted by: Doug B. | Apr 2, 2014 2:37:35 AM

I am a bankruptcy attorney by day and criminal law blog poster/lurker by night (as to why I prefer to read blogs about criminal law and not my area of practice is another story for another day). Therefore, I am quite interested as to how the putative ideological judges handle non-criminal cases - do they impress their ideology on those matters as well, or is their ideology limited to (for whatever reason) to criminal law issues.

I can somewhat state that at least as to recent Supreme Court decisions in bankruptcy, there does not appear to be any real ideological slant (i.e. certain justices pro-creditor or pro-debtor). The split in the decisions usually seems to be on how the justices engage in statutory interpretation.

Perhaps, this is because bankruptcy law in general does not have clear ideological split like criminal law. For example, some conservatives are anti-debtor when it comes to consumers trying to discharge credit card debt, but those same conservatives think bankruptcy is the best thing since sliced bread when large corporations use it to reject union contracts and the associated benefits.

Anyway, that is one non-criminal attorneys two cents on Doug / Bill's disagreement here.

Posted by: Matt Faler | Apr 2, 2014 9:32:33 AM

Doug --

I'm going to do just a very short note for now, probably with more to come later.

"I never blame prosecutors or judges for anything unless they are corrupt. (ergo, i am fine with a hit list of judicial criminal.)"

I did a double-take when I saw that sentence. Didn't you just do a whole post the other day slamming the state prosecutor in the DuPont rape case -- a prosecutor you accused, not of corruption (you didn't maintain he took a payoff for his charging or sentencing position) but essentially of having betrayed justice by not being much, much tougher than he was? That post was almost NOTHING BUT blaming the prosecutor.

"i favor checks and balances, which MMs can distort."

I cannot agree; MM's restore, rather than distort, checks and balances. A system of 100% judicial discretion 100% of the time is the distortion -- and, moreover, a distortion that has had disastrous consequences. In the Sixties and Seventies, we had that system. As crime went up (by more than 300% over those years, much if not most of it committed by recidivists), it became clear that JUDGES DID NOT DESERVE TRUST, AND IN FACT WERE ABUSING THE PUBLIC'S TRUST TO ITS DETRIMENT.

It is for that reason that the country started using a method you concede is perfectly constitutional, to wit, mandatory sentencing. It's not that we haven't, in these more recent years, given judges too little power. It's that we have moved the balance back from the shoot-'em-up years before then when we gave them too much.

It's quite true that prosecutors are partisans while judges are allegedly neutral (I say "allegedly" because no sensate person could think that Ms. Gertner or Mark Bennett or Mike Bright or Stephen Reinhardt are "neutral." To the exact contrary, all of them have nationwide reputations as being way over on the defendant's side).

But that still does not gainsay the shift in power toward the prosecutor, for several reasons.

First, it's worked. The country is a lot safer now than it was before. Not all this is due to tougher charging and sentencing, but some of it is.

Second, it's perfectly constitutional. Much of the criticism against MM's is that they have the effect of depriving the defendant of due process by making so much of his fate depend on the "partisan" prosecutor. But no court has ever bought this argument. No court (other than Weinstein) has held that a federal term-of-years mandatory minimum is either a violation of the Due Process or the Cruel and Unusual clauses.

Third, the United States Attorney is every bit as much Senate-confirmed as any federal judge, and a key part of the confirmation process is the nominee's assuring the Senators of his fairness, balance and sobriety.

Fourth, while I agree that AUSA's are "partisans," they are not partisan in the way a defense lawyer is. The defense lawyer can go to any lengths, including being deliberately deceptive to the tribunal, in order to serve the client. The prosecutor cannot do that. The defense lawyer is supposed to look for any way out of jail, and if it takes a little shake-and-jive, then, well, as long as it's not outright perjury, bought testimony or witness intimidation, it's OK. Those things are forbidden to the prosecutor.

Bottom line: The shift in power that the present system of MM's created is legal, constitutional, and helpful in bringing down the crime rate. In other words, it does what we have a criminal justice system to do.

It's true that occasionally it can result in injustice (just as the FAILURE to employ a MM in the DuPont case resulted in a different kind of injustice). But I listed four mechanisms to ameliorate that possibility. The first three of them have been and are being used thousands of times, and the fourth is about to see a significant upsurge if the DAG gets his way.

I neglected to mention the most important one, however: Defendants can learn from their first conviction to LIVE WITHIN THE LAW. For most of the MM-eligible crimes, the defendant has to be on his second or third escapade. If he doesn't want to straighten it out after being warned, is that the fault of the Big Bad System? Or the fault of some Big Bad Arrogance?

Posted by: Bill Otis | Apr 2, 2014 9:37:55 AM

Fine points, Bill, requiring some key historical context: the bad old system of federal sentencing you decry from the 1960s and 1970s was also the system in place from 1910 until 1960. Was it so terrible for those decades? Or did something change in the USA that caused problems unrelated to the sentencing system.

Speaking of history, if the federal CJ caseload was still at the level of the 1980s AND if there was evidence DRUG crime was reduced by severe drug sentencing, I would not be as troubled by preserving the extreme laws of that era. But the Feds caseload has doubled, meaning more smaller fish are caught in MM nets. And we have seen how undue severity hurts perception of justice as well as justice in important ways. That is what resulted in the passage of the FSA, and I continue to wonder and worry that you think the FSA was a terrible law because it gave naive and ideological judges more sentencing discretion in crack cases.

You always are eager to ignore or obfuscate these critical historical and social realities because only by providing a limited view of history and context can you massage all the key data to support your claims that judges should not generally be trusted to sentence in drug cases in while prosecutors generally should.

Posted by: Doug B. | Apr 2, 2014 10:26:59 AM

Some more, Bill:

1. I am going to do a separate post to try to unpack your important assertion that tough MM federal drug sentencing (which is all that is at issue with SSA) "worked" as evidenced by national violent crime reductions over the last 25 years. You and I agree that violent crime rate are among the most important metrics in these debates, and I sense that your views on what seemed to have "worked" as evidence by this metric is the most critical (though not sole) criteria for assessing proposed legal reforms. More on this later.

2. Not worthy of a separate post, but definitely worthy of attention, is your eagerness to put words in my mouth in the Delare case. I never "blamed" the du Pont prosecutors for anything. I called their sentencing decisions "suspect" --- and, again, to stress this point, were ARE talking about prosecutors making sentencing decisions when they accept a plea to lesser charges without any applicable MM AND then recommend to a judge a probation sentence. Here is the key aspect of my analysis in my initial posting: "a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated."

3. As a more general matter, I am never eager to play a "blame game" concerning important sentencing decisions --- rather, I am eager to foster real understanding about what happens before, during and after important sentencing decisions. And a real understanding of important federal sentencing decisions in drug cases reveals that, in practice because of how severe quantity-based drug MMs operate, prosecutors can and sometimes do wield a lot more sentencing power than judges. And I favored the FSA and now the SSA (and the JSVA) because I agree with the majority of the Senate Judiciary Committee that, at this current moment of federal criminal justice, reducing (only a little) that prosecutorial power is a good idea.

Posted by: Doug B. | Apr 2, 2014 11:01:14 AM


I read your entire piece. You make some interesting points. A couple of reactions/critiques:

1. You say nothing nothing about why you oppose the specific piece of legislation on its own terms. Are there any reductions in mandatory minimums or the procedures under which they apply that you support? Put differently, accepting that mandatory minimums have done something to reduce crime rates, why does that mean that the SPECIFIC CHANGES included in this piece of legislation are a bad idea? Why isn't it a fair criticism that you are failing to parse causation between specific mandatory minimums and crime rate reductions in a way that undermines your argument? Might the truth be that legislation like this is more gray than all good or all bad. Are there changes that could be made that would bring your support, while still providing some relief from mandatory minimum excesses?

2. Why do engage in so much snark and name-calling? You show disrespect to judges, the Administration, AG Holder in particular, criminal defense lawyers and, yes, folks who have made mistakes and may be entitled to a chance to turn things around. For good reasons, you don't like it when you are attacked personally and have your motives attacked, but you come awfully close to the ad hominem and questioning the motives of those who disagree with you on these issues.

3. How would you feel about keeping high potential sentences, but reintroducing parole in the Federal system? Might this be a good way to address some of your concerns yet allow relief for folks who have demonstrated that they have turned things around after a significant time in prison, but not necessarily the sort of time that the mandatory minimums would dictate.

Thank you.

Posted by: Michael | Apr 2, 2014 6:34:22 PM

Michael --

You seem like a serious minded person. I would like your name and professional background, please.

I have been indulging anonymous critics on this forum and I don't particularly like the results. Anonymity has encouraged some disgusting behavior here, so I think it should be curbed.

I can understand why some people would want to hide their names (to avoid responsibility for their insults), but you're not like that. I don't want to have a discussion while I am in the open and the person who wants answers from me stays behind the curtain. That is just not working for me.

Posted by: Bill Otis | Apr 2, 2014 6:58:46 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB