« Article calls non-adversarial and secluded prosecutorial decision-making "Anti-Justice" | Main | Form, function and finality of sentences through history: the Founding Era »

May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 at 11:13 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Significant collection of significant former federal prosecutors write to Senators to oppose SSA:


D. Berman: "the fact that most federal sentences are now outside the guidelines"

... should make it obvious that judges cannot be trusted without the 'check and balance' of
a bare minimum.

Posted by: Adamakis | May 12, 2014 1:04:03 PM

Is it not true that mandatory minimums are
"often only a half to a third of what the guidelines range would be for a given offender"?
--B. Otis, C&C, 4/21/14

see: www.crimeandconsequences.com/crimblog/2014/04/senate-deliberations-on-the-sm.html#more

Posted by: Adamakis | May 12, 2014 1:15:05 PM

Adamakis: when the guidelines are poorly structured/crafted --- as is recognized even by DOJ for many offenses --- then the fact that sentence are outside the guidelines is evidence judges are serving as the critical check/balance intended/designed in our system. Moreover, the majority of below-guidelines sentences are prompted by the prosecutors asking for a lower sentence to reward cooperation or a quick plea!

In addition, (1) it is not true that MMs are typically only 1/2 or 1/3 of what the guidelines recommend, and (2) if/when the guideline recommendation is much higher than the MM, there are likely other aggravating factors that justify a higher sentence (e.g., long criminal history, violence). Given that reality, the MMs serve only to play a big role in those cases in which there are not other aggravating factors AND a judge reasonably thinks and can explain why a lesser sentence is sufficient.

If you think the all guidelines are very wise (which few do, save perhaps Bill), you should be troubled by them only being followed about half the time, though again you should complain about prosecutors giving breaks more than judges. If you think all the guidelines range from imperfect to awful (which most do, including many in DOJ), then you should be troubled (as I am) that they are still followed about half the time.

Posted by: Doug B. | May 12, 2014 6:28:41 PM

" "you should be troubled" "

Prof. Berman,
I am troubled if it be so that prosecutors "giv[e] breaks more than judges", and if actually, "the majority of below-guidelines sentences
are prompted by the prosecutors".

The guidelines are thereby, according to you, a check on downward leaning prosecutors as well as judges!

Thank you for providing another argument in favour of the continuance of Mandatory Minimums.
[I must share this with "Bill".]

Posted by: Adamakis | May 12, 2014 9:21:13 PM

{As reported by the USSC-2014-Quarter-Report-1st,
of the 48.8% of sentences which departed from the guidelines, only 2.4% went *above*
--in concert with the Law of Entropy, as it were.}

Posted by: Adamakis | May 12, 2014 9:49:11 PM

Again, Adamakis, you draw the wrong conclusions because you inaccurately think that the guidelines will often recommend the "right" sentence when, in fact, there is a much sounder basis to conclude that the guidelines often recommend the "wrong" sentence. Federal prosecutors do not request departures in more than a quarter of all cases because they are consistently too lenient, but rather because they recognize that in very many cases the guidelines are set way to high, especially for non-violent offenders. Similarly, judges do not grant departures/variances in 20% of all cases because they are consistently too lenient, but rather because they recognize that in very many cases the guidelines are set way to high, especially for non-violent offenders.

Notably, while we have recently seen (thanks largely to Bill Otis's efforts, I suspect) NAAUSA and now former prosecutors complain about the reform legislation of the SSA, none of these folks have vocally complained about the post-Booker sentencing system or the consistent pattern of both prosecutors and judges recognizing in many cases that the guidelines recommend inappropriately long prison terms. The Booker system has now been in place for nearly a decade, and the prevailing opinion among most of those knowledgeable about the system (including our current AG) is that federal sentences are still generally too long, especially for non-violent offenders.

Posted by: Doug B. | May 13, 2014 8:56:33 AM

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