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November 1, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 at 05:16 PM | Permalink


It is high time to end all judge sentencing. They are totally pro-criminal, and biased in favor of lawyer employment. Judges can continue in court, wheeling in the robots into court. The robots will do a 100 times better job than they ever can.

Posted by: David Behar | Nov 1, 2017 9:30:36 PM

David, I am curious to know on what you base your observation that judges are "totally pro-criminal."

Posted by: Tom Root | Nov 1, 2017 9:46:36 PM

They owe their jobs to the criminal. They do not want them hurt, scared, or deterred, or they lose their jobs.

Posted by: David Behar | Nov 1, 2017 11:51:05 PM

Once again, an asinine response from David - yep, let's bring in the robots - unbelievable. Speaking from experience (more than a decade) at the federal level, Judges have an incredibly difficult task and sentencing someone to prison is one of their most difficult jobs. Don't take my word for it, ask one, read about a Judge who has said so, many have and will continue to do and say so. That being said, Judges have more freedom today than they ever have - look to the 3553(a) factors. Booker made the Guidelines advisory and Gall says the Guidelines are the "starting point and initial benchmark." They can go higher or they can go lower, with the exception of mandatory minimums (unless you have a 5K1.1 or 3553(e) motion. So, let's get real and not do as David suggests "It is time to end all judge sentencing."

Posted by: atomicfrog | Nov 2, 2017 8:52:37 AM

Hi, Atomic. What you said has been done in the 1980's. The crime rate soared to double, as criminal dependent,biased judges coddled their defendants. If you want to make race and poverty mitigating factors, elect legislators who will update the algorithm to do so. Judges are making law daily based on their mistaken feelings, and on their rent seeking selfish interests.

Chess has 37 possible moves, each play. Go, the Chinese board game, has a billion. Computers beat the best humans, decades ago in chess, and this year in Go. How many possible moves does judging have at each step, if the real goal is public safety?

Posted by: David Behar | Nov 2, 2017 9:18:20 AM

I have never ever gotten the correct answer on exercises of applications of sentencing guidelines. I would like to hear from experts, like Atomic and Prof. Berman, what they scored on such exercises. As an ordinary citizen, I know I have double the intelligence of every judge in this country, their being the stupidest of the stupidest people in this country. (No one is stupider than a lawyer, not even Life Skills students learning to eat with a spoon.). One has to wonder if every defendant has had mistakes of arithmetic in his sentencing in this country. With robots, there would be rare mistakes. Any detected would be corrected by updates of the algorithm.

Posted by: David Behar | Nov 2, 2017 9:25:15 AM

As a federal practitioner, I'm intrigued by the robot idea. Because I have to say I disagree with Atomic. While judges may say sentencing is difficult, I think most find it quite easy.

Posted by: whatever | Nov 2, 2017 9:28:58 AM

Whatever. If you ever did exercises in sentencing guideline application on hypothetical cases, each with an established answer, what was your score?

Posted by: David Behar | Nov 2, 2017 9:37:16 AM

i've never done that exercise.

Posted by: whatever | Nov 2, 2017 9:47:58 AM

Wow, I agree with David on something - calculating the Guidelines is not a mindless exercise and I can assure you that if I were to present an "easy" exercise for calculating the guidelines, you will miss something, or overlook something, or fail to properly calculate the defendant's criminal history - maybe you will incorrectly begin with a Base Offense Level of 7 at 2B1.1(a) when it should be 6. You might not think that one level makes a difference, but SCOTUS will tell you otherwise. If the Guidelines aren't correctly calculated, the case is coming back to the district court...I've met with federal judges in chambers prior to sentencing, we've had the difficult conversations about a single mother with 2 kids looking at 18-24 months in prison for participating in a check cashing scheme, or the white collar dad with 3 kids, a stay at home wife, facing 121-151 months for a fraud offense. Do they both deserve prison? Do they both need a prison sentence, what are the ramifications of a prison sentence for the single mother, the stay at home mom, the kids, the victims...I'll let the Judge decide that and I can assure you, as whatever says, " I think most find it quite easy"...it's nowhere easy - just ask or in this case read this great article with Judge Denny Chin (Madoff Judge) - http://www.nytimes.com/2011/10/09/nyregion/judge-denny-chin-of-federal-court-discusses-sentencing.html

Posted by: atomicfrog | Nov 2, 2017 10:08:25 AM

You've had ex parte discussion with judges prior to sentencing?

Posted by: whatever | Nov 2, 2017 10:53:43 AM

As a federal probation officer - yes. We work for the Court and the Judge- no ex parte issue there.

Posted by: atomicfrog | Nov 2, 2017 10:59:30 AM

As a probation officer do you recommend a particular sentence to the judge?

Posted by: whatever | Nov 2, 2017 11:46:27 AM

Yes - and I imagine your next question may be - how often does the Judge follow the recommendation. Sometimes they do - sometimes they don't. My goal in meeting with the Judge is not necessary to convince the Judge that my recommendation is right, but to simply advise the Judge of all of the factors when imposing a sentence. My job is also not to ensure the defendant gets the highest sentence possible, but instead one that meets the criteria and factors set forth at 3553(a). As you well know, USPO's don't work for the AUSA nor the defense atty, they work for the Court and our obligation is to give the Court as much information as possible so the Court can make an informed decision at sentencing.

Posted by: atomicfrog | Nov 2, 2017 12:09:10 PM

In this computer age, why aren't the facts and the law (organic law) put into the computer input for a diagnosis? Sounds more honest then corrupt judicial system!

Posted by: LC in Texas | Nov 2, 2017 12:14:08 PM

Atomic. I understand better. You are the computer that the judge listens to. You, at least, you provide the facts. You would not lose your job. You would still feed the facts.

You would lose your power and influence, and the ass kissing defendants must demonstrate.

May I ask you about something as an insider?

Probation or Parole Sharking

This is a game several parolees and probationers have told me about. A remedy should be included in any reforms.

Three months before release, the authorities find a violation. Example? Mother's vacuum cleaner is in the trunk of the car. It is not stolen. It is borrowed, with permission, to clean the house. This violation results in a $3500 fine, an extension of 5 years, and impounding of the car and of the vacuum cleaner. The latter is not returned to the mother. There is no legal recourse. The penalties are without any hearing.

Posted by: David Behar | Nov 2, 2017 10:26:45 PM

David, I have never seen what you describe, nor have I heard of it from colleagues. When federal inmates get set for release from the BOP, they typically go to to a halfway house for anywhere from 30 days to 6 months (around 10% of their sentence), to help them reintegrate back into society. While at the halfway house, if they violate the rules there, they will go back to the BOP to finish their sentence (like I said 30 days to 6 months or so). Then once they are released completely from the BOP, they go live with family, bf, gf, uncle, mom, dad, someone who will allow them to live with them and their federal supervision begins. We don't go looking for ways to violate like that is our goal - let's lock them back up - nope! As for your vacuum cleaner example, first of all, when they violate, their supervision can be modified, expanded, or terminated, but the Court cannot impose a fine - not at the federal level. The car would not get impounded. Let's be logical, if an offender presented with the same facts, I'd investigate, talk to mom, see that he borrowed the vacuum, and return it to mom. Common sense problem solving - not, let's look him up and make him pay because he's a "criminal." If the defendant is going to be revoked, he must come back before the original sentencing judge - so there are hearings at the federal level.

Posted by: atomicfrog | Nov 3, 2017 11:08:55 AM

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