Thursday, September 5, 2013

William G. Otis on Holder, Mandatory Minimums

On September 3, The Federalist Society sponsored a conversation about mandatory minimum sentences and Mr. Holder's recent comments to the American Bar Association. The discussants were William G. Otis (Georgetown University Law Center) and Douglas Berman (Ohio State University / Sentencing Law and Policy Blog). Those interested in the discussion can hear it, in its entirety  here (click). We found Otis' opening statement so informative, and compelling, however, that we asked his permission to post it here. He was gracious enough to provide it. 

A 49 year-old school teacher was recently convicted of raping a 14 year-old student, who later committed suicide. The teacher was sentenced last week. The judge gave him a prison term, all but 30 days of which was suspended. In imposing what was effectively a 30-day sentence for raping a ninth-grader, the judge remarked, among other things, that the girl "seemed older than her chronological age" and was "as much in control of the situation" as the teacher.

And with that, you have just heard much of what you need to hear about why mandatory minimum sentencing is indispensable to justice. We can have worthwhile debates about which crimes warrant mandatories, and how high or low the minimum should be. But we cannot sensibly debate the Framers' wisdom that the power of government is best exercised when it is distributed among the branches, not concentrated in a single branch, much less a single person, whether or not he is wearing a robe.

It's wise to give a good deal of sentencing discretion to judges, and our system does so. It's foolish and -- as the case I described shows, sometimes scandalous -- to give them absolutely all of it. We need checks and balances today, just as we did when the Constitution was written. Allowing the legislature to direct that there are some crimes so serious that the judge will be required to impose a rock-bottom sentence is not a denial of sympathy. It's an insurance policy against injustice.

The Attorney General's remarks three weeks ago evinced no recognition of any of this. They consisted in equal measures of forgetting the past and being complacent about what we've achieved in the present. The Attorney General wants to turn back the clock on a sentencing system we know works -- works to keep us safer than we have been in fifty years -- in favor of one we know fails. At the same time, he wants to discard the last pillar of law-driven sentencing, to embrace a luck-of-the-draw system that pretends sentencing is fairer if it's more idiosyncratic. The windfall beneficiaries of the Attorney General's largesse are not going to be the huge majority of Americans who live normal, peaceable lives. They're going to be the small fraction of 1% who, by their criminal choices, earn their spot in federal prison.

Two generations ago, in the Sixties and Seventies, our country had the sentencing system Mr. Holder wants to resuscitate. We convinced ourselves that rehabilitation works, and that we could almost always trust judges to get it right at sentencing, with no binding input from Congress.

For our trouble we got a national crime wave.

Crime was twice what it is now. By the Eighties, Congress wised up, and embraced determinate sentencing. That meant binding sentencing guidelines and, for a few serious offenses, mandatory minimums below which the judge can't go.

This was an enormous achievement. For the first time, our country systematically introduced the rule of law to replace largely unfettered "judicial discretion." For those in the audience who are not attorneys, the phrase "judicial discretion" is lawyer-talk that sounds high-minded but actually means, "the judge can do whatever he wants."

We got something important for the reforms that made sentencing conform to law. From the early Nineties to the present day, we have enjoyed a 50% reduction in crime, to levels not seen since the Baby Boomers were in grade school. This massive increase in our ability to live in peace and safety has been a moral and an economic boom. According to Bureau of Justice statistics, there are more than 4,000,000 fewer serious crimes in America today than there were a generation ago. Over the last several years, then, literally millions of ordinary Americans did not become crime victims and did not have to fork out to pay hospital bills or replace stolen savings.

These savings to individual citizens were papered-over by the Attorney General, who told us the government will spend less by shrinking the prison population. A cynic might wonder about the Justice Department's sudden and selective concern for frugality, coming, as it does, from an Administration that has already borrowed six trillion dollars to pay for things it actually cares about. But even the credulous can't help noticing that the Attorney General's claims about cost reduction ignore the millions of dollars -- not to mention the human suffering -- that successfully controlling crime through incarceration has already saved private citizens.

Mandatory sentencing laws and increased imprisonment did not alone produce these benefits -- let's be clear about that -- but they contributed significantly. The late James Q. Wilson agreed with other scholars who have found that increased imprisonment in the 90's accounted for "a quarter or more" of the decrease in crime. Mr. Holder's allies have mostly not disputed that. Instead they say that continuing to incarcerate produces diminishing marginal returns. That is true -- because it's a truism: Diminishing marginal returns to the dollar is virtually always a feature of domestic (or any other) spending. And returns are still returns.

Now, Mr. Holder wants to jeopardize this progress by gutting mandatory minimum sentencing in federal court. He's directed that, for the most part, federal prosecutors must air-brush indictments so that they no longer detail the true extent of the defendant's criminal behavior -- detail that, if alleged and proved, would require the court to impose at least a minimum sentence.

His program is misconceived. First, Mr. Holder says he would limit his plan to "non-violent" offenses. He apparently wants us to think that "non-violent" means "non-harmful," and that's clever but it's false. Non-violent offenses can be extremely harmful if not fatal. A heroin addict's sliding the needle in his arm is non-violent, but he can be dead by nightfall. Trafficking PCP or methamphetamine to a high school kid is non-violent, but has started him down the path to ruin. The degenerate who, with the promise of a pretty dress, entices an eight year-old to pose for pornographic pictures has done no violence, but has defiled a little girl. Mr. Holder to the contrary, Congress has every right and reason to demand that defendants like that receive at least a rock-bottom sentence that can't be watered down by an overly sympathetic or naive judge.

It is one thing, and wise, to give judges substantial discretion. It's another to give them all of it. Because judges vary widely in temperament, ideology and experience, letting individual judges decide without legislative constraint what the sentence will be is sure to lead to irrational disparity. Without Congressionally-imposed floors, we'll go back to the luck-of-the-draw. Some judges will stick with mandatory sentences and some won't. Nearly identical defendants with similar records will get widely varying treatment based solely on whose courtroom they're assigned to.

To those who say that we should end mandatory minimums and "let judges be judges," we need ask only one question: Do they also support an end to mandatory maximums? That is, if they wish to allow a judge full leeway, in the case of a particularly sympathetic defendant, to give as low a sentence as the judge thinks "appropriate," is there any principled reason for not allowing the same judge, for a particularly rapacious defendant, to give as high a sentence as he thinks appropriate? I can't think of any, but, so far as I have heard from Mr. Holder or his allies, the plan to "let judges be judges" runs in only one direction.

Finally, existing law already provides at least three escape hatches for deserving defendants facing a mandatory minimum. 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 makes a clean breast of his crimes. This "safety valve," as it's known, has been in the law for almost 20 years. Separately, under existing law (Section 3553(e)), a defendant can avoid a mandatory minimum by helping prosecutors bring his cohorts to justice. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down conspiracies.

Forgetfulness about our past blunders and complacency about the crime reduction we've achieved are not the way to go. We tried the Attorney General's "reforms" before. They erode the rule of law, overestimate judicial discipline, and they don't work.

Law-guided sentencing does.

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