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Leahy/Paul and Mandatory Minimum Sentencing

Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced a bill (S.619) that would effectively end mandatory minimum sentencing in federal law.  Judges would be able to sentence at any level below the minimum they wished, provided only that they explain the sentence (which should be routine anyway under existing sentencing standards).  The government would be able to appeal, but that prospect is largely both illusory--given the resistance at Main Justice to approving any sentencing appeals except in the most egregious cases--and ineffective even when it happens, given the very deferential appellate standards imposed on the circuits by Booker, Gall and Kimbrough.  The overall effect is that district judges so inclined would be able to go below the mandatory minimum whenever they wished, and almost always get away with it.
The Leahy/Paul bill is a disaster, both for US Attorneys Offices and, more importantly, for the country.  In the Eighties, Congress saw the need for mandatory sentencing guidelines and statutory minimums on top of that.  The reason for these measures was the scandalously low (and dishonest) sentencing of the Sixties and Seventies, and the accompanying explosion of the crime rate, illustrated by the numbers here.  As determinate sentencing and mandatory minimums gained traction over the last generation, the crime rate has plummeted by 50%.  Federal crime is, of course, only a small fraction of crime generally, but the significant improvement in the safety of citizens from crime both state and federal is an accomplishment to be safeguarded, not risked.
Having become complacent with our success, some in Congress have made proposals, like the Leahy/Paul bill, to go back to the bad old days of luck-of-the-draw sentencing.  If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't.  Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker.  For the reasons I shall now explain, the ensuing one-way ratchet downhill will produce at least three perverse results.
First, it will end the rule of law in sentencing.  For those who believe that the rule of law is better than the rule of taste, this would be a loss of enormous magnitude.  And it will have on-the-ground consequences.  The ensuing discretion-trumps-everything terrain will allow ideologically-driven, defendant-friendly judges like Jack Weinstein and John Gleeson, in New York, and Mark Bennett, in Iowa, to do as they please.  It would, in other words, bring back almost unbridled discretion in sentencing (with some minimal window dressing), while driving out law.  

If there are problems with mandatory minimum sentences being too high in the occasional case (as some people of good faith believe), the way to deal with it is for Congress, in a thoughtful and selective way, to make a particular mandatory minimum lower.  It is not to create an essentially unlimited writ for judges, one at a time and on the basis of idiosyncrasy, ideology, skepticism about the government, or what have you, to do whatever they wish.  That may be many things, but law it is not.  
The second perverse result is that this bill is certain to increase crime.  One hardly need be a genius to understand that, when you have muggers, drug pushers and the rest of them in prison and off the streets, the streets are safer.  But if common sense were not enough to see this, the statistics--the astonishing fall in the crime rate over the last 25 years--should do the job.  This massive reduction in crime did not come about by magic.  It came about because the country saw that something needed to be done and did it.  Mandatory prison sentences were part of the answer.  Imprisonment is of course not the sole cause of decreasing crime--more police and better private security measures, along with other factors, also have contributed--but imprisonment is a major factor.
The third adverse effect of ending mandatory minimums is that it will increase the cost and litigiousness, and decrease the effectiveness, of the AUSA's work.  It is hardly a secret in the legal profession that it's cheaper for the client to settle a case than to take it to trial.  AUSA's have been successful bringing criminals to book and then in settling the cases (in the lingo of criminal law, concluding a plea bargain) in large part because of the existence of mandatory minimums, taken together with the government's exclusive power, through Section 3553(e) motions, to allow a court to go below the minimum.  
Obviously, if the minimum vanishes, the prosecutor's power vanishes with it.  One result is certain to be less cooperation, less effectiveness in stopping criminals, and therefore more crime victims.  When one very important tool of investigations and prosecutions is eliminated, their effectiveness will decline.  That means less justice for the public and an increase in crime victimization.  Another result will be that the government will have to invest the public's scarce tax dollars into litigating cases--cases that, under present law, the defendant has a strong incentive to settle through a plea bargain, given the lure of a lighter sentence to which only the prosecutor holds the key.  
Our country worked hard finally to put the rule of law in sentencing, and was rewarded with greater peace and safety for its efforts--greater peace and safety that we have had than at any time since the Baby Boomers were children.  It would be a tragedy to throw away what we labored so hard to achieve.   


Bring back mandatory guidelines.

Constitutionally, that requires having juries find disputed sentencing facts. As a practical matter, that would require simpler guidelines with fewer and more objective facts. So be it. A simpler, mandatory guidelines system would be far better than a de facto return to the old system.

I entirely agree. I've been pushing for years, in Congress as elsewhere, to go back to mandatory Guidelines with proof BRD for Apprendi/Blakely/Booker factors. My only caveat is that we need to prevent further damage -- like this Leahy/Paul bill -- before we turn to the task of returning the rule of law to the Guidelines.

Bill's third point is particularly compelling. One can not underestimate the power of a Section 3553 (e) reduction. This section would be emasculated under the proposal leading to longer, less efficient investigations and fewer criminals brought to the bar of the court.

Thank God for Rand Paul. Its about time someone used there brains . Now people can get real treatment instead of bars and a mat.State minium WOW GOOD BYE Corrupt system....

Thank God for Rand Paul. Its about time someone used there brains . Now people can get real treatment instead of bars and a mat.State minium WOW GOOD BYE Corrupt system....

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