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The Case for Mandatory Minimums

I don't want to beat this horse to death, but there have been a few requests for my opening statement in my Tuesday, September 3 Federalist Society debate with Prof. Doug Berman. Our discussion concerned the Attorney General's new directions to federal prosecutors about mandatory minimums and, more generally, balancing judicial versus legislative power in sentencing.

My remarks follow the break.

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.    





Professor Otis,

The Montana case that you reference in the beginning of the post has really brought sentencing to the headlines, but a lot of the blame for that case should be put on the prosecutor, and thus the executive branch of Montana. This is a quote from a Reuters article (8/30/2013), "In an agreement with prosecutors later that year, Rambold admitted to a single count of sexual intercourse without consent and prosecutors agreed to postpone the case for three years and dismiss it entirely if Rambold completed sex offender treatment."

So, the victim in the case was the state's prime witness. When she took her life she severely hindered the state's ability to try the case and thus ensure a guilty verdict. The state, via its executive branch representative (the prosecutor) entered into a deferred prosecution agreement with Rambold in which he plead guilty to one count of Sexual Intercourse without Consent, Montana statute 45-5-503(1). Section 45-5-503(2) deals with sentencing, and states "...shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years..." The prosecution is the one that, even considering the language of the statute, agreed to no prison time, and to dismiss the charges after three years if Rambold completed sex offender treatment. Media headlines should have been all over the district attorney’s office for essentially giving Rambold the chance for a do-over. And, to make the deal even sweeter for Rambold, the prosecution didn't charge him with 45-5-503(3)(a), which states "If the victim is less than 16 years old and the offender is 4 or more years older than the victim...the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years." So while all the attention is about how the judge ignored the two year minimum, the minimum in this case should actually be four years, since the victim was 14. The prosecutor's office can be thanked for agreeing to shave off that two years by not even charging Rambold with the actual section he violated. On top of that, section 46-18-205 "Mandatory minimum sentences - restrictions on deferral or suspension," subsection (1) "if the victim was less than 16 years of age, the imposition or execution of the first 30 days of sentence of imprisonment imposed under the following sections may not be deferred or suspended..." One of those following sections is 45-5-503. So, had the prosecution actually charged Rambold according to the age of the victim, it would never have even been allowed to suspend his full sentence. The prosecution purposely charged him so that it could offer a plea of no prison time and not be hampered by the law. The legislature intended for the punishment to be more severe when the victim was under 16, which in this case she was, and wanted to ensure that even if the prosecution or sentence was deferred, that the defendant serve a minimum of 30 days. The prosecutor in this case circumvented the legislature and the judiciary in this case.

So the prosecution lets Rambold go back into the community with the understanding that he will complete sex offender treatment. He commits a technical violation of that treatment by attending a family function where children are, and by having sexual relations with an adult female without informing his supervising agent. In April 2013 the charge of Sexual Intercourse Without Consent is filed for the original crime that occurred in 2007. Rambold pleads guilty....and this is where the story seems to get fuzzy.
It’s possible that the judge looked at 46-18-255 "Sentencing of nonviolent felony offenders - criteria - alternatives to be considered - court to state reasons for imprisonment." Subsection (1) states "In sentencing a nonviolent felony offender, the sentencing judge shall first consider alternatives to imprisonment..." With regard to sentencing, the judge is now in a position torn between the one extreme of what the legislature has written, and the other extreme of what the prosecution gave Rambold. The maximum sentence is 100 years but the minimum sentence is 2. To complicate matters more, the state, via its executive enforcement of the law, believed that this particular defendant and society would be best served, in this particular case, under these particular circumstances, with a sentence of no prison term and the ability to have the charge eliminated completely. The judge, balancing all of these conflicting factors, made his decision. He sentenced Rambold to 15 years, deferred all but the 30 days (that would be the 30 days he should have had to serve if the appropriate subsection relating to the victim's age was filed), and mandated that the remainder of the sentence be served on parole. Rambold lost considerably in this sentence, compared to the prosecutions original deal...and won considerably compared to the law as written. He will have to spend a month in jail followed by registering as a sex offender for life and spending 15 years on parole. A mistake on parole and he can be taken to prison on a parole violation, and potentially be required to serve the remainder of his sentence.

The media, which in no way took any time in doing the basic research I conducted via Montana's website, has chosen to crucify the judge and let the prosecution off Scott-free. So, now an elected judge up for reelection has issued a statement that his original decision may have been incorrect. I do not know exactly why the judge issued this statement, but I would imagine that it is in response to the backlash that resulted from the media coverage. But, this judge is not the final say in sentencing, which the prosecution has acknowledged. In fact, according to the Montana Supreme Court's website, the prosecution has already filed an early appeal with regards to sentencing. The appeal states that the oral announcement of sentence by the judge is official, even though the written sentence has been delayed. That the oral announcement of sentence trumps any written sentence that follows thereafter (thus the judge cannot change the sentence), and that the Montana Supreme Court should review and correct the sentence.

In conclusion, you point to this case as an example of why judges should not be the sole decider in sentencing, and why the legislature should remain strong in its enactment of mandatory sentencing. I would counter that this case, when examined more closely, is a great example of why the judiciary in fact should be the branch to determine sentencing, with little input from the legislature or executive. This case shows that the executive branch, via its prosecution arm, has great leeway in how it charges defendants and these charges can and will circumvent the intent of the legislature. In return the legislature will enact new laws in an attempt to curtail the executive's ability to charge as it wishes. It is the responsibility of the impartial and neutral judiciary to balance the competing views of the other branches, serve as a check on their attempts to dominate the role of sentencing, and make the final decision.

1. Judges impose sentences; prosecutors don't.

2. A sentence of 30 days for child rape is a scandal, a fact you could not possibly fail to appreciate. To whatever extent the prosecution facilitated that scandal, shame on it. But (a) facilitating a sentence is not imposing it; and (b) neither the judge nor the prosecutor is part of the legislative branch, and the point of my post is that the legislative branch has and ought to have the right to set a rock bottom minimum for serious crimes.

3. The notion that THIS CASE illustrates why sentencing should be given over solely to the judicial branch is preposterous on its face. You can filibuster as you care to about what went on here, but the judge's sentence was an affront to justice. Not for nothing did one of the leading sentencing experts in the country, Doug Berman, make absolutely no effort to defend it.

4. What you're missing, other than the obvious, is that, while we like to think that judges are impartial and neutral (as they are most of the time), they can also be complete fools, not to mention occasionally knaves (e.g., Judges Hastings, Camp and Nixon, among others). The check on foolishness and corruption in any one branch is the involvement of the other branches.

The Framers knew this. Why don't you?

35 years of experience in the halls of justice has convinced me that judges are well-schooled in almost every aspect of their duties but sentencing. Even those well-schooled find the task the most distasteful part of their judicial responsibilities. Human nature dictates that few want to be seen as the actor wearing the "black hat."

Accordingly, Bill is wise to focus on the issue of judicial discipline and the prudence of law-guided sentencing.

Prof. Otis:

sean.daly82 = "Ever learning, and never able to come to the knowledge
of the truth." ?


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