Can we also amend all federal criminal statutes to make it clear that it is now possible to murder dozens of people in a mass shooting (James Holmes) or as a serial killer (Gary Ridgeway) and, strictly on federal prosecutors' say so, not be subject even to any federal prosecution at all?

And let's not leave out that if federal prosecutors (behind closed doors) thought Dzhokhar Tsarnaev could become an effective agent for the feds --- e.g., if they viewed him as a sweet-faced Whitey Bulger, who I believe committed over a dozen murders while playing nice with federal prosecutors --- the prosecutors could be the ones giving Dzhokhar the second chance (and a third and fourth and fifth chance).

In the end, Bill, this post highlights yet again that what you fear/assail is judges having power to make decisions in open court and subject to public review the exact kinds of decisions prosecutors already make behind closed doors without any public scrutiny or even awareness.

I should give you credit, Bill, for highlighting the extreme possibilities of what could happen if federal judges were given in the open the exact power that federal prosecutors now exercise every day behind closed doors and completely hidden from view. This posting provides a great reminder of just why prosecutors are so very eager to keep their extreme powers hidden --- as you highlight, this power would be roundly rejected by the people and their representatives if subject to public view and real accountability. (Indeed, this is largely what the whole Fast & Furious controversy was about, no?)

I am saddened to learn that you cannot help get a vote on the JSVA. Even better would be hearings on these matters in which you could testify about your concerns and Senators can then ask about Whitey Bulger and other mass murderers and drug dealers given just one more chance by federal prosecutors behind closed doors. (I still wonder if prosecutors had parties with prostitutes with Bulger like apparently the DEA officials have done with drug dealers. Notably, state and federal judges get called out by you and others just for
how they do their jobs, but I see little condemnation of bad apples in your old agency.)

I think the previous two posts acknowledge something that I find interesting and that is there are circumstances where a criminal's potential "usefulness" justifies a lesser sentence for his crimes. Obvious examples of this concept are lesser sentences for those who testify against higher ups in organized crime or no prosecution at all for those who can build rockets. There probably are many other reasons where a lesser sentence could theoretically be justified.

The real debate seems to be who is making this decision. I do not have a lot of confidence in judges doing this as I wholeheartedly agree there is very little accountability when judges do not follow the law. Sure, they might get overturned on appeal, but at the end of the day the judge is still on the bench. The penalties for judicial incompetence seem to be non-existent.

As to whether it should be made by prosecutors via charging decisions, it seems like it could be equally problematic as it is placing the same unfettered discretion in the hands of a different party without much oversight or recourse if the discretion is abused.

My only thought is perhaps instead of eliminating mandatory minimums is that after some period of time, the convict if he met some sort of extraordinary criteria could file a motion to reduce his sentence and if he met some threshold showing, have him pitch his case to a jury of his peers, who could decide as representatives of the community whether the criminals good deeds or whatever justify reducing his sentence. I'd feel more comfortable with this than any other alternative I have seen.

I very much like your points, Matthew, and I have long advocated (1) for jury involvement in habeas proceedings (which could get us closer to what you suggest under current law), and/or (2) informing juries about the sentencing consequences of their verdicts so that they know the full consequences of what they do, and/or (3) providing for jury sentencing in all federal cases. I think all of these proposals would be much better than the status quo and better than just a JSVA fix for many reasons you mention.

Bill, rather than fight over your eagerness to change the JSVA, how about we work on drafting together a new statute along the lines urged by Matt? I am serious here, as I think we could hammer out something involving juries that we would both like --- e.g., juries could go above mandatory maxes when it so wished --- and I am certain any proposals giving a greater role to juries is more in keeping with the Framers' vision of federal criminal justice than anything else we here discuss.

I am very serious: I would eagerly arrange to come to DC or fly you to Columbus so we could work on this proposal in person together (and we could, to serve transparency, make our meeting public and have it webcast). Do you have time to work on this over the next few months and are you game to really give this a go?

Kent: In my perfect, more-jury-involved-world, I would have speedy-resolution aspects to any jury-based habeas reform so that we'd most often get a decision from a jury on habeas MUCH faster than we typically get one from judges -- e.g., I might craft the provision that would require a habeas petitioner (especially capital ones) to agree to certain case resolution deadline if/when they sought jury involvement in their habeas action.

Indeed, one primary goal of my jury-oriented revision of habeas would be to make it much harder for the average capital defendant to prevail --- mostly because he has likely already gotten 2 previous jury determinations which would have to be shown great deference --- and to make it much more likely non-capital defendants get a chance before a jury (which they often do not get in any meaningful way or at all).

I am hoping, Bill, you will soon respond yea or nay to my proposal. I am very eager to work on bill drafting with Bill Otis.

Doug --

"Bill, rather than fight over your eagerness to change the JSVA, how about we work on drafting together a new statute along the lines urged by Matt?"

How about if we take one thing at a time?

You have often blogged about your support for the JSVA, in part because of the improved transparency that, in your view, it would bring into the system.

You vocally sought my support for bringing the bill to a vote. By backing an amendment that does not dilute it in any way, and instead adds yet more transparency, I granted your request.

Now, I hope you will express your enthusiastic support for the improved version of the JSVA I have put forward. Perhaps you could do that on SL&P? By quoting my entry here, maybe??

I want to be in the best position I can to figure out whether accommodating you actually produces positive results, or whether you were just pulling my leg about why I should publicly urge a vote for the JSVA.

***********************

As to habeas: You should probably know from the outset that (1) while I like and respect Matt, and enjoy reading his comments and talking with him, my quite firm view is that we need to drastically slim down the system, particularly collateral attack, not balloon it; and (2) I recognize Kent as one of the leading national experts on habeas (indeed, I think he's Number One), and I would have to be pretty full of myself to think that my views of habeas could be better informed than his.

Bill, I am not pulling your leg in any way, but I strongly believe we could together write a much better sentencing reform proposal based on having juries involved in federal sentencing than what the JSVA provides. Matt's comment highlighted that, while you trust prosecutors more than judges, and while I trust the open decision-making of judges more than the closed decision-making of prosecutors, perhaps we both would prefer a better --- and more constitutionally faithful --- federal sentencing system that incorporates juries.

One of many reasons I prefer death sentencing procedures to non-capital sentencing is because of the involvement of juries. Thus, I am excited to think about a federal sentencing reform proposal what we might call JISP --- Jury Involved Sentencing Process --- that would enable juries to have a central role in deciding initial sentencing lengths (we can worry about habeas later). I would much prefer a JIPS system for initial federal sentencing to one in which only federal prosecutors or federal judges alone make critical sentencing decisions. Consequently, rather than have an academic debate over amendments to the JSVA that we cannot ourselves achieve, let's instead work together on a JIPS bill.

So, to put the question seriously and directly, rather than waste our time with additional sill JSVA amendment discussions, are you willing to work with me on a JISP bill?

I can't even remember how many posts you spent poking at me about my supposed influence in Congress and urging me to join you in supporting the JSVA.

But that was then.

Now, when we have a proposed JSVA that does EVERYTHING the original would have done, and has added transparency to boot, you go blank about it.

Why was it so important for these last weeks and months, when we also "could not ourselves achieve" it -- but now you want to forget about it and talk about something else? (Of course we cannot ourselves achieve a JISP bill either, now can we)?

So I'll ask you the question you spent so much time asking me:

Will you now publicly support a Senate vote on (our amended to improve transparency) JSVA?

Yes or no.

If you refuse to say, I'll know how sincere you were in all your many posts about the importance of JSVA and how very much you wanted me to sign on to its more enhanced sentencing transparency.

If you say "no," I'll have even more evidence for the same unavoidable conclusion.

Bill, I have said before and will say again that I would favor a vote for your amended version of the JSVA. I always prefer votes to no votes, and so I would be grateful for a vote on any version of the JSVA. Got it?

How about we work into the JISP bill that any defendant electing a have a jury be involved in sentencing agrees to a fixed timeline for any and all sentencing appeals? I cannot guarantee this will be a time saver, but I share your interest in figuring out ways to making appeals more streamlined and efficient.

As for you repeated claims I say false things about your views, I keep struggling to know just how what I said was false. I have asked repeatedly --- and still await an answer --- as to what other means of federal prosecutorial transparency and review you support other than just congressional inquiry. Would you support any judicial inquiry and prosecutorial decisions? A public citizen prosecutorial accountability board? Review by an independent agency like the US Sentencing Commission? How can you say I made a knowingly false statement when I still think it is true that you believe the only proper means of transparency and review for what federal prosecutors do is congressional inquiry? If I am missing something here --- if you in fact do support some other means to ensure public disclosure and review of what federal prosecutors so, please tell me what that is. That is what my prior statement was trying to clarify --- whether that is the only form of transparency and review you endorse for federal prosecutorial decision-making.

Similarly, in context, my statement was that you believe we should never trust judges with complete and unlimited sentencing discretion. Isn't that what you believe. Or am I wrong and thus is it the case that you believe we should trust judges with complete and unlimited sentencing discretion.

Please understand, Bill, I never what to nor do I mean to misrepresent someone else's views and beliefs. Rather, I engage here because I am ever eager to UNDERSTAND others' views and beliefs. And because I respect your experiences and influences, Bill, I am always distinctly eager to fully understand your precise views and beliefs and their full meaning and import. I apologize if I seem to restate your claims poorly, and I will kept trying to avoid doing so. I fear this is the problem with an on-line forum, and that is why I would be so especially eager to work together with you on a JISP bill in person.

What I fear is getting useless, Bill, is having you truly understand that I am not playing some pointless game of gotcha, but rather I genuinely and sincerely want to understand other kinds of "exploration of charging decisions [you] would support by the political branches". Let me try yet again with a couple of specific examples that perhaps you can say yea or nay to:

Would you support Congress creating a special agency to investigate and issue reports on federal prosecutorial charging practices?

Would you support the Prez creating a special citizens review commission to investigate and issue reports on federal prosecutorial charging practices?

My statement using the term "only" was meant merely as an hinest inquiry: I still sincerely and genuinely (and without any concerns for game-playing or word-smithing) want to know what actual means, other than congressional hearings, that you support for "exploration of charging decisions ... by the political branches."

I keep pressing on this important matter Bill because, as you likely realize, my strong disaffinity for federal mandatory minimum sentencing statutes is grounded almost entirely in my fear that there is far too little transparency and review for prosecutorial charging/sentencing decision-making (especially as compared to judicial decision-making). If you can help me better understand how we might get better transparency and review for prosecutorial charging/sentencing decision-making, I may significantly soften my opposition to federal mandatory minimum sentencing statutes.

Because you were a federal prosecutor for so many years, I strongly believe and recognize that you have far greater experience and wisdom in this arena and thus better understand how wisely to balance competing valid consideration. So, I hope it is not useless to ask you again for some (any) specifics or other examples concerning "the kind of exploration of charging decisions that [you] would support by the political branches."

Thanks for your engagement in this regard.

Doug --

Your comment illustrates why trying to discuss this with you has become useless. It's because, as you use them, words just don't have any fixed meaning.

You now say, and I quote, "My statement using the term 'only' was meant merely as an h[o]nest inquiry."

What you said at the time was, and I quote, "To be clear, the only transparency and review you support for federal prosecutors is through congressional investigation."

Does that sound like "merely" an "inquiry"?

As I noted, when words have no meanings, conversation becomes useless.

I will answer some of the points here, however, since they concern substance. After that, I am going to limit with greater discipline the number of comments to which I will respond.

"Would you support Congress creating a special agency to investigate and issue reports on federal prosecutorial charging practices?"

Yes, as long as the agency is within one of the two politically accountable branches. Indeed I would support its creation tomorrow, and it can start with the most recent few years of prosecution charging decisions. Take the pass given to Lois Lerner, for example.

"Would you support the Prez creating a special citizens review commission to investigate and issue reports on federal prosecutorial charging practices?"

Yes, if the commission were within and accountable to the elected branches only, and its membership was not stacked to favor one side or the other (which Obama did with his Ferguson Commission). It could have, say, seven members, three appointed by the President, two by the Senate Majority Leader, and two by the Speaker.

"I keep pressing on this important matter Bill because, as you likely realize, my strong disaffinity for federal mandatory minimum sentencing statutes is grounded almost entirely in my fear that there is far too little transparency and review for prosecutorial charging/sentencing decision-making..."

Unlike you, I will not state someone else's position for him. From what you have said in the past, however, I was very much under the impression that most of your disaffinity for MM's is that you think they're often too harsh, and contribute to "over-incarceration."

What I oppose is flouting the Constitution by handing executive branch functions to the judicial branch. I would take this position even if the judicial branch did not contain flaming left wing ideologues like Jack Weinstein, Mark Bennett and (while she was there) your friend Nancy Gertner.

I will oppose giving unelected judges a say-so over charging whether it is done directly or indirectly, boldly or by stealth. Prosecutors have their power, and judges, theirs. The Framers kept them separate and independent for a reason.

P.S. While prosecutors have considerable power, they are not the primary determinant of the defendant's sentence by any means. I covered this in a prior entry. http://www.crimeandconsequences.com/crimblog/2015/04/who-and-what-accounts-for-the-.html

Thanks for these substantive responses, Bill. I think if you read the thread with the prior comment I made in context, it should be apparent I was hoping to clarify your views. Finally, after much prodding, you have indicated your support from some other forms for review of prosecutorial charging decisions.

I wonder if you think the U.S. Sentencing Commission is a balanced body who might do some of the review it seems we both would favor. Notably, the USSC has done considerable statistical analysis over their history which highlights the disparity and lack of explanation for a lot of different nationwide charging and sentencing practices by prosecutors. Sadly, there has been little or no congressional follow up.

For the record, I do think many (but not all) federal MMs are too severe, but that is what serves to make the prosecutorial charging decisions so worrisome --- e.g., as the USSC has highlighted, nearly every CP case can be charged with or without a 5 year MM and that decision seems at times a subject of arbitrary decisions by different USA offices.

Thanks again for finally clarifying what other forms of review you would support, as that makes clear for me that you do welcome inquiries beyond congressional investigation. Unfortunately, we have not seen these kinds of additional mechanisms used to date despite the significant evidence that federal prosecutors are not using their powers consistently soundly.

One more question, speaking of words and meanings: what does the adjective "flaming" mean when used to describe a judge? Are there lots of flaming judges on both sides of the aisle or only left wing types. I am really curious about the meaning of that adjective, and you apparently understand words better than I do.

My earlier comment wasn't endorsing jury trials on collateral review, which I think is a bad idea. My point was if there are sets of circumstances which could justify a departure from mandatory minimums, I am most comfortable with that decision being made by a jury as opposed to be a judge or via charging decisions.

One point on judges - I think politics is overrated and competence is underrated. It always seems to be assumed that a poor judicial decision is somehow based on politics, but I disagree -- most poor decisions I encounter in practice are the result of judges failing for whatever reason to properly understand the law.

One more question, speaking of words and meanings: what does the adjective "flaming" mean when used to describe a judge? Are there lots of flaming judges on both sides of the aisle or only left wing types. I am really curious about the meaning of that adjective, and you apparently understand words better than I do.

Couple quick comments (along with my apology that my "flaming" question showed up twice).

1. True that the USSC is in the judicial branch, but it is an odd duck there and its work is subject to congressional review. Can you suggest another existing agency or body, Bill, that would be well suited to do the federal prosecutorial discretion review that we both seek and support? I fear that DOJ has, for decades, effectively hidden its work and thwarted review efforts, and I fear it would oppose vigorously the creation of a new entity to bring sunlight and review to its discretionary activities. Thus, I am hoping we might add this task to an existing agency, and the USSC seemed the most sensible pick. Do you have any alternative suggestions?

2. I think I noted before that I read the Grand Jury Clause of the Fifth Amendment as strong evidence that the Framers wanted at least some judicial-branch check on prosecutorial charging powers. (Also, it bears recalling that the Framers in the Declaration of Independence lament that the English executive branch "erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance." I read that as a complaint about misuse of prosecutorial discretion.)

Do you diagree that the Grand Jury Clause of the Fifth Amendment serves to make "charging decisions [the] business of the judiciary"? I share your view that it would be unwise and constitutionally questionable to give federal judges extensive power to review/reject charging decisions made by federal prosecutors. But I do think the Grand Jury Clause suggests the Framers were in fact concerned, as I am, about the potential harms that unlimited and unreviewed prosecutorial discretion can engender.

3. I continue to try to explain why I put the sentence that bothered you in those terms. I apologize I was not more clear about my inquiry, and I genuinely misunderstood based on our lengthy prior discussions what serious/viable other means to of federal prosecutorial discretion review you supported. Now that I understand this, I will readily state that the text and implications of my sentence is inaccurate and I again apologize if my (too hastily composed) comments in this space ended up creating any mis-impression or served to offend or trouble you. As I have said before and will say again, I engage extensively here and elsewhere on line in an effort to avoid getting only one-sided perspectives on the issues I care deeply about. And I care deeply about better understanding the work of federal prosecutors and the role they play in a criminal justice system that the current head of the DOJ has repeatedly called broken.

Finally, I still do want to know more fully the meaning and import of your adjective "flaming" when used to describe members of the judiciary. Thanks.

The Fifth Amendment says absolutely nothing about judges having authority over prosecutors' charging decisions. Indeed, it does not mention judges or prosecutors, much less the relationship between the two.

It states, in relevant part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury..."

Judges have no substantive role in the grand jury process; they empanel it and have other ministerial tasks, and that's it. But even if they did, there is nothing in that language that empowers judges to interfere with WHAT DECISIONS THE PROSECUTOR MAKES IN ASKING THE GRAND JURY to return a charge.

A lot of defense lawyers "read" the Eighth Amendment to forbid capital punishment. You say you "read" the Fifth Amendment to give judges a role in charging decisions.

My answer to both is: Please cite and quote a single Supreme Court case that adopts your "reading." Until that happens, I'm staying with the "reading" this country has had for the last 200 years or so.

"I think I noted before that I read the Grand Jury Clause of the Fifth Amendment as strong evidence that the Framers wanted at least some judicial-branch check on prosecutorial charging powers."

Then why isn't that check mentioned anywhere in Article III, which meticulously defines the judicial power of the United States?

They just forgot? Then added it into the Fifth Amendment without ever using the words "judge," "judicial power," "prosecutor," or "charging decision?"

Give it a rest, please. Your efforts to shoehorn Jack Weinstein et al into charging decisions, while understandable from the criminals' point of view, have absolutely no legal basis.

I'll give three more examples of how charging decisions could be reviewed without (impermissible) judicial branch oversight.

1. Formation within the Office of the Inspector General at DOJ of a Division on Oversight of Charging.

2. Formation of a standing subcommittee of the Senate Judiciary Committee for Oversight of Charging Policy.

3. Formation on the House side of an analogous Committee.

Eric Holder on his own, and now for more than six years, has declined to take Option 1. If you think he should act on it, perhaps you should write to him about it.

P.S. I don't suppose you'd like to suggest how we might have more effective oversight than we do now of incompetence, deceit, and misleading tactics employed by the defense bar.

Let me start with you P.S.: I think there should be much more robust use of bar association discipline for defense attorneys and prosecutors who are incompetent, deceitful and misleading. (I bet you know, Bill, the name of the first AFPD I would would want rigorously investigated on all these fronts). I share your concern about the poor performance of terrible, misguided and ethically questionable defense efforts.

Ironically, though, the sad realities of modern defense work provides yet another reason I want more transparency and review of what prosecutors do. Because of the poor funding and poor training of too many on the defense side, prosecutors too often are just shooting fish in a barrel. I am eager to know a lot more about who and how they pick their shots --- and I sometimes worry a lot that prosecutors good soft not on folks who are least culpable, but on those folks with the best lawyers. Great defense lawyers make prosecutors work harder, and I fear junior federal prosecutors --- particularly those with limited trial experiences --- may too often shy away from bringing appropriate charges against bad actors with great (and well funded) defense lawyers.

For the record, I have written repeatedly on my blog and in letters to various officials and in various law review articles about the importance of greater transparency and review of federal prosecutorial decision-making. I suspect one reason --- of many no doubt --- that I have no influence inside the Beltway is because I persistently criticize everyone on both teams for not doing what they could to have more open (and smaller) government.

Fair point about the failure of the Framers to say more about judges having oversight of prosecutors, though my affinity for jury rights comes from my belief that the Framers expected juries (both Grand and Petit) to be a judicial-branch check on all govt officials and thereby to have much greater influence on the operation of the federal criminal justice system at every stage. That is why I am so eager to work with you on a JISP because I think such a bill would be much more I keeping with the Framers views than anything else we have discussed.

Do you agree with my general sense that, from a Framers perspective, juries now play far too little a role in the operation of the federal criminal justice system?

Let me start with you P.S.: I think there should be much more robust use of bar association discipline for defense attorneys and prosecutors who are incompetent, deceitful and misleading. (I bet you know, Bill, the name of the first AFPD I would would want rigorously investigated on all these fronts). I share your concern about the poor performance of terrible, misguided and ethically questionable defense efforts.

Ironically, though, the sad realities of modern defense work provides yet another reason I want more transparency and review of what prosecutors do. Because of the poor funding and poor training of too many on the defense side, prosecutors too often are just shooting fish in a barrel. I am eager to know a lot more about who and how they pick their shots --- and I sometimes worry a lot that prosecutors good soft not on folks who are least culpable, but on those folks with the best lawyers. Great defense lawyers make prosecutors work harder, and I fear junior federal prosecutors --- particularly those with limited trial experiences --- may too often shy away from bringing appropriate charges against bad actors with great (and well funded) defense lawyers.

For the record, I have written repeatedly on my blog and in letters to various officials and in various law review articles about the importance of greater transparency and review of federal prosecutorial decision-making. I suspect one reason --- of many no doubt --- that I have no influence inside the Beltway is because I persistently criticize everyone on both teams for not doing what they could to have more open (and smaller) government.

Fair point about the failure of the Framers to say more about judges having oversight of prosecutors, though my affinity for jury rights comes from my belief that the Framers expected juries (both Grand and Petit) to be a judicial-branch check on all govt officials and thereby to have much greater influence on the operation of the federal criminal justice system at every stage. That is why I am so eager to work with you on a JISP because I think such a bill would be much more I keeping with the Framers views than anything else we have discussed.

Do you agree with my general sense that, from a Framers perspective, juries now play far too little a role in the operation of the federal criminal justice system?