Kent posted earlier today the words of then-Attorney General Robert H. Jackson. Jackson's remarks are long, but well worth your read because they shed so much light on so many questions involving the power and judgment of United States Attorneys.
Those subjects would become especially pointed in a matter of hours. On what is almost certainly the eve of a politically incendiary deal with Iran, the Justice Department indicted Sen. Robert Menendez of New Jersey on corruption charges. The Wall Street Journal has the story.
Sen. Menendez is by far the most prominent Democratic opponent of the deal. His outspoken opposition creates substantial headaches for the Administration, because it complicates the coming spin that criticism of the deal is just partisan Republican obstructionism.
I have not read today's indictment. At present, I am certain of only three things, based on my experience as both a civil service and politically-appointed officer at DOJ. First, Sen. Menendez is entitled to the presumption of innocence, and I hope he gets more of it than Darren Wilson ever did. Second, the feds almost never indict without a very strong factual case for guilt, and you can be sure that that is true in this well-publicized matter. Third, the timing of this indictment smells to high heaven.
UPDATE: On the same day the Administration decides to indict its political enemy, it decides not to indict its political ally, Lois Lerner, in a matter related to her using her office at the IRS to target conservatives. Politico has the story, and the stench from politics mixed with the power of prosecution just got considerably worse.
Am I right to understand, Bill, that this post reflects your view that, at least sometimes, what some federal prosecutors do with their unregulated discretion is as much about power/politics as it is about truth/crime control?
If that is your point, Bill, do you have any more respect for those who criticize mandatory minimums as problematic because they functionally operate to give some federal prosecutors ever more force behind their use of their unregulated discretion for power/politics goals as for truth/crime control?
I am not questioning at all your criticisms of how federal prosecutors are acting now, but rather just exploring if your criticisms give you more appreciation for others' long-standing criticisms of federal laws that functionally enhance the power of federal prosecutors.
For what it's worth, I agree that there are valid criticisms of mandatory minimum sentencing laws. Some specific minimums do need to be changed, and I agreed with the reduction of the notorious crack/powder ratio.
For those who wish to repeal all mandatory minimums in the federal system, my answer is that they would not be necessary in a properly functioning system of mandatory guidelines. So let's make a deal and put in the Booker fixes to restore the mandatory guidelines and at the same time abolish statutory mandatory minimums.
Doug --
"Am I right to understand, Bill, that this post reflects your view that, at least sometimes, what some federal prosecutors do with their unregulated discretion is as much about power/politics as it is about truth/crime control?"
No, you would not be right to understand that, largely because you re-word what I say to include the very, very elastic phrase, "at least sometimes."
I was in a big USAO for 18 years, and it never happened in my tenure there, under either the Democrats or the Republicans. But of course only a lunatic would take the position that it NEVER happens. This is especially true in this more-political-than-ever Administration.
Everything is tradeoff's as you sometimes understand. The reason there was a relative power shift away from judges and towards prosecutors is that JUDGES WERE DOING AN AWFUL JOB, as it would help them to admit instead of preening about how wonderful they are, a la Mark Bennett and his bunch. Prosecutors have done a much better job, as crime has plummeted. Absolutely nothing in the Constitution requires that judges have 100% say-so 100% of the time, so Congress's choice marginally to shift the balance of power was, not merely productive for crime reduction, but fully permissible.
"If that is your point, Bill, do you have any more respect for those who criticize mandatory minimums as problematic because they functionally operate to give some federal prosecutors ever more force behind their use of their unregulated discretion for power/politics goals as for truth/crime control?"
Why is it always a question of respect? Am I permitted to think they're wrong without getting into feelings? Good grief.
If respect be in issue, however, I would have more respect for the smarter sentencing crowd if they said loudly, frequently and in haec verba that they have no intention of helping just "non-violent, low level" criminals, but of helping violent ones. They would like to start with the camel's nose, wanting the rest of to think it's just the nose of a cute little mouse.
Fortunately, it would appear that the voters aren't fooled. It was, after all, the voters whose decisions ousted Pat Leahy and installed Chuck Grassley, is that not correct?
P.S. I never said and do not believe the Menendez indictment is not well and fairly grounded in the facts about his behavior. I don't know, and I doubt you do. What I said is that it's TIMING smells of political retaliation by the Administration.
Do you disagree?
Kent --
I'll be interested to see how many in the Smarter Sentencing crowd take you up on your proposed deal.
I've been in this fight for a long time, in DOJ and outside, and I'm betting the number will be in single digits.
These people yearn for the return of the "judges-call-all-the-shots" days of the Sixties and Seventies. They're not about to admit that judges need discipline, and the public has a right to force discipline on them.
Just a reminder that it was the BUSH DOJ that urged that the remedy in Booker be Advisory Guidelines (which was also the remedy Bush-appointed Judge Cassell promoted). The defense bar urged the alternative remedy. So we largely have federal prosecutors (as well as Judge Cassell) to thank for the current law.
Meanwhile, I have long believed the remedy advocated by Justices Scalia, Thomas, Stevens and Souter in Booker was the one more faithful to the text of the Sentencing Reform Act. Notably, though, since Booker, neither the Bush or Obama DOJ has been willing to make the guideline mandatory again -- though I would readily take the deal you advocate Kent. I cannot speak for others, but I always favor a system of laws with traditional constitutional protections in place.
Meanwhile, Bill, I hope you saw that Marc Mauer recently argued for a 20-year (soft) cap on all federal sentences: http://sentencingproject.org/doc/publications/sen_Colson_Task_Force_Testimony.pdf I think this highlights --- yet again --- that serious sentencing reforms are not trying to hide any aspect of their advocacy for less severe sentences for all federal offenders.
As for the timing of the Mendendez indictment, I have no facts to question the substance or timing because, as I often lament, NOTHING that prosecutors do in the exercise of their broad discretion is transparent or subject to review. Because our system provides no real checks or balances, or even norms of transparency, for the exercise of prosecutorial discretion, all we can do is speculate. And that is the problem, and the main reason I am often troubled by giving prosecutors even more power through mandatory minimum sentencing provisions.
It sounds as though Kent agrees with me on this front, but you are still resisting my call to reign in prosecutorial power. Perhaps another reign of Clintons will finally get you to join the club of those who do not want a single federal discretionary decisionmaker to have so much power without being subject to review or transparency.
Doug --
1. Didn't know until just now that I agreed with every decision of the Bush DOJ. Just to set the record straight, however, I thought some of its decisions were all wrong, e.g., its (losing) position in Medellin v. Texas.
2. The defense bar has gone to town with advisory guidelines, and would explode with rage if they became mandatory again. Tell me you don't know this.
3. I said to Kent that I'd be surprised if the number of Smarter Sentencing advocates who would go for his proposal would be above single digits. You've now said that you would sign up. Excellent! But I believe that you're one person, and one is single digits, yes?
Maybe I'll hear from the NACDL tomorrow they want mandatory guidelines (that's a joke).
4. You say, "I hope you saw that Marc Mauer recently argued for a 20-year (soft) cap on all federal sentences...I think this highlights --- yet again --- that serious sentencing reforms are not trying to hide any aspect of their advocacy for less severe sentences for all federal offenders."
Only the proposal for a 20 year cap isn't serious. I would truly, dearly love for Mr. Mauer or anyone to argue for a 20 year sentence for Zohkahr Tsarnaev. Should I wait?
In addition, you yourself continue exactly what I'm talking about. Hence your neat, let's-skip-the-specifics phrase, "...less severe sentences for all federal offenders."
How about this: "...less severe sentences for terrorist child murderers, serial rapists, and Jihadist torturers."
Could you let me know when we can look forward to hearing that from the sentencing reform crowd?
5. It will take something more than the return of the Clintons -- even with their erased emails -- for me to join Jack Weinstein & Co. in gushing (for 400 pages, no less) over the wonderfulness of distributing kiddie porn. Indeed, our buddy Jack -- whom you would empower -- went so far as to HIDE THE DISTRIBUTOR'S NAME, thus to enable his return to "business" after completing the illegally low so-called "sentence" Jack wanted to impose.
No, I do not want people like that re-licensed to run wild, as they did in the Sixties and Seventies.
6. Contrary to your repeated refrain, prosecutors ARE subject to review. But they are, under the Constitution, not subject to review by a co-equal branch (the judiciary). They are subject to review by the political process.
I will readily concede that the political process can be a blunt tool and, indeed, sometimes flat-out awful, as when it resulted in replacing Michael Mukasey with Eric Holder. But in a country founded upon the idea of democratic self-rule, it is for the political branches, not the judiciary, to make judgments about prosecutorial priorities and decision-making.
1. I do not think I ever said you were, Bill, in agreement with all Bush DOJ decisions. I just wanted to highlight that DOJ prosecutors, not the defense bar, are largely responsible for the Booker remedy. And more fundamentally, this thread is all about whether we should all have concerns about how federal prosecutors use their broad discretion to impact the lives of those whom them consider charging and prosecuting. I have long expressed such concerns, and I am just eager to confirm that you share some of these concerns.
2. I agree 100% that the defense bar now likes advisory guidelines. But so too, it seems, does the DOJ. Neither the Bush nor Obama DOJ has ever seriously urged statutory revision of the Booker remedy, which has now been in operation since 2005.
3. I am certain many in the white-collar defense bar, especially on the coasts, would not like Kent's deal. But I would be there are a decent number of public defenders in drug cases that would. Perhaps NAAUSA could survey its membership on Kent's proposal. How do you think career prosecutors would repond?
4. Do you expect the NRA to say it wants to ensure terrorist child murderers, serial rapists, and Jihadist torturers do not have to deal with background checks when seeking guns? Your past assertions is that sentencing reform advocates are hiding the ball. They are not, and what it seems you really want is for the to leave the field or play by rules that no other policy advocates play by.
5. I know that one Weinstein CP case from nearly 5 years ago drives you crazy, but you really need some better examples, especially since Jack imposed a sentence of 30 months in that case, which is much long than a lot of CP offenders get.
6. Because the federal political process is so very blunt and operates only every few years AND because prosecutors are very good at keeping their work hidden (see, e.g., F&F and IRS scandals of late), I do not want federal prosecutors to have their traditional powers significantly enhanced. In operation in the federal system, MMs serve to significantly enhance prosecutorial power. Ergo my concerns about prosecutorial power are enhanced, and that is why I advocate for their elimination in the federal system.
Doug --
1. You could have fooled me. I thought the COURT decided what the remedy was, not the parties. Parties are responsible for arguments; courts are responsible for holdings. And the holding is the problem.
2. Because crime is down so much (due in part to the increased incarceration liberals are furious about), neither side can get traction for their proposals. It's the same reason that, contrary to one of the pieces you posted, there is no such thing as a growing groundswell for "reform." People are (in a sense quite wisely) not that interested in "reform" when what we've got now is doing the main thing they want done -- suppress crime.
The problem is that the pro-criminal crowd can't stand success. The reason for this is that it's success for the 99.3% of the population who DON'T commit serious enough crimes to land in prison. As to the other 0.7% -- gentlemen, make better choices and quit whining.
3. Interesting question about how NAAUSA members would feel about Kent's proposal. Not being a member myself, and not having been a prosecutor for more than 15 years, I couldn't even speculate. But -- back to specifics -- I still see only one defense-oriented lawyer (you) who has signed onto Kent's plan. But I do know that the whole deal with defense is in loosening sentencing standards (go to any allocution), so I seriously doubt they want a binding sentencing regime in any form of fashion.
4. I do not expect the NRA to say it wants terrorist child murderers, serial rapists, and Jihadist torturers to be able to avoid background checks, because I do not think that is their position. But IF IT IS their position, then you better believe I expect them to say it, because I expect advocates who claim to be advancing Truth, Justice and the American Way to be as fully forthcoming, candid and honest as the principles for which they claim to be speaking.
Is there something wrong with that?
What you call "Advocacy 101" is fine for used car dealers and snake oil salesman. It is NOT fine for advocates of public policy who expect or deserve a reputation for honesty.
For example, I have said time and again that our prison system is indeed expensive (although only a tiny fraction of what we spend on the entitlement state). I have said we can't get justice on the cheap. I have said more in-prison rehab programs are worth it, even though they too will drive up the bill. I have said spending additional money on police is also worth it, because studies show that more policing, just like more incarceration, has helped reduce crime.
So what we have here is the same divide we've had before. I think advocates should be completely forthcoming and honest about BOTH the upsides AND the downsides of their proposals. You seem to prefer the Big Neon Come On (with the pages of nasty fine print to follow) approach of "Advocacy 101."
I will let readers choose for themselves which approach to public debate they prefer.
Here's the real skinny: Sentencing reform advocates are hiding the ball (hiding it cleverly, but hiding it) because they full well know that as soon as they say out loud, "Just to be clear, we want and we will insist upon lower sentences for killers, rapists, child abusers, human traffickers, and mob extortionists," the game is over.
To put it succinctly: To say the whole, unvarnished, explicit truth about sentencing reform is to end the movement. Period.
5. All of the above is closely related to the reason you want to dismiss and downplay Jack Weinstein's illegal and appalling kiddie porn sentence. You say it drives me nuts, but the entity "driven nuts" was a unanimous panel of the Second Circuit, which, with a Democratic-appointed majority, reversed Weinstein on every single aspect of his ruling. It did so in a bluntly worded opinion that made clear its stark disapproval of Weinstein's astonishing recklessness.
Weinstein's case is a spectacular window about what will happen if we give sentencing judges the kind of power you want. It's precisely because it gives us such a clear glimpse that you want to walk past it.
Walking past might work with Advocacy 101. It does not work so well with me.
6. You continue to want to give massive authority to unelected judges (like Weinstein, whose work you notably STILL refuse to criticize). I respectfully dissent. I want our sentencing system -- the one that has had success FOR LAW-ABIDING PEOPLE for a full generation -- to continue, not merely because it works, but because it's more faithful to the Framer's plan to have the political branches answer to the political process, not the judicial branch.
On the road for the holiday, Bill, so only limited time/ability to respond. But here goes:
1. Am I right to assume that CJ Rehnquist, the key fifth vote for the Booker remedy, likely was influenced by Bush DOJ advocacy for an advisory guideline remedy? I am just trying to make sure that everyone remembers that, though the defense bar certainly has for a decade sought to make lemonade out of the lemon that is the Booker remedy, the Booker remedy lemon was very much the result of folks like then-Judge Paul Cassell, the Bush DOJ and CJ Rehnquist.
2. I agree that there is great affinity for the status quo with low crime. But I think all would-be sentencing reformers (like many gun-rights advocates and marijuana reform advocates) believe we might be able to achieve even lower crime with even greater freedoms. Perhaps all these advocates are naive and unduly optimistic, but most folks who advocate for legal reforms have their beliefs based in (undue?) optimism.
3. The defense bar in Missouri, where state sentencing guidelines are not too severe, wants these guidelines to be more rigid. But you are right that in the federal system, most defense lawyers want the guidelines to be less binding. However, I would bet a number of defense lawyers in tougher districts (e.g., in many parts of the 5th Circuit) would be eager to have a world with no MMs in exchange for firmer guidelines.
4. I share your desire for sentencing advocates to be "fully forthcoming, candid and honest." That is why I continue to wonder and seek candid information about, e.g., (1) the influence you have with Senator Grassley, (2) support for your recent claim that violent crime has risen in California after Prop 47, and (3) the foundation for your prior claim that AUSAs were in "open revolt" against AG Holder.
5. What the CP case you so repeated highlight really shows is that mandatory minimums give partisan and hidden federal prosecutors much more sentencing power than independent and open district judges. The 2d Circuit had to reverse Jack because they felt constrained by SCOTUS doctrines that say that a prosecutorial MM charging/bargaining decision in that case requiring 5 years' imprisonment prevailed over a judicial decision saying that nothing more than 3 years was just and appropriate. Meanwhile, literally thousands of CP offenders MUCH more aggravated that the one sentenced by Jack have gotten sentences MUCH lower than 5 years only because partisan and hidden federal prosecutors around the country often do not charge the MM in CP cases. (The USSC documented this fact at great length in its huge CP report.)
Notably, I have never heard to accuse a single partisan and hidden prosecutor of "astonishing recklessness" for excising (in secret) the kind of power that you so eagerly attack Weinstein for. Unless/until you explain why a single district judge should be attacked for a single (more transparent) decision made by federal prosecutors behind closed doors nearly every day, I will continue to view your obsession with Jack as more proof you will always like the hidden and unreviewed sentencing work of federal prosecutors more than the open and reviewed sentencing work of federal judges.
6. This main post was about your concerns about the questionable authority exercised by unelected federal prosecutors in the Mendendez case. My concerns about MMs sound in the same vein: I want our sentencing system to involve the exercise of transparent and reviewable discretion by all significant sentencing decisionmakers (as our modern death penalty system has). MMs give massive authority to unelected federal prosecutors without any transparency or accountability or review except every 4 years on election day --- and for the career prosecuto
I think this posted before I finished point 6....
6. This main post was about your concerns about the questionable authority exercised by unelected federal prosecutors in the Mendendez case. My concerns about MMs sound in the same vein: I want our sentencing system to involve the exercise of transparent and reviewable discretion by all significant sentencing decisionmakers (as our modern death penalty system has). MMs give massive authority to unelected federal prosecutors without any transparency or accountability or review except every 4 years on election day --- and for the career prosecutors you often praise, it is unclear whether even election day makes a whit of difference.
In the end, that is the heart of this whole debate: I want all sentencing decisions to involve transparency, accountability and review. You want at least some sentencing decisions to be controlled by prosecutors without any functional transparency or accountability or review. I am pretty sure my vision is more in keeping with the system of checks-and-balances established by the Framers, but you seem to think that the only check/balance for federal prosecutors should come with how you and I vote in 2016. And, if we were to imagine that 2016 involved a contest between Ted Cruz and Hillary Clinton, we would have to read your vote for Cruz to be proof you support the SSA since Ted does (and Hillary has not yet indicated her views).
Doug --
I'll answer this last one first.
"MMs give massive authority to unelected federal prosecutors without any transparency or accountability or review except every 4 years on election day..."
A mandatory minimum gives zero authority to the prosecutor UNLESS he is prepared to prove BRD and to a unanimous jury that the defendant did what the grand jury charged, every last element.
Does there ever come a point in the "Smarter Sentencing" world in which the defendant and his behavior are responsible for his sentence?
"... for the career prosecutors you often praise, it is unclear whether even election day makes a whit of difference."
You'd prefer that politics influence the decisions of career prosecutors? Really? Are you for abolishing civil service generally?
Not that that is the point. The politically appointed Eric Holder has decreed that career prosecutors now cannot use MM's except in circumstances Holder has delineated, not in all the circumstances Congress allowed when it wrote the statutes. The real problem we have with DOJ nowadays is that political views count for too much, not too little.
"I want all sentencing decisions to involve transparency, accountability and review."
Then why are you supporting the JSVA and the SSA, neither of which does any of that, and would simply give a break to criminals?
Really, why?
Why, INSTEAD, don't you write and support draft legislation that would leave substantive sentencing alone, and do the procedural stuff you say you want done?
I suspect that it's because what you really want is simply lower sentences for criminals. The argument for transparency, etc. -- which, again, neither of the standing proposals would enhance whatever -- is just a makeweight.
In that sense, it reminds me of the "cost argument" against the death penalty. The "cost argument" is advanced mainly by people who don't care a whit about cost (as they show by wanting plenty more spending on ideologically more compatible things, like for public defenders). It's just a clever throw-in by people who never wanted the death penalty from the getgo, but now have seen that they can leverage the cost to fool tunnel-vision conservatives.
"You want at least some sentencing decisions to be controlled by prosecutors without any functional transparency or accountability or review."
The primary thing I want is for criminals to cut it out and quit complaining that they're victims. But you continue to want to blame anything but the criminal. If it's not prosecutors who are to blame, it parents, schooling, Twinkies, you name it.
As it happens, however, I would like some transparency and accountability for the odd timing of this Menendez indictment. I have propose same by noting that Congress (an elected branch) should hold a hearing. I notice you have not joined me in that. Here's your chance.
"I am pretty sure my vision is more in keeping with the system of checks-and-balances established by the Framers..."
Then you should be able to win in the SCOTUS an overturning of MM's (which your side should try anyway, since it's going nowhere in Congress). But, as I suspect you know, the chance of getting any of the MM's that would be covered by the JSVA or the SSA overturned by SCOTUS is zip, because there is not even a ghost of a meritorious argument that they violate the Constitution.
I'll bet you $100 to $1 on that. Are we on?
"And, if we were to imagine that 2016 involved a contest between Ted Cruz and Hillary Clinton, we would have to read your vote for Cruz to be proof you support the SSA since Ted does (and Hillary has not yet indicated her views)."
Several things there.
First, I doubt either will get nominated.
Second, if Ted gets nominated, I'll vote for him because he's been a (casual) friend for years, and I'm not about to vote against my friends. (His father is also a genuine hero of freedom).
Third, I am not a single issue voter. Obviously criminal law issues are quite important to me, but so is whether the candidate supports yesterday's cave-in to the mullahs (Ted Cruz doesn't), and whether the candidate wants to continue Obama's headlong plunge into national bankruptcy (he doesn't support that either).
Bill, both the JSVA and the SSA significantly increase "transparency, accountability and review" because they both would increase the number of functional sentencing decisions that would be the product of judicial discretion than by prosecutorial discretion. Every judicial sentencing decision, in contrast to every prosecutorial sentencing decision, has far greater transparency (because it is made in open court), accountability and review (it can be the basis for in-court objections and challenged via appeal).
In fact, to the extent you view the JSVA as "simply giv[ing] a break to criminals," you make so very clear that, functionally, MMs are principally a tool for prosecutorial sentencing. The JSVA does not lower a single sentence, it just gives judges authority to explain on the record (subject to appellate review) why the judge thinks a MM may be greater than necessary to serve Congressional purposes. Notably, when charging (or not charging) a case with an MM, a federal prosecutor never has to explain or justify in any way why that charge is being brought (or later pleaded away). That is the core problem with MMs, and your extreme mis-statement about what the JSVA would do is an especially telling example of your persistent inability in these debates to be "fully forthcoming, candid and honest."
Indeed, your advocacy here and elsewhere truly is in the tradition, in your words, of "used car dealers and snake oil salesman." Because it would be a full-time job, I fear I must stop bothering to use this space to try to keep you honest (e.g., I am still awaiting an honest explanation for your claim that violent crime is up in the wake of Prop 47). In the end, it seems you MUCH rather accuse others of not being "fully forthcoming, candid and honest" than even trying to live up to these standards yourself. And as your misrepresentations grow, I have to conclude I lack the time/energy to even note your many faulty representations in this thread and others.