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Repealing the Meaning of Language

Sen. Rand Paul, a libertarian, has re-introduced legislation called the Justice Safety Valve Act.  His CNN commentary on it is here, although it's a bit fuzzy on whose "safety" is being protected.  (Admittedly, it would do a good deal to promote the interests of drug dealers; how it would promote the safety of this benighted class is less clear).

I want to focus on one paragraph in Sen. Paul's statement:

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

Translation:  We're keeping mandatory minimums, just making them non-mandatory.

Is there anyone out there dumb enough to fall for this stuff?


Also, throughout the article he glosses over the distinction between drug use and drug trafficking. It's an important distinction, and even more so when we are talking about cases deemed important enough for federal involvement.

Seriously, how many cases of possession for personal use do the feds prosecute these days?

Sen. Paul also glosses over the current safety valve provisions already on the books, dismissing them for being too onerous. That's right, too onerous for drug traffickers.

Especially in light of the last comment (6:27am), Bill, would you suggest that federal mandatory minimums are already "non-mandatory"?

Relatedly, Bill, I wonder if you think (1) Congress should repeal (and replace?) the existing federal statutory safety valve provision, and/or (2) AG Sessions should not have put into his new charging memo the instruction that prosecutors can and should consider not charging MMs in some circumstances?

My main point here is that, with or without the JSVA, it has long been true that judges can "issue a sentence below a mandatory minimum if certain requirements are met." Indeed, a 2011 USSC report detailed that in 2010, nearly "half (46.7%) of offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such a penalty at sentencing because they provided substantial assistance to the government or qualified for the safety valve
provision, or both."

Amending the current safety valve provisions takes away the leverage that convinces offenders to proffer and provide substantial assistance.
Sen. Paul wants to skip the step where drug traffickers assist the government and just hand them below-MM sentences in exchange for nothing.

Even without any applicable MM, as is the case in nearly all federal white-collar prosecutions, offenders have a very strong incentive "to proffer and provide substantial assistance" in order to look better in the eyes of both prosecutors and the judge come sentencing (see. e.g., Andrew Fastow).

That said, you are right that the JSVA would let judges decide the proper sentence in all cases considering all relevant sentencing factors rather than letting prosecutors in some drug and gun cases serve as de facto sentencing decision-makers focused especially on cooperation. I favor the JSVA because I think judges, generally speaking, can and should be trusted to make reasonable sentencing decisions. But I know not everyone who participates on this blog agrees with that notion.

-- "Especially in light of the last comment (6:27am), Bill, would you suggest that federal mandatory minimums are already "non-mandatory"?

No. They are mandatory with respect to the judicial branch, which is what was intended. As long as that branch contains people like Jack Weinstein and his 400-page love letter to child pornography, we are well advised to keep them, which is what's going to happen.

-- I would leave the existing law you refer to where it is. It worked to help massively reduce crime while retaining sensible exceptions for either unusual cases or those in which the defendant's cooperation has been important.

-- Isn't the real reason you want to end MM's that it will then be more difficult to restrain the Weinstein's of the world, so criminals can snicker about how, once again, they hoodwinked the guy on the bench? Or is there no hoodwinking going on, because defense lawyers are so honest?

I'll bet Wendell Callahan was laughing all the way to the knife store.

The real reason I want MMs, Bill, is because I think it is better policy and practice for (a) hundreds of known neutral federal judges to decide the proper sentence in all cases considering all relevant sentencing factors as set forth by Congress and done in open court subject to appellate review rather than (b) letting thousands of unknown partisan federal prosecutors become de facto sentencing decision-makers (using who knows what internal guidelines in a hidden way) when they are not subject to any formal legal rules or any open form of review.

That is the nub of this debate: judges sentence as neutrals in open court subject to congressional rules and appellate review; prosecutors sentence via charging MMs as partisans behind closed doors subject to prosecutorial concerns and without any external review. You clearly favor, Bill, having more sentencing decisions made by prosecutors because of the perceived benefits even though "the prosecutor way" of sentencing is in serious tension with the rule of law. I prefer sentencing decisions made by judges, even those judges who reach results I dislike, because I see rule of law values fostered by this approach to criminal justice decision-making.

You meant you want to end MMs, right?

I would be inclined to agree if we had binding sentencing guidelines with departures in either direction robustly reviewed on appeal.

The problem with reliance on "neutral" sentencing judges is that many are far from neutral, and because they are life-tenured they are essentially unaccountable.

I must dissent from the argument that the MM system we have now defiles the rule of law.

To the contrary, it IS the law. When MM's are enacted by Congress (with years of knowledge about how they get applied); enforced by an accountable (at the polls) executive branch; and approved (as they have been almost without exception) by the courts, it's just not possible to conceive of them as inconsistent with the rule of law.

In addition to that, they work. Yes, they have helped increase incarceration, but that has helped decrease crime. This can be denied or minimized till the cows come home, but it's still true.

The problem is not secretive prosecutors, nor even the very bizarre (to be generous) Jack Weinstein & Co. It's the criminal.

As I keep saying (and the Left keeps ignoring), there is a ready solution to incarceration, even if one views incarceration as the problem rather than the solution: Don't steal stuff, don't cheat people, stay away from drugs, and eschew violence. When these values overwhelm their cultural opposites, the amount of incarceration will shrink to next to nothing.

Yes, Kent, left out a "not" and I want to do without MMs --- and I also support your affinity for binding sentencing guidelines with departure authority and robust appellate review. Notably, even after Booker, the federal guidelines are still fairly "sticky," but we lack robust appellate review.

And if you are troubled by the work of judges, that is a much bigger problem than a sentencing concern and requires electing a better Prez and members of the Senate.

Meanwhile, Bill, I agree that MMs have democratic legitimacy, but their application is more subject to rule by prosecutors than rule by law (especially in settings like we see with child porn where functionally identical conduct is covered by a statute with no MM and with a 5-year MM).

And I agree that we would not need to worry about the particulars of a having a fair and effective federal sentencing system if nobody ever committed a federal crime. (We could also solve problems with the federal sentencing system by not having any federal crimes and leaving this all to the states.) But as long as we are going to have federal crimes and federal criminals, I would rather have major sentencing decisions made by judges using known legal rules in open court rather than by prosecutors using an opaque process behind closed doors.

"And if you are troubled by the work of judges, that is a much bigger problem than a sentencing concern and requires electing a better Prez and members of the Senate."

No disagreement there. We did elect a better Senate in 2014. We elected a President who is better at appointing judges last November.*

The problem with that solution, though, is that given life tenure and the size of the federal judiciary, it takes a very long time to make that change. As the political pendulum swings back and forth for other reasons, gains made can be undone in a very short time.

The political reality is that there is simply no way we can ever be confident of uniformly high quality among district judges. Restraint by guidelines, not just "stickiness," and robust review by multijudge panels is essential. Without these, the luck of the judge draw becomes an excessively large factor in the sentence imposed.

*Note well: This comment does not open this thread for a torrent of off-topic Trump Derangement Syndrome comments, and any such will be deleted.

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