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Why We Need Mandatory Minimums, Part Eight Zillion

The Washington Post today carries the story of a local man (the former mayor of Fairfax City) who got a sentence of zero for distributing one the most dangerous drugs out there, methamphetamine.

This is not a young person, not a minority, not poor, not uneducated  --  and it's not pot and not simple possession. This is a grown man with a lot of advantages who is basically getting a walk (he did get time served, a little less than three months, plus "community service" (an especially sick joke since he was already a public servant at the time of his arrest)).

He was also, according to the story, unapologetic, and instead portrayed himself as the "victim" of addiction.  I was unable to find, however, any evidence of this in the news account beyond his self-serving claims  --  not that it would excuse either him or the clueless judge even if it were true.

Our country is suffering from crisis-level overdose deaths from hard drugs, of which meth is one of the worst.  As much as the Stanford rape abomination, http://www.crimeandconsequences.com/crimblog/2016/06/the-defense-bars-war-on-women.html,  this case proves that judges need the discipline and limits of mandatory minimum sentencing.


What should be, in your view Bill, the applicable mandatory minimum here? One year? Five years? Ten years? 20 years?

I am genuinely eager to hear your specific recommendation as to the mandatory minimum needed in this case.

I'm not Bill but I would not have screamed at all if he got the minimum in the range called for by Virginia law, 5 years.

Just to clarify, WaPo calls him a "first offender." Not really. No addict is a first-time offender. He is admitting to scores of other crimes even if he is never convicted of them.

Thanks for chiming in, Tarls, which leads me to have some questions for you:

Do you fault the local prosecutors at all, Tarls, for only asking for 2 years?

Do you think this is the kind of case the the feds should have taken up to avoid this kind of leniency?

Yes, I do fault the prosecutors. I believe this is a case of familiarity. They likely knew the guy, liked the guy, and gave him a break no Lunchbucket Larry would get.

I have seen it many times. In my old hometown, a cop stole $10,000 from the evidence room to pay gambling debts and his biggest punishment was the loss of his job. The wife of another recently retired cop stole something like $500,000 from a medical practice that she managed and she did a little over a year and they still have all of their horses, snowmobiles, trucks, 4 wheelers, land, and other toys bought with the ill gotten booty.

If anything elected and public officials like mayors and LEO should be held to a significantly higher standard than the rest of us, not a lower one. I'm not sure if this would be legal but I would be thrilled if we adopted some kind of general sentencing rider to many crimes indicating a higher punishment for public officials.

I see no reason to bring the Feds into this case at all. I do see it as illustrative of why we need MMs as a general practice but if the people of Virginia want to give judges this discretion, it is their right.

I appreciate your responses and insights, Tarls, and know that the federal sentencing guidelines have some enhancements for some crimes that do, both formally and informally, call for more severe punishment for public officials.

For a variety of reasons, I share your instincts here. I am especially of the belief that we get more deterrent impact when noted and notable defendants get subject to noted and notable sanctions. Moreover, I fear that less privileged persons have a growing disrespect for the law if/when they have reason to conclude that the privileged class gets a break from the law that they do not --- see, e.g., Scooter Libby.

Unfortunately, there is little evidence that MMs help solve this problem. In fact, the empirical evidence suggests MMs make matters worse by enabling the privileged to cut hidden deals in the offices of prosecutors.

"What should be, in your view Bill, the applicable mandatory minimum here? One year? Five years? Ten years? 20 years?"

Don't know. I'd have to look into state law and the history of state sentencing, a task that's too far down the list to ever get done.

I do know a few things:

1. The behavior that needs examining here is principally the defendant's. The discussion seems always to be turned toward how it's up to OTHER people to change. The first thing that needs changing, though, is this guy's behavior, and that is not going to get done treating his offense as a joke.

2. Meth is an extremely dangerous drug and should be so regarded by the law.

3. Cutting breaks to unapologetic criminals is nuts. Rehab, always a dicey proposition anyway, can't even start unless the defendant understands he's blameworthy.

4. The typical litany of excuses about race and age and education is absent here, but the we're-too-tough beat goes on anyway. What this tells me is something that's been clear for a while: The typical excuses are just makeweights, and the real idea is that EVERY defendant should be regarded, not as having done anything wrong, but as the victim of callousness by the rest of us, who should hang our heads in shame and sit in the corner.

I should add maybe another thought.

The fact that, because of ignorance of state law, I cannot suggest a particular mandatory minimum is hardly to gainsay that there should be SOME mandatory minimum for an adult who distributes meth.

I have no problem with giving judges substantial discretion a substantial amount of the time. But idea that they must get 100% discretion 100% of the time is batty.

Mistretta observed that sentencing has always been a shared function among the three branches. This is one reason the concept of legislatively required MM's has never been so much as questioned by the SCOTUS (although a particular level of MM properly remains subject to challenge under the Eighth Amendment).

Bill, I find it interesting and telling that you state that "there should be SOME mandatory minimum for an adult who distributes meth" only minutes after saying that you cannot say what it should be.

The reason, I suppose, you do not readily offer up a simple number is because you think (as do I) that wise and just and effective sentencing does not readily reduce to a simple number even for a simple crime. In short, sound sentencing is nuanced. But MMs are fundamentally not nuanced.

What is nuanced, and what I fully support as an alternative to MMs, are guidelines that judges must presumptively follow with any deviation having to be on the public record and subject to appellate review. The alternative in the form of MMs serves to give "100% discretion 100% of the time" to prosecutors through their charging decisions.

I share your disinclination, Bill, for sentencing without law (what we had pre-SRA in the federal system). But sentencing with bad law is also bad, and many MMs, in design and in application, are bad law. Your disinclination to suggest a specific number for an MM for the specific simple crime of distributing meth reinforces my belief that you recognize that, if designed poorly, MMs can be very bad law. (Of course, not all bad laws are unconstitutional, but all bad laws should be subject to criticism and calls for reform.)

Actually, my declining to guess at the number of months or years that should be in a state MM statute for meth is exactly what I said -- that I don't know enough about state law, and therefore view modesty as the best policy.

I might add that mandatory federal sentencing guidelines were developed in the Eighties from years of study of existing federal sentencing outcomes. I know that subject decently well (or at least I knew it up front when I was in the USAO and on the AG's Advisory Committee on Sentencing).

Doug, you don't see any "nuance" in a 5-40 year span?

I would also add that the "nuance" is in the lawmaking. There is a ton of nuance in the type of crime the criminal commits. A drug dealer, for example, can get sentence A if he is caught selling a certain amount and sentence B if selling more. If sentence B is too stiff, don't sell that amount. Let's stop pretending that these people made conscious decisions to commit their crimes and most get away with 10 or more crimes for every one they are convicted of.

And I think we are in agreement regarding the privileged class getting suitable punishment although I believe using Scooter Libby is a terrible example probably just used to troll Bill.

You stated: "Unfortunately, there is little evidence that MMs help solve this problem. In fact, the empirical evidence suggests MMs make matters worse by enabling the privileged to cut hidden deals in the offices of prosecutors."

I don't recall anyone suggesting that MMs would stop deal making from the rich. That's a straw man.

Actually, "empirical evidence suggests" that incarcerating people longer has cut crime. The problem of the privileged getting hidden deals did not start with MMs and will not end when and if MMs end.

There is nuance in 5-40, Tarls, once you get past 5. And you suggest more nuance when you suggest stacking the MM based on amount sold. But even amounts involve nuances, e.g., should a woman be held legally responsible for the full amount of drugs held by another when picking up a courier from the airport she knows has a briefcase with drugs? See 12 F.3d 368 (2d Cir. 1993) (my first case clerking).

I get that you think everyone prosecuted has gotten away with 10 other crimes. Bill Cosby's history certainly supports that claim. But does Scooter Libby? (Yes, I am trolling, Bill.) More to the point, deterrence theory tells us that if only 1 of every 10 crimes leads to punishment, you will get no deterrent impact from that on punishment. You might achieve other ends, but deterrence claim are dead if certainty of prosecution is so very low.

Meanwhile, Bill, it is because the federal sentencing guidelines were developed in the Eighties from years of study (and keep getting refined based on study) that we all should prefer that they control federal sentencing outcomes more than MMs. Ergo the wisdom of JSVA, which call for the FSG to be followed over MMs when a judge decides congressional goals as so advanced.

And, again, if the goal is to achieve a just and effective sentence for a simple crime, why can't you suggest a simple MM (with a range) like Tarls?

"Meanwhile, Bill, it is because the federal sentencing guidelines were developed in the Eighties from years of study (and keep getting refined based on study) that we all should prefer that they CONTROL federal sentencing outcomes more than MMs." (Emphasis added).

Only they don't control federal sentencing. They barely influence it, if the truth be told. As anyone can see from your recent entry on SLP, defendants get within range sentences a paltry 36% of the time. Some control!!!

Virtually all the rest of the time, the sentences are below range. Many are massively below range.

The deal with the SRA was that judges got some of their discretion taken away for a very good reason -- they had been misusing it and contributing to a quarter century of a crime surge. The public wouldn't stand for it, so Congress changed the law. It's unfortunate that so many judges are so immodest and conceited that they've never fully accepted this -- although few are as bad as Bennett and Weinstein.

Like Kent, I'd prefer stern, mandatory guidelines with very rare exceptions to a scheme with this many MM's. Since I won't be getting it, however, and since even the limp and insipid voluntary guidelines we have now get flouted over 60% of the time, MM statutes are just what the doctored ordered. Indeed, as I noted earlier, we now need more of them to deal with the heroin crisis, as former sentencing reform advocate Sen. John Cornyn understands.

Tarls -- Doug is trolling me with Scooter Libby mostly just to avoid having to admit that the sentence in this Fairfax City case is atrocious and proves the need for mandatory minimums.

Bill, I want to know what mandatory minimum you think is needed in this Fairfax City case before I will speak to whether I think it an improvement over the status quo. Still waiting and still believing your telling specific failing here reveals the core flaw in general support for MMs.

Meanwhile, I am "trolling" you with Lilly not to avoid talking about the Fairfax case, but because his case is a telling example of when you advocated for the President to reject a judicial decision to follow stern sentencing guidelines. It proves that you like stern guideline sentencing ... except when you don't, and that you are troubled by Prez commutations ... except when you aren't.

Meanwhile, you have mis-read the data on my blog, as the guidelines are followed in close to 50% of the cases (though only 36% of drug cases). Also, as you know, in the majority of the other cases, federal prosecutors are the ones urging below guideline sentences --- highlighting how prosecutors have sentencing "power" in a guideline system AND how their power increases the more rigid the sentencing rules get.

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