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Is the ABA a Shill for the Defense Bar?

| 14 Comments
Read this and decide for yourself.  It starts off (emphasis added):

The ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department.

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case. The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

"Sentencing by mandatory minimums is the antithesis of rational sentencing policy," the report says. Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

The belief that Congress ought to be able to set a rock bottom minimum for serious offenses  --  an idea taking root in the same uncontroversial notion that it can set a binding-on-judges maximum  -- evidently never occurs to the ABA.  The organization understandably cites no precedent in two centuries of case law for its proposal that sentencing courts should have 100% discretion 100% of the time, and Congress can go sit in the corner.

Hat tip to SL&P.

14 Comments

"Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says."

I completely agree with that statement.

The amazing thing is that the ABA seems to be completely clueless that its position is contrary to the principle it stated. Without either binding sentencing guidelines or mandatory minimums, a criminal's sentence may depend as much on which judge is assigned to the case as it does on the crime he committed and his criminal history (i.e., the proper factors).

That was why a bipartisan consensus supported the passage of the Sentencing Reform Act of 1984 with its binding guidelines. The principles haven't changed.

To a certain extent, of course, the opening quote is aspirational.

I do not think, Kent, that the ABA is categorically against "binding sentencing guidelines" that provide some means for judges to go outside the guidelines in unusual cases. That is what the SRA provides for and what MMs structurally disrupt. The bipartisan US Sentencing Commission has made this point repeatedly, though perhaps Bill also thinks the US Sentencing Commssion is a "shill for the defense bar.:

1. If over the last 12 years the ABA has said a single word in favor of restoring mandatory guidelines, I missed it. Is there a citation I could look at?

2. Somehow I don't think a citation is going to show up, since the ABA, being a defense bar shill, relentlessly sings the defense bar's song of more and more "discretion" and fewer and fewer rules.

This is because judges, being so much better than everyone else, don't need rules and can uniformly be trusted to, ya know, freelance.

Oh........wait...............

3. Your response elides Kent's main point. As Kent suggests, rule-orientation tends to favor, not undermine, more nearly equal treatment of similarly situated defendants, while the prior free-wheeling, luck-of-the-draw system was something of a lottery.

4. Still more does your response elide the main point of my post, which is that the ABA takes the extremist position that we should have no mandatory minimum statutes for anything, ever.

Is that the new defense bar version of "nuanced thinking?"

Good to push hard on this, Bill--the professor is engaged in the tactic of the non-defense defense--obviously, the ABA's position, no MMs is extremist and indefensible, so Doug posits that the ABA isn't "categorically" against MMs and then goes on to attack Bill with respect to the US Sentencing Commission, which obviously has a more moderate position than the ABA.

The USSC has long said a guideline sentencing system is superior to a system using MMs to achieve fair and equitable sentencing. It first said this forcefully in 1991 in a big report to Congress that stressed, inter alia, that "Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case. This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity." https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf

The USSC in 1991 was filled with Reagan/GHWB appointees and Chaired by Judge Wilkins.

The 1991 report also made this finding: "The disparate application of mandatory minimum sentences in cases in which available data
strongly suggest that a mandatory minimum is applicable appears to be related to the race
of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be
sentenced, where defendants sentenced in some circuits are more likely to be sentenced
below the applicable mandatory minimums than defendants sentenced in other circuits. This
differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce."

The main point I was making, Bill and federalist, is that the ABA is echoing what the USSC has long found and said --- namely that nuanced guidelines (with some departure authority) better achieves "sentences [that are] the same among similarly situated offenders and proportional to the crime."

Another way to make the point is that while "rule-orientation tends to favor, not undermine, more nearly equal treatment of similarly situated defendants," evidence has shown that BAD rules in the form of most MMs generally do undermine equal treatment of similarly situated defendants.

If you want to beat up the ABA for making this point, go for it. But the point they are making is largely the one that the US Sentencing Commission has been making --- based on detailed study of the data --- for more than a quarter-century.

I understand that you are eager to characterize the ABA position as "no rules" at sentencing. But calling for the elimination of MMs is really a call for "no crude rules" at sentencing.

What you omit to mention is that in 1991, we had mandatory guidelines and the compliance rate was about 75% or perhaps slightly higher. We now have an "advisory only" system with a compliance rate of something like 47%, in which, shockingly, downward departures outnumber within-range sentences.

In other words, in 1991, we actually had rules and they got followed. Now we don't.

What you also omit to mention is that there is even less of a chance that we'll return to mandatory guidelines than that we'll get sentencing "reform."

Or, to summarize it, your point depends on walking away from the past, the present, and the probable future of rule-driven sentencing.

I'll just finish up by saying that in your closing paragraph, you criticize, but telling do not deny, my statement that the ABA is calling for a no-rules sentencing scheme. Of course, if the ABA has called for the restoration of rules (i.e., mandatory guidelines), I would have to retract that.

Has it?

Doug, "nuanced guidelines (with some departure authority)" is not what we have. We have guidelines that are only advisory with limited review on appeal. The system we have now leans much too far in the direction of letting judges apply their own idiosyncratic views.

If opponents of mandatory minimums want to talk about a deal to get rid of them in exchange for a system of sentencing guidelines that are mostly mandatory with limited departure authority for genuinely unusual cases, we can talk. I do not see any willingness on their side to go that direction.

In 1991, we also had only about 30,000 defendants being sentenced in the federal system AND the applicable guideline ranges were significantly lower than now AND violent crime was much higher. In other words, the rules were more moderate and more sensibly applied to more serious offenders and thus more likely to be followed. I would wage that we'd see a higher guideline following rate if we let judge now apply the 1990 USSG manual and only had 40,000 cases sentenced instead of twice that.

That all said, I do not dispute that the ABA (like many others) advocate for more judicial discretion in the face of the modern rule-based system that is often (somewhat wrongly) blamed for modern increases in state and federal prison populations. But arguing for an advisory guideline system is NOT arguing against rules --- after all, the Holder and Sessions charging memos are fundamentally "advisory" and yet they serve as rules that surely impact the work of federal prosecutors.

And the only point I was trying to make was that urging an end to MMs can be consistent with an embrace of sentencing rules that enhance "basic fairness and due process [in service to achieving] sentences [that are] the same among similarly situated offenders and proportional to the crime, the report says." Indeed, the US Sentencing Commission that long urged the end to MMs with this exact rationale in mind AND based on its expert review of data concerning how MMs have been applied in the federal system.

Kent, you are right that the current post-Booker system gives federal district judges a whole lot of discretion, and could benefit from various improvements. (I would bulk up appellate review and make a bunch of long-needed guideline revisions to enhance compliance rates.)

But I do not think the "solution" to imperfect sentencing rules that may be applied imperfectly by judges (FSG) is to add/preserve some additional imperfect rules that may be applied imperfectly by prosecutors (FMM). On every sensible metric --- substantive particulars, clarity and transparency in application --- every federal MM is inferior to the corresponding advisory guideline. (And every MM is functionally advisory in the hands of prosecutors AND not subject to any review in application.)

Perhaps you think two imperfect parallel/overlapping sentencing rules are better than one, but I do not see it. I do see that some like Bill trust prosecutors to be better at sentencing (and at avoiding undue leniency) than judges, and that is an honest basis to support MMs. But unless you trust prosecutors to be more fair and equitable at sentencing than judges, it is hard to make a sentencing case for MMs. (A crime control case can be made on other grounds to enhance cooperation, but that is another debate raising distinct issues.)

A couple of points.

1. That the USSC and the ABA make the same mistake does not render it any less a mistake. If SCOTUS can be wrong, which is certainly can be (as libertarians and liberals often ferociously insist), the USSC can be wrong.

Human beings operate better with rules than without. I'm quite sure your experience as a parent, teacher and lawyer tells you this without doubt.

2. Far more important, I think, is your sentence here: "That all said, I do not dispute that the ABA (like many others) advocate for more judicial discretion in the face of the modern rule-based system that is often (somewhat wrongly) blamed for modern increases in state and federal prison populations."

It's astounding to me that so much focus is placed on the "prison population" and so little on WHY THERE IS ANY PRISON POPULATION AT ALL.

We have a prison population because smack pushers, thugs, strong-arms and swindlers by the thousands decide they want a fast buck rather than a normal job. If we want to reduce that population, they can make more honest, smarter and humane choices. If they don't want to, fine, they assume the risk -- little though it is in most cases of getting any significant jail time.

The big, bad system is not responsible. THEY are responsible. They created the problem by their behavior and they can fix it by changing their behavior. It is not your job, not my job, and not Congress's job.

Second, the big increase in imprisonment is in significant part responsible for the big decrease in crime. Gainsaying this fact has become denial on a scale that now approaches psychosis, and that is how I'm going to treat it from now on. There is only so much obdurate, ideological baloney a sensible person should put up with, and we are now at that level.

The huge decrease in crime for which increased incarceration is partly responsible is a blessing to our country. It is especially a benefit to those most at risk of crime victimization, that being minorities.

If we have less prison, we'll get more crime. This is already happening, and has been happening since at least the end of 2014. It's a disastrous, bloody trend, and we should do everything we can, not to accelerate, but to reverse it.

1. Sure, the USSC can be wrong, Bill. But I do not think the USSC can or should be fairly viewed, especially circa 1991, as a "shill for the defense bar." And I mean to highlight just that what the ABA is advocating for circa 2017 is really not all that radical or that pro-defense since it is in line with what the USSC had been advocating for since 1991.

Meanwhile, I do like rules to guide sentencing. So to does the ABA: its sentencing standards urge the guideline sentencing systems: https://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_sentencing_tocold.html And I prefer sound and refined rules (like guidelines), to unsound and unrefined ones (like MMs). So, too, does the ABA and the USSC and many others.

2. I always enjoy your classic "we'd not have so many prisoners if we had a lot less crime" and "less prison = more crime." In this context it serves as a useful reminder that your affinity for MMs is fundamentally based in your belief that they serve crime control goals rather than fair sentencing goals. I would dispute that federal MMs, which most widely apply in drug, gun and child porn prosecutions, really do advance crime control goals. But, more critically, I think it much more honest for you to acknowledge the USSC data that federal MMs result in unfair disparities, but that this unfairness is worth bearing to get what you believe is a crime control benefit.

My favorite part of the ABA report of the resolution:

4. Summary of Minority Views or Opposition Internal and/or External to the ABA Which Have Been Identified. NONE.

Apparently they can't find a single person who thinks that any mandatory minimum in any criminal case is justified. I don't know exactly what to call this, but dishonest comes to mind. Or maybe they aren't shills for the defense bar but rather they have been fully captured by its most fringe elements that they can't even see the other side.

As for internal, I think that reflects many years of people voting with their feet. I was a member in the early years of my legal career, but I quit after I read the ABA's brief in Sawyer v. Smith (1990). In all the years since, I have never seen the ABA file an amicus brief in the Supreme Court in a criminal case that was opposed to the defense bar's position. All except Indiana v. Edwards were opposed to the prosecution position.

So the answer to the title question of this thread is "of course."

There comes a point when you have to realize that trying to change an organization from within is hopeless and you just can't support it with your membership any more. I think that nearly all prosecutors and victim advocates have left the building.

The ABA's claimed lack of awareness of any external opposition is either false or deliberate ignorance.

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