<< News Scan | Main | You Got to Know When to Fold 'Em >>

A Lesson from Bowe Bergdahl

There is much to be said about the disgrace of a "sentence" that was handed out today to willing deserter Bowe Bergdahl, but for now I want to make just one point.

Almost all reports state that Bergdahl could have received from a life sentence to no prison time at all, which is what he got.  In a country devoted to the rule of law, that simply cannot be allowed.  There is a place for judicial discretion at sentencing, and the degree of discretion can reasonably be debated.  But allowing for a sentence with no limits whatever  --  from life to zero  --  carries discretion to an absurd extreme.

Sentences should have fixed minimums and maximums.  The size of the range between the two can be great or small, and the overall harshness of the sentence will rightly vary with the seriousness of the crime.  But to have no established boundaries is literally lawless.  We saw the ugly results of such lawlessness this afternoon.  There should be no repeating it, not in military and not in civilian court.


Bill, doesn't every US Attorney in every state have complete discretionary authority to charge every local heroin deal (and every other drug deal) as a federal crime? There are surely tens of millions drug deals in the US every year --- heck, Colorado has millions of marijuana deals in public storefronts --- and yet only a few thousand get charged in federal court. Is this an example of "the ugly results of [prosecutorial] lawlessness"?

I understand and respect your concern about the lack of law to control judicial decision-making at sentencing. But, given the lack of transparency and reviewability of prosecutorial decisions, which also are not governed by any law, I am always more concerned about the myriad ways in which prosecutorial discretion to charge/bargain in back rooms undermines the rule of law than by how judicial discretion to sentence in open court does.

So, I am eager to hear "established boundaries" you would like to see applied to BOTH prosecutors and judges in the federal system. Perhaps we could make the conversation concrete and exciting by focusing on the work of prosecutor Robert Mueller and the money laundering charges against Paul Manifort. In yor view, should law be in place to create "established boundaries" on (1) how Mueller charges/bargains going forward, and/or (2) on what sentence Manifort could get for money laundering?

The classic Berman maneuver---if you're outraged about this, why not that?

1. To return to the subject matter of the post, do you think the rule of law is compatible with having one judge have a sentencing range of zero to life, entirely at his discretion?

What degree of consistency, equal treatment, or predictability does that provide for a future defendant facing similar charges? Or the one after that?

Do you think that is wise policy?

2. It is the Constitution itself that vests sole discretion in the executive branch (as relevant here, the prosecutor) to decide whether to charge and what to charge. If you think this unwise, you'd need to change the Constitution.

But it is NOT a matter of constitutional law that vests sentencing discretion in the judicial branch. Indeed, it has long since been decided (Mistretta) that setting the parameters of sentencing is a shared function among the branches.

3. Contrary to your premise, prosecutors are subject to political checks (as Loretta Lynch found out when she and her politically appointed colleagues got shown the door last year). Federal judges aren't.

4. Unless you are of the odd view that the Constitution is not law, the existence of prosecutorial charging discretion most certainly IS subject to -- indeed it is a product of -- law.

5. With federalist, I decline to turn this thread in the direction of "Trump is Hitler" by starting in on the Manafort case. Last I looked, defendants are presumed innocent until proven guilty BRD. Or at least that's what I keep reading on your blog.

My overall view of Mueller, for what it's worth, is set forth in my USA Today op-ed: https://www.usatoday.com/story/opinion/2017/06/14/mueller-should-recuse-himself-from-investigating-russia--comey-william-otis-column/102827924/ He has a substantial record of public service but is the wrong man for the job he's in.

The move, federalist, is driven by the fact that Bill claims in this post that he is troubled by "literally lawless" decision-making in the criminal justice system with "no limits whatever." But that, as a general matter, is a MUCH, MUCH, MUCH better general description of prosecutorial charging/bargaining decision-making than sentencing decision-making. E.g., consider how Anthony Weiner got, thanks to prosecutorial leniency, a deal of only 21 months in prison for a crime (making CP) that for normal folks carries a 10-year MM, while Weldon Angelos faced an MM of over 100 years for crimes (selling MJ with weapons nearby) that are now making many $$$$ millions in CO and WA for so many (including state governments).

If Bill is troubled by the substance of the Bergdahl sentence, fine, assail the substantive particulars. But he claims in this post that "lawlessness" is what bothers him. REALLY? I cannot recall posts from Bill lamenting
the realities prosecutorial discretion in a country committed to the rule of law or hoping that there "should be no repeating it, not in military and not in civilian court" the break that Weiner got or the severity Weldon faced based on prosecutorial peccadillos.

My goal is to try to pull back the curtain and show that leniency, not lawlessness, is what really troubles Bill here. Indeed, if too much judicial discretion is the problem, he should be supportive of lowering the maximum sentences available for all federal crimes as a way bring more constraints on judicial discretion and should sometimes criticize extremely long discretionary sentences. Perhaps you have notice posts where Bill's concern for lawlessness is articulated in this way, but I missed them.

I get the notion which might inform Bill's posting that lawless leniency may be ever worse than just lawlessness or leniency alone. But even in that arena, I think we need to worry much more about prosecutors than judges because judicial leniency always gets more attention than prosecutorial leniency. Moveover, if we are truly committed to limited government, I think that lawless severity (especially when combined with overcriminalization) should be the biggest worry of all.

"But he claims in this post that 'lawlessness' is what bothers him. REALLY?"

Did you miss the part of my entry that says (emphasis added}: "There is MUCH TO BE SAID about the disgrace of a "sentence" that was handed out today to willing deserter Bowe Bergdahl, BUT FOR NOW I WANT TO MAKE JUST ONE POINT."

You know what "for now" means, yes?

I look forward to your on-topic reply, should you choose to make one, to what I actually said, rather than what you oddly think me obligated to say.

The topic, to be clear, is whether limitless judicial sentencing discretion is compatible with the rule of law. Bergdahl is a good showcase for this inquiry, yup, but just a showcase.

Just saw your comments, Bill, and here are responses:

1. I greatly prefer the development of nuanced sentencing guidelines subject to appellate review to complete discretion, and I recently make the case in this article:

2. I question your claim that the constitution requires lawless prosecutorial discretion. But whether or does or not, I would like your view on whether lawless prosecutorial discretion "is wise policy"? Do you think the rule of law is compatible with having one prosecutor like Mueller (or Comey before him or Sessions/Holder/Lynch to go to the top) to have a charging/bargaining range of zero to 1000 charges, entirely at his discretion?
What degree of consistency, equal treatment, or predictability does that provide for any and every American citizen who arguably violates a dozen or more federal criminal statutes every year?

3. The "political" check on prosecutorial discretion arguably makes the rule of law concerns worse, as it means the prosecutorial function will be shaped by a concern for the next election rather than justice. Would you be comforted with broad sentencing discretion if federal judges we subject to being replaced each election? Do you think judges being subject to election in many states then makes broad judicial discretion a better idea?

4. I again question the assertion that the Constitution demands lawless prosecutorial discretion -- indeed, the 5th A demands due process of law. And, again, the issue is not what the Constitution says -- it is whether you really care about lawnessness or just care about leniency. Your defense of prosecutorial lawlessness drives my belief that it is really only leniency that gets your goat.

5. I do not want to talk about Trump or Hitler, but rather about Mueller and prosecutorial discretion. And your commentary provides more fodder for my views --- a litigant can move in open court for a judge to be recused based on claimed conflicts, and that judge will have to rule in open court on that motion and that decision will be subject to appellate review. To my knowledge, Manafort has no basis to raise in court your strong claims of conflict. And that is because prosecutors get to cloak themselves in lawlessness in so many ways. And the harms to Manafort of biased Mueller having the bit in his mouth are far more profound than what any federal judge will be able to do to him at sentencing.

"Sentences should have fixed minimums and maximums"

Berman: "What about heroin deals?"

Yes, Doug, to stick with the subject of the post, heroin deals have sentencing minimums and maximums.

The response was, in short form, “what about prosecutorial discretion.... if troubled by lack of sentencing min and max, Bill, are you likewise troubled by lack of charging min and max or any other constraints on prosecutorial decisions.” And the comment was intended to tease out whether it is really lawlessness or.just leniency that bothers Bill.

Since I have never heard him advocate for more legal limits on the severity of sentences, I contune to believe it is leniency not lawlessness that most troubles Bill in this setting and others. If Bill responds by asserting that he thinks it would be good policy for there to be many more legal limits on how severe charges and sentences can be, I will be more inclined to believe it is lawlessness and not just leniency that really troubles him.

1. The notion that Congress cannot impose a mandatory rock-bottom minimum binding on judges is contrary to the fundamental principle of democratic self government, and therefore unsurprisingly unsupported by a single Supreme Court case.

2. Likewise unsupported by a single case is the notion that the authority to bring charges resides in some branch other than the executive. Can judges bring charges -- and then adjudicate the charges they have sponsored? That might work well in North Korea or Cuba, but not so well here.

3. For sentencing purposes, the main check on the influence of charging is -- ready now? -- the trial by jury (or by the court) that every defendant can demand. Your response just whistles past the central fact that every defendant must be found guilty BRD before HE CAN BE SENTENCED TO ANYTHING.

Nor do we hear one single word about the charges being the result of -- ready again? -- the defendant's behavior.

No, it's all the prosecutorial boogeyman. Mr. Nicey is just the victim of The Evil Prosecutor.

I think you've been reading too much of your own comments section.

4. To say that we should have guidelines elides, rather than answers, the question whether sentences should have required maximums and minimums. The sort of guidelines you envision allow, indeed they invite, 100% judicial discretion merely pretending to follow actual rules. They are thus even worse than the awful zero-to-life judicial lottery in the Bergdahl case, because they fake being rule-oriented while actually being no such thing.

5. While I cannot help being impressed by your determination to turn this comments thread into a damnation of prosecutors, that is not what the entry is about. You have (and often use) your own blog to do that.

This entry is about whether limitless judicial sentencing discretion, as illustrated in the Bergdahl case, is compatible with the rule of law. I believe that can be answered yes or no.

"Since I have never heard him advocate for more legal limits on the severity of sentences..."

Then you haven't been paying attention.

I have repeatedly called for statutorily imposed MAXIMUMS and MINIMUMS. Indeed, I have used exactly the same rationale for each: That the legislature can properly decide that the overall seriousness of a given crime is such that going below X minimum, AND going above Y maximum, are both forbidden. How many dozens of times have I said that, at some point at the extremes, it stops being about the offender and starts being about the offense?

I seriously question that you could have any doubt about this.

P.S. I would appreciate it if the diversionary references to what you imagine to be my motives come to an end. We are going to stick to the substantive issue of scattershot judicial sentencing discretion.


1 + 2. We are discussing sound policy, not constitutional powers. We agree it is good policy to have some law structure sentencing decision-making (the work of the judiciary), and I think it also useful to have some law to structure prosecutorial decision-making (the work of the executive). Notably, the Constitution does provide some minimal limits on the power of both prosecutors and judges, but I surmise both of us think it wise that legislatures seek to supplement the limits imposed by the 5th, 6th and 8th Amendments (e.g., I assume you'd not advocate for widespread use common-law crimes by prosecutors to further increase their powers, even though the Constitution permits common-law crimes and some prosecutors would love to have them in their tool-box).

3. The jury checks whether facts are proven BRD, just as a judge can check for probable cause to go forward with charges. But this is no check on prosecutorial charging/bargaining discretion, when for example a case of downloading 100 pics of child porn can be charged as 1 federal crime of possession with no MM and a max of 20 years or as 100 crimes of CP receipt each carrying a 5-year MM and collectively have in a max of 500. If you were deeply concerned about lawlessness in this context or others, I would expect to see some comment about this kind of prosecutorial power subject to no law or checks in our system (perhaps in the context of the high-profile Weiner prosecution). But the only time you mention a CP case is when Judge Weinstein or someone else imposes a sentence you believe is too low. So that is why I think you are only really troubled by judicial leniency, not broader lawlessness.

I am not claiming prosecutors are evil any more than one should believe you are claiming that the Army judge in the Bergdahl case is evil. I do not think you are saying that, and it is telling how you try to twist and impugn my words when I direct your lawnessness criticism toward prosecutors. It provides for me further evidence that you really do not worry about lawnessness generally. Rather, your concern is the absence of law preventing judges from being lenient in some cases. Meanwhile, you express no concern when prosecutors are comparably lenient as in the Weiner case and in so many others that often escape attention because prosecutorial lawnessness (and bias) goes about both unseen and unchallenged.

4. Your point that advisory guidelines are worse than no sentencing law at all is interesting, and I strongly disagree based on both the experience in the federal system and in many state systems. Judicial sentencing has generally proven less "scattershot" with any system of guidelines.

Moreover, I find this claim peculiar because I believe in past discussions of prosecutorial discretion you have made much of internal DOJ guidelines and have more recently praised the recent Sessions Memo that is a form of advisory control over prosecutors. Are you suggesting it would be preferable to have no federal prosecutorial guidelines at all because these kinds of advisory memos "fake being rule-oriented while actually being no such thing." Or is there a difference in your view between advisory guidelines for prosecutors and advisory guidelines for judges?

5. I agree that this entry was about "limitless judicial sentencing discretion." I share your basic policy concern on this front -- though I would prefer sentencing guidelines to mandatory minimums as the policy response to this problem. Our agreement lead me to inquire, Bill, whether you are at all concerned about limitless prosecutorial discretion (OR judicial authority to sentence too severely). I have never heard you express concerns about these serious policy problems in any specific case --- can you point me to any example of you complaining about a federal prosecutors misuing their discretion or about any judge using his discretion too severely or broader advocacy for reducing sentencing ranges?

I am not trying to impugn your motives or unduly distract from your chosen topic, but rather suggesting that you are really just troubled by judicial leniency not lawlessness. I can readily recall dozens (perhaps hundreds) of posts, Bill, in which you complain about judicial leniency, and cannot recall a single one in which you express concern about judicial severity or about problems created by prosecutors exercising lawless powers. I brought up Mueller/Manifort because that strikes me as a great example/setting in which the lawlessness of prosecutors might be criticized, but you demurred.

I will say that I do recall your criticism of the prospect of a prison sentence for Scooter Libby, but interestingly there I do not recall any direct criticisms of how the federal prosecutor and judge used their charging/sentencing discretion, but rather advocacy for yet another actor --- the President --- to use his "lawless" power to commute Libby's prison term. (Do you have a specific view as to what should be a minimum sentence for Libby's felony? And why couldn't the jury check the prosecutor in that case to preclude the need for the Prez to get involved? And wasn't your advocacy for him to get a prison break all about the offender and not the offense?) I guess scattershot presidential sentencing discretion is not a big concern (though I do recall your criticisms of Prez Obama for his different use of this constitutional power).

Please know, Bill, I genuinely respect your motives, but your comments, actions and advocacy lead me to think that your chief concerns are really judicial leniency rather than lawnessness. My hope in these comments is to tease this out to help me better understand if my thinking is correct. If you can point me to specific examples of your assertions that it would be good policy for there to be more legal limits on how severe charges and sentences can be, I will readily admit I was wrong to believe that it is leniency rather than lawlessness that most gets your goat.

Bill, what do you think the minimum sentence for what
Bergdahl did should be.

Three years.

If that were the actual sentence, I would think it too low, given a number of aggravating factors such as his desertion in a combat theatre, the serious injuries his fellow soldiers sustained looking to bring him back, his numerous episodes of deceit, and the fact that he knew or ought to have know that his captors would make use of him to advance their goals to harm America.

Still, a statutory minimum should be designed to answer this question: What is the least punishment a serious crime like desertion in a combat theatre and misbehavior before the enemy should get, assuming that there may also turn up a number of significant mitigating factors such as extreme naivite, brutal treatment by the enemy, and cooperation after return?

My answer is three years. I admit that's speculative; others would say something higher or lower. I'm sure, however, that the answer is not zero. Zero is an affront to the serious, disabling (including blindness) and disfiguring injuries received by the patriotic soldiers who searched for Bergdahl after he deliberately walked off his post.

I would really like to see a neutral poll asking whether no prison time, with a dishonorable discharge, was too high, about right, or too low a sentence for Bergdahl, and I wonder why there hasn't been such a poll.

And what, Bill, do you think should be the maximum sentence for Bergdahl's crime?

I am less sure of that, having no military experience. I am sure that there should BE a maximum, however. It should be established based on precedent, with input from those who have served in combat.

There could be quite serious aggravating circumstances, calling for a high limit -- for example, if the defendant helped his captors set up ambushes for the people trying to rescue him; gave them intelligence about our plans, strength and location; or did propaganda films.

I am not against discretion. I am against UNBOUNDED discretion. I have discussed the reasons for my rule-orientation so often that I won't burden readers with the eight zillionth edition just now.

Interesting that you can readily set a minimum, Bill, but not a maximum given you lack of experience. And shouldn't the aggravating circumstances you flag define a more aggravated crime that just desertion, with each aggravating factor rightly calling for a higher max and min?

To that end, would you support a rule that the max sentence should not be more than, say, a 10 year difference from the minimum? (As you know, Congress created a 25% rule for ranges when setting up the US Sentencing Guidelines.) Any limited-range general drafting rule could force, I think usefully, legislatures to define with some specificity both crimes and punishment and thereby ensure all discretion get reasonably bounded. Thoughts?

"Interesting that you can readily set a minimum, Bill, but not a maximum given you lack of experience."

Actually it's not that interesting. I have no military experience, but lots of life experience. I know that betrayal by a person sworn to duty in a time of danger, and betrayal of that duty potentially leading to grave injury, disfigurement and/or death to people trying to help, demands SOME kind of serious punishment. I strongly suspect you know it too. Zero is not serious. Zero is zero. Therefore, coming up with a suggested (very light) minimum is possible for me given the nature of my knowledge, but coming up with a maximum isn't. I have, however, suggested how a maximum ought to be arrived at.

I also notice that, when I attempt to deal honestly with the issues here, what I get in exchange is a robust and continuing effort to change the subject, combined with the not-all-that-subtle suggestion that I'm at best a hypocrite. In the meantime, you take not ten seconds on YOUR OWN blog to admonish the dozens if not by now hundreds of irrelevant, insulting and scurrilous comments that appear there by your leave.

We are now done with diversionary and gotcha questions. We will return to the subject of the entry, to wit, should judges imposing sentence for serious crimes be bound by mandatory limits?

Not to make this thread even longer, but Doug, do you remember the debate we had about Obama's morality---well, it seems to me that his Rose Garden speech is pretty immoral. Imagine how the guys who got hurt looking for this dirtbag test when they saw the Rose Garden celebration?

Think Trump would ever stoop that low?

Bill, how is asking you about a suggested maximum sentence to go with a suggested minimum "a robust and continuing effort to change the subject"? In response to your post about leniency and lawlessness, I have been saying in various ways that I think you care much more about leniency (by judges) than lawlessness. My comments are not a claim that you are a hypocrite, but rather an effort to tease out if you really are troubled by lawlessness on its own terms or if it is only when lawlessness leads to leniency from judges that you complain.

Meanwhile, I am still awaiting any past or present example of you complaining about lawless severity by judges or lawlessness of any sort by prosecutors. If you cannot point me to any example, I will not consider you a hypocrite but I will feel stronger in my view that what really concerns you is leniency by judges. That is a reasonable concern, and I find it useful to clarify and confirm that leniency by judges is your core concern when you advocate for federal mandatory minimum sentences.

On your question, I generally support law in sentencing in the form of (1) fixed statutory sentencing ranges that are not too broad (e.g., generally less than 20 year prison ranges, though 30 to Life at upper end), (2) advisory guidelines to help direct judges to sentences within those ranges, (3) limited departure power to go outside all these ranges in some cases, and (4) limited parole authority for those who get 10+ years. Sound good?

As for changing the subject, it seems federalist wants to discuss anew whether Obama or Trump is a more moral president. I would love to hear various opinions on this topic, but I do not want to be accused of getting off-subject. Perhaps you could, Bill, start a new post on Obama v. Trump morality.

Leave a comment

Monthly Archives