As is often the case, Bill, your efforts to assail judges and to prop up mandatory minimums lead to you tell some misleading or incomplete tales here.

Let's start with federal sentencing: The latest FY 17 federal sentencing data for show 49% w/in-guideline sentences; 3% above-guideline; 28% prosecutor-requested below-guidelines and 20% judge-decided below guideline: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/quarterly-sentencing-updates/USSC_Quarter_Report_3rd_FY17.pdf

So, technically, there are more w/in guideline than below-guideline cases. More critically, the majority of below-guideline cases are a result of a prosecutor seeking a below-guideline sentence. (Booker has increased judge-decided below guideline sentences, but only in 1 or 2 extra cases out of every 10 cases and mostly in settings where the USSC has itself said its guidelines tend to be too severe --- like low-level drug, career offender, high-loss white-collar and CP downloading cases.)

Now on to this Nebraska state case. Did you see that there were MMs in play, but the prosecutor decided to make them inapplicable. From page 2 of the opinion:

"Welty was originally charged with first degree sexual assault of a child, a Class IB felony, felony child abuse, a Class IIIA felony, and contributing to the delinquency of a minor, a Class I misdemeanor. In the State’s third amended information, the State reduced the sexual assault charge to attempted first degree sexual assault, a Class IIA felony. The remaining charges were dismissed."

I believe "first degree sexual assault of a child" in Nebraska carries a 15-year MM. Is this case then really proof that "we cannot allow PROSECUTORS 100% discretion 100% of the time"?

Critically, as I often note in these discussions, the decision made by the Nebraska sentencing judge here to cut Welty a break was in open and subject to review/correction by an appeals court. In sharp contrast, we have no idea why the Nebraska prosecutor here cut Welty a break and his decision is not subject to any review/correction by any court.

I do not trust judges, prosecutors or any other government official with "everything all the time." I want all those officials to have to make decisions in public and subject to transparent review. In this area as this case shows, sentencing done by judges happens in public subject to transparent review. But it often goes unseen and uncorrected when sentencing is done, via MMs, by prosecutors.

A true beauty, Doug.

1. "As is often the case, Bill, your efforts to assail judges and to prop up mandatory minimums lead to you tell some misleading or incomplete tales here."

My "assailing of judges" consists mainly of quoting your own post verbatim.

And the mandatory minimums upon which I'm focusing (i.e., federal) hardly need "propping up." They're doing fine all by themselves, despite years of your side's billionaire-funded efforts to eliminate them. What's going on in the real world isn't my "propping up" the system; it's your side's failure to get the votes, in the Obama Administration or this one, to overthrow it.

But this failure, year in and year out, is always someone else's fault, yes?

Actually, it's not the "fault" of any person. It's the fact -- which it's past time for you to concede -- that neither Congress nor the public wants mass sentencing reduction for druggies in the midst of an unprecedented and horrible wave of drug overdose deaths.

2. I'll take you word for it on the most recent quarter's worth of USSC statistics, which make me wrong by one percent. I regret my error -- I was recalling the last set of statistics I saw, which had below-guidelines sentences edging out within-guidelines sentences.

Still, whichever way that one percent is flipping for the moment, it remains the case that, from Booker to the present day, we have seen the system decidedly head back to the lenience-tilted lottery we had before the SRA.

3. "More critically, the majority of below-guideline cases are a result of a prosecutor seeking a below-guideline sentence."

Yup, seeking it in return for information and testimony. Of course, if prosecutors did NOT do that, your side would be screeching that AUSA's are even more brutal and heartless than they are claimed to be now.

Do you ever read your comments section?

4. "Now on to this Nebraska state case. Did you see that there were MMs in play, but the prosecutor decided to make them inapplicable."

When the prosecutor picks a more lenient charge over a harsher one, this proves he has too much power. When he doesn't, this proves he's Jauvert.

Far out!

The defense side's ability to complain about every possible outcome is remarkable -- if, by now, routine.

5. "I believe 'first degree sexual assault of a child' in Nebraska carries a 15-year MM. Is this case then really proof that "we cannot allow PROSECUTORS 100% discretion 100% of the time"?

We should allow prosecutors the amount of charging discretion given them by the Framers. If you know better than the Framers, then, for as highly ranked as you are as a chaired full professor, you aren't ranked nearly highly enough.

I've been asking you for months if not years to cite and quote the Supreme Court case that identifies charging discretion in any branch, or any component of government at all, OTHER THAN prosecutors. Got one yet?

6. "Critically, as I often note in these discussions, the decision made by the Nebraska sentencing judge here to cut Welty a break..."

In defense lingo, to give an adult defendant zero jail time for attempting to rape a 12 year-old is merely to "cut [the defendant] a break."

I guess I shouldn't be surprised that the defense is still gushing over its nifty phrase for the nature of the Stanford rape case, "20 minutes of action."

Could we find out if Mr. Welty was planning "20 minutes of action" with this seventh grader? 10 minutes? 30 minutes? Will it be different next year when she's in eighth grade?

Inquiring minds want to know!

7. "...was in open and subject to review/correction by an appeals court."

Therefore it's OK???!!! Beautiful.

Once again, the exaltation of process over substance tells the tale.

8. "...we have no idea why the Nebraska prosecutor here cut Welty a break and his decision is not subject to any review/correction by any court."

Actually, we have plenty of idea, or at least those of us who actually spent time in court. The reason (as I suspect you also know) was almost certainly rooted in a pitch made by Welty's lawyer.

And you're right, under well-settled separation of powers principles, the charging aspect of a prosecutor's function can't be reviewed by a court. What you neglect to mention is that it certainly CAN BE "reviewed" by the electorate -- an electorate that can toss the prosecutor out on his ear.

Why you're so hostile to the processes of democratic self-government remains a mystery to me.

9. "I do not trust judges, prosecutors or any other government official with 'everything all the time.'"

Bingo! It's precisely because of the inevitability of error-ridden and subjective discretion that we have (1) elections, for the political branches, and (2) rules -- say, mandatory minimums -- for the judicial branch.

More seriously: If indeed you have a lack of trust, as I believe we all should, you have taken the first, crucial step toward rule-orientation in law -- the main theme for which I have spent the last several years campaigning.

I am always impressed by your rhetoric, Bill, especially as you shrewd consistency and logic some of your advocacy. I do not have time to highlight all the inconsistencies and distractions in your 9 points, but I will do my best in short form:

1. Is this post not critical of judges and making the case for MMs or not? Ergo my claim you are assailing judges to prop up MMs. You are right that Congress has only voted to reduce one MM recently, but in the states hundreds have been recently reformed. And this is not about "sides" -- I see a lot of far-right groups preaching sentencing reform --- but a debate over good CJ policy.

2. I do not want to niggle over USSC data percentages, but do want to ask for evidence in support of your claim we are on a path to a "lenience-tilted lottery" as before the SRA. Even with more below guideline sentences, still 90%+ of federal defendants now get prison time and ZERO get any parole (and only 15% good time credit). Before the SRA, only about 60% of defendants got any prison time, and then whatever time they got was often halved by the parole board. It is both laughable and irresponsible to suggest the current federal sentencing system looks anything like the pre-SRA world.

3. I read my comment section, and of course defense attorneys want/need prosecutors to cut their clients breaks --- BECAUSE MMs functionally put so much sentencing power in the hands of prosecutors. That is what you like, and you should admit that you see this as a feature, not a bug of the MM system. You want defendants and their lawyers having to beg prosecutors for breaks rather than judges. Admit that is what drives your advocacy here and elsewhere --- an affinity for and trust in prosecutorial power over judicial decision-making.

4. Again, the reason there is such complaining about how prosecutors exercise charging power is because MMs put so much sentencing power in hidden/unreviewable prosecutorial hand. (I must say I am enjoying seeing some folks on the right final get this at least in the Mueller world.) Complain as you like about defense complaints, for me it is about allocating power soundly to achieve the most fair and effective results. For you it is about always giving prosecutors a pass (save for an election) because you like for them to have power unchecked by neutral judges. So be it, but not good policy in my book.

5. Bill, you love to drop back on the Framers, but I still think the Framers favored transparency/review in the CJ system (see right trial right). More to the key point, I am highlighting that you are so eager to assail judges but never question in these cases decisions being made by prosecutors. Tellingly you later complain that a decision by the prosecutor to drop an MM charge here was "almost certainly rooted in a pitch made by Welty's lawyer." How can you know that? It just shows that even when you might be incline to question a decision by a prosecutor, you are more inclined to suggest that lawyer was somehow tricked by a sneaky defense lawyers into ignoring his job responsibilities.

6. Let's get to brass tax, especially since you think process talk and the "cut a break" short-hand is a problem, and discuss the substantive specifics:

A. After reviewing the facts, Bill, do you think it was an injustice for the prosecutor to use his discretion in this case and drop the count carrying a 15-year MM for Welty?

B. If you think is was an injustice, what "first, crucial step toward rule-orientation in law" could we advance to avoid similar prosecutorial injustices in similar future cases?

Eager to understand, Adamakis, what you think is "toothless, meaningless, nothingness." A call for transparency? A call for review?

This case Bill cites correcting a sentencing error is an example of how the requirement that the judge speak on the record at sentencing and be subject to review can/should improve official decision-making. I could give you countless other sentencing examples, so I am trying to understand if you are really calling for secret, unreviewable decision-making by government officials.

Bill, I like to rely on the framers, too, particularly their commitments to limiting government power to punish individual and to checks/balances. Those commitments are deeply undermined by MMs.

As for the Nebraska case, Bill, you have not addressed my questions of whether (1) you it was an injustice for the prosecutor to use his discretion to drop the count carrying a 15-year MM or (2) how we could have more "rule-orientation in law" for reviewing this kind of exercise of prosecutorial discretion. I suspect you want to avoid answering these questions because they undermine your rhetorical attacks on judicial discretion.

Indeed, your non-responses to these question shows you are not really interested in the rule of law for prosecutions. As I understand the facts, this case involved "consensual" sex between a 21-year -old and a 12-year-old, which under Nebraska law constitutes "first degree sexual assault of a child" (not "attempting to rape") and carries a 15-year mandatory minimum. And based on the facts of this case, I whole understand why the prosecutor may have believed a 15-year sentence was unjust. That does not make him, in my mind, a " fool to have abjured a mandatory minimum," but rather a reasonable sentencing decision-maker who did not think a 15-year MM was just or necessary on these facts.

I would appreciate your answer to my question of whether you think justice demanded at least 15-years here AND, if so, how Nebraska ought to consider changing its laws (mandatory prosecution guidelines?) to avoid prosecutiorial injustices like this in the future.

Turning to your questions, I am inclined based on the facts to think that at least some prison time might be justified in this case, though I would want to see more on what kind of sentence might best vindicate the interests of the victim and her family. And the comments by the sentencing judge do not reflect well on judicial discretion, but the case does reflect on how judicial sentencing decision-making has accountability IN LAW through a requirement of giving reasons and having those reasons reviewed. We know what reasons were given for the exercise of judicial discretion and those were found by an appeals court to be insufficient and there will be a correction of sentencing errors here.

Meanwhile, do we know --- can we ever know --- what reasons the prosecutor had here for allowing the defendant to plead to something out of alignment with the facts and the law? Are those reasons subject to legal standards, or review and correction? No, and this ought to be the bigger concern and lesson for anyone truly interested in the rule of law --- namely that MMs regularly distort the operation of sound law and are applied by a government agent subject to no real review or outside scrutiny.

1. Bill, you tellingly say in response to a prosecutorial sentencing decision you question: "Nebraska doesn't need to change its laws. It needs prosecutors with better judgment, and it can get them easily at the next election." So you completely trust prosecutorial discretion/judgment (rather than laws) subject to check by the voter --- even though this is hard to do even with direct election of prosecutors, made harder still by so many decisions being so hidden (especially decisions not to prosecute).

So why isn't this also the right response to a judicial sentencing decision you question: "Nebraska does not need more MMs, it just needs judges with better judgment, and it can get them easily at the next election." Moreover, AS THIS CASE SHOWS, a problematic judicial sentencing decision can get reviewed and corrected so a proper outcome can be achieved in that case and without undue delay. A problematic prosecutorial sentencing decision cannot get reviewed or ever corrected.

2. The distortion created by MMs to the operation of sound law is so evidence in your comments, but you happily ignore it. You indirectly lament there was just "the alternatives of (a) 15 years and (b) zero years," but that imperfect choice is NOT what a sound sentencing law (or the law here) presents, though it is what a harmful MM law creates at the outset. MMs force prosecutors to have to think as sentencing decision makers with incomplete information at the charging/plea stage --- in this case assessing whether 15-year-min for the actual crime committed here is too much. Prosecutors should be able to charge and accept pleas to the actual crimes, and then judges should have discretion to sentence within reasonable parameters (and ideally with helpful guidelines) that recognize all the different ways in which different crimes can be committed by different defendants.

Your "solution" is to then assert that the parties could create their own bargained sentencing law based on ... what properly enacted law, exactly? Because six years seems right (to you) and this is about deal-making rather than actually having the appropriate sentencing decision-maker making appropriate sentencing decisions based on Nebraska's actual sentencing law?!? I am not against plea deals of all sort, but someone claiming an affinity for "rule-orientation in law" has a funny way of showing it when confronted with a hard case.

3. I think we all agree child rape is not a joke, but neither should be the process of sentencing or the rule of law. In fact, as this case and your comments highlight, it can often be MMs that make a joke of the sentencing process and the rule of law. I know you are smart enough to understand these realities, but you rather not honestly grapple with them here. Instead, as I said at the very outset, you are content to assail judges and to prop up mandatory minimums in service to expanding/preserving prosecutorial power through MMs. You are more than welcome to advocate expanding prosecutorial power through ever-more MMs, but doing so does not serve the rule of law as this Nebraska case richly plainly demonstrates. It produces ever more distortion and with ever less transparency or effective review.

Bill, that the constitution does not expressly preclude some legislative action does not mean such action is wise or sound policy. The constitution does not preclude a 90% income tax rate or prohibitions on driving over 10 MPH, but such laws would be unwise and harmful. We are debating here sound policy, not constitutional issues, and I trust you would be frustrated if every time you criticized a 90% tax rate, someone said "but where is this prohibited in the Constitution?" If the best argument you have for a law is simply that it is not constitutionally prohibited, you reveal how shallow the justifications must be.

At issue here is not what constitutional law allows but what makes for better policy. I say that if one sincerely cares, as a matter of policy, about the rule of law and transparent reviewable sentencing-decision making, one should be worried that MMs put more lawless power in the hands of prosecutors, undercutting the rule of law and precluding/distorting transparent reviewable sentencing-decision making. This reality is on display in this Nebraska and in Anthony Weiner's prosecution (where he could of been subject to a 5 or 15 year federal MM) and in tens of thousands of other cases.

Critically, no MMs does not mean no sentencing law nor even no hard presumptive minima in the form of mandatory guidelines with, as you put it, judicial authority to go "outside the ranges if they stated good reason on the record, subject to appellate review." That is a system I know we both support, and it is a system that could help ensure constitutional basics and the vileness of child rape are never forgotten.

But, a commitment to the rule of law and transparent reviewable sentencing-decision making makes life harder for prosecutors --- exercising power without transparency or accountability or review is always easier and more fun. Sometime the misuse of this power will be revealed --- see e.g., the prosecution of the Bundy clan or Ted Stevens --- you here would of course much rather assail a judge or an offender before even giving a hard look at what the prosecutor has done (or felt forced to do by an MM).

I am not claiming you have dark motives, Bill, but I am highlighting who are the winners and losers from a system full of MMs: government agents win, the rule of law and checks/balances lose. If you trust those government agents, as I suspect you do, this may not trouble you. But the rule of law suffers in important ways that your comments, sadly, reflect a modern acceptance of --- namely a criminal justice system ruled by men through charging/bargaining with trials, without regulation of any real sort and without any real review, and ultimately subject to no functional law at all. Like the frog is the boiling water, we do not jump out and protest this world because we've gotten slowly used to it and enough folks like the feel of the water.