<< Texas Execution | Main | The Memo and the Mueller Probe >>


Finding Common Ground on Criminal Justice

| 16 Comments
Although there remain stark differences on criminal justice reform, it occurs to me  --  thanks in part to President Trump's sometimes moving State of the Union Address  --  that there are potential areas of common ground.  Three come to mind.

1.  Prison reform.  Conditions in federal prison are decently good, but this cannot uniformly be said for the states.  Same with health care and vocational training.  

Prisoners are our fellow human beings.  In the huge majority of cases, they earned their way to incarceration.  But almost all will return to civil society one day, and for their sake and ours, they should be given every reasonable chance to lead safe and productive lives.  Efforts at rehab are not uniformly successful to say the least, but that is not a reason to give up.  It's a reason to try harder.

2.  Mens rea reform.  It should be too obvious to need saying, but no one should go to jail for behavior a normal person would not regard as wrong, much less criminal.  The increasing use of criminal law as a cudgel of the administrative state is a threat to liberty and needs to stop.

Some who have been dragging their feet on this question argue that mens rea reform would make it more difficult to impose criminal punishment on corporate executives.  These tend to be the same people who, in every other context, understand that, under the Constitution, it ought to be difficult to impose criminal punishment on any citizen.  But something about corporations drives them nuts.

3.  Mandatory sentencing.  Mandatory minimum sentencing was and is needed to rein in naive, willful and feckless judges  --  judges who were part of the problem in America's 30 year-long crime explosion, 1960-1990.  To the extent mandatory sentencing has also been a part of the increased use of incarceration, it has accounted for a portion of the sharp decrease in crime, and is thus a major public benefit.

That understood, there is room to debate whether mandatory sentencing is better undertaken through statutory minimums or through mandatory guidelines rigorously enforced.  Since we no longer have mandatory guidelines, this is for the moment a moot question.  If such guidelines were to return, however, and if they proved fully effective after a period long enough to be sure, the possibility of changes in mandatory minimum sentencing statutes would at least be worth examining.

16 Comments

A change in mandatory minimum sentencing would necessarily require a statute. There is no reason that statute could not take the form of revamping sentencing guidelines to conform to Booker and then reinstating them as mandatory, in return for eliminating many or most of the existing statutory mandatory minimums.

Bill, can you explain more what you mean by revamping the federal sentencing guidelines to see "if they proved fully effective after a period long enough to be sure"?

I ask because the FSG were revamped to be advisory by SCOTUS fiat in Jan 2005 (and really starting in July 2004). After Booker, crime in the US continued its decline for the next decade until reaching historic lows in 2014. And even after a violent crime spike in 2015/16, crime rates in 2016/17 are still much lower now than in 2003. Doesn't that decade+ of considerable success with advisory guidelines suggest they are, at least in some sense, already "fully effective"?

Of course, there a so many other parts to this complicated story of crime declines for a decade+ after Booker. Moreover, the crimes that the FBI tracks providing the basis for our usual assessments of the state of crime have very little to do with what gets prosecuted in federal court: drug and immigration and firearm and fraud offenses take up the bulk of the federal docket.

But I am genuinely interested in understanding what you mean by "proved fully effective" when talking about a possible return to binding guidelines. (While agreeing with you 100% on points 1 and 2.)

What I mean by mandatory guidelines proving "fully effective after a period long enough to be sure" is determining after a few years whether they are being obeyed by district judges with something closely approximating what judicial obedience would be if the sentence were controlled by a mandatory minimum statute.

Like most other things in life and law, mandatory minimum statutes have the defects of their virtues. Indeed, the defect IS the virtue: That they are inflexible.

Inflexibility is a needed feature because, as Congress correctly determined in its consideration of the SRA of 1984, judges abused their running room to impose irrational, and irrationally lenient, sentences, and did so for decades. They needed correcting and they got it. In part as a result (and as a result of the states following suit), incarceration increased and crime decreased. In addition, the whole culture of feckless (and grandstanding, see Jack Weinstein) leniency got a bucket of cold water poured on it.

The decades of progress we have made since the SRA's passage now make it possible at least to consider tentatively giving back to judges a degree of the running room they forfeited by their irresponsibility. But, if this is to be done at all, they are going to have to show that they've earned a restoration of trust. That is why we will need a trial period of mandatory guidelines "long enough to be sure."

If we see a return of willy-nilly downward departures, that will be the end of that. If we see discipline, decent regard for crime victims, and a sober understanding of the huge amount of harm crime creates, THEN we can consider a degree of relaxation of statutory minimums.

And in case you're wondering: No, I'm not going soft in my old age (well, my fitness trainer might dissent, but that's a different subject). I'm listening to my adversaries (the ones who don't yell and smear my family, anyway). That involves trying to keep what is good about the rule of law in sentencing (which is plenty), while being open to a means for fixing the occasionally excessive rigidity it risks.

I have no great hope of being met half way, but that's life. If my adversaries want to stay stuck in their shrill, ideological, "criminals-are-victims" concrete, that's their decision to make. They might want to remember, however, that the alternative is not Nirvana. The alternative is the status quo.

Bill, I am still struggling here because I do not understand what you mean by the federal sentencing guidelines "being obeyed by district judges with something closely approximating what judicial obedience would be if the sentence were controlled by a mandatory minimum statute."

The "mandatory" federal guideline system always provided for discretionary judicial departures. Are you saying there should not be any judicial departures or just that they should be at a very low level (e.g., under 10% of all cases) for you to think guidelines can work in place of inflexible MMs?

I am confused because you follow up praising the post SRA period in which "incarceration increased and crime decreased." But in 2004, the last pre-Booker year, the federal prison population was under 180,00 and by 2013 it reached nearly 220,000. Crime also decreased another 20% in that period. Might one reasonably view these trends as a trial period of advisory guidelines "long enough to be sure" that there are now more judges like US District Judge Janet T. Neff (who maxed out Nassar at 60 years when guidelines called for 25) than like your favorite whipping boy Jack Weinstein?

If I am not mistaken, 99% of the federal judges who you think were so irresponsible in the 1960s and 1970s are not around anymore. And my google feed is full of a lot more claims that it is modern federal prosecutors and law enforcement officials who are acting irresponsibly theses days (see, e.g., Bundy prosecutions).

I know you are not going soft, Bill, because your playbook and posts remain the same: always assailing judges and seek to limit their sentencing powers, always give prosecutors a pass and seek to expand their sentencing powers. Perhaps when I see a WSJ article revealing thousands of text messages in which modern federal judges plot their sentencing strategies, I will better see the modern basis for thinking them the less responsible CJ actor. But the data since Booker suggests to me federal judges are doing pretty good at balancing the rule of law and a commitment to fair sentencing.

That all said, I have long been a support of guideline system that has some teeth and complies with Blakely rights. So I am more than willing to meet you half way. How about we work on a statutory proposal to make the guideline mandatory again, ensure adequate departure authority (for substantial assistance and other reasons), and that sunsets MMs after 5 years. Do you think you could get your friends at NAAUSA to sign on? I will work on the folks at NACDL.

I'd add one more thing to your list, a weeding out of unnecessary or excessive criminal laws.

We have reached the point were it is likely that everyone in the United States has committed a Federal Crime. It used mean something to "make a Federal Case out of it" with Federal Jurisdiction reserved for the most serious offenses. Today prosecutors can, if they decide to, pretty much charge anyone for something or at least bankrupt them.

"The 'mandatory' federal guideline system always provided for discretionary judicial departures. Are you saying there should not be any judicial departures..."

How could you glean that from what I wrote?

"...or just that they should be at a very low level (e.g., under 10% of all cases) for you to think guidelines can work in place of inflexible MMs?"

I think departures, in any direction, should be very infrequent and justified by the most persuasive reasons.

*******************

Moving on to your third paragraph, there are two big benefits we get from mandatory sentencing. The more important is the rule of law over the rule of taste. The other, also very important, is the improvement in public well-being that resulted in part from the overall increase in incarceration up to about 2010 (since then it has declined somewhat).

The latter (improved public safety) is a part of my subject here, but the former (law over taste) is what I hope you will bear in mind in evaluating my proposals.

*******************

"If I am not mistaken, 99% of the federal judges who you think were so irresponsible in the 1960s and 1970s are not around anymore."

Therefore we should wear a Happy Face and go back to exactly the policies that fed their irresponsibility.

Far out!

P.S. Their ideology is around big time, as your own blog makes clear.

"And my google feed is full of a lot more claims that it is modern federal prosecutors and law enforcement officials who are acting irresponsibly theses days (see, e.g., Bundy prosecutions)."

I like you much better than to wish upon you the life produced by a Google feed.

"I know you are not going soft, Bill, because your playbook and posts remain the same: always assailing judges and seek to limit their sentencing powers, always give prosecutors a pass and seek to expand their sentencing powers."

Well gosh. After all those years and all those cases, I find out for the first time today that prosecutors have sentencing powers. Could you post the transcript of a prosecutor pronouncing sentence? I really need to show that to my class.

And NO, the relentless whining of the defense bar that prosecutors are thugs (for exercising their Constitutional power to select charges) is not a sentencing transcript. I need the transcript.

"But the data since Booker suggests to me federal judges are doing pretty good at balancing the rule of law and a commitment to fair sentencing."

I won't even try to untangle the numerous value judgments conveyed in that sentence. I will say only that, since Booker, sentencing law has included -- as you often lament -- many MM statutes. I take it that, by your logic, those statutes are likewise contributing to the balance you judge so pleasing.

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

"That all said, I have long been a support of guideline system that has some teeth and complies with Blakely rights."

I'm not proposing to try a guideline system with "some teeth," whatever that might mean (e.g., as many teeth as grandpa has left?).

I'm proposing, as I said in my post, consideration of MANDATORY guidelines rigorously enforced by the courts of appeals.

In the spirit of this post I would add another suggestion: crime lab reform. I think recent scandals have made it clear that there are serious problems with crime labs. When those problems are discovered they can lead to wholesale reversals of convictions and when they are not discovered they can lead to innocent people going to jail. I assume no one wants either of those outcomes and there is no reason for things to be the way they are. Yes, professionalizing labs will cost some money, but it seems to me it would be well spent.

Bill, a few responses:

1. Sadly, I cannot "post the transcript of a prosecutor pronouncing sentence," but that is not because they do not sentence, but because they make their sentencing decisions behind closed doors and without any explanation of their decisions. When federal prosecutors charge lower-level child porn cases as receipt rather than possession, they are sentencing a defendant to a MM of 5 years rather than allowing a judge to consider a lower one; when prosecutors agree to a (C)(1)(C) plea, they are making sentencing decisions that a judge must abide by if willing to accept a plea. When they choose or do not choose to add an 851 enhancement to double an applicable MM. If prosecutors did not functionally sentence all the time, the Holder charging/sentencing memos in 2013 would not have mattered much and the Sessions memo of May 2017 would likewise not matter much for sentencing purposes. But you and I both know that these memos matter because prosecutors ultimately make consequential sentencing decisions in every case.

2. You know that the current federal sentencing system applicable in cases where no MMs are applicable --- e.g., fraud cases --- is nothing like the system (or lack of a system) in place in the 1960s and 1970s. Nobody calls for a return to a lawless system; we are now debating what form sentencing law is preferable. I prefer flexible and transparent sentencing laws applied in a open forum subject to review. You claim to favor the "rule of law over the rule of taste," but the aforementioned Holder/Sessions memos are an example of how "taste" still defines prosecutorial decision-making, and that is why I dislike MMs that often can make (prosecutorial) taste matter more than enacted sentencing law.

3. As you sometimes do in these discussions, you conflate state and federal prison, crime and sentencing realities. The federal prison population kept rising through 2013, not 2010. State incarceration started ticking down in 2011, notably after a wave of GOP victories at the state level in 2010.

4. You say you want departures from mandatory federal guidelines "should be very infrequent and justified by the most persuasive reasons." I know that you essentially advocated for a departure from the guidelines for Scooter Libby, and your op-ed stressed he was a "a first offender convicted of a nonviolent and non-drug-related crime" who "has been a contributor to his community and his country." I suspect Paul Manifort and Anthony Weiner and a number of other like folks would embrace your Libby-departure standard. And I am assuming you would keep providing assistance to prosecutors as a "most persuasive reason" for a departure, though I would think you'd be okay having a judge decide whether an offender provided assistance if you truly eschew having prosecutors making significant sentencing decisions.

The devil is always in the details, and I am sincerely interested in your accounting of the details of departure authority in your proposed return to mandatory guidelines.

All good points, but I would highlight #1. Prison life makes people worse human beings.

Most people who have not spent considerable time in prison do not understand how harsh the conditions really can be. It's not just a consideration for those incarcerated but a commentary regarding ourselves. Yes, inmates are in prison b/c they deserve it and many will recidivate, but we should do better to get as many as we can not to.

D. Berman: (who maxed out Nassar at 60 years when guidelines called for 25)

Do you find this an unwarranted upward departure?

"Each conviction carried a 20-year sentence for Nassar, who had pleaded guilty
to those charges in July."

Nassar said, per MLive. "I lost everything because of this."

~https://www.upi.com/Sports_News/2017/12/07/USA-Gymnastics-doctor
-receives-60-year-sentence-for-child-pornogoraphy-charges/1341512670951/

Adamakis: I generally favor allowing a judge to have significant discretion to depart up or down based on the 3553(a) factors set forth by Congress (subject to appellate review). Given Nassar's extraordinary number of (contact offense) victims who were extraordinarily vulnerable, I am inclined to see very good reasons for an upward departure/variance here based on uncharged but seemingly uncontested relevant conduct.

But, Adamakis, Bill should really be the one asked this question, as he seems to want a system that would mandate that Nassar only faced a mandatory federal guideline range of 22-27 years. In Bill's system, departures "should be very infrequent and justified by the most persuasive reasons." He may well say the Nassar case included "the most persuasive reasons," but again I am eager to hear his articulation of what reasons he think can justify an upward or downward departure. After all, Nassar himself likely believes he fits within Bill's Libby-criteria as "a first offender convicted of a nonviolent and non-drug-related crime" who "has been a contributor to his community and his country." (Remember, in federal court, the crime of conviction was the "nonviolent" crime of possessing child porn, not sexual violence.)

Again, just so. My reason is similar to yours, although perhaps different in emphasis.

You cannot treat a person with less than the basics of dignity and respect in prison, often for years, and then have them come out and expect them to behave with restraint and the normal empathy that prevents most people from committing crime.

It just isn't going to happen.

Prisoners are going to get a "second chance" even after service of a significant MM. The relevant question is whether their prison time puts them in a position to make good on that chance. Some of the conditions in state prison don't do that and need to change.

As I keep saying, human beings behave better when they have rules and the rules get enforced. What this thread reminds me to say as well is that they behave better if the society around them, including the prison authorities, treats them in the knowledge that they have inherent value.

I gotta love how you instinctively, and reliably, go on offense -- even if the stretch to do it is as wide as the Grand Canyon.

After years and years of decrying the overly punitive and routinely "draconian" character of sentencing, you now -- in the wake of the sort of sex crime that gives the Left the willies (because they get put in the middle of the culture war between two of their favorite constituencies, the criminals' movement and the women's rights movement), you decide (shrewdly) to give a brief nod to the harsh Nassar sentencing -- and say, in a truly marvelous leap, that I'M THE ONE WHO HAS THE PROBEM because I supported a sentencing commutation for an utterly unrelated defendant for an utterly unrelated crime a decade ago.

Far out!

You then all but admit, and correctly so, that I approve Nassar's upward departure because, I "may well say the Nassar case included 'the most persuasive reasons,'" for going up.

Well, yeah, when the team doctor, no less, spends years sexually molesting and defiling 150 to 200 young teenage girls entrusted to his "care," and shows no particularly credible signs of remorse, then -- it's all true!!! -- he meets my previously stated grounds for an upward departure.

Now perhaps you could cite the document actually relevant in the case, that being THE DEFENSE LAWYER'S SENTENCING MEMO.

You've helped out with that sort of stuff, no?

Then perhaps you could tell us why you disagree with its calls for compassion and redemption and second chances and all the usual stuff off the defense bar word processor. Why do those values now become so much less persuasive?

Yikes.

This is yet another instance, like the Stanford rape case, in which the defense bar sees that its usual line about The Neediness of Defendants is going to be a PR disaster, and hence scurries off the sinking ship to pretend (until tomorrow's smack deal) that it's really all for Doing Justice to The Bad Guy.

Quite a show. The nimble morality of criminal defense is something to behold.

"But, Adamakis, Bill should really be the one asked this question, as he seems to want a system that would mandate that Nassar only faced a mandatory federal guideline range of 22-27 years."

~ Wow, well for what it is worth, every person with whom I've spoken who is related to a former federal inmate -- including my 1st cousin who is the convict's nephew --
is concerned for his/her safety and therefore with how soon the convict will be released.

Maybe our view's the product of our unmerciful deplorable nature, but aren't they called mandatory minimums?

https://www.ussc.gov/topic/mandatory-minimums#0

Bill, where and how did I say you have a "problem"? I am just looking to better understand your advocacy for mandatory federal guidelines in which departures "should be very infrequent and justified by the most persuasive reasons." As I said before, "I am sincerely interested in your accounting of the details of departure authority in your proposed return to mandatory guidelines."

You advocated for a below-guideline sentence in one high-profile case, and I just want to know if it is a good example of when you think a downward departure is generally justified. (For the record, I generally believe that a first offender who has been a contributor to his community and his country should often be eligible for a below-guideline sentence.)

Though I surmise you never tire beating up on defense attorneys, but I would rather understand your proposal for reform. I will try two directed questions:

1. Would prosecutors have authority in your system to authorize departures for assisting the gov and/or for a quick plea?

2. What specific factors in the Libby case provide "the most persuasive reasons" for a departure?

Leave a comment

Monthly Archives