A Genuine Problem with the System

Reportedly, Attorney General Jeff Sessions is calling for his prosecutors to -- as a matter of course -- seek the harshest possible charges with the longest possible prison terms when prosecuting cases.

Well, actually, that's not quite what he said.
The policy memo says prosecutors should “charge and pursue the most serious, readily provable offense” — something more likely to trigger mandatory minimum sentences. Those rules limit a judge’s discretion and are typically dictated, for example, by the quantity of drugs involved in a crime. The memo concedes there will be cases in which “good judgment” will warrant a prosecutor to veer from that rule. But any exceptions will need to be approved by top supervisors, and the reasons must be documented, allowing the Justice Department to track the handling of such cases by its 94 U.S. attorney’s offices.
Mandatory minimums are a problem. Sessions, as a former lawmaker, bears some of the responsibility for that problem, but certainly not all of it. The heuristic that one should usually pursue the "most serious, readily provable" crime isn't even a bad standard: if a serious crime isn't readily provable don't pursue it, but if it is then of course it's your job to nail criminals for their serious crimes.

I would have left a lot more room for that "good judgment" exercise by lower-level officials, rather than requiring high-level officials to sign off on such uses of judgment. Still, it's not an unreasonable policy on its face.

What makes it a problem is, then, the mandatory minimums that exist in the law. That's a problem for legislators, not the Justice Department. I agree with the analysis that such minimums are not appropriate as a general principle. Nevertheless, it's not on the Justice Department to refuse to enforce the law when a crime is "readily provable" just because the law is badly written. It's on Congress to fix the law.


My congressman, Doug Collins of Georgia's Mighty 9th, is working on trying to reform the laws in the way I'm discussing here. Specifically, he is focused on dealing with the mental health aspects of crimes. Collins is a former Air Force chaplain whose father was a state trooper.
"I've spent a lot of time with our sheriffs and going to our jails. One question I always ask is, 'How many in your jail would you classify as mental health or addiction issues?' The answer is that it ranges from about 35-40 percent of incarcerated individuals in some jails."...

"We're looking at the whole issue, at folks dealing with serious mental issues, but also from an economic perspective, the money perspective, making the best use of taxpayer dollars to not just incarcerate folks without getting them help," he added.
Mandatory minimums aren't the right answer to these issues. They might be to some issues -- I think I broadly approve of Project EXILE's moves to punish drug gangs who use guns with harsh penalties, as at least it pulls these kids off the street until they're too old to go around gunning each other down (as well as, being untrained thugs, often innocent people who were proximate to their targets). But there are many cases in which these mandatory minimums should be rethought by Congress.


E Hines said...

What makes it a problem is, then, the mandatory minimums that exist in the law. That's a problem for legislators, not the Justice Department.

That misconception is part of the problem, too. There are no mandatory minimum sentences; the sentencing guidelines are just that--guidelines. They've achieved a de facto mandatory status only because the appellate courts have taken the guidelines to be mandatory (in violation of the judiciary's status as a coequal branch of government, rather than a subordinate one), and trial judges are too loathe to cross their appellate and thereby force the appellate to rethink a position.

The problem is not with DoJ, certainly, but it's primarily a judicial branch one, not legislative, albeit there's a strong need for the legislature to clarify the guideline status of the sentencing guidelines. My own view here would be to do away with the guidelines altogether and put the sentencing entirely in the hands of the jury.

Eric Hines

Grim said...

Reading up on the issue a bit more this afternoon, I'm not sure the whole project doesn't need to be redone. It sounds as if judges regularly ignore the sentencing guidelines, but usually in the direction of increasing the sentence beyond what is recommended: and that the reasons for doing this are often that the judges deem a particular offense to have been a "hate crime," and not just (say) a murder.

What was wanted was a standard for addressing disparities that might arise from prejudice or other unconscious bias. What we've gotten is a minimum that is too harsh, and that courts usually reject only in making it harsher. The reasons for doing so are constitutionally dubious.

To your point: Would the jury do a better job? Maybe, insofar as a jury acts unanimously, and presumably most of the time any sizable minority will end up with members on the jury who would act to counter blind prejudices. Maybe not, though, as juries are untrained legally and may do what they want.

E Hines said...

Juries in the sentencing phase need not be unanimous--that's generally a statutorily set requirement, and in some jurisdictions, there need only be a super-majority of some level. As I understand it, unanimity is universally required only in capital cases; in these, the jury must be unanimous even if its role is limited to recommending a death sentence rather than setting it.

Juries wouldn't necessarily do a better job of sentencing, but I think they'd be more likely to. Judges aren't necessarily of the community. The point of juries in Anglo-Saxon jurisprudence, and especially in American jurisprudence, is to be a body trying the defendant's guilt or acquittal that's formed from the defendant's peers--and (by design or side effect) to be the local community's representatives in the trial (however broadly "local" might be defined). As such, the jury, especially in matters of sentencing, would be more likely to apply their community's standards to the question than a judge would be. That would result in differing sentences in differing communities for substantially the same crime, but I see that as a benefit, not a detriment. Even with Federal (national) crimes, there's no reason Texas' community standards or Plano standards or some one-size-fits-all Federal standard should be applied regarding a crime committed in New York State or Outback, Idaho. The crime, after all, having been tried in the district in which the crime was committed, was committed, say, against that New York community or Outback's, not Texas'.

And: judges can't engage in nullification; juries can. It doesn't get any farther below sentencing guidelines' minimum than that, even if nullification is more often done in the trial phase than in the sentencing phase. And juries don't have to justify their decisions to lawyers, whether the latter have otherwise legitimate beefs or are just rent seeking.

Eric Hines

Texan99 said...

Mandatory minimums are a symptom of a problem: the public doesn't buy into a criminal law and its associated penalty. It's the same problem we see with immigration laws.

The bandaids don't work. The laws have to reflect what the people in general are willing to support, or the machinery shakes itself apart.

jaed said...

One problem—one that I don't think bears directly on sentencing guidelines, but is more general—is that being a judge these days almost always means you're high upper-middle class, and more than likely have always been. It is my sense that this wasn't always the case. It can cause a certain... disconnection from the reality of people whose economic situation is way below that of someone who makes six figures and has a comfortable retirement account.

Someone posted a few weeks ago about a hearing where there was some kind of fine or arrears, and the judge kindly said, "You don't have $12,000? Oh. Well, why not just borrow it from a family member?" Caused me a KLUNK moment with my head on the keyboard, that did.

Matt said...

Wasn't one of the driving factors behind mandatory minimum sentencing laws some high-profile instances wherein judges issued what were in hindsight seen as incongruously lenient sentences on individuals who went on to commit serious crimes once they were out?

Texan99 said...

Sure, and there was also a well-founded concern over inconsistencies among judges, which introduced an unpleasantly lottery-like aspect to the process, as well as a concern that attractive young criminals of the right race and class would receive only slaps on the wrist. But if we take discretion away from judges because we don't trust them to execute it properly, we may create not much more than the illusion of increased consistency. If judges, juries, and the public in general aren't really on board with the stiffness of penalties in real cases, we'll see everyone from the police to prosecutors to judges and juries finding ways out of the box. Lesser crimes will be charged and pleaded out, or juries will nullify.

The law is not self-executing. It needs people behind it.