Pubdate: Sat, 09 Aug 2014
Source: Honolulu Star-Advertiser (HI)
Copyright: 2014 Star Advertiser
Author: Jacob Sullum, Creators Syndicate
Page: A11
Bookmark: (Mandatory Minimum Sentencing)


In 1996, when he was the U.S. attorney for the District of Columbia, 
Eric Holder urged the D.C. Council to reinstate mandatory minimum 
sentences for nonviolent drug offenses, which it had abolished in 1994.

Two decades later, as an attorney general who has repeatedly 
criticized "draconian" mandatory minimums and sought to limit their 
use, he faces resistance from the federal prosecutors he oversees.

Holder alluded to that resistance in a speech to the National 
Association of Criminal Defense Lawyers on July 31, saying, "Any 
suggestion that defendant cooperation is somehow dependent on 
mandatory minimums is plainly inconsistent with the facts and with history."

More to the point, coercing "cooperation" cannot be the overriding 
goal of criminal penalties, which must be constrained by principles 
of fairness and proportionality.

Consider what can happen to recalcitrant defendants who insist on 
going to trial. Last year, Roy Lee Clay, a Baltimore heroin dealer 
who turned down a plea deal under which he would have served 10 years 
in prison, received a mandatory life sentence after he was convicted 
and federal prosecutors invoked sentencing enhancements based on his 
prior offenses.

In 2005, the same sort of enhancements resulted in a life sentence 
for Roderick "Rudd" Walker, a Deadhead from Buffalo, N.Y., who was 
offered an eight-year sentence for pleading guilty to LSD charges.

In my view, no one should go to prison for engaging in consensual 
transactions. But even if you think that Clay and Walker deserved to 
do time, a life sentence cannot be appropriate if prosecutors were 
initially prepared to give them a term of a decade or less.

When you see the stark choices that federal defendants face, you can 
begin to understand why an astonishing 97 percent of them decide to 
plead guilty. The bigger the gap between the sentence a defendant can 
get through a plea bargain and the one he will get if he is convicted 
after a trial, the stronger his incentive to "cooperate" - and the 
weaker the system's claim to be doing justice.

Holder clearly is right that plea bargains do not require mandatory minimums.

But from the perspective of prosecutors who are single-mindedly 
focused on obtaining convictions as expeditiously as possible - and 
terrified of what might happen if a substantial portion of defendants 
started asserting their Sixth Amendment rights - there is no reason 
to give up the enormous leverage that mandatory minimums provide.

"Mandatory minimum sentences are a critical tool in persuading 
defendants to cooperate," said the National Association of Assistant 
United States Attorneys in a January letter to Holder.

Testifying on behalf of that group before a Senate Judiciary 
Committee task force last May, a former federal prosecutor argued 
that "strong mandatory minimums" are "critical" to "induc(ing) 
cooperation from the so-called small fish to build cases against 
kingpins and leaders of criminal organizations."

The NAAUSA is so committed to resisting reform that it even opposes 
making sentence reductions retroactive. In a letter to the U.S. 
Sentencing Commission last month, the group argued that "allowing an 
individual sentenced under a plea agreement to have his sentence 
reduced retroactively prevents the government from obtaining benefits 
gained through concessions during bargaining."

I'm not sure how that works, but I assume it involves time travel.

The NAAUSA's objections did not deter the commission from approving a 
policy that will allow some 46,000 federal prisoners to seek sentence 
reductions averaging about two years.

Nor should they deter Congress from approving the Smarter Sentencing 
Act, a bill backed by Holder and several prominent Republicans that 
would make statutory reductions in crack sentences retroactive, cut 
the mandatory prison terms for certain drug offenses in half, and 
expand the "safety valve" that allows some lowlevel, nonviolent 
offenders to avoid mandatory minimums.

At some point the interests of justice have to outweigh the interests 
of prosecutors. We surely have passed that point when the penalty for 
exercising your constitutional right to a trial can be spending the 
rest of your life in prison.
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MAP posted-by: Jay Bergstrom