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Fake Criminal Justice Reform

Federal sentencing reform is upon us, and the results are pretty depressing. First, some context:

Federal criminal law is out of control, and has been since the mid-1980s for a combination of reasons. The advent of the Sentencing Guidelines which at first were mandatory, but have become advisory, took discretion away from judges and placed it in the hands of the Sentencing Commission, prosecutors, and probation officers.

While judges have always been able to depart or vary from sentencing guidelines, the guidelines, even in the post Booker era in which they have become discretionary, meant that judges were at least required to consult the guidelines.

And, particularly in drug cases, the impact of the guidelines has been disastrous for defendants since judges are allowed to consider all conduct “relevant” to the convicted offense. That means that in a drug conspiracy, a person faces sentences that reflect not just the specific weights related to his conduct, but all relevant conduct and relevant weights in the broader conspiracy in which he was involved.

The second problem has been the advent of mandatory minimums. Mandatory minimums do two things: they put trememdous power in the hands of prosecutors, and they make trials much riskier even for defendants with viable and triable cases.

The only way to avoid mandatory minimums is to negotiate a plea that doesn’t involve a mandatory minimum count. Since the judge cannot take part in plea negotiations, the prosecutor has nearly unfettered discretion in plea negotiations, and the “take it or leave it” approach means that the defendant may be forced to take an outrageously punitive plea in order to avoid a life sentence that would be imposed if the defendant went to trial and lost.

Other problems, unique to the way federal trials proceed, make these two structural features of federal criminal law even more problematic for defendants:

While lawyers can submit questions to the judge who then can select which he asks potential jurors, unlike in many state courts, prosecutors and defense lawyers do not question potential jurors in federal trials. This means that defense attorneys have virtually no ability to educate jurors about the case, or about sentencing, or to weed out particularly hostile jurors.

In addition, federal judges do not generally permit any discussion at trial or in argument of the potential sentences that can be imposed. Jurors, therefore, often have an unrealistic understanding of the punishments that await a defendant upon a compromise verdict. In fact, because relevant conduct applies in many drug cases, a compromise verdict may afford the defendant no practical relief. Uncharged or unconvicted conduct may become a basis for sentencing at a future hearing because sentencing decisions are based on a lower burden of proof than guilty or innocence.

An Inflection Point

A number of forces have raised the issue of sentencing reform: overcriminalization and mass incarceration are now topics in political campaigns, the #BlackLivesMatter movement has raised this issue in the context of racism, and even conservative organizations have shifted their attention away from law and order and toward the problem of onerous sentencing.

In addition, various organizations, such as Families Against Mandatory Minimums, have worked tirelessly for decades to lobby and build consensus around sentencing reform.

And the recession of 2008 has created havoc in state and federal budgets, putting pressure on governments to rethink – at least for fiscal reasons – the extremely costly prison industrial system in this country, a country that incarcerates its citizens at rates higher than nearly ever other country in the world.

Ersatz Reform

The problem is that moments like this can either result in real reform, or fake reform. In some ways, no reform is better than fake reform. Fake reform lulls people into believing that something positive has been done, and takes the momentum out of all the movements that created the inflection point in the first place.

The 2015 Sentencing Reform Act is fake reform. While it purports to expand the “safety valve,” the method by which the convicted can avoid mandatory minimums, the safety valve expansion is extremely limited, affecting a tiny percentage of federal cases each year.

FAMM has come out in support of the bill, but other commentators have been less enthusiastic, including New York criminal defense lawyer Scott Greenfield.

Real reform would involve a junking of the sentencing guidelines, and a return to judge- and case-based sentencing. Real reform would involve an elimination of mandatory minimums. Real reform would involve true open-file discovery by statute. Real reform would end relevant conduct. Real reform would ultimately shift the drug war in favor of a rehabilitative approach modeled on the very successful example of Portugal.

Real reform would stop treating evey citizen as a potential criminal awaiting to be incarcerated.




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