Eric Holder put out a memo today in which he announced that he would no longer go for the mandatory minimums when it comes to non-violent, non-gang-related low-level drug offenses. My two questions: has he always had this much discretion? Aren’t mandatory minimums a violation of separation of powers in the first place?
Jaybird
Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com
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1. What Holder is saying is that he’ll direct prosecutors not to charge crimes that have “excessive” (whatever he means by that) mandatory minimums. For instance, they’ll charge possession, but not possession of more than 5 grams, if 5 grams is what makes the mandatory 10-year sentence kick in. (There’s an old Doonesbury where Zonker gets busted driving through Texas. “Wow, two seeds! That makes him a dealer!”) That’s totally within prosecutorial discretion, as far as I know.
2. Mandatory minimums are laws that say “The penalty for X is at least Y.” Sure, they get passed so legislators can say “We’re tougher on crime than those bleeding-heart judges”, but, again as far as I know, they don’t violate separation of powers.Report
So if the penalty for X is at least Y, and that’s the law, why does Holder have the authority to say “well, we won’t go for Y, even though the penalty for X is at least Y”?
I mean, it seems to me that sentencing is part and parcel with the judicial branch but if we agree that it’s not because the legislature has the authority to pass that law, why does Eric Holder then get to say “he was caught with an eighth… but we’ll charge him as if he were caught with a joint”?
I mean, one of the main reasons that I can understand passing mandatory minimum laws in the first place is because This Group/Class Of People tends to be given “Time Served Plus Six Weeks Probation” and That Group/Class Of People tends to be given “Five To Ten”, but this seems like the absolute worst way to do it… like it’d return to being able to make distinctions between This Group/Class and That One.Report
My thinking was that the gang-related part is going to be largely applied as “in a neighborhood where gangs are active,” which means, well, we know what that means.
I’m actually cool with avoiding crazy mandatory minimums. I suspect there’s a better way to go about it than this.Report
So if the penalty for X is at least Y, and that’s the law, why does Holder have the authority to say “well, we won’t go for Y, even though the penalty for X is at least Y”?
What do you think a plea bargain is?Report
Prosecutors have vast leeway in the charges they bring.
Recently, it’s been used to “Stack” charges — throw the book at criminals, including metaphorical books, barely relevant books, and sometimes imaginary ones. Mostly so the criminal will plead to some subset of charges.
If you charge a guy with 30 felonies, even though no jury would convict him of more than 5 of them, you’re far more likely to get him to plea to all 5 than if you just charged him with the relevant ones. Especially given he’s likely to be represented by a pro-bono lawyer who had all of an hour to prepare. All to get the most possible time in jail for the criminal, even if that time is…disproportionate…to the actual crime.
This is the inverse of that. No charging in cases the prosecutor feels the potential time spent is excessive.
Prosecutorial discretion cuts both ways, after all.Report
What do you think a plea bargain is?
Something that you do INSTEAD of going to trial.Report
Morat makes the relevant point.Report
It can’t be just a couple of days ago that we were discussing Due Process And The Disabled. I’m trying to balance this against that and I am failing.Report
I don’t follow.Report
Jaybird: You have absolutely the wrong idea of how plea bargains actually work in real life.
In real life, the prosecutor throws every possible crime onto the table, charges you with ALL of them. He’ll charge you with crimes he knows he can’t convict on if your lawyer is even conscious.
He does that for the same reason people who haggle start by trying to get you to pay 10 times too much for something, because he hopes — after he’s generously cut his offer down — you’ll only pay 5 times to much.
Except unlike haggling, he’s got ALL the power over a defendant who can’t chose to shop elsewhere, who is unlikely to have good representation to explain the game, and who is undoubtedly terrified and often willing to plead to merely two or three times more than he should, just to avoid the scary specter of all those other charges.
Prosecutors lard up charges so they can generously cut a few, so that poorly (or un-represented) defendants will agree to bad deals because they’re terrified of the threat of 30 years in jail over a crime that might get them 3 years, at trial. So they’ll plead to 5 to 10.
Now if you’re rich, or have a good lawyer, you might actually get a good deal when you’re realistic enough to know you have a losing case.
But for the masses — there aren’t enough public defenders to really push back at that., and the average joe can’t exactly afford a lawyer for a real trial. It’s pretty lopsided, power wise.
But in any case, charging less than you have to is no different than shooting the moon on charges. Prosecutors have a lot of leeway in what to charge. Why should it be an abuse of power one way, but not the other?Report
In that thread, we were discussing Prosecutors doing such things as bringing charges against the mentally disabled despite having mountains of evidence (INCLUDING CONFESSIONS) that someone else committed the crime.
And now we’re talking about Prosecutors saying “well, we’ll only throw the little book at this guy…”
I’m not able to square this particular circle. It seems to me that we’d only be able to get to the second part if we’ve fixed the problems with the first part.Report
Practically all federal criminal cases are resolved on plea bargains anyway (97% is a number I’ve heard). Even if it were impossible to affect those cases that go to trial, a directive that essentially said “be more generous in plea bargaining” would nevertheless have a huge effect.Report
Most long term/career criminals know that prosecutors pile on charges. That really is well known. They are also often fine with plea bargains since they don’t want to have to pay for lawyers for the ones that can afford it.Report
It seems like you’re saying that prosecutorial discretion shouldn’t exist at all. The problem is that I can’t envision a system where that kind of discretion doesn’t exist, at least not with respect to a decision to undercharge a defendant. I can, however, envision a system wherein overcharging a defendant subjects a prosecutor to liability, though such a system may be a pipe dream.Report
This is one of the things that seems so perverse about the American system.
In the abstract, it would seem good to have fewer people in prison. That’d be the sort of thing to boast about. “Hey… look at us… our citizens are so good that our prison population is shrinking.” If we were to subscribe to that sort of logic, well, the powers that be would conspire to put fewer people in jail, though all sorts of mechanisms. Some of those mechanisms might be bad, but most of them would probably be good.
But somehow we’ve arrived at a place where more criminals and more people in jail ha somehow become something to be proud of, to boast about.
I really don’t get it.Report
I imagine that prosecutorial discretion in the good direction is something that would likely never merit an article in Reuters… but I also imagine that it would be likely to show up that kids from this school district go threatened with juvie and kids from that school district actually got it… but why would you complain about kids from the good school district *NOT* going to jail for possession?
It strikes me as more likely to result in abuse than not and, on top of that, abuse that is unlikely to result in things changing.
It’s like Holder is saying “let’s go back to enforcing the law the way they did in the 80’s.”Report
To a good degree there will always be some sort of prosecutorial discretion since they have to decide what to charge people with. Even leaving aside sentencing, someone has to look at a case to decide whether to try for 1st degree murder or 2nd or manslaughter.Report
@jaybird : I’m still struggling to get at your concern here. Is it that you’re concerned the primary effect of this will be to get certain people charged more readily with violent offenses in order to ensure the mandatory minimums come into play?Report
Didn’t a study come out a couple years ago showing that people get harsher sentences if they don’t deal and plead guilty? Vindictive sentencing, I believe the phenomenon was called. If that is the case, it certainly suggests that this analysis has false parts. I’m not saying that prosecutors don’t throw charges at people to get them to plea, but my impression that the desire to get them to plea has less to do with the ultimate length of their sentences (which will be longer if they’re convicted) than it does with getting their file off the prosecutor’s desk.Report
It’s mostly that discretion will only be used in certain cases and mandatory minimums will be used in others (without getting into violent offenses).
The mandatory minimums are no longer mandatory… for certain people.Report
While that does happen in some cases, and some prosecutors and counties are somewhat notorious for overcharging or piling on every plausible charge, in my experience practicing criminal defense that’s not the norm. In most cases the charges are reasonable given the crime, to the extent that there are multiple charges it often results from the facts and plays little role in plea bargaining, and the primary reason defendants plea bargain is to reduce or eliminate jail time or, if they’re lucky, qualify for a deferred sentence. For example, I once had a client charged with felony drug possession, DUI, DWLS, driving without registration, and “habitual second” (due to a prior felony), and was offered what for the office was a standard deal (“Plead to the felony and we’ll drop the habitual”) sweetened by “… and all of the other charges.”
The cases in which, for one reason or another, the defendant is overcharged can present complications to working out a resolution without going to trial. I had a case that should have resulted in a plea deal go to trial because the prosecutor was up for review and wanted an additional conviction. On the other hand, I had prosecutors offer “too good to refuse” deals on the eve of trial because they didn’t want to do the prep work.
Innocent and “probably innocent” clients come along, but to me they’re a nightmare for another reason. It’s something of a nightmare to think that something you do or don’t do during trial could land an innocent person in prison. I only had one case where a person who presented a convincing “I’m innocent” stance took a plea bargain, and that was after he took a good hard look at the facts – he was accused of two crimes on two different occasions and, despite his explanation of what happened, he recognized that given the inflammatory nature of the charges and the fact that it happened twice would make it difficult for him to convince a jury that it was a matter of chance. Without going into detail, it would have been an extraordinarily tough sell, and with a plea bargain to once offense he was offered probation and the possibility of expungement while the consequences of conviction to a two-count charge would have made his life extraordinarily difficult.Report
Aaron, do you mind saying where you practice? Obviously, completely understand if you prefer not to. Just curious what the setting for your observations is.Report
This is pretty much correct. To my knowledge, this (publicly directing that a law not be utilized) isn’t usually something that the Executive wants to do as a political matter because there’s typically a good amount of PR cost to doing it.
However, the directive is of little to no legally binding effect – if a prosecutor ignores Holder’s directive, I don’t believe a defendant would be able to get the judge to drop the charges by pointing to the directive. Practically speaking, though, I’d imagine most US Attorneys would be disinclined to disobey their boss.
That this needs to be accomplished in this manner is another sign of how the GOP is really starting to fray at the seams – it seems likely that majorities in Congress support getting rid of mandatory minimums, including a sizable and growing minority of Republicans, but Boehner can’t afford to allow legislation that exposes divisions in the GOP Caucus through.Report
Getting rid of mandatory minimums seems like the kind of thing that Rand Paul would be all in favor of, if he’s for real.Report
On this front, he is:
http://www.washingtonpost.com/blogs/the-fix/wp/2013/08/12/holders-move-on-mandatory-minimums-a-boon-to-rand-paul/Report
Practically speaking, though, I’d imagine most US Attorneys would be disinclined to disobey their boss.
I imagine it’s not so much a question of obedience (well, it is, but…) as it is of sending the signal that getting big sentences on drug cases, at least at the possession and small-time delivery levels, is no longer going to be much of a way to secure promotion in the DOJ for the remainder of this administration, barring a major change at AG (which is looking less and less likely from what I understand).
Which is a pretty short-term, limited message – and it’s way late – but it’s something at least.Report
Dude… don’t look a gift horse in the mouth. This is good news!Report
All the more reason to be paranoid.Report
So was the administration’s declaration that they would not go after the medmar dispensaries.Report
That was a campaign promise and not an official administration declarationReport
Ogden Memo, 2009.Report
A note on plea deals and settling:
Most cases (civil and criminal) end with a plea deal or a settlement because the stakes are too high for all parties involved. Burt explained how this works with his landlord cases a while ago. Most of the cases I’ve worked on will eventually end in settlement.
Now whether this is a just system or not is another issue entirely.Report
I think the rise in Pro Se clients in civil cases is leading to more trials. That may not be a good result for the clients though. I think they see trials as a place to be heard and air their grievances. Winning seems like a way to feel validated and that they taught their ex a lesson. Of course my experience is in custody cases which is far from all the civil law. Pro Se clients tend to find court overwhelming which is understandableReport
Custody and Probate are indeed different things.
And when I said plea, I meant things dealing with lawyers. You are probably right about Pro Se* litigants. I was thinking more about contract, tort, employment cases. Stuff like that.
*Or as my crim pro professor called it “the right to go down holding your own flag”
Custody is in a completely different court usually.Report
I’ve always thought that mandatory minimums were a significant impingement upon “the judicial power” by Congress. However, if I recall, the Supreme Court disagrees with me.Report
In that case, you’re probably right.Report
Well, going by the general observation that many government policies have opposite of the intended effect, and assuming Holder’s real goal is to reduce racial disparities in sentencing, my guess is that young white people who make up many of the suppliers towards the consumer end of the chain will walk, while their inner-city suppliers (both black and Hispanic) will still be getting charged as gang members, because both police and the judicial system are intent on reducing the rates of inner-city violence, and that means drug trafficking. As a result, the racial disparity in sentencing will go up, not down.Report