A System of “Complete Fools and Occasional Knaves”

There wasn’t much of a reason for criminal defense lawyers to know about this, but Bill Otis, who plays adjunct lawprof at Georgetown when he isn’t applying for the position of switch-flipper at the Big House, had a debate over federal mandatory minimum sentences. The debate was hosted by the Federalist Society, and the side of truth and justice was argued by Ohio State’s lawprof, Doug Berman.

There was no defense lawyer in sight, both because the spectrum of ideas embraced by the Federalist Society runs from swift and painless execution to long, drawn-out, painful execution, and few of us have the time to waste with such academic debate.

Bill Otis has generously provided his opening statement from the debate, which begins with a Reaganesque anecdote, upon which he seeks to build the fantasy of a safeguard against the injustice of defendants not being sentenced harshly enough.

We need checks and balances today, just as we did when the Constitution was written.  Allowing the legislature to direct that there are some crimes so serious that the judge will be required to impose a rock-bottom sentence is not a denial of sympathy.  It’s an insurance policy against injustice.

Notwithstanding Bill’s indulgence in his favorite logical fallacy of using a heart-rending outlier anecdote as proof of systemic failure, the Montana rape sentence in this case, which a commenter destroys by use of those horrible things, facts, that ruin an otherwise great appeal to passion and prejudice, Bill is unmoved.  Even Berman argued that Bill confused the prosecutorial power of the charge with the judge’s consequential sentence, Bill hides behind Berman to escape culpability:

The notion that THIS CASE illustrates why sentencing should be given over solely to the judicial branch is preposterous on its face.  You can filibuster as you care to about what went on here, but the judge’s sentence was an affront to justice.  Not for nothing did one of the leading sentencing experts in the country, Doug Berman, make absolutely no effort to defend it.

Not for nothing, but the debate was about federal mandatory minimums, not the propriety of the sentence in one case in Montana which was the product of a plea agreement where the prosecution couldn’t make its case. Not for nothing, but Berman’s failure to defend the case isn’t the sine qua non of mandatory minimums in any event.

Berman’s responding argument was that these schemes vest enormous, and largely arbitrary, power in the hands of prosecutors through their charging power, which then binds the hands of judges, as well as the “escape hatches” that allow defendants a way out of mandatory minimums.

In other words, it is FMMs with their prosecutor-controlled escape hatches in the  current federal system that in fact create a true and pure “luck-of-the-draw system,” but one in which it is only individual federal prosecutors get to  “decide without legislative constraint what the  sentence will be” because they get to decide, without any legal constraint or accountability, whether and when any Congressionally-imposed floors will be in play at sentencing.

Doug calls it the “rule of prosecutors” rather than the “rule of law,” shifting arbitrariness to the executive function to prevent arbitrariness by the judiciary.

In his response to the mean commenter who makes him look silly for having failed to adequately research his anecdote before confirming public opinion of him, Bill Otis gets to the bottom line of why federal mandatory minimums are necessary, which is why this is worthy of discussion here:

What you’re missing, other than the obvious, is that, while we like to think that judges are impartial and neutral (as they are most of the time), they can also be complete fools, not to mention occasionally knaves (e.g., Judges Hastings, Camp and Nixon, among others).  The check on foolishness and corruption in any one branch is the involvement of the other branches.

The Framers knew this.  Why don’t you?

By involvement of the other branches, he means the imposition of mandatory minimum sentences, as opposed to what might otherwise be presumed as the armed takeover of courtrooms by federal troops whenever a judge imposes a sentence that Bill finds less than satisfying. In other words, better to trust a system built upon the integrity and discretion of kid prosecutors than “complete fools” and the occasional “knave” federal judges.

Did the framers know this?  I suspect Bill has conflated a couple of things here, most notably our system of deliberate constitutional checks and balances with a secondary system of ad hoc balances that give prosecutors a huge club to beat the crap out of defendants and cuffs to bind the hands of foolish and knave judges.  Because that whole Senate advise and consent thing just doesn’t work well enough to assure Bill a comfortable night’s sleep.

Still, there is a nagging gap in Bill’s argument that troubles me.  While the debate focuses on the end result, the sentence imposed, it ignores the influence a sentence has on the right to trial. Bill assumes all defendants are guilty or would go to trial and be acquitted. Odd how judges are only fools or knaves at sentence, but that trials never produce erroneous outcomes, whether by over-convicting or wrongfully convicting.

What about a defendant faced with mandatory minimums, knowing that should he go to trial the government will charge him with everything under the sun, often by threat of a superseding indictment that will result in a mandatory sentence of life plus cancer, to coerce a defendant to see the virtue of a plea even when he didn’t do it, or at least not as much “it” as the government claims?  This is a pretty big problem for me, even if not for Bill.

But then, these are the sorts of things that criminal defense lawyers think about, and why nobody wants them to ruin an otherwise fun Federalist Society debate.


5 comments on “A System of “Complete Fools and Occasional Knaves”

  1. A Voice of Sanity

    “The media, which in no way took any time in doing the basic research …”

    Who could have predicted that? Stop laughing.

    BTW, “the occasional “knave” federal judges” … naive? Bad spell checker?

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