The Fantasy Prosecution League

With the Senate Judiciary Committee conducting hearings on the efficacy of mandatory minimums, and football season upon us, who would field a team to champion a concept that has proven itself an abject failure?  It’s the National District Attorneys Association, of course, with Executive Director “Mr. Scott Burns, Esq.“* as quarterback.

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested?

Don’t you just love football season? But Burns’ effort at capturing the feeling of competition falls short when he turns his attention to substantive claims.

Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

Yes, he really just argued that federal mandatory minimums can be used by state and local prosecutors to “leverage” cooperation.  Not just from defendants, but witnesses, who are always ripe to be threatened with decades of imprisonment to secure their “willing” cooperation and “truthful” testimony. Except this is utter, unadulterated nonsense.

Federal mandatory minimums have zero to do with state and local prosecutions. Is Burns clueless or does he suspect the Senate Judiciary Committee to be so lacking in grasp that they will not notice he got it all wrong?

US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.

You have to admire Burns’ facile use of “never, to my knowledge,” to claim “a myth the must be dispelled.”  If only there weren’t tens of thousands of bodies in prison due to mandatory minimums.  But as Burns goes on to explain, it’s their own fault:

Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.   It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison.

Apparently, Burns is neither familiar with federal courts or drug laws.  The only question I have is why so few of the prosecutors I’ve experienced are the ones Burns knows, because they rarely work with me “to look at every alternative but prison,” and most of the time use prison or more prison as their argument for a guilty plea.  Burns apparently has heard of plea bargaining:

While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge.

Or maybe the vast majority of those cases are every federal case, and the vast majority of which plead in any event with a defendant desperately scratching to get 121 months because it’s the mandatory minimum?  And Burns brings his point home:

Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

The home team takes ownership of lower crime rates and safer communities, ignoring the fundamental logical fallacy that correlation does not prove causation. But then, given that almost nothing in the Burns’ statement matches reality or makes sense, why not go for the logical Hail Mary pass to score?

What’s shocking about this isn’t that Burns’ contentions border on the idiotic, but that the premise behind them is that no one on the Senate Judiciary Committee will be sufficiently knowledgeable to realize it. These are the people who create cool ideas like mandatory minimums, not to mention the laws for which they’re imposed, and yet the NDAA assumes them to be so detached and clueless as to not throw tomatoes at their spokesman for wasting their time spouting such absurd claims.

Burns’ statement is substantively wrong on almost a line by line basis. It’s shallow and empty, and relies on flagrant wiggle words to keep him from committing perjury before the Senate. Yet, it’s not only the best he can muster, but possibly sufficient to capture the attention of the committee.

Remember the football metaphor?  It may not be gracious to run up the score on the pathetic Philadelphia Eagles, but against criminals?  Except a sentence should be no greater than that which is necessary to achieve its legitimate purposes, not as harsh as a prosecutor can get away with.  Too bad Burns doesn’t know the law. I wonder if the Senators do?

H/T Doug Berman

* For the record, you do not use both the honorific “Esq.” and “Mr.” at the same time. It’s one or the other, but never both. And while it’s one thing to put “Esq.” at the end of another lawyer’s name, to do so to oneself is just pompous and tacky.

9 comments on “The Fantasy Prosecution League

  1. REvers

    You missed the real story here: How in the hell did the NDAA manage to hire somebody that lives on another planet?

    1. Ultraviolet admin

      Also, can we visit his planet? It sounds like a nice place where prosecutors think about the public good in sentencing, don’t threaten innocents with harsh mandatory minimums, and use alternative sentencing. Heck, do they offer reciprocity with any US jurisidictions?

  2. Wheeze The People™

    Well, to change the sport on ya but still keeping with the sports metaphor in general (as well as adding a bit of a tribute to one of the all time greats), I quote: “Oh, put me in, Coach, I’m ready to play, today, Put me in, Coach, I’m ready to play, today, Look at me, gotta be . . .”

  3. Matt James

    What caught my eye is his comment about the harsh outcomes coming from those who reject pleas and go to trial, which somehow makes it okay. With the latest debates on gun control rising again, I have to ask myself: why doesn’t anyone care about the right to a trial? It seems that we have a cultural assumption that trials are annoying things we have to deal with, rather than an important and fundamental Constitutional right that makes sure the people who are convicted are ACTUALLY guilty. We have the legal concept of “chilling free speech” but we have no correlation for the right to criminal trial.

    Of course, my cynical side says it’s because there’s not much money in defending the right to trial and the only reason this debate is coming up is because the Feds are short on money and don’t want to pay to keep people in prison.

    1. SHG Post author

      The trial tax argument, which has been discussed here many times, is something of a problematic issue, as many (wrongly, in my view) use that as an argument to do away with plea bargaining. In other words, it opens up a different can of worms with its own assortment of problems.

  4. Nigel Declan

    He sounds like a billionaire who claims that there is no problem with income inequality, since he personally doesn’t know anybody with a net worth less than $100 million dollars, without recognizing or acknowledging the fact that the only people he knows are those he meets at the private club of which only the extremely rich are members. It wouldn’t surprise me if Mr. Scott Burns, Esq. spent all his free time socializing with other prosecutors who have similarly fallen under the mandatory minimums spell, perhaps competing to see whose defendants were collectively sentenced to the greater number of months in a slightly different sort of “fantasy prosecution league”.

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