Former Prosecutors To Senate: Be Prosecutorish On Mandatory Minimums (Update)

Mike Riggs at FAMM sent over a link to the best blog on the interwebz for the loyal opposition, Crime & Consequences, where Bill Otis, government flack, announced a letter by former prosecutors to Senate majority and minority leaders admonishing them not to destroy America by passing the Smarter Sentencing Act.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a
mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

The letter is absolutely correct, that mandatory minimums are an “essential tool” in encouraging cooperation.  As for the efficacy of the safety valve, well, it makes for good press for those who don’t know any better, which they apparently think applies to Senators.  As for “great gains in reducing crime,” the maxim of logic that correlation doesn’t prove causation isn’t a favorite in Washington to begin with, since it gets in the way of a lot of political claims.

Otis doesn’t spend much time with the content of the letter, as it’s pedestrian and obvious, basic prosecutorial talking points, but he has far more to say about the signatories.

Several of the signatories immediately caught my eye.  The first is former Attorney General and United States District Judge Michael Mukasey.  I don’t know a single person in this town who does not regard Judge Mukasey as having anything other than the highest intellect, judgment and integrity.  Particularly noteworthy is the fact that Judge Mukasey was a sentencing judge for 18 years, when mandatory minimums were in full sway.  If in fact they go too far to tie judges’ hands, Judge Mukasey would be the first to know.

A second noteworthy signatory is former Deputy Attorney General George Terwilliger.  Mr. Terwilliger was left the DAG’s Office in 1993, and for the 20 years since then has been one of the most sought-after criminal defense lawyers for sophisticated and conspiracy cases.  A defense attorney of that long experience and high caliber is extremely unlikely to support continuation of a sentencing regime that savages present or potential future clients.

What first caught my eye was that nobody asked Otis to sign. but that was probably just an oversight.  But what then came to mind was the legal maxim, expressio unius est exclusio alterius.  There are hundreds, maybe thousands, of people who fit the bill as potential signatories to this letter.  And they didn’t sign.

A handful, a drop in the bucket, put their names to this letter.  A tidal wave of men and women whose careers as prosecutors made them natural allies to any cause that would facilitate the prosecutorial function by enabling the coercion of pleas and snitching through fear of outrageous mandatory minimums, and their names were nowhere to be found.  Like silence, absence can speak far, far louder.

Yet, there was another point Otis made that was disturbing.  As Otis notes, George Terwilliger left the DoJ more than 20 years ago, and has since worked on the other side. My side. And Terwilliger signed.

But Otis’ description of Terwilliger as a “criminal defense lawyer” Is a bit too facile, a bit disingenuous.  Terwilliger is a partner with Morgan, Lewis & Bockius in Washington, D.C., where he “specializes” in white collar defense, corporate investigations and compliance.  For those who aren’t familiar with these code words, this is the newspeak for private prosecution for corporations who seek to find someone to throw under the bus to show the government what the corporation is doing to avoid ever-larger fines.

When Otis suggests Terwilliger is a criminal defense lawyer, he’s playing fast and loose. He’s not one of mine.  I doubt he’s ever had anyone, ever, associated in any way, with unlawful drugs as a client.  When Otis contends that  “a defense attorney of that long experience and high caliber is extremely unlikely to support continuation of a sentencing regime that savages present or potential future clients,” he’s blowing smoke out his butt.

And since Bill’s no fool, and is well aware of the code words used by white collar corporate investigation mavens (which is where the monstrously huge money is, by the way), he knows he’s pulling a smoke and mirrors move to test whether anyone will call him out on his scam.

After seeing this letter, Doug Berman asked what it means. Does this suggest that the Smarter Sentencing Act is DOA, or does it mean that the forces of darkness are sufficiently afraid that it’s got enough life that they are still pounding the pavement to find people to sign onto such “mandatory minimums are groovy” letters.

Otis doesn’t quite answer Berman’s question, but argues that this letter adds to the weight that Democratic Senators who support Smarter Sentencing Act will expose themselves to being Willie Horton’d next election cycle.

If that is how Sen. Reid is thinking, what’s the likelihood that he’s going to put his most endangered Democratic colleagues to a vote that will correctly be portrayed as possibly saving money in the long run for prison costs, but at the price of slashing by half the minimum sentences that the very worst drug traffickers  — pushers of death-dealing stuff like heroin, meth and PCP  —  will get in federal court?

Forget that this shows that Otis either has no clue how sentencing works (he does) or is making an absurd misrepresentation by suggesting that the reduction of mandatory minimums means “the very worst drug traffickers” won’t be sentenced  to whatever terms the judges who sentence them think they should.

This is a game of chicken and stupid in Washington, and whenever that game is played, the prosecution has an advantage because of its facility at preying upon public ignorance.  But then, if there is broad, non-partisan support for the Smarter Sentencing Act, then the threat of being Willie Horton’d loses its mojo.

And if the thimble full of ex-prosecutors who signed onto this letter didn’t fear that conservatives have come to realize that they’re spewing the failed nonsense that brought them Prison Nation, they wouldn’t have bothered.  The Smarter Sentencing Act isn’t dead yet, and this letter shows it. There’s no reason to kick a corpse.

Update:  C&C has posted another letter, this one unavailable elsewhere, purportedly from Sens. “Chuck Grassley, John Cornyn and Jeff Sessions,” urging their fellow senators to reject the SSA.  This development gives rise to Berman’s puzzlement:

I assume this letter really exists, and I hope to be able to provide a link to an official public release of this letter shortly.  But I am finding it now more than a bit peculiar and troublesome that Bill Otis and Crime & Consequences has seemingly become the (un)official reporter of official opposition to the Smarter Sentencing Act.   These developments reinforce my fear that Bill Otis and perhaps some other unnamed lobbyists and partisans are playing a very significant and cloistered role in seeking to derail any new federal sentencing reforms in Congress.

Ya think?

 

4 thoughts on “Former Prosecutors To Senate: Be Prosecutorish On Mandatory Minimums (Update)

  1. Tim Cushing

    “Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player, and cooperates with federal authorities. This ‘safety valve,’ as it’s known, has been in the law for almost 20 years. ”

    Perhaps I’m seeing this the wrong way, being a layperson and all that, but any ‘safety valve’ that involves snitching on bigger players who are more prone to ‘engage in violence’ doesn’t seem very ‘safe’ to me. A slightly-reduced sentence in exchange for a possibly greatly-reduced life?

    “Our current sentencing framework has kept us safe and should be preserved.”

    Noted that this “us” does NOT include defendants.

    1. SHG Post author

      There are two separate paths to avoid mandatory minimums. One is a 5K1.1 letter, which is given by the prosecution for “substantial cooperation.” The other is the safety valve, which does not require cooperation.

      And no, by “us,” he refers to them, not the “us” that includes defendants and their families.

  2. Nigel Declan

    Maybe Bill Otis can see if Cesar Huerta Cantu will sign his letter, since Mr. Cantu likely has a bit of free time on his hands and knows a thing or two about minimum sentences…

  3. Pingback: The Fallacy of Sentencing Deference | Simple Justice

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