In  comments to a recent post here, MIT professor  Barry Kort eloquently expressed some thoughts I found distressing.

I lost faith in the System of Justice a long long time ago, partly on the grounds of empirical evidence, and partly on the grounds of analytical theory.

As I see it, there are a number of systemic problems that impede our objective of crafting a peaceable society through the Rule of Law.

The first problem is that we lack a unified consensus on what to criminalize, what to legalize, and what to regulate.

The second problem is that enforcement, arrests, prosecutions, trials, and sentences are erratic at best and corrupt at worst. Many thoughtful people have serious misgivings about the functionality, fairness, and rationality of the criminal justice system.

The third, and most insidious problem is that the Crime and Punishment model is inherently flawed at the conceptual level, and is mathematically incapable of achieving the objective of crafting a peaceable society, because the system’s main tool is the haphazard application of state-sponsored violence under the color of law.

It’s not that I can take issue with his view in a vacuum, There isn’t a participant, at least on this side of the courtroom, who hasn’t shared his sense of futility and frustration.

My response to Barry was, in essence, that criminal defense lawyers don’t have the luxury of wallowing in the futility of the system. It’s not that we’re blind to its faults, but that the alternative is unthinkable. Do we give up, stay home and just let the politicians, police, government have its way with us? And so we fight.

The  New York Times offers an editorial calling for the “reform” of mandatory minimum sentences today. It’s unclear whether they are calling for their elimination or reduction. The Times has a habit of seeking to compromise an otherwise principled position. Baby steps, perhaps.

Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system.

Of course, Holder’s idea of improvement may not be the same as mine, or the Times’, 

The commission reported recently that in the 16-year period through fiscal year 2011, the annual number of federal offenders “increased substantially,” from 37,091 to 76,216. The commission previously explained that “excessively severe” mandatory minimum sentences added heavily to this increase and to overcrowding in prisons.

Always a curiosity, given the job of the USSC, that they would call mandatory minimum’s “excessively severe” while using them as the framework for offense levels.  What if, for example, the offense level for 50 kilograms of cocaine was set at 36 months, with enhancements for specific conduct? Sure, the mandatory minimum of 10 years would still apply, but not by the Commission’s hand. Did it occur to no one that they weren’t constrained by mandatory minimums when setting offense levels? Clearly not, as the numbers dovetail precisely with the “excessively severe” minimums. This isn’t an accident.

The Times then describes Eastern District Judge John Gleeson’s two recent, and bold, decisions in  Dossie and Diaz.

Federal judges are acutely aware of this issue. Judge John Gleeson of Federal District Court in Brooklyn, for one, has been a vigorous critic of mandatory minimum sentences.

The first sentence isn’t supported by the second. Judge Gleeson, whose career as a highly effective federal prosecutor would likely have cause many to doubt whether he was a good choice for an Article III judge, has consistently demonstrated a remarkable depth of understanding of the system and its flaws. He is not the norm. 

Whether, and to what extent, other federal judges share his views is something of a mystery. A few write opinions, make rulings and impose sentences that show they do. Most do not. Some are overtly hostile to arguments like Judge Gleeson, and adore the ease of use of the sentencing guidelines. A bit of basic math and another human being is whisked out of the courtroom to never be thought of again. Another case off the docket; a sentence that won’t be reversed.

This compounds the problem for low-level offenders, who make up 93 percent of those convicted of drug trafficking. Judge Gleeson called on the commission to fashion fair sentencing ranges based on an offender’s role and to reduce all sentencing ranges for drug trafficking by a third.

Like the statistics for rape, the statistics for drug offenders are suspect. Ask an AUSA and almost every co-conspirator is a major player. Ask a defendant and they’re just a cog in the wheel. But like those whose concerns are limited to the wrongfully convicted innocent, suggesting the guilty can rot in hell, the Times plays up the low-level offenders angle, even as Judge Gleeson knows better.  Reduce all drug sentencing ranges by a third. Not just the handful who are sufficiently sympathetic to warm a reporter’s cold heart, but all of them. 

The trouble with mandatory minimum sentences is that it is impossible to make them fair and just in every case. It’s time for the attorney general, Congress and the sentencing commission to reform this scheme.

By conditioning its argument with the phrase, “in every case,” the call for “reform” feeds the concerns of Barry Kort. But forget the New York Times’ editorial, and look instead to the real effort of an Article III judge, John Gleeson. As wiggly, confused and compromised as the unprincipled editorial may be, the two opinions of Judge Gleeson are precise and painstakingly grounded in reason.  

Barry Kort may feel defeated, that the system is beyond salvation and, even if it could be tuned up to function at its best, would still fail because the underlying concept, the Crime and Punishment model, is “mathematically incapable of achieving the objective of crafting a peaceable society.”  Maybe so. Maybe a new Age of Enlightenment will come and we will abandon this failed experiment in crime and punishment.

In the meantime, however, we have judges like John Gleeson, and we do better by continuing to fight, to argue, to persuade, others to appreciate and follow his lead. As long as defendants are prosecuted, we don’t have the luxury of feeling defeated and giving up.