Andy begins with a quote he says he heard from a judge back when he was a baby prosecutor in the Southern District of New York.
I know you lied in your testimony, but I understand why you believed you had to do it.”
If there was an audible sound in the courtroom after these words left the lips of the sentencing judge, it was my jaw caroming off the floor. I was a young prosecutor and it was the mid Eighties, before federal sentencing reforms substituted the public’s sensibilities for the judges’ in the matter of serious crime.
He goes on to claim that the judge then let a defendant, convicted of selling coke, compounded by perjury, walk. No cite. No case name. No nothing. I call bullshit. Before the sentencing guidelines were held mandatory in Mistretta, no one walked out the door for drug dealing.
And, despite Andy’s adorably humble attribution to his “novice cross-examiner’s skills,” the same conclusion, if indeed it happened at all, would have been reached. It wasn’t the mad cross skillz of prosecutors that led to a judge concluding a defendant lied, but the pissing match between the virtuous special agent and the evil drug dealing defendant.
If it happened, it would have been the agent’s testimony that was found credible, regardless of what the defendant had to say. Because that’s how it worked in the early 1980s. Still does today, when there’s no video to prove otherwise.
Despite his role as prosecutorial attack dog, Andrew McCarthy wasn’t a bad guy as a prosecutor. I remember him being a straight shooter, doing his job, playing hard but fair. While I can’t recall any specifics from a case we had together, I also can’t remember any issue with his handling of the case that suggested he played low-ball rather than hard-ball. That can’t be said of every prosecutor back then. Right judge?
But as Doug Berman notes, Andy’s attempt to justify mandatory minimums, using every trick in the rhetorical book, comes off more as parody than anything else.
What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about “gut feeling,” that it is problematic judges consider “every bounce of the due-process ball,” and that sentencing would be better if more attentive to every “call for a harsh sentence from the peanut gallery.” Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a “sociopath” that must be subject to severe punishment because surely they have committed “many more crimes than they are prosecuted for.”
And if anyone is going to hype the parody arguments for the prosecution, it’s Bill Otis.
I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo. Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.
No, that’s not from the Onion. That’s from Doug. How he managed to tap out those words without convulsing in laughter is beyond me, but you know how academic humor happens, one faint praise at a time.
Aside from Andy’s portrayal of federal court judges as a bunch of pinko, lily-livered criminal lovers, and one unnamed SDNY judge as a “notoriously defendant-friendly sentencer” among many, he does a fabulous job of setting up the scenario as one between the “public’s sensibilities” and criminal-coddling judges.
Thirty years have not dimmed the memory of what was then a commonplace. Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties.
Reagan? Giuliani, Andy’s former boss? These were gods to young conservatives back then, though today Reagan would be more likely castigated as Gorbachev’s boy-toy. Hell, Nelly Rockefeller would be on the list for Hillary’s running mate today. Things change.
But I remember, Andy. I remember what it was like to defend a drug dealer in the Southern District of New York. I remember what those judges were like, what they did, what they said. I remember how they sentenced. I remember because, like you, I was there. In fact, I was the guy at the table just a wee bit farther from the jury box, with the guy in shackles and a jumpsuit. I don’t remember any drug dealer walking out of the courtroom, whether mine or anyone else’s.
What I do remember, however, is that lawyers didn’t race to One St. Andrew’s Plaza to sneak their clients into a proffer session, since the first to rat won the 5K1.1 cheese. Before mandatory minimums, before Mistretta, defendants fought their cases, challenged the government’s accusations, and if they lost, took their sentence of imprisonment.
That all changed in 1989, when the sword hanging over their head doubled and tripled the sentences rammed down judge’s throats based only on the number of kilos an imaginative prosecutor could claim. Real drugs. Ghost drugs. Conspiracy allowed for some wild indictments, where the kid who fetched coffee for the guy who sold nickel bags could be charged like a drug kingpin.
And when they ran down to your office, begging to spill their guts about the big guy, their best friends, their mother, prosecutors were all too happy to listen. It was an embarrassment of riches, what with most criminal defense lawyers more concerned with traffic than guilt.
Remember that, Andy? I do. Good times, old friend. Good times. Of course you hate to see those good times end. What prosecutor wouldn’t?