Posted by Edmund R. Folsom, Esq., May 18, 2017.

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

Rand Paul is reintroducing legislation in the U.S. Congress, to give federal judges increased “safety valve” discretion to sentence people to less than the mandatory minimum sentence for the crimes they are convicted of.  If this passes without associated reductions in, or elimination of, mandatory minimum sentences themselves for a significant number of crimes, Wow! Just Wow!  Minimum mandatory sentences are a manifestation of distrust.  They reflect a consensus of the legislative branch of government that judges can’t be trusted to hand down tough enough sentences.  Because judges can’t be trusted, the legislature needs to write into law that judges are not allowed to hand down a sentence less than a prescribed mandatory minimum.  This way, the legislative branch removes from the judicial branch any discretion to impose a sentence below a certain absolute minimum.  But the discretion that is removed from the judicial branch simply migrates to the executive branch.  Prosecutors love mandatory minimum sentences.  Drug prosecutors in federal court depend heavily on their ability to turn defendants into witnesses against their friends, family and associates, by credibly threatening to send defendants away for a big chunk of the rest of their lives if they dare to stand up, shut up and take their punishment whole.  If you turn yourself into the government’s fair-haired snitch, you might earn a chance to see daylight outside a prison someday.  Or, you can refuse to roll over on your wife and your mom, and be guaranteed a 20-year mandatory minimum sentence.

How can a prosecutor offer a way out of a mandatory minimum sentence that a judge can do nothing about?   Prosecutors are part of the executive branch of government, and it is an executive branch function to decide what, if any, charges to pursue, that’s how.  Mandatory minimum sentences require pleading and proof of particular facts, so if a prosecutor withholds or strikes from the charging instrument any language alleging those aggravating facts, the court is not required to impose the mandatory minimum sentence.   In selecting the charge and the form of the charge, the prosecutor has the power, and therefore the discretion, to determine whether a particular minimum mandatory sentence must be imposed upon a particular defendant or not.   And prosecutors have a smorgasbord of possibilities from which to choose in selecting particular charges, and charge variations, to address a particular episode or course of criminal conduct.  The judge merely has the power, and discretion, to decide what sentence to impose within the range of punishment that the legislative branch has prescribed for the crime of conviction.

In the Obama administration, there was a consensus that federal penalty provisions, including mandatory minimum sentences, resulted in sentences far disproportionate to a lot of the conduct they were applied to – overkill, in other words.  The executive branch, through the Department of Justice, therefore exercised its discretion to not always charge the crime or crimes that carry the most draconian possible penalties to address each and every episode of prosecutable conduct.  In this way, the Obama Justice Department somewhat hobbled itself, in the sense that it might not always have squeezed a defendant with the most draconian possible threat to induce cooperation.  Last week, Attorney General Jeff Sessions issued a memo to all U.S. Attorneys, telling them not to do that anymore.  Sessions has ordered all U.S. Attorneys to charge the most serious possible offenses, with the most serious possible penalties, in every case they prosecute.  Not that everyone will actually receive the mandatory minimum sentences for those crimes, mind you…  Judges would have no choice but to hand down the mandatory minimums if the defendant were convicted of the crimes charged, but if the defendant becomes a fair-haired snitch for the government, the D.O.J. can choose to pave the way to something less than life in Bureau of Prisons custody.   In the view of A.G. Sessions, there is no hammer too big for the smallest job.   But then again, who prescribed the use of big hammers for small jobs in the first place, if not the U.S. Congress?

The new Sessions policy is causing gasps back at Congress, where a significant number of U.S. Senators have come to believe we have been indiscriminately pounding low-level drug offenders into the dirt for too long, to no good end.  Rand Paul is reintroducing legislation that would allow judges to sentence people below mandatory minimums in a broader range of circumstances than current legislation allows.  Say what?  Congress doesn’t trust the prosecutors?  If Congress had to enact mandatory minimum sentences in the first place because judges couldn’t be trusted to impose appropriate sentences, isn’t it strange for Congress to give judges the power to override the prosecutors it now can’t trust?   I have an idea for Congress.  If they decide that judges aren’t so bad after all, and that maybe judges can save us from the wreckage of mandatory minimum sentences and other draconian penalties recklessly applied, how about rolling back mandatory minimum sentences and some of the more draconian penalties Congress enacted in the first place?  This time, how about taking into account that when a legislature enacts penalties that can foreseeably be applied in appallingly unjust ways, those penalties will inevitably be applied in appallingly unjust ways?  Why does it always work that way?  Because people are people; whatever can be done will be done; any power that can be abused will be abused, etc.   Do outrageous penalty provisions and mandatory minimum sentences too often lead to absurd results?  If so, it seems worthwhile to consider that the outrageous penalties and mandatory minimum sentences are only there because they were enacted by Congress – in the case of mandatory minimums, Congress insisted on them!  What do you suppose Congress might be able to do about them at this point?  If draconian penalties provisions and mandatory minimums have created a problem, might it make good sense to remove the cause of the problem by rolling back some draconian penalty provisions and mandatory minimum sentences?  I suppose it’s very simple of me to think so.