In a speech to the National Association of Criminal Defense Lawyers today, Attorney General Eric Holder reiterated his criticism of mandatory minimum sentences, calling them "outdated and overly stringent." He also questioned the argument that mandatory minimums are necessary to encourage "cooperation":
Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence. As veteran prosecutors and defense attorneys surely recall—and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues—sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences. With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate. It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.
While Holder is obviously right that plea deals do not require mandatory minimums, there is evidence that increasingly draconian penalties have made defendants more inclined to forgo trials, to the point that 97 percent of federal defendants plead guilty. But if avoiding the inconvenience and expense of trials were the overriding goal, there would be no limit to the punishment that could be inflicted on reclacitrant defendants who insist on exercising their Sixth Amendment rights. If all crimes carried a mandatory death penalty, for instance, the "cooperation" rate probably would be even higher. But at some point the interests of justice have to outweigh the interests of prosecutors. We surely have passed that point when the penalty for going to trial can be spending the rest of your life in prison.