Sentencing Reform

Rand Paul and Bipartisan Allies Want to Give Judges More Say in Sentencing

"Get politicians out of the way and let judges judge," as bill co-sponsor Sen. Patrick Leahy put it.

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This week Sen. Rand Paul (R-Ky.) and Sen. Patrick Leahy (D-Vt.) reintroduced a sentencing-reform bill that would give federal judges more discretion in handing out punishments. As it stands, mandatory minimum sentencing laws require judges to sentence individuals in a paint-by-the-numbers way, with no regard for mitigating circumstances. Under Paul and Leahy's "Justice Safety Valve Act," existing mandatory minimum laws would remain intact, but federal judges would have the authority to ignore them, more or less. 

A companion bill, which also has bipartisan support, was introduced in the House by Reps. Thomas Massie (R-Ky.) and Bobby Scott (D-Va.). 

Mandatory minimums were initially conceived of as a way to bring more fairness to sentencing: you do X crime, you get Y punishment, no exceptions. Deferring to the discretion of judges was seen as too risky, too rife with potential for bias. But in practice, mandatory minimums still reflect ample (racial, class, and cultural) biases, since lawmakers had to choose which crimes get mandatory minimums, and what those minimums would be. Unsurprisingly, drug-related offenses are among those most likely to come with harsh mandatory minimums (with crack users long subject to longer minimums than users of cocaine). 

"These sentences disproportionately affect minorities and low-income communities, while doing little to keep us safe," Paul said.

They have done remarkably well at swelling federal prisions, however. "Since mandatory sentencing began, America's prison population has quadrupled, to 2.4 million," said Paul. "America now jails a higher percentage of its citizens than any other country due to mandatory minimum sentences." 

Reforming sentencing laws is not only the right thing to do, it will save us money, according to Paul and Leahy. "This bill offers a simple solution. Get politicians out of the way and let judges judge," Sen. Leahy said.

But not everyone in Congress is enthusiastic about abandoning "tough-on-crime" policies and rhetoric. "It remains unclear if sentencing reform will gain enough traction to clear opposition from several prominent members of the Senate Republican Conference," writes David McCabe at The Hill.  

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  1. I’m really having trouble seeing the difference between Rand Paul and Hitler.

    1. Its just the accent and the hairstyle, apparently

    2. Rand doesn’t have a mustache and doesn’t dress as well.

      1. I know, he should hire Hugo Boss to do his wardrobe

        1. And polish his jackboots with the tears of an eight year old sweatshop laborer.

  2. The big thing is that mandatory minimums didn’t eliminate arbitrary sentences. They just put the arbitrary sentences in the hands of district attorneys instead of judges. (Since even with man-mins, the DA can choose what charge to bring, and can threaten in order to get a plea.) Overall, I think it’s worse.

    1. They are made worse by the complete breakdown of the clemency and pardon system. In England anyone convicted of a felony received the death penalty. Now there is a minimum mandatory for you.

      That rule, however, did not result in nearly as much injustice as you would think it would have. The reason was that every sentence was appealed to the King and most death sentences for all but the worst felonies were commuted to something more just.

      Our system was set up to work the same way. Governors and the President have commutation and pardon power like the English King once did. The problem is that at some point they stopped using it. Obama could undo all of the unjust effects of these laws with a few strokes of a pen. He could set up a committee in DOJ to review the sentence of every federal offender and then use his commutation power to eliminate any injustice sentence. Moreover, in doing so he would be acting exactly as the founder and the Constitution intended him to act.

      He will never do that however and nor will any state governor. Pardons and commutations go only to cronies whose families can donate enough cash to the right campaign coffers.

      1. True. Unfortunately it’s a strike against Scott Walker, who has not pardoned a single person, not appointed anyone to the state Pardons Board, and has said that he has done so basically because he believes that everyone found guilty deserves to be there. He’s considerably worse than the low bar of even most governors.

        1. That is a terrible strike against him. Even otherwise decent people like Walker seemed to have lost any sense of humanity or justice on these issues.

          It is amazing. I am a pretty hard person. I have participated in the justice system and been a part of sending people to prison for a very long time. Yet, even I understand there is something very wrong here. Yet so many other people who should know better don’t.

  3. Sentencing guidelines are an attack on the foundation of our justice system. Our entire system is based on the idea that every case is individual and every defendant deserves to be judged by his own merits and that of the crime. We do not for example allow the government to argue that a convicted person be punished more because “this sort of crime has become a real problem in the community” or “we let people off easy for this crime before now and this is what we get”. The government also can’t argue that because a co-conspirator got 20 years in a separate trial for the same crime, this convicted person deserves the same. Sentencing guidelines deprive a person of individual justice just as much as those examples do.

    These things really are the result of the insular and protective nature of our ruling class. At some point our ruling class decided that no one within it could ever be held accountable. This protection of course extended to judges. So, when judges stopped doing justice to the public’s satisfaction and let real criminals off with unjust sentences, nothing was done to hold them accountable. We couldn’t fire a federal judge and treat him like one of the little people. So deprived of a means to hold judges accountable, the public took away their discretion in sentencing and in the process deprived defendants of a fair hearing.

    1. So, when judges stopped doing justice to the public’s satisfaction

      Problem is that the public’s satisfaction often has nothing to do with the law. Whether or not a particular defendent actually broke the law is irrelevant; it’s whether or not the public, in aggregate, likes them or not.

      1. Doens’t matter. The entire purpose of the criminal justice system is to give society justice in crimes so they don’t take getting it into their own hands.

        Sure, judges should not bow to the mob. And just because the public is unhappy with the result of one case is no reason to change the result of that case.

        In the aggregate, however, any functional justice system has to provide the people its server with a satisfactory sense of justice. If it doesn’t, the people will eventually act to ensure it does.

        That is what happened with sentencing guidelines. Federal courts in the 60s and 70s stopped doing justice in a manner that was satisfactory to the public. Rather than start lynching people, the public got Congress to take the power of sentencing away from judges altogether. The proper solution would have been to impeach the most egregious judges and corrected the system.

        1. Wow, so you’re actually arguing that if the general public wants to punish the innocent, the courts should just conduct show trials to give them however many scalps are required to keep the mob happy, regardless of how many lives are destroyed in the process.

          1. Wow, SD. Talk about reading comprehension failure. Do you try to be that stupid or does it come naturally?

          2. Wow, so you’re actually arguing that if the general public wants to punish the innocent,

            No. You are completely missing the point. Convicting innocent people is another issue. We are talking about sentences for guilty people. Why should someone who steals get ten years in prison and someone who rapes or someone who beats somebody up get some other sentence? That answer to that question is up to society at large. Of course society can be wrong. There are some extreme cases where society is very wrong and should be ignored.

            But society can be right too. And that is what happened in the 70s. Judges were letting defendants off with unjust sentences at the complete expense of the victims and the public got fed up with it. What should have happened was the judges who were doing that should have been impeached. Since that never happens, the public took matters into their own hands and just took the ability to give light sentences away from judges entirely.

            Did you feel the breeze as my point went straight over your head?

            1. Why should someone who steals get ten years in prison and someone who rapes or someone who beats somebody up get some other sentence? That answer to that question is up to society at large.

              Suppose society at large gets more upset when a middle class white person gets beat up than when a poor black person gets up? Should that racial disparity be allowed to persist in sentencing because we want to “serve with a satisfactory sense of justice”?

              1. Which part of Of course society can be wrong. There are some extreme cases where society is very wrong and should be ignored. do you not understand?

                Just because the public should in some extreme cases not be listened to doesn’t mean the justice system as a whole and in most cases shouldn’t represent and respond to the public’s sense of fairness and justice.

                1. The problem isn’t just “some extreme cases”. Racial disparities in sentencing are routine.

                  1. Sure they are. But so what? No system is perfect and every system is going to reflect the biases of the society that makes it up.

                    The fact is that all things being equal you are going to get a more harsh sentence for raping a white college girl that you will for raping a black hooker. That sucks but there is no way to avoid that without going to a once size fits all sentencing system like this one.

                    Indeed, one of the biggest harms associated with minimum mandatory sentences was the harsher sentences for crack. What people often fail to mention is that that disparity was created at the request of black community leaders because they felt the current system didn’t take crimes that affected the black community as seriously as those that affected the white community.

                    Look Stormy, you either believe in judges or juries doing justice in each case or you don’t. If you don’t and think they are all too racist to be trusted, then you better start supporting a system of mandated sentences because that is the only way to get around that.

          3. That’s not what he’s arguing. Not by a long shot.

            The public dissatisfaction John’s referencing wasn’t with “people being let off on a technicality” or an insufficient number of convictions. It was with judges giving sentences that were viewed as inordinately light for serious crimes after a guilty verdict had been reached.

            1. It was with judges giving sentences that were viewed as inordinately light for serious crimes after a guilty verdict had been reached.

              Yes, but were the verdicts in question actually inordinately light? Or were they actually the standard sentence for the case in question, but failed to satisfy the public because they’d gotten a bug their ass about that particular defendent?

              1. Yes, but were the verdicts in question actually inordinately light?

                Yes, they were. The reaction was out of proportion to the harm, but the harm was real. And the only reason the public resorted to such a extreme solution is because it was the only one available to them.

          4. Did you skip John’s second paragraph, Stormy?

            1. No, but the second paragraph is contradicted by the rest of the response. It’s basically, “Judges should try to placate the mob, but if confronted by a group of agitated members of the public they should endevour to tailor their actions in a manner intended to calm this agitation”. The second clause completely negates the first.

              1. Stormy,

                Judges have a duty to do justice in every case. That means ignoring the mob when it is demanding an innocent person be lynch.

                It also means that judges can’t ignore the public’s legitimate demand for punishment in the name of whatever pet ideology the judge holds. You seem to completely deny the second part of that. Let me put it in plain terms.

                Just because judges have a duty to ignore the mob demanding an unjustly light sentence doesn’t give them the right to impose an unjustly light sentence that rightly offends the public’s legitimate demand for justice.

                That is what was happening in the 1970s and that is why we got stuck with these laws.

                1. I fucked it up. Let me say it again.

                  Just because judges have a duty to ignore the mob demanding an unjustly harsh sentence doesn’t give judges the right to impose an unjustly light sentence that rightly offends the public’s legitimate demand for justice.

  4. Judges are lawyers in black. Mandatory minimums are bad, but having your sentence be determined by the mood of the asshole in the robe might not be much better.

    1. Might not be much better, but I’ll take the assholes in robes over the District Attorney (or the University panel).

    2. Someone has to determine your sentence. If you don’t trust judges, why do you trust jurors? And if you want to give every defendant the right to sentence by jury, I wouldn’t oppose that.

      No system is perfect. Every case is different and the range of just sentences different in every case because the circumstances are different. If you don’t judge every case individually, you will rarely if ever get a just result.

      Further, you limit the harm judges can do by limiting the sentences for any particular crime.

    3. having your sentence be determined by the mood of the asshole in the robe might not be much better.

      There is some truth to that, but OTOH, I want him to have the leeway to base his judgment upon the particulars of the case. Stealing a car to rush your baby to the hospital isn’t the same as stealing a car to chop it.

      1. Yes. If you have committed a particularly egregious crime or a crime under particularly aggravating circumstances, minimum sentences have no effect on you, since you sentence is going to be well above the minimum. They only affect you if you have a a compelling mitigation case. They are just the government telling the public “it doesn’t matter if you had a good reason to do this or a sympathetic enough story to convince a judge or jury of your peers you deserve a light sentence, you are getting a harsh one anyway”. Sure, they will prevent an odd judge or jury from giving someone an unjustly light sentence. For every case like that, however, there will be a hundred cases where they imposed a harsh sentence on someone who deserved a light one.

  5. Shorter GOP = “Where’s the money in *not* jailing people?”

  6. Not a silver bullet but certainly a step in the right direction. A better step toward fixing the obscene number of inmates we have in this country would be decriminalizing drug offenses.

  7. And so the pendulum swings. Mandatory minimums came up in the ’70s (IIRC) due to regular public outrage about violent criminals getting off with little or no punishment. So of course things were “reformed,” and the reforms went to far and had bad consequences, and so now we’re going to “fix” things by going back to the old system.

    Sometimes it’s hard to avoid cynicism about politics.

    1. When these things first became law, the federal public defenders had a saying; “In response to some rich guys getting off with no jail time, Congress passed these laws to ensure those rich guys got a little jail time and everyone else now would spend the rest of their life in federal prison”.

      There was some real truth to that. And now that the pendulum is swinging back, I am with you in being cynical and thinking that instead of this resulting in deserving people getting lighter sentences, it will result in undeserving cronies or real scum bags who are lucky enough to go before a full retard Prog judge getting lighter sentences and everyone else still getting screwed.

    2. Cheer up. We had a system, it wasn’t working, so we tried something different. That isn’t working, so we’re going back. It isn’t perfect and it has taken too long to change course, but the fact that there actually is the desire for more just outcomes and the ability to admit that a “solution” didn’t work is a good thing.

      1. That is a good point. If nothing else, this happening would prove that bad laws can sometimes be undone. That is a very good thing.

      2. Good point. If all bad reforms were rolled back, I’d be a happy guy.

    3. It would be nice if we started distinguishing between violent recidivists and other convicts, but I suspect that a “swing of the pendulum” will reduce everyone’s sentence…until some convicted rapist/burglar gets turned loose to commit another crime, and in the resulting outrage sentences will be increased for all crimes, and the circle of life will continue.

      1. Don’t forget the “we should be like Europe” crowd which wants us to emulate their softness toward *violent* offenders.

        Though why these guys would every want to leave prison I don’t know.

        http://www.businessinsider.com…..aw-2014-10

      2. What the public actually wants is:

        1. Me, my friends, and family should be left off with stern finger wagging; anything else is unjustly harsh
        2. People who commit crimes against me, my friends, and family should all be executed; anything else is unjustly lenient.
        3. The real purpose of a trail is to determine whether a person is more likely to be a future member of group 1 or group 2.

        The pendulum swinging is because it’s hard to actually implement the above while pretending we actually care about justice.

        1. Well Stormy, as far as number one and two go, that is why we don’t left people connected to a case, either the victim or the accused, serve as judges and juries. You are just describing human nature. So what?

          And if you believe that number three describes most people, then you must not believe in the jury system. If you don’t think people can be trusted to do justice, you sure as hell can’t believe that can be trusted to serve on juries.

          All of your points argue for minimum and strict statutory sentencing. If people are so racist and bigoted they can’t be trusted, the solution is to take away their authority.

          1. I don’t think it’s racism in the “ooo, I want to get that black guy good” sense, but more in the sense that people tend to be unconciously more sympathetic to people they perceive being more like themselves and that this effects their actions.

            1. See my point below in response to Azathoth. If what you say is true, and it might be, mandatory minimum sentencing harmed whites more than it did blacks.

  8. This post misses the main problem with mandatory minimums. Its not that “lawmakers had to choose which crimes get mandatory minimums, and what those minimums would be.” Instead, it’s that prosecutors get to choose which crimes they charge and can use crimes that have high mandatory minimums to bludgeon defendants into guilty pleas. Putting the sentence into the hands of the judge significantly reduces the prosecutors power.

    1. Yes it does. As I said above minimum mandatory sentences deprive people of the right to justice for their crime. By doing that, they allow prosecutors to perpetrate huge injustices, especially since there are so many crimes on the books.

      Not every case of say “lying to investigators” or “tax fraud” is the same. Some people lie to investigators in ways that cause real harm. Some people do it in very minor ways that make no real difference. In the same way some people are real crooks while other people do something small or make an honest mistake.

      Minimum mandatory sentences allow prosecutors to wield the threat of enormous punishment for what is in fact a minor crime. The real criminal isn’t affected by them since his sentence is likely to be above the minimum. The only people whom they affect are people that have real mitigation cases and would if judged fairly receive a light sentence.

      1. And of course as this article points out these problems overwhelmingly lie in the federal system

  9. Often underlooked, the US Sentencing Commission was one of those little-known, unaccountable and unnecessary layers of government making things worse for everyone except its employees.

    1. The system is so Byzantine it created an entire new area of law practice. There are attorneys who make a nice living doing nothing but appealing sentencing calculations that courts have gotten wrong.

  10. Mandatory Minimums is a clear violation of the whole “separation of doodies” thing that the gummint likes to pretend it gives a crap about.

    But the judicial can blame the legislature, the legislature can blame the legislature from decades ago, and the executive can play golf.

    The system sucks.

  11. But in practice, mandatory minimums still reflect ample (racial, class, and cultural) biases, since lawmakers had to choose which crimes get mandatory minimums, and what those minimums would be. Unsurprisingly, drug-related offenses are among those most likely to come with harsh mandatory minimums (with crack users long subject to longer minimums than users of cocaine).

    In practice, mandatory minimums are incapable of reflecting bias–because all they do is say ‘do X crime, get Y sentence’. And the idea that the crimes that have mandatory minimums attached shows bias in the choice is asinine ‘disparate impact’ theory being trotted out as if any libertarian should do anything but spit on it..

    But then–the crack sentence lie is treated as fact once again. So maybe I shouldn’t be surprised.

    The sentences for people convicted of crimes that dealt with crack were demanded by activists in the black community. That’s not a disparate impact–it’s discretionary.

    And that –discretionary– is why we have man/mins at all. No matter how upstanding, no matter how fair, ANY sentence will eventually have some idiot screaming about bias or racism on the part of a judge or bias or racism on the part of a man/min sentence IF the racial breakdown of those convicted does not conform to the arbitrarily set quotas of the racial ignorati.

    Mandatory minimums were the easiest solution. They still are. They’re just not perfect.

    Because nothing is.

    1. All good points. Here is the other thing. If the assumption is that black defendants can never get a fair shake from a jury or judge, then minimum sentences are unlikely to disproportionately affect black defendants. Minimum sentences affect people who would otherwise have received lighter ones. If you are getting 15 years anyway, the ten year minimum doesn’t matter.

      If it really is true that under the old system black defendants were getting treated worse than white ones, minimum sentencing harmed white defendants the most because they are the ones who were most likely to benefit judges and juries giving light sentences.

    2. “the crack sentence lie is treated as fact once again”

      Exactly. I’m so fucking tired of hearing that. Evidently the 80’s is too far back in history to fact check.

    3. “Mandatory minimums were the easiest solution. They still are. They’re just not perfect.”

      Yeap, and in terms of crimes where there are actual victims, its not just about punishment, its about justice. If I have no confidence that I am going to get justice by going through the system, then I’m not going to go through the system. I’m guessing even with manditory minimums the perp would be better off than with letting me decide proper retribution.

      1. Oh, and all drugs should be legal so…

  12. It always amazes me that the same people that will blast away at disparate impact theory Logic will embrace it in other cases, as people above correctly point out

    Hey, violent crime laws have a MASSIVE disparate impact: they affect men, a minority about 8 times as often as women

    The same is true of police shootings

    96%+ of those shot by police are men

    I have yet to see the disparate impact race hustlers decry massive police sexism in deadly force too

    OPPRESSION!!!!!!!!!!!

    1. Suddenly, I’m hungry for a BLT.

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  14. It isn’t just the pigs who are corrupt, it is the entire legal system. While I understand Paul’s reasoning, this isn’t going to fix the problems. For example:

    https://reason.com/blog/2015/02…..l-courtesy

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