It is both odd and unfortunate that Attorney General Eric Holder wants to turn back the clock on a sentencing system that works in favor of one that fails. Two generations ago, in the '60s and '70s, we believed we could uniformly trust judges to get it right at sentencing, with no binding input from Congress. The result was a national crime wave. Big cities, for example, had twice the amount of murder they have now.
By the '80s, we had learned our lesson and embraced determinate sentencing. That meant sentencing guidelines and, for a few very serious offenses, mandatory minimums below which the judge couldn't go.
From the early '90s to the present day, there's been a 50 percent reduction in crime – levels not seen since the baby boomers were in grade school. This massive increase in our ability to live in peace and safety has been a moral and economic boom. Millions of ordinary people did not become crime victims and did not have to fork out to pay hospital bills or to replace stolen savings. Tougher sentencing and increased imprisonment did not alone produce these benefits, but they contributed significantly.
Now Attorney General Eric Holder wants to jeopardize all this by gutting mandatory minimum sentencing in federal court. He's proposed that, for the most part, federal prosecutors be barred from writing truthful indictments that, if proved, would require the defendant to get at least a minimum sentence.
The proposal is misconceived. First, Holder says he would limit his plan to "nonviolent" offenses. But that doesn't go nearly far enough; nonviolent offenses can be extremely harmful, if not lethal. Trafficking in heroin or methamphetamine is not, per se, violent, but it results in tremendous social damage, for which taxpayers have to pick up the bill. Those who sell these drugs to make a quick buck, no matter how "nonviolently," deserve at least a rock-bottom sentence that can't be watered down by an overly sympathetic or naive judge.
Sentencing has never been given over exclusively to the judge's discretion; instead, it has been a shared function. From the founding of the republic, the executive branch has had the ability to decide whether to bring a more or a less serious charge; the legislative branch has set the general parameters of sentencing ranges; and the judicial branch – the judge – has imposed the specific sentence. It is one thing, and wise, to give judges substantial discretion. It's another to give them all of it, exempt from checks and balances. Because judges vary widely in temperament, ideology and experience, letting individual ones decide without constraint what the sentence will be is sure to lead to irrational disparity. Without congressionally imposed floors, we'll go back to the luck-of-the-draw. Nearly identical defendants with similar records will get widely varying sentences based solely on whose courtroom they're assigned to.
Finally, existing law already provides an escape hatch for deserving defendants facing a tough mandatory minimum. Often, they can plea bargain their way to a lesser charge. Even if convicted under a mandatory minimum charge, however, the judge can sidestep the required sentence if the defendant has little criminal history, has not committed a violent act and comes clean about the extent of his crime. Also, a defendant can avoid a mandatory sentence by helping prosecutors bring other gang members to justice.
We tried the attorney general's version of the justice system before. It doesn't work. More realistic, law-guided sentencing does.
William Otis is an adjunct professor of law at Georgetown University and a former federal prosecutor.