George Will recently published an interesting column on a bill that would give judges greater discretion to reduce mandatory minimum sentences for federal crimes, co-sponsored by Democratic Senator Patrick Leahy and Republican Rand Paul:
Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.
Such crimes are multiplying at a rate of more than 500 a decade…..
Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed….
The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge…
Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.
Unlike many other critics of overcriminalization, I don’t object to mandatory minimums as such. I think there is a good case for ensuring uniformity of sentencing across different judges. But there is also a strong case for lowering the very high minimums that currently exist for many relatively minor federal crimes. An even better way to rein in federal criminal law would be to abolish much of it completely. For many of the federal crimes currently on the books, we need a mandatory maximum of zero.
If we are really serious about curbing the expansion of federal criminal law, we will also have to pare back the War on Drugs), which accounts for the majority of all federal prisoners, and has led to some of the most constitutionally problematic extensions of federal power. Conservatives who want to enforce tight constraints on the scope of federal power must realize that this objective is incompatible with maintaining the present sweeping scope of federal drug prohibition. If the federal government can ban the possession of medical marijuana that was never sold in any market and never crossed state lines, it can ban virtually any other activity. Similarly, liberals who want to reduce our high incarceration rates must realize that the War on Drugs is responsible for a large part of the problem, Over 50% of federal prisoners and 20% of state prisoners are incarcerated for nonviolent drug offenses.
That said, given the proliferation of very high mandatory minimums for a wide range of federal crimes, the Leahy-Paul bill could well be an improvement over the status quo. If the realistic alternative to broad judicial discretion over sentencing is very high penalties for a variety of federal crimes many of which should not be on the books in the first place, the former is probably the lesser of the available evils.
UPDATE: I have corrected a couple minor but annoying typos in this post (a consequence of writing the initial version late at night).