Former Prosecutors Rip Paul, Leahy Push for Sentencing Leniency

Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) on Wednesday pitched a bipartisan effort give federal judges more flexibility to ignore mandatory-minimum sentences, and they criticized Attorney General Jeff Sessions’ new instructions to prosecutors.

The Justice Safety Valve Act would make all federal defendants eligible for a provision that currently applies only to certain lower-level defendants facing mandatory minimums.

“We both feel that judges should have more discretion. There is example after example of tragedies in the criminal justice system.”

“We both feel that judges should have more discretion,” Paul said on a conference call with reporters Wednesday. “There is example after example of tragedies in the criminal justice system.”

Leahy added, “People feel all we have to do is impose stiffer penalties, and crime will stop. Well, we’ve found that doesn’t work. And we’ve also found that one size doesn’t fit all.”

Lawrence Leiser, president of the National Association of Assistant U.S. Attorneys, said sentencing laws ensure consistent punishment across the country.

“We oppose any change to the current mandatory system,” he said.

Leiser said the threat of long prison terms is a powerful tool for prosecutors to win cooperation from defendants. Judges, at the request of prosecutors, can impose shorter sentences on defendants who offer “substantial assistance” to law enforcement officials.

“Your only out is to cooperate and let us go up the food chain,” he said.

William Otis, a former federal prosecutor who now teaches at Georgetown University’s law school, agreed that losing the stick of mandatory minimums would make it harder for prosecutors to break up criminal enterprises. He said a steady buildup of the U.S. prison population through longer sentences coincided with a long decline in crime.

Judges ‘Did Awful Job’ With Discretion
That trend stands in stark contrast with steadily rising crime rates from the 1960s through the early 1980s when judges had maximum discretion, Otis said.

“The reason we cut back on discretion of judges is that they did an awful job of using it,” he said.

But Leahy argued that relying on incarceration for drug offenses to too costly.

Paul offered several examples of unjust sentences required by mandatory minimums:

• John Horner, a first-time offender who sold pain pills to a friend who turned out to be an undercover law enforcement official. A Florida judge sentence him to received a 25-year sentence.
• Edward Clay, an 18-year-old, first-time offender sentenced to 10 years in prison after he was caught with 2 ounces of cocaine.
• Weldon Angelos, who was serving a 25-year prison sentence — reduced from the original 55 years — for selling a few pounds of marijuana while in possession of firearms. A judge ordered his release after 13 years after a request by the prosecutor.

Paul said he believes mandatory minimum sentencing disproportionately impacts minorities but added, “It’s an injustice to people of all races.”

Otis said there already are three remedies to correct injustices — the current “safety valve” for low-level, non-violent offenders; the leniency that prosecutors can ask for to reward cooperation; and the president’s clemency powers.

Leahy acknowledged that it will be a heavy lift to pass the bill, although Paul expressed optimism.

“The key is in the Senate,” he said. “This is one of the few things we have seen strong bipartisan support for.”

Doubts About Bill’s Chances
Otis expressed doubts about the bill’s political viability. He noted that Paul and Leahy introduced similar legislation several years ago when the Vermont Democrat was chairman of the Judiciary Committee and his party controlled the Senate.

“It had so little support then that Leahy didn’t even bring it up for a vote even though he was and is a co-sponsor,” he said.

At the time, Otis said, crime was falling. But now crime has ticked upward two straight years, and the country is experiencing an opioid epidemic.

Still, Paul said he has engaged with members of President Donald Trump’s administration who he believes are receptive. Trump’s son-in-law, Jared Kushner, reportedly met in March with senators about the issue.

“I don’t think it’s impossible … We haven’t given up on him [Trump],” he said.

One administration officials who Paul does not expect to help is Sessions. Paul said he was “surprised by how aggressive he’s moved in the opposite direction … His policy will have an effect if it sends as in the wrong direction.”

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That is a reference to a memo that Sessions sent last week to U.S. attorneys instructing them to charge defendants with the most serious offenses they can prove. That reverses a policy implemented by former Attorney General Eric Holder.

“Jeff Sessions is really making a mistake,” Leahy said. “He’s saying one size fits all.”

Leiser, of the prosecutors’ association, noted that the guidance Sessions argued is similar to memos written by Attorney Generals Ben Civiletti in 1981, Dick Thornburgh in the 1980s and John Ashcroft in the 2000s. After the Supreme Court in a landmark case ruled that sentencing guidelines could not be mandatory, then-Deputy Attorney James Comey in 2005 gave guidance to federal prosecutors on how to maintain consistency.

“In order to do our part in avoiding unwarranted disparities, federal prosecutors must continue to charge and pursue the most serious readily provable offenses,” he wrote.

Said Leiser: “All Attorney General Sessions is doing is going back to a policy that served our country well and protected our people for a long period of time.”