WEBVTT - Mandatory Minimums and The Trial Tax 0:00:03.200 --> 0:00:05.480 If you will place your left hand on the Bible 0:00:05.559 --> 0:00:08.960 and raise your right hand, and please repeat after me, 0:00:09.200 --> 0:00:13.440 and I do solemnly swear, then titled action find the 0:00:13.480 --> 0:00:16.840 defendant guilty of the time. It makes no sense, it 0:00:16.880 --> 0:00:20.639 doesn't fit. If it doesn't fit, you must aquit. We 0:00:20.720 --> 0:00:23.160 all took the same of the office. We're all bound 0:00:23.320 --> 0:00:26.480 by that common commitment to support and defend the Constitution, 0:00:26.760 --> 0:00:29.560 to bear true faith in allegiance, to say that you 0:00:29.640 --> 0:00:32.680 faithfully discharge the duties of our office. Do you solemnly 0:00:32.760 --> 0:00:35.760 swear or affirm that the testimony you're about to give 0:00:35.800 --> 0:00:38.120 will be the truth, the whole truth, and nothing but 0:00:38.200 --> 0:00:42.440 the truth. From Tenderfoot TV and I Heart Radio, this 0:00:42.680 --> 0:00:51.839 is sworn. I'm your host, Philip Holloway. Usually when I've 0:00:51.880 --> 0:00:54.720 represented somebody that I believe was fully innocent, they were 0:00:54.760 --> 0:01:00.640 normally found not guilty. But the very last trial I 0:01:00.760 --> 0:01:06.880 had were three defendants who were charged with drug trafficking, 0:01:08.400 --> 0:01:13.280 and one of them I knew was innocent. It wasn't 0:01:13.280 --> 0:01:16.600 my client. My client without telling me he was guilty 0:01:16.680 --> 0:01:19.600 or not guilty. He told me that the other guys 0:01:19.720 --> 0:01:22.959 was innocent and that he felt terrible about it. He 0:01:23.080 --> 0:01:26.200 had just asked him to go to lunch, and they 0:01:26.240 --> 0:01:29.480 stopped by the drug house on the way to lunch. 0:01:30.959 --> 0:01:33.520 So then the third guy's lawyer, he said, you know, 0:01:33.680 --> 0:01:36.280 you know that defendant number two is innocent, don't you? 0:01:37.680 --> 0:01:40.880 His client had told him. My client had told me. 0:01:41.520 --> 0:01:44.679 Two family members who were closer to defend us one 0:01:44.720 --> 0:01:48.120 and three told me that two was innocent. And plus, 0:01:48.160 --> 0:01:51.520 having heard everything that happened, is not a doubt. My man, 0:01:51.760 --> 0:01:55.760 the guy was innocent. But as bad luck would have it, 0:01:55.880 --> 0:02:01.160 all three were convicted, and due to mandatory animum sentencing, 0:02:01.720 --> 0:02:05.280 they all got twenty five years. And so at the 0:02:05.320 --> 0:02:08.720 sentencing that J S YEA all ready for sentencing, I said, yeah, 0:02:08.760 --> 0:02:12.400 but my client wants to be sentenced first. The only 0:02:12.440 --> 0:02:15.800 thing my client said was that so and so was innocent. 0:02:16.600 --> 0:02:19.000 He didn't ask for a lenient senate. My client didn't 0:02:19.040 --> 0:02:22.720 ask for anything for himself. He just spoke on behalf 0:02:22.760 --> 0:02:25.680 of the defendant number two. But you know, the jury 0:02:25.680 --> 0:02:28.799 had just found him guilty, so they all three he 0:02:28.880 --> 0:02:43.480 got twenty five years. That was Ray Geary, a retired 0:02:43.639 --> 0:02:47.320 judge and defense attorney. Ray helped inspire me to enter 0:02:47.360 --> 0:02:50.960 private practice nearly two decades ago. And taught me a 0:02:51.080 --> 0:02:53.920 great many things that I now know about running a 0:02:54.000 --> 0:02:58.680 law practice. That story about Ray's last case features heavily 0:02:58.840 --> 0:03:02.680 the use of mand tory minimum sentencing, the topic of 0:03:02.720 --> 0:03:06.760 this episode. A mandatory minimum sentence is an amount of 0:03:06.880 --> 0:03:10.359 prison time that someone is required by law to serve 0:03:10.480 --> 0:03:15.000 for a particular crime. These laws are enacted by legislatures, 0:03:15.040 --> 0:03:18.720 and they make the legislatures rather than judges, responsible for 0:03:18.880 --> 0:03:22.280 sentencing in a given case. There is a lot of 0:03:22.320 --> 0:03:26.080 debate about mandatory minimum prison sentencing in the United States 0:03:26.240 --> 0:03:29.760 right now, and there is also a push for legislative 0:03:29.800 --> 0:03:33.080 reform that we see taking place around the US involving 0:03:33.200 --> 0:03:37.440 mandatory minimum sentencing. The first person we spoke to about 0:03:37.480 --> 0:03:42.520 this was Kevin Ring. My name is Kevin Ring, and 0:03:42.560 --> 0:03:46.240 I currently serve as president of FAN formerly Families Against 0:03:46.240 --> 0:03:52.520 Mandatory Minimums. Fam is a national criminal justice reform organization 0:03:52.600 --> 0:03:58.200 that's been around since Dedicated to the idea not controversial. 0:03:58.200 --> 0:04:00.960 We think that the punishment should fit the crime, that 0:04:01.040 --> 0:04:04.280 people should be sentences individuals for whatever crimes they commit, 0:04:04.760 --> 0:04:08.640 and that judges should have the authority to passion sentences 0:04:08.680 --> 0:04:13.880 that fit each crime. Usually Congress or a state legislature 0:04:14.440 --> 0:04:17.440 will say for a certain crime, anybody who violates it 0:04:17.480 --> 0:04:19.440 can get up to five years or up to ten 0:04:19.520 --> 0:04:24.400 years in prison. A mandatory minimum will say this person 0:04:24.440 --> 0:04:28.960 gets up to ten years, but no less than five years, 0:04:28.960 --> 0:04:32.520 so they set a floor under which a judge can't 0:04:32.560 --> 0:04:35.400 go even if they think the facts and circumstances of 0:04:35.480 --> 0:04:39.359 the case warranted. In the federal system, this is usually 0:04:39.360 --> 0:04:43.479 done with drugs. If you traffic five grams of math 0:04:43.560 --> 0:04:47.800 and fetamine, you get a five year mandatory minimum. That 0:04:47.880 --> 0:04:50.120 means it doesn't matter if you were the kingpin, the 0:04:50.160 --> 0:04:54.680 logo and the total pole. The five gram trigger requires 0:04:54.720 --> 0:04:57.720 a five year mandatory minimum prison sentence. So it's different 0:04:57.760 --> 0:05:00.760 in other sentences that don't carry these man tory penalties 0:05:01.120 --> 0:05:04.440 in that a judge loses discretion and once you're convictive 0:05:04.480 --> 0:05:08.919 of crime, the punishment is automatic. I was a Capitol 0:05:08.960 --> 0:05:13.800 Hill staffer in the early nineties. I was just like 0:05:13.920 --> 0:05:18.599 everybody else, twentysomething year old who knew nothing but thought 0:05:18.600 --> 0:05:24.520 I knew everything. I was a Republican conservative in my 0:05:24.680 --> 0:05:29.279 ideology matched that of the leaders at the time. Crime 0:05:29.360 --> 0:05:32.000 is out of control in the way to solve it 0:05:32.040 --> 0:05:35.440 is to throw the book at people. There weren't a 0:05:35.440 --> 0:05:38.040 lot of studies about mandatory minimums at the time because 0:05:38.040 --> 0:05:41.920 they had just come back into vogue in the mid eighties. 0:05:42.839 --> 0:05:45.440 So we knew the prison population was rising, but crime 0:05:45.560 --> 0:05:48.360 was falling, and so that did not dissuade us from 0:05:48.400 --> 0:05:51.560 thinking that this was a good answer. It was my 0:05:51.760 --> 0:05:55.159 turn to write a bill dealing with methamphetamine, which was 0:05:55.200 --> 0:06:00.400 now becoming a very aggressive drug across the country. I said, well, 0:06:00.440 --> 0:06:02.280 here's the answer. Then we'll just make the penalties for 0:06:02.360 --> 0:06:06.000 methymphetamine the same as they were for crack. We didn't 0:06:06.000 --> 0:06:08.840 have any hearings, We didn't bring anybody in and say, well, 0:06:08.839 --> 0:06:11.040 what's going to be the real world impact of this. 0:06:11.800 --> 0:06:14.719 What's it going to do to our incarceration rate? If 0:06:14.760 --> 0:06:17.720 we spend more on prisons for even low level of enders, 0:06:18.040 --> 0:06:21.080 are we gonna have fewer police and prosecutors? Is this 0:06:21.200 --> 0:06:24.760 the best use of our anti crime resources. There was 0:06:24.800 --> 0:06:27.279 no study involved at all. We just knew it would 0:06:27.279 --> 0:06:31.160 be politically popular to say meth is dangerous and scary, 0:06:31.480 --> 0:06:34.760 so let's just ratchet up the penalties. I was part 0:06:34.760 --> 0:06:37.520 of that process. I helped draft that bill. It passed 0:06:37.520 --> 0:06:41.160 through Congress and I think it did a lot of damage. 0:06:41.640 --> 0:06:44.920 It tied judges hands now in a new area with methamphetamine, 0:06:45.000 --> 0:06:48.520 just as it was in all these other drugs. In 0:06:48.560 --> 0:06:51.720 some ways, I've switched sides, but I can't even say 0:06:51.720 --> 0:06:55.000 that my position before was well informed. I was just 0:06:55.040 --> 0:06:57.800 somebody who believed the tough on crime line that if 0:06:57.800 --> 0:06:59.719 there's a problem, the way to get rid of it 0:06:59.760 --> 0:07:06.359 is to punished the heck out of it. Mandatory sentences 0:07:06.360 --> 0:07:09.480 have been around since the beginning of the country. It 0:07:09.600 --> 0:07:13.640 tends to track whatever the crime to juror was. The 0:07:13.680 --> 0:07:17.480 first ones were like piracy. When Robert F. Kennedy is 0:07:17.960 --> 0:07:21.120 murdered after the California primary, the next day they passed 0:07:21.120 --> 0:07:24.800 one about guns, a couple of things happened. There were 0:07:24.840 --> 0:07:27.440 real responses to crime. Sometimes it was a moral panic. 0:07:27.520 --> 0:07:30.120 Sometimes it was a legitimate fear that crime was out 0:07:30.120 --> 0:07:32.800 of control, and they felt obligated to do something to 0:07:32.880 --> 0:07:35.880 look like they were being responsive. There was a period 0:07:35.920 --> 0:07:40.120 in the seventies where lawmakers lost faith and judges. They 0:07:40.160 --> 0:07:43.080 saw too many judges giving people what they thought were 0:07:43.120 --> 0:07:45.960 slaps on the wrist for serious offenses, and they thought 0:07:46.040 --> 0:07:50.400 they couldn't be trusted anymore. Legislators started taking that power away, 0:07:50.400 --> 0:07:53.360 and then they thought it was politically popular to do. 0:07:53.440 --> 0:07:56.040 So what they want to be able to do is 0:07:56.160 --> 0:07:58.680 run for office and say, not only do I care 0:07:58.720 --> 0:08:01.480 about public safety and I want to crack down on 0:08:01.760 --> 0:08:05.640 drug dealers or child pornographers or d u I s 0:08:05.720 --> 0:08:08.559 whatever it is. I can show my commitment by saying 0:08:08.600 --> 0:08:11.200 I think everybody who commits that crime should get this 0:08:11.280 --> 0:08:16.640 stiff punishment. The problem is they always write the penalty 0:08:16.720 --> 0:08:20.680 for sort of the worst case scenario and don't contemplate 0:08:20.720 --> 0:08:22.360 the fact that there's going to be some facts and 0:08:22.400 --> 0:08:26.000 circumstances that might meet the technical definition of that crime, 0:08:26.320 --> 0:08:31.280 but don't warrant that stiff punishment. I think it arose, 0:08:31.760 --> 0:08:34.320 like all things, out of good faith, not malice. I 0:08:34.360 --> 0:08:37.640 think people were well intentioned and believing that we needed 0:08:37.640 --> 0:08:39.920 to get serious about crime. It's just turned out to 0:08:40.000 --> 0:08:43.800 be a very destructive and ineffective tool. As Kevin is 0:08:43.880 --> 0:08:47.480 someone involved in the legislative side of the legal system, 0:08:47.800 --> 0:08:51.320 I asked him who he sees as the biggest advocates 0:08:51.360 --> 0:08:58.160 for mandatory minimum prison sentences. Usually the most aggressive advocates 0:08:58.160 --> 0:09:03.880 for mandatory minimums are prosecutors and their prosecutors associations and 0:09:04.040 --> 0:09:08.360 unions that tend to lobby legislatures and are very powerful. 0:09:09.400 --> 0:09:12.679 It gives them enormous leverage. It makes their job easier 0:09:12.679 --> 0:09:15.319 when they can go into a plea negotiation and say, 0:09:15.559 --> 0:09:17.880 if you don't plead guilty and give me everything I want, 0:09:18.160 --> 0:09:19.920 I'm going to make sure you get fifteen or twenty 0:09:20.000 --> 0:09:23.959 years in prison. If a prosecutor went to a defendant 0:09:24.000 --> 0:09:26.720 and said, I want you to not only plead guilty, 0:09:26.800 --> 0:09:30.079 but testify in exactly the way I want, or I'll 0:09:30.080 --> 0:09:33.040 break your arm, no one would have a problem seeing 0:09:33.040 --> 0:09:36.760 the ethical dilemma raised by that. But when a prosecutor 0:09:36.800 --> 0:09:38.760 says do what I want or I'm gonna put you 0:09:38.800 --> 0:09:41.480 in prison for twenty years, which is much more severe 0:09:41.520 --> 0:09:44.559 than breaking someone's arm, we treat that as a normal 0:09:44.600 --> 0:09:49.679 part of the process. So this negotiating technique by prosecutors, 0:09:50.000 --> 0:09:52.360 that one where they tell people that if they don't 0:09:52.559 --> 0:09:56.080 plead out that they will increase the charge to something 0:09:56.320 --> 0:09:59.600 with a mandatory minimum. Well, that is what we call 0:10:00.040 --> 0:10:03.400 the trial tax. This is one of the hidden costs 0:10:03.480 --> 0:10:07.160 associated with going to trial. We'll cover this more in 0:10:07.280 --> 0:10:11.400 detail later in this episode. Prosecutors say that these are 0:10:11.400 --> 0:10:15.480 helpful because it allows them to coerce people into giving 0:10:15.559 --> 0:10:19.040 up higher ups. The problem is they're usually used against 0:10:19.320 --> 0:10:22.520 the higher ups in a way to go down. The 0:10:22.600 --> 0:10:24.360 higher up will come in because they have all the 0:10:24.400 --> 0:10:26.920 information and they can say, get me out from under 0:10:26.960 --> 0:10:30.000 this mandatory minimum. I'll give up everybody below me. And 0:10:30.040 --> 0:10:32.200 it's the poor sucker on the bottom who has no 0:10:32.280 --> 0:10:37.120 information to give up who gets stuck with the mandatory minimum. 0:10:37.120 --> 0:10:38.960 A defendant has to think, do I really want to 0:10:39.040 --> 0:10:41.920 risk a trial? Because if I do and I'm found 0:10:41.920 --> 0:10:45.480 guilty and there's a mandatory minimum attached, no matter what 0:10:45.520 --> 0:10:48.439 the judge thinks, he or she will have no discretion 0:10:48.480 --> 0:10:50.720 to fashion a sentence that fits me. They'll have to 0:10:50.720 --> 0:10:54.200 go with that mandatory sentence. But we want judges to 0:10:54.200 --> 0:10:56.760 have control over punishment again, so that it can be 0:10:56.800 --> 0:11:00.640 tailored to you know, what really happened, and just some 0:11:01.559 --> 0:11:05.520 arbitrary standard that was set by politicians who know nothing 0:11:05.559 --> 0:11:08.360 about this defendant or this crime, but who wrote the 0:11:08.360 --> 0:11:11.880 mandatory minimum maybe ten twenty years ago and couldn't have 0:11:11.960 --> 0:11:16.920 foreseen this particular instance. As Kevin mentioned, the most vocal 0:11:17.000 --> 0:11:21.920 advocates in favor of mandatory minimum sentences are prosecutors. As 0:11:21.960 --> 0:11:25.240 a former prosecutor myself, I have seen that these laws 0:11:25.400 --> 0:11:28.720 can do more harm than good. But I wanted to 0:11:28.760 --> 0:11:31.280 see if there were benefits to these laws that I 0:11:31.360 --> 0:11:34.559 might be overlooking. So I talked with my friend and colleague, 0:11:34.600 --> 0:11:38.079 Assistant district Attorney Jesse Evans, to see what he thought 0:11:38.080 --> 0:11:40.960 about them as a prosecutor and how he uses them 0:11:41.080 --> 0:11:45.960 when he is charging defendants. So the debate about mandatory 0:11:45.960 --> 0:11:47.760 minimums is not a new one. It's been going on 0:11:47.880 --> 0:11:50.959 for a long long time within the criminal justice system. 0:11:51.000 --> 0:11:53.360 On the positive side of things, particularly when you have 0:11:53.360 --> 0:11:55.920 a very serious offense and we want to make sure 0:11:56.000 --> 0:11:59.400 that that's dealt with appropriately. We don't want to get 0:11:59.440 --> 0:12:01.439 to the situation sation where say a person doesn't accept 0:12:01.480 --> 0:12:04.600 responsibility for what they did, they insist on having a trial, 0:12:04.800 --> 0:12:06.480 and suddenly they're able to get a slap on the 0:12:06.520 --> 0:12:09.280 wrist for their armed robbery or serious violent felony, or 0:12:09.280 --> 0:12:13.440 even drug trafficking or something like that. That's kind of 0:12:13.480 --> 0:12:17.559 the thought behind why mandatory minimums are good. It not 0:12:17.600 --> 0:12:20.720 only gives some certainty to us within the criminal justice 0:12:20.720 --> 0:12:22.600 system of what we know the outcome is going to be, 0:12:23.640 --> 0:12:25.880 It also quite frankly, gives us some leverage, for lack 0:12:25.920 --> 0:12:27.720 of a better term, to be able to talk to 0:12:27.840 --> 0:12:31.000 a criminal defendant through his attorney from the prosecutor's perspective 0:12:31.000 --> 0:12:32.800 and say, look, we need to talk about whether we 0:12:32.800 --> 0:12:35.480 can negotiate this case, because if not, we know what 0:12:35.520 --> 0:12:37.320 the consequences are going to be. This is what you're 0:12:37.360 --> 0:12:41.320 gonna be facing based on the mandatory sendency. That's the 0:12:41.360 --> 0:12:43.240 one side of the coin. The other side of the coin, 0:12:43.320 --> 0:12:45.440 I think is a correct side that mandatory minimums are 0:12:45.440 --> 0:12:48.800 not always good. We within the criminal justice system might 0:12:48.840 --> 0:12:51.920 be surprised to hear this, especially coming from seasoned prosecutor 0:12:52.600 --> 0:12:56.040 are not always in favor of them. There are oftentimes 0:12:56.080 --> 0:12:59.520 where a mandatory minimum sentence actually frustrates our ability to 0:12:59.559 --> 0:13:02.680 get k is resolved rather than fosters our ability to 0:13:02.720 --> 0:13:07.280 get cases resolved. Those consequences that are mandated by this 0:13:07.320 --> 0:13:10.600 mandatory minimum are sort of inflicted on the case, for 0:13:10.679 --> 0:13:12.560 lack of a better term, and because of that, we're 0:13:12.559 --> 0:13:14.600 not able to get to a point where we can 0:13:14.760 --> 0:13:18.720 resolve it. The push the modern day move within the 0:13:18.720 --> 0:13:21.040 criminal justice system, which I feel is actually a very 0:13:21.040 --> 0:13:23.240 good one, is the idea that we're going to give 0:13:23.240 --> 0:13:27.080 more discretion to the stakeholders, to the court, to the prosecutors, 0:13:27.120 --> 0:13:30.000 to the defense attorneys, and ultimately to victims of crimes 0:13:30.000 --> 0:13:33.040 as well, because now everybody gets to say in it. 0:13:34.280 --> 0:13:37.160 I've heard that said before that the prosecutors control what 0:13:37.200 --> 0:13:40.000 the charges are. I'll step back from that a little 0:13:40.000 --> 0:13:42.080 bit and say this, the facts really to dictate what 0:13:42.160 --> 0:13:44.959 the charges are going to be. And ultimately, if what 0:13:45.040 --> 0:13:47.000 I bring a case to court where the facts don't 0:13:47.120 --> 0:13:50.079 bear out, for example, on arm robbery versus a robbery, 0:13:50.440 --> 0:13:52.360 the state's gonna get dinged on that because we have 0:13:52.520 --> 0:13:55.560 missed an element of proof that factually is required before 0:13:55.600 --> 0:13:59.600 we can bring those charges. That said, I understand why 0:14:00.080 --> 0:14:03.199 is that judges might express some frustration about their hands 0:14:03.200 --> 0:14:05.480 being tied when they have mandatory minimums, and I think 0:14:05.480 --> 0:14:07.400 that's why there's been a real push that's certainly been 0:14:07.400 --> 0:14:11.120 the case in Georgia to allow for a downward departure 0:14:11.280 --> 0:14:15.959 or downward deviation under some circumstances. Say you have the 0:14:16.080 --> 0:14:18.719 arm robber who's on a spree goes in guns a 0:14:18.800 --> 0:14:22.560 blazing into a bank. That's a very serious offense. Tenure 0:14:22.600 --> 0:14:25.120 mandatory minimum may not be enough for that guy. Now, 0:14:25.280 --> 0:14:27.240 say you have that scenario where you have a person 0:14:27.280 --> 0:14:29.920 that walks in and using their coat and their finger 0:14:30.040 --> 0:14:32.600 to act like they have a gun and they take 0:14:32.640 --> 0:14:35.480 a bag of chips because the guy is homeless, that's 0:14:35.480 --> 0:14:37.880 an arm robbery to both of them are facing the 0:14:37.960 --> 0:14:40.520 same mandatory minimum. But I think we would all agree 0:14:40.560 --> 0:14:44.480 that those are two different factual scenarios. The change in 0:14:44.520 --> 0:14:47.480 the law would basically allow us now to say, when 0:14:47.480 --> 0:14:50.480 this prosecutor the defense, with the approval of the judge, 0:14:50.520 --> 0:14:52.640 says we're gonna let them plead an arm robbery, but 0:14:52.680 --> 0:14:54.760 we want to go less than that ten years, there's 0:14:54.760 --> 0:14:56.480 a mechanism to be able to do so, and that's 0:14:56.520 --> 0:15:00.040 not a bad thing. Otherwise, what we had his the 0:15:00.040 --> 0:15:01.800 wordical we've been forced to do is to come up 0:15:01.800 --> 0:15:03.680 with sort of a legal fiction. Well, we know it's 0:15:03.720 --> 0:15:06.360 an armed robbery, Mr. Guy who comes and using your 0:15:06.360 --> 0:15:08.920 finger as a gun. But at the same time, because 0:15:08.960 --> 0:15:10.920 we wanted apart from the mandatory minium, we're going to 0:15:11.000 --> 0:15:13.720 call it something that it's not like an aggravator assault 0:15:13.840 --> 0:15:16.960 or in a robbery or something like that. The problem 0:15:17.000 --> 0:15:18.840 with that is when you get a conviction of a 0:15:18.880 --> 0:15:22.240 different offense, it could very well impact recitivious punishment down 0:15:22.240 --> 0:15:24.640 the road if the person commits another crime, because now 0:15:24.760 --> 0:15:27.360 they don't fall under that statute neatly where we can 0:15:27.400 --> 0:15:31.640 insist on the higher punishment. There's another important factor that 0:15:31.720 --> 0:15:34.000 maybe we haven't yet talked about, which is a component 0:15:34.040 --> 0:15:37.880 of and that's the victim and victim's rights. I understand 0:15:37.920 --> 0:15:41.920 why from a legislative perspective, when that victim tells the 0:15:42.000 --> 0:15:45.160 police officer, hey, this guy put a gun in my 0:15:45.240 --> 0:15:48.480 face and took something from me, that armed robbery needs 0:15:48.480 --> 0:15:52.760 to be dealt with extremely seriously. It's certainly understandable from 0:15:52.760 --> 0:15:55.320 my perspective as to why a legislature might want to 0:15:55.320 --> 0:15:57.880 say there needs to be be a mandatory minimum when that happens. 0:15:57.920 --> 0:15:59.960 Because if it's your loved one, your wife, you're a 0:16:00.080 --> 0:16:03.920 kid that suffered and been victimized from that crime. Starting 0:16:03.920 --> 0:16:06.320 with the proposition that we're gonna treat that more seriously 0:16:06.360 --> 0:16:09.200 than where somebody just merely punched a battery makes sense 0:16:09.200 --> 0:16:30.760 to me. After hearing from Jesse and Kevin, I also 0:16:30.800 --> 0:16:34.560 wanted to get a judge's perspective on mandatory minimum sentences 0:16:34.880 --> 0:16:37.600 and how these laws may affect the judge's work when 0:16:37.680 --> 0:16:40.480 it comes to sentencing, as well as the overseeing of 0:16:40.520 --> 0:16:45.440 criminal trials. We heard from Federal District Judge Jed Rakoff 0:16:45.520 --> 0:16:49.960 back in episode one regarding eyewitness testimony, but Judge Rakoff 0:16:50.120 --> 0:16:53.160 is perhaps best known for his work studying and speaking 0:16:53.160 --> 0:16:59.760 out about mandatory minimum sentencing. I am a deep believer 0:17:00.600 --> 0:17:05.680 that just sense requires a judge to get deeply into 0:17:05.720 --> 0:17:08.960 the facts, the facts of the crime, the facts of 0:17:09.200 --> 0:17:13.280 the criminal, the facts of the victims, and to do 0:17:13.560 --> 0:17:18.240 the very difficult and often agonizing, but careful job of 0:17:18.280 --> 0:17:23.600 figuring out what sends makes sense. Mandatory minimums, of course, 0:17:23.720 --> 0:17:28.840 prevent you from doing that whatsoever. But even the sentencing guidelines, 0:17:28.920 --> 0:17:33.200 which in the federal system are no longer mandatory, they 0:17:33.280 --> 0:17:40.240 emphasize certain factors hugely an excess of other factors. I 0:17:40.240 --> 0:17:43.639 would go back to the system that it persisted in 0:17:43.720 --> 0:17:47.879 this nation for nearly two hundred years, which was we 0:17:48.040 --> 0:17:51.000 leave it to the good sense of the judge, and 0:17:51.040 --> 0:17:53.440 we encourage our judges to do a lot of work 0:17:53.480 --> 0:17:58.240 before they impose sense. People will say to me, but 0:17:58.320 --> 0:18:00.440 why do you trust judges? And I say, I don't 0:18:00.440 --> 0:18:03.399 trust anyone. I'd rather have a good system, though, and 0:18:03.440 --> 0:18:05.959 I think the best system is one of checks and balances. 0:18:06.720 --> 0:18:10.320 The legislature gives wide discretion for what charges you can 0:18:10.359 --> 0:18:14.080 bring and what the punishments can be. The prosecutor brings 0:18:14.119 --> 0:18:16.600 the charges after looking at the facts of a case. 0:18:17.160 --> 0:18:21.080 The judge then issues a sentence that makes sense, and 0:18:21.119 --> 0:18:23.640 then that sentence can be appealed if it's too severe 0:18:23.720 --> 0:18:26.359 or too lenient, and an appeals court can get a 0:18:26.400 --> 0:18:29.520 whack at it. But it's like an editing process. The 0:18:29.600 --> 0:18:32.359 more eyes that look at it, the more likely you 0:18:32.400 --> 0:18:37.040 are to get things right. This is Kevin Ring. I've 0:18:37.119 --> 0:18:40.080 been to prison myself. I was a federal lobbyist in 0:18:40.080 --> 0:18:44.800 our firm, came under scrutiny. I cooperated for two years. 0:18:45.200 --> 0:18:48.200 The government ultimately wanted me to say things that I 0:18:48.200 --> 0:18:51.200 thought were untruthful and to incriminate others in a way 0:18:51.200 --> 0:18:53.919 that I thought was untruthful. So we just had a 0:18:53.960 --> 0:18:56.960 disagreement about it. And when they try to get me 0:18:57.000 --> 0:18:59.879 to plead guilty and cooperate, they sat me down for 0:19:00.000 --> 0:19:04.320 what's called a reverse proffer. Usually proffers when a defendant 0:19:04.320 --> 0:19:06.119 comes in and says, here's everything I know is that 0:19:06.320 --> 0:19:10.200 useful to you reverse proffers. When the government says, here's 0:19:10.240 --> 0:19:13.720 everything we have against you, think about that carefully before 0:19:13.760 --> 0:19:17.359 you make your plea decision. Well, with me, they brought 0:19:17.400 --> 0:19:19.480 me in and they said, after two years of cooperating 0:19:19.480 --> 0:19:22.399 and other evidence gathering, here's what we have against you. 0:19:23.560 --> 0:19:27.439 If you plead and cooperate, will charge you with these things. 0:19:27.800 --> 0:19:30.880 And if you don't and you go to trial, will 0:19:30.960 --> 0:19:34.560 charge you with all of these different crimes. I just 0:19:34.640 --> 0:19:37.680 couldn't say what they wanted me to say. I would 0:19:37.680 --> 0:19:40.080 have been lying on the stand against people that I 0:19:40.160 --> 0:19:45.000 cared about. But what made it somewhat easier was the 0:19:45.080 --> 0:19:48.480 idea that, unlike maybe some poor kid who's on the 0:19:48.480 --> 0:19:52.280 street corner and being threatened with a twenty year mandatory 0:19:52.320 --> 0:19:55.800 minimum sentence, I knew that if I had my day 0:19:55.800 --> 0:19:58.479 in court, that if a judge hurt all the facts 0:19:58.480 --> 0:20:02.040 and circumstances, he or she would conclude is my judge 0:20:02.040 --> 0:20:04.320 did at the end of two trials that I was 0:20:04.400 --> 0:20:07.959 not who the prosecutor said I was. I didn't know 0:20:07.960 --> 0:20:09.679 how it was going to end. I was very nervous, 0:20:09.840 --> 0:20:13.080 very worried because I had two young daughters. If I 0:20:13.160 --> 0:20:15.720 had been facing a mandatory minimum. It would have made 0:20:15.720 --> 0:20:19.919 the decision a hundred times tougher. I'd like to think 0:20:20.080 --> 0:20:24.280 that I would have kept my integrity and pled according 0:20:24.320 --> 0:20:26.679 to the truth, but it would have been much harder. 0:20:28.080 --> 0:20:31.560 Prison is it's a necessary evil, but people forget how 0:20:31.600 --> 0:20:33.560 evil it is. And so even though I was in 0:20:33.680 --> 0:20:37.439 you know, a low security facility, it was awful. The 0:20:37.480 --> 0:20:40.600 punishment is being removed from society. I mean, I was 0:20:40.640 --> 0:20:42.920 away from two young daughters for a year and a half. 0:20:43.680 --> 0:20:45.600 I had never slept away from them for more than 0:20:45.640 --> 0:20:50.120 two nights. Our sentences have gotten so long that when 0:20:50.119 --> 0:20:52.920 we hear somebody say, oh, we got five years, that's 0:20:52.920 --> 0:20:57.040 not bad five years, think about how much happens in 0:20:57.119 --> 0:21:01.600 five years. People graduate, people get married. We've lost track 0:21:01.720 --> 0:21:06.400 of how long that is. That should be a last resort. 0:21:06.840 --> 0:21:08.719 We have to have prison for some people who are 0:21:08.760 --> 0:21:13.040 harming people and who are an ongoing harm. But as 0:21:13.080 --> 0:21:18.080 a group that values families and children and communities, we 0:21:18.200 --> 0:21:20.720 just have to get back to the idea that it 0:21:20.720 --> 0:21:24.560 should be a last resort, not a first option. The 0:21:24.640 --> 0:21:27.560 Polk evidence suggests that the thing that is most likely 0:21:27.600 --> 0:21:31.680 to ter somebody from committing another crime were committing a 0:21:31.720 --> 0:21:36.440 crime at all is the risk of getting caught. They're 0:21:36.440 --> 0:21:40.480 not dissuaded by the severity of the punishment, so these 0:21:40.520 --> 0:21:44.919 long sentences don't deter people. They don't need the extra 0:21:44.960 --> 0:21:48.560 ten years. That's not doing society any benefit. Some people 0:21:48.560 --> 0:21:50.840 will say, well, okay, but it's not hurting if they're 0:21:50.880 --> 0:21:53.520 just locked up there at least not committing any crimes. 0:21:53.560 --> 0:21:56.560 The problem with that is all of our budgets are finite, 0:21:56.920 --> 0:21:59.240 So if we're locking somebody up for ten years when 0:21:59.280 --> 0:22:02.200 five would be an up, that cost of the extra 0:22:02.240 --> 0:22:05.040 five years, which maybe thirty thousand a year for five years, 0:22:05.440 --> 0:22:07.400 is probably the cost of another policeman on the street 0:22:07.440 --> 0:22:12.680 who could be preventing crimes. Personally. With respect to how 0:22:12.720 --> 0:22:16.560 I have seen these laws used, I think mandatory minimum 0:22:16.560 --> 0:22:20.359 sentencing should be done away with quite frankly. Even in 0:22:20.400 --> 0:22:23.480 the cases where judges would prefer not to send someone 0:22:23.560 --> 0:22:26.720 to prison or to give them perhaps a shorter prison sentences, 0:22:27.000 --> 0:22:30.160 the judges hands are tied and they have no choice. 0:22:30.880 --> 0:22:33.399 I think the far better system is the one where 0:22:33.480 --> 0:22:37.080 judges are allowed to do what they are elected or 0:22:37.240 --> 0:22:40.560 pointed to do, and that is to be judges. Judges 0:22:40.640 --> 0:22:43.000 can throw the book at someone if they really need it, 0:22:43.119 --> 0:22:46.439 and judges can also be lenient where it is appropriate. 0:22:47.080 --> 0:22:51.720 In other words, cookie cutter justice just doesn't work when 0:22:51.720 --> 0:22:54.239 it comes to something is complicated in high stakes, as 0:22:54.280 --> 0:22:57.280 criminal justice. I just can't think of a good argument 0:22:57.359 --> 0:23:03.080 against specificity. Mandate. Hoary minimum prison sentences factor heavily in 0:23:03.280 --> 0:23:06.160 why people will flead guilty to things that they did 0:23:06.160 --> 0:23:09.080 not do. They simply can't afford the risk of losing 0:23:09.119 --> 0:23:11.920 a trial where they would be faced with a mandatory 0:23:12.000 --> 0:23:15.600 minimum prison sentence, and oftentimes they will opt to plead 0:23:15.640 --> 0:23:19.240 guilty to a lesser charge, even if they maintain their innocence, 0:23:19.600 --> 0:23:25.560 just to avoid mandatory minimum sentencing. We've talked a lot 0:23:25.640 --> 0:23:28.399 this season about how every single person in the justice 0:23:28.400 --> 0:23:32.320 system has an absolute constitutional right to a fair trial. 0:23:33.080 --> 0:23:36.800 But being entitled to something is one thing, Actually getting 0:23:36.840 --> 0:23:40.119