Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants. Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

RACHEL MARTIN, HOST:

We're continuing our conversations on criminal justice this week, focusing now on a big issue that's back in the spotlight - mandatory minimum sentencing guidelines. This month, Attorney General Jeff Sessions told lawyers to get tougher in prosecuting federal drug cases.

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JEFF SESSIONS: I have empowered our prosecutors to charge and pursue the most serious offense as I believe the law requires - most serious readily provable offense. It is simply the right and moral thing to do.

MARTIN: Yesterday, we heard from Georgetown University law professor Paul Butler about this. He pointed out racial disparities surrounding mandatory drug sentencing laws.

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PAUL BUTLER: The reality is that for these low-level offenses, white people commit them just as much as African-Americans, but they don't face the same consequences.

MARTIN: Today, we've got a different view. Bill Otis is a former federal prosecutor who also teaches at Georgetown. I sat down with him to talk about why he thinks the Justice Department's move is the right one.

This is generating a lot of criticism from the left and the right. Former Attorney General Holder said the policy is not, quote, "tough on crime, it's dumb on crime." Rand Paul, Republican from Kentucky, said, quote, "mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long. Attorney General Sessions' new policy will accentuate that injustice."

BILL OTIS: I disagree with both men. I respect them, but I think they're misguided and in error. Our whole sentencing system that started in the Reagan-Bush era, the system of guidelines and mandatory minimums has been a big success.

If one judges the success of the criminal justice system by the crime rate rather than the incarceration rate, under the system we've had and that Jeff Sessions is now restoring, there has been a tremendous fall-off in crime. Crime is half of what it was back in the 1980s, so I think we...

MARTIN: Although the National Academy of Sciences, I should point out, concluded a few years ago that mandatory sentences helped bring down the crime rate to an extent but doesn't account for the full historic crime...

OTIS: Oh, absolutely not. There have been many factors that have done that, that's quite true. Increased use of incarceration and reining in naive judges is an important part of the solution and has worked, but there are other things. We've, for example, we've hired more police. We've had more aggressive and computer-assisted policing strategies. So there have been a number of factors.

MARTIN: Although as you know - civil rights advocates will point this out - there is, they argue, an inherent discriminatory aspect to mandatory minimums that, for example, a young white man could get arrested for drug use or possession of drugs and he would get a far lesser sentence oftentimes than a young African-American or a young Hispanic man who was arrested for the exact same crime.

OTIS: That is actually one of the advantages of Jeff Sessions charging memo, that it applies a more nearly uniform standard of charging across the board. We have to balance things. There can't be either a black or white solution. That does not work.

As you point out, there can be unusual cases, for example, where the defendant has basically led a law-abiding life. It's a first offense. The Jeff Sessions memo allows for that. All it requires is what we should always require. If they want to deviate from what everybody else in the office is doing, they state reasons for it and be able to have those reasons reviewed and approved.

MARTIN: What about the overcrowding issue in prisons? A lot of critics of this policy point to that and say listen, you're just keeping people in prison who were guilty of low-level drug crimes, and it's costing taxpayers thousands and thousands of dollars a year.

OTIS: Low-level offenders seems to me to be an undefined phrase. You don't know exactly what low level means. Often it's used to mean a courier in a drug business. What people don't realize as much as they should is that a courier in the drug business is just as essential as a car is in a pizza delivery business. The business - unless you can deliver your inventory, the business is going to fall apart. And just saying that they're low level is too general and too undefined to make for good criminal justice policy.

MARTIN: Georgetown law professor and former federal prosecutor Bill Otis. He joined us in our studios. Thanks so much for talking with us. Thank you. And tomorrow, we'll hear from a sitting federal judge who says the new directive doesn't bring real justice.

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