I've just read a very insightful and thought-provoking new paper on mandatory minimums by two of my favorite authors on federal sentencing, Erik Luna and Paul Cassell. The paper is Mandatory Minimalism, 32 Cardozo L. Rev. 1 (2010). Focusing on the federal system, they nicely lay out the arguments against mandatory minimums and discuss the political and psychological dynamics that contribute to the persistence of mandatory minimums in the face not only of nearly uniform expert opinion, but also of vocal, bipartisan opposition from many judicial and political leaders. As they indicate, the fact that Congress took until last August finally to soften a little bit the system of mandatory minimums for crack offenses does not reflect well on Congress's ability to correct its past sentencing excesses. But Luna and Cassell have not given up on legislative reform. Borrowing a phrase from Dan Kahan, they argue that there remains hope for "gentle nudges" – incremental legal changes that may gradually shift social norms and set the stage for bigger legal changes in the future. And, even in this era of intense partisan division, they do believe that political consensus is possible for some small moves in the right direction on mandatory minimums. They offer themselves as examples – while Luna is a self-proclaimed libertarian who harbors deep suspicions of police and prosecutor power, Cassell is a conservative legal scholar who is most closely associated with advocacy for victims' rights and is also a former appointee of President George W. Bush to the federal bench. Yet, despite their political differences, Luna and Cassell have reached agreement on an interesting "gentle nudge" proposal that deserves careful attention by legislators. In essence, their proposal is for an enhanced safety-valve provision, which would permit a sentence judge to go below a mandatory minimum when a minimum exceeds the recommended sentence under the federal sentencing guidelines. In the article, they've worked through the proposal with considerable attention to detail, including specific statutory language. As Luna and Cassell observe, mandatory minimum reform requires some true statesmen in Congress. Will any actually step forward on this issue?
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