Gastronomista: “cocktails, punch bowls and boozy babes”

Plane drink.

Plane drink.

The law can be dreary, so at White Collar Wire we follow cocktails, as well.  For weekend viewing and sipping, we point you to Gastronomista, which treats both food and cocktails:

Gastronomista is an art and design blog focused on the culture of food and drink, andwas founded in October of 2009 as a way to keep track of delicious treasures, tipples, and trips around the world.It is run by Miss Emma Emerson, who is an architect by day, writer and avid drinker by night. Gastronomista is a place where you might find architectural chicken coops, tea parties, decanters, bespoke knives, or donut art. Emmaseeks inspiration everywhere she goes, and finds fodder in everything she sees – on the streets and plates of foreign lands, the inked limbs of subway-riding compatriots, or shaking up cocktails in her own kitchen.

In particular, check out  Clara Bow in Black Oxen (1923).

The straight and the narrow.

The straight and the narrow.

Of course, we muse on cocktails, ourselves: White Collar Wire on Cocktails.

 

 


Why White-Collar Defense Ain’t Ukraine: The National Association of Criminal Defense Lawyers and Edmund Burke

National Association of Criminal Defense Lawyers

National Association of Criminal Defense Lawyers

White Collar Wire is now listed on the National Association of Criminal Defense Lawyers (“NACDL”) website under  White Collar On The Web.    The White Collar Crime Policy Department  of NACDL does excellent work:

NACDL’s White Collar Crime Policy Department is on the front lines right now combating new and unnecessary criminal legislation and pushing for meaningful criminal justice reform. Our advocacy focuses primarily on the problems of overcriminalization, vicarious corporate criminal liability, and disproportionate and insufficiently flexible sentencing, among others. In support of this effort, NACDL serves as a leader in a politically diverse coalition of bar, non-profit and business groups who advocate for a sound and just criminal justice system.

Developing resources and education opportunities for the white collar criminal defense bar is also a top priority. Through cutting edge white collar CLE programs, an active white collar crime discussion community, and service on the white collar defense committee, we bring together the best-informed criminal defense attorneys to share information and strategy. Exclusive for NACDL Members, we maintain a briefs and motions bank dealing specifically with white collar crime and recently developed a filings bank devoted to post-Skilling honest services fraud cases. The department frequently conducts and publishes cutting-edge policy analysis on emerging issues in white collar enforcement.

Citizens of every political persuasion have a compelling interest in sound white-collar policy.

"The greater the power, the more dangerous the abuse." --- Edmund Burke (1729-1797)

“The greater the power, the more dangerous the abuse.”  Edmund Burke (1729-1797)

(We have written, for example, on why conservatives should support the effort to reform mandatory minimums in non-violent federal sentences).  NACDL has a variety of white-collar initiatives, including:

 


Criminals In Ties: Contract Law and Reservoir Dogs

Mephibosheth and David.

Mephibosheth and David.

The interplay between law — especially criminal law — and theology is more subterranean and nuanced than many give it credit for.  The same is true of civil law, as here:  Contract Law and Reservoir Dogs

A contract is an exchange of promises: “I promise to do x if you promise to do y.”  Each party must undertake an obligation—called “consideration”—for the contract to be binding.  A simple unilateral promise with no consideration (“I will give you my car on Monday”) is not usually binding.  These law-rules about obligations in our daily lives provide a contrast to the covenant that the Lord makes with David and to the way that David treats Mephibosheth, Jonathan’s son.

Off to compliance training.

Off to compliance training.

Tarantino’s Reservoir Dogs (1992), of course, shaped an entire generation of criminals-in-ties on film.  We have discussed crime and theology before, at Spare the King and Seize the Spareribs, in what may be the only paragraph in English to discuss both King Saul and John D. MacDonald’s fictional private eye, Travis McGee.


The Winter Olympics of Cooperation: The Bridge On The River Kwai, White-Collar Self-Image and Federal Sentencing

“Cooperation” is a complex concept for individuals and businesses caught up in white-collar criminal cases, compliance reviews and breakdowns of business ethics.  As with the more obscure or corrupt Winter Olympic events, there are ways to demystify the complexity, but it is not easy.

The Bridge On The River Kwai (1957).

The Bridge On The River Kwai (1957).

In David Lean’s 1957 film The Bridge On The River Kwai, we see cross-currents of duty, vainglory, cooperation, resistance, collaboration and death.  (We also hear some great whistling, but that is another matter).  All of these ideas and emotions come into play when a colleague, an employee or a corporate officer or director is faced with the question: “Do I [or we] cooperate with [the Government, the Audit Committee Special counsel, the court-appointed corporate monitor, etc.]?

Remember that, in the sense in which we use the term, “cooperate” is not exactly the opposite of “be obstreperous.”  Rather, we mean to work together with whatever authority is opposed to us, in the hopes of a better outcome, rather than going down another path.

So, before we choose whichever path, a few observations to guide those of us — internal counsel, internal audit, compliance, risk management and outside counsel — charged in turn with guiding the unfortunates who must actually make the decision.

Not your everyday Saturday morning cartoon about cooperation.

Not your everyday Saturday morning cartoon about cooperation.

Cooperation Is A Shock To The Potential Cooperator.  An innocent-minded employee or corporate officer will see cooperation as natural — What do I have to hide? — until he or she appreciates the necessary condition: a cooperator has something to cooperate about.  He or she has something to offer in exchange for lenient treatment.  If you have something to cooperate about, odds are you have done something to put yourself in that position.  At a minimum, everyone will believe you did.  (We have written earlier about motive and otherwise apparently innocent-minded people, here: Good People, Bad Acts and Intent).

This shock-effect is a close cousin to the reluctance of most businesspeople to invoke their rights under the Fifth Amendment.  We have discussed that reluctance before — Salinas and The Fifth Amendment  — and it can be fatal.

Rejecting the proposed plea agreement.

Rejecting the proposed plea agreement.

Cooperation Is Not A Sign Of Guilt Or Weakness, Nor Is Fighting Proof Of Innocence Or Strength.  Shock may lead to misapprehension of the nature of cooperation.  Cooperation is an economic transaction, not a moral one.  The cooperator offers something of value (information or action) in order to receive something of value (leniency or favor).  We must help our client, employee or colleague understand the transactional nature of cooperation.

 

"Sure, I falsified a couple of wastewater reports, but who knew it's make that much mess?"

“Sure, I falsified a couple of wastewater reports, but who knew it’d make that much mess?”

Cooperation Is Not Explanation, Or Putting The Story In Context.  The innocent-minded may conclude, especially on first blush, that “If I can just tell my story and put things in context, the problem will vanish.”  This is a canard.  (“Canard” is French for “duck,” and I double-majored in political science and French, so I sometimes like to say things like that).  Whatever the external, outside force we are facing — a government investigation, say — its representatives are only tangentially interested in the “truth,” at least in an objective fashion.  Rather, they are assessing a case, fulfilling a mandate or looking to preserve or advance a higher good.  To the FBI or Homeland Security agent, the effort to contextualize will likely be misunderstood and, if understood, then perceived to be an effort to minimize wrongdoing.  They don’t really care.

Testifying in the grand jury on Christmas Eve.

Testifying in the grand jury on Christmas Eve.

Cooperation Has Benefits, But The Burdens Can Run For A Long Time.  For some of the reasons set out below, cooperation can bring benefits, but the extent and duration of cooperation can come as an unpleasant surprise.  You are not selling your soul, but you are putting your conscience and your sleep out on a long-term lease to someone else.

 

 

Early Cooperators Do Better.  This is conventional wisdom, but it is almost always true.  Is it ever too late to cooperate?  Here’s a thoughtful piece Why Didn’t Martoma Cooperate? And Is It Too Late?  by Lawrence S. Goldman at the White Collar Crime Prof blog.

Sharpen your pencils.

Sharpen your pencils.

Cooperation, Resolution and Disclosure

Cooperation can play a significant role in settlement (of a civil enforcement action) or in a plea deal (in a criminal prosecution). The relationship between cooperation and resolution is not precise.  As Professor Peter J. Henning points out in a recent note on the subject — For Settlements, Companies Sketch Contours of a Black Box — it is difficult even to figure out how the government arrives at tan acceptable dollar figure for resolution:

The government is taking an increasingly hard line in seeking large settlements, as shown by the litigation reserves companies are required to set up once they have determined the cost of resolving a case. What we don’t really know, however, is what goes into the process of assessing a penalty and how it relates to the harm caused by a violation.

* * * *

Accounting rules require a company to disclose a material loss because of litigation once it is both probable and the amount can be reasonably estimated. When that line is crossed is a matter of judgment, but once the parameters of a deal with the government are in place, a company can be expected to disclose how much it thinks it will have to pay.

How the two sides arrive at the penalty remains something of a mystery to the general public. Companies rarely disclose what happened in the negotiations, as Avon did.

Federal statutes provide the maximum fine for a violation, but that is only for a single violation. Corporate crime often involves hundreds, or even thousands, of separate offenses, so the total potential fine could be enormous.

The federal sentencing guidelines provide a set of factors to be considered when a court determines a financial penalty. The list includes whether a company cooperated in the investigation and the involvement of senior management in the crime.

But few cases involving large corporations ever see the inside of a courtroom. Instead, the Justice Department usually resolves corporate investigations through deferred and nonprosecution agreements, along with civil settlements, that do not require judicial approval of any penalty assessed against a company. So it is often unclear how the government determined the amount to be paid as the punishment for a violation.

The Sentencing Guidelines: Cooperation, Resolution and Dollars

Contemplating a Guidelines recalculation.

Contemplating a Guidelines recalculation.

Professor Henning mentions the federal Sentencing Guidelines, and it is worth a brief review here as they relate to cooperation, settlement and the amount of a financial penalty.

A primary source, of course, is the United States Sentencing Commission’s 2010 FEDERAL SENTENCING GUIDELINES MANUAL CHAPTER EIGHT – SENTENCING OF ORGANIZATIONS, which sets out in great detail the Commission’s view of organizational sentencing.  In particular, the Commission sets out four general principles, with “cooperation” being one [emphasis added]:

First, the court must, whenever practicable, order the organization to remedy any harm caused by the offense. The resources expended to remedy the harm should not be viewed as punishment, but rather as a means of making victims whole for the harm caused.

Second, if the organization operated primarily for a criminal purpose or primarily by criminal means, the fine should be set sufficiently high to divest the organization of all its assets.

Third, the fine range for any other organization should be based on the seriousness of the offense and the culpability of the organization. The seriousness of the offense generally will be reflected by the greatest of the pecuniary gain, the pecuniary loss, or the amount in a guideline offense level fine table. Culpability generally will be determined by six factors that the sentencing court must consider. The four factors that increase the ultimate punishment of an organization are: (i) the involvement in or tolerance of criminal activity; (ii) the prior history of the organization; (iii) the violation of an order; and (iv) the obstruction of justice. The two factors that mitigate the ultimate punishment of an organization are: (i) the existence of an effective compliance and ethics program; and (ii) self-reporting, cooperation, or acceptance of responsibility.

Fourth, probation is an appropriate sentence for an organizational defendant when needed to ensure that another sanction will be fully implemented, or to ensure that steps will be taken within the organization to reduce the likelihood of future criminal conduct.

These principles have taken on urgency for companies that do business in the United Kingdom.   As we see here — U.K. Issues New Sentencing Guidelines for Corporate Fraud — the new guidelines are intended to be implemented alongside the UK’s deployment of American-style deferred-prosecution agreements.

The other key document to have to hand is a copy of DOJ’s Principles of Federal Prosecution of Business Organizations, essentially a set of charging guidelines for prosecutors.  They have discretion.  Try to leverage it in your favor.

Speaking of discretion, we leave you with a note from Matthew 5:23-26:

So if you are offering your gift at the altar and there remember that your brother has something against you, leave your gift there before the altar and go. First be reconciled to your brother, and then come and offer your gift. Come to terms quickly with your accuser while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison. Truly, I say to you, you will never get out until you have paid the last penny.


St. Valentine’s Day Massacre and the Cocktails That Go With It

We avoid sentimentality, but the culture is awash in it on Valentine’s Day.  This “holiday” is not traditionally associated with business crime, but we will do our best.  The day is sometimes associated with alcohol, and this year happens to fall on a Friday.  We acquit ourselves well in this latter regard.

A contentious meeting of the Audit Committee

A contentious meeting of the Audit Committee

Here’s a story about the February 14, 1929 slaughter from the Chicago Tribunethe St. Valentine’s Day Massacre:

On this frigid morning, in an unheated brick garage at 2122 N. Clark St., seven men were lined up against a whitewashed wall and pumped with 90 bullets from submachine guns, shotguns and a revolver. It was the most infamous of all gangland slayings in America, and it savagely achieved its purpose–the elimination of the last challenge to Al Capone for the mantle of crime boss in Chicago. By 1929, Capone’s only real threat was George “Bugs” Moran, who headed his own gang and what was left of Dion O’Banion’s band of bootleggers. Moran had long despised Capone, mockingly referring to him as “The Beast.”

At about 10:30 a.m., four men burst into the SMC Cartage Co. garage that Moran used for his illegal business. Two of the men were dressed as police officers. The quartet presumably announced a raid and ordered the seven men inside the garage to line up against a wall. Then they opened fire. Witnesses, alerted by the rat-a-tat staccato of submachine guns, watched as the gunmen sped off in a black Cadillac touring car that looked like the kind police used, complete with siren, gong and rifle rack.The victims, killed outright or left dying in the garage, included Frank “Hock” Gusenberg, Moran’s enforcer, and his brother, Peter “Goosy” Gusenberg. Four of the other victims were Moran gangsters, but the seventh dead man was Dr. Reinhardt Schwimmer, an optician who cavorted with criminals for thrills. Missing that morning was Capone’s prize, Moran, who slept in.

Capone missed the excitement too. Vacationing at his retreat at Palm Island, Fla., he had an alibi for his whereabouts and disclaimed knowledge of the coldblooded killings. Few believed him. No one ever went to jail for pulling a trigger in the Clark Street garage, which was demolished in 1967.

We’ve seen internal investigations that look worse.  As in the white-collar context, do not give the Government an unrelated reason to investigate you:

The St. Valentine’s Day Massacre on February 14, 1929, might be regarded as the culminating violence of the Chicago gang era, as seven members or associates of the “Bugs” Moran mob were machine-gunned against a garage wall by rivals posing as police. The massacre was generally ascribed to the Capone mob, although Al himself was in Florida.

The investigative jurisdiction of the Bureau of Investigation during the 1920s and early 1930s was more limited than it is now, and the gang warfare and depredations of the period were not within the Bureau’s investigative authority.

The Bureau’s investigation of Al Capone arose from his reluctance to appear before a federal grand jury on March 12, 1929 in response to a subpoena. On March 11, his lawyers formally filed for postponement of his appearance, submitting a physician’s affidavit dated March 5, which attested that Capone had been suffering from bronchial pneumonia in Miami, had been confined to bed from January 13 to February 23, and that it would be dangerous to Capone’s health to travel to Chicago. His appearance date before the grand jury was re-set for March 20.

On request of the U.S. Attorney’s Office, Bureau of Investigation agents obtained statements to the effect that Capone had attended race tracks in the Miami area, that he had made a plane trip to Bimini

Hemingway learns from Capone: submachine gun, cocktail and sun hat

Hemingway learns from Capone: submachine gun, cocktail and sun hat

and a cruise to Nassau, that he had been interviewed at the office of the Dade County Solicitor, and that he had appeared in good health on each of those occasions.

As we know, Capone was ultimately convicted of tax evasion.

More urgently, and as Papa Hemingway and Al Capone would doubtless approve, here is a roundup of recent cocktail notes of interest.

The Dorothy Parker American Gin martini

The Dorothy Parker American Gin martini

From the Boston Herald, the Dorothy Parker American Gin martini (from Harding’s in Manhattan).

Despite this claim from the New York Times that the dirty martini cleans up well, I still loathe dirty martinis. They are too briny, and an affectation.

Keep the olives on the side.

Keep the olives on the side. 
A little too floral

A little too floral

 

 

The Boston Globe has ten cocktails you are not ordering but should be.  I am unconvinced, but a couple are worthwhile:

The Martinez: Consider it the grandfather to the martini, or at least its classy next door neighbor. Typically a combination of Old Tom gin, sweet vermouth, maraschino liqueur, Angostura bitters, but there are variations and improvements out there. Order if you love Manhattans, but would like to take a step to the left.

The Corpse Reviver #2: London gin, absinthe, Cointreau, Lillet Blanc, lemon juice: equal parts of everything to awaken your palate, drive conversation, and please your bartender. Order if you’ve seen your last lemon drop. Just make sure to ask if the bar carries absinthe first.

The former bears history, the latter anesthesia.

Mixing up an "Avenue" at Del Posto

Mixing up an “Avenue” at Del Posto

For a bar in a New York restaurant, I would love to try Del Posto, an elegant space with cocktails to match.  And, as a general drinking reference for grown-up cocktails, try A Quiet Drink, which presents “bars and restaurants where one can have grown-up conversation over a good drink.”

A Drink Before the War (1994)

A Drink Before the War (1994)

Finally, one cannot leave the subject of a quiet drink without thinking of the private-eye novel that made Dennis Lehane‘s name, A Drink Before the War (1994).  Lehane is superb, and Drink the best place to start.


The Super Bowl, Jamie Casino and the Rights and Wrongs of White-Collar Defense

Contemplating the transition from the criminal-defense bar to the plaintiffs' bar.

Contemplating the transition from the criminal-defense bar to the plaintiffs’ bar.

As a football game, the Super Bowl was dreadful, at least in terms of entertainment value.  As a cultural petri dish, its television advertisements (and the reactions to the advertisements) were invaluable.  And the most mind-blowing bacillus in the dish, by consensus, had to be the commercial by Savannah plaintiffs’ lawyer Jamie Casino.  In the midst of the spot’s pageantry, if that is the word, most seemed to have missed a significant issue that Mr. Casino, inadvertently, raises for businesses and those white-collar or compliance lawyers who help them.

 

The more conventional approach.

The more conventional approach.

First, let’s take Mr. Casino at his word: he is a plaintiffs’ personal-injury lawyer with a predeliction for over-the-top advertisements, the kind on ones on local daytime television.

 

They told me this place was "perpetual care."

They told me this place was “perpetual care.”

Second, he tells a story in his Super Bowl ad.  What’s the story?  He was, he says, a “notorious criminal defense attorney.”  This work apparently brought him wads of cash and continued until his brother was killed (by notorious criminals).  He then decides to devote himself to helping the innocent and injured, rather than protecting the guilty and the criminal.

And there are some great scenes where he smashes his brother’s gravestone and then drags the sledgehammer (emblazoned with his brother’s name) along the ground, the furrow made then bursting into flame.  And, all to the tune of an old AC/DC song performed by Godsmack (according to the Esquire article).

One would applaud Mr. Casino for his creativity and then consign his video to the digital netherworld, but for the Manichaean dichotomies he sets up for us about “innocence” and “guilt.”

These issues are often fodder for lawyers’ family dinner-discussions; law school exams on ethics; and thrillers featuring lawyers (for example, Michael Connelly’s “Lincoln Lawyer,” L.A. criminal defense attorney Mickey Haller).

The Gods of Guilt (2013)

The Gods of Guilt (2013)

Haller is constantly conflicted about his role as a lawyer who defends unsavory people, as we see here in the Gods of Guilt trailer.

At the cocktail party or the dinner table, the question usually takes the form of “How can you defend someone who’s guilty?”

(“Because they pay” is not a suitable answer).

Strikingly, the question is often posed by corporate executives, officers, directors or employees who understandably see the world as one in which there are “good” non-criminal persons (including themselves, their loved ones, their golfing and hunting friends) and there are “bad” criminal persons (a group that excludes themselves, their loved ones and at least most of their golfing and hunting friends).  The situation is striking because those corporate exemplars are the very people whom men and women who can pull on the levers of power — Mr. Casino and his colleagues at the plaintiffs’ bar, for example, as well as Assistant United States Attorneys, FBI agents and federal regulators — will be first to label as “bad”; as criminal; as deeply suspect.

Thus, the dramatic flair of Mr. Casino’s commercial, a flair that disguises the dramatic ease with which one shifts from a mindset of “Everyone I represent is guilty” to “Everyone I represent is innocent.”

Here is why the seamlessness of Mr. Casino’s transition from “notorious” criminal-defense lawyer to “noted” plaintiffs’ personal-injury lawyer is relevant to how we think about white-collar criminal defense; compliance; and business ethics.

The nuclear option.

The nuclear option.

Consider two civil personal-injury cases.  In the first, we see a claim for a crushed leg arising from an accident involving a forklift.  In the second, we have a claim by the neighbors of an industrial facility for miscelleanous illnesses caused, they say, by air pollution from the plant.  Call them the “Leg” and “Pollution” cases.

Smokin' good-looking.

Smokin’ good-looking.

Then, consider two criminal cases.  The first involves the operation of a meth lab. 

Damned if I'll leave a tip for housekeeping.

Damned if I’ll leave a tip for housekeeping.

The second involves payment of money to third parties, payments which the prosecution characterizes as illegal “kickbacks” and the corporate defendant characterizes as unlawful “commissions.”  Call them the “Lab” and “Payment” cases.

And how did the Vietnamese dong do today?

And how did the Vietnamese dong do today?

 

 

 

 

Setting aside differences in the identities of the respective prosecuting parties (private versus sovereign) and differences in the burden of proof (preponderance-of-the-evidence versus beyond-a-reasonable-doubt), which cases are most alike?  Which “feel” the same?

Lawyers being lawyers, there are doubtless many idiosyncratic answers, but the consensus answer should be “Leg” and “Lab” are alike, and “Pollution” and “Payment” are alike.  In “Leg/Lab,” there will be little or no dispute that an undesirable harm (leg crushed) or prohibited act (meth lab operated) has occurred.  The defendant in each case may have factual or legal defenses to liability or guilt, and the jury must weigh the sufficiency of the evidence, but no one in the courtroom will argue that a crushed leg is a not a harm, or that a meth lab is lawful.  The leg is destroyed; there is no lawful purpose for a meth lab.  An injury occurred; a crime took place.

In “Pollution/Payment,” in contrast, there is a preliminary — and murkier — question to ask:  Has a harm or a crime occurred at all?  In “Pollution,” the defendant will concede that its operations caused emissions into the air.  Before offering, however, legal or factual defenses (the plant operated within its air permit; the statute-of-limitations has run; the plaintiff moved out of the neighborhood fifty years ago, or into it last month, etc.), the defendant will argue that there is no “general causation” — that even if the emissions of the plant are as the plaintiffs say, and even if their illnesses are as the plaintiffs say, those emissions cannot as a matter of medicine and science cause those illnesses.  Thus, no harm (or at least, no compensable harm).  In “Payment,” the defendant will concede, as the Government alleges, that a check was issued and a payment made, but will argue that there is no evidence of wrongful intent.   Thus, no crime.

It is easier for Mr. Casino — and for all of us — to move from the undisputed criminality of street crime to the undisputed harm of a product-liability or workplace-injury case.  (See Mr. Casino’s certainty of the guilt of his former clients and the innocence of his current ones.  Zealous advocacy is commendable, but individuals, not classes, are eventually determined guilty or innocent).  Lawyers, judges, juries, media, spectators — we all enjoy it when things are obvious and sure, a certitude that is as much emotional, even theological, as anything else.  In a white-collar case, internal investigation or compliance review, “intent” is the crux.  We cannot avoid the irritating question: “Has a crime occurred at all?”  In the aftermath of undesirable events, or to gain votes, Congress has a bad habit of criminalizing conduct that theretofore was innocent, commonly-accepted behavior in the American economy.  We do the same in our daily lives: How loosely do we use the word “criminal,” even when we should know better?  Conduct may be unethical, unseemly, a too-sharp business practice or a violation of our company policy, but those conclusions are more confounding and less satisfying than a criminal conviction.  Because white-collar offenses are mostly or wholly intent-based, though, “crime in the suite” really is different than “crime in street.”  White-collar crimes can cause great harm and should be prosecuted.  Let us be sure, however, that what we see is a crime, rather than unfortunate conduct and unlikable people distorted by the fun-house mirrors of our own indignation, anger and fear.  


Conservatives and Mandatory Minimum Federal Sentences

"Who spilled the bong water?"

“Who spilled the bong water?”

From Professor Berman’s “Sentencing Law and Policy Blog,” why conservatives should support the effort to reform mandatory minimums in non-violent federal sentences: the Heritage Foundation and mandatory minimum sentences:

A conservative friend alerted me to this notable entry from the blog of The Heritage Foundation authored by Evan Bernick and headlined “Time to Reconsider Mandatory Minimum Sentences.”   Here are excerpts: 

The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums — arbitrary, severe punishments for nonviolent offenses— while leaving for another day the question of whether mandatory minimums should apply to violent crimes….

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts.

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Mandatory minimum sentences have wrought terrible injustices in certain cases.  Granting district courts some additional limited sentencing discretion would improve the status quo without returning us to the era of unbounded judicial discretion.  It’s encouraging that, at a time when bipartisan consensus is difficult to come by, there is broad agreement that there are some problems with our federal criminal laws that ought to be addressed.  Too many mandatory minimums for nonviolent drug offenses committed by low-level offenders do not serve the ends of justice and leave no room for mercy.

I am not sure if this blog post represents the official view of The Heritage Foundation and therefore amounts to an official endorsement of the SSA.  But I am sure that those eager to see the SSA move forward in Congress should be encouraged to see this kind of sentiment being expressed on the website of a very influential think tank which says here that its “mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.” 

I am hopeful, based in part on the calls for reform represented by the votes and voices of Senators Ted Cruz, Mike Lee and Rand Paul, that a number of other groups and media with a mission “to formulate and promote conservative public policies” will also be vocal supporters of the Smarter Sentencing Act. If other prominent conservative groups echo the sentiments expressed above, my optimism about serious sentencing reforms being passed through this Congress may start to grow considerably.

William F. Buckley, Jr.

William F. Buckley, Jr.

In addition to arguing from fairness and proportion, this notion hearkens back to earlier, 20th-century formulations of American conservatism, many of which had a strong libertarian streak, as we see in this William F. Buckley quote — about drug-legalization — from a National Review symposium:

WE ARE speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen — yet a plague for which no cure is at hand, nor in prospect.

Perhaps you, ladies and gentlemen of the Bar, will understand it if I chronicle my own itinerary on the subject of drugs and public policy. When I ran for mayor of New York, the political race was jocular, but the thought given to municipal problems was entirely serious, and in my paper on drugs and in my post-election book I advocated their continued embargo, but on unusual grounds. I had read — and I think the evidence continues to affirm it — that drug-taking is a gregarious activity. What this means, I said, is that an addict is in pursuit of company and therefore attempts to entice others to share with him his habit. Under the circumstances, I said, it can reasonably be held that drug-taking is a contagious disease and, accordingly, subject to the conventional restrictions employed to shield the innocent from Typhoid Mary. Some sport was made of my position by libertarians, including Professor Milton Friedman, who asked whether the police might legitimately be summoned if it were established that keeping company with me was a contagious activity.

I recall all of this in search of philosophical perspective. Back in 1965 I sought to pay conventional deference to libertarian presumptions against outlawing any activity potentially harmful only to the person who engages in that activity. I cited John Stuart Mill and, while at it, opined that there was no warrant for requiring motorcyclists to wear a helmet. I was seeking, and I thought I had found, a reason to override the presumption against intercession by the state.

About ten years later, I deferred to a different allegiance, this one not the presumptive opposition to state intervention, but a different order of priorities. A conservative should evaluate the practicality of a legal constriction, as for instance in those states whose statute books continue to outlaw sodomy, which interdiction is unenforceable, making the law nothing more than print-on-paper. I came to the conclusion that the so-called war against drugs was not working, that it would not work absent a change in the structure of the civil rights to which we are accustomed and to which we cling as a valuable part of our patrimony. And that therefore if that war against drugs is not working, we should look into what effects the war has, a canvass of the casualties consequent on its failure to work. That consideration encouraged me to weigh utilitarian principles: the Benthamite calculus of pain and pleasure introduced by the illegalization of drugs.

A YEAR or so ago I thought to calculate a ratio, however roughly arrived at, toward the elaboration of which I would need to place a dollar figure on deprivations that do not lend themselves to quantification. Yet the law, lacking any other recourse, every day countenances such quantifications, as when asking a jury to put a dollar figure on the damage done by the loss of a plaintiff’s right arm, amputated by defective machinery at the factory. My enterprise became allegorical in character — I couldn’t do the arithmetic — but the model, I think, proves useful in sharpening perspectives.

Professor Steven Duke of Yale Law School, in his valuable book, America’s Longest War: Rethinking Our Tragic Crusade against Drugs, and scholarly essay, “Drug Prohibition: An Unnatural Disaster,” reminds us that it isn’t the use of illegal drugs that we have any business complaining about, it is the abuse of such drugs. It is acknowledged that tens of millions of Americans (I have seen the figure 85 million) have at one time or another consumed, or exposed themselves to, an illegal drug. But the estimate authorized by the federal agency charged with such explorations is that there are not more than 1 million regular cocaine users, defined as those who have used the drug at least once in the preceding week. There are (again, an informed estimate) 5 million Americans who regularly use marijuana; and again, an estimated 70 million who once upon a time, or even twice upon a time, inhaled marijuana. From the above we reasonably deduce that Americans who abuse a drug, here defined as Americans who become addicted to it or even habituated to it, are a very small percentage of those who have experimented with a drug, or who continue to use a drug without any observable distraction in their lives or careers. About such users one might say that they are the equivalent of those Americans who drink liquor but do not become alcoholics, or those Americans who smoke cigarettes but do not suffer a shortened lifespan as a result.

Curiosity naturally flows to ask, next, How many users of illegal drugs in fact die from the use of them? The answer is complicated in part because marijuana finds itself lumped together with cocaine and heroin, and nobody has ever been found dead from marijuana. The question of deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any conclusions about alcohol consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol consumption if it happened that half of those deaths, or more than half, were the result of drinking alcohol with toxic ingredients extrinsic to the drug as conventionally used. When alcohol was illegal, the consumer could never know whether he had been given relatively harmless alcohol to drink — such alcoholic beverages as we find today in the liquor store — or whether the bootlegger had come up with paralyzing rotgut. By the same token, purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that would qualify for regulated consumption after clinical analysis.

But we do know this, and I approach the nexus of my inquiry, which is that more people die every year as a result of the war against drugs than die from what we call, generically, overdosing. These fatalities include, perhaps most prominently, drug merchants who compete for commercial territory, but include also people who are robbed and killed by those desperate for money to buy the drug to which they have become addicted.

This is perhaps the moment to note that the pharmaceutical cost of cocaine and heroin is approximately 2 per cent of the street price of those drugs. Since a cocaine addict can spend as much as $1,000 per week to sustain his habit, he would need to come up with that $1,000. The approximate fencing cost of stolen goods is 80 per cent, so that to come up with $1,000 can require stealing $5,000 worth of jewels, cars, whatever. We can see that at free-market rates, $20 per week would provide the addict with the cocaine which, in this wartime drug situation, requires of him $1,000.

My mind turned, then, to auxiliary expenses — auxiliary pains, if you wish. The crime rate, whatever one made of its modest curtsy last year toward diminution, continues its secular rise. Serious crime is 480 per cent higher than in 1965. The correlation is not absolute, but it is suggestive: crime is reduced by the number of available enforcers of law and order, namely policemen. The heralded new crime legislation, passed last year and acclaimed by President Clinton, provides for 100,000 extra policemen, even if only for a limited amount of time. But 400,000 policemen would be freed to pursue criminals engaged in activity other than the sale and distribution of drugs if such sale and distribution, at a price at which there was no profit, were to be done by, say, a federal drugstore.

So then we attempt to put a value on the goods stolen by addicts. The figure arrived at by Professor Duke is $10 billion. But we need to add to this pain of stolen property, surely, the extra-material pain suffered by victims of robbers. If someone breaks into your house at night, perhaps holding you at gunpoint while taking your money and your jewelry and whatever, it is reasonable to assign a higher “cost” to the episode than the commercial value of the stolen money and jewelry. If we were modest, we might reasonably, however arbitrarily, put at $1,000 the “value” of the victim’s pain. But then the hurt, the psychological trauma, might be evaluated by a jury at ten times, or one hundred times, that sum.

But we must consider other factors, not readily quantifiable, but no less tangible. Fifty years ago, to walk at night across Central Park was no more adventurous than to walk down Fifth Avenue. But walking across the park is no longer done, save by the kind of people who climb the Matterhorn. Is it fair to put a value on a lost amenity? If the Metropolitan Museum were to close, mightn’t we, without fear of distortion, judge that we had been deprived of something valuable? What value might we assign to confidence that, at night, one can sleep without fear of intrusion by criminals seeking money or goods exchangeable for drugs?

Pursuing utilitarian analysis, we ask: What are the relative costs, on the one hand, of medical and psychological treatment for addicts and, on the other, incarceration for drug offenses? It transpires that treatment is seven times more cost-effective. By this is meant that one dollar spent on the treatment of an addict reduces the probability of continued addiction seven times more than one dollar spent on incarceration. Looked at another way: Treatment is not now available for almost half of those who would benefit from it. Yet we are willing to build more and more jails in which to isolate drug users even though at one-seventh the cost of building and maintaining jail space and pursuing, detaining, and prosecuting the drug user, we could subsidize commensurately effective medical care and psychological treatment.

I HAVE spared you, even as I spared myself, an arithmetical consummation of my inquiry, but the data here cited instruct us that the cost of the drug war is many times more painful, in all its manifestations, than would be the licensing of drugs combined with intensive education of non-users and intensive education designed to warn those who experiment with drugs. We have seen a substantial reduction in the use of tobacco over the last thirty years, and this is not because tobacco became illegal but because a sentient community began, in substantial numbers, to apprehend the high cost of tobacco to human health, even as, we can assume, a growing number of Americans desist from practicing unsafe sex and using polluted needles in this age of AIDS. If 80 million Americans can experiment with drugs and resist addiction using information publicly available, we can reasonably hope that approximately the same number would resist the temptation to purchase such drugs even if they were available at a federal drugstore at the mere cost of production.

And added to the above is the point of civil justice. Those who suffer from the abuse of drugs have themselves to blame for it. This does not mean that society is absolved from active concern for their plight. It does mean that their plight is subordinate to the plight of those citizens who do not experiment with drugs but whose life, liberty, and property are substantially affected by the illegalization of the drugs sought after by the minority.

I have not spoken of the cost to our society of the astonishing legal weapons available now to policemen and prosecutors; of the penalty of forfeiture of one’s home and property for violation of laws which, though designed to advance the war against drugs, could legally be used — I am told by learned counsel — as penalties for the neglect of one’s pets. I leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal, the legal equivalent of a My Lai massacre. And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors.