From a recent New York Times article:
“People who commit violent crimes are not the reason for the exploding federal prison population. Most of the growth has come from drug offenders caught up in absurdly harsh mandatory minimum sentences that bear no relation to the seriousness of their offense. “Mandatory minimums should be reduced or eliminated completely,” said President Obama. “Judges should have more discretion to shape sentences and to use alternatives to prison.”
After failed efforts at reform, an ambitious new bill called the SAFE Justice Act would eliminate mandatory minimums for many low-level drug crimes and create educational and other programs. Bill Clinton who signed [the] 1994 law that played a key role in the soaring growth of America’s prison system said, ‘I signed a bill that made the problem worse. And I want to admit it.’
Commentary: Well we say, too little, too late. Too late for those who have already served their sentences and too late for those who have served almost all of their sentences. Writer Ta-Nehisi Coates recently quoted the “moral arc” portion of a Martin Luther King speech in which King said that “the arc of the moral universe though long, bends towards justice.” Well as Coates said, it didn’t bend for slaves who died as slaves and we say it didn’t bend for prisoners who died as prisoners.
And you will see, the proposed changes will be less than expected like the excruciatingly incremental two-point reduction amendment for drug offenders that everybody thought would lead to a mass release of prisoners. That never happened. Very few people got out, and those who were immediately eligible never got out immediately because the amendment said that no one could be released until a year after the amendment was enacted! So the “arc” didn’t bend for those prisoners either. As poet Maya Angelou said: Things are never as good (or as bad, thank g-d) as you think.” And if these new laws are not retroactive, they are a joke. A mistake should be acknowledged and everyone affected by the mistake should get relief.
The climate has changed. I will admit to that. It might even pay to go to trial now, with a triable case of course, without being frightened of the consequences. But before everyone decides to go to trial, you should know whether you are a) be safety valve eligible, (drug cases), and b) have the “right” judge. But attitudes have changed so it is entirely possible that you could come out even better after trial. Here’s why I am saying it: “Safety valve” eligibility is not only for defendants that do not go to trial. It is applies to everyone prior to sentencing. “Safety valve” is decided “at sentencing,” see 18 usc 3553(f). And safety valve qualification can come out much more convincingly and dramatically at a trial. When you plead guilty your sentence turns on the dry remarks of your defense attorney, your prosecutor and a judge who has never heard or seen the evidence against you and will be inclined to favor the prosecutor whom he assumes is presenting the more accurate version of the defendant’s role. In sum, a trial can be a better “presentence investigation” than a Presentence Investigation (PSI) conducted by a probation officer. At trial you can call witnesses. You can vigorously attack the credibility of government witnesses who will always paint you in a worst light possible. A plea does not admit nuance. A trial does– with every twitch on a witness’ face, with every unexpected answer; trials go beyond guilt or innocence. Remember that.
David Zapp and Johanna Zapp