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November 27, 2011

Start posing questions for DOJ visitor (and/or react to short paper assignment)

As you all know, everyone needs to turn in short-paper advice for Jonathan Wroblewski, the director of the Justice Department's Criminal Division Office of Policy and Legislation, by mid-day on Monday. While or after you complete this task, I hope you are thinking about hard questions to ask Mr. Wroblewski concerning his work for the Justice Department or his role on the US Sentencing Commission when he visits our class on Tuesday.

For a variety of reasons, it might be a good idea to get a list of questions for Mr. Wroblewski started in the comments to this post. So, go for it. In addition, students should also feel free to react to the second short-paper assignment in the comments to this post.

November 27, 2011 in Class activities, Guideline sentencing systems, Who decides | Permalink


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Overall I enjoyed the assignment because for me it was a better way to learn about mandatory minimums than by reading a chapter in a textbook. To determine what a reasonable suggestion would be demanded I read a variety of material, and that was good for getting different perspectives on the issue.

I did feel an inferiority complex the entire time while writing, thinking "This man is at the top of his profession and whatever I say will probably seem simplistic and most likely a waste of his time to read." At the very least, I felt that what I suggested, he had probably already considered. However, I was able to quiet those voices at least long enough to finish the assignment.

I would appreciate hearing from Mr. Wroblewski why he is a supporter of mandatory minimums, despite evidence for years that they are unfairly harsh. I read that a panel for a symposium hosted by the University of Utah that he was on with Prof. Berman that of the 7 or so people on the panel, he was one of a few, or the only one, in favor of MMs. If he could generally explain his stance, OR why he keeps his stance when so many are against MMs, that would be helpful.

Posted by: Maureen F | Nov 27, 2011 6:03:55 PM

Related to what my short paper was about, I'd like to ask him whether he thinks it is in the Department of Justice's interest to reduce the prison population. The speech linked on the blog confirmed my initial reaction, which is that especially in times of tight budgets it's not in DOJ's interest to have an ever-growing prison population.

Posted by: Colin P | Nov 27, 2011 6:26:30 PM

This isn't related to mandatory minimums, but it's interesting and I didn't know where else to put it: http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/11/death_row_inmate_haugen_now_cr.html

This is related to mandatory minimums: does he think that the certainty of receiving a particular sentence for one's misdeeds is a deterrent, or are the mandatory minimums not made public enough for the deterrent effect to manifest itself (e.g. criminals don't know what the exact penalties are for each crime)?

Posted by: Heather Williams | Nov 27, 2011 7:47:30 PM

I'd be interested in hearing Mr. Wroblewski's thoughts on whether mandatory minimums contribute to unwarranted sentencing disparity--arguments on both sides are noted in the report by the sentencing commission.

Posted by: Harrison Markel | Nov 27, 2011 8:08:04 PM

One of the main reasons for racial disparity in who is subject to the mandatory minimum for powder cocaine offenses is that African Americans qualify for safety valve relief from the minimum least often. This is largely because African Americans generally have more criminal history points than other races, automatically disqualifying them from the valve’s protection.

The Sentencing Commission discusses this issue in its report and recommends expanding the safety valve to include offenders with more criminal history points to remedy the problem. I suggested another way to solve the problem in my memo, but I am curious as to whether Mr. Wroblewski thinks that this is even a problem that needs to be solved.

Does he think that the DOJ should try to combat the racial disparity in this context when there is arguably a valid thing causing the disparity- that our system gives those with greater criminal histories harsher sentences. Should the fact that this arguably valid goal of deterring those with a greater criminal past has a disparate effect mean that the disparity is unwarranted?

Posted by: Ranya E. | Nov 28, 2011 9:41:30 AM

I am curious as to Mr. Wroblewski's sentiments/ experiences in working with the Commission to respond to Congress. There were instances in the Report where the Commission strongly suggested Congress request them to investigate something. How often does Congress do so, and if not does the Commission go rogue and investigate such issues sua sponte? Also after Booker are there any contingency plans for addressing sentencing disparity beside the guidelines?

Posted by: Olivia Bumb | Nov 28, 2011 10:39:16 AM

I'd be interested in hearing about how the United States Attorney Manual (USAM) is drafted/updated/utilized. I read AG Holder's May 2010 memo that seemed to caution always changing "the most serious offense that is consistent with the nature of the defendant’s conduct, and likely to result in a sustainable conviction" in certain MM circumstances, at least that is how I interpreted it given his emphasis on the individual nature of each case. Does the DOJ view the manual as a tool to address some of the issues in the Sentencing Commission Report?

Posted by: Kevin S | Nov 28, 2011 8:15:53 PM

Like Olivia, I was interested in the dialogue between the Commission and Congress, as well as the DOJ. I would also be interested in hearing whether there has been any discussion of modifying mandatory minimum statutes to feature alternative non-prison sentences, or a combination of prison and alternative sentences. For example, a statute could provide for a lower mandatory minimum prison term combined with a mandatory minimum community service requirement. Given the cost of growing prison populations, this seems like an option worth researching and/or testing.

Posted by: Rees Alexander | Nov 28, 2011 10:31:54 PM

Like Rees and Colin, I am interested to hear about efforts to reduce the increasing prison populations. More specifically, I would like to hear Mr. Wroblewski's perspective on how to effectively deal with increased incarceration in the context of mandatory minimums for minor drug offenses. I am curious what Mr. Wroblewski's thoughts are regarding a reduction in all drug guidelines by two levels. It seems this reduction would help alleviate the severe overcrowding in the federal prison system while more effectively targeting the most culpable and dangerous offenders. Also, I would like to hear whether there has been any discussion of alternatives to incarceration for low-level, non-violent drug offenders. Experience at the state level demonstrates that legislatures can lower incarceration rates and costs while ensuring public safety.

Posted by: Todd Seaman | Nov 29, 2011 10:10:14 AM

While I thoroughly enjoyed Mr. Wroblewski's perspective and personal insights having so much expertise in the area, I was hoping he would have touched upon more of the "whos" that he deals with in his position. Specifically, beyond the prosecutors' and public defenders' focus, I was interested in knowing whether the DOJ works closely with Article III judges and if so, how it affects his work and the policy considerations they eventually advocate for.

In addition, based on a law journal article I read by federal Judge James Gwin of the Northern District of Ohio, I was curious to ask (although I never got around to it) what Mr. Wroblewski's thoughts where in regards to sample jurors in order to help determine more appropriate mandatory minimum penalties based on public sentiments.

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