Erik Luna: Judicial Discretion: A Look Back and a Look Forward Five Years After Booker

Professor Erik Luna recently published his article, Judicial Discretion: A Look Back and a Look Forward Five Years After Booker in the Federal Sentencing Reporter. The article is a transcript of a conference about mandatory minimums which was held at the University of Utah Law School. Professor Luna teleconferenced in to give his remarks as part of the panel, which also included: Hiram Chodosh, Allison Weir, William Sessions, Douglas Berman, Steven Chanenson, Benjamin McMurray, Paul Cassell, and Jon Wroblewski.

Professor Luna, in his argument against mandatory minimums, outlined the trivial “cliff effect” that they inherently carry. He gave the example that 4.9 grams crack cocaine carries a relatively short sentence, but add just a fraction of a gram, and 5.0 grams triggers the mandatory 5 years in federal prison. Such a system, he argued, removes the impartial judge from the sentencing procedure and places the arguably partial prosecutor in the sentencing role. Put another way, Prof. Luna stated, mandatory minimums “implicate the separation of powers doctrine by taking away the traditional judicial authority over punishment and vesting this authority in the executive bench, thereby undermining the historic power of the judiciary to check law enforcement.”

Professor Luna also touched upon the troubling effects of mandatory minimums – that they act as a sort of “trial tax” on defendants who exercise their constitutional right to a trial. Additionally, minimums grant excessive leverage to prosecutors, especially upon threat of “charge stacking,” where the government divides up a single criminal episode into multiple crimes to increase the mandatory sentence.

He summed up his remarks by quoting Judge John Martin by saying that “[m]andatory minimums are over-inclusive, they’re unfair, and they can even be draconian. They transfer sentencing power from neutral judges to partisans in the criminal process. They make for poor criminal justice policy and raise all sorts of constitutional problems. Other than that, they’re a great idea.”

Congratulations to Professor Luna for his participation in the conference and on the publication of his article.

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