Who’s Your Daddy has been woven into the American experience. It is a phrase that is used by a person to imply that that person has power and dominion over you.

From The Zombies,  to athletic teasings, and on to Angelina Jolie baiting Brad Bitt, Who’s Your Daddy is part of our pop culture. True, this phrase has a misogynist tone and vibe to it. I don’t like that part of it. For a smart article on the problems with using this phrase check out a this WaPo article.

By using this phrase am I giving credence to misogynist nomenclature? Why does the daddy get to say? I’ve decided to go with nomenclature because I believe it is this type of old school paternalism that the government wishes to exert upon the citizenry.

I think I feel like using that phrase because most defense attorneys feel like they are getting Who’s Your Daddied by Assistant United States Attorneys (“AUSA”from here out).

Why is that? The AUSA wants to be my daddy. They want to be the ones in control of the courtroom. Who does not love being in control?

In federal practice, there are two ways to successfully negotiate a plea in a drug cases. First, your client must prostrate themselves and confess all to their daddy. A defendant will confess all of their wrongs, and possibly the wrongs of everyone else they know. Then you and your client cross your fingers and hope that the AUSA gives you something in return.  The second way. . .well. . .really there isn’t a second. The second is the same as the first.

I would make the argument that Assistant United States Attorneys have more power to wield over individuals than just about any other person in the United States government. I welcome someone to argue with me otherwise. They have the power, by deciding what charges to bring against you, to decide what types of sentences a human being will be looking at.  Not a judge, not a social worker, and not even a victim of a crime. No, the prosecutor decides. What gives a particular AUSA such power?

The power comes to them through the mandatory minimum sentencing laws that are pervasive throughout the federal criminal justice code. For the uninitiated, mandatory minimum sentences are minimum sentences that are required by law  by virtue of a particular type of charge. For example, in federal court, depending on the amount of drugs you possess, you can face a minimum of 5, 10, or more years based on the drug quantity you possess. If someone is charged with these certain drug amounts a judge has almost no discretion in sentencing the accused.

How did this madness start? Well, how it all started isn’t the point of this post. But, for a little background, I’ll say a few words on the start of it all.

It could (and has been) argued that the frenzy started with the death of basketball star Len Bias. Crack scared people. What do people do when they are afraid? They make bad decisions. As a result of the death of Bias, the overall tenor of the DRUG WAR, and flawed thinking, we passed laws that punished the poor and non-white amongst us. The Anti-Drug Abuse of 1986 punished crack more harshly than cocaine. This law unfairly targeted minority communities and did little more than load our prisons with young men.  The law added many new mandatory minimum sentences to the federal code. Judges will still run the courtroom and sentencing still right? Nope. Enter the prosecutor daddy.

Outside of begging your daddy there is only a very narrow exception that allows for defendants charged with a mandatory minimum crime to get a sentence below the mandatory sentence. A defendant must be eligible under the Safety Valve Act to get a sentence below the minimum.  This act is very limited. You must essentially have a nonexistent criminal history.

Also? Also, and you know this is coming, even if you have no criminal history you STILL have to spill your guts to a government agent and the AUSA. You know what is nifty about that set up? The AUSA gets to decide if you are truthful enough and complete enough in your truthfulness. Not a probation officer, not someone who works for the court, but the AUSA. Still your daddy.

It has taken over 25 years for lawmakers and policy influencers to see the error of their ways on this. Some civil rights leaning groups have been decrying this cause for a long time. The more conservative folks have come aboard recently. Lots of people don’t like prison overcrowding ($$$). Other folks just don’t like the big-brother type feel of a prosecutor being the daddy of a courtroom.

You may ask: what types of people agree that mandatory prison sentencing is a bad idea? Well, how about Patrick Leahy, Grover Norquist, Rand Paul, George Will, American Bar Association, National Association of Criminal Defense Lawyers, Eric Holder, ACLU, and the Cato Institute.

It is fair to say that the above group of people is not an homogenous one.

This brings us up to the present day. There are two bills floating around right now hoping to reduce the applicability of mandatory minimum prison sentences. Rand Paul and Patrick Leahy had the Justice Safety Valve Act. This bill is more comprehensive. This is the bill that the federal criminal justice system needs. Unfortunately, it probably won’t be the one that takes. The Smarter Sentencing Act just passed through committee. Although it would be tremendous progress, the SSA is not as strong of a potential reform as the the Justice Safety Valve Act would be. Sadly, as with happens with many bills on the hill, the SSA was watered down in the version that passed.

Here is the point. You don’t want an AUSA to be your daddy. I don’t like an AUSA being my daddy or my client’s daddy. I am not here to thrash prosecutors as a den of rabid thieves. I have a good working relationship with the AUSAs I work with. I most certainly hope the majority of AUSA do not throw in with Bill Otis. Mr. Otis has proclaimed that there is a revolt amongst the daddys. (For some fantastic reporting on Otis and the Revolts check with Scott Greenfield and Professor Berman) The daddys know better than all of us! Really! Mandatory minimums keep us safe! In fact, a passage from a blog post by Otis shows just how deep the paternalistic urges goes:

As career DOJ prosecutors know, strong mandatory minimum statutes are essential to rein in the sometimes ideological, sometimes naive, and sometimes careless decisions of sentencing courts.  I explained why here, here and here, keying off a recent discussion by the Second Circuit.

Conservatives, moderates, and liberals are coming together. Thinking citizens do not want laws that pack our prisons in a racially biased way. We want judges to be able to judge each crime and each defendant individually.

Who isn’t on board? Just daddy.