The name Mark Osler may be unfamiliar to many Wacoans.
That’s OK. You might have heard him commenting about criminal justice issues on National Public Radio or have seen him on “Good Morning America.”
Perhaps you’ve read his book “Jesus on Death Row” — a book that had its genesis in a Sunday school class at Seventh & James Baptist Church. You might have seen this year’s movie “American Violet,” in which one of the characters is based on him. If you’re an attorney, you may have heard about the Supreme Court case he won in January, Spears v. United States. If you’re a law professor, you may read his blog “Law School Innovation.” If you’re a law student, or just an all-around Osler fan, you may read his personal blog, “Osler’s Razor.”
The Wacoan is proud to spotlight a local citizen with a national reputation. Mark W. Osler is our 2009 Wacoan of the Year.
Osler grew up in Grosse Pointe, Michigan, a suburb of Detroit. He graduated from The College of William and Mary and later attended Yale Law School, where he was the senior editor of the Yale Law Journal and a Coker Fellow. After clerking for U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania, he returned to Detroit and joined the law firm of Dykema Gossett, PLLC.
He then became a federal prosecutor for the U.S. District Court, Eastern District of Michigan, where he worked on more than 20 major felony trials between 1995-2000. The common thread to Osler’s diverse interests is an emphasis on mercy, even within the criminal justice system. Perhaps, especially within the criminal justice system. Whether it was his previous work as a prosecutor or his current work teaching Baylor law students, Osler looks for the role that mercy might play.
The least of these
“Jesus on Death Row”
In a parable from the Gospel of Matthew, Jesus rebukes those who neglect to visit prisoners. In Matthew 25:40, Jesus said, “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.” When Osler sees a condemned man on death row, he also sees a similar condemned Man — Jesus Christ. Osler’s book, “Jesus on Death Row” (Abingdon, 2009) examines the trial and execution of Jesus from the standpoint of Texas criminal law.
The subject of the death penalty in Texas is tricky. Most voters identify themselves as Christians. Most of those same voters support the death penalty. Asking them to examine those values side by side is a tall order, but one that Osler fills.
In the April 2009 issue of the Wacoan, Mary Landon Darden conducted a Q&A with Mark Osler after the publication of his book. Since its release in February, Osler has received many letters from readers, including from prisoners.
“I get letters from prison all the time. I’ve gotten letters from death row. What’s interesting is that some of the prisoners think I was wrong,” Osler said. “I had a murderer write to me from the Gatesville prison, and she said that the death penalty should be acceptable because in Buddhism it brings the world back into balance to execute the murderer. It was kind of an ironic thing for her to say.”
Osler acknowledges that his take on the Passion of Christ as presented in the Gospels is not one that is universally shared.
“This is one of those issues where there’s principled views on both sides,” Osler said. “My reading of the Gospels pushes me that way, and, well, if someone has a different reading of Scripture, then they’re going to disagree with you. You’re going to have to shake hands and admit that you have different perspectives at that point.”
Blaine McCormick, associate professor of management at Baylor’s Hankamer School of Business, said, “Mark Osler is a very fair and very clear-minded scholar and writer. I will give him the highest compliment one professor can give another: His writings on the death penalty changed my own thinking on the subject. His reasonableness, his clarity and his humanity all combined to make this change.”
Having served as a federal prosecutor, Osler knows that finding the truth in a criminal case is complicated, whether you’re in Jerusalem, Israel or in Hearne, Texas.
The truth shall set you free
Although Osler does not star in this year’s Tim Disney film “American Violet,” the fictional Joe Fischer is based on him. Osler’s character is a Baylor law professor who advises a small-town attorney about whether to take a difficult case — one where the truth is hidden. Twice in the movie, a character quotes the verse from John 8:32: “the truth shall set you free.”
If you’re familiar with the 1999 drug raids in Tulia, Texas that garnered national attention, the situation in Hearne in 2000 was remarkably similar. In fact, the working title of the film was “American Inquisition.” A total of 28 Robertson County residents, mostly African-American, were arrested on drug charges in a military-style roundup. One of those people arrested was Regina Kelly, called Dee Roberts in the film. The district attorney’s only informant was a man who was a drug user with a history of mental illness. Kelly was urged to take a plea bargain. She refused on the grounds that she was innocent of all drug charges.
The American Civil Liberties Union (ACLU) contacted Osler out of the blue to see if he would be interested in working on the case. He brought in a former student named David Moore, portrayed in the movie as Sam Conroy.
“That scene in the movie where I talked with David is actually pretty realistic. It happened in the parking lot out here,” Osler said, gesturing toward the Law School parking lot. David Moore now practices law in Groesbeck.
“Professor Osler and I shared a similar background with our respect for law enforcement. He was a former federal prosecutor, and I was a former career police officer, undercover narcotics officer and assistant state prosecutor in Texas. I believe both of us appreciate and hold in high regard good police officers and their dedication to the communities in which we live and raise our families,” Moore said. “I think it is safe to say that neither of us felt we could turn our heads and ignore what went on in Hearne, particularly when both of us were in a position to do something about it.
“I am deeply indebted to Professor Osler for having the gall to suggest to the experienced and capable ACLU lawyers and attorneys at Wilmer, Cutler, Pickering, Hale, and Dorr [now Wilmer Hale] that a former cop and small town lawyer, who had only been practicing solo for less than a year, might be able to help with the case,” Moore said. “I actually asked Professor Osler if I could carry his briefcase into the federal courtroom to have the privilege of watching him work on the real lawsuit. Little did I know that the offer I made to watch him work would end up with me working on the case and Professor Osler representing me.
“Professor Osler remained involved in the case until the very end, even hosting a pizza-eating strategy session at his home with his wife and sons sharing their patio with a bunch of out-of-town lawyers. Professor Osler attended the reconciliation meeting held at an African-American church in Hearne after the lawsuit was settled,” Moore continued. “The church scene at the end of the movie and the scene about the incident involving the attack at the swimming pool that Professor ‘Joe Fisher’ Osler and I talked about were based upon real events.”
In 2005, the district attorney of Robertson County settled with the ACLU, and Texas law was changed. No longer can a grand jury indict a suspect based on the testimony of one confidential informant.
Osler’s work on the Hearne case, as well as on other cases, was done on a pro bono basis, without compensation. Magistrate Judge Jeff Manske of the Western District of Texas commends Osler’s charitable tendencies.
“He does it either because he wants to right what he perceives as a wrong or he wants to provide quality representation in an area where he feels the law needs to be changed,” Manske said.
In the Hearne case, Osler and Moore worked together to right a wrong. In a series of cases that went before the Supreme Court, Osler advocated for a law that needed to be changed. That law concerned inequities in sentencing for crack cocaine.
Equal justice under law
The Supreme Court
This phrase is engraved on the front of the Supreme Court building. Equal justice is what each petitioner seeks. But what if the law itself is unjust?
The Anti-Drug Abuse Act of 2006 established penalties for crack cocaine that were 100 times tougher than penalties for powder cocaine. Guess who uses powder cocaine? Drug kingpins. Guess who uses crack? Street couriers. The law resulted in low-level users being locked up for a long time while drug distributors got off with relatively light sentences.
In United States v. Booker, 2005, Justice John Paul Stevens quoted Osler in his majority opinion. Justice Stevens said that applying the mandatory 100:1 sentencing guidelines violated a defendant’s Sixth Amendment rights. That decision overruled mandatory federal sentencing guidelines.
The Booker case influenced the 2007 case of Kimbrough v. United States, in which Osler filed an Amicus brief. Although the Supreme Court ruled that the 100:1 sentencing guidelines for cocaine offenses were advisory, the Court did not provide new sentencing guidelines. Osler worked on the Kimbrough case with then third-year law student Dustin Benham. Benham graduated in 2006 and is now an adjunct professor at Baylor Law School. He also practices law in Dallas.
“We were there when Kimbrough was argued,” Benham said. “After the argument, which had gone very well from our estimation, we walked out the front doors at the top of the marble steps, and you’re looking down across the street and the Capitol is there, and it’s one of those moments in life that you’ll probably never forget.”
Osler used the moment as a teaching tool.
“You walk out at the top with all those white marble steps, and it’s this brilliant day. You could see out over the Capitol, down on the Mall and down in the plaza all the news crews are waiting. I just stopped and I said, ‘Enjoy this for a moment, because this is as good as it gets.’ You know, as a lawyer, if you’ve done something even in secret to change the law, that’s going to make it better, even if no one else sees it, you need to appreciate that. That’s teaching,” Osler said.
Osler and Benham won at the highest court in the land again in January in Spears v. United States. This time, the Court granted their petition for certiorari and ruled in their favor, all in the same day. Benham learned the good news online.
“Basically, every Tuesday orders come out from the Supreme Court, and you can check the website. I made it my own duty to check the website every Tuesday and email around if something happened. If the order is certiorari denied, that means you lost even before you got started. In the alternative, the other order I was looking for was a certiorari granted, which would set up a briefing schedule. But we won without even having to argue,” Benham said. “I would have liked to have seen Professor Osler argue, but we won on the brief.”
Benham became involved in Kimbrough and Spears cases because he raised his hand. After a sentencing class, Osler asked for volunteers on a project.
“I may have been the only one who volunteered,” Benham said. He is still amazed that Osler allowed him to participate in such challenging cases while he was still a student.
“I think one of the most amazing parts of Mark Osler as a professor is that a lot of people with his kind of national stature would never have shared experience with students because it’s just more work to involve students. We don’t know what we’re doing when we’re students,” Benham said. “He’s undeniably brilliant. As someone who got to go along for the ride on all of these high-level national briefs, he’s a guy who puts students first. There have been a handful of us over the last five years, and he affected the trajectory of our careers profoundly.”
Benham is not the only student with high praise for Professor Osler. On the day of our interview, I attended his sentencing class — the same one where Benham volunteered for a little extra work. That class normally has about 26 students; this quarter it has 51. Osler’s approach to teaching law is in demand.
And what does the Lord require of you but to do justice, to love kindness, and to walk humbly with your God?
— Baylor Law School
The passage from Micah 6:8 is carved into the Shelia and Walter Umphrey Law Center, which houses Baylor Law School. Osler tries to reconcile the tension between justice and mercy in his role as an instructor of future attorneys at law.
Osler joined the faculty at Baylor Law School in 2000. He teaches several upper-level courses, including Clinical Experience in Criminal Law, Criminal Practice and Procedure, Oral Advocacy, Post Convention Procedure: Sentencing and Professional Responsibility.
Third-year law student Jessica Phelps said Professor Osler made an impression on her during law school orientation.
“He told a story about why he decided to go to law school. He was a process server, and he served a woman papers in a child custody dispute. He told us that he watched her cry in her car, and he knew that she knew she was going to lose her kids,” Phelps said. “Professor Osler has never lost sight of how the law affects real people’s lives. He brings that to class with him every day.”
Another third-year student, Abigail Nettles, said, “Professor Osler has a story from personal experience about almost every topic he teaches. Usually, these are funny stories from which we can learn what not to do, but we also get to hear about how people are personally affected by what criminal lawyers do,” she said. “And in every class, Professor Osler has the same energy and excitement about what he’s doing, and it is contagious to the students. Being in Professor Osler’s classroom, it’s great to be able to see that he both teaches what he practices and practices what he teaches.”
Professor Brian Serr, who sometimes co-teaches with Osler, said that in one course, Osler holds simulated hearings. One student takes the role of the district attorney and another takes the role of the state prosecutor. Other students might play a police officer or a witness. Once or twice a year, Professor Serr plays the judge in one of Baylor’s four courtrooms.
“The simulated hearing is a very good exercise that is consistent with Baylor’s philosophy of practice-oriented law,” Serr said. “It’s something I look forward to. It’s interesting, and it helps me stay on top of things that are relevant to the courses I teach as well.”
Magistrate Judge Jeff Manske, who also serves as an adjunct professor at the law school, praised Osler’s ability to teach the practical side of law.
“He has the students actually do the work, so when the time comes, they’ve actually had some experience doing it. They come to the courthouse and do it before a real federal judge and are treated just like they would be treated as if they were representing a real client,” Manske said.
“One of the things that makes Professor Osler a success is his creativity. He teaches legal ethics, and he begins that class with a lecture and study on classical art pieces, and talks about how these ethical concepts that we apply as lawyers today are rooted in art history, and he’s able to draw parallels from these pieces of ancient art and bring them to contemporary times.”
Although Osler did not begin his law career in academia, he now publishes in several scholarly journals. His recent piece called “Policy, Uniformity, Discretion, and Congress’s Sentencing Acid Trip” was published in the “Brigham Young University Law Review.”
“If you were to Google ‘Brigham Young’ and ‘acid trip,’ that would be the only hit,” Osler joked. “I’ve got a piece coming out in the ‘Georgetown Journal of Law & Public Policy. One at ‘The Ohio State Journal of Criminal Law’ in the next several months. So, I do the usual academic thing.” The “usual academic thing” includes more than 20 academic articles published over the past nine years.
As you might imagine, Osler has strong views about the field of law education. In fact, he participates in a professional blog on that very subject. “Law School Innovation” is a member of the Law Professor Blogs Network. He argues that teaching law involves a lot more than learning by rote.
“The best teaching from my professors — well, I don’t remember, really, the rule against perpetuities — but those moments when there’s a deeper lesson, when I’m 86 years old, that will be clear as a bell,” Osler said. “So, it’s important that we take the time to share that with our students. To celebrate, grieve, worry and lose.”
To get to know that side of Osler, you don’t necessarily have to sit in his classroom. Just visit his personal blog, “Osler’s Razor.”
Musings, rants, recipes, repressed memories, haiku and drivel from a professor at Baylor Law School
— “Osler’s Razor”
The above subhead is also the subhead of Osler’s personal blog. His posts are often laugh-out-loud funny, except for the poignant ones that make you stop and think.
As a writer, Osler values the discipline that blogging daily offers. He also enjoys the opportunity to connect with a variety of people — current law students, former law students, family members, colleagues, old friends and anonymous commentators.
What do Osler’s followers like about his blog? Perhaps they like pandas, a recurring theme. Some people may enjoy “Political Mayhem Thursday,” in which Osler comments on current events. Maybe readers like his recipes, with ingredients such as “one big ol’ onion.” Others may check in for “Haiku Friday.” Often the poetry posts are Osler’s most personal.
One personal topic you won’t find covered on his blog is his family, but he is passionate about them. Osler has known his wife, Dr. Anne Osler, since they were four years old. She is a lecturer in Baylor’s Interdisciplinary Core. They have three boys: Micah, John and Luke.
“Over the past nine years, Waco and Baylor have been extremely welcoming to us. When we moved down here, I was pleasantly surprised to find that the ‘friendly Texan’ isn’t just a stereotype — it’s a reality,” Anne Osler said. “In 2006, Baylor gave me an opportunity to re-enter the academic world after 11 years as a stay-at-home mom. I love the fact that my husband works across the street from me and that our kids are never more than 10 minutes away. Although I find it necessary to escape to the north for six weeks every summer, Waco really works for our family.”
The Oslers have plugged into the Baylor world, becoming friends with faculty members across the campus.
Recently, Osler had the opportunity to interact with colleagues from the theater department when he joined them for a reading of David Mamet’s adaptation of the “Voysey Inheritance,” presented at Baylor’s Hankamer School of Business. Osler played Trenchard Voysey, the oldest brother.
Adjunct law professor Blaine McCormick, who also participated in the reading, said, “It’s a play about a Ponzi scheme. During rehearsals, Mark put his finger on one of the key plot devices long before any of the rest of us noticed it. His work in the Department of Justice helped him recognize conspiracy dialogue between two characters. Once we started reading their banter as conspiracy talk, the play made sense at a different and better level.”
That work at the Department of Justice occurred in the city where Osler was raised and where his parents still reside — Detroit, Michigan.
In case you haven’t noticed, the current recession has hit Detroit especially hard. But suffering isn’t new to the Motor City. Osler’s first memory is of the mayhem caused by the Detroit Riots of 1967. Many people he knew in high school have left the city, creating what Osler calls a “diaspora” of Detroit natives across the country. He said that people from Detroit feel a duty to make the world a better place.
Whatever Osler does next, he will continue making the world better. He will remember the least of these, especially those on death row. He will search for the truth, even when it is hidden. He will seek to provide equal justice under the law, even when the defendant is a drug dealer. He will teach his students to look for links between justice and mercy. He will muse and rant and cook and write.
And now, the interview with Wacoan of the Year Mark Osler
WACOAN: It’s been a big year. A Supreme Court win. A movie. A book.
Mark Osler: I think what’s happened is a lot of things I’ve been working on for a long time came to fruition at once. But there are connections. There is a unifying principle.
WACOAN: What is that?
Osler: On the side of the building there is the quote from Micah 6:8 that everyone knows. It kind of gets overblown, but it’s something that’s always had great meaning to me, that’s also very troubling as a prosecutor because justice and mercy go in opposite directions in criminal law. How do you put those two things together? It’s really the struggle with that passage that’s led to almost everything I’ve done.
I think the third part [of the verse] is really important, which is humility. In criminal law, you’re never the most important person there. You may be the smartest, the most informed and the best prepared, and that’s all fine, but you’re never going to prison. You’re never the victim. You’re never the most important person, even if you’re the judge.
I think that humility is really central to what I try to teach. But with the work that I do, when I try to reconcile those two things — justice and mercy — I don’t have a very good answer other than that the system has to contain both. So almost everything that I do in terms of my work has to do with identifying the areas where mercy has been shut out.
WACOAN: I wanted to ask you about that verse.
Osler: Really? My wife and I had a Quaker wedding. We had been attending Quaker meetings for a long time, and so that’s what we did. And you know, there’s no officiant. Everyone speaks as moved. So, it was a little terrifying because it might be an hour of silence for your wedding, but the first person who spoke was my mom, and she quoted that verse.
WACOAN: Let me ask you about your parents. On your blog, you said, ‘I’m from a family of artists, musicians and social workers. They had some real reservations about my going to law school. Where’s that going to lead you?’ Could you comment on that?
Osler: My parents — no one has a legal background, even in my extended family. When I went to law school I came back for Christmas and saw a woman who lived down the street who was a family friend, and she said, ‘Mark! How are you?’ in kind of a concerned tone of voice. And I said, ‘Great. You know, I’m in my first year at Yale Law School.’ And she said, ‘Really? I thought you were in jail or something.’ [And I said,] ‘Why?’ And she said, ‘Well, I talked to your mom and I asked after you and she was really avoiding saying what you were doing, so I assumed the worst.’
WACOAN: Most parents would say, ‘My son or daughter is in law school. I’m so proud.’
Osler: Yeah. No! [Laughs] But, that said, I think they’re comfortable with what I’m doing now and agree with what I do. They’ve been supportive.
WACOAN: Besides your parents, who have been the most influential people in your life?
Osler: There have been several. But in terms of my work and what I do, there was a professor who taught sentencing law at Yale named Daniel J. Freed who is still the person who most directed me in thinking of sentencing as something that’s tremendously important. That it’s an essential societal statement about our values.
He had this little seminar in which we had six students, two professors and a bunch of judges from Alabama. It was so different and challenging, and most of the significant sentencing scholars in the country came out of that class.
Then I clerked for a district court judge, which was always what I wanted from the time I discovered that what I wanted to do was go into criminal law. So, what I wanted to do was work at the district court where the cases were tried. I worked for a judge named Jan DuBois, and he had been a civil litigator for 30 years. We’re still very close.
I remember the first week I was working for him. I had written something, and he had disagreed with me. And I still disagreed with him. And I went in and we argued about it and he came into my office and argued some more. And then I went into his office and we argued. And I thought, maybe this is a bad idea. Then I realized that he loved that. He loved the intellectual exchange. He loved talking seriously about serious things, and it was okay to disagree and push ideas back and forth. Once I figured out that that’s what he liked, we had a great relationship. I learned more about the law in that year of clerking than I did since then.
Judge DuBois was a Yale law grad. One ethic that comes out of that school is that you have a duty to make the world better. That you’re given this great opportunity to learn, and there’s an obligation associated with it.
WACOAN: Did that influence your selection of Yale?
Osler: It probably did, to some degree, but I didn’t realize it fully. You know, it’s interesting. I talk to classmates of mine now, and they feel the same way, that there is a duty to make something of what we were given. And, they really do. Out of my core group of friends, out of seven of us, four of us have won cases before the Supreme Court. And I’m the slacker in that group. It’s really true. But I’ve got time to catch up with them.
WACOAN: You served as a federal prosecutor and you say you’re a natural prosecutor. What does that mean?
Osler: One of the great things about being a prosecutor is that you have discretion to decide — to decide whether or not to go forward with a case. The investigating agent comes in and sits down and says, ‘What do you think of this?’ And you can say, ‘No, I don’t want to go forward with that one.’ That’s a wonderful thing if you’re a person of conscience. Whereas if you’re a defense attorney, you’re always trying to convince someone else.
WACOAN: Why did you decide to give it all up and teach law?
Osler: I had a number of big cases that I’d finished. I’d always wanted to teach, and it seemed like the right time to make the transition.
WACOAN: Why Baylor? I would have thought you would have gone back to Yale or stayed near your parents.
Osler: What happened was I went back to Yale to find out how to get a job teaching. The career person turned around and opened her credenza and pulled out a one page form and said, ‘You fill this out and mail it in.’ So, I did.
They have a big convention and you have interviews there. I went to the convention in Washington, [D.C.], and Bill Underwood [former Baylor Law School professor] called and everyone else had booked up my time. He called on, like, the Thursday before the thing started, and said, ‘We’d like to interview you.’ I said, ‘Well, I don’t have any time left.’ And he said, ‘Well, how about lunchtime?’ I said, ‘Okay.’ And I asked, ‘Where should I meet you?’ and he said, ‘Well, we haven’t really registered for this thing, because we’re kind of doing it at the last minute, so just meet us at the bar.’ I said, ‘Well, how will I know it’s you?’ and he said, ‘Well, come down at noon and stand by the last phone in the lobby.’ And I’m thinking, ‘This just sounds like a hit.’
But anyways, I went ahead and came down, and I really thought [Baylor] was a good place.
The other thing is that my background at that point was practical experience. A lot of schools don’t want that. They want you to have written a bunch of articles at that point. Baylor really embraced what my background was, knowing that in the future I would engage with the academic world as well.
WACOAN: I hear the focus of Baylor Law School is very practical.
Osler: What I do — all of it — is part of teaching. Every project that I do involves students. I teach directly, and I teach by role modeling. It’s important for students, for example, to see me lose sometimes.
I’ll have students go up and I’ll have an argument in the Court of Appeals, and I’ll lose. The judge will not agree with me. They need to see that. That is a part of the experience, and on the whole, it’s an important part of the experience. That’s teaching, too.
It’s also part of that humility that I was talking about because you don’t want to lose, but everybody does sometimes. An important mark of what kind of lawyer you are or what kind of person you are is how you react to that.
WACOAN: On your blog, you said that law graduates who go to large firms are often the least happy. Graduates who describe themselves as ‘pretty happy’ include government prosecutors and criminal defense attorneys. Legal academics say they are the happiest. Are law students broadening their ideas of what they might do with their degrees?
Osler: I think they are. I think partly the economy is directing that. There’s fewer of those really high-paid law firm jobs. They’re necessarily having to consider other things.
What happiness seems to correlate to more than anything else is the discretion to act on your conscience. Big law firm associates don’t get to do anything that fulfills that need we all have to accomplish something that we believe is right. Now, sometimes that happens, but there’s a senior associate they’re reporting to, who’s reporting to a partner, who’s reporting to the client. There’s not a lot of discretion at the bottom of that structure.
Whereas, as a prosecutor, you are going to have a supervisor, but for the most part, you’re making your decisions about what to go forward on or how to handle it.
And as a professor, it’s wonderful to have the freedom to decide, ‘This is important. The crack to powder ratio is unjust. I am going to address that through writing, through litigation, through speaking.’ That’s a rare and wonderful thing.
WACOAN: On November 16, 2009, you spoke about the social and legal history of crack cocaine at Harvard at the invitation of the Harvard chapter of the NAACP [National Association for the Advancement of Colored People].
Osler: They also invited the Harvard Divinity School and the Kennedy School of Government. It’s government, law and religion, and my work is right at the intersection of those three. When I’m in court, when I’m writing briefs, that’s an entirely secular thing. But my motivation for working on the crack and powder cocaine thing is rooted in faith.
WACOAN: Talk about that.
Osler: There are a couple of things that play into that. Christ was a criminal defendant. That directs you in some sense as to who to have empathy for.
The other was Jesus saying, ‘Visit those in prison.’ What does that mean? I think part of it means they’re not forsaken. You do have to consider justice. Locking them up and throwing away the key isn’t moral, Christian or right.
I’m someone who believes in punishment. I believe in incarceration. There are a lot of people who sold crack and are in prison because I put them there. I’m not for legalization of narcotics, but I do think that the system has to have an element of mercy.
WACOAN: You continue to do work in this area. This summer you testified before the U.S. House of Representatives on life sentences for juveniles.
Osler: That was a fascinating experience. That was the most intimidating setting I’ve ever been in. You go in and the room was jammed with people and the congressmen sit in tiers and they’ve got their aides handing them notes, and they’ll really cut you down.
In 2005, the Supreme Court said we can’t execute juveniles. So, if someone commits a crime at age 13, can we lock them up for the rest of their life without reconsidering? When you shut mercy out of the process altogether, especially with children, you’re probably not doing it right. Then you’re going too far toward retribution and punishment.
It’s interesting that I was asked to testify on that because it’s not within the core of what I’ve worked on in the past. But it’s directly within the target of my broader project, in terms of not shutting mercy out altogether.
WACOAN: Why do you think the disparity in crack versus cocaine sentencing is changing?
Osler: The ratchet only goes one way in sentencing. It’s very hard to push it back the other way. That’s what’s really pretty remarkable about what we’re seeing now with crack-powder, is that we are pushing the ratchet back.
I think, in part, it’s changing because that sentencing ratio was particularly irrational. And that has been proven true over 20-plus years.
WACOAN: Let’s talk about Spears v. United States, which you won at the Supreme Court this year.
Osler: After [the movie], the ACLU contacted me about challenging the 100:1 ratio in the Courts of Appeal — filing briefs there. I started doing that. I wrote the briefs, and I represented the ACLU with Dustin Benham and other sentencing experts, and we lost and we lost and we lost. I personally lost in Boston, in New York, in Philadelphia. I lost in San Francisco and Omaha on consecutive days.
The courts all were saying the same thing, which was that the 100:1 ratio isn’t advisory on judges. Spears was one of the cases that I lost then. There was a case that came up while Spears was pending before the Supreme Court called Kimbrough v. United States. We wrote one of the briefs in Kimbrough, too. And we won Kimbrough in the [Supreme] Court. Kimbrough said the guidelines are advisory. So, judges have the ability not to follow 100:1.
But what happened is that our case then gets sent back to the Eighth Circuit [Court of Appeals] — Spears does — and the Eighth Circuit says, ‘It’s still wrong what the judge did because he categorically rejected the 100:1 ratio and imposed his own.’ His was 20:1. And judges all over the country were doing that. Because that was the way to approach it. That’s what you want judges to do is to be transparent.
And so we petitioned the Court [to say] they’re still not getting it right. And so that’s when we won. We actually won in the Supreme Court on Spears twice — once in the wake of Kimbrough, and they sent it back, and then the second time when we got the review from the Supreme Court.
In Kimbrough, we wrote a pretty good brief there, and there was this wonderful moment. I took two students. Dustin [Benham] was one of them. And Matt Acosta, who worked with me on Spears as well. They went to hear the argument. People didn’t know which way it was going to come out, and Chief Justice [John] Roberts was pretty new then. Which way was he going to go? And right at the end of the argument, he asked the government a question that was right out of our brief. And there’s this shock of recognition, you know, that we wrote this, and it convinced the Chief Justice of the Supreme Court.
WACOAN: What’s next for you?
Osler: One of the things that made me angriest in my whole life was when President Clinton pardoned Mark Rich, because I’d been a prosecutor in that administration, and it seemed so contrary to any principle we may have articulated in our prosecutions. It just infuriated me.
So what I thought was that nobody in my lifetime, that I can remember, has used the pardon power in a principled way, with the possible exception of [President] Carter’s amnesty of the draft dodgers. There’s been political favors and pardoning [President] Nixon, and [President] Bush didn’t use it at all, hardly.
So, what I decided was it would be worthwhile to gather a coalition to press President Obama to use the pardon and commutation power in a principled way. That is, to articulate a principle, and then live that out through his use of the Constitutional pardon power. And there seemed to be a very good opportunity to that, which was that the crack to powder ratio had changed, and some people had direct access to retroactive sentences. That’s partly what I’m doing with my pro bono cases, trying to get people retroactive sentences.
What we’re going to do is identify some of these cases, prepare those petitions for commutation of sentence and advocate that this president use the pardon power to correct the sentences of those who were over-sentenced under the prior crack laws.
There’s good precedence for this. The last person to really use the pardon of commutation power in a principled way in criminal law was [President] Kennedy. He commuted the sentences of over two hundred people who were sentenced under an especially harsh 1956 statute that later was rescinded.
WACOAN: That was a drug statute?
Osler: Yes, it was. You had people doing very long sentences for marijuana or things like that. And [President] Kennedy broadly used the commutation power to correct that situation.
President Obama at this point hasn’t used the pardon power at all, and there’s only four presidents in the history of the Republic who have waited this long to use it. One of them was [President] George Washington, who, well, there was no precedent at that point. So, [President Obama] is way behind in terms of [President] Kennedy, but at the same time, that’s an opportunity. It’s an opportunity before you start using it in a hit-or-miss way to articulate a principled method that will guide the discretion the president has.
It’s not a project that is intended to be confrontational to the administration, but more in the nature of calling attention to the historic opportunity that’s there right now. And making sure that this stays on the public agenda.
It’s going to be really fun, and the thing that’s interesting to me is that in a way, I’m flying blind on this one. Up to this point, my work has been with the other two branches of government — working in the courts, and then working through the legislature. Maybe this is pretty arrogant and presumptuous, but we’re trying to say to the President of the United States, ‘You have this Constitutional power. Be the first person in your own memory to use it in the field of criminal law in a principled way.’
WACOAN: It’s a tremendous opportunity to have an influence.
Osler: Yeah. And you know, it’s one of those things that when you talk to people about it, it makes sense. It’s not a complex idea.
If you look at all the stuff I’ve done, I mean, even the book, it’s not a complex idea. It’s not something that is academic in the sense of being beyond the understanding of most people. I really want my work to be in an area where it can be for public discussion, where you can talk about it with every member of your family.
WACOAN: We need people to do the scholarship and then explain it to the rest of us.
Osler: I’m not saying I’m there, but the people I really admire are not the ones who talk in complexities. They’re the ones that can make complex things simple while still being true. I don’t achieve it very often, but that’s what I shoot for. I want to take a complex system or injustice and make it simple enough that it brings to the surface that injustice, because only then will people care.