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July 14, 2008

More on status quo bias in federal sentencing realities

The Denver University Law Review last year allowed me to contribute quick thoughts about the Supreme Court's work in Rita v. United States its special speedy issue on Rita.  My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change" and available at this link, emphasized the status quo biases we often see in efforts to reform sentencing structures and procedures.  Now I see a new piece here on SSRN developing some similar themes in the wake of Gall and Kimbrough

This new piece is titled "The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review."  Here is the abstract:

This Article uses an analysis of the psychology of decision-making to argue that it is time to rethink the proper role of the Sentencing Guidelines.  Psychology teaches that guidelines have an anchoring influence on an individual's decision-making capabilities. While this anchoring effect may be harmless when the Guidelines ranges truly reflect sentencing purposes, the same is not true when the Guidelines themselves are the product of bad sentencing policy.  In Kimbrough, by allowing district courts to impose a sentence that results from the court's disagreement with the crack/powder cocaine disparity found in the Guidelines, the Court has acknowledged that the Guidelines ranges do not always reflect a sound adherence to the purposes of sentencing. In both Gall and Kimbrough, however, the Supreme Court continues to require district courts to calculate the proper Guidelines range and to consider that range before deciding on a reasonable sentence for a defendant.  Circuit courts, then, must review a sentence for both procedural and substantive reasonableness.  In light of the psychological anchoring aspects of the Guidelines, the procedural and substantive components of reasonableness review that are set forth in Gall and Kimbrough are at odds when placed within a system that requires potentially faulty Guidelines ranges to be calculated in order for a sentence to be deemed reasonable. This Article explores that tension and ultimately suggests that the Supreme Court do away with the requirement to calculate the Guidelines, and that Congress or the Supreme Court proscribe a new, truly advisory role for the Federal Sentencing Guidelines to play.

July 14, 2008 at 06:34 PM | Permalink

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Comments

Doug:

What would you think of simply abolishing the Sentencing Commission? I'm not necessarily suggesting this, but the article you note here seems to point in that direction.

You might remember that in my article, I took aim at a post-Gall and post-Kimbrough "system" that pretends to have standards but actually doesn't. If I'm right about that, wouldn't it be more honest to go back explicitly to the old practice, which also had no standards but at least made no pretense that it did?

In other words, if we're going to have sentencing chaos -- and we are -- I doubt that it's right to tell the public, or litigants, that we have something better than that. A case can be made that the real principal purpose of a post-Gall Sentencing Commission is to contribute to that illusion.

Posted by: Bill Otis | Jul 14, 2008 8:24:46 PM

There isn’t chaos in the system. The “system” is evolving and lawyers are rarely, if ever, taken by surprise about sentences. However, sometimes it is prudent to troll the little people with tales of “chaos” so that you can get your way more often.

Outside the sentencing context, law seems fairly chaotic, mostly because those non-lawyers get their news from newspapers and news sources that rely on the word of the loser of a legal battle to tell them what happened. So, the public is dazzled with tales of high verdicts, high (and low) sentences, acquittals, etc. They don’t really understand that most of these things are par for the course (in that most of the time they are hardly unexpected) and pretty much just another day on the job for the lawyers involved. This is probably what is going on now in sentencing.

Posted by: S.cotus | Jul 15, 2008 7:30:04 AM

Bill Otis:

"I took aim at a post-Gall and post-Kimbrough 'system' that pretends to have standards but actually doesn't. If I'm right about that, wouldn't it be more honest to go back explicitly to the old practice, which also had no standards but at least made no pretense that it did?"

This is so far from actual practice. The guidelines are still treated as presumptively applicable by most district court judges. The judge who varies from the guidelines, particularly below the guidelines, is an outlier. Your commentaries make it seem as though it is the norm for judges to vary from the guidelines. Based on my experience and on the comments of others from districts all over the country, this is not so. Your problem is that the law now requires courts to follow s 3553(a), which considers the guidelines to be merely one of the factors to be considered. The standards are there: s 3553(a).

Posted by: John | Jul 15, 2008 9:28:08 AM

John:

"The judge who varies from the guidelines, particularly below the guidelines, is an outlier. Your commentaries make it seem as though it is the norm for judges to vary from the guidelines. Based on my experience and on the comments of others from districts all over the country, this is not so."

The best indicator of what sentencing practices are around the country is not your (necessarily limited) experience and what you hear from colleagues. It's the Sentencing Commission's comprehensive survey and report of sentencing practices around the country.

You might want to try looking at the USSC site, as I did.

What I found was this: Nationally, within range sentences are given in about 60.5% of the cases. Above range sentences are given in 1.5%. Below range sentences are given in 38%.

When outside the range sentences are handed down in nearly two of five cases, they are not the majority, obviously, but they are not outliers either.

As to your observation that Congress wrote Section 3553(a) to provide sentencing standards: First, if that were so, it would strengthen, not weaken, the case that we no longer need the Sentencing Commission. Second, while the statutory provision sets forth standards on paper, Gall and Kimbrough tell us that that's as far as it goes. For practical purposes, the sentencing court need only go through the window dressing rehearsed for it in those opinions, and then do anything (or almost anything) it wants.

There are no standards worth the name when the court can (1) ramble through a whole litany of OSTENSIBLE standards, (2) declare with the virtual assurance of appellate deference that on the particular facts of this case, Standards A, B and C are inapposite, but Standards X, Y and Z are unusually weighty, and therefore (3) impose a sentence that is dressed up in the language of 3553(a) but that is actually a pick-and-choose exercise that produces exactly what we had in the pre-SRA era, namely, a sentence that principally reflects the judge's ideology, experience and temperment.

Now depending on the judge who's been drawn, we might get a good sentence that way. But the whole point is that we shouldn't have to depend on the luck of the draw. That is not law. That is idiosyncratic thinking impersonating law.

Posted by: Bill Otis | Jul 15, 2008 10:17:10 AM

Unless Congress intervenes, federal sentencing practice will move inexorably toward the non-system described by Bill Otis. Factors listed in 3553 (a) are vague, non directional and fundamentally contradictory. How can they possibly supply any real "guidance" other than a pick and choose exercise based on the predilections of the Court. Alas, the pendulum has swung and we have returned to the wild, wild west of sentencing-just the problem that engendered the Sentencing Reform Act.

Posted by: mjs | Jul 15, 2008 12:53:24 PM

Bill, but as you know, most "below guideline" sentences are not courts using their post-Booker discretion; instead, they're given because the government has filed a substantial assistance motion. The percentage of defendants who receive below-guideline sentences is close to the same today as it was pre-Booker. If your pontifications were true (and they're not), we'd expect to see a much, much higher percentage of defendants receiving below guideline sentences.

Posted by: Not the same | Jul 15, 2008 12:58:12 PM

I simply cannot agree that the post-Booker world has no standards or that we have sentencing "chaos." That comment seems to be simple hyperbole. Almost all of the judges in my district have respect for the Guidelines (generally), and when they don't, they have very good reason. The fact is, the GL often don't reflect 3553. Pointing that out does not mean standardless sentencing or chaos.

Neither does this mean we abolish the USSC. Rather, I wish the Commission would act to correct the faults of the Guidelines they themselves identify. There are so many examples I could use, but, just to make the point: 1) USSC took the position that its hands were tied to further correct unjust crack sentences (as, according to the USSC) it needed to construct the GL to incorporate mand. mins. and then extrapolate upwards and downwards. The Supreme Court has rejected in Kimbrough that this choice was required by Congress or any sentencing statute. 2) the USSC has said that age can be relevant to predicting recidivism (or future dangerousness) and that the crim. hist. categories are often not as good as other systems because age is not considered; yet age is still "discouraged" by the GL as a factor.

There are many, many more examples. Even if the USSC does not act, the solution is not to abolish it; it’s to allow dist. cts. to correct it themselves. When a dist. court imposes a non-Guideline sentence due to these factors, it is anything but "standardless" or "chaos." (AND...when an appellate court gives deference to these choices, it is upholding Sixth Amendment principles of an advisory GL system.)

Finally, "Not the same" is exactly right when he/she points out that the amount of non-Govt. sponsored non-Guideline sentences is close to pre-Booker numbers.

Posted by: DEJ | Jul 15, 2008 1:36:59 PM

To provide some numerical support for my position, according to the 2003-2005 data, defendants received below-guideline sentences in 69 or 70 percent of all cases. In other words, there hasn't been much of a chance in the way federal sentencing works on the ground.

Posted by: Not the same | Jul 15, 2008 1:45:38 PM

Not the same:

"Bill, but as you know, most 'below guideline' sentences are not courts using their post-Booker discretion; instead, they're given because the government has filed a substantial assistance motion."

I never said otherwise. The question concerned the incidence of outside-the-range sentences. The information I gave was correct as stated, and you do not claim otherwise.

"If your pontifications were true (and they're not), we'd expect to see a much, much higher percentage of defendants receiving below guideline sentences."

You can cut out the "pontifications" stuff. Are you taking over for DK (whom you wanted blocked in part because of his penchant to be snide)?

You can also cite anything in my post that is false and give your source.

If you're looking for something that actually IS untrue, however, you needn't look far. Indeed you need only recur to your post put up at 1:45, which states, in toto, as follows: "To provide some numerical support for my position, according to the 2003-2005 data, defendants received below-guideline sentences in 69 or 70 percent of all cases. In other words, there hasn't been much of a chance in the way federal sentencing works on the ground."

There is no point it the history of the Guidelines at which defendants received below-guideline sentences in 69 to 70 percent of all cases. The maximum rate of below-guidelines sentences reached roughly 40%. Your statement is not even close to being true.


Posted by: Bill Otis | Jul 15, 2008 4:14:21 PM

Pre-Booker-2005
http://www.ussc.gov/ANNRPT/2005/fig-g-pre.pdf
w/in range--70.9
Substantial assistance--14.7
EDP Gov't sponsored--9.4
All Below range--4.3
All Above range--0.7

Post-Baker 2005
http://www.ussc.gov/ANNRPT/2005/fig-g-post.pdf
w/in range--61.6
Substantial assistance--14.7
EDP Gov't sponsored--9.1
All Below range--13.0
All Above range--1.6

;-)

Posted by: Ange | Jul 15, 2008 5:12:42 PM

II meant that defendants received WITHIN (not below) Guideline sentences in 69-70% of all cases pre-Booker. According to you, that number has crept down only a bit to 61% in cases decided after Booker. In other words, not much has changed. The Guidelines still rule.

So your article's thesis that there is chaos in the federal system because district courts are not required to follow the Guidelines is simply false. At the end of the day -- both before and after Booker -- most defendants receive within Guideline sentences. And of those that receive below Guideline sentences -- both before and after Booker -- most do so at the Government's request. Moreover, it wouldn't surprise me to learn that in most situations in which the defendant receives a below Guideline sentence because of the district court's use of its Booker discretion, the sentence is only a small percentage shorter. (I once had a client who received a “below Guideline sentence” of something like 54 months; his Guideline range was something like 56-75 months.)

The Guidelines are still the center of the sentencing universe, even if you can find a few cases in the federal reporters in which the defendant receives a dramatically short sentence relative to the Guideline range. So abolishing the Sentencing Commission would send a false message to the public: i.e., that the Guidelines are anything but the be-all, end-all for sentencing in the majority of cases.

Booker has certainly changed the sentencing process dramatically; it has not, however, dramatically changed sentencing results. This was obviously the intent of the Booker remedial majority. The more things change, the more things remain the same.

Posted by: Not the same | Jul 15, 2008 7:31:22 PM

Ange:

Right you are. Thanks.

Posted by: Bill Otis | Jul 15, 2008 8:47:08 PM

No problem, Bill.

Posted by: Ange | Jul 15, 2008 10:08:08 PM

Bill.

Sorry to inform you but we don't live in a black and white world. Making the guidelines advisory does not return us to the "wild west". Every time I read one of your posts it's always so dramatic; it makes me laugh. I don't understand what part of the word "discretion" you don't get. The very meaning of that word implies a lack of uniformity; a variety in sentences. In my own opinion, the mandatory guideline schema made judges nothing but highly paid and highly trained sentencing clerks. Now they have a chance to put their life-wisdom to use. That's a solid social good, as I see it.

Posted by: Daniel | Jul 16, 2008 1:50:28 AM

Daniel:

When I was an AUSA, my colleagues and I occasionally ran across defendants who also did their share of laughing.

At first.

Moving on to such portion of your comment as at least imitates an argument, you say: "I don't understand what part of the word 'discretion' you don't get. The very meaning of that word implies a lack of uniformity; a variety in sentences. In my own opinion, the mandatory guideline schema made judges nothing but highly paid and highly trained sentencing clerks. Now they have a chance to put their life-wisdom to use. That's a solid social good, as I see it."

Above the entrance to the Supreme Court building are written these words: "Equal Justice Under Law." I take it you would prefer that they be replaced with, "Lack of Uniformity Is a Solid Social Good."

Your faith in the "wisdom" of judges is quaint. Do you know how people actually get to be federal judges? It has something to do with professional achievement, that's true. It has much more to do with the candidate's political links to his homestate senators. It has nothing to do with "wisdom" -- or if it does, it's strictly by happenstance.

Nor, of course, is there any particular agreement about what "wisdom" would look like on the bench. Some would say that Justice Alito is wise, and that district judges who think as he does are similarly wise.

Somehow I doubt you would be among them. Would you?

But if, as is obviously true, there is disagreement about the "wisdom" of individual district judges, what do we make of that? Do you think judges who pile on acquitted conduct are wise? How about those who think Congress was right to use a 100:1 crack-powder ratio, and who continue to use it with gusto themselves?

Do you praise their wisdom? Are you glad that an anything-goes system places little or no check on them? Do you think defendants in their courtrooms are happy about the situation, when other defendants being sentenced by the more lenient judge right across the hall get half the time they're getting?

The real reason the defense bar favors discretion over rules is not any naive cheerfulness about the supposed virtues of luck-of-the-draw sentencing. Almost no one actually thinks idiosyncratic disprity per se is a virtue in a system that values equality before the law.

The real reason the defense bar favors the unleashing of "discretion" is that it knows "discretion" gets exercised in only one direction, that being toward below-guidelines sentences. Indeed, downward departures (or variances) outnumber upward departures by 25 to 1 (and yes, I know that figure includes a large number of substantial assistance departures. But the figure is still correct, and even without SA departures, the number of downward departures still dwarfs the number of upward departures).

If it were reversed, if the departures now encouraged and protected by Gall and Kimbrough were overwhelmingly towards higher sentences, not lower ones, would you be singing the praises of the ever-so-wise upward-departing judges?

Posted by: Bill Otis | Jul 16, 2008 9:07:28 AM

Bill. I am not making an argument; it's akin to a plea. Our difference are philosophical and conceptual.

"Equal Justice Under Law." I take it you would prefer that they be replaced with, "Lack of Uniformity Is a Solid Social Good."

Yes, absoultely. 100%. Without any hesitation or doubt. Because my text is not what is chiseled on the walls of the SC. It is the US Constitution which binds and illustrates such thoughts.

Equality conceptually just is the lack of uniformity. The US Constitution is predicated on just such a notion, unless you wish to believe that the founders engaged in the most blatant cheat and hypocrisy. Uniformity simply means "one form" and as the great Chinese philosopher once said, "The ways to the truth are many but the truth is one." It is precisely though inequality that equality is achieved. Pure and unadulterated uniformity in an objective and extroverted sense is a myth; it's not real and never has been. Carl Jung described a belief in such a myth as "barbaric" and I quite agree.

Whether I agree with a judge on a specific case is totally beside the point. It's their job to decide cases and they will bring their own personal subjective bias to the table whether I like it or not because that is part of what it means to be human. Attempts to take away that subjectivity are cruel to the judge as a human being; it also makes it impossible for there to be any equality before the law. That is what the principle of subsidiariness means. As a consequence, whether the judge looks like me or acts like me or has the same cultural biases I do is also irrelevant. We live in a democracy and if enough people disagree, there are legitimate democratic means to get rid judges. Most people find it easier to criticize judges rather than get involved in the political process, a point Doug and I agree on.

In the long run a society only advances through the advancement of it citizens and citizens only advance as their freedom advances. A legal straightjacket provides no freedom. No freedom for the judge, no freedom for the defense, no freedom for the prosecution. Criminal sentencing has been a real factor in the current malaise of American cultural growth and it's a welcome relief to see in some small way the SC attempt to remedy that problem.

Posted by: Daniel | Jul 16, 2008 10:28:48 AM

Oh come on folks. We don't have equal justice, nor do we want it.

I think we all agree that society shouldn't extend equal justice to everyone.

Some kid that grows up in the inner-city and can't speak English as well as you can, Bill, definitely doesn't deserve equal justice. There is very little chance that he will ever do any good for society. So, we all look the other way when the police target his kind for additional surveillance and Terry stops, and prosecutors will openly share a bottle of wine with me in public. This is good. The poor are a threat to society, and most of them prefer being in jail, anyway. It is their culture.

Getting to the guidelines. Unlike others, I think they were a good idea. The probably provided some degree of uniformity and made plea bargains much easier. In essence, they streamlined the process of moving the poor from the teenage womb to the jail. (That phrase was taught to me by a current AUSA.)

Now, the problem with the guidelines is essentially a Blakely problem: facts could be found by a judge. This essentially means that a judge of my social class will be finding facts that would normally be found by a jury made up of just any kind of person regardless of their proficiency at yachting or horsepersonship. This isn't really “equal” justice, but since I really hate the poor, I didn't mind. If you like the poor you are on the wrong side in the war on poverty.

So, by the time Booker came along the government had to explain why some facts had to be proven to a jury and some could be found by a judge. As you know, the solution fashioned by the Supremes was pragmatic. Rather than say, “Blakely-ize” those things, they made them “advisory.” Now, you can scream and yell about how this creates chaos, but injecting judicial discretion is the only workable solution other than Blakelyizing those thingies.

Of course, in truth, there isn't chaos, and there isn't much variance between judges. Contrary to popular belief, “discretion”doesn't mean “absolute discretion” or whim. It requires careful analysis of the facts, law, and police, and it can be abused.

Posted by: S.cotus | Jul 16, 2008 11:59:14 AM

Chaos may be too strong of a word but unwanted variance between Judges is a matter of record.
Advisory guidelines and a gutted appellate review system create the charade of a principled, flexible, sentencing system. It will take time but eventually the public will notice.

Posted by: mjs | Jul 16, 2008 1:32:33 PM

S.cotus:

"I think we all agree that society shouldn't extend equal justice to everyone."

Count me out of that "agreement."

"Some kid that grows up in the inner-city and can't speak English as well as you can, Bill, definitely doesn't deserve equal justice..."

Actually I knew a man quite well who grew up in the inner city (a row house in north Philadlphia) and couldn't speak English as well as I can. Indeed English was a second language to him. His parents were German, and came over on the boat.

As you might expect, he started out with zilch. At about 13, he began work as a stockboy in the dim basement of a big department store. His boss was a crook and skimmed his salary, such as there was of it.

He was the first kid in his family to go to college, namely, the University of Pennsylvania. He wanted to become a lawyer but didn't have to money. But he had great faith in the law, even though it had never done a whole lot for him.

"There is very little chance that [the poor inner-city kid] will ever do any good for society."

To continue the story of this poor inner-city Philadelphian, it turned out that he did quite a bit of good for society.

After graduating Penn, he started a business, hiring almost exclusively high school dropouts. This was in about 1926 or 1927. Before it really got off the ground, the Depression hit. Businessmen all over town laid off workers by the dozen. But he didn't. He didn't lay off a single one, not through the entire Depression. This cut into the company's profits -- about which he cared a great deal -- but it didn't bother him that much. He knew a lot about business, but even more about loyalty.

Roughly 15 or 20 years later, his business had grown quite a bit. In about 1950, a Communist-dominated union tried to organize it. It failed. His workers, who had prospered beyond their parents' dreams, knew something about loyalty too.

He died at the age of 90. He worked at the factory he had started more than 60 years before until 10 weeks before he took his last breath. Although dying, he never asked anyone outside the family to help him or do his work for him.

His main contribution to the good of society was to create jobs for people like himself -- sons and (unusually for that time) daughters of immigrants. His final contribution, which he would have counted less than the others, was to leave substantial endowments to Penn and the Wills Eye Hospital, which he credited with saving my mother's vision.

My father, and more importantly my father's life, taught me more than a few lessons about how to react when I hear that the system shortchanges "the poor." In some ways, the system DID shortchange him. But it also gave him the freedom to try to better himself, and succeed at it if he worked hard enough and took responsibility for his own life. His was an American story if ever there was one.

If I live to be as old as he did, there is no way -- no way -- I could repay this country for what it allowed him to become. I suppose I could try in a small and indirect way by offering to you and those who think as you do, at no cost except the time it takes to hear them, the lessons in learning to overcome that he gave me. But I'm afraid you wouldn't take them, entranced as you are with contempt for the country you so wrongly, and so sadly, take to be so vicious.

Posted by: Bill Otis | Jul 16, 2008 2:08:14 PM

There is some variance, of course. However, whether it is “unwanted” is not a matter of “record.” No such record exists. You made this up. I think you mean to say, "Some people don't like some sentences."

Since it is very hard to find crimes (or criminals) that are alike, it would be difficult to really articulate a theory of “variances” anyway.


As to whether the “public” will notice. Don't worry. The public will notice what we want them to notice. The public just repeats the sound bites we give them.

Posted by: S.cotus | Jul 16, 2008 2:11:28 PM

Mr. Otis, I don't understand your post. Try writing in the English language next time.

However, seems like your father's only contribution to the USA was you. Whether we are better off because of your birth seems to be a matter of debate. Maybe we could set up one of those “web polls” on the side of the blog to figure this one out.

Anyway, I did not really have the immigrants in mind when I was blaming the inner-city-types. I had in mind the people that are born here, but can't be bothered to take high-school-level AP classes in junior high school and go to second-rate public schools. They are the real enemies of America.

Posted by: S.cotus | Jul 16, 2008 2:15:07 PM

Count me in the Bill Otis camp. Mr S.cotus, I can't figure you out!

Posted by: mjs | Jul 16, 2008 3:42:42 PM

mjs,

Thanks. Some people you can get through to, and some you can't -- another one of my father's lessons.

Posted by: Bill Otis | Jul 16, 2008 4:32:29 PM

Bill, weren't you the one discussing sentencing and made the statement that Blacks commit more crimes?

Posted by: Cureo | Jul 16, 2008 9:36:47 PM

Cureo:

"Bill, weren't you the one discussing sentencing and made the statement that Blacks commit more crimes?"

No. Whites commit more crimes, but blacks commit proportionately more crimes. This is documented in any reliable compilation of crime statistics you care to look at.

Recently, Professor and former United States District Judge Paul Cassell had this to say on the subject, writing on May 5 on the Volokh Conspiracy:

"Heather MacDonald has [a] great article in the City Journal, persuasively debunking the myth that high black incarceration rates result from racial discrimination. She reviews the available empirical evidence, which finds no evidence of systemic racism. Instead, the studies show that a disproportionate number of African-Americans are in prison because they have committed a disproportionate number of serious crimes.

"It is a tragedy that so many minorities are languishing in prison. But the 'solution' that the Left often proposes of targeting racist cops or racist prosecutors is, as MacDonald demonstrates, wide of the mark. Instead, we need to look at the causes of higher rates of minority offending."

The MacDonald article can be found here: http://www.city-journal.org/2008/18_2_criminal_justice_system.html

One last note. As I indicated in my long comment earlier today, my father was a first generation son of immigrants and grew up in a family that was getting by, but not much more than that. He wasn't ashamed of his economic circumstances, but he wasn't proud of them either. He just viewed them as something to be overcome with work, which is what he did. He never thought that not having money created an entitlement to have other people pay his bills or be responsible for his decisions. He never looked on it as a source of grievance to be lauched against those born in better circumstances. And he certainly never viewed it as an excuse for criminal behavior.

Posted by: Bill Otis | Jul 16, 2008 11:25:25 PM

"But the 'solution' that the Left often proposes of targeting racist cops or racist prosecutors is, as MacDonald demonstrates, wide of the mark. Instead, we need to look at the causes of higher rates of minority offending."

That's not what the mythical "Left" "often proposes." What an absurd strawman that folks like Cassell and Otis promote. If anything, the "Left" promotes the idea that social conditions (economic and social circumstances - e.g., poor schooling facilities - the result of decades of discrimination) must be targeted.

"We need to look at the causes of higher rates of minority offending."

No sh-t

"And he certainly never viewed it as an excuse for criminal behavior"

Yippee doo da yay for you and your pops. Your implication is that the poor blacks are in the same position as was your father and so therefore they just need to buck up; that the the blacks and the "Left" need to stop complaining. Thanks. Will do.

Posted by: anon | Jul 17, 2008 9:40:28 AM

anon:
Talk about strawman arguments--the old canard that criminal activity is the result of poverty and past/present discrimination--is one of the most persistent.
Even the Democratic Presidential nominee recognizes that poverty often results from the decisions people make-decisions to have a child out of wedlock before the age of 20, decisions to drop out of high school, decisions to raise children without a resident father who takes work seriously. You would be surprised what happens to the poverty rate when these factors are controlled.

Posted by: mjs | Jul 17, 2008 10:52:25 AM

mjs:

Nailed it.

Posted by: Bill Otis | Jul 17, 2008 11:57:50 AM

anon:

"Yippee doo da yay for you and your pops."

Your "analysis" is in a race to the bottom with your maturity level. Right now it's hard to tell which is ahead.

"Your implication is that the poor blacks are in the same position as was your father and so therefore they just need to buck up; that the the blacks and the 'Left' need to stop complaining."

My "implication" is that poor blacks want the same thing everybody else does, namely, to live in peace and safety away from criminals, and to have the chance to get ahead through work. My "implicaiton" is also that they would prefer not to be hands on the Nanny State Plantation, and instead would like to chart their own course by guiding, and being responsible for, their own lives and decisions.

"Thanks. Will do."

Glad to hear it. It's past time to be out of the Grievance Industry. The way to a wholesome and more prosperous life does not lie in Perpetual Anger Against the People Who Aren't Fair to Me. It lies in moving paat that to live in the ways mjs suggested.

Take a look at Clarence Thomas's memoir, "My Grandfather's Son". Thomas grew up in a kind of poverty and discrimination that is virtually unknown today. But because the man who raised him believed in responsiblity and discipline rather than complaining, Justice Thomas was given the values that made it possible for him to succeed.

There is a lesson there for black and white alike.

Posted by: Bill Otis | Jul 17, 2008 12:37:43 PM

"Nailed it."

Actually, more like avoided the argument. Let's take a look at what was written:

"If anything, the 'Left' promotes the idea that social conditions (economic and social circumstances - e.g., poor schooling facilities - the result of decades of discrimination) must be targeted."

Nowhere is it suggested that "criminal activity is the result of poverty and past/present discrimination." That's the strawman that MJS and Otis want to put on the "Left." Social conditions - economic and social circumstances - must be confronted. In the end, we agree. But Cassell, Otis, and now MJS, want a fight. They want to create a mythical "Left" that cries racism at every turn and turns a blind eye to individual responsibility. This is not so. If you actually work in the inner city, you realize this is not so. That the "Left" whose members are the few that actually take the time to work in the inner city, are in tune with developing better decision-making skills among the people that they work with.

All that Cassell, Otis, and MJS want to do is demonize those that don't take responsibility, that choose to have a kid out of wedlock, or that choose to drop out of high school. Instead, how about working with them; learning about why people make the choices that they do and helping them to make better choices. I doubt MJS ever even attempted to do so. I'd bet MJS is a twerpy law school grad that works for an equally twerpy and out-of-touch district court judge.

The "poor schooling facilities" are the result of decades of discrimination - that is a fact. Walk into Appalachia or an inner city, and then walk into a school in suburban Virginia.

"You would be surprised what happens to the poverty rate when these factors are controlled." No, I wouldn't because I actually studied and still work closely with the issue. And nice try attempting to coopt Obama. He's a hell of a politician to be able to make people like you think that you have something in common with him.

Posted by: anon | Jul 17, 2008 12:46:45 PM

Point is not to demonize those that don't take responsibility but to to clarify that success is possible for those who make the right decisions. Poverty is often a self-inflicted wound, not something that happens to you for predestined reasons.

P.S. I am honored to be placed in the company of Cassell and Otis.

Posted by: mjs | Jul 17, 2008 1:42:05 PM

anon:

"Nowhere is it suggested that 'criminal activity is the result of poverty and past/present discrimination.'"

Good grief. That suggestion is plastered all over this site. Read the comments over the last month. And it is not merely here that the suggestion has currency. It is a staple of liberal thought.

"Cassell, Otis, and now MJS, want a fight. They want to create a mythical 'Left' that cries racism at every turn and turns a blind eye to individual responsibility. This is not so."

Except if you listen to Jesse Jackson, Al Sharpton, Jeremiah Wright and the Gang of 88 at Duke, who falsely accused essentially the entire lacrosse team of committing a non-existent rape, on the "word" of a drunken stripper. When the hoax was exposed, they didn't back off, saying that whether or not there had been an "actual" rape, the lacrosse team was a disgrace anyway because they REPRESENTED racism, whether or not there was evidence that they had DONE anything racist (or had done anything at all, for that matter).

If Reverend Wright or any of these people ever placed individual responsibility on the false accuser, I never heard of it. If you can tell me where I can find any such thing, I'm all ears.

Or was this all a "mythical" event that the Left had nothing to do with?

"All that Cassell, Otis, and MJS want to do is demonize those that don't take responsibility, that choose to have a kid out of wedlock, or that choose to drop out of high school."

Unlike you -- a man who chooses language precisely for its demonizing effect -- I don't wish to demonize anyone. I will plead guilty, however, to thinking that it's a really bad idea to shirk responsibility, have children out of wedlock, and drop out of high school. If you are helping to put a stop to these things, my hat's off to you.

"I'd bet MJS is a twerpy law school grad that works for an equally twerpy and out-of-touch district court judge."

Actually, you don't know anything about MJS. So what is gained by this sort of attack? Demonization?

"The 'poor schooling facilities' are the result of decades of discrimination - that is a fact."

That was true 30, 40 or 50 years ago. Now, however, poor schools are the result of a stranglehold by teachers unions; an effective monopoly held by public education (private schooling being too expensive for most); and largely successful resistance to school vouchers (which would help break the monopoly and create choice for poorer families).

Poor schooling is also a product of (dare I say it?) various ideas from the Left, including the notion that schools exist to allow for self-expression instead of learning; self-esteem whether earned or not; and increasingly political indoctrination instead of such "boring" things as the physical sciences, mathematics and history.

And then there's the problem of outright theft by labor union leaders and school administrators. This has become so endemic in the public schools of Washington, DC that I can scarcely pick up a copy of the Washington Post without reading about the latest trial for this sort of corruption.

Finally, let me again ask you to take a look at "My Grandfather's Son," which shows how victims of racism and poverty REALLY learn to make the decisions that pave the way for success.

Posted by: Bill Otis | Jul 17, 2008 5:32:52 PM

Equal justice cannot be always be served by means of mandatory sentences or sentencing guidelines.

As I explained to one of my students...Justice is UNKNOWN when two people who have committed the same offense and get the same punishment in terms of sentence, yet one has a mental illness and was having a psychotic episode at the time of the killing. There are countless number of people who come into contact with the criminal justice system because they lack treatment as a result of de-institutionalization, lack insurance, and have a chemical dependence. In cases like these there IS no EQUAL justice when both get equal sentences.

Criminal activity is NOT the result of or CAUSED by poverty, skin color-as you suggested before Bill, or ANY OTHER factor other than CHOICE--absent a psychotic episode.

If criminal activity can be said to be CAUSED by ANY factor other than choice (absent psychosis), then the gov't better continue making MORE prisons and locking up all POOR people, ALL Blacks, ALL Whites, ALL MUSLIMS, All blah blah blah blah/other variables used to measure criminality and reduce visible crime rate already.

Bill, with all due respect, you REALLY should check your biases. The last time we discussed race and criminality I asked you a question for which I never received a reply. I'll say it again, if Blacks are MORE criminal because they are overrepresented in certain areas of crime, than Whites, because of mere statistics, lack love for those they should care for and love because Whites are overrepresented in sex crimes. Stats do not give us the story, they just give us the numbers.

Look at the whole picture. PLENTY of Blacks as well as White that have children out of wedlock, don't have an education or a pot to piss in but are NOT criminals.

Likewise, there are PLENTY of professionals with Ivy League educations that are MORE criminals than many poor person with a criminal record. They sit behind a desk and use their pens as nuclear weapons to hurt those who get in the way of their profit, be that profit from oil or any other venture.

STATS ON CORPORATE CRIME
Health care, $100 billion, estimate from Government Accounting Office.

Trade violations $250 billion annually, Prof. Francis Cullen, U. of Cincinnati, Criminal Justice Dept.

Burglary, larceny, motor vehicle, & arson, under $18 billion, FBI for 2002.

66,971 job-related injury and occupational disease deaths (doesn’t include deaths of non-employees due to pollution, tainted foods, and like), 1992, Professor J. Paul Leigh.

Enron Corporation fraud and bankruptcy cost investors, pensioners, and employees $60 billion. http://articles.latimes.com/2003/nov/04/opinion/oe-drutman4
http://www.corporatepolicy.org/issues/crimedata.htm

"Unfortunately, corporate crime is often violent crime.

The FBI estimates that, 19,000 Americans are murdered every year.

Compare this to the 56,000 Americans who die every year on the job or from occupational diseases such as black lung and asbestosis and the tens of thousands of other Americans who fall victim to the silent violence of pollution, contaminated foods, hazardous consumer products, and hospital malpractice.

These deaths are often the result of criminal recklessness. They are sometimes prosecuted as homicides or as criminal violations of federal laws.

And environmental crimes often result in death, disease and injury.

In 1998, for example, a Tampa, Florida company and the company's plant manager were found guilty of violating a federal hazardous waste law. Those illegal acts resulted in the deaths of two nine-year-old boys who were playing in a dumpster at the company's facility." http://www.corporatecrimereporter.com/top100.html

Maybe we should create a corporate death penalty as suggested by Drobny. Some have argued that with the ability of social mobility, the already corrupt become the corrupt with money. I can understand that given the history of our nation and criminal transportation from Europe to the US.

It's too easy to blame the crime rate on the poor when what the public is given are stats on visible crime while white collar crime and corporate crime stats are buried under the paperwork.

Please...let's get the story straight.

I'm done now.

Posted by: | Jul 17, 2008 11:46:47 PM

Bill, why do you always run away from answering tough questions where you have to be careful with how you answer those questions?

Are you looking for a USSC position? ;)

Posted by: | Jul 18, 2008 5:10:43 PM

Jul 18, 2008 5:10:43 PM:

Is this Ange? I went back to the entry you linked. I think I answered a whole bunch of questions. Indeed, I had a longer dialogue with you than with practically any other person on a sinlge thread.

The nature of this blog is that we talk about a matter Doug brings up for a day or two or three, and then move on. If anything, I keep after things longer than I ought to, at least according to "Not the same."

Still, if you have some specific questions you'd like to ask, I'll do what I can to answer. The next few days are going to be busy for me though, as today has been.

Somehow I doubt that President Obama is gong to put me on the USSC, unless he does a bigger flip-flop than he has to date, which would take some doing. Not that it would make much difference. Since I'm no longer in the government, I don't have to speak in the scrubbed tone that so often accompanies governmentese.

Posted by: Bill Otis | Jul 18, 2008 6:51:38 PM

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