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November 5, 2009

"10 Bodies in Sex Offender's Home: Is System Broken?"

The title of this post is the headline of this new ABC News piece which seeks to reflect on what the horrific Anthony Sowell case might tell us about modern sex offender regulation efforts. Here are snippets from the piece:

As the count of bodies found at the Cleveland, Ohio, home of a registered sex offender, more and more people are wondering how they could have gotten there without anyone knowing?

Now that Anthony Sowell has been arrested and charged with multiple counts of murder, the question is, why weren't the police and parole officers who were keeping tabs on him aware of what was going on?

Sowell, 50, today was ordered held without bail on five counts of aggravated murder, while police investigators confirmed they had found 10 bodies in and around his home, and a skull in his basement. "In 28 years of being on this bench, this is without question the most serious set of allegations that I have ever faced," Judge Ronald B. Adrine said during Sowell's court appearance today....

If it turns out that Sowell is responsible for the deaths of the people whose bodies have been found at his home, it could because he was able to exploit a broken parole and sex offender registry system.  Sowell was a registered sex offender, but authorities failed to enlist the community's help to be on the lookout for signs of trouble....

Experts say sex offender lists are not only long, but fail to distinguish between minor offenders and the most dangerous predators.  "The system that we have to do monitoring and supervision follow-up once they return to the community is just overwhelmed," said Ernie Allen of the Center for Missing and Exploited Children.

November 5, 2009 at 01:23 AM | Permalink

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Comments

123D.

Thank the criminal lover lawyer for this catastrophic failure of the criminal law. It is the lawyer protecting these extreme, ultra-violent predators. Why? They generate lawyer jobs, and victims do not.

Stop the inappropriate scapegoating of the police, and of parole officers. Stop saying, the neighbors. Enough. The lawyer needs to shut up, and get out of the criminal law, which is in total failure.

Exclude, by constitutional amendment, the lawyer from all policy positions in the executive, all legislative seats, and all benches. They are self-dealing incompetents. This is a mere speck of failure, with millions of rape and murder victims over the decades.

Posted by: Supremacy Claus | Nov 5, 2009 2:06:57 AM

I don't know whether increased monitoring would have prevented some of these deaths. But you have to wonder whether something likes this should call into question the blunderbuss systems used by many states, which register and track every sad sack who ever peed in an alley or, at 19, got caught having sex with his 16-year-old girlfriend. Such overbroad laws may be politically popular, but they are not free. One of the costs is diluted resources to track and monitor people who actually pose a risk---i.e., convicted violent rapists like this guy.

Posted by: anon | Nov 5, 2009 9:25:46 AM

Thanks to Doug for posting about this case.

The problem here is not, primarily, that the follow-up system for released sex offenders is overwhelmed. The problem is that a person like this was released to begin with.

We hear again and again that too many people are incarcerated. This case is proof positive that just releasing people to save money, or to slim down the prison population, is not merely foolhardy but extremely dangerous. We have to take it one case at a time and THINK ABOUT who we are being called upon to release and what the costs will be if the release decision turns out to be wrong.

We also have to think about WHO IS GOING TO PAY THOSE COSTS. It almost never turns out to be the upper middle class types who populate academia and write articles for SSRN. It's not the "opinion leaders" at CNN or MSNBC or the NYT who roll around town in their BMW's and Escalades.

We have seen for ourselves who really pays the price for putting the Sowell's of this world back on the street. They are, as liberals are wont to say, "marginalized" people -- the sort who clean up offices on the night shift (if they have jobs at all) and don't get invited to the faculty lounge to munch on finger sandwiches. (N.B.: This is not a crack at Doug, since I have eaten more than a few finger sandwiches at the faculty lounge myself).

No, the price of anti-incarceration policies is disproportionately borne by (again as liberals are wont to say) "the most vulnerable in society."

Think about what has shown up on your TV over these last few days. The high-minded types who look down their noses at this great country as "incarceration nation" are nowhere to be seen among the stunned and grieving family members who gather outside Sowell's property, waiting so see if their mother or sister has been reduced to a partial skull in a bucket in Sowell's basement.

When those calling for the mass release of criminals are willing THEMSELVES bear the consequences of what happens next, they will have standing to continue with the lecture. Until then, I don't think so.

Posted by: Bill Otis | Nov 5, 2009 9:47:57 AM

"When those calling for the mass release of criminals are willing THEMSELVES bear the consequences of what happens next, they will have standing to continue with the lecture. Until then, I don't think so."

That's the strawman that you put up. Noone is calling for the "mass release of criminals." We need to be smarter about who we incarcerate and who we release. There are some who are released who never should have been released. There are many who are incarcerated who should not be incarcerated.

Posted by: John | Nov 5, 2009 11:23:54 AM

Bill, all this case proves is that Ohio should have given more time to a single violent sex offender 20 years ago. It provides evidence that the sex offender registration system does not actually protect the public. It also provides evidence that Ohio may not have taken violence against women seriously in 1989.

If you want to say that people who violently rape and choke women should never get out of prison, I agree with that (and as a liberal feminist defense attorney I'm ashamed to admit that I could not ethically represent someone accused of that crime since I'm pretty sure that wanting to violate the 8th Amendment rights of your client constitutes a conflict of interest.)

Posted by: virginia | Nov 5, 2009 11:29:39 AM

Bill, it was my understanding that Sowell was released after serving his 15 year sentence. He was not granted probation or parole, nor was he on probation or parole after his release. (Note, in this respect, the ABC News piece is inaccurate to say Sowell was "able to exploit a broken parole...system"). In other words, he was released because he had served his decade and half sentence, not because of cost cutting or because of concerns that "too many people are incarcerated."

You may be against releasing individuals early due to such concerns, but this case has nothing to do with that. "Anti-incarceration policies" and a supposed "mass release of criminals" did not cause this tragedy.

Of course, you can argue that Sowell should have received a longer sentence for this 1989 attempted rape conviction. That would be a more honest argument. It's disingenuous, however, to blame this case on the issues you identified in your post.

Posted by: DEJ | Nov 5, 2009 11:39:29 AM

Virginia, your comment seems to imply that LWOP for rape and attempted murder is an Eighth Amendment violation. Assuming the perp is an adult, you don't really believe that, do you?

Posted by: Kent Scheidegger | Nov 5, 2009 12:11:13 PM

Oh, jeeze, here we go again.

"Sowell was a registered sex offender, but authorities failed to enlist the community's help to be on the lookout for signs of trouble.... "

As if the neighbors knew there were bodies there if only the police had asked. So the problem now is that the people, the neighbors, are not paranoid enough. Now neighbors should not only assume there is a predator on every corner, they should assume that predator either has a kidnap victim stashed on his/her property or has bodies laying around. Not only that, but everyone who ever served a long sentence for a similar crime should have served a longer one, LWOP, to prevent inevitable murders. No mention of how many, almost all, did not murder. It doesn't matter.

Punishment should be for what a person does, not for what someone else does. The system's failure was the premise that the fallacy of the part equals the whole is good law. That is what is not working.

Look how the conservatives, and liberal feminist defense attorneys, clap their hands over this because they can again argue that fallacy.

Posted by: George | Nov 5, 2009 1:16:35 PM

Few people know how very bad these laws have become under the Bush administration. The dangerous combination of unscrupulous, opportunistic politicians, drama-driven, sound-bite “news” people like Nancy Grace-types at Fox plus overly zealous states attorneys wanting to make a name for themselves all came together under the Bush administration. Then add in the mix one or two horrific child abduction/slaying cases and stir. There is no other crime where a few cases that everyone is angry about could be used to change the laws so that NOW the large majority of people on the sex offender registry are not dangerous, and especially are not dangerous to children.
The term sex offender is so diluted now, it's hard to know if the man (usually) who you see on the registry is a truly dangerous Gerrido or a guy who got caught urinating on the road, or a 19 yrs. old who have very consensual sex with his 15 yr. old girlfriend, or though sleazy, the man who had sex with an underage prostitute who lied about her age and looked and acted older. All (and more of these types) are on the registry along with the burgeoning numbers of teens or even adults who unknowingly downloaded porn that has child (15, 16 yr. old sex girls) porn included. Would most men care what age the girl is if they're looking at porn and she LOOKED of age and was enticing. There are so many of these on the registry, it is disgusting. And for those fanatics who ASSUME that anyone who downloads porn and it has sexy 15 yr. olds (or even younger Tracey Lord types) and they are just getting prepared to rape children, I say “hogwash”, you're nuts and get a grip on reality. There is a huge difference between looking at a 7 or 8, or 9 year old child sexually and a teenager who looks ready and posed voluntarily. These laws need to be changed !!!
They are just out of control.
For anyone who wants to learn more and especially to help, go to http://www.reformsexoffenderlaws.org/
or http://www.false-allegations-team.com/
and/or read “Sex Offender Laws Failed Policies, New Directions” edited by Richard G. Wright
You can also check out the film narrated and produced by Sean Penn “Witch Hunt” and see just some of the damage these laws have caused. There are too many innocent men in prison and on the registry because of the hysteria that's run rampant in the U.S. And the more who aren't dangerous who are on there, the easier it is for the truly dangerous to hide and not be paid as much attention to. This is how Gerrido escaped the attention he deserved. Not to mention the tons of money these laws have been costing us. So they cost more and do less of what they were set up to do.

Posted by: suetiggers | Nov 5, 2009 1:18:31 PM

Bill O.

I have two suggestions two solve this problem. (1) Let's lock up everyone they moment they are born. If babies are born and raised in shackles they will never commit a crime ever ever ever. (2) Let's abolish all laws. If there are no laws their all no criminals and there for no one to lock up.

Now, if for whatever reason you don't like those two options you are creating a system run by human beings where shit happens. Just like with Jessica's law or Megan's law or whatever we should not be making policy based upon outliers. In saying that I don't mean to suggest this isn't a tragedy or that we shouldn't look to see where we can improve. But attacking liberals and academics doesn't advance the debate at all. It's not helpful.

Posted by: Daniel | Nov 5, 2009 2:13:14 PM

The 'System' was broken the day you created it, and, along with Mr Sowell's case (and many others), this is why ...

Teen says he drowned 4-year-old to protect secret, police say
http://www.cnn.com/2009/CRIME/11/04/california.boy.slaying/index.html

When are you going to learn? The tighter you (try to) squeeze, the more will slip through your fingers.

NLO

Posted by: Dr Nigel Leigh Oldfield | Nov 5, 2009 2:35:19 PM

I think if you are born naked you should be locked up because one day you may break the law. That is a fact.
If the registry was not so overinflated with urinators, streakers, sexters, boyfriend, girfriend cases, exposers, folks who intended to have sex, people entrapped by law enforcement, maybe they could have monitored this guy a little better, maybe not.
It is impossible to keep up with all of those on the registry now, maybe the regsity should only have dangerous people on it. duh?

Posted by: kathy | Nov 5, 2009 3:01:25 PM

If the sex offender registry was streamlined to target the truly worst offenders that posed the real threat to re-offended and that are truly the typical violent offender that most people conceive all sex offenders are. That would free up all the resources needed to properly monitor the these guys that everyone is asking how could this happen. But 80% of the people on the registry are no threat at all.
Cases like these will continue till something is done to address the 600,000 unwarranted sex offenders nation wide that are being monitored that don't need to be.
Shades of things to come with this Adam Walsh act. There are so many implication that are unseen that will come to light with this law. This may sound crazy but a woman breastfeeding her baby if seen by a minor can be charged and will be on the registry..........just as a person taking a leak in a alley.

Posted by: greg55 | Nov 5, 2009 3:11:55 PM

Kent asked: "your comment seems to imply that LWOP for rape and attempted murder is an Eighth Amendment violation. Assuming the perp is an adult, you don't really believe that, do you?"

my response - no, I think that LWOP for rape and attempted murder is constitutional.

Posted by: virginia | Nov 5, 2009 3:55:29 PM

John --

"No one is calling for the 'mass release of criminals.'"

That's not true. The frequent demands on this site alone to dramatically reduce the prison population and related prison costs are often (indeed typically) buttressed by the assertion that thousands upon thousands of imprisoned persons are low-level, non-violent, first time drug offenders who should never have been in jail at all, and, now that they are, should be released.

That is a call for mass release. You cannot possibly have missed this.

Posted by: Bill Otis | Nov 5, 2009 4:05:53 PM

Bill O.

I think you missed the point. It's not a calling for a mass release of criminals if you don't believe those people are criminals in the first place.

Posted by: Daniel | Nov 5, 2009 4:12:40 PM

DEJ --

I don't know whether Sowell was paroled, or released with a reduction for "good behavior" or released after having served his entire sentence. Because I don't know, I did not state or imply that parole was the problem; indeed I didn't mention parole at all. What I said was that Sowell never should have been back on the street. Given what he did after he WAS back on the street, I don't know how you could disagree with that.

"...he was released because he had served his decade and half sentence, not because of cost cutting or because of concerns that 'too many people are incarcerated.'"

I don't know that to be the case, but assuming arguendo that it is, it makes no difference to the point I was making. Cost cutting concerns and the argument that too many people are incarcerated will, if successful, inevitably lead to the release of dangerous men. This is not because the authorities are stupid or lazy (although there will be plenty of that as well). It's because human beings are fallible.

What this means is that incentives should be created for those pushing for the release of criminals to
think more carefully about the consequences of what they are doing. And the best and most just incentive is to require THEM to bear the costs and risks they now, in their insulated ivory towers, impose only on voiceless future victims.

Liberals have made a big point of demanding accountability. Fine, only let's not be selective about it. If you want criminals released, on the usual theory that we grossly over-incarcerate people, then you should be willing to pay the price when the guy released turns out to be Mr. Sowell or his clone. But that's not what happens. What happens is that the price gets paid by innocent people.

Is that OK with you?

Posted by: Bill Otis | Nov 5, 2009 4:34:15 PM

Daniel --

An adult of sound mind who intentionally violates criminal law is a criminal. Whether the law should be changed is a different matter.

Posted by: Bill Otis | Nov 5, 2009 4:58:01 PM

Bill: your argument is simply silly because you are basing general policy on one exceptional case. Now if that policy was "lock up people who rape and strangle women" you would get little disagreement - I think that few would argue that rape and attempted murder are among the offenses that deserve long prison sentences.

Quite simply if you want to incarcerate the Sowells of the world you have to pay for it somehow - either through increased taxes or by releasing a less serious offender. That is simply reality.

Posted by: virginia | Nov 5, 2009 5:09:26 PM

Bill, you mean liberals like Grover Norquest who abandons mandatory minimums.?

If you want to abolish the Bill of Rights and replace it with the victim's bill of rights, organize a constitutional amendment. Let's have that debate before it is too late. Let's see if the people really want to go there.

Posted by: George | Nov 5, 2009 5:11:37 PM

virginia --

"...your argument is simply silly because you are basing general policy on one exceptional case."

Of course that is exactly what DP abolitionists do, focusing on the "one exceptional case" in which an innocent person was executed.

There is an important difference, however: The exceptional case of Mr. Sowell exists. By contrast, the poster boy case for the executed innocent, Roger Keith Coleman, has been dropped down the abolitionist memory hole now that it's been shown to be a hoax.

But for however that may be, I am NOT basing my argument on one exceptional case. I am USING an exceptional case, now much in the news, to illustrate a point you conspicuously do not dispute, to wit, that if there were a mass release of incarcerated persons, sooner or later one of them is going to turn out to be the next Mr. Sowell.

Who should bear the consequences when that happens? The victim? Or the people who urged and approved the release?

"Quite simply if you want to incarcerate the Sowells of the world you have to pay for it somehow - either through increased taxes or by releasing a less serious offender. That is simply reality."

Your list of options for paying for it is too narrow. How about taking some of the billions in the stimulus package? How about using the next boatload of dough that otherwise would go to Cash for Clunkers? How about some of the billions currently being used to bail out crooked homebuyers who took out mortgages they couldn't afford by claiming income they didn't have? Or the equally crooked bankers who encouraged and abetted that behavior and then lied about it to their own stockholders?

Or if you don't like that, how about a tax on lawyers making more than $250,000 a year? A portion of the money spent on the prison system is, of course, going for litigation costs run up by by fat cat firms who want to be politically correct by having pro bono litigators sue the prison system because the TV's in the cells are only 18" instead of 24". Perhaps the millionaires populating these firms could tolerate a small tax increase to help keep our streets safer.

Posted by: Bill Otis | Nov 5, 2009 6:05:06 PM

George --

"Bill, you mean liberals like Grover Norquest...?"

No, I mean liberals like you.

C'mon, George. You can always find the occasional stray conservative who is liberal on one issue or another. William F. Buckley was for legalizing pot. George F. Will is against capital punishment. Ted Olson is for gay marriage. Etc. I could do the same thing with liberals taking the erstwhile conservative position, but it's not worth the trouble.

Now let me try to get back to the point. It won't take long. Do you agree that the consequences of putting Mr. Sowell back on the street should be borne by the people who urged and approved that that be done?

If not, why not? What about accountability?

Posted by: Bill Otis | Nov 5, 2009 6:26:06 PM

Bill, it is a fact that he was not on probation or parole. He served his entire prior sentence. The concerns you express in your post (i.e. "releasing people to save money," or an alleged call for "mass release of criminals") did not cause or contribute to this case one bit. I stand by my point that using this case to argue against such policies is disingenuous. It's entirely bait-n-switch.

Your point that Sowell should not have been released "in the first place" is really a call to incarcerate every felony offender to a life sentence. That's the only way to solve your problem of "he never should have been released in the first place."

Hindsight is always 20/20. The fact that some people re-offend is not a reason to never release anyone.

What about the individuals who exit prison and go on to lead productive lives and contribute to society, even those with violent prior convictions? It would be error for me to argue for mass release based on such successes; just as it is error for you to point to this case and say we need should never release anyone.

The solution is: 1) be smarter about who we place in prision, placing violent repeat offenders there for longer, while not imprisioning non-violent or first-time offenders; and 2) be smarter about who (and how) we supervise after conviction.

Posted by: DEJ | Nov 5, 2009 6:30:52 PM

It is one thing for parole offices not to find out that a sex offender is holding a living young woman against their will at his house for the purpose a raping her when the neighbors are calling police to give them a heads up. That is a failure of the system.

It is quite another thing for parole officers to miss hidden and buried bodies when no one has provided them with a tip. Parole officers aren't omniscient.

You can't watch someone all the time, and you aren't justified on a prudential basis, in doing extraordinary searches on a routine basis. Even though it may be constitutional to do an extraordinary search of a registered sex offender, it is prohibitively costly to do that very often. Sometimes people who committed serious crimes in the past do it again without getting caught right away. That shouldn't be controversial.

Serial killings are not easy to solve. Unlike run of the mill impulsive murders, these perpetrators are making a serious and premeditated effort to not get caught. The system solves as many as it does mostly because such a massive effort is put into finding the perpetrators because they terrify us. The number of serial burglars or car thieves who are never caught is far greater, and we don't consider it an outrage that they often slip away.

Posted by: ohwilleke | Nov 5, 2009 8:51:43 PM

DEJ --

"Your point that Sowell should not have been released 'in the first place' is really a call to incarcerate every felony offender to a life sentence."

Baloney. Your sticking words in my mouth is, however, a classic strawman.

"That's the only way to solve your problem of 'he never should have been released in the first place.'"

No, the way to insure that Sowell was not released in the first place was to impose a sentence that looked first to public protection, rather than have an inadequate sentence imposed against the backdrop of myriad complaints about "incarceation nation."

"Hindsight is always 20/20. The fact that some people re-offend is not a reason to never release anyone."

Which is why I have never said that we should never release anyone. Indeed, many times I have said here that I support prison education programs because the convicts should have a legal way to support themselves ONCE THEY ARE OUT.

DEJ, the entire tenor of this site is that there are too many people in prison and the system that puts them there is too harsh. The reasons offered for this conclusion are numerous: The cops and prosecutors are crooks; the country is a racist pigsty; incarceration costs too much; Europe knows better; it's inhuman; it's a throwback to our Puritan past, and on and on. But they all lead to the same destination: We need to slim down the prison population fast, and by a large amount.

When a case surfaces that casts a less than favorable light on the release-them-now theory, what happens is not any serious re-thinking about it. What happens is that the commenter who brings up this inconvenient truth, so to speak, gets accused of being dishonest. OK, fine, but Mr. Sowell is not a figment of my imagination. Neither are his numerous victims, whom you entirely ignore.

Now let me ask you straight up: Do you think the costs of releasing Sowell should be borne by those who urged it and did it? Or is it OK with you that they be borne, as they were, by victims who had no idea what our lax sentencing system had in store for them?

Posted by: Bill Otis | Nov 5, 2009 9:02:03 PM

Bill: "Now let me try to get back to the point. It won't take long. Do you agree that the consequences of putting Mr. Sowell back on the street should be borne by the people who urged and approved that that be done?

"If not, why not? What about accountability? "

No, only Sowell murdered if he is guilty. No one else. Ohio has the death penalty, but that won't satisfy you. What will? What about when that, whatever it is, doesn't make sure this or anything else never happens again? What do you think will satisfy you then? And what about when that isn't perfect either?

The authorities will makes some adjustments, but to assume from now on that every parolee has hidden bodies is just plain dumb. If and when they do, only persons who do are responsible, not everyone within yelling distance.

Posted by: George | Nov 5, 2009 10:38:50 PM

George --

I agree it's highly likely that Sowell alone murdered these women. But he could not have done so were he not back on the street. Thus, those who urged that he be back on the street, and those who put him there, have a share of the responsibility. Why should they just waltz away from the horrendous consequences of their decisions?

"Ohio has the death penalty, but that won't satisfy you. What will? What about when that, whatever it is, doesn't make sure this or anything else never happens again? What do you think will satisfy you then? And what about when that isn't perfect either?"

I have never demanded perfection, that being unattainable. There is no punishment (and no rehabilitation) that produces perfect results, or that will prevent all future misdeeds. But there will be FEWER misdeeds, and fewer devil-may-care decisions about who gets back on the street, if the people making those decisions had to bear the consequences of their carelessness. As it stands now, only the future victims -- who had no say in the matter -- get stuck with the consequences, and that is just plain wrong.

"The authorities will makes some adjustments..."

One would hope. And one would also hope that those adjustments will be applauded, rather than condemned as another step toward building "incarceration nation."

"...but to assume from now on that every parolee has hidden bodies is just plain dumb."

Which is why I don't assume it. At the same time, it is, as you say, just plain dumb to assume that the recidivism rate for released prisoners is zero.

"If and when they do, only persons who do [the deed] are responsible, not everyone within yelling distance."

I don't want to go after everyone "within yelling distance." I DO want to go after those who, out of ivory-tower carelessnes, and the certainty that only other people will have to bear the consequences of their errors and foolishness, put criminals like Sowell in a position to resume his violent and sadistic ways.

Posted by: Bill Otis | Nov 6, 2009 8:16:31 AM

Bill-

You said: "DEJ, the entire tenor of this site is that there are too many people in prison and the system that puts them there is too harsh. The reasons offered for this conclusion are numerous: The cops and prosecutors are crooks; the country is a racist pigsty; incarceration costs too much; Europe knows better; it's inhuman; it's a throwback to our Puritan past, and on and on. But they all lead to the same destination: We need to slim down the prison population fast, and by a large amount."

Although I cannot speak for Professor Berman, I was fortunate enough to have him for a few classes in law school and he had us question our current justice system, and for good reason--I believe it is failing our country. I do not like the status quo. I think we can do much better. And I consider myself pragmatic. I am not too dogmatically liberal or conservative to avoid something that works, even if it came from those pesky Europeans or was dreamed up by Dick Cheney.

Our law school had a summer program at Oxford and our comparative law class focused on the differences between the American, British, and continental European criminal justice systems. Recently, the UK began bifurcating their criminal laws, getting tougher on the more dangerous, violent criminals, and often releasing lower level criminals (usually after an admittance of guilt). This system seems to have had some level of success and seems to be exactly the kind of system some of the commentors here are proposing. I would like to see our country emulate such a system (which would have punished the Sowells of the world more harshly). If it doesn't work, we can try something else. What are your proposals?

Posted by: Shawn | Nov 6, 2009 9:59:03 AM

Bill, yes you are right you can cut other spending to incarcerate more people, but there is only so much cutting a state can do - especially on a state level where most states require a balanced budget. Especially since cutting some state programs such as mental health care can dramatically backfire.

What does "cash for clunkers" have to do with anything other than as the right wing strawman of the day? That was a federal program and has nothing to do with state spending on prisons. If you are arguing that the feds should bail out the states' irresponsible practice of incarcerating more people than they can afford, you are simply another special interest with its hand out. Since when do conservatives always run around looking for more government handouts?

Posted by: virginia | Nov 6, 2009 10:27:24 AM

Kathy said it best:

"If the registry was not so overinflated with urinators, streakers, sexters, boyfriend, girfriend cases, exposers, folks who intended to have sex, people entrapped by law enforcement, maybe they could have monitored this guy a little better, maybe not.
It is impossible to keep up with all of those on the registry now, maybe the registry should only have dangerous people on it."

greg55 made a similarly good point.

Posted by: Stanley Feldman | Nov 6, 2009 10:33:46 AM

Shawn --

It is in the nature of the academy to question the status quo, so have at it. That's what I was doing at your stage in life. The status quo then (the late 1960's and the 1970's) was that rehabilitation was the answer. After some years of indulging this theory, and as the crime rate roughly doubled, it was not just academia that became convinced that rehabilitation was NOT the answer, or at least certainy not the primary answer.

As even Eric Holder admits, the present era of longer prison sentences has coincided with a stunning 40% drop in the crime rate. That makes it the most successful domestic government program I can remember.

I don't have any alternatives that I could confidently vouch for as being able to do better than that.

Posted by: Bill Otis | Nov 6, 2009 10:51:19 AM

virginia --

"What does 'cash for clunkers' have to do with anything other than as the right wing strawman of the day?"

It's an illustration of the fact, which you don't dispute, that the feds can hand out money for any purpose under the sun, and of late have done so to the tune of billions (or is it trillions?).

"That was a federal program and has nothing to do with state spending on prisons."

That's the point. Since we know that people like Sowell, among many others, aren't out on the street raping and murdering when they're in prison, maybe it would have done more for public safety to send the Cash for Clunkers dough to the states to be used on prison construction.

"If you are arguing that the feds should bail out the states' irresponsible practice of incarcerating more people than they can afford, you are simply another special interest with its hand out."

Well you have a point there. While we're at it, the feds also should refrain from bailing out state parole boards' irresponsible practice of releasing prisoners without a guarantee that they won't commit more crime. May I assume you're on board with that?

"Since when do conservatives always run around looking for more government handouts?"

Since liberals showed us that that's how it works whether we like it or not.

As for being a "special interest," the only money I ever took from the government was my salary as an AUSA, which was less than a third of what I had been offered in private firms.

Posted by: Bill Otis | Nov 6, 2009 11:26:46 AM

You provide no evidence that "incarceration nation" can take the credit for the 40% drop in the crime rate. The crime rate plummeted across the nation, whether the states had Three Strikes laws or not. Many states are doing "early release" and concentrating on integration instead with very good success.

I tried to answer your question in a straightforward and concise way. Now please answer this one.

It is good policy to assume everyone remotely comparable to Sowell in the past should be sentenced as if they are Sowell in the future even when they are not?

A "yes" is the logical conclusion of your argument.

This is really my objection to incarceration nation in that the exception to the rule becomes the rule. The best example being almost all the sex offender laws named after a murdered child or woman. Does everyone belong in that filing cabinet or not? The same is true with drive-by shooters and the crack scare, which is how we got the 100-1 crack ratio, and there are other examples.The only solution is to punish an individual for what the individual does, not some collective punishment based on the outliers.

Posted by: George | Nov 6, 2009 11:31:04 AM

Bill-

Interestingly, I just reviewed an article this morning that has far different numbers than the ones you have quoted. According to a book called Punishment and Inequality in America, by Harvard sociologist Bruce Western, between 1975 and now the incarceration rate increased 7x from 100/100,000 to over 700/100,000. This increase is not based on increased offending rates but increased punitiveness. Based on the FBI's annual crime index, the US became 5x more punitive from 1975-1999. Meanwhile the increased incarceration rates since 1975 can only be credited for a 10% drop in crime over the same period. This is consistent with other studies I have read, although I do not have any of them at hand right now.

I understand that statistics can be manipulated by each side of any debate, so I cannot personally guarantee the authenticity of the numbers I have quoted, but if they are indeed correct, it certainly calls into question the success of the retributivist movement.

Personally, I think the "era of longer prison sentences" is a misuse of fiscal resources. As I said earlier, I favor a bifurcated system that focuses on the highest level offenders and essentially lets most lower level offenders off, perhaps with community control sanctions or some other form of treatment. One thing liberals and conservative can agree on is that they will never agree on the solutions to our problems. Therefore, I think we reallocate a clarge chunk of our corrections resources to educating our future generations and hope that they can help find problems. If we cannot figure out solutions to our problems, perhaps they can.

Posted by: Shawn | Nov 6, 2009 11:45:48 AM

i have to agree with these!

"Kathy said it best:

"If the registry was not so overinflated with urinators, streakers, sexters, boyfriend, girfriend cases, exposers, folks who intended to have sex, people entrapped by law enforcement, maybe they could have monitored this guy a little better, maybe not.
It is impossible to keep up with all of those on the registry now, maybe the registry should only have dangerous people on it."

greg55 made a similarly good point.

Posted by: Stanley Feldman | Nov 6, 2009 10:33:46 AM"

And the nice thing is that it would simply be taking the registry back to it was created to be in the first place.

A device to track VIOLENT or REPEAT OFFENDERS! The worse of the worst!

Posted by: rodsmith3510 | Nov 6, 2009 2:28:37 PM

George --

"You provide no evidence that 'incarceration nation' can take the credit for the 40% drop in the crime rate. The crime rate plummeted across the nation, whether the states had Three Strikes laws or not. Many states are doing 'early release' and concentrating on integration instead with very good success."

Several points. First, common sense will tell you that the severity and length of punishment affects the incidence of crime. I don't believe you'd dispute that. I never said, and don't believe, that longer sentences are SOLELY responsible for the decrease in crime, but you'd have to be living in an alternate universe to think they were anything but very significant.

Second, three strikes laws are a minor part of the overall trend toward longer sentences. I don't know what percentage of inmates are three-strikes people, but my guess is it's extremely small. The federal government, where I worked, has no general three strikes statute at all.

Third, early release in any significant numbers is a relatively recent development, and not, so far as I know, taken into account in the Attorney General's 40% figure.

"It is good policy to assume everyone remotely comparable to Sowell in the past should be sentenced as if they are Sowell in the future even when they are not?"

Of course not. But it is good policy to be aware that they MIGHT be, to assess that possibliity with great care, to err on the side of public safety, and to hold accountable those who make these decisions when their handiwork turns out to be way off and to have horrendous consequences, as it did with Sowell. We can't just have ten innocent women murdered by a guy we already knew was into violent rape, and then blow it off as just one of those things.

"A 'yes' is the logical conclusion of your argument."

No it isn't. See above.

P.S. I agree that laws named for somebody are often suspect, because they tend to be based on sentiment rather than a sober assessment of things.


Posted by: Bill Otis | Nov 6, 2009 5:40:24 PM

Mr. Bill, how is giving him the death penalty "blowing it off"? The death penalty and LWOP are extremely severe sentences. Do you want to cane him every six months? What? It seems you are really arguing that the death penalty can never be enough. You also contradict yourself by agreeing we can't assume every nearly equal defendant with nearly equal circumstances to Sowell's crime that got him 15 years will murder, and yet you want to sentence as if we know they will, or MIGHT. We know that because Sowell is your premise. Hindsight is always 20/20.

Another way of asking the same question is this, how many people that committed similar past crimes like Sowell's go on to commit high profile crimes, in comparison to those who never go on to commit anything as serious as the high profile crime?

You want to error on the side of caution even though perhaps the great majority of the error would never commit another serious violent crime. It's like pre-justice just in case, or the Minority Report. You seem to argue that the 15 years was not enough because 10% (for example) of those who serve 15 years will go on to murder, the other 90% be dammed even if they would not commit another serious or violent crime (murder does have the lowest recidivism rate). It may sound good on paper but it is not that simple. A few inmates, all facing very serious crimes, just saved a guard's life. On the other side of the coin, a young teen just killed a 4-year-old to avoid detection of a molest.

It's complex and tougher, tougher, tougher has not worked. If it did, that 4-year-old would be alive. Indeed, the tougher laws may have been greater motivation to avoid detection, and if everyone was as hopeless as you think, those inmates would not save that guard. Again, back to the individual rather than the collective.

Posted by: George | Nov 6, 2009 9:27:59 PM


George --

1. In a particular case, sure, hindsight is always 20-20. But when you are dealing with a KIND of case that the system has seen before dozens (or hundreds) of times, you have more than hindsight to go on.

This is not to say that patterns established in prior cases involving different defendants should point to any specific sentence for the defendant du jour. But while pattern information is not dispositive, it's certainly relevant.

It was hardly unknown at the time of Sowell's original sentencing that men who commit violent rapes have gone on to the next step of murder, and that the incidence of such murder is grossly larger for them than for the population as a whole, or even the criminal population as a whole. If any account was taken of this fact in deciding when (or if) Sowell would be put back on the street, I have yet to see it.

2. Of course the death penalty isn't "blowing it off." But what death penalty are you talking about? Sowell has never received the death penalty, and there's no assurance he will this time either. Indeed many on this site, perhaps including you (?), will ferociously oppose giving him the DP, and instead go on with the usual litany about how the GENUINE bad guy isn't Sowell, but Kent and me!

More to the point, I think you mistook the context. I wasn't, in the passage you reference, talking about the sentence for Sowell. I was talking about what the consequences should be for those who urged, and later undertook, Sowell's release, knowing, but apparently not caring, that he was a violent and sadistic man.

And what SHOULD the consequences be for them?

If the answer is none, then that is indeed blowing it off.

3. You're quite right that I want to err on the side of caution. I think that is characteristic of any prudent adult.

But it goes beyond mere general prudence. In deciding how the risk of error in sentencing should be apportioned, it's crucial to bear in mind who forced us to make the sentencing decision in the first place. It WAS NOT Sowell's victims, past, present or future. It WAS Sowell himself. It is therefore only just that Sowell, and not his victims or potential victims, bear the risk of uncertainty he has forced upon us.

4. "A few inmates, all facing very serious crimes, just saved a guard's life. On the other side of the coin, a young teen just killed a 4-year-old to avoid detection of a molest....It's complex and tougher, tougher, tougher has not worked. If it did, that 4-year-old would be alive."

Actually, according to our extremely liberal AG, tougher, tougher, tougher HAS worked. The crime rate did not drop 40% on account of sunspots.

As to the inmates who saved the guard, good for them, and I hope (and expect) that their acts will be taken into account in the disposition of their cases. And I wouldn't set too much store by what, if anything, is going on in the head of a young teenager who kills a four year-old. It's wildly unlikely that the teenager knew or knows anything about sentencing trends over the last few decades. It's more likely, although admittedly not much more likely, that he knew that, courtesy of Justice Kennedy, he can only be imprisoned, not executed, for murder, so the smart gamble was to kill the victim/witness of his molestation.

Posted by: Bill Otis | Nov 7, 2009 11:21:55 AM

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