« Pennsylvania still trying to decide how to implement Atkins | Main | "Prosecutors seek to revoke swindler's bond for lying about cancer" »

August 29, 2010

A thoughtful call for Congress to slightly increase federal good-time credit

Steve Sady, the public defender who for years argued for a defendant-friendly interpretation of the federal statute providing for 15% good time credit for prisoners, has this new commentary in the National Law Journal.  The piece is headlined "Too much time in prison," and here is how it starts and ends:

On June 7, my federal public defender office had the disturbing experience of losing Barber v. Thomasin the U.S. Supreme Court, a case that — if the outcome had been different — would have prevented up to 36,000 years of federal overincarceration, saving taxpayers up to $951 million.  The issue was whether the federal statute that allowed federal prisoners to earn up to 54 days of good-time credits for each year of their sentences meant that a prisoner could reduce the sentence imposed by up to 15%.  This sounds like an easy figure to calculate (54/365), but the federal Bureau of Prisons (BOP), based on time served, came up with a complex formula that works out to 12.8% of the prisoner's sentence, or only 47 days per year of the sentence imposed.  In light of the Court's majority ruling approving the BOP's interpretation of 12.8%, Congress should now amend the good-time credit statute to require the 15% rate against the sentence imposed that has received bipartisan support in previous legislation and that provides the basis for the federal guidelines' sentencing ranges....

Although the Supreme Court has made its decision, the result is bad public policy.  It is now up to Congress and the administration to step up and correct the problem.  Congress can fairly and safely lower incarceration rates for well-behaved prisoners, thereby reducing prison overcrowding and preserving public resources, by amending the federal good-time statute to ensure that prisoners can receive good-time credits of up to 15% of the sentence imposed.  By doing so, Congress would reaffirm the value our society and Constitution place on human freedom, while reinforcing good behavior by federal prisoners.

August 29, 2010 at 06:24 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20133f364b543970b

Listed below are links to weblogs that reference A thoughtful call for Congress to slightly increase federal good-time credit:

Comments

A modest proposal that makes good sense and good public policy.

Posted by: Michael R. Levine | Aug 29, 2010 11:58:36 PM

It is now up to Congress and the administration to step up and correct the problem.

Posted by: buy Guild Wars 2 gold | Aug 30, 2010 4:32:38 AM

I certainly agree with the proposal, but 15 percent is far too low; it ought to be more like 50 percent.

I do realize that the current system was part of a “truth in sentencing” movement, designed to ensure that defendants serve the vast majority of their time sentenced. But it means that the penal system has very little latitude to distinguish defendants who make a genuine attempt to improve themselves in prison, from those who do not.

It also means that an awful lot is riding on the decision of one individual at a point in time — namely, the sentencing judge. Save for that small percentage of sentences that are thrown out on appeal, the defendant who gets an overly harsh sentence has no opportunity (aside from the rather small 12.8 percent good-time credit) to show he deserves better.

Posted by: Marc Shepherd | Aug 30, 2010 10:00:34 AM

I did a breakdown of the proposeed bill. Please give me your comments on this. Maximize your windows screen and close the favorites to get the small table to display properly or just copy it to word.

Good Time Days:
Reinstatement of good times days are needed in the federal system. Congressman Danny Davis from Ill., has sponsored bill HR 1475, but I don’t know if it’s moving forward. Please support this. Currently 85% has to be served, HR 1475 would reduce this to 65%. Federal facilities are approximately 40% overcrowded. Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. I would think that the federal system needs this as well.

The BOP prisoner population is expected to grow by 5-7,000 over the next several years (it grew by 7,400 in 2007).
Accrual Extended
Graduated scale: March 2010 report Days/Month Inmates Days Avg
· 6 months to one year 5 3419 17095
· more than one year, up to 3 years 6 24234 145404
· more than 3 years, up to 5 years 7 28405 198835
· more than 5 years, up to 10 years 8 57993 463944
· more than 10 years 10 75017 750170
( Life – 6,075 – excluded ) Totals 189,068 1,575,448 8.33
Extended days / total inmates, = 8.33days avg days/month/inmate
8.33 * 12 months = 99.96 or 100 days/year/inmate avg.

Financial Impact: $26,000 annually / inmate. $26,000 / 365 = $71/day.

Currently 15% or 54 days Vs 100 days aggregate avg proposed.
100 – 54 = 46 days more/yr. 46 * $71/day/inmate = $3266/annually savings/inmate.
$3266 * 189,068 inmates = $617,496,088 saved annually.

There is a difference between being “Tough” on crime and “Unreasonable”. Excessive
sentences with little good time, breeds distrust of law enforcement and contributes
to overcrowding. Overcrowding is why the prisons are dangerous…. Give them an incentive for good behavior and things will improve.

Is this really how you want to spend Tax dollars?


Thank You


Posted by: Abe | Aug 30, 2010 10:47:24 AM

Overcrowding is why the prisons are dangerous…

It doesn't have anything to do with the people who end up there? That's an interesting theory.

Posted by: Soronel Haetir | Aug 30, 2010 11:42:28 AM

It probably has something to do with both things, Soronel. Do you or Bill ever let down your stern disciplinarian/chronic scold/hysterical nanny guards even for a minute?

Bill, here's a chance to affirm your oft-touted faith in Congress to step up and fix a problem with the system.

Me, I'm betting on the demagogues in their ranks.

Posted by: John K | Aug 30, 2010 12:46:11 PM

John K --

"Do you or Bill ever let down your stern disciplinarian/chronic scold/hysterical nanny guards even for a minute?"

Do you ever let down your boys-will-be-boys smiley face even for a minute?

You declined to respond to my observation in an earlier thread, to wit, that in your assessment of these criminals, there is never greed, just error. Never malevolence, just "a mistake." Never brutality, just a syndrome. Never blameworthiness, just a cry for help.

When 80% of the country approved of McVeigh's execution -- but not you, of course -- were they too a bunch of scolds and hysterical nannies? Well, were they?

"Bill, here's a chance to affirm your oft-touted faith in Congress to step up and fix a problem with the system."

My oft-touted faith is in Congress as an institution ordained by the Constitution to represent the people. This particular Congress stinks to high heaven because it flouts the will of the people. But the people are going to have a chance to stike back in nine weeks, thank goodness. Any bets?

Still, now that you mention it, Congress could fix a problem with the overcrowded prison system. It could, for example, divert some of the non-stimulating stimulus money, or the bailout money for crooked banks, to job-creating construction projects that will make things less crowded. So, John, here's your chance to "step up and fix a problem with the system."

Are ya gonna?

Posted by: Bill Otis | Aug 30, 2010 2:19:14 PM

Soronel, your right on that...This is canned view of what I would hope to send to Congressmen and enlighten them....It definitely is the actions of the people in prison....Don't take the report literally, as Congress would scan it..Hoping to catch their eye with the $$$$ it would save.. But fat chance, with the $$$ this group is used to spending, would anything half way to a $$billion be significant to them...There are truly good congressmen there...I think its a terrible task to try and get a majority vote on anything except for what your own party is selling...

What do you think on savings and going from 85% down to 35% for good time days...MAkes sense to me.

I think fereral sentences are 2-3 times longer than state and theres no parole.. THen you have supervise release, good luck getting thru that, without going back for another spell..

Posted by: Abe | Aug 30, 2010 2:59:50 PM

To Abe's comment "Give them an incentive for good behavior and things will improve.", I'm curious - do you have any statistical evidence regarding misconduct/recidivism/violator rates comparing federal "old law" prisoners, who basically earned 1/3 of their sentence in good time, and were generally eligible for parole after service of 1/3 of their sentences, compared to inmates convicted for offenses since 11/1/87?

Posted by: anon | Aug 30, 2010 6:22:28 PM

Just because true-to-life bad guys exist amongst us doesn't mean the system isn't oppressive, Bill.

Posted by: John K | Aug 30, 2010 8:30:13 PM

BTW: Mark Shepherd's right. Fifty percent would be much better than 12.8 or 15 percent...especially here in America, the bastion of freedom.

Posted by: John K | Aug 30, 2010 9:08:48 PM

John K --

"Just because true-to-life bad guys exist amongst us doesn't mean the system isn't oppressive, Bill."

I WANT the true-to-life bad guys to be oppressed. Really. Indeed I want them to be SO oppressed that they will (1) reconsider the way they live and (2) behave peaceably and honestly toward the rest of us.

Now is that bloodlusting or what?

The problem is that you seem to have a reflexive affinity for the bad guys, whether they're really bad or only modestly bad. As noted, 80% of the country approved the execution of really bad guy Timothy McVeigh, but you did not. Does that make the 80% "stern disciplinarian/chronic scold/hysterical nann[ies}"?

And then there are the relatively only modestly bad guys, like your broker friend who made a practice, and not unrelatedly a nice living, by lying about the income and assets of mortgage applicants. Since the lawyer he paid to rubberstamp this obviously dishonest maneuver said (on cue) that it was a "gray area" (your words), everything was OK, and thus the broker's prosecution and very, very light sentence was, nonetheless, ALSO the hallmark of an "oppressive" system.

Instead of blaming the broker for his greed and dishonesty, you blame the system for responding with -- what -- 20 years at hard labor? Well, not exactly. Three months' home confinement, wasn't it? No jail. No fine. But still, in your view, the American gulag.

Again, the problem is that, no matter what the crime, great or small, and no matter what the punishment, great or small, you ALWAYS seem to line up with the criminal.

At some point, I hope, you'll consider lining up with those opposing the criminal. You're an intellingent man, and a principled one, but your biases might have gone too far by now.

Posted by: Bill Otis | Aug 30, 2010 10:59:33 PM

Bill, twice in this thread you cast me as a Tim McVeigh sympathizer, which made me wonder if I'd said something in a previous post to give you that impression. So I key-word searched Doug's blog (McVeigh and John K) and found nothing to help me understand how you reached such a conclusion.

All I could come up with was a possible Billogism along the lines of: John K opposes the death penalty...Tim McVeigh was executed...therefore John K is with McVeigh.

Which is odd, to say the least.

You say you want true-to-life bad guys oppressed...so do I. But the tools the feds were given nearly 40 years ago to oppress Gotti and other mob bosses (RICO statutes) are being used routinely these days to crush ribbon clerks and thousands of other ordinary citizens and business people buried in the avalanche of federal crime legislation in the post-Nixon era.

As near as I can tell, the only thing McVeigh and I agree on is that the breathtaking powers bestowed on federal authorities over the past few decades has been routinely and sometimes lethally abused.

Posted by: John K | Aug 31, 2010 12:38:22 AM

powerS have (not has) been...abused.

Posted by: John K | Aug 31, 2010 12:41:43 AM

John K --

One other research project you might do is search the site for a single post in which you have taken the position, "Yes, this criminal was rightly convicted and got exactly what was coming to him."

If you said that even one time, I can't remember it. But in fact it's true thousands of times a day. Indeed it is the dominant truth of the system. The genuinely awful flaws in the system appear when some previously convicted dangerous man, like this Gardner character in California, is let loose so we can all congratulate ourselves on how compassionate we are -- and then some teenager winds up paying the price for our preening when Gardner rapes and murders her.

Where is your condemnation of these occasionally lethal policies of boneheaded leniency?

When you take a position with McVeigh and against 80% of the people, and the courts, of course that does not make you a "McVeigh sympathizer" in the sense of approving blowing up buildings, but it does make you a McVeigh sympathizer in the sense relevant to a forum about "sentencing law and policy."

The main point of our disagreement, though, is in this white collar area. I expect people to be honest, and I recognize, as I think you should, the gargantuan costs white collar dishonesty has imposed on the nation. This whole housing and banking crisis was brought about in large measure because of people doing just what your broker friend did. That is, people lied, and were facilitated in lying, about their assets and income, and as a result fraudulently obtained mortgages they could not pay off. When the piper had to be paid, the dishonesty came home to roost. Banks and bank shareholders were wiped out; employees were laid off by the thousands; pensions were lost; credit allocation overcorrected and bingo, now we have this recession (which the President falsely claims has ended).

This is a good deal more than ribbon clerks being buried. It's I'll-scratch-your-back-if-you-scratch-mine cheating, all done by insiders, who all got their Golden Parachutes while millions or ordinary -- and innocent -- people were left to suffer with the fallout.

For their unabashed and rampant deceit, and the widespread misery it caused, the Jeff Skillings and Ken Lays of the world earned what they got. Although I agree with you that the vast expansion of federal power is more than a little troubling, one must be selective in where to cut back. If the polling is accurate (and they can't all be wrong), where the public really wants cutting back is where they are most affected, that being taxes, spending, borrowing and debt. If there is any sense among the majority of our fellow citizens that they want a cutting back on vigilance against white collar crooks, I sure haven't seen it.

Posted by: Bill Otis | Aug 31, 2010 9:10:42 AM

"If there is any sense among the majority of our fellow citizens that they want a cutting back on vigilance against white collar crooks, I sure haven't seen it."

Ask them again after a parent, one of their children or a brother or sister gets swept up and squashed in a scatter-gun, guilt-by-association, plead-out-or-face-30 years-in prison federal task force operation.

Posted by: John K | Aug 31, 2010 12:38:38 PM

"This whole housing and banking crisis was brought about in large measure because of people doing just what your broker friend did. “

That's what you saw, Bill, and that's certainly the fairy tale the DOJ spun out for the public.

What I saw was a reckless government operation fixated on the most vulnerable (and least culpable) folks at the bottom of the food chain: loan originators working for standard commissions. Sure, some were actual fraudsters, but many others swept up in the fervor of a crusade simply were not.

To buy the DOJ's story requires willful blindness to a number of key facts:

1. "Liars loans" and other risky instruments were concocted by lending companies, not brokers, appraisers or other low-level functionaries.

2. In the hot housing market, lots of lenders seemed more concerned about the quantity of loans they were making than the quality, probably because they never intended to hold and service the loans. The quick money was in bundling and selling the loans on Wall Street, and that’s what many of them did.

3. Some lenders abandoned even minimal underwriting standards in order to keep the cash registers ringing.

4. At least one major lender went ever further. ABN Amro, one of he biggest lenders in the world, was fined $41 million (a tiny drop in its gargantuan bucket) after its employees admitted forging underwriters' signatures to "thousands of loans in at least four states." Yet neither the forgers nor the top executives was prosecuted.

5. During the hot market, Fannie Mae and Freddie Mac routinely conducted seminars for loan originators to coach them, among other things, to move apps through the system more expeditiously by omitting potential red-flag details from the apps. Loan officers for some "victim" lenders echoed those instructions. Generally, lenders were concerned about credit scores and debt ratios. So the unified message to originators was to avoid slowing or stalling automated underwriting by including extraneous info; if lenders needed to know something that's wasn't on the app, they'’d call and ask for it. Of course some loan originators, including my "broker friend," are now convicted felons for having heeded those instructions ("material omissions").

6. Rating companies accommodated lenders with triple-A ratings on mortgage-backed securities the rating agencies never actually analyzed for potential risks.

I could go on: FED interest policies that stoked the overheated market… the Bush Administration’s “ownership society” push encouraging people who couldn’t afford homes to buy them anyway… and so forth, but since your mind was made up from the moment you heard the words “mortgage broker” (one of the DOJ’s favorite devils), what’s the point?

I’d ask why it was a good idea for the feds to spend the better part of the last eight years rounding up low-level guys making a few hundred bucks per deal while all this other stuff was going on but, again, what’s the point. Loan originators single-handedly killed the economy. End of story.

Posted by: John K | Aug 31, 2010 12:52:01 PM

John K --

"Ask them again after a parent, one of their children or a brother or sister gets swept up and squashed in a scatter-gun, guilt-by-association, plead-out-or-face-30 years-in prison federal task force operation."

The family members of indictees are pretty sure to dislike the indictment, yup. Such persons are generally considered unqualified to give an assessment that neutral persons would credit.

Skilling, Ken Lay, Bernie and lots more were not guilt-by-association types. They were personification of greed. A system that looked the other way at their behavior would forfeit any claim to seriousness.

Posted by: Bill Otis | Aug 31, 2010 3:55:32 PM

John K --

"What I saw was a reckless government operation fixated on the most vulnerable (and least culpable) folks at the bottom of the food chain: loan originators working for standard commissions. Sure, some were actual fraudsters, but many others swept up in the fervor of a crusade simply were not."

This is what you miss: the problem STARTED WITH the "food chain," not with the government operation to clean it up.

And what was the "food chain?" It began with people who wanted a bigger, fancier house than they could afford and lied about their income, assets and debt so that they could get it anyway. The lying was facilitated by your broker friend and people like him. (Indeed it's only a small exaggeration to say that that was his whole job). It was further facilitated by dishonset and careless banks and bankers, who made a pile on these risky mortgages (for a while), while peddling them off on the secondary market for vastly more than they were worth -- a feat also accomplished by lying and obfuscation.

You say, "'Liar loans' and other risky instruments were concocted by lending companies, not brokers, appraisers or other low-level functionaries." And that's true, but incomplete.

In order to have a liar loan, you have to have both a liar and a loan. The liar was the financially ineligible applicant giving fraudlent figures about his income, etc. The loan was from the bank, facilitated by brokers like your friend, who knew about or were willfully blind to the staggering amount of lying that was going on. That was exactly the reason he didn't check the box that honesty required him to check.

I agree with much of the rest of your analysis about the culpability of Fannie, Freddie and -- yes -- the Bush Administraton policy for carelessly encouraging home ownership. (Of course this was pushed along by the by-then Democratic Congress, when the Community Reinvestment Act invited/forced banks to make loans in "underserved" communities, i.e., to communities with lots of Democratic constituents who wanted cheap money to live high. Imagine that!).

So yes, there is blame up and down the chain. Your mortgage broker friend (a phrase I use for shorthand, I don't know if he was literally your friend, or became one) was only one fish in the sea. Of course his barely-there sentence reflected this fact: He was a drop in the bucket, and so was the sentence.

My point is simple, though. He was a guilty fish; he engaged in a practice a high school kid would have known was dishonest; he ALSO knew it was dishonest, which is why he hired a lawyer to tell him what he wanted to hear (that it was just a "gray area"); and the problem is that DOJ didn't do enough, or act soon enough, in this crisis, not that it did too much.

Posted by: Bill Otis | Aug 31, 2010 4:32:12 PM

Ahem - to get back to the POINT of this post, might I point out that Steve Sady STILL has it wrong on how the statute works? He states "because the U.S. Sentencing Commission stated that its recommended baseline sentences were increased by a factor of 15% to "correct for the good time (resulting in early release) that would be earned under the guidelines." That is PRECISELY how the statute currently works. Say you want a defendant to actually serve 60 months. You multiply that figure by 1.15 (i.e. add 15%) and you come up with 69 months. Now compute the Good time on a 69 month sentence using the BOP's methods. It comes out to NINE months of Good Time, and SIXTY months served in prison. You can argue all you want that the number in the statute should be increased, but I'm incredulous that the "expert" who is still "disappointed" in the Supreme Court's decision can't correctly articulate "his" position in a freaking newspaper article!

Posted by: anon | Aug 31, 2010 6:34:34 PM

Bill, at the risk of dispelling your stereotypical illusions about mortgage brokers (and further annoying anon), the mortgage broker I interviewed for my book didn't prowl low-income neighborhoods looking for widows, orphans and idealistic but feeble-minded families to pressure into deals they couldn't afford.

He found financing for developers who sold rehabbed homes occupied by Section 8 tenants to investors. The developers brought him tentative contracts. He found lenders willing to put up the money. That's it.

One investor who'd purchased numerous units from the developers subsequently went on a meth binge and stopped making payments on his loans. Your Justice Department guys -- who as fortune would have it were fully engaged in the DOJ's mortgage-fraud crusade -- worked backward from the resulting foreclosures (which the DOJ guys instinctively viewed as evidence of mortgage fraud) to find someone to pin it on.

Happily for their sake, the DOJ guys had an array of vague, sweeping RICO statutes at their disposal and draconian sentencing guidelines to help them leverage false confessions.

No one ever accused the broker of misrepresenting the investor's resources or withholding key information from the lender.

Sometimes when people ask me what my book is about, I tell them it's about a guy who got convicted for being a mortgage broker during the government's mortgage-fraud crusade.

Posted by: John K | Sep 1, 2010 11:08:33 PM

"All I could come up with was a possible Billogism..."

Also known as Otis ponens. (Okay, a little late to that party, I know, but...)

Posted by: Michael Drake | Sep 3, 2010 8:38:38 PM

The more you fight something, the more anxious you become ---the more you're involved in a bad pattern, the more difficult it is to escape.

Posted by: ffxiv gil | Oct 18, 2010 1:14:08 AM

Do the crime, do the time. Period. That's it!

Posted by: Lisli | Dec 29, 2010 7:04:05 PM

ffxiv gil you need to get a grip. Sounds like you have never known someone that was locked up. It is not fair that I have to pay for someone to stay in jail or prison, when they could actually be a member of society if given another chance. Granted that may not apply to all, but it does apply to the majority. Not everyone that is there needed to be there for the time period that they were given.

Posted by: qjntjn | Feb 7, 2011 9:45:49 AM

It's always my pleasure to read this type of stuff.I am very much interested in these types of topics and it's my habit to read this.

Posted by: wow gold | Oct 18, 2011 6:26:50 AM

It's always my pleasure to read this type of stuff.I am very much interested in these types of topics and it's my habit to read this

Posted by: wow gold | Nov 4, 2011 2:52:31 AM

My point is simple, though. He was a guilty fish; he engaged in a practice a high school kid would have known was dishonest;

Posted by: cosplay costume | Apr 5, 2012 2:13:56 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB