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July 12, 2013

DOJ delivers important messages in annual letter to US Sentencing Commission

Fulfilling its statutory obligation to deliver comments to the US Sentencing Commission, the US Department of Justice yesterday sent this very interesting 18-page letter to the USSC.  The letter cover a lot of important ground in important ways, and here are a few paragraphs that struck me as especially noteworthy (with key emphasis added by me):

From page 3: "At the state level, leaders in and out of government have recognized both the costs and benefits of the sentencing reforms of the late 20th Century. From that recognition - derived from a variety of studies of these 20th Century reforms - a new transformation in sentencing and corrections policy is taking place in much of the country. The dichotomy of determinate and indeterminate sentencing is breaking down and is being replaced by a pragmatism that recognizes that (1) budgets are finite; (2) imprisonment is a power that should be exercised sparingly and only as necessary; and (3) while determinate sentencing elements do indeed promote some of the core purposes of sentencing, reducing reoffending and promoting effective reentry are also core goals that can be successfully achieved and must be included in any effective sentencing and corrections framework."

From page 7: "The Budget Control Act of 2011 sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end.  Before sequestration, overall budgets had mostly been flat over the past four years.  However, even then, as prison and detention spending had increased, other criminal justice spending, including aid to state and local enforcement and prevention and intervention programs, had decreased. In fact, the trend of greater prison spending crowding out other crucial justice investments goes back at least a decade and has caused a significant change in the distribution of discretionary funding among the Department's various activities.

"Now with the sequester, the challenges for federal criminal justice have increased dramatically and the choices we all face - Congress, the Judiciary, the Executive Branch - are that much clearer and more stark: control federal prison spending or see significant reductions in the resources available for all non-prison criminal justice areas. If the current spending trajectory continues and we do not reduce the prison population and prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support to treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

From page 9: "The reforms we are focused on - and that we think the Commission can help bring about - are changes to statutory and guideline drug penalties; improving reentry programming and providing greater incentives to offenders to participate in these programs; and simplifying and reforming the guidelines to better meet all the goals of the Sentencing Reform Act, including controlling the prison population.  We believe drug penalties can be reformed, like many states have done, to focus severe penalties on serious and repeat drug traffickers, while providing alternatives or reduced sentences for non-violent, less serious offenders. We believe that both changes to the statutory minimum penalties in title 21 and changes to the so-called 'safety valve' exception to mandatory minimum penalties are needed.

"We are already working towards reforming some mandatory minimum laws along these lines - and along the lines suggested by the Commission in its report on the subject. Similarly, prison credits or other incentives can be reformed to promote more effective and efficient use of prison resources while simultaneously reducing reoffending. The President's last two budgets have included proposals in this area, and we think now is the time to enact them. In addition, we believe the guidelines can be reformed - by making them simpler - to reduce litigation and prison costs, reduce manipulation of sentences by litigants, and improve sentencing consistency."

July 12, 2013 at 11:02 AM | Permalink

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Just exactly what I would expect from a DOJ staffed at the top with past and future defense lawyers.

Posted by: Bill Otis | Jul 12, 2013 11:48:36 AM

The vast majority of those staffing this DOJ were AUSAs. To the extent any have been defense attorneys, it is typically in the big firm, white-collar context, a refuge that is home to former AUSAs of all political stripes.

Posted by: Barbara | Jul 12, 2013 2:19:28 PM

Barbara --

I said staffed "at the top" by once and future defense attorneys. And at the top is where it counts.

Posted by: Bill Otis | Jul 12, 2013 3:05:41 PM

Obviously Bill, you are programmed. Punch in the right cue and your program takes off automatically. How about taking a moment and offering something in a more thoughtful way. With your experience, I'm sure it would be worth listening to.

Posted by: Tom McGee | Jul 12, 2013 3:15:52 PM

"[A]t the top is where it counts."

"At the top" is a career U.S. Attorney who was was appointed to the D.C. Superior Court by Reagan. Under him is James Cole who went into private corporate practice after 13 years at DOJ — until returning in 2010. Then there's Thomas Perrelli, who was an entertainment lawyer, until he went to the DOJ, where he's been for 16 years. Finally, there's Don Verrilli, another corporate lawyer, with significant Supreme Court practice, who joined DOJ in 2009.

So yeah, DOJ's leadership offices are just packed with defense hacks.

Better trolling, please.

Posted by: Michael Drake | Jul 12, 2013 3:34:33 PM

Thanks for posting this link. I like the emphasis on fiscal responsibility as the escalating cost of incarceration and prosecution cannot be sustained.

Posted by: beth | Jul 12, 2013 3:34:38 PM

Thanks for sharing the link, this is typical of the DOJ.

Posted by: Brian S. | Jul 12, 2013 3:40:02 PM

We in the prison guard union agree completely with Bill Otis. The past and future defense lawyers at the DOJ have gone soft. We must keep incarcerating these scum who dare pollute the precious bodily fluids of our children; we must keep building more and more prisons, whatever the cost to warehouse these degenerates. We agree with Bill that when it comes to justice, cost must never, never be a factor. Keep putting 'em away.

Posted by: guard2 | Jul 12, 2013 4:56:50 PM

The first half of the letter is full of platitudes about how mass incarceration is becoming too expensive and we should try to reduce it through alternatives to incarceration, better re-entry programs, etc. The second half of the letter proposes changes to the guidelines that, mostly, would lengthen prison and supervised release sentences. Maybe the DOJ is full of "defense hacks" as Bill says, but if so, they're not very good at it.

Posted by: KED | Jul 12, 2013 5:08:56 PM

Can you believe that the DOJ actually writes the following sentence: "We believe drug penalties can be reformed, like many states have done, to focus severe penalties on serious and repeat drug traffickers, while providing alternatives or reduced sentences for non-violent, less serious offenders." What have these fools been smoking?

I agree fully with Bill Otis. This claptrap is nothing but Democratic, liberal, pinko, gay-marriage, pro-abortion, socialist, born-in Kenya-- O'Bummer crap. Bill Otis and his friends do not ever prosecute, much less punish, "non-violent, less serious offenders." This is just socialist, Hillary, pinko, fem-lib, nonsense.

Posted by: guard14 | Jul 12, 2013 5:16:23 PM

Tom McGee --

"Obviously Bill, you are programmed. Punch in the right cue and your program takes off automatically."

I think you have me confused with DP abolitionists. When you punch in "capital punishment," their response program -- yelling "barbarism" -- takes off automatically.

"How about taking a moment and offering something in a more thoughtful way. With your experience, I'm sure it would be worth listening to."

Congress thought so too. My testimony about federal sentencing and the USSC starts at about 44:05. Don't worry; it only lasts five minutes. http://judiciary.house.gov/hearings/hear_10122011.html

*********************************

Michael Drake --

"At the top" is a career U.S. Attorney..."

There is no such thing. US Attorneys are political appointees.

Still, I take your point. On the other hand, I never said the people running DOJ were defense hacks. They're not hacks. They've been quite clever in their years of opposition to determinate sentencing. That is shrewd, not hackiness, for defense lawyers. I see you don't deny, because you can't, that they share the reigning defense outlook on sentencing.

Better Dzokhar cheerleading, please. Try this site, it's full of analysis: http://sadleopard.tumblr.com/post/48450035687/this-is-so-shit-its-late-and-fuck-making-it

************************

beth --

For this administration, the biggest borrower and spender of all time, and the one that pushed through a new, gigantic entitlement program, to be moaning about the (relatively miniscule) costs of incarceration is a howler. If they wanted more prisons, they'd just borrow a few more billion, as they do with whatever else they want. The Administration that financed Solyndra is in no position to be fretting about too much expense.

****************************

guard2 --

Glad to see you think cost is a factor, but you forgot to include the economic (and human) costs borne by crime victims. There are many fewer (actually millions fewer) victims with more imprisonment, and thus many fewer costs for them to bear. When you decide you want to take account of the costs of crime victimization that we save with imprisonment, get back to me.

*****************************

guard14 --

One of your allies, Michael Drake, was just asking for better trolling. Please see what you can do.

Posted by: Bill Otis | Jul 12, 2013 6:34:49 PM

Il ne faut pas être plus royaliste que le roi, Bill.

Anyway, Obama has been president for 5 years, and DOJ has not torn down the prisons yet. It seems a little weird for anyone one either side to react to this letter as if it's likely to be especially meaningful.

Posted by: Jay | Jul 12, 2013 6:57:58 PM

Jay --

"Obama has been president for 5 years, and DOJ has not torn down the prisons yet."

You save the neat stuff for your second term, when you don't have to face the voters again. That's the main reason the start date for all the unpopular stuff in Obamacare got put off until after last year's election.

Slick Willy had been President for 7 years and 364 days before he handed out pardons to a bunch of his buddies, campaign contributors, Democratic pols, and, amazingly, his wife's brother. It's a mistake to underestimate the cynicism of these characters.

Posted by: Bill Otis | Jul 12, 2013 7:20:50 PM

"If the current spending trajectory continues and we do not reduce the prison population and prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support to treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

What's the problem? Reduce the prison population by removing ALL prisoners who had or planned no physical, financial or emotional victims AND reduce or eliminate all of the remaining programs. Also eliminate the worst "entitlement program" of all, federal retiree pensions and health care. After being mostly blood-sucking parasites during their working careers, they do not need additional rewards till death. The government cannot ever stop creating bogeymen to protect us from.

Posted by: albeed | Jul 12, 2013 9:27:18 PM

albeed --

"... eliminate the worst 'entitlement program' of all, federal retiree pensions and health care."

Pensions and health insurance for federal workers are provided for by their employment contract, and are therefore not "entitlements." But for however that may be, the most costly programs by far have nothing to do with employee compensation or criminal justice, for that matter. They are Social Security, Medicare and Medicaid. See the chart at: http://www.crimeandconsequences.com/crimblog/2013/03/the-silliness-of-looking-to-cu.html

Taking aim at prison spending while ignoring the real deficit generators is nothing more than denial. It is simply not possible to make any real headway against the debt by looking to discretionary spending.

P.S. Virtually every hoodlum in the slammer will claim that he "planned no physical, financial or emotional victims." It all happened by accident, dontcha know!

Posted by: Bill Otis | Jul 12, 2013 10:23:42 PM

Bill:
You might want to check your history re: Social Security. First, it does have to do with employee comp -- just ask any employer or any recipient. Second, SS was initially set up as a pay as you go program. Then along came the baby boom and an increase in coverage. Did your grandparents need SS, how about your parents, how about your present living family members or are they all affluent. If they are or were affluent did they give their SS payments back? Do you want to go back to people dying in old age because they can't buy necessities?

Posted by: ? | Jul 12, 2013 11:46:00 PM

Bill:

I said "planned no harm" and also "did no harm". You know, all those migratory bird feather owners, probably feathers from birds chopped by our wind-mill energy policy. Also, I don't consider most cases of obstruction of justice, lying to a federal agent or resisting arrest (not showing proper respect) to have any validity for starters.

I have tried to resist being brain-washed. Maybe I would have more respect for government if someone with cajones would walk into 1600 Pennsylvania Ave and arrest the current resident for ignoring the incidentals of the Obamacare "law" by arbitrarily and unilaterally changing dates of implementation, (unless these options were written into the original law), for political benefit. If he can change these implementation dates single-handedly, then anything, including promised federal benefits have no real meaning. We are no longer becoming a banana republic. We are already there.

Posted by: albeed | Jul 13, 2013 12:15:36 AM

? --

"You might want to check your history re: Social Security. First, it does have to do with employee comp -- just ask any employer or any recipient."

You might want to check your history, or your present, re: Social Security financing. Because of welfare state politicians (of both parties, but the Dems are worse), what gets paid out vastly exceeds what got paid in, which is why it's headed toward bankruptcy. And that the program is an entitlement is beyond serious argument. Just watch what happens in Washington whenever the suggestion is made that it be cut back, or even that the rate of its outpayment growth be slightly curbed.

"Did your grandparents need SS..."

Nope. They died early.

"...how about your parents..."

Nope, my father was a self-made man and built his own successful business.

"...how about your present living family members or are they all affluent."

The financial status of my living family members is no business of someone who won't even tell me his name.

"If they are or were affluent did they give their SS payments back?"

Ditto, and why do you assume that any of my living family members is old enough to get SS to begin with?

"Do you want to go back to people dying in old age because they can't buy necessities?"

I want people to be responsible for their own lives and behavior; to earn and save rather than borrow and spend; to think about the future rather than live solely for today; and to leave wealth rather than debt to all our children -- as my parents did and I will. I was taught to be self-reliant rather than beggar my neighbors to dig me out from my failings. What about you?

P.S. People "die in old age" no matter what they buy. Your parents should have told you this at some point.

Posted by: Bill Otis | Jul 13, 2013 9:01:34 AM

Bill:
" I was taught to be self-reliant rather than beggar my neighbors to dig me out from my failings."
I was taught to give a helping hand to those less fortunate.

Posted by: ? | Jul 13, 2013 10:14:38 AM

? --

Were you taught to impose you beliefs about charity on others, and what others have earned, by force of government power?

The moral quality of helping the less fortunate depends on how they got to be that way. If they were wiped out by some of the swindlers routinely promoted on this blog as "low level, non-violent" types, then, you bet, I'm for helping them. If, on the other hand, they got that way by repeated use of dangerous and illegal drugs they knew in advance to be unhealthy (at best), then they bought their own package (although they should still get detoxed, at least, while serving their jail sentence).

Now, once again, do you believe is self-reliance or dependency?

Posted by: Bill Otis | Jul 13, 2013 12:14:08 PM

"Were you taught to impose you beliefs about charity on others, and what others have earned, by force of government power?"

I was taught not to reflexively translate every view I oppose into a straw man.

When it comes to your beliefs about, say, what substances people should be allowed to ingest, you don't have any qualms at all with imposing them on others "by force of government power." More than that, you're willing to impose those views not just with a tax, but with complete loss of liberty.

Now, if you think putting people in prison to curb drug use has more going for it than imposing affordable taxes to provide charitable relief, that's fine. But let's not pretend that any of this is about your principled opposition to imposing policy views by force of government power.

Posted by: Michael Drake | Jul 13, 2013 5:07:52 PM

Michael Drake --

Did you miss this: Except in the most unusual circumstances, government has no power to put drugs in my body, but plenty of power to make me pay taxes to pick up the bills for people who don't pick up their own. Drug-taking is almost exclusively an individual's decision; paying taxes isn't.

Still, I am humbled by your on-high lecture about my lack of principles -- this from a guy who's a second-stringer at the FPD Office, has no cases to cite, refuses my debate invitation, and who, if he were at a high enough professional level, would do his very best to put back on the street the Boston Marathon bomber, thus to facilitate his blowing up yet another little boy (as long as it's someone else's little boy).

That's cool. We all make our choices. You giddily defend sadists of every stripe, and think yourself a hero for doing so. I respectfully decline. And yes, I decline out of principle. You can take a whack at that one, too.

Still, I appreciate your rare departure from the moral relativism upon which you trade every day, to give me a stern and decidedly unrelativistic talking to. One might even hear in your words the faint echo of Puritan judgment. There may yet be hope for you.

P.S. There is a fine line between being a cute smart alec and a boorish punk. You usually do a decent job of staying on the right side of that line. Usually.

Posted by: Bill Otis | Jul 14, 2013 12:05:54 AM

"Second-stringer" I totally give you; there's little doubt that the substance of my arguments is a poor match for what's left of your reputation.

Posted by: Michael Drake | Jul 14, 2013 3:12:08 AM

Michael -

If and when you actually present a "substantive argument" in court, you'll be in better position to Opine from On High about my reputation. That's something a lawyer acquires, incidentally, by doing cases, not by Internet zingers.

You're clever and smart, Michael, but also immature and self-satisfied. For the sake of both music and law, don't give up your night job.

Posted by: Bill Otis | Jul 14, 2013 7:23:36 AM

Wouldn't it be more gracious to just remain silent, Bill?

The government (including a timid, pro-government judiciary) holds all the cards and odds against meaningful change are overwhelming.

Current politics virtually guarantee that no matter how thuggish or outlandish agents/prosecutors behave they won't be held accountable for abusing/ignoring citizens rights. Democratic politicians love all federal programs (even jaded, sinister, corrupt ones like America's conviction/incarceration system). Republican lawmakers pride themselves on looking tough. Regrettably there isn't much of a constituency for protecting the rights of the accused against a sometimes-tyrannical system.

So relax, Bill. Cops/agents/prosecutors can continue to do virtually anything they want to do to virtually anyone they want to do it to without fear of consequences. The police/surveillance/incarceration state some of us have seen coming for decades (and you zealously applaud) is fully in place.

So I have to ask, Bill, why waist time and energy defending a system that appears to be impervious to attack?

Posted by: JohnK | Jul 14, 2013 12:09:23 PM

Bill, I have in fact argued in federal court — a point that, like most of your other delusional ad hominems, is apropos of nothing.

I trust that the irony of your accusing me of being "boorish," "immature," and "self satisfied" won't be lost on many.

Posted by: Michael Drake | Jul 14, 2013 5:26:51 PM

Michael --

It's all true. You really ARE superior. So superior. I'll take your word for it from now on. Can I sign up for your class?

Posted by: Bill Otis | Jul 15, 2013 1:31:41 AM

Bill, I see you still managed to get the last post in...Did they run out of energy or ammunition...(or shooting blanks)
This was a great thread...I like it, I love it, I want more of it....

Posted by: MidWest Guy | Jul 15, 2013 11:30:50 AM

am i the only one who imagines bill otis as the undergound man? i can't be, right?

Posted by: anonymous | Jul 15, 2013 12:05:30 PM

@JohnK
I liked your last post and pretty much agree with it all.. Nothing is gonna change in the Federal system, with the crowd we have in Washington currently...

Posted by: MidWest Guy | Jul 16, 2013 3:01:39 PM

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