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August 6, 2013

Conservative group ALEC joins the growing calls for sentencing refom

As reported in this Daily Caller piece, headlined "Conservative group advocates sentencing reform,"a notable new public policy group has joined the chorus of right-leaning advocates for significant sentencing reforms. Here are the basics:

A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses.

The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday.

The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate. Such a policy would save money by ensuring that only truly dangerous criminals spend decades in prison on the taxpayer’s dime, wrote Cara Sullivan, a legislative analyst at ALEC.

“This helps ensure lengthy sentences and prison spaces are reserved for dangerous offenders, allowing states to focus their scarce public safety resources on offenders that are a real threat to the community,” she wrote in an email to The Daily Caller News Foundation. “This approach, as opposed to simply throwing more dollars at corrections, reduces prison overcrowding while still holding offenders accountable.”

Many of the people sentenced under mandatory minimums were convicted of selling drugs, and committed no violence. Some were found guilty of breaking federal marijuana laws, even though they resided in states where growing and selling marijuana are legal under state laws.

While many conservative lawmakers once held to a “tough on crime” approach to criminal sentencing, the inefficiency and financial waste of imposing harsh sentences on low-level drug offenders has pushed libertarian-leaning elements of the GOP to embrace the Justice Safety Valve Act.  Conservatives are also concerned that federal laws interfering with judges’ abilities to set appropriate sentences — and states’ rights — are just another example of overreach on the part of the Obama administration....

Families Against Mandatory Minimums, a criminal justice advocacy group, praised ALEC’s decision to add its voice to the call for sentencing reform. “There is nothing conservative about inefficient, one-size-fits-all sentencing laws that cost billions in tax dollars and offer no public safety benefit in return,” wrote Greg Newburn, Florida project director for FAMM, in an email to TheDC News Foundation. “ALEC’s adoption of a model safety valve reflects the growing consensus among conservative lawmakers that mandatory minimums are ripe for reform.”

Wow.  It would now seem that  it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform federal sentencing statutes.

Some recent and older related posts about the new federal politics of sentencing:

August 6, 2013 at 12:34 PM | Permalink

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Families Against Mandatory Minimums, a criminal justice advocacy group

NAMBLA, a love and romance advocacy group

Posted by: Adamakis | Aug 6, 2013 12:46:34 PM

"A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses....The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate."

I wish the people pushing this thing would quit lying about it. The "Justice Safety Valve Act" nowhere limits its scope to nonviolent offenses. Don't believe me? Read it for yourself:
http://beta.congress.gov/bill/113th/senate-bill/619/text

If this thing is such a good idea, why do its allies think they have to lie about it in order to sell it?

Posted by: Bill Otis | Aug 6, 2013 12:50:48 PM

Could you support a bill (any bill) that was limited to nonviolent offenses?

Posted by: John | Aug 6, 2013 12:56:41 PM

John --

Are you conceding that ALEC is lying about this bill? Because we need to get that straight before we just move along to hypothetical bills.

Posted by: Bill Otis | Aug 6, 2013 1:03:03 PM

@ John

Well, first, let's look at who we are talking about:

• On average, the RAP sheets of nonviolent offenders
discharged from prison indicated 9.3 prior arrests and
4.1 prior convictions.

• Among nonviolent offenders, about a third had a
history of arrests for violent crimes. One in five had a
self-reported history of convictions for violence (table
7).

• In the aggregate, nonviolent offenders awaiting
release from prison were largely serious offenders as
indicated by several criteria. An estimated 88% of
these offenders reported one of the following:
— use of a weapon in the current offense (8%)
— a prior violent conviction (22%)
— committing the current offense while
on probation, parole, or escape (64%)
— two or more prior sentences (65%).

• Within 3 years of their release from prison, about 7
in 10 nonviolent releasees were rearrested for a new
crime; nearly half were reconvicted; and more than
a quarter were returned to prison (table 10).

• Among nonviolent releasees, about 1 in 5 were
rearrested for a violent crime within 3 years of
discharge (table 11).

http://www.bjs.gov/content/pub/pdf/pnoesp.pdf

If you can guarantee that only the TRULY "nonviolent" are going to be released, sure. The problem is that their conviction history is usually far different than their actual history.

Posted by: TarlsQtr1 | Aug 6, 2013 1:08:36 PM

Doug --

"It would now seem that it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform federal sentencing statutes."

I will be less resistant when I see less lying. Surely you know that the ALEC press release is point-blank false in describing the supposedly limited (but actually unlimited) scope of this bill.

Why am I the one who has to correct this? Why aren't you correcting it?

Posted by: Bill Otis | Aug 6, 2013 1:09:47 PM

I'm not sure why my opinion about ALEC is relevant. If it was, I suspect a host of legislation in my home state would not be adopted, much of which comes straight from ALEC's playbook.

But based on the text you linked, I do not see that the ability to impose a minimum is specifically limited to nonviolent offenses. Whether ALEC's statement that the bill "helps ensure lengthy sentences and prison spaces are reserved for dangerous offenders" is a lie or even misleading, is at least debatable, depending in large part on how sentencing judges use their discretion. My guess is that judges would, as ALEC and others have suggested, find the downward departure particularly useful in non-violent cases.

The ball is in your court.

Posted by: John | Aug 6, 2013 1:10:49 PM

Bill,

The Daily Caller piece confuses the ALEC model bill (which is limited to nonviolent offenses) with the Paul/Leahy bill. ALEC is not "lying" about anything; the bills have the same name but they are different substantively. The text of the ALEC model bill should be up on the ALEC site in a week or so.

Posted by: Greg Newburn | Aug 6, 2013 1:12:51 PM

Again, we are talking about moving the incarceration/rehabilitation marker within the confines of a fixed sentence period. A TRUE "sentencing reform" process would actually sentence the offender to distinct and separate processes that involve both punitive incarceration (prison) and societal reintegration (parole). To be blunt, we need BOTH to be effective for most offenders.

I've touched on this before, but it's not a matter of pitting the punitive-centrists vs. rehab-centrists. BOTH processes need to be separately addressed. The punitive process would be a fixed, non-shortened time period of punishment, with no good-time reduction, to address the needs of the victim as well as community deterrence.

NOTE: This is for first-time offenders only (or first time after the new implementation of this process). Subsequent offenders should automatically trigger much longer incarceration lengths, though each offense should be accounted for in defining the length.

Next, a distinct and separate rehabilitation period must be included in the sentencing, which includes its own penalties not related to the original sentence. The emphasis on this phase, though, is not on the punitive aspect, but on the actual reintegration of the offender.

Now, this is all "pie in the sky" for many offenders, whom have no inclination nor desire to ever acclimate themselves to the community. Violent offenders are especially key here. That is why incarceration is very important for victims and the community at large to be safe and why the current proposal is dangerous in THAT aspect. Bill Otis can certainly attest to this frame of mind.

Nonetheless, without the proper rehabilitation process, the offender will be far more likely to be a recidivist. Unfortunately, the current structure incorrectly refers this process to "coddling the offender," because of its implication that the same time period should be spent behind bars. That is the biggest problem with having a singular sentence that is supposed to contain both incarceration and rehabilitation.

Posted by: Eric Knight | Aug 6, 2013 1:31:37 PM

Greg Newborn --

I clicked on your name. What came up was the FAMM site. On that site, there is a prominent "Features" listing.

The second entry in that listing is titled, "Chairman Leahy Orders Hearing on Justice Safety Valve Act, S. 619." That entry is an enthusiastic endoresment of EXACTLY THE BILL I DISCUSSED -- that is, Leahy's bill -- and not some other bill the text of which will allegedly be disclosed in, uh, "a week or so."

Could we please quit with the fancy dance? The entry Doug put up touts ALEC'S support for "the Justice Safety Valve Act." I will quote the entry again, word-for-word: "The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday...The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate."

Notice that ALEC says that it "gave" (past tense) its approval to the Justice Safety Valve Act. It's perfectly obvious that it's not talking about some future proposal.

Just as I said, the Justice Safety Valve Act provides no limitation whatever to nonviolent offenses. And there is no other Justice Safety Valve Act before Congress. (There is a proposed "Smarter Sentencing Act", but no one could mistake those two names for one another).

So there are two points that stand out here. One is that, directly contrary to the entry, ALEC is supporting a bill with no limitation to nonviolent offenses. The second is that FAMM, to which your name links, ALSO supports having no such limitation.

As I said, could we please stop with the fancy dance?

Posted by: Bill Otis | Aug 6, 2013 1:45:58 PM

Bill,

There are two bills. One is a federal bill that's been filed by sitting U.S. Senators. That's called the "Justice Safety Valve Act." Then there's another, different bill. That's a *model* bill that's been endorsed by ALEC *for states.* That's *also* called the "Justice Safety Valve Act." Yes, there share the same name. But they are *different bills.*

The "Justice Safety Valve Act" to which ALEC "gave its approval" is *ALEC's own model bill,* NOT the Paul/Leahy bill, and not a "future proposal."

If you'd like a copy of the text of ALEC's model bill, email me at gnewburn (at) famm (dot) org, and I'll be happy to send one your way.

There's no "fancy dance" here, and no one is "lying." There's only your own confusion, which I hope is now cleared up.

Posted by: Greg Newburn | Aug 6, 2013 2:01:14 PM

Greg Newborn --

OK, one more time.

To quote the very first line that Doug himself quotes (emphasis added): "A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support TO A BILL IN CONGRESS that would lessen mandatory minimum sentencing for nonviolent offenses."

Do you see the words there that ALEC's support is "to a bill in Congress?" Really, do you see them?

It could not be clearer that the bill being talked about in this entry is Leahy's already-introduced Senate bill. Good grief.

P.S. I notice that you did not respond to my question whether FAMM supports a bill that would not be limited to non-violent offenders. But that is in fact FAMM's position, isn't it?

Posted by: Bill Otis | Aug 6, 2013 2:24:09 PM

Bill,

As I said previously, the Daily Caller reporter is simply confused about the two bills. As far as I know, ALEC doesn't "support bills in Congress." What they do is pass *model bills* **for states to adopt.** And that's what they've done here. They've passed a *model bill* that *has the same name as the Paul-Leahy bill,* but is *substantively different.*

I know that's what ALEC did, because I was in the room when they did it. And I know the bills are different, because I helped write the model bill. You see, Bill, you just don't know what you're talking about, and it's becoming ridiculous. Again, I've offered to **send you the text of the ALEC model bill.** I assume you're just not interested in actually reading it.

In any event, this will be my last comment on this subject, as I feel I've done a more than adequate job trying to clear up your confusion. I will assume any further confusion on your part is nothing more than willful ignorance.

Have a nice day!

Greg Newburn
Florida Project Director
Families Against Mandatory Minimums

Posted by: Greg Newburn | Aug 6, 2013 2:34:07 PM

Greg Newburn --

You attempt to simply make the plain language of the article disappear. Do you think there's a reason I quote it and you won't?

Right.

I might add that FAMM's steadfast and very smart ally, the owner of this blog, Doug Berman, see things exactly as I do. Thus, he said, referring to ALEC (emphasis added): "It would now seem that it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who [are] resistant to serious efforts to reform FEDERAL sentencing statutes."

So the author of this entry, a distinguished professor of law, thinks that it's talking about ALEC's support for "reform [of] federal sentencing statutes," but you know better, because Doug Berman can't tell the difference between the federal government and the states!

What's going on on this thread is not confusion. It's that FAMM got ALEC to back a proposal that's not limited to non-violent crime. But it's now dawned on the authors that this isn't going to fly; there's no chance that such a proposal will pass Congress. So we need some damage control to step this thing back. The damage control consists of blaming the Daily Caller.

OK. That's cool. I understand. FAMM has been around for years, and does not lack for sophistication in how to handle PR problems.

Still, I am grateful for your disclosure, however inadvertent, that ALEC is just providing a respectable front for FAMM, whose Florida Projects Director sits there and (covertly, until now) writes their stuff for them. I appreciate your pulling back the cover on that. It's always best, in the shady world of lobbying, to know who and what is actually behind proposed legislation.

P.S. I'm still hoping that you'll alleviate some of my copious ignorance, willful and otherwise, by telling us directly whether FAMM supports ending mandatory minimums without regard to whether the defendant's crime is violent. And, with apologies for the paraphrase, I will assume any further refusal to do so on your part is nothing more than willful stonewalling.


Posted by: Bill Otis | Aug 6, 2013 3:29:53 PM

Bill, the article is mistaken. ALEC endorsed a bill called the Justice Safety Valve Act, but it is not the same bill as the federal bills. Doug is only wrong to the extent that he is trusting the article to differentiate between the model state bill and the federal bills. I don't think it's anything intentional. This article seems to be clearer that they are two different things, which Greg has made clear:
http://thinkprogress.org/justice/2013/08/06/2416251/even-alec-may-now-support-reform-of-mandatory-minimum-sentences/

Posted by: Thinkaboutit | Aug 6, 2013 4:34:43 PM

Fine, one more comment, but this really is the last one.

Unlike the Daily Caller piece, the article I've linked below gets the facts right. ALEC passed a model bill; it did not endorse the Paul-Leahy bill of the same name. I'm going to go out on a limb and guess the increasingly hysterical Bill Otis *still* won't get this fairly basic fact, but there really isn't anything else I can do to help him. (Type more slowly, maybe?) ((I'll confess: with each of Otis' replies, I become more convinced that this thread is part of an elaborate hidden camera prank show.))

http://thinkprogress.org/justice/2013/08/06/2416251/even-alec-may-now-support-reform-of-mandatory-minimum-sentences/

And yes, Bill, you old sleuth: you got us. We were so intent on hiding FAMM's participation in the ALEC model legislation process that we put it right in our press release. D'oh!!

Once more, Bill: if you'd like to see a copy of the model bill that ALEC passed, so you can see for yourself all the ways it differs from the Paul-Leahy bill (and that it is, indeed, limited to nonviolent offenses), just let me know.

Posted by: Greg Newburn | Aug 6, 2013 4:36:16 PM

I missed one thing in Bill's last reply that needs correcting. I did not say I wrote the bill, because I did not write the bill, and FAMM did not write the bill. ALEC's Justice Performance Project wrote (and passed) the bill, and FAMM - acting in its capacity as a member of JPP - "helped write the bill." (I am FAMM's representative at ALEC, so in that sense *I* helped write the bill.)

I apologize for any confusion about that point.

Posted by: Greg Newburn | Aug 6, 2013 4:45:39 PM

Greg --

I know, I know, Doug's wrong and you're right. And it's the Daily Caller's fault.

Since you work for FAMM, I guess I'm not surprised to hear that it's somebody else's fault. More than anything else, that's what I heard again and again at sentencing from those for whom FAMM is carrying the flag.

Fine. Either one of two things is true. Either Doug is falsely claiming that ALEC has joined the push for federal sentencing reform, in which case the whole point of his entry is moot; or Doug is correct, in which case what we're seeing here is damage control: Without a limitation to non-violent crimes, the Justice Safety Valve Act is toast in Congress, so Doug's story has to be sidetracked.

As for your condescension, well, I've seen a lot better here, although the more usual avenue for your allies is more direct stuff like "Nazi" and (of late) "asshole."

For the third time, I'll ask you whether FAMM in fact supports an end to mandatory minimums with no limitation to non-violent offenses. Is that your position? And if it is, why all the huffing and puffing for a bill that (according to you), (1) wouldn't affect the much-hated federal MM's at all, and (2) doesn't give you what you really want anyway?

Posted by: Bill Otis | Aug 6, 2013 5:22:35 PM

Problems:

95% of adjudicated charges are fictitious. Thus only the indicted charges should be used to classify offenders as non-violent.

There is no specialization in criminals. Shop lifters can be serial killers. Drug dealers will mercilessly dispatch competitors.

The 2 million prosecutions are the tip of a huge ice berg of 20 million serious crimes. So every sentence must stand in for 10 other unindicted serious crimes. Each sentence is a rare opportunity to take a busy criminal off the street that cannot be wasted.

The damage of a loose criminal far outweighs the cost of incarceration by 2 orders of magnitude. Have one move onto your block, drop the value of real estate by a $million. So $50,000 is a superb investment.

Conservative lawyers are just as treasonous as liberal ones when it comes to protecting and enabling crime because they also owe their lving to the criminal and not to the victim. Bill, for example, will have the same trouble saying the V word as Prof. Berman. Scalia led the charge against mandatory guidelines.

Posted by: Supremacy Claus | Aug 6, 2013 5:56:11 PM

loved those numbers you had tarls! Of course you realize that based on them. Sex Criminals now move to the top of the list to be released. Since the govt's own numbes say 80-95% NEVER roffend again.

Posted by: rodsmith | Aug 6, 2013 8:37:19 PM

"Fine. Either one of two things is true. Either Doug is falsely claiming that ALEC has joined the push for federal sentencing reform, in which case the whole point of his entry is moot; or Doug is correct, in which case what we're seeing here is damage control: Without a limitation to non-violent crimes, the Justice Safety Valve Act is toast in Congress, so Doug's story has to be sidetracked."

Or, more likely, Doug quoted the article, and the article--like many--is mistaken. What would it take for you to believe that?

Posted by: Barbara | Aug 6, 2013 8:39:16 PM

"Or, more likely, Doug quoted the article, and the article--like many--is mistaken. What would it take for you to believe that?"

Yeah, this doesn't seem worthy of quite the level of dudgeon you're displaying, Bill. I guess you just really hate FAMM.

Posted by: Jay | Aug 6, 2013 10:43:26 PM

Jay and Barbara --

At this point, I'd settle for just a straight answer about FAMM's position, but I'm not getting one from FAMM's representative, Greg Newburn, so maybe you can help out.

Isn't it the case that FAMM supports an end to mandatory minimums with no limitation to non-violent offenses? If so, why all the huffing and puffing for what is now said to be a states-only bill that (according to Greg), (1) wouldn't affect the much-hated federal MM's at all, and (2) doesn't give FAMM what it really wants anyway?

P.S. If Doug put up, and is relying on, a mistaken article, you'd have to take that up with him. Literally the last thing he said is (emphasis added), "Wow. It would now seem that it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform FEDERAL sentencing statutes."

P.P.S. I do love it, though, that you understand that many articles are mistaken. Please convey that same thought to Anon, who, in a prior thread, takes the position that the Reuters article about the DEA must be true.

Posted by: Bill Otis | Aug 6, 2013 11:18:41 PM

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