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March 3, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 at 07:20 PM | Permalink

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Comments

But Paul's bill was the JSVA not Smarter Sentencing Act. It's nice and brings a little sanity back, but JSVA is really what's needed.

And don't count on the DoJ to support the JSVA any time soon. After all, think of the kingpins that will slip through thier fingers without mandatory minimums.

Posted by: Skeptical | Mar 3, 2014 8:38:31 PM

Earlier, I congratulated Mr. Holder on his stirring stump speech to be head of the NACDL, and I must congratulate him again for top-notch vision in spotting airhead Republicans.

Posted by: Bill Otis | Mar 3, 2014 11:35:28 PM

It would be the first time non violent offenders. They would save the MM's for the more violent and career criminals. Which are the ones that should be getting them!

Posted by: Renniks | Mar 3, 2014 11:36:55 PM

Rennicks,

I am not sure if you are aware of what crimes are considered violent. Merely possessing a firearm in some way while committing a drug offense is considered violent, even if it was never brandished. Crimes with no victims are regularly labeled "violent". Be very careful jumping on thay bandwagon without looking closely.

Posted by: Congical | Mar 4, 2014 12:51:42 AM

Renniks --

"It would be the first time non violent offenders. They would save the MM's for the more violent and career criminals."

Nope. That's what they say now, but it's a fraud. As the more intelligent and candid of the MM opponents (e.g., Doug Berman) say, this is just the opening gambit. The real name of the game, as Doug (and Skeptical) note, is to end MM's altogether. And it won't be just for drugs. It will be for guns and child pornography, too.

The reason MM's have to be ended altogether, in this view, is that they give prosecutors power, and we're better off when judges had it instead, as they did in the 60's and 70's, when crime fell so significantly; guns, drugs and child porn demonstrated their vast social benefits; and everything was wonderful.

Posted by: Bill Otis | Mar 4, 2014 12:51:42 AM

Just to clarify your views, Bill, am I right to conclude that you consider Senators Paul and Lee and Cruz and Reps Laborador, Chaffetz and Gowdy to ALL be "airhead Republicans"? Folks I talk to on the left seem very bothered when I speak fondly of these GOP folks, and it seems you share their perspective (which is telling and interesting).

As you know, one reason I often highlight some of the notable new GOP views on sentencing and drug war reform at the federal level is because it serves as a helpful way to explore who is a fiscal/small govt conservative as opposed to is a social/big govt conservative among the GOP. I know folks on the left consider fiscal/small govt conservative to be airheads or worse, but I want to be sure I understand your agreement with this perspective based on your comment above.

Posted by: Doug B. | Mar 4, 2014 11:50:44 AM

Doug --

Someone should have mentioned to you the phrase "leading question."

I think Paul and Laborador are mostly airheads, yes (Laborador is a defense lawyer by trade, incidentally). I don't know about the others, except for Gowdy, who I think is smart (he asked me smart questions when I testified before House Judiciary), and Ted Cruz, who is brilliant.

Smart people sometimes make airhead mistakes. Happens all the time.

To go over this Big Government stuff that I though we had put behind us: I am for a robust criminal justice system, which occupies a tiny part of the federal budget and has helped deliver one of the big success stories of the last generation, to wit, the massive reduction in crime.

You are for a slimmed down criminal justice system (except for more money for defense lawyers (which I also support)), while also being for a gargantuan welfare and entitlement system, which occupies a huge part of the federal budget and has grossly failed to deliver on its promises of eradicating poverty. Indeed, as the crime rate has fallen, the number of people living below the poverty line has risen to an all-time high, despite the huge Big Government programs you avidly support.

Now who were you saying is for Big Government??

Posted by: Bill Otis | Mar 4, 2014 1:50:06 PM

Doug --

One more question.

Am I correct in believing that you do not want to "reform" MM's for drugs, but want instead to abolish MM's for all offenses, even those involving violence and abuse of children?

Posted by: Bill Otis | Mar 4, 2014 2:18:50 PM

Clearly, Bill, you did not take any lessons away from prior big gov conversations because I had clarified for you, and you claimed you now understood, that I have never (in this forum or elsewhere to my knowledge) advocated support --- let alone avid support --- for "a gargantuan welfare and entitlement system." As I have explained before and will explain again, I tend to favor the decentralization of power, which leads me to generally favor free markets over government and leads me to favor smaller government units over larger ones.

Turning to the topic at hand, no reforms being discussed by Holder or those on the Hill will keep the federal criminal justice system from being a "robust criminal justice system." Rather, all the discussed reforms seem intended to try to make the federal criminal justice system more effective and efficient and balanced in the exercise of federal governmental power to lock people in cages in response to criminal activity.

I have little basis for concluding that any of the existing federal MMs which now often require decades in prison without the possibility of parole (unless one cooperates and has information to trade) in fact are effective and efficient and balanced in the exercise of federal governmental power, and thus I am presumptively against all of them. (I have a much different about state MMs, especially in states with some serious parole authority.

You seem to think, without any firm evidence that I know about, that the federal drug war and federal MMs requiring decades in prison without the possibility of parole has helped reduced crime and "helped deliver one of the big success stories of the last generation." In contrast, I think that a whole lot of disparate societal facts (including some sentencing decisions made mostly by states) have helped reduce crime and I fear that the federal drug war and federal MMs is a huge part of the explanation for "the number of people living below the poverty line [having] risen to an all-time high."

Neither of us are good enough empiricists to know who is right on the facts, and thus we should return to basic principles and instincts. My basic principles and instincts are that concentrations of power in government often does more harm than good, especially when it involved government having the power to legally harm its citizens through punishment. I surmise that the GOP members you want to call airheads share these basic principles and instincts. I am still not sure, Bill, what your basic principles and instincts are except that you dislike and like to call names anyone just about who thinks the modern federal criminal justice status quo should be reformed in any way.

Posted by: Doug B. | Mar 4, 2014 5:07:42 PM


Bill Otis, you write that you are for a "robust criminal justice system" that has helped deliver "one of the big success stories of the last generation, to wit, the massive reduction in crime." That's one way to look at it. Another way is to say that the "robust" War on Drugs and its associated mandatory minimum sentences has ruined countless lives, decimated communities of color, and has become a contemporary system of racial control—relegating millions to a permanent second-class status. See Michelle Alexander, The New Jim Crow

Posted by: Mary from Vermont | Mar 4, 2014 5:57:18 PM

Mary from Vermont --

I plead guilty. I care more about the crime rate, which affects 317,000,000 people, than about the incarceration rate, which affects about 2,200,000, or about two-thirds of one percent of that number.

I also plead guilty to being happy that so many fewer people -- millions, actually -- have been crime victims over than last 20 years as we got more serious about locking up hoodlums. I'm sorry you resent this.

In addition, I plead guilty to thinking that you're a classic race huckster, trying to silence opposition to your crime-aint-that-bad agenda by implying anyone who disagrees with you is racist.

That works with some people. It doesn't work with me. Have fun at your next Al Sharpton/Tawana Brawley rally.

Posted by: Bill Otis | Mar 4, 2014 10:10:44 PM

Doug --

Just quickly for now.

I stand corrected. Rand Paul is not an airhead. His head is actually full of ideas. Some of them are good, like reducing the size of the entitlement/welfare/administrative state. Most of them are awful, like reducing the power of the United States to what we see now, a helpless, nattering spectator while the Soviet Union...uh, make that Russia...invades whatever it wants, kills whomever it wants, and generally shows the world what things are going to be like if the USA shrinks to the size he wants.

Posted by: Bill Otis | Mar 4, 2014 10:19:37 PM

"Most of them are awful, like reducing the power of the United States to what we see now, a helpless, nattering spectator while the Soviet Union...uh, make that Russia...invades whatever it wants, kills whomever it wants, and generally shows the world what things are going to be like if the USA shrinks to the size he wants."

"invades whatever it wants, kills whomever it wants," Sounds like the good old US of A in Iraq, Libya and almost Syria. The only justifiable invasion was Afghanastan and that is looking more and more like a failure, like Iraq was.

I'll take an "air-head" Republican over a "s--t-head" Republican anyday.

PS: More US servicemen commit suicide than are killed by the enemy.

Posted by: albeed | Mar 5, 2014 8:08:17 AM

albeed --

Congratulations on your instantaneous pivot, giving a pass to Putin and Blaming America First.

You are indeed a patriot.

P.S. The actions of the United States (along with Britain, Australia, Denmark, Poland and a few other nations) were supported by the Iraq-relatated UN Resolutions 660, 678 and 1441, among others. Please site the UN resolutions that have supported your friend Putin in his invasion of the Ukraine.

Posted by: Bill Otis | Mar 5, 2014 9:27:19 AM

Doug --

Some other quick responses:

-- We tried your way for 20 years and it was a drastic failure. Prosecutors had relatively little power (few or no MM's, for example) and judges reigned supreme, with essentially unfettered sentencing discretion, from 1960-1980.

It's true that incarceration was much less then than it is now. I concede that we treated criminals better.

They noticed this, and crime increased by between 300% and 400%. The numbers are eye-popping: http://www.disastercenter.com/crime/uscrime.htm

You prefer to go back to the bad old days. I prefer not to.

-- As to who is for and who is against Big Government: If you were writing one version of the federal budget, and I was writing a different one, whose do you think would be bigger?

Hint: Mine would contain an immediate 2% cut in entitlement and income maintenance spending, which is where the big money is. Would yours?

-- "You seem to think, without any firm evidence that I know about, that the federal drug war and federal MMs requiring decades in prison without the possibility of parole has helped reduced crime and "helped deliver one of the big success stories of the last generation."

The evidence is in the numbers, which are staggering.

It is true that tougher federal sentencing alone does not account for all of the crime reduction, or nearly all. But the feds deal with the biggest and baddest.

-- "In contrast, I think that a whole lot of disparate societal facts (including some sentencing decisions made mostly by states) have helped reduce crime..."

Oh, I agree with that, as I have often said. Incarceration is one of many factors that has helped reduce crime. But it can't simply be dismissed, either.

-- "...and I fear that the federal drug war and federal MMs is a huge part of the explanation for "the number of people living below the poverty line [having] risen to an all-time high."

What is the empirical evidence that backs up that "fear?" Isn't it widely accepted that drug USE, not the efforts to suppress drug use, is a principal cause of family and individual dysfunction, and thus of the rise in the number of people living beneath the poverty line?

Posted by: Bill Otis | Mar 5, 2014 9:54:18 AM

You know Bill,

I would like to go back to the "bad old days" when everything wasn't a crime. I remember walking down the sidewalk an my way home from school and the smell of burning leaves was plesant. A couple of years ago I was referred to the EPA criminal division for a fire four feet in diameter in the middle of 27 acres that I own. I consider it a waste of time and money and excessive govenment power.

When my husband was a teen-ager he and three of his friends thought they were being harassed by the town marshall. They probably were. They caught him, took away his gun and tied him to a tree. They were caught, of course, and the end result was a good talking to. One became a bank execuative, others - a dr. an attorney and an Episcopalian Priest. Today tens of thousands would be wasted and their lives would have been ruined.

There is so much criminal code it all cannot be enforced. It is enforced in an egregious and uneven manner and everything is Federal. The Amish beard cutting comes to mind. Crime is defined in a different way and it has become wasteful, intrusive and in general made a large per centage of the population cynical about government and justice.

Posted by: beth | Mar 5, 2014 11:03:15 AM

"Congratulations on your instantaneous pivot, giving a pass to Putin and Blaming America First.

You are indeed a patriot."

Bill, didn't you know that "patriotism" is the last refuge of the scoundrel? No, I am afraid that you are the "Patriot".

BTW, you are highly selective in your approval of UN resolutions.

Posted by: albeed | Mar 5, 2014 11:57:00 AM

LOL now this was funny Bill!

"It is true that tougher federal sentencing alone does not account for all of the crime reduction, or nearly all. But the feds deal with the biggest and baddest."

would that include the article we discussed in an earlier thread where the man got YEARS IN PRISON because HIS DAD had a bullet in HIS TRUCK on HIS PROPERTY?

a REAL BIGGIE! and BADDEST!

Just curious!

Posted by: rodsmith | Mar 5, 2014 1:32:26 PM

rodsmith --

I didn't say the feds deal ONLY with the biggest and the baddest. And I see you wisely don't gainsay that they do, in fact, deal with the biggest and the baddest.

Posted by: Bill Otis | Mar 5, 2014 2:00:32 PM

albeed --

Where did I say I approve of UN resolutions? I merely pointed out that such resolutions supported America's (and other nations') invasion of Saddam Hussein's Iraq, while no such resolutions support your friend Putin's invasion of Ukraine.

This is relevant because you foolishly implied that the two are comparable.

P.S. Blame America First is the first refuge of apologists for Russian barbarism.

Posted by: Bill Otis | Mar 5, 2014 2:06:23 PM

beth --

First, it's a pleasure to hear from someone who actually thinks, whether or not we agree.

As it happens, I agree about the treatment of minor and regulatory crime, as I said in my piece just out in the Harvard Journal of Law & Social Policy, "Intent-Optional Criminal Statutes: A Plea for Reform, and a Note of Caution to Reformers," available here: http://www.harvard-jlpp.com/

As to the fire in your own yard: I would tell the EPA to get lost, and if they wanted to do something about it, you'd see them in court. When the judge tossed the case as absurd, you'd then go after the law license of everyone involved in it.

The statistics I cited to Doug (http://www.disastercenter.com/crime/uscrime.htm) do not come from the nonsense excesses of the regulatory state. They are things anyone would recognize as criminal -- murder, rape, robbery, aggravated assault, car theft, etc. As I noted to him, the breathtaking reduction in these things over the last 20 or so years is a wonderful development, and longer prison sentences have been part of its cause.

I don't want to go back to the early Nineties days of high crime, and I'm sure you don't either.

Our citizens didn't choose harsher sentencing because they think it's pretty. It's not pretty. But it is effective.

Posted by: Bill Otis | Mar 5, 2014 2:34:56 PM

Man Has Served 20 Years—and May Die—in Prison for Marijuana

http://news.yahoo.com/man-served-20-years-may-die-prison-marijuana-014026914.html

Posted by: Latest News | Mar 5, 2014 6:50:48 PM

Latest News --

Here's some more news for you: When you spend your adult life as a drug dealer, and won't stop, and think rules are for suckers, and think you make your own law, then -- guess what! -- you're going to be in for bad news.

This guy had years and years to change his attitude and just thumbed his nose at the law. Maybe he can take some responsibility for his own behavior instead of blaming everyone else.

Posted by: Bill Otis | Mar 5, 2014 9:38:05 PM

Bill,
Yes, I'm sure we would agree about regulatory crime.

The four boys who chased a Law Enforcement Officer, captured him, stole his gun and left him tied to a tree would definitely have some serious criminal charges that would side line them for years if not a life time.

I think we just have a difference of opinion about freedom. I also know that being pathologically optimistic - me - makes one see danger in a different way. I would also, for many reasons go back to the time before mandatory minimums.

Posted by: beth | Mar 5, 2014 9:44:29 PM

Bill:

Some very important corrections are needed to your poor empirical analysis, especially given on your heavy emphasis on the 50 year period from 1960 to 2010. First, federal prosecutors having MUCH less sentencing power than they do now was the norm for a full century from the mid 1880s though the mid 1980. It seems you think things were working out pretty well until about 1970, and only then apparently do you think the criminals figured out how federal sentencing worked, and yet then violent crime kept going up and up into the 1990s. Not sure how you think cause/effect work out here, but I do not think giving federal prosecutors lots of sentencing power explains crime rates in an sensible way. (I am also not sure lead exposure is the magic answer either, but it fits the data you cite much better than your claims.)

I say all this because, as you surely know, there was one notable period of increased federal criminal justice power before the mid 1980s --- the period of alcohol prohibition. Of course, violent crime did not go down then; rather, the "homicide rate increased from 6 per 100,000 population in the pre-Prohibition period to nearly 10 per 100,000 in 1933. That rising trend was reversed by the repeal of Prohibition in 1933, and the rate continued to decline throughout the 1930s and early 1940s." http://www.cato.org/pubs/pas/pa-157.html Relatedly, prior to "Prohibition and the Harrison Narcotics Act (1914), there had been 4,000 federal convicts, fewer than 3,000 of whom were housed in federal prisons. By 1932 the number of federal convicts had increased 561 percent, to 26,589, and the federal prison population had increased 366 percent. ... sociologist John Pandiani noted that 'a major wave of crime appears to have begun as early as the mid 1920s [and] increased continually until 1933 . . . when it mysteriously reversed itself.'" Hmmm... Did the feds enact a wave of MMs in 1933 or did something else notable happen that year?

I know you do not like to think that big federal government doing big criminal justice can fail, but alcohol Prohibition reveals the problem may not be lenient judges and parole officials, but misguided laws. And, as your own data highlights, the spike in murder and other violent crime in the 1960s starts to kick into high gear as Nixon starts the modern drug war and it was sustained through the Reagan-Bush-Clinton years when the drug war was fueled and funded through giving federal government agents more and more power and money to enforce narcotics prohibition (using federal taxpayer moneys and even more money borrowed from China).

You are right that I do not want to see crime spikes return, which is why I do not want to see a return to alcohol Prohibition and why I want to pull back from much of the drug war, which I now think may be one of the few easy and cost-effective ways to keep driving violent crime down.

Like all those involved in government, I know you can (and are eager to) mine data to contend that big federal criminal justice government and the drug war does a lot more good than harm. I know other fans of other big govt programs --- ranging from the Iraq war to Obamacare to the DEA to the EPA and so on --- can mine data to support their favorite forms of big government. But, as I have said before and will say again, neither of us are good enough empiricists to know for sure who is right on the facts, and thus we should return to basic principles and instincts. And my basic principles lead me to be suspicious of any and everyone claim big government success stories.

(On other fronts, though this take us off topic, I personally favor MUCH bigger cuts than 2% to nearly all existing FEDERAL programs/entitlements AND I think we should bump up the federal retirement/SS/Medicare age to 70 or even 75 AND I think we need to radically change (and streamline) all FEDERAL publicly-funded education, labor-force and health programming in light of changing labor-market, health and technology developments. But this is off topic and really just another variation of my view that the world is much different in 2014 than in 1964 or even 1989 and thus all (tired and dated and not-digital) public programming needs a re-boot in light of modern realities. Do you think anyone in 1964 thought public programs designed for 1914 or even 1939 should be preserved without modern modification? Though our world now changes radically every quarter/half-century, many/most of our "modern" public programming are still formulated around life in the 1960s because, I suspect, the baby boomers continue to frame/define/distort most of American politics and policy.)

Posted by: Doug B. | Mar 5, 2014 11:55:32 PM

"And I see you wisely don't gainsay that they do, in fact, deal with the biggest and the baddest."

Well of course I didn't. They do deal with major crime and major criminals. The problem is they have added 20,0000 bullshit crimes that usually involve no real victim outside of an overbearing group of our employee's who now think they are god's gift to America. They are NOT!

Posted by: rodsmith | Mar 6, 2014 1:23:24 AM

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