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April 5, 2014

Dueling sentencing reform perspective from Heritage and Crime & Consequences blogs

Two recent posts from two notable blogs are worthwhile weekend reads as the debate over federal sentencing reform continues to heat up in Congress.  First, via Heritage, this post by Israel Ortega asks "Can We Get Some Americans Out of Jail?" and includes these sentiments:

An unlikely alliance is forming between conservatives and liberals rightly asking whether it makes sense that America has the highest incarceration rate in the world.... Besides the tremendous cost of housing an inmate in a maximum-security federal prison — pegged at around $33,000 per year — the sheer volume of the U.S. prison population warrants a closer look....

[I]t’s encouraging to see senators from both sides of the aisle pursuing sentencing reform. Introduced by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah), the Smarter Sentencing Act is proof that there are legislators from both political parties who are ready to have a fact-based and policy-driven discussion on sentencing reform without the fear of being branded “soft on crime.”

If done right, sentencing reform would not only save American taxpayers millions each year, but it would also free up resources to focus on prevention and rehabilitation — an approach that is working in places like Texas.... In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down.

Mississippi’s governor just signed a sentencing reform bill this week that was praised by Texas Governor Rick Perry (R). These are the kinds of innovation we need — and the kinds of programs that truly help people turn their lives around.

But, via Crime and Consequences, this post by Bill Otis explains "Why the Feds Can't Just Copy State Prison Population Reductions" and includes these sentiments:

The increased use of incarceration has accounted for about a quarter of the decline in crime. What that means is that about three quarters of the decline is attributable to other factors (things such as hiring more police and improved and proliferating private security measures). When three quarters of the factors responsible for the decrease in crime are still on-going, crime is very likely to continue to decrease. What reducing the prison population will do, by putting recidivist criminals back on the street, is slow the rate of the decrease. And that is, in fact, what's been happening. As some large states have been marginally lowering their prison populations, crime has continued to decease, but at a slower rate....

To the extent we have more recent data, they come from California, the state laboring under the effects of the Plata decision, ordering it to make substantial cuts to its prison population. Accordingly, and because of its very large size to begin with, California has had a greater reduction in its prison population than any other state. Result: property crime is up, I believe by 7%.

Even if prison reduction programs work for the states, they are not going to work for the feds. The feds prosecute precisely the kind of drug gangs, and drug offenders, who are the most violent, the most entrenched, and the most prone to recidivism. The kind of offender you see coming out of the county courthouse is a choir boy compared to what you see coming out of the federal courthouse.

Persons very familiar with crime and punishment data know that there are some questionable claims and concerns set forth in both these postings. But they should also appreciate that these piece provide two good examples of the nature and tenure of the modern sentencing reform debate.

April 5, 2014 at 03:19 PM | Permalink

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"The feds prosecute precisely the kind of drug gangs, and drug offenders, who are the most violent, the most entrenched, and the most prone to recidivism."

Oh please, that's an real exaggeration. Even if that is true for drugs there are lots of crimes that the feds prosecute that has nothing to do with the magnitude of the threat posed. The most obvious example of this is child pornography vs child abuse. Assuming there is harm caused by child pornography, no sane person thinks that such harm is in any way equal to the harm caused by the underlying abuse. Yet most child porn prosecutions are federal and most child abuse prosecutions are state. It is the states who are prosecuting the worst criminals (who ironically sometimes receive much shorter sentences than the lesser offenses prosecuted by the feds.)

So let me ask Bill this question: if the magnitude of the threat is the key criteria of someone being incapacitated, does he support significant reduction in sentences for child porn offenders who have no history of any in-person abuse of children?

Posted by: Daniel | Apr 5, 2014 3:35:15 PM

Daniel --

"Oh please, that's an real exaggeration. Even if that is true for drugs there are lots of crimes that the feds prosecute that has nothing to do with the magnitude of the threat posed. The most obvious example of this is child pornography vs child abuse."

The proposed Smarter Sentencing Act deals solely with drugs. With respect to drug conspiracy offenses, I would happily state under oath that the kind of offender you see coming out of the county courthouse is a choir boy compared to what you see coming out of the federal courthouse.

The feds almost never prosecute child abuse, and when it happens, it's under the Assimilative Crimes Act. I am therefore unable to make a comparison between federal sentencing for child abuse and federal sentencing for child pornography, since the former is essentially a null set.

Posted by: Bill Otis | Apr 5, 2014 4:12:28 PM

To Bill Otis,
1.I enjoy your blog a lot. I disagree with you. Sure in some major cities (Miami, Chicago, NYC etc, you are of course correct, however, these people will still be incarcerated. The run of the mill drug mule who gets caught up in the sting and has no one to cooperate against or the low level street dealer who cannot "produce" testimony beyond a couple other low level guys are the ones caught up. The case of a woman from Oaklahoma who agrees to carry a package back from Turkey to her guys b/f in St. Louis and gets 10 years for drug smuggling is exactly like the kind of offender we need out of jail. It is disingenuous to suggest that proposed prison reduction legislation as proposed by Heritage or even Cato will allow truly dangerous people back onto the streets.

Posted by: That lawyer dude | Apr 5, 2014 6:06:07 PM

We need an inmate territory kind of like Georgia was before the American Revolution. Put it on an island so they can cross the border and escape. Have three catagories of human: inmate, probation, service worker for a set amount of time.

Posted by: Liberty1st | Apr 5, 2014 8:23:23 PM

Thou Shalt Not Kill!
I would expect this to have traction in so called Christian nations but not so. There is a Sears Roebuck version of the Bible in every Christian nation which essentially has an exception for Y'all Can.

Posted by: Liberty1st | Apr 5, 2014 8:26:50 PM

If you are a Catholic then you need to go to confession and repent each time your state kills a human in your name.

Posted by: Liberty1st | Apr 5, 2014 8:28:12 PM

That lawyer dude --

"It is disingenuous to suggest that proposed prison reduction legislation as proposed by Heritage or even Cato will allow truly dangerous people back onto the streets."

It's disingenuous to suggest anything else. Some of the prisoners released in California have already proved dangerous, to put it mildly, as Kent Scheidegger has repeatedly documented on C&C.

It's just marvelous to see how the pro-SSA types, after years of insisting at the top of their lungs that the system is rife with error and misjudgment, now say that that same system will insure that only non-dangerous criminals will benefit from lower sentences.

Posted by: Bill Otis | Apr 5, 2014 11:51:55 PM

well bill guess what calif has spent decades many decades stuffing them into limited room and treating them like animals. no shit when released they ACT like animals.

Posted by: rodsmith | Apr 6, 2014 12:08:54 AM

rodsmith --

If that's true, then I wish the backers of the SSA would just go ahead and say, "no shit when released they ACT like animals."

But that's not what we're hearing. What we're hearing is that we can release criminals earlier, and there will be little to no effect on public safety.

It looks like you and I agree that this is not true.

Posted by: Bill Otis | Apr 6, 2014 12:57:01 AM

Bill, you have continued to fail to respond to the research from the USSC that shows early federal cracked releases have had little or no impact on public safety. Do you dispute the most on point research concerning federal drug offenses, or are you just content to ignore it?

Posted by: Doug B. | Apr 6, 2014 8:43:11 AM

Doug --

And you continue to gloss over the details of the USSC data, where the devil is said to reside.

First, the figures do NOT show "little or no impact on public safety," as you incorrectly maintain. What they show is little or no DIFFERENCE in the impact on public safety from what non-FSA releases had had.

And what was that impact? Seems you don't say.

I will. It was that recidivism was slightly over 30%.

When close to a third of the people commit a hard drug crime again, that is hardly "zero impact" on public safety.

In addition, if I'm recalling correctly, the recidivism period covered by the USSC was only two years post release. That is inadequate -- quite inadequate -- to capture the true extent of the return to crime. This is so first because it's not long enough, and second because, since drug transfers are most often consensual, the arrest/conviction rate vastly understates the perpetration rate.

I won't even get into the reasons we might distrust USSC figures to start with, now that the USSC has become a wholly-owned subsidiary of the defense bar.

Posted by: Bill Otis | Apr 6, 2014 9:40:40 AM

Bill, the point of the post-FSA release USSC data was that releasing this population early resulted in "little or no difference" in the public safety impact than if they had been held additional years. No prison release will have no impact on public safety, but if the money saved from early releases can be invested in keeping new people from committing new crimes (or if the nature of recidivism is less), than prison releases could help produce a net benefit to public safety.

You response here, as usual Bill, provides another telling example that you will cherry-pick public safety data and make broad claims based on that data to support your goals of increasing/preserving long prison sentences, while you will dispute all other public safety data that undermines your goals of increasing/preserving long prison sentences. You also, here and elsewhere, undermine the legitimacy of the organizations collecting and analyzing this data, but again only when this serves your rhetorical goals.

Of course, lots of partisans make these kinds of self-serving moves with contestable data. But it is especially suspect in your case, Bill, because you are always stressing public safety data in support of your contesting claim that mass incarceration and mass federal investment in the drug war has "worked" to keep Americans safer.

We can (and surely will) go on and on with these data debates. But I urge you to recognize and acknowledge that just as you question repeated claims by supporters of sentencing reforms can be made with "little to no effect on public safety," you should also understand why folks question your repeated claims that past sentencing reform were fundamentally critical to modern crime rate reduction and that any reform now poses a great risk to that past progress.

Posted by: Doug B. | Apr 6, 2014 11:06:58 AM

One more point/question regarding the USSC and your view of its trustworthiness: did you accept prior claims that the USSC used to be a "wholly-owned subsidiary" federal prosecutors, or did you think it was full of only "straight shooters" until (former Alabama AG and now) Judge William Pryor became a USSC Commissioner last year?

Posted by: Doug B. | Apr 6, 2014 11:11:12 AM

You're conflating public safety with recidivism. For example, when a drug dealer is designated in the BOP, there are no attached "public safety factors" that disqualify that individual from being housed in a camp (minimum security) FCP despite a high recidivism rate. However, any sex offender, even if the ccurrent offense is not a sex ofense, receives a PSF flag, despite the low recidivism, and the lowest security prison they may be housed in for even non contact crimes is an FCI low security prison (which is much more restrictive), even though sex offenders have the second smallest recidivism rate (next to murderers if I recall correctly) at 1-5‰ after 5 years. The DoJs own policies don't consider recidivism rates in determining public safety factors, why do you?

Posted by: Skeptical | Apr 6, 2014 11:16:16 AM

Skeptical --

"The DoJs own policies don't consider recidivism rates in determining public safety factors, why do you?"

Because I think DOJ is wrong in that judgment, just as I think it's wrong in its judgment supporting the SSA, premature application of the proposed two-level decrease, refusal to allow AUSA's to state in the indictment a MM-triggering amount (and instead to airbrush the amount) and numerous other things.

I strongly suspect you have your own disagreements with DOJ policies, in all likelihood more of them than I do. You cite a DOJ policy only when it agrees with you, in which case it miraculously becomes the font of wisdom.

That said, I believe it's time to say to you what I said a few days ago to another poster calling himself Michael:

"You seem like a serious minded person. I would like your name and professional background, please.

"I have been indulging anonymous critics on this forum and I don't particularly like the results. Anonymity has encouraged some disgusting behavior, so I think it should be curbed.

"I can understand why some people would want to hide their names (to avoid responsibility for their insults), but you're not like that. I don't want to have a discussion while I am in the open and the person who wants answers from me stays behind the curtain. That is just not working for me." ###

That admonition applies in particular to you, Skeptical. When my wife got labeled a "kapo" -- a disgusting slur you falsely claimed not to recognize -- you found absolutely no fault with the person who wrote it. Instead, you laid 100% of the fault at my feet for objecting to such gutter-trolling behavior.

As I said, you seem like a serious minded person with whom a dialogue might conceivably be useful, shorn of the snide stuff. But I am no longer inclined to have a conversation with someone who demands answers of me, while I'm out in the open and he hides his identity.

If we were physically in the same room, an arrangement like that would be laughable, and would get laughed at. It's ridiculous.

If you want answers from me, please give your name (and not "Joe Smith," I mean your real name) and your specific educational and professional background.

Posted by: Bill Otis | Apr 6, 2014 11:59:01 AM

Doug --

1. Thank you for acknowledging -- even though it took you four paragraphs to do it -- that your prior statement that "early federal cracked releases have had little or no impact on public safety" was false. As you now concede, what the USSC actually found was that early releases of crack defendants had the SAME effects on public safety other releases had had -- namely a recidivism rate of roughly 30%. I'll have to remember from now on that a 30% repetition of hard drug felonies amounts to "little or no impact" on public safety.

2. You're starting to play pretty fast and loose with language, Doug. What are we to take from that? Last week, it was that I had claimed that ALL federal judges were naïve and/or ideologically-driven, when in fact I had said nothing of the kind.

What's going on with that?

3. You also hemmed-and-hawed before you finally owned up that there were, indeed, a bunch of federal judges who were not merely untrustworthy at sentencing, but outright criminals.

4. You now call me a "partisan." That is correct. I am a partisan of not surrendering in the war on crime and of continuing the decrease in crime. What exactly is wrong with being a partisan? You are also a partisan, of course, and a strong and active one. Do you want to pretend you're not?

C'mon.

5. The only reason you find the USSC now so wonderful is exactly the one I named: That it's been taken over by the defense bar.

Posted by: Bill Otis | Apr 6, 2014 12:19:15 PM

The sole reason I choose to remain anonymous is because it isn't about me--it's about the ideas and the policy. I have no reputation either to promote or defend. Weak or strong, I'd rather people judge my posts by their cogency (or lack thereof) than by my alliances and personal connections. I remain idealistic enough to believe that in the long run sound policy will triumph over partisan screeching and that in the marketplace of ideas rational thought will triumph over ambitious men's lust for power. As the sage sayeth,

"To men a man is but a mind. Who cares
What face he carries or what form he wears?"

Posted by: Daniel | Apr 6, 2014 12:41:44 PM

Daniel --

"The sole reason I choose to remain anonymous is because it isn't about me--it's about the ideas and the policy."

If it were really just about ideas and policy, I would have little problem with anonymity, although I'd still think it preferable for commenters to take responsibility for what they say.

The problem is that, of late, it's not about all about ideas and policy. It's about rancid insults directed to my wife and family.

If a point be made of it, however, my willingness to identify myself does me no favors in this forum. Time and again I have heard some variant of, "Well, haha, Bill Otis is just a One Percent Stanford graduate and, even worse, a former prosecutor, so NO WONDER he's a compassionless bloodluster."

Here's the bottom line: Anonymity facilitates bad behavior. I've been willing to live with it for the most part, but of late it has gotten out of hand. I'm just not all that inclined to furnish the answers demanded of me while I'm out in the open and the person doing the demanding stays behind the curtain. That would never happen in a live debate; indeed, as I said, the idea of such a thing in a live debate would be laughed off stage.

Posted by: Bill Otis | Apr 6, 2014 1:08:43 PM

Daniel: The Supremacy is known to Prof. Berman and Bill, indeed is friends with them on Facebook. The daddy of the Supremacy has too many lawyers as friends and would like more clinical people. Those two and several other commentators from here and also friends on Facebook have totally respected its privacy, and have never used any personal knowledge to hurt the Supremacy. You may email any identifying items to Prof. Berman and ask him to forward them to anyone else you wish. Prof. Berman travels to many conferences. If he comes to your town, you might hang out. He is a fun guy. You are getting only half the dazzle of his mind here. It doubles in person. Even if he runs intellectual circles around the person, one is inspired to reach for more and to upgrade the work and intellect.

Private linking ends Bill's anonymity problem without risk. I am willing to do it with any American lawyer. Bill has not yet experienced what the left is capable of once one's identity is known, including false messages in his name, continual harassment, and specific, credible, death threats. The reason for their personal attacks is that the facts abandoned the left 100 years ago, and personal attacks are all that remain to promote their rent seeking. So in Cuba every block has a paid Commie snitch. Make a joke about the government, the reply is prison. The Left killed 100 million people and is still laying on the dust heap of history. So I understand the value of anonymity. The Left is thriving in Cuba, Venezuela, North Korea, and in the United States. Most everywhere else, it is in retreat. They are desperate, violent, and defending the rent.

Posted by: Supremacy Claus | Apr 6, 2014 4:54:26 PM

Bill, I could respond point-by-point at length, but it would involve too much silly semantics and fail to get to heart of key important issues relating to the USSC 2011 crack recidivism study and your new attacks on the USSC. So, let's try to focus on 2 points:

1. The 2011 USSC crack recidivism study actually found a 2% reduction in recidivism for the early released crack offenders, though it said the difference was not statistically significant. However, if it was a defense-bar mouthpiece, that reduction would have made USSC headlines. In addition, the data reported suggest most of the 30% recidivism reported did not involve all "hard drug felonies." But I do not want to dicker over the numbers, especially since it seems you no longer trust the USSC as a data source.

2. As I try elsewhere, I do not mean to play fast and loose with language, but rather try to better understand what others say/mean and the basis for their claims/beliefs. Ergo, I am VERY EAGER to better understand the basis for your assertion that the US Sentencing Commission "has become a wholly-owned subsidiary of the defense bar" and has "been taken over by the defense bar." Looking at the bios of the current seven Commissioners, it appears that four of the seven have some significant history as a criminal prosecutor and/or working for DOJ. Only one appears to have history as a member of the defense bar. In addition, the USSC has an ex officio member who is a career DOJ lawyer (and no defense ex officio).

In light of the USSC's composition, which now includes the former AG of Alabama as well as FIVE sitting federal judges (including one appointed by Reagan and another by GWB), can you better explain the basis for your assertion that the USSC "has become a wholly-owned subsidiary of the defense bar" and has "been taken over by the defense bar"? Do you believe any and everyone with a different sentencing perspective than yours has been taken over by the defense bar or is something else at work here? Can you explain what that is?

Posted by: Doug B. | Apr 6, 2014 5:04:13 PM

Skeptical: Appreciate the numbers. There are serious problems which render policy making completely blind.

Only 1 in 10 FBI index felonies is prosecuted, and the Index does not even contain drug dealing.

The adjudicated charge is fictitious and downgraded from the real crime in 95% of cases.

Without a guarantee of immunity and a thorough interview, the recidivism rate is unknown.

There is no specialization in crime, so the shop lifter may be a serious killer, and the safe cracker a sex offender. We know they commit hundreds of crime a year.

Part of the job description of non-violent drug dealer is to kill competitors when the boss asks.

Witnesses are reluctant to testify against organized crime, because the police does not protect anyone.

So you should have zero confidence in any numbers about crime being put out. The sole reliable numbers are from the DOJ Crime Victimization Survey. Even there one has to wonder how the Obama DOJ recently "enhanced" its methodology, already a gold standard.

Posted by: Supremacy Claus | Apr 6, 2014 5:09:26 PM

Doug --

1. You yourself are an excellent source of the considerable evidence that the USSC is now a mouthpiece of the defense bar. Here's one piece:

http://sentencing.typepad.com/sentencing_law_and_policy/2014/01/the-commission-voted-to-publish-to-the-federal-register-proposed-amendments-to-the-federal-sentencing-guidelines-a-press-rel.html

Here's another:

http://sentencing.typepad.com/sentencing_law_and_policy/2014/03/ussc-chair-talks-up-a-generational-shift-for-drug-sentences.html

The very savvy Carmen Hernandez, who I believe has been or is a national officer of the NACDL, quite rightly said, in her comment on that piece, "That quote is a great closing paragraph for a sentencing memo in a drug case."

Just so. As Ms. Hernandez recognizes (and so do you even though you won't admit it), the Chairman of the USSC is now writing memos for the drug defense bar. Far out!

Then there was the real biggie, the 645-page "report" trashing mandatory minimum sentencing, which you lauded here:

http://sentencing.typepad.com/sentencing_law_and_policy/2011/10/the-us-sentencing-commission-new-mega-report-on-mandatory-minimums-now-available.html#comments

2. "Looking at the bios of the current seven Commissioners, it appears that four of the seven have some significant history as a criminal prosecutor and/or working for DOJ."

C'mon, Doug. I wasn't born yesterday. Here are some more people who have "significant histories as criminal prosecutors and/or working for DOJ": Mark Osler, Eric Holder, David Souter, Sonya Sotomayor, Elena Kagan.

I mean, really. You couldn't possibly help knowing that it's standard practice for very liberal people to put in two or three years as a prosecutor, then go off to do what they really want and say what they really think. Good grief. Thurgood Marshall himself worked for DOJ.

3. Contrary to your present position, it is hardly "silly semantics" to point out the massive difference between what you claimed the USSC said and what it actually said. What you claimed it said was: "early federal crack releases have had little or no impact on public safety." But that's not what it said. What it actually said was that early federal crack releases differ by little or nothing FROM THE RECIDIVISM RATE of pre-FSA releases.

The first rendition would suggest that early releases have essentially no effect on crime. The second (and actual) rendition suggests that their effect on crime (a 30% recidivism rate) is essentially the same as it was pre-FSA. But to say that the recidivism rate has stayed where it was is vastly different from saying there is no recidivism (that is, no repeat crime) at all.

That's just "silly semantics?"

Posted by: Bill Otis | Apr 6, 2014 6:30:39 PM

Bill:
How would you lower the 30% recidivism rate?

Posted by: ? | Apr 6, 2014 8:57:46 PM

Okay, Bill, if you want to get into the public safety weeds based on the USSC data, let's go through this: As I understand the USSC report, the reduction in crack sentences in 2007 led to a cohort of offenders being released, on average, two years earlier and 30% being picked up for a new crime over the next 2 years (as opposed to 32% who would have been picked up later if not released early). So, assuming we can extrapolate/generalize from the USSC data, by letting roughly 15,000 crack offenders out in 2010 instead of 2012 (they all did not get out at once, but I am trying to simplify the analysis), we got a total of 4500 "new repeat crimes" from 2010 to 2012 (most of which were drug possession/distribution). If we had waited until 2012 to let this cohort of prisoners out, we would have gotten 4,800 "new repeat crimes" of the same basic character from 2012 to 2014. So, unless you think the precise time at which the new repeat crimes were committed by the released offenders makes a VERY big deal, I think it is fair and accurate to say the USSC research showed that early crack releases had ultimately little or no effect on public safety. (Of course, if you look at just one year in isolation or focus on just one repeat offender, you can tell all sorts of scary stories about public safety. But looked at in toto, you can say that the early releases actually improve public safety by a total of 300 net crimes.)

Of course, we could keep dickering over these basic numbers and the TRUE nuanced/dynamic impact on public safety, especially if we had much richer data about the nature of the repeat offenses/offenders AND concerning what was done with all the money saved AND whether the early released persons who did not commit new crimes may have prevented others from committing crimes in 2010 to 2012 or later. (Interestingly, the USSC data suggest the early released offenders we much better behaved the first six months out, then they caught up the next six months, but then the next year they were again less crime prone. Interesting to speculate if a longer timeline means even a greater reduction in repeat crimes based on early release.)

Long story short, unless/until you have detailed evidence that the early released folks were committing a lot of very serious crimes (rather than, say, just drug possession) AND evidence that these crimes would never have been committed by this cohort upon their release two years later, I think it is fair to say, looking at the whole picture, that the early crack releases had little or no impact on public safety.

If you really want to dig further in the weeds, I can give you a few reasons why we should have expected, based on risk predicators and sample grouping, a HIGHER recidivism rate from the early released folks (e.g., they had longer average pre-release sentences imposed), and thus the USSC results going the other way may be viewed as reasonably strong evidence that cautious early released may itself help REDUCE recidivism in the released population and in turn provide a basis for the claim that early release of drug offenders may IMPROVE public safety. But rather than get still further into the weeds, I will be content to highlight that early releases from the 2007 crack reductions probably saved US taxpayers at least $750 million in incarceration cost, and that money could have been used to still further improve public safety.

I called this "silly semantics" because I think/fear you will respond by making claims that the 4,500 (mostly drug) crimes committed in 2010 to 2012 is not really a "little" impact even when compared to 4,800 (mostly drug) crimes that would have been committed from 2012 to 2014 by the same 15,000 released persons. And I could respond by stressing that we need to look even more closely at what was done positive in terms of public safety by the 11,000 released people who were free from 2010 to 2012 and did not get picked up for a new crime. And back and forth we would go, in the weeds, though the story is basic and as I stated at the outset: assuming these folks are all sure to get out of prison at some point, if early releases actually keep recidivism stable or even reduce recidivism, we can reasonably say that early releases have little or no impact on public safety in the long run (while it does have a big economic impact).

Now, turning to your complaints about the US Sentencing Commission. I trust you recall that the USSC assailed mandatory minimums even more forcefully in a 1991 report than in its 2011 report. I trust you also know the USSC called for significant lowering of federal crack sentences in 1995 and 1997 and 2002, and then did on its own lower crack sentences in 2007. Is it your claim that USSC was a "wholly-owned subsidiary of the defense bar" and had "been taken over by the defense bar" starting in 1991 and running until today?

I sense that you think any time anyone does not fully agree with your own views on criminal procedure and sentencing, that entity has become a "wholly-owned subsidiary of the defense bar" and has "been taken over by the defense bar." It would be far more accurate to just say that the USSC --- and Heritage and ALEC --- is now filled with a bunch of folks who just do not agree with Bill Otis.

Posted by: Doug B. | Apr 6, 2014 10:04:41 PM

? --

"How would you lower the 30% recidivism rate?"

Beyond my power. I cannot change a person's conscience.

Posted by: Bill Otis | Apr 6, 2014 11:24:51 PM

Beneath much of this back and forth stands Bill's enduring (and today renewed) vows as a soldier in the war on crime. The problem with the war metaphor (a wretched, seemingly endless hangover from the Nixon/Reagan administrations) is that it has produced a system that regards citizens accused of crimes as enemy combatants.

The warrior perspective has gradually spilled over into local law enforcement with even small-town cops hankering for any opportunity to don their Darth Vader costumes, kick in doors, brandish weapons and shout obscenities at occupants (too often without first bothering to make sure they've deployed to the right address).

With his dismissal of the USSC, Bill is just doing what conservatives have been getting away with for decades: scorning moderates as liberals and actual liberals as commie devils. So it follows that they would view the USSC as a defense-bar tool precisely because it's becoming somewhat less reliable as a tool of the right wing.

I believe Bill is probably a good friend and dinner companion. But I also believe he's clueless about the effects the system has on the citizens it ensnares...the innocent...the wrongly accused and the guilty alike.

The system routinely impoverishes the accused, imprisons them too long, renders them all but unemployable, excludes them from government aid and then expresses astonishment/horror when they return to crime upon their release. The wonder to me is that recidivism rates aren't higher than they are.

Bill's apparent solution comports again with the war analogy: keep convicts in prison until they represent no threat whatsoever (i.e. for ever) or (as in war) until the war ends (i.e. never).

Posted by: John K | Apr 7, 2014 10:52:00 AM

John K --

"So it follows that they would view the USSC as a defense-bar tool..."

When the very astute Ms. Carmen Hernandez, past president of the NACDL, says that press releases by the chairman of the USSC should be incorporated in defendants' sentencing memos, who am I to disagree?

Posted by: Bill Otis | Apr 7, 2014 12:02:09 PM

Bill, when the very astute Mr. Eric Holder, current US Attorney General, says that the decision by the USSC to lower drug guidelines is such a good idea that he is instructing prosecutors to agree to such reductions right now, am I well positioned to say the USSC is a tool of federal prosecutors?

I note you have not responded to my data explanation, surely in part because it does not really serve your interest to dig deep into numbers to get a real understanding of what they say. Digging deep into crime reduction numbers, for example, reveals that the lead hypothesis is at least as compelling (if not a lot more compelling) than the mass incarceration hypothesis (especially since the lead hypothesis helps explain why James Q Wilson and others were so wrong about their super-predator claims: http://www.thedailybeast.com/articles/2012/03/06/james-q-wilson-greatest-strength-admitting-when-he-was-wrong.html.) And digging into the USSC recidivism numbers shows the USSC to be a bunch of moderates in its analysis, as John K. rightly notes.

Among the reasons I often spend a lot of time going back-and-forth with you, Bill, is because how you respond and when you get quiet helps me better see and understand what are sound claims, what is mere rhetoric, and what kinds of rhetorical moves as essential when sound claims fail. So, for example, you of late are saying/suggesting that the USSC is now a defense-bar too and that real conservatives do not back drug sentencing reform. Such rhetoric, in part because it is so demonstrably false, is helping me to see just how forceful/mainstream moderate claims for sentencing reform have become be and how suspect your retorts have become.

Posted by: Doug B. | Apr 7, 2014 12:38:26 PM

Doug --

"Bill, when the very astute Mr. Eric Holder, current US Attorney General, says that the decision by the USSC to lower drug guidelines is such a good idea that he is instructing prosecutors to agree to such reductions right now, am I well positioned to say the USSC is a tool of federal prosecutors?"

No. But you're well-positioned to say that it's a tool of the same liberal interests Holder represents.

Was that supposed to be hard?

"I note you have not responded to my data explanation, surely in part because it does not really serve your interest to dig deep into numbers to get a real understanding of what they say."

You do not say what serves my interest. You also do not put words in my mouth (by saying that I maintained that "all" federal judges are naïve or ideologically-driven), or saying, as you have before, that I maintained that political considerations "alone" could influence prosecutorial policy. I find your need to concoct positions for me to be pretty revealing.

Re: responding. I've noticed that you seldom respond to what I say on C&C -- far less often than I respond to you here. Shall I take that as a sign that you have no answer? That you agree with whatever today's post is?

I actually take it as a sign of the thoroughly unremarkable fact that both you and I comment on the Internet as we care to and have time to; and think it generally prudent to address people who are persuadable rather than spend a lot of time with those who aren't. Failing to respond to X is a concession of absolutely nothing. That applies me as well as to you. Pretending otherwise is nonsense.

"Among the reasons I often spend a lot of time going back-and-forth with you, Bill, is because how you respond and when you get quiet helps me better see and understand what are sound claims, what is mere rhetoric, and what kinds of rhetorical moves as essential when sound claims fail."

You are a participant in this debate, not its judge.

"So, for example, you of late are saying/suggesting that the USSC is now a defense-bar too and that real conservatives do not back drug sentencing reform."

It was former NACDL head Carmen Hernandez, not me, who said that the USSC's latest press release would make an outstanding addition to every drug defendant's sentencing memo. My sin, I guess, is in agreeing with her -- that and in citing several of your own prior entries in which you have enthusiastically (and understandably, given where you are on this) noted how the USSC is increasingly over on your side.

And yes, mainstream conservatives like Chuck Grassley and Jeff Sessions do not back the Heroin Dealers Bonanza Act -- ooops, make that, as you always say, "sentencing reform."

Oh, by the way, it is heroin dealers who are going to be the most direct and immediate beneficiaries of the SSA, right? Is your silence when I have made this point to you before your concession? Yes? No?

"Such rhetoric, in part because it is so demonstrably false..."

Good grief. I'm no more rhetorical than you (see, e.g., your present very aggressive comment). And I would appreciate it if you would refrain from calling me a liar, which is what you're doing in slightly more polite form.

You're starting to show the symptoms of the same disease afflicting some of your less appealing commenters, to wit, questioning the motives and honesty of your opponents.

I have come to expect that kind of thing from some of the low-lifes who visit here. I do not expect it from you.

Posted by: Bill Otis | Apr 7, 2014 1:49:18 PM

"says that press releases by the chairman of the USSC should be incorporated in defendants' sentencing memos, who am I to disagree?"

But the question Bill is whether you have traveled the world and the seven seas... Because it's only then that you get to cop that attitude.

Posted by: Daniel | Apr 7, 2014 2:42:06 PM

If one lives in Washington DC, no matter how conservative, the culture of rent seeking permeates one's views. The Heritage Foundation, as well as the Supreme Court, should move to the middle of the country to restore any credibility.

If one moves to Iran, within a short time one will acquire much of its culture and beliefs.

The benefit of mandatory guidelines, the reason they dropped crime 40%, was the removal of criminals from the streets, and the transfer of their criminality to inside of prisons. Each committed an average of dozens if not hundreds of crimes a year. The dealer, killed competitors. Their presence in the community took out $0% of real estate value, and the value of homes exploded in the 1990's.

So any policy that decreases incapacitation will raise crime rates, lower housing market growth rates. Prison costs are a tiny fraction of the devastating effect of these changes on the economy.

These pro-criminal advocates are of course not stupid, and know all of this. yet, they insists on their adventurism and unauthorized human experimentation, all to increase lawyer employment, and government make work jobs for their voters

Posted by: Supremacy Claus | Apr 7, 2014 2:53:26 PM

SC stated: "If one lives in Washington DC, no matter how conservative, the culture of rent seeking permeates one's views. The Heritage Foundation, as well as the Supreme Court, should move to the middle of the country to restore any credibility."

I would take it one step further. There is little that prevents Congress from spending 300 days per year in their home districts. Routine hearings, votes, debate could all be done by secured closed-circuit television and let them live with the people they represent. If they got to see their D-bag entitled representatives in action on the street, maybe we would not have 16 term congressmen.

It would also make lobby groups actually work instead of having fish in a barrel called K Street.

Posted by: TarlsQtr | Apr 7, 2014 3:18:16 PM

Hey Bill,

I agree that I am a partisan and rhetorical, but I do try to avoid labels like "liar" and I also dislike when I or others fall prey to turning attention away from ideas/issues/facts toward the motivations or affinities among those who articulate certain ideas/issues/facts. (Indeed, one reason I really like the blog fora and do not require anyone to say who they are in my version of this forum, is because it facilitates a focus on ideas/issues/facts, rather than the identity and goals of the presenter of ideas/issues/facts.)

I say all this, Bill, in order to (1) apologize for making any of my comments too "personal" and (2) acknowledge my deep concern if/when I have of late started to unfairly or excessive question "the motives and honesty" of those who disagree with me (especially you). One enduring difficulty, of course, is to fully understand how some ideas/issues/facts are presented without getting some sense of the motives of the presenter.

For example, I am continuing to try to better understand the basis for your assertion that the US Sentencing Commission "has become a wholly-owned subsidiary of the defense bar" and has "been taken over by the defense bar." Because your evidence for this seems only to be that the USSC favors reform of some drug sentences and mandatory minimums (which, of course, the USSC has called for in various ways for the last 20 years), I am inclined to think your motive is to prompt/raise new (and perhaps fair) questions about the data and proposals now coming from the USSC. But especially given that the USSC includes at least three Commissioners with strong GOP affiliations and history who would surely take exception to your characterization, I am unsure whether and how you have a basis for claiming that the USSC (and its data) once was trustworthy and/or moderate and/or sensible and/or balanced, but now "has become a wholly-owned subsidiary of the defense bar" and has "been taken over by the defense bar."

Those particulars aside, Bill, please do accept my apology if this discussion has led me astray in any important way. Thanks in advance for accepting my apologies and for staying so engaged and productively involved in these important public policy debates.

Posted by: Doug B, | Apr 7, 2014 5:26:36 PM

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