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September 2, 2014

"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

September 2, 2014 at 08:38 PM | Permalink


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Crime rates shot up in the 1970's and 1980's, thanks to the criminal coddling lawyers in the legislature and on the bench.

The anger of the public was seething. The very smart lawyer saved their profession from the wrath of the public that knew whom to blame. In a brilliant tactic they devised the mandatory guidelines.

A brief history.


It rewrote the US Criminal Code.

Sentences got longer, in support of the aim of incapacitation, the sole mature aim of the criminal law. One outcome supporting this view? A 40% drop in crime rate across all types. Another, a momentum of dropping crime rates persisting even after the guidelines became discretionary. How? By reducing the fecundity of the criminal behind bars, so we are experiencing a bonus, an unintended benefit.

The above article should be avoided unless it acknowledges these effects.

One expected consequence, a booming economy in the 1990's. On unexpected consequence, lawyer unemployment. So led by Scalia, the lawyer attacked.

Posted by: Supremacy Claus | Sep 2, 2014 10:31:29 PM

All Jews should take great offense at the disrespectful use of the word Holocaust. Only victims of other genocidal exterminations may apply the word, such as Cambodians, Tutsis. The use by the cry baby lawyer, really bemoaning lawyer unemployment is highly offensive.

It is also inaccurate. If we had a small holocaust going, it was the murder rate of young black males. Dropping it 40% attenuated this horrible statistic. Over 25,000 young black males owe their lives to these guidelines. Made discretionary, the slaughter has restarted in many cities, such as Chicago, Philadelphia, Detroit.

Posted by: Supremacy Claus | Sep 2, 2014 10:37:36 PM

I am writing a letter to the Dean of the law school, demanding a retraction of the title from the publication. If they ignore it or reject it, I am going to other groups.

Posted by: Supremacy Claus | Sep 2, 2014 11:26:05 PM

Wow. That title is over the top. And, it is disrespectful to all of those INNOCENT people who were victimized during the Holocaust. It is unfortunate that a sitting federal judge would allow himself to be associated with a title like that. It is doubly unfortunate that a law school would publish something with that title.

Posted by: Anon | Sep 3, 2014 8:43:33 AM

Let's see, the genocidal execution of 11 million human beings whose only crime was being Jewish, Gypsy, disabled, gay or another "undesireable" equates to punishment for criminals who have been presumptively provided due process before being incarcerated? That title choice is absolutely abhorrent and the authors and DePaul University should be ashamed of themselves.

Posted by: Guest | Sep 3, 2014 9:22:36 AM

I hope and trust the content of this important article isn't lost by sentiments like the foregoing myopic demands for literal parity. Such sentiments themselves belittle the trauma these policies wreak on a generation of young men of color. And I write this as a Gay Jewish man whose family tree was itself threatened by the Haulocaust. The title FITS in a Country whose history manifests an unbroken evolution of "laws" to unceasingly decimate people of color (and which encompass the entire family structure -- not merely those members incarcerated) up through and including the present day. The title FITS.

Posted by: DCH | Sep 3, 2014 12:16:00 PM

Read the introduction section of the paper. The authors realize the term "holocaust" is provocative. They effectively explain their rationale for using the term and how they intend it to be understood in the context of mass incarceration.

Posted by: GAT | Sep 3, 2014 3:46:54 PM

This is a fantastic article. The long sentences for drug crimes are absurd and serve no purpose at all. Only a fool would think that a 10-year sentence punishes someone more than a 5-year sentence would, or that a 5-year sentence will punish him more than a 2-year sentence. The vast majority of the inmates in federal prison weren’t drug lords or gangbangers, they were sharp guys who got into the only business that was available to them. The government would accomplish more if it could step back from its fetish for locking people up and provide alternatives and job training. Spending almost $30,000 a year just to warehouse a non-violent inmate makes no sense. Prison camp was the most fun I had since college. I got in the best shape of my life, read books that I’d always wanted to read but never had the time, learned yoga, deepened my relationship with my spouse, and I’m sure that I added several years onto my life. The only people who are “punished” by incarceration are the families of the inmates. In addition to requiring judges to make visits to federal prisons, I believe that they should address the families at sentencing instead of the convict; “Your father or grandfather or husband, etc., has been convicted of a crime, and I’m going to punish you for that crime by sending him away for a long time, and leaving you to struggle to make ends meet while he doesn’t have a care in the world…” Maybe the sentences would be more reasonable under those circumstances. The time served for any crime should be the means of achieving an end, and not an end in and of itself.

Posted by: Barry | Sep 3, 2014 4:45:52 PM

Barry: Try to encroach on the territory of one of these non-violent dealers. See what happens. You have no idea how many people they killed so they could make their lousy few $hundred a day. One such person was chased into the lobby of the building where I grew up. He was begging for his life. They blasted away fearlessly in front of the neighbors. Why so fearlessly, why so mercilessly? Filthy lawyer traitors like the lawyer filth that wrote the article were protecting them in the 1980's. I would like to see direct action groups of families of crime victims hunt these down, and apply the lash, then tie them to a tree outside the court so all coming to work, protecting the criminal, could see their fate. To deter.

Posted by: Supremacy Claus | Sep 3, 2014 11:50:52 PM

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