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July 4, 2008

Celebrating liberty in the country leading the world in incarceration rates

Writing over at the Huffington Post, J. Richard Cohen has this new commentary titled "Mass Incarceration of Children Must End."  Though focused on tough juve sentencing, the piece reminds everyone of this key datum as we celebrate liberty on today's holiday:

Our nation now spends $65 billion each year to incarcerate 2.3 million people — more than any other country.  This is not the inevitable result of cracking down on crime.  It's the result of a series of failed policies enacted over many years.

I could link to so many prior posts detailing the ironic reality that our nation's leaders speak grandly about liberty and freedom while doing little about our nation's dramatic willingness to deny liberty and freedom to so many of its own people.  Here are just a few post that cover the (still under-examined) modern American story of mass incarceration:

Happy holiday!

July 4, 2008 at 10:27 AM | Permalink


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"I could link to so many prior posts detailing the ironic reality that our nation's leaders speak grandly about liberty and freedom while doing little about our nation's dramatic willingness to deny liberty and freedom to so many of its own people."

By its enormous, unequaled and pivotal sacrifices to defeat Nazi and Communist tyranny, and by its singular generosity in re-building the world, this country has earned the right to speak "grandly" about liberty and freedom. There's nothing ironic about it, and no need to hang our heads or be lectured by those in other lands who are safe and free today because of what we sacrificed while they watched.

Do we have many thousands of thugs in jail? You bet. Better there than on the local street corner peddling meth.

Is that an oversimplification that leaves out a lot of important facts? Sure. But so is the slogan about "mass incarceration" of criminals we are told repeatedly, and falsely, haven't done anything wrong -- or anything at all.

I can tell you from many a year spent as an AUSA that it's actually HARD to get into federal prison. There were hundreds if not thousands of cases we never even got to in order to be able to concentrate such resources as we had on serious hoods, which is what we did.

It's really, really easy to stay out of jail: Get a normal job and take responsibility for your own life. There are commenters on this site who never like to hear that. But it's true. And the alternative to treating human beings as responsible actors is to treat them as not fully human -- and effectively entitled by circumstance to indulge themselves at other people's expense, certain in the knowledge that the burgeoning culture of excuse-making will protect them.

If you're among the very small minority who are unwilling to take responsibility for your own behavior, I can see why you'd want to wage a PR campaign about "mass incarceration." The people who commit crime and wind up in prison on account of it are understandably eager to find the locus of their troubles somewhere else -- like in the corrupt, brutish, racist, classist, capitalist, dada, dada, dada "system."

They'd have more success finding the locus in a different spot. Like the mirror.

Posted by: Bill Otis | Jul 4, 2008 11:49:48 AM

The $65 billion does not appear to include the cost of juvenile detention. The cost of juvenile detention is about $200 to $250 per day where adult incarceration costs average about $75 per day. My guess is the total cost is at least $70 billion.

Some of the juveniles are in detention because the judge has no viable alternative. Some are waiting to get into a treatment facility and others are in what amounts to protective custody. I visited a juvenile facility and talked to some of the residents. One was a girl who was there because her father had threatened to kill her and another was a homeless boy from a dysfunctional family. They should not be in detention unless they are out-of-control. Unfortunately with some parents it does not take much to be out-of-control.

About ten to twelve years ago we were short of juvenile detention beds and approximately doubled the number of beds statewide and they were instantly filled. An investigation into why that happened found that the new beds will filled with kids charged with misdemeanors where before the increase in beds the charges were all felonies. Another example of the overuse of incarceration.

One of the limiting factors is a shortage of correction officers. It is a dangerous job and not very many people are willing to do it and some of those that are willing are not qualified. If you put an unqualified person in a job like that they and others can be killed or injured (not to mention sexual or other types of misconduct). For the safety of all parties the prisoner/guard ratio has to be kept as small as possible and because of 24 x 7 operations prison staffs have to be large.

Posted by: John Neff | Jul 4, 2008 12:13:41 PM

Bill Otis wrote: "It's really, really easy to stay out of jail: Get a normal job and take responsibility for your own life."

So you're saying that, because blacks are incarcerated at disproportionately higher rates than whites, blacks are inherently less responsible than whites?

Bill Otis wrote: "But it's true."

Ah, so you are saying that.

Bill Otis wrote: "And the alternative to treating human beings as responsible actors is to treat them as not fully human -- and effectively entitled by circumstance to indulge themselves at other people's expense, certain in the knowledge that the burgeoning culture of excuse-making will protect them."

Really? That's the alternative? Because I could have sworn I had thought of many, many other alternatives. Guess you're not interested in them because it would require you not to put selfishness at the center of your universe and to take account of your fellow countryman's circumstances and well being. I don't find that to be a very patriotic attitude.

Posted by: DK | Jul 4, 2008 1:23:05 PM


You lied about my positions before and you're lying now.

You sling around these accusations of racism the same way most people brush their teeth: it's automatic. It's just what you do when you get up. The difference is that most people stop brushing after a couple of minutes, but you, like the Energizer bunny, keep going and going.

As I've said, you don't know me or speak for me. And you don't hold a candle to the many minorities I've worked with, including but hardly limited to my former colleagues in the US Attorney's Office, who would laugh out loud at your rantings.

Lastly, if I acted in a way you regarded as "patriotic," it'd be time for me to start to worry, big time.

Posted by: Bill Otis | Jul 4, 2008 3:56:26 PM

Of course many people who have violated the law are not prosecuted. In the last 40 years we have increased the per cent of business practices, associations, financial transactions, substances, and actions that are illegal and can be prosecuted if discovered.

As a law abiding citizen, I cross all my Ts and dot all my Is. I am careful and "measure out my life in coffee spoons". All the same, I'm sure I could be investigated and perhaps prosecuted for something unknown to me - someone I hired, something I purchased, forms I neglected etc.

Those who investigate and prosecute are only doing their job. Their jobs depend on the laws. They have many tools at their disposal that they did not have in the past. This includes an expanded acceptance of entrapment (crimes initiated by law enforcement) and the use of paid informants. They may be compensated with money or with favorable plea agreements.

Prosecution and Punishment have become more accepted in our culture and we must accept that this is what we asked the government to do.

If we are to have the consent of the governed, this will reverse and the process is painful. I believe there are signs that this change is coming and it will continue. Of course it will be policy change and legislative change - judicial change cannot constitutionally do it.

Murderers, rapists, robbers, embezzlers, muggers, and cheats will not be included nor should they.

Posted by: beth curtis | Jul 4, 2008 4:26:55 PM

Mr. Otis, Rest assured that I act in a very patriotic way. People that disagree with me are unpatriotic. It is patriotic to agree with me. That is what it means to be an American.

I don’t wear a flag pin anymore. I wore a flag pin after 9/11, when I suffered more less than you. After a month I stopped wearing it, because I used it up.

Posted by: S.cotus | Jul 4, 2008 4:52:09 PM


The post to which I think you're responding was addressed to a different commenter; I have no reason to doubt your patriotism; I don't wear a flag pin myself because patriotism lies in one's acts not his wardrobe; and I wish you a happy Independence Day.

Posted by: Bill Otis | Jul 4, 2008 5:25:18 PM


I have no tolerance for racism. You are free to clarify what you mean at any time. You assert it is easy to stay out of jail and that all it requires is responsibility. I am asking you why it is so much harder for black people to act responsibly than white people. If you don't like the question, reconsider your allegations.

Posted by: DK | Jul 4, 2008 5:32:20 PM

Bill, your strong advocacy in your first comment is inconsistent with your vocal support for the commutation of Scooter Libby's federal prison sentence. Against this backdrop, let me ask a few questions based on your assertions in your first comment:

Did you think it was HARD for Libby to get into federal prison?

Do you consider Libby among those unwilling to take responsibility for their own behavior?

Don't you think your successful advocacy on behalf of Libby contributes to a culture in which everyone attributes "the locus of their troubles somewhere else"?

In short, your anti-prison advocacy on behalf of the type of criminal you like (Libby) highlights the hypocrisy of your bold pro-prison advocacy against those you do not like (so-called "thugs"). Your hyocrisy is nothing new from those work advocate in this arena, but that makes it no less disappointing.

Posted by: Doug B. | Jul 4, 2008 6:56:48 PM


It's not a one way street. "You want answers from me, you answer the questions previously asked of you."

That is word-for-word what I said in my post of July 3, 2008 3:34:36 PM. But you just ignore it. Your response is to make more accusations and demand more answers, hoping to walk far enough away from your previous lies about my positions that they'll be lost in the mist.

Nice try. No dice.

I will say this about your autopilot accusation of racism, however. I have told you where I worked -- the US Attorney's Office for the Eastern District of Virginia. I have told you that my numerous African American colleagues there would laugh out loud at your accusations against me. I have told you where and how to find my cases, of which there are more than 100. At least one of them dealt with accusations that my Office had engaged in a racially selective prosecution. The name of that case is United States v. Olvis, 97 F.3d 739 (4th Cir. 1996). Read it and see what the unanimous court had to say.

Because unlike you I do not hide behind a cloak of anonymity, you have all the resources you need to ascertain whether your accusations are true. So instead of fulminating, go do your homework.

But you won't, because you don't care if they're true -- or, far more likely, because you already know they're not.

Posted by: Bill Otis | Jul 4, 2008 6:58:59 PM


"Bill, your strong advocacy in your first comment is inconsistent with your vocal support for the commutation of Scooter Libby's federal prison sentence."

No, they're consistent. An atypical case justifies an atypical result. Libby's case was atypical for a number of reasons you and I have discussed numerous times, on this blog and elsewhere.

"Did you think it was HARD for Libby to get into federal prison?"

Since in fact he didn't get into federal prison, that's a tricky question. I would say as a general matter that a person who lies to a federal grand jury in a high profile investigation undertaken by a Special Prosecutor has far more than your normal chance of getting into prison, sure. This does not change the fact that for the average person it is indeed hard to get sent to federal prison.

"Do you consider Libby among those unwilling to take responsibility for their own behavior?"

In significant measure, yes. This is why I argued against a pardon and in favor of leaving the quarter million dollar fine in place.

"Don't you think your successful advocacy on behalf of Libby contributes to a culture in which everyone attributes 'the locus of their troubles somewhere else"?

First, I have to enter a disclaimer on the "successful advocacy" part. "Advocacy" is a term of art in our profession. I never talked to the White House or the Justice Department about this and never sought to, and they didn't talk to me and didn't seek to. I wrote the op-ed as a private citizen only to express my opinion. I don't know Libby and have never met him, and I didn't and don't know his lawyers or anyone else connected to the case. So this was not a case of "advocacy" in the sense that lawyers normally understand that term.

I guess I should be flattered that the White House acted in the way the op-ed suggested, but I had no idea whether they would. I don't even know if anyone in White House Counsel's Office reads the Post (although I'd be surprised if they don't).

To answer your question directly: No, I don't think my op-ed contributed to a culture where people blame their difficulties on someone else.

First, I never based my argument on Libby's not being responsible for his own woes. I based it on what I believe (but evidently you do not believe) are unusual circumstances APART FROM Libby's culpability, which I did not gainsay then or now.

Second, "culture," as we are using that word, is the general body of beliefs about responsibility and punishment. No one case is likely to have any but a de minimus effect on that. And the effect will be even less than de minimus (if that makes any sense) when the case is unusual. Libby was a 56 year-old first offender convicted of a non-violent and non-drug related offense. He had more letters of community support than I had ever seen in almost two decades as an AUSA. He worked in government jobs for government pay even though he could have made a fortune in private practice. He was not remotely dangerous in the sense in which that word in ordinarily understood.

There was almost nothing about him that was typical, at least in my experience. So I did not and do not regard my op-ed as antagonistic to GENERAL, which is to say cultural, notions of responsibility. Nor for that matter do I regard getting stuck with a $250,000 fine as escaping responsibility. A fine like that is, as you probably know, very heavy. The run-of-the-mill defendant even in a violent crime case doesn't get a fine of anything like that magnitude.

"[Y]our anti-prison advocacy on behalf of the type of criminal you like (Libby)..."

I don't "like" ANY type of criminal, qua criminal. As to Libby, since I never met him, I couldn't tell you whether I would like him. And I don't generally (actually I don't ever) recommend that a person I like be socked with a $250,000 fine and lose his livelihood.

"...highlights the hypocrisy of your bold pro-prison advocacy against those you do not like (so-called 'thugs')."

Contrary to what I see here day after day from some of our commenters, there are in fact thugs, and I'm pretty sure you know this. The pretense that the prisons are filled with Mr. Nicey is baloney, and I'm pretty sure you know that too.

I did my job at the United States Attorney's Office, and I'm proud to have been there. I did not seek prison sentences for people who got convicted because I either liked or disliked them. I did it as a result of evaluating each case on its individual merit and looking up the applicable law.

This was also true when I supported downward departures, something that was a standard part of my career but which you omit to mention. I did not make these motions because of sentiment. I did so because I thought it was a just outcome under prevailing law. And although I have no way of proving it, I strongly suspect that I supported more SUCCESSFUL downward departure motions than all the defense attorneys on this blog combined.

Does that too make me a "hypocrite?" Does it mean that with each motion, I was "contribut[ing] to a culture in which everyone attributes 'the locus of their troubles'" to someone else?

I don't think so. I think it's no more or less than the action of a lawyer who thought that a below-guidelines sentence was warranted in a specific case for reasons particular to that case. It was in exactly the same kind of thinking that led me to my stance on Libby.

I understand that reasonble minds differ on this. But the differences do not render them any less reasonable.

Posted by: Bill Otis | Jul 4, 2008 8:35:45 PM

Of course reasonable minds differ. Times are changing and there will be a new paradigm. History will judge the effectiveness, rationality, and even morality of our current policies. I for one am looking forward to a new dialog. Rethinking our criminal justice system and redefining what behavior and life styles we want it to control will be a start. This is important for freedom.

Posted by: beth curtis | Jul 4, 2008 11:16:37 PM

The rather complex criminal justice process starts with the report of a crime and one of the possible outcomes is incarceration. It is plausible that various stages in the process could be influenced by racial bias and some of the more obvious stages are arrest, sentencing or revocation of parole/probation and the determination of eligibility for parole.

The term "mass incarceration" for the most part is associated with claims that the CJS is racially biased and as a consequence about 20% to 30% of those in prison have been unjustly incarcerated. The problems with such claims is that are unsupported by convincing evidence that the CJS malfunction rate is that high and it is difficult to reconcile such high malfunction rates with the facts that over half of the prison admissions are parole/probation revocations and about 80% of all new court commitments are the result of a guilty plea.

FWIW I think the malfunction rate is most likely to be in the 1% to 5% range and Grits has recently estimated that the rate for the Texas CJS is about 3%. A 1% rate would mean that about 22,000 prison and jail inmates that could have been wrongly incarcerated. The corresponding annual malfunction rate would be about 0.25%.

Posted by: John Neff | Jul 4, 2008 11:56:56 PM

Bill Otis wrote: "At least one of them dealt with accusations that my Office had engaged in a racially selective prosecution. The name of that case is United States v. Olvis, 97 F.3d 739 (4th Cir. 1996). Read it and see what the unanimous court had to say."

The opinion states: "The court noted that the defendants' informal study, if left unexplained, demonstrated discriminatory intent. By creating a presumption that unexplained statistical evidence of racial disparity proves racial animus, the court imposed on the government the burden of disproving such animus. As already noted, however, the defendants bear the burden of establishing all elements of their selective-prosecution claim and, to obtain discovery on such a claim, the burden of making a credible showing of 'some evidence' on each element. By ruling that defendants can meet these demanding burdens by presenting a study of the type they presented in this case and thereby shifting to the government the onus of dispelling a presumption of discrimination would open virtually every prosecution to a claim for selective prosecution."

Sounds like you got bailed out to me. A court found that a statistical analysis showed your office intentionally discriminated, and the appellate court reversed on technical grounds. I like this part best: "In considering the defendants' informal study, the district court also erred in apparently imposing a duty on the government to 'explain [the] evidence of statistical [racial] disparity' that Olvis and Palmer had presented."

Heaven forbid you have a duty to explain racial disparities in your prosecutions! Luckily, this isn't a court of law, which have a bad habit of protecting the government from serious scrutiny. Here, you get to explain yourself. Turning to that, your assertions contain unquestionably racist assumptions. You can retract them or you can defend them. It's entirely up to you.

Posted by: DK | Jul 5, 2008 5:10:10 AM


So it's up to me to "explain myself"??!!

Ha! This from the guy who breezily lied about positions I allegedly took, and when confronted with his own words to prove his deceit, wouldn't either own up to it or retract it -- and instead tried to change the subject (something you're still doing).

Wanna let us know how a person with a record like that gets to be in a position to tell others they should "explain themselves?"

You really are a piece of work. Let's take a little stroll down memory lane to review your latest accusation of racism.

You got the ball rolling by pointing the accusing finger of racism at this statement of mine: "It's really, really easy to stay out of jail: Get a normal job and take responsibility for your own life."

It takes more than a little creativity to discern animus toward blacks in that statement. Indeed, what it takes is delusional thinking.

But I have to give you credit. This time, you ACTUALLY DID READ A CASE. Congratulations! Now was that so hard?

Of course your treatment of the case is, as anyone could have guessed it would be, thoroughly dishonest.

You quote one paragraph out of eight pages, and manage to slink past the key language even in that wonderfully selective single paragraph. So let me reiterate the one sentence in that paragraph that you highlighted: "The [district] court noted that the defendants' informal study, if left unexplained, demonstrated discriminatory intent."

Hey DK, did you happen to notice the words "if left unexplained" in that sentence?

Not too surprisingly -- indeed not at all surprisingly given your record of deceit here -- you omit the much longer part of the Fourth Circuit's opinion WHERE THE EXPLANATION IS SET FORTH AT LENGTH. Here it is:

"The government presented testimony from Kevin Comstock, an Assistant United States Attorney, and Lieutenant Delmas Linhart, an officer in the James City County Police Department and special deputy with the FBI.

"In his testimony Comstock indicated that the percentage of blacks indicted for crack cocaine offenses was high because blacks primarily were involved in the distribution of crack cocaine in the Norfolk-Newport News area. He explained,

'I don't choose individuals to violate the law. They choose to violate the law themselves. And when they violate the law, if we can prove it, we prosecute[ ] them, regardless of their race, regardless of their sex, regardless of where they were born, or in what family they were raised in.'

"Lt. Linhart testified similarly that race played no part in the government's selection of whom to prosecute. He noted that the Colonial Narcotics Enforcement Task Force, of which he was a member, pursued the Olvis organization because Olvis had managed to insulate himself from the police and his organization was becoming increasingly violent. And Lt. Linhart added that Angela Palmer had been offered the opportunity to become a cooperating witness, but that, in the investigators' judgment, she had lied before the grand jury and had otherwise failed to cooperate.

"Lt. Linhart also explained why each white conspirator cited in the defendants' motion had not been indicted. Mary Deroja, who was romantically involved with an alleged gang member and drove his car for him, had approached the authorities and agreed to assist in their investigation by working undercover. Denny Petrie had not yet been prosecuted because the government, after executing a search warrant on his home, still lacked sufficient evidence to indict him. Lonnie Beverly and his black partner, Eddie Phillips, had been approached about becoming witnesses at a time when the authorities knew little about them; only subsequently did enforcement officers learn that Beverly was the driver and Phillips the gunman in a drive-by shooting of an unoccupied car, information that might have disqualified them from receiving immunity. Lt. Linhart testified, moreover, that Beverly has since proven truthful and cooperative. As for the remaining two unindicted white persons, Linhart testified that the government had never heard of "Floyd," a white male referred to once in an ambiguous manner by a witness before the grand jury, nor did it have any evidence that Jeffrey Branscome was a seller, rather than merely a user, of drugs." ###

In other words, you demand an "explanation" from me of my supposed racism in general, and in this case you post about in particular, knowing that the explanation has already been set forth by the Court but slyly choosing to leave it on the editing room floor.

This is just a classic of the way you operate. It's not just that your substantive views are Marxism on steroids and your race-baiting is so florid it would make Jeremiah Wright blush. It's that apart from your substantive views, which are other-worldly enough, your way of presenting your "case" is so utterly deceitful as to be astounding.

Here are a few other things you kinda "forgot" to include in your recounting of the Olvis case.

First, the actual holding of the case is that the black defendants' allegation of racism was so lame that IT DIDN'T EVEN WARRANT DISCOVERY.

Second, while we indicted 25 blacks, we decided NOT TO INDICT TWICE THAT NUMBER of blacks (along with five whites). Wouldn't you think that an Office out to get blacks would round 'em all up?

Third, wanna take a guess as to what race the government's lawyer in the district court was? Oooooooooooops!!!

Fourth, when I took the case to appeal it, I of course read the record. After doing so, and seeing that defense counsel had relied only on their own "informal statistical evidence," I wrote to them asking them to give me the name of anyone who had worked on this case for the government who actually harbored ill-will against blacks. I said that if they could give me ANY EVIDENCE AT ALL that such a named person acted out of racial bias, I would begin that day the process needed to get him fired.

This was in 1996. Wanna take a guess as to when they replied to me stating who it was, specifically, that discriminated against their clients?

RIGHTO!!! I'm still waiting!

Ya see, DK, the problem was that I knew the prosecutors doing the case in the district court, knew full well they weren't racists, and knew that defense counsel knew it too. The whole thing was a sham engineered so that the gang leader, Tony Olvis, could have more time to intimidate witnesses.

Oh, and one more thing I should mention in connection with your claim of racism. Here's another paragraph from the Fourth Circuit's opinion that you "forgot" to include:

"The government moved for reconsideration of the district court's order, submitting an additional affidavit from Lt. Linhart which detailed the shootings and murders associated with the 'largest drug ring in Hampton Roads' history.' Lt. Linhart's affidavit pointed out that all but one of the shootings' victims were black and that there were more than ten unindicted black conspirators for every unindicted white conspirator. The affidavit added that after the indictments had been publicly announced, Lt. Linhart received several phone calls from black citizens in the predominantly black neighborhoods in which the gangs operated, expressing their appreciation for the arrests."

Now DK, since you're our official "Blog Scold on Racism among Fellow Commenters", why don't you phone those black citizens and tell them they got it all wrong, and that my colleagues and I were really involved in a racist plot to get them? C'mon, DK, I'll even send you a quarter so you can make the call. They were only being naive in thinking that the people in the US Attorney's Office were the good guys.

I mean, you know better because YOU WERE THERE.

I mean, you WERE there, weren't you?

Keep talkin', DK. From my perspective, you're the most useful man on this board.

Posted by: Bill Otis | Jul 5, 2008 9:07:24 AM

Because I am a great Patriot (and white) I celebrated the Fourth of July by enjoying fireworks on the lawn in a large public park. Drinks were provided. In fact, my friends and I bought several bottles of wine. We also bought cheese and bread. Many cops saw us. Lots of people had similar setups. We had some major drama when I couldn’t find a bottle opener. Luckily, a good chap from the local prosecutor’s office loaned me his bottle opener, and a major crisis was averted. I have now changed my opinion of prosecutors.

Alas, on the way home, I got to watch the poor black people get citations (or sometimes arrested) for having open containers of booze, because they drink the wrong kind of booze at the wrong time.

Posted by: Scotus | Jul 5, 2008 10:11:20 AM


Yup, there is indeed a difference between drinking while sitting in the park and drinking while driving.

You say that the cops arrested poor black people.

How do you know they were poor? Were they handing out copies of their tax returns? Were they driving an old car? So do I. Were they dressed in just shorts and a t-shirt? So was I at last night's local fireworks show. So how do you know they were poor?

Also, are you sure that whites who were similarly opening up a little booze in their cars did NOT get ticketed or arrested? How would you know that? Could you see everyone leaving the area?

So it's possible, isn't it, that an equal or greater number of whites had trouble with the cops for the same thing?

Glad you got the bottle opener. If you get buzzed enough, though, you can try to use your teeth, although I'm not recommending it.

Posted by: Bill Otis | Jul 5, 2008 11:14:59 AM

Mr. Otis, I was not talking about drinking and driving. I was talking about possessing open containers of alcohol. (In fairness, I will admit that DUI and DWI laws, in my experience, are enforced equally.) However, people of my class simply will not be cited for drinking in public provided we know where to do it.

I know they were poor because of their manner of speaking and dress. People our our class don’t talk speak like poor people do.

Posted by: S.cotus | Jul 5, 2008 11:50:37 AM

Bill Otis:

"Libby was a 56 year-old first offender convicted of a non-violent and non-drug related offense."

So was Wilbert Lawrence. I agree that Libby should not serve prison time. But there are half a million people behind him who also should have their sentences commuted.

Lawrence was 52 years old, had no criminal record, a superb reputation in the community, and had risen from humble beginnings. Yet YOU, Bill Otis, appealed the man's non-guideline sentence of 6 months' home confinement and probation; the guidelines called for a sentence of 10-16 months' imprisonment. Even if the district court took into account a factor that under the mandatory guidelines scheme at the time it should not have, your office could have let it go in the interest of justice. Some AUSAs do this with the right cases and with approval from supervisors all the time. But YOU and your colleagues wanted the man to serve prison time. THAT is the behavior of a "thug."

Your hypocrisy is stunning. Your failure to appreciate the effects of the policies you support on the poor and un-connected population in this country is stunning. Your ability to rationalize your behavior is typical.

Your years as an AUSA removed you from reality. Being a career AUSA is the worst kind of experience for understanding the criminal justice system. Just talk to any former AUSA who then became a criminal defense lawyer.

Posted by: John | Jul 5, 2008 11:59:15 AM

Mr. Otis implies there is nothing to debate.

California's aging inmate population at a glance

Aging inmates add to prison strain in Calif.

Posted by: George | Jul 5, 2008 2:21:54 PM

The police have full discretion over nuisance ordinances such as open container and they can be very
selective about who is cited and under what circumstances. One of our officers cited the mayor at a ribbon cutting ceremony just to make it clear how unfair the realities of law enforcement were. Unfortunately I don't most folks got his point.

Posted by: John Neff | Jul 5, 2008 5:06:48 PM

“Being a career AUSA is the worst kind of experience for understanding the criminal justice system.”

I think this requires some clarification. I think being a “career AUSA” (as opposed to one of those AUSAs that seem like political appointees) is good experience, provided you don’t do it for too long. As one ex-AUSA has said, “Some people just get to love the small of handcuffs.”

Posted by: S.cotus | Jul 5, 2008 5:18:49 PM


"I agree that Libby should not serve prison time."

Then my job is done. The op-ed wasn't about me.

"But there are half a million people behind him who also should have their sentences commuted."

If executive clemency were used in such a sweeping way, it would effectively displace Congress and the courts as the principal arbiters of sentencing. That would not be unconstitutional -- the executive's commutation power being plenary -- but it would be a gross expansion of executive power as previously understood and practiced. At no time has the president, any president, issued clemency on such a scale. If George Bush were to do it, it would make the complaining about his issuing signing statements pale by comparison.

The only democratically legitimate way to work a wholesale revision of drug laws is to convince Congress to do it. Executive clemency was designed for use in exceptional individual cases, not as a means for the president to effectively nullify a whole category of law. Do you not know this?

"[Y]our office could have let it [the Wilbert Lawerence case] go in the interest of justice."

AUSA's who "let a case go" because of their personal opinions are not acting "in the interest of justice." They are acting in the interest of their own over-sized ego. When I took my oath of office, I didn't swear to turn my back on applicable law; I swore the opposite.

If an AUSA piled on "creative" counts in an indictment because he viewed that as being "in the interest of justice" to deal with a defendant he thought was a really bad actor, would you be happy about that?

"Some AUSAs do this [take a pass on an appeal] with the right cases and with approval from supervisors all the time. But YOU and your colleagues wanted the man to serve prison time."

The request to appeal Lawerence's below-guidelines sentence (at the time the guidelines were binding, which was not the case with Libby) originated with my colleague who handled the trial. I approved it, as did the Clinton-appointed United States Attorney. We sent it over to Main Justice, where it was approved by the Criminal Division, an Assistant to the Solicitor General, the Deputy Solicitor General, and the SG himself (who if I recall correctly was Walter Dellinger, also a Clinton appointee).

I didn't exactly freelance it.

Why do you think it's laudable for a defense lawyer to pursue the full legal interests of his client, but unforgivable for a prosecutor to do the same?

Incidentally, the Court agreed with my assessment and that of the SG, and unanimously found for the government. It did so without suggesting in any way whatever that we had overcooked the case.

"THAT is the behavior of a 'thug.'"

If you want to see a real thug, visit a prison.

"Your hypocrisy is stunning."

I answered that in a long prior post, whose analysis you do not even attempt to rebut.

"Your failure to appreciate the effects of the policies you support on the poor and un-connected population in this country is stunning."

Wake up. The effects of what I was doing as an AUSA benefited principally the poor and "unconnected" (whatever you mean by that). I don't need law enforcement to keep drug pushers and strongarms out of my neighborhood -- they're not here to begin with. It's the poor more than most others who need law enforcement in order to give them a chance to live in peace and safety.

Even if it were otherwise, however, it would make no difference. Poverty is neither a badge of entitlement nor a get-out-of-jail-free card. Indeed it has no relevance, and neither does wealth (unless of course you're Marc Rich and can afford to buy a pardon. Where's your criticism of THAT?).

"Your ability to rationalize your behavior is typical."

I don't need to "rationalize" my behavior. Is anyone on this blog my boss? Are you? I must have missed that. It's closer to the truth to say that your ability to make assertions without analysis is depressing.

"Being a career AUSA is the worst kind of experience for understanding the criminal justice system."


"Just talk to any former AUSA who then became a criminal defense lawyer."

I talk to them all the time. Does it ever occur to you to ask questions before assuming things about people you don't know?

Posted by: Bill Otis | Jul 5, 2008 8:46:42 PM

John Neff:

I have my hands full responding to various other commenters, but I just wanted to say that I read all your posts and find them balanced and informative.

Posted by: Bill Otis | Jul 5, 2008 9:10:47 PM







The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom.

I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation: With 5% of the world's population, our country now houses 25% of the world's reported prisoners. Incarcerated drug offenders have soared 1200% since 1980. Four times as many mentally ill people are in prisons than in mental health hospitals. Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.

Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society. America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.

We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration. MATERIALS & RESOURCES Read the legislation, S. 714 Fact sheet on the legislation Senator Webb's floor speech introducing the legislation PARADE Magazine cover story, "What's Wrong with our Prisons?" Senator Jim Webb,

Sunday March 29, 2009 The scope of the problem: relevant charts and graphs List of Support for the National Criminal Justice Commission Act Of 2009 Opening Statement of Sen. Webb at Judiciary Subcommittee Hearing on National Criminal Justice Commission Act, June 11, 2009 Watch Senator Webb's Floor Speech Introducing the Legislation, March 26, 2009 Senator Webb's article on the Huffington Post, "Why We Must Reform Our Criminal Justice System" MATERIALS FROM PAST HEARINGS, SYMPOSIUMS Joint Economic Committee Hearing, conducted by Senator Webb, "Mass Incarceration in the United States: At What Cost?" October 2007 Joint Economic Committee Hearing, conducted by Senator Webb, "Illegal Drugs: Economic Impact, Societal Costs, and Policy Responses,"

June 2008 George Mason University Symposium, hosted by Senator Webb and the GMU Administration of Justice Department, "Drugs in America: Trafficking, Policy and Sentencing," October 2008 Senator Webb's Keynote Address to the Brookings Institution's Policy Roundtable on the Challenges to Prisoner Re-entry, December 2008 NEWS ARTICLES & COMMENTARY Virginian Pilot editorial: "Time to reconsider U.S. justice system," April 6, 2009 Fredericksburg Free-Lance Star: "Behind-bars review," April 5, 2009 The Washington Post Writers Group: "Webb Leads the Charge for Much-Needed Drug, Prison Reform," April 5, 2009 Economist: "A Nation of Jailbirds," April 2, 2009 Daily Press: "Go After the Real Problem," March 31, 2009 New York Times: "Reviewing Criminal Justice," March 30, 2009 Lynchburg News & Advance: "Webb Takes on Politics' Third Rail: Prison Reform," March 29, 2009 Salon.com: "Jim Webb's courage v. the "pragmatism" excuse for politicians," March 28, 2009 The Virginian Pilot Editorial:

"Time to Rethink Goals of Prison," January 5, 2009 Roanoke Times Editorial: "The Criminal Justice System Needs Help," January 5, 2009 Las Vegas Sun Editorial: "Voice for Broken Prisons," January 3, 2009 U.S. News & World Report: "James Webb Shows Leadership Regarding Prison Reform," January 2, 2009 New York Times Editorial: "Sen. Webb's Call for Prison Reform," January 1, 2009 Washington Post: "Webb Sets His Sights On Prison Reform," December 29, 2008 Daily Press:

"Alternative to Jail for Addicts Gains New Supporter," December 28, 2008 The Virginian Pilot: "Senator Elevates Debate on Failed Drug, Prison Policies," October 18, 2008 The Roanoke Times Editorial: "A Sensible Call for Sentencing Reform," October 13, 2008 Washington Post Op-Ed: "Two Separate Societies: One in Prison, One Not," April 15, 2008



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Posted by: LAWYERS FOR POOR AMERICANS | Feb 24, 2010 6:10:46 PM

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