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June 15, 2012

"Sensible Sentences for Nonviolent Offenders"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

The enormous strain prison costs put on state budgets has led some conservatives and liberals to do something sensible together.  Democrats and Republicans in several states are pushing to reform criminal justice policies based on strong evidence that imprisoning nonviolent offenders for ever longer terms adds huge costs with little benefit to public safety.

Texas closed a prison last year, for the first time in its history, after reducing its prison population by steering nonviolent drug offenders to treatment and adopting other policies. South Carolina and Mississippi eased eligibility standards for parole.  South Carolina, Alabama, Arkansas and other states have raised the dollar amount that triggers felony property crimes....

Offenders released in 2009 from state prisons served, on average, almost three years behind bars, nine months longer than those released in 1990.  A new study by the Pew Center on the States reports that additional time in prison costs states more than $10 billion. More than half the extra cost was for nonviolent offenders.

The study also found that earlier release for nonviolent offenders would not have jeopardized public safety based on an analysis of arrest and incarceration data from Florida, Maryland and Michigan.  Risk could be further reduced with better prerelease planning and strong community supervision.  After decades of lengthening sentences, state leaders are realizing that it is possible to cut sentences and prison spending without harming the public.

June 15, 2012 at 11:08 AM | Permalink


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The post immediately before this one is proof enough that absence of violence in no way equals absence of harm, and that sufficient harm can warrant a long prison sentence indeed.

Unless one holds the view that Messrs. Stanford, Madoff, et al. earned no jail time whatever. Any takers?

P.S. You gotta love how the NYT very, very quietly equates "non-violent" with "non-harmful."

Posted by: Bill Otis | Jun 15, 2012 2:50:54 PM

Doug, thanks again for the reference to the Times article. I will put it with my collection of exhibits illustrating Justice Kennedy's interjurisdictional comparison step for as applied Eighth Amendment challenges. Just yesterday, I presented the articles you have previously posted to a judge in Asheville, during a hearing on whether a sentence of thirteen years without parole was grossly disproportionate to the offense of possession of one half of a gram of cocaine.

Bill Otis, a couple weeks ago, you expressed some doubt about whether judges would respond to my Eighth amendment challenges. I've already had three cases in which sentences have been vacated on cruel and unusual punishment grounds for possession of small amounts of cocaine. More generally, I would say that judges are responding to enactment of the Justice Reinvestment Act by taking some of the control over sentences by prosecutors back, by doing such things as consolidating sentences, finding mitigating factors, etc. Just last Tuesday, a judge said that "a class C sentence under the habitual felon act is a big lick for commission of a class H felony." My favorite comment is by a judge who said, "It is inconceivable to me that the legislature intended me to impose a class C sentence for possessing one tenth of a gram of cocaine." Prosecutors have gone wild in coercing pleas through the hammer of the structured sentencing law and I think judges are starting to push back.


Posted by: bruce cunningham | Jun 15, 2012 3:11:40 PM

bruce --

Thanks for the update. Two questions: Are you referring to state or federal judges, and has the government indicated whether it intends to appeal?

Posted by: Bill Otis | Jun 15, 2012 3:20:01 PM

bill, state judges, all three successful challenges were to long sentences for possession of cocaine, less than a gram. I'm relying primarily on statements made by Justice Kennedy in the opening section of his opinion in Graham v Florida. He lays out the basics of Eighth Amendment jurisprudence. It is now clearly established that excessive length can constitute cruel and unusual punishment, Justice Scalia and Thomas' opinion to the contrary.

What is happening that I think is driving this is Judge's frustration with long sentences for the lowest class of felony in the face of an ongoing budget crisis.

I have not been arguing that the newly enacted Justice Reinvestment Act is retroactive, rather that it is illustrative of "evolving standards of decency."


Posted by: bruce cunningham | Jun 15, 2012 10:02:59 PM

bill, oops, no appeals filed by the state

Posted by: bruce cunningham | Jun 15, 2012 10:03:57 PM

If we ended the drug war, we could disband the DEA.

Think how much $ that would save.

Posted by: Calif. Capital Defense Counsel | Jun 15, 2012 10:06:40 PM


Do you always only present one side of the equation?

Posted by: David | Jun 16, 2012 1:06:29 AM

bruce --

Thanks for the info. Do you know Roy Cooper?

Posted by: Bill Otis | Jun 16, 2012 7:35:56 AM


If we ended Medicaid, think how much money we could save.

If we ended the Forest Service, think how much money we could save.

If we ended drug rehab programs, think how much money we could save.

If we ended X government enterprise, think how much money we could save.

That's just brilliant, CCDC. Really. Nobody knew that if you end a government program, you'll save the money spent on that program. Golly, you should write the President.

Posted by: Bill Otis | Jun 16, 2012 7:41:26 AM

I can't wait, David. Tell us about all the good things the DEA does on behalf of Americans. No wait, that's too difficult. Tell us even ONE useful thing it does (apart, of course, from providing jobs for platoons of cowboy cops on a perpetual adrenaline binge).

I'm often grateful for CCDC's posts. He has a pulse. He speaks passionately for what he sees as just causes. So does Bill Otis...from the dark side.

From what I've seen, much of the rest of the law profession is comprised of docile functionaries who quietly accept heavy-handed, ideologically conservative rulings from overly politicized courts.

Hardly an ounce of healthy rebelliousness exists in a pack that seems endlessly fascinated by and ever eager to parse procedural niceties and arcane technicalities in dubious laws crafted by ass-clown politicians. But only rarely does it seem moved to grapple openly with what's just and what's not.

BTW,Bill: Medicaid provides health care for people who otherwise couldn't afford it. The Forest Service preserves scarce, vulnerable natural resources. Drug rehab programs try to rescue people who've succumbed to addictions. So again the question: what equally praiseworthy thing does the DEA do? Please don't say it keeps kids from taking drugs because I think we know that's not true. Education has always been a more effective tool than Enforcement on that score.

Posted by: John K | Jun 16, 2012 10:20:05 AM

John K --

"...what equally praiseworthy thing does the DEA do?"

Suppress drug use. This is not all that hard to figure out. When using X (drugs or anything else) costs more and imposes unpleasant risks and consequences, less of X will get used.

Say what you care to about dope. When less meth, Ecstasy, LSD, heroin and cocaine get used, and when abuse of legal but powerful drugs gets curbed by prosecuting venal distributors, there will be less damage from these things, including fewer lives ruined by addiction and fewer overdose deaths.

I had not previously known that you favor the legalization of hard drugs, and I'm not quite sure from your post that you do, although that's the logical implication from the notion that the DEA should be disbanded. Do you favor legalization of everything? If not, who do you think will enforce such anti-drug laws as you approve of?

Posted by: Bill Otis | Jun 16, 2012 3:24:16 PM

Small problem. In 95% of cases, the adjudicated charge is fictional, as a lot of lawyer doctrines are. Those prisoners labelled as non-violent may well be vicious predators. Only the indictment charges should be used to classify prisoners prior to release. They have the wrong guy 20% of the time, but at least they will not be false 95% of the time as the adjudicated charges are.

Posted by: Supremacy Claus | Jun 16, 2012 11:54:50 PM

There you go again, Bill. Heroine and meth predate the Nixon Administration, which spawned the DEA as part of its war on the culture.

So favoring doing away with this not just worthless but destructive and inept agency (the war IS in its 41st year and America's appetite for drugs is still going strong) hardly amounts to an argument for legalizing hard drugs.

Posted by: John K | Jun 17, 2012 11:15:40 AM

John K --

If hard drugs are to remain criminal, as you apparently (and correctly) agree that they should, then either the DEA or something with DEA's same mission will continue to exist -- and continue to do the good work of suppressing the consumption of those drugs, and the misery, addiction and overdose deaths that come with them.

P.S. DEA was merely the successor to the Bureau of Narcotics and Dangerous Drugs (BNDD), which was formed in the Johnson Administration. Nice try, though.

Posted by: Bill Otis | Jun 17, 2012 3:40:03 PM

Bill: Small problem. The most addictive and lethal drugs are legal.

Smoke 50 cigarettes in your life, there is an excellent chance of a lifetime addiction. Cigarettes kill 400,000 in the most hideous fashions.

The same is true of alcohol, which kills 100,000. Half the murder victims, the murderers, and the suiciders are legally drunk, as well. Alcohol is the single biggest source of crime and mental illness. Eliminate alcohol, cut their rates in half immediately.

One suspects the DEA and the War on Drugs are another lawyer rent seeking scheme, worthless to the taxpayer, but continued at the point of a gun. (Try not paying your taxes to keep those lazy, coffee swilling government worthless workers in salary, and a man with a gun will show up to help you pay the taxes.)

Posted by: Supremacy Claus | Jun 17, 2012 6:34:10 PM

SC --

"The most addictive and lethal drugs are legal."

Assuming this to be true, it is hardly a reason to make yet additional addictive and lethal drugs more widely consumed, as they would be if they were legal. It is, to the contrary, a reason to be more determined to keep them illegal.

Posted by: Bill Otis | Jun 17, 2012 10:17:03 PM

Bill: That is an empirical question. Each legalization should be tested and measured in a small jurisdiction, and retested in several larger ones, before going national. I am proposing the testing of all laws and requiring proof that they are safe and effective, and that the unintended negative consequences are tolerable.

For example, what if it is found that legal and widely used marijuana reduces crime (in contrast to alcohol), reduces driving fatalities because people are too lethargic to go out, and also reduces the smoking of cancer producing cigarettes? What if it is found that legalization has unintended consequences of reducing the murder rate in Mexico, and of drying up the funding of the Drug Cartel, and of the Taliban? In Mexico, the economy would boom without the high crime rate (most likely stemming from even greater over lawyering than in the US). More Mexicans could go to Walmart and enrich the US stock holder, as an unintended benefit.

Posted by: Supremacy Claus | Jun 18, 2012 12:18:54 AM

Bill Otis can and should decide, along with his doctors, what drugs he knowingly and voluntarily consumes.

Bill Otis and his fellow buddies in the government have no business whatsoever deciding what drugs I knowingly and voluntarily put in my body.

It's pretty fricking simple.

Posted by: Calif. Capital Defense Counsel | Jun 18, 2012 1:52:38 PM


"Bill Otis and his fellow buddies in the government have no business whatsoever deciding what drugs I knowingly and voluntarily put in my body."

The Supreme Court (Stevens, J.) has determined the question against you, and the public overwhelmingly supports continued criminalization of hard drugs.

P.S. I'm not in the government. I teach a law class at Georgetown.

P.P.S. Two of the three dissenting Justices in Raich are no longer on the Court, having been replaced by Justices (Roberts and Alito) who almost certainly would vote with the majority, meaning that the pro-pot side would lose that case today by 8-1 instead of 6-3.

Posted by: Bill Otis | Jun 18, 2012 3:20:34 PM

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