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November 4, 2013

"Use of tough federal sentencing laws varies widely nationwide"

The title of this post is the headline of this notable new Los Angeles Times article, which carries this subheading: "Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others." Here are excerpts from the piece:

Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.

But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.

Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.

Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed....

In the two months since Holder issued his new policy, some U.S. attorneys ... have begun to pull back, according to judges and attorneys. "We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."

But elsewhere, change has been slower in coming. "We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.

A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.

In a recent opinion, [Judge Mark] Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."

Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball....

One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.

A few prior related posts:

November 4, 2013 at 12:50 AM | Permalink


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If the defendant's conduct doesn't trigger the mandatory minimum, then the prosecutor has no power. Seems to me that the defendant's conduct controls the mandatory minimum sentence.

Want to get rid of the disparities everyone is complaining about and the discretion of the prosecutor? Require prosecutors to allege the drug quantity and file the 851 in every case where the defendant's conduct qualifies him. Problem solved.

Posted by: Domino | Nov 4, 2013 8:26:28 AM

Though Bill Otis can clarify his view on this front if I have them wrong, Domino, I think Bill (and others?) would assert that it would be unconstitutional for Congress or the judiciary to REQUIRE federal prosecutors to do anything in the charging/bargaining arena. As I understand prior comments, Bill believes that the Constitution generally gives the Executive Branch complete and unfettered discretion concerning prosecutorial charging policies and practices.

Posted by: Doug B. | Nov 4, 2013 8:42:13 AM

Doug and Domino --

One thing Congress can unquestionably do, consistent with the Constitution, is repeal Section 851. So we can start down the road to ending this controversy right now if Eric Holder pushes the idea, and Chairman Leahy holds a hearing (as he has already done with his own bill).

Of course this isn't going to happen. The reason it won't happen is not that Holder and Leahy are too "gutless" to take the defense side on this. The reason is that, even being the stout liberals that they are, they understand that 851 should be available for some, but not all, repeat offenders.

If Congress wants to modify the language of 851 to limit its application to particular cases, rather than repeal it, it can do that too. But, yes, under the Constitution, while Congress gets to write statutes as it may be advised, the Executive Branch has the discretion about how to implement them.

This really shouldn't be controversial. I'm sure we all learned this in Con Law 101. It's called "separation of powers."

P.S. As to the LA Times article: It might be possible to write a more one-sided piece, but it would take some doing.

Posted by: Bill Otis | Nov 4, 2013 9:14:05 AM

He called the process "both whimsical and arbitrary”
As to consistency: Should you prefer ‘both harsh and uniform’?
Would that they were truly MANDATORY minimums, with no enhancement?
Not to mention that such would severely curtail Judge Bennett’s judicial discretion.

Obviously the defendants violated the law, and the enhancements are so prescribed as well.
If odious, change the law toward more truth in sentencing. This would mean, howbeit, that a 10 year
sentence would mean exactly that, without the undermining and automatic “good time” currently in place.

Posted by: Adamakis | Nov 4, 2013 9:25:28 AM

851 is only a notice requirement. 841 establishes the sentence. If you repeat 851, then the increased sentence becomes mandatory under 841 based on the prior qualifying conviction. Thus, repealing 851 would take discretion away from prosecutors and would create uniformity, though not one the defense would like.

Posted by: Domino | Nov 4, 2013 9:41:31 AM

Doug --

While you're on the thread, I would like to continue a very important discussion we were having on a thread last week, a discussion central to the overall debate about criminal law and sentencing.

I asked: "1. Do you agree that what's happening with the crime rate is the single most important measure of the success of the criminal justice system?"

You responded: Simple answer: NO. If it was, we certainly should endorse a criminal justice system calling for the execution of all males who commit the crime of dropping out of high-school (and/or have mental health or substance abuse problems) as data shows those guys always commit the most crimes. Instead, I think an array of American values (e.g., life, liberty, pursuit of happiness, due process, equal protection, democratic self-rule, etc) all are important measure for the "success" of any US public institution.


Your answer has numerous flaws. First, to believe, as I do, that the crime rate is the single most important measure of the success of the criminal justice system is hardly to say that it is the ONLY measure. You mention other important factors, and no civilized person would disagree with you. But that these other things should be considered scarcely means that the crime rate is not the MOST IMPORTANT measure among others. (You're also doing a straw man by suggesting that any serious person wants executions for small-time offenses, etc. That straw man makes just as much sense as if I created the counter-straw man that the only way to avoid prosecution of the innocent is to prosecute no one, and the only way to avoid imposing excessive sentences is to impose no sentences. Both those propositions happen to be true, but they're just so much silliness in a sober discussion. As you and I both know, the real questions are at the margin. And at the margin, the crime rate is, in my view, by far the best measure of the success of the criminal justice system).

Second, you propose no quantifiable way of gauging success. But without such a method, we are thrown back on subjectivism. It's much easier to get people to agree on what the crime rate is than on what due process and the pursuit of happiness is. What on earth would be the objective measure of those things?

Third, do you think your view would enjoy much subscription at all outside the liberal bastions of academia? What do you think the answer would be if you asked a representative cross-section of taxpayers what they thought was the single best measure of the success of the criminal justice system? Is there any serious doubt the answer would be "the crime rate" or "how much crime we're getting" or "whether we're reducing crime"?

There was a second question we discussed. I asked:

"Do you doubt that imprisonment has played a significant part over the last 20 years in reducing crime? In other words, do you doubt that prison works to reduce crime?"

You answered: "Simple Answer: NO. But the real issue now, especially with US imprisonment levels so high, is at what cost to other values, particularly in a nation purportedly "conceived in liberty." Incarceration is very costly, and I thus I am always eager to explore less costly alternative to imprisonment as a means to reduce crime."

We all have our views as to what is the "real issue," but your answer here is extremely important for acknowledging that imprisonment works to reduce crime. What this certainly means is that less imprisonment will mean more crime (as we have already started to see).

The is the foundational fact that gets missed in the current climate. If we are to cut back on a system we know has worked to reduce crime, it behooves us to know how much more crime we are going to get, what types, what the economic and human costs will be, and who will be disproportionately its victims (hint: it will be the same people who are disproportionately crime victims now). But liberals are massively uncurious about all this. I see study after study about how much prison costs, but none about how much crime costs, or how much more those costs will be if we reduce the number of incarcerated criminals, or what the fallibility of predictive measures will mean about the release of people we THOUGHT were "low risk" (a never-defined term) but who turned out to be violent recidivists.

What's actually going on is an urge, borne of complacency, to depart from a system we know has been working to plunge into the unknown, without even asking, much less finding out, what awaits us.

Is that really a smart thing to do?

Posted by: Bill Otis | Nov 4, 2013 10:10:07 AM

In the article U.S. District Judge Mark W. Bennett refers to the example offender as “not Iowa's Pablo Escobar." To me, this is very convincing. Logically. However, these mandatory minimums make people feel better. In Iowa government officials probably love their ability to say “we put X offenders away for X years and you should feel X% safer.” While the problems with mandatory minimums are clear in a consistency sense - if a regulation intended to promulgate consistency is applied inconsistently it is operationally ineffective. Mandatory minimums make people feel good about crime control. Lessening the use of mandatory minimums make prosecutors sound less tough on drug offenses than they used to be. The public policy impacts of cutting down on mandatory minimums by prosecutors are, to me, a determinative bar to AG Holder’s goal for more practical cost-benefit sentencing.


Posted by: Elizabeth Young | Nov 4, 2013 10:27:16 AM

Bill Otis--

I would put the questions differently:

1. What is the goal? I would say the goal is to sustain social order. To reach this goal we have to accomplish several different objectives, using a variety of strategies and tactics. Together this goal and these strategies and tactics constitute a plan. Sentencing as we now know it is a simple-minded, antiquated way to execute a plan for sustaining social order.

2. How much risk of criminality is tolerable? I would say that this is a question of public policy.

Posted by: Tom McGee | Nov 4, 2013 3:20:10 PM

Bill, do you think the data supports the view that reducing incarceration rates is always accompanied by an increase in crime and that increasing incarceration rates is always accompanied by a decrease in crime? That can't be what you're arguing since there is so much data that contradicts that view. Or are you simply saying that there is a causal relationship to some degree?

Posted by: Thinkaboutit | Nov 4, 2013 5:21:12 PM

Bill, in response to your comments, how do we explain/deal with a state like Louisiana, which has the highest incarceration rate of any state in the nation and nearly the highest violent crime rate? Is it your view that crime can/will necessarily be higher if we try to reduce incarceration in that state? Is mass imprisonment in Louisiana working?

We are necessarily talking past each other when you claim that we have throughout the US "a system we know has been working." Notably, just about everyone except you thinks the current system is not working well at all. That's what the Attorney General of the US says, that is what former NYC chief Bernie Kerik is now saying a lot, that is what Rand Paul and Mike Lee are saying, that is what so many informed observers and commentators are saying from both side of the aisle. (A bunch of right-leaning groups just had this to say about Louisiana.)

I understand you are annoyed that so many ("liberal"?) people want to call the modern US reliance on mass incarceration broken when you want to say it is working great. But because I view mass incarceration as an affort to America's commitment to being, purportedly, the "most free nation in the world," I come down on the broken side of the assessment, and I am eager to explore whether we can/will be able to reduce our reliance on incarceration without great risk to public safety.

Will there be some risks to public safety by trying to have a sentencing and corrections system that aspires to be more "free" --- of course, just as more gun freedoms and speech freedoms and religion freedoms also always create some risks to public safety. But I like to live in an America that prides itself on its freedoms, not on amassive prison population. You may take more pride in our massive prison population, in which case we have different visions of America.

Posted by: Doug B. | Nov 4, 2013 5:34:12 PM

Doug --

"But I like to live in an America that prides itself on its freedoms, not on a massive prison population. You may take more pride in our massive prison population, in which case we have different visions of America."

Since you rely on Rand Paul's and Eric Holder's vision of America, let me rely on a better regarded public figure -- Franklin Roosevelt.

One of the cornerstones of Roosevelt's vision of America was a country in which freedom from fear prevailed.

In the last 20 years, we have come far closer to that vision than under the ideas of the 60's and 70's that you prefer (with revised terminology, to be sure).

Roughly 40 years ago, Richard Nixon, a known crook, won the Presidency anyway, running largely on an anti-crime platform -- such was the fear the public had (and justifiably so, given the historically high amount of crime). Today, I haven't heard of anyone of national repute running on that issue.

The reason is simple: Crime is way down, in part (as you correctly concede) because imprisonment is way up.

I prefer today's version of America in which freedom from fear is far more of a reality than it was in the bad old days. Don't you?

Posted by: Bill Otis | Nov 4, 2013 6:53:45 PM

Doug --

To continue.......

"Bill, in response to your comments, how do we explain/deal with a state like Louisiana, which has the highest incarceration rate of any state in the nation and nearly the highest violent crime rate? Is it your view that crime can/will necessarily be higher if we try to reduce incarceration in that state?"

Very little is "necessarily" true. But I will say this: If Louisiana tomorrow releases ten inmates, the crime rate will not ipso facto move one way or the other. If it releases half its inmates, you bet crime will spike.

It depends, of course, on how many and who the releasees are -- something your side never seems to want to say specifically. So let me ask directly. There are approximately 1,570,000 inmates in state and federal prison (source: http://www.nytimes.com/2013/07/26/us/us-prison-populations-decline-reflecting-new-approach-to-crime.html?_r=0). How many do you want released in, say, the next year? 100,000? 300,000? 500,000? If we're going to make a real dent in "incarceration nation," it's going to have to be a big number.

And as to type: How many murderers should be released? Rapists? Child porn producers? Heroin, PCP and meth traffickers? Armed robbers? Home invaders? Carjackers? We're not going to get anywhere releasing people who've just smoked a joint or two, because such people ALMOST NEVER GO TO PRISON TO START WITH, regardless of what many of your allies like to pretend. So how many of each type does your side want released?

Yes, I would like to know specifics. Is there something wrong with that? Aren't "evidence-based solutions" about actual evidence?

"We are necessarily talking past each other when you claim that we have throughout the US "a system we know has been working." Notably, just about everyone except you thinks the current system is not working well at all. That's what the Attorney General of the US says, that is what former NYC chief Bernie Kerik is now saying a lot..."

Yup, Holder is a big liberal, and a once-and-future defense lawyer (for very big bucks, I might add). As for Bernie, I have no doubt he thinks the system is broken, since it's that same system that put him in the slammer for four years. He pleaded guilty to eight felonies, involving conspiracy, fraud and lying. The sentencing judge described him as "a toxic combination of self-minded focus and arrogance."

So you can have Bernie as an informed (so to speak) "expert" on the system -- he certainly has experience with it -- and I'll stick with FDR, as I said in my last post.

Posted by: Bill Otis | Nov 4, 2013 7:22:40 PM

Couple of follow-ups, Bill:

1. Your embrace of FDR provides an effective and honest indication that you are not a small-government fan, but rather big-government progressive eager to tax-and-spend(-and-imprison) to make society better as you see it. That's fine, and I have a lot of other good friends in the academy and elsewhere who are big-government progressives eager to tax-and-spend to make society better as they see it. But I hope you will continue to be honest here and elsewhere in admitting that you and other tough-on-crime types who favor the modern drug war and mass incarceration are carrying forward FDR's visions much more so than the Framers.

2. Does your eagerness to create "freedom from fear" lead you to support very strict gun control/prohibition? I sense there is far less fear of gun violence in the UK and Australia, and supporters of strict US gun control say they just want to live without having to fear being shot at a mall/airport/theater or having their kids shot at school. If you are so willing to lock up more humans to try to reduce fear, are you also so willing to lock up a lot more guns, too?

3. You acknowledge that we could release some % of inmates in LA (and presumably elsewhere) without being sure to make crime go up. That is all I advocate now --- identify the 1% or 5% or 10% we could make more free without having VIOLENT crime spike. (Do you think folks generally fear nonviolent drug offenders or shoplifters or folks like Martha Stewart or Scooter Libby (who would have been an inmate without your advocacy on his behalf that he could be safely released early)?) Let's start with whatever low % you think we could release tomorrow without a certain spike in violent crime. Even if you think that is ONLY .5%, that means we could release 10,000 inmates tomorrow and increase US freedom and save money (perhaps to spend on other FDR-inspired big-gov programs like Obamacare, which also seek to help people be free of fear). I have a few dozen current federal prisoners to nominate for our release plan, including Weldon Angelos and Chris Williams (both in for (too) many years for just marijuana sales).

4. After we do an effective pilot program releasing 10,000 inmates and seeing who does better/worse while free, then we can refine our release criteria and release the next 10,000, and so on until we see if we can increase US freedom and save money without a spike in violent crime. Maybe we cannot, but all I am urging is that we try to increase freedom and decrease costs in our criminal justice system.

As always, Bill, I find this debate useful and revealing. I now just wonder if, at the next Federalist Society event, your will be promoting the fact that your vision of good public policy is inspired by FDR.

Posted by: Doug B. | Nov 5, 2013 8:52:26 AM

Doug --

I love your energy; wish I had it. Your logic, though,........

1. "Your embrace of FDR provides an effective and honest indication that you are not a small-government fan, but rather big-government progressive eager to tax-and-spend(-and-imprison) to make society better as you see it."

Why does being a fan of ONE of Roosevelt's many ideas transform me into a "big-government progressive"? You bet that I'm a fan of the government's being powerful enough to do the core function the Framers assigned to it: Protecting the lives, safety and property of the citizens. As to the post-Framing massive expansion of the all-spending-and-all-borrowing welfare/regulatory state, no thanks. That belongs to you liberals.

Indeed, it would seem that liberals want to cut back on government ONLY in its core functions, while gilding the lily to the tune of trillions everywhere else.

Not my cup of tea, really.

2. "Does your eagerness to create "freedom from fear" lead you to support very strict gun control/prohibition?"

No it does not, for the simple reason that people are LESS afraid when they have a gun handy to protect themselves. As they say, when seconds count, the cops are mere minutes away.

Plus, unlike liberals, I support the ENTIRE Bill of Rights. I don't want to send any of the first ten Amendments to the back of the liberal bus.

3. "If you are so willing to lock up more humans to try to reduce fear, are you also so willing to lock up a lot more guns, too?"

I'll lock up guns just as soon as guns develop volition and malevolence, which is the actual problem. A gun just sitting there doesn't do anything. It takes one of the criminals the Left is breathlessly eager to release from jail without (as you have conceded) knowing -- and worse, without caring -- what he's going to do once he's out.

4. As to your third point, I would note first that freedom from the fear of crime, while very important (to me, at least), is not the sole or even the primary justification for sentencing people to prison. The primary justification is to punish them for knowingly breaking the law.

You're avoiding answering my questions by just tossing them back. But I'm not the one advocating for release, so the burden of persuasion is not mine. For those who DO advocate release, I STILL want to know how many total inmates they want out (we'll start with over the next year); whether they would release any of those guilty of the unsavory (and dangerous) crimes I listed (but you avoid mentioning altogether), and if so, how many; whether they will ever be willing to give up the fantasy that the inmate population consists of occasional-only joint smokers; and, when they talk gauzily about "drug" offenders, whether what they actually mean is "meth traffickers" or "heroin traffickers."

5. We are never, as in NEVER, going to save significant money by cutting back on incarceration. I don't believe for a minute that you don't know that the ONLY place we can save anything like the needed money is in the entitlements, now including Obamacare (assuming anyone can ever actually sign up for it). In addition, I see from one of your later posts today that you seem to approve of more corrections spending -- so long as it's for re-entry and rehab.

As it happens, I also support increased spending for those things. I'm just less ideologically selective about supporting corrections spending than you seem to be.

6. In general, I agree with your incrementalist approach, except for its one key drawback: Being an honest man, you have acknowledged that we can't guarantee that crime won't go up, and have all but acknowledged that it WILL go up by some amount.

I would like to know -- and I'm sure I'm not the only one -- specifically, and before we head down this path, HOW MUCH MORE CRIME WE ARE TO ACCEPT before we say, OK, that's it, these releases are creating too many more crime victims.

So how much more crime are you willing to accept?

This is the question I simply cannot get a concrete answer to, but I think you'd agree that it is a very, very important question, both politically and, more important, morally.

7. I can't end without noting (I confess with a few chuckles) how quickly and completely you have dropped Bernie Kerik as one of the "experts" on the "failings" of our criminal justice system.

It's all true. Kerik views it as a failure for exactly the same reason I view it as a success: It caught a first-class crook and made him sit in the slammer. Yes, the taxpayers got stuck with the bill for four years of Bernie biding his time in jail. But it was a great investment.

So, speaking of revealing moments, your invocation of Bernie was a telling one indeed. The millions more crooks we have caught and incarcerated over the past 20 years for sure view the system as "broken." But what looks "broken" to criminals -- because, finally, it brought them to account -- looks much better to the normal, honest people who, because of the bad guys' imprisonment, got swindled (and killed and raped and robbed) much, much less than had been the case before.

P.S. I have a lot of heartburn about FDR's expansion of the welfare state, but I revere him for his ruthless use of the DP against Nazi saboteurs, and for his doing more to attack anti-Semitism than any man in history. He didn't have a lot of tolerance for the moral solipsism that clouds so many criminal law debates today.

Posted by: Bill Otis | Nov 5, 2013 2:27:12 PM

It's revealing that Bernie Kerik, who helped transform the greatest city in the world from being overrun by crime to one of the safest large cities in the country, is now dismissed as just "a criminal" whose views on crime and punishment (unrelated to his specific crime, for which he accepted responsibility, and is not talking about) are all suspect. Ridiculous. The guy has more experience fighting and reducing crime than everyone who's ever commented on this blog combined.

Posted by: Thinkaboutit | Nov 5, 2013 4:04:22 PM

Thinkaboutit --

I haven't "dismissed" Kerik. I have correctly identified him as a multiple felon and a cheater who got caught, served four years, and now is put forth as an "expert critic" of the system he fiercely resents precisely for having found him out and punished him.

The one who gets "dismissed" is Franklin Roosevelt, who (among other things) supported and used the death penalty and, as I have noted, placed a high value on freedom from fear.

Our citizens rightly fear crime. This is not panic, not hysteria, and not irrational. There are over 10,000,000 serious crimes each year (source: http://www.disastercenter.com/crime/uscrime.htm). Crime is now starting to increase, just as the prison population is starting to decrease. But for the 20 years before that, the prison population massively increased as crime massively decreased.

Those who claim there is no causal relationship between these two things are simply spouting what their ideology demands they spout, not what common sense and the most widely respected scholarly studies show.

Posted by: Bill Otis | Nov 5, 2013 4:41:33 PM

You do not seem to lack energy, Bill. Your logic, though,........

1. You are a big-government guy because you want to government to tax-spend-grow in your preferred ways, and you object vigorously when anyone suggests that the government may be growing too big or wasting money on your favored projects. Of course, for other big-gov folks, favored projects may be military spending or food stamp programs or health care or farm subsidies. Yours seems to be imprisonment and the drug war (and perhaps you would also have favored alcohol Prohibition, too). But whatever the nature of government project/spending, if/when you support increasing government power and spending, you are a big-gov guy. Maybe you think the Framers were, too, in this arena, though history suggests they tended to favor capital and corporal punishments over deprivations of liberty.

2. Some people are less fearful with more guns around, others are more fearful. But in this setting you are eager to promote (your vision of) constitutional values over freedom from fear. That is all I aspire to do, too, though life, liberty and the pursuit of happiness seem even more fundamental to our nation's values than gun ownership. (As you know, though, I am generally a fan of 2d A rights/liberties.)

3. Earlier in this thread, you suggested crime rates are the key metric/goal for a CJ system, but now you say the "primary justification [for incarcerating folks] is to punish them for knowingly breaking the law." Hmmm, pick your goal and try to be consistent AND does this mean you favor releasing any/all persons who are now imprisoned who reasonably claim to have not KNOWINGLY broken the law? Does that include, say, Chris Williams and others in federal prison for being in the state marijuana business or how about felon-in-possession cases like Edward Young in which defendants reasonably claim they did not know their possession was illegal under federal law given that it was legal under state law.

4/5. I know we are not going to save lots of money by reducing reliance on incarceration at the federal level, but we will save some, and at the state level lots of jurisdictions (especially red states) have been able to better balance their budgets by reducing their prison population. More critically, we will increase freedom AND if we do it right, we also might be able to decrease crime. My sense is that crime is more likely to goes up from releases done poorly (as in California), but is more likely to go down from releases done well (as in Texas and New York). FWIW: I actually do not want to spend a lot more on re-entry and rehab, as I fear those are programs also at great risk of doing more harm than good at a high expense. But, as with all these issues, the devil is in the detail.

6. I do not know "how much more crime we should accept," but I do know commitments to freedom lead us to now "accept" 10,000 yearly drunk driving death and 30,000+ gun deaths. Crime is a risk/cost of a commitment to a free society. I want to try to reduce crime without sacrificing too much freedom. Right now I do not think we have the ideal balance, and that is all my advocacy is about.

Posted by: Doug B. | Nov 5, 2013 5:24:17 PM

Bill, I don't know anyone who rejects a causal connection between incarceration and crime rates. Seriously, I don't know anyone who believes that. It seems like you make that argument over and over again, but you are pushing on an open door. The issue is whether, as Steven Levitt says, the marginal benefit of locking up the 218,000th prisoner is the same as the value of locking up the 10,000th. The debate is at the margins. This is not 1994 when those of us on the Hill were pushing for a crime bill that included more incarceration than midnight basketball. Those debates are gone. The American public's fear of crime is irrational; it goes up and up even when crime goes down. If you asked people today if crime is higher or lower than 20 years ago, most would say higher.

As for your claim that crime is rising because incarceration is decreasing, I have no idea how you can claim to know that. That sounds like ideology as much as anything I have read here.

Posted by: Thinkaboutit | Nov 5, 2013 9:31:07 PM

The Secretary of Defense of Ronald Reagan made a compelling argument for a larger military. He stated, our Defense budget is not set by us, but by the Soviet Union.

So Louisiana must have a large prison population because it has a high crime rate. Why? Simple, but not PC. It has a large fraction of black people, poor people, low fraction of immigrants. I do not know its level of serum lead levels. There is no racial disparity in the rate of Antisocial Personality Disorder, and blacks have a lower rate of addiction than whites. So only bastardy remains as an explanation unless lead is a factor.

I was joking about lead levels. Only 1 in 100 kids has elevated lead levels in Louisiana.

Posted by: Supremacy Claus | Nov 7, 2013 7:35:45 AM

It is compelling reading to see an esteemed law professor get the premise of "big government" versus "limited government" so wrong.

It is not about how much money the government spends on Program A, it is about what the program is.

The constitution set what the founder's believed the government's core competencies (e.g. roads, military, police) to be. "Big government" is leaving these core competencies and deciding to get into areas beyond its scope .

For example, George Washington himself promoted a nationwide canal system, such as the Erie Canal in NY (whose banks I grew up on) and the Potomac. Such projects are hugely expensive, yet GW (who is no Barry Soetoro) supported them because they were within the scope of government. Yet, he would puke at the thought of Soetorocare.

Prof Berman needs to read history books that were not written by Howard Zinn and have not redefined the meaning of words.

Posted by: TarlsQtr1 | Nov 7, 2013 1:00:42 PM

Thinkabout it stated: "Bill, I don't know anyone who rejects a causal connection between incarceration and crime rates. Seriously, I don't know anyone who believes that."

Read any of a hundred threads on this blog. The use of video games gets more credibility than incarceration.

Posted by: TarlsQtr1 | Nov 7, 2013 1:02:21 PM

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