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December 21, 2013

"If our prisons were a country, what would Incarceration Nation look like?"

The title of this post is the headline of this fascinating commentary by lawprof Rosa Brooks, which merits a read in full.  Here are just a few highlights from a very interesting piece:

You already know that the United States locks up a higher percentage of its population than any other country in the world.  If you look at local, state and federal prison and jail populations, the United States currently incarcerates more than 2.4 million people, a figure that constitutes roughly 25 percent of the total incarcerated population of the entire world.

A population of 2.4 million is a lot of people -- enough, in fact, to fill up a good-sized country. In the past, the British Empire decided to convert a good chunk of its prison population into a country, sending some 165,000 convicts off to Australia.  This isn't an option for the United States, but it suggests an interesting thought experiment: If the incarcerated population of the United States constituted a nation-state, what kind of country would it be?

Here's a profile of Incarceration Nation:

Population size: As a country -- as opposed to a prison system -- Incarceration Nation is on the small side. Nonetheless, a population of 2.4 million is perfectly respectable: Incarceration Nation has a larger population than about 50 other countries, including Namibia, Qatar, Gambia, Slovenia, Bahrain and Iceland....

Population Density:  No matter how you look at it, Incarceration Nation is a crowded place. If we assume a land area of 2,250 square miles, it has a population density of roughly 1,067 people per square mile, a little higher than that of India.  Of course, the residents of Incarceration Nation don't have access to the full land-area constituting their nation: most of them spend their days in small cells, often sharing cells built for one or two prisoners with two or three times that many inmates....


A nation of immigrants: Like many of the smaller Gulf States, Incarceration Nation relies almost entirely on immigration to maintain its population. You might even say that Incarceration Nation is a nation of displaced persons: most of its residents were born far away from Incarceration Nation, which has a nasty habit of involuntarily transporting people hundreds and sometimes thousands of miles away from their home communities, making it extraordinarily difficult for residents to maintain ties with their families. In New York, for instance, one study found that "70 percent of incarcerated individuals are in prisons over 100 miles from their homes" -- often in "isolated rural areas that are inaccessible by direct bus or train routes."...

Gender balance: International attention to gender imbalances has tended to focus on China, India and other states, but Incarceration Nation has the most skewed gender ratio of any country on Earth: men outnumber women by a ratio of about 12 to 1.

Racial and ethnic makeup: If Incarceration Nation were located in a geographical region matching its racial and ethnic makeup, it would probably be somewhere in the Southern Hemisphere, perhaps near Brazil.  Roughly 40 percent of the incarcerated population is of African descent, another 20 percent is of Hispanic descent, and the remaining 40 percent are Caucasian or mixed....

Health: Incarceration Nation doesn't do so well here. One recent study found that the incarcerated are "more likely to be afflicted with infectious disease and other illnesses associated with stress."...

Per Capita Spending: Judged by per capita government spending, Incarceration Nation is a rich country: its government spends an average of about $31,000 per year on each incarcerated citizen. (State by state, costs vary. Kentucky and Indiana spend less than $15,000 on each inmate per year, while in New York State, the per capita cost per inmate is more than $60,000 a year. In New York City, per capita costs for jail inmates reach an astronomical $168,000 per year.) Internationally, only little Luxembourg spends as much on its citizens as Incarceration Nation; among the generally wealthy states of the Organization for Economic Cooperation and Development, average per capita spending is under $15,000, and Sweden, France, Germany, Canada, the United States and the United Kingdom all spend under $20,000 per year on each citizen.

Gross Domestic Product: Incarceration Nation doesn't have a GDP, per se, but that doesn't mean it doesn't turn a profit -- sometimes, and for some people. For American taxpayers, aid to Incarceration Nation is pretty expensive: looking at just 40 U.S. states, the Vera Institute of Justice found that the cost to taxpayers of incarceration in these states was $39 billion. Overall, federal and state governments spend an estimated $74 billion on prisons each year. (This doesn't count spending on state and local jails.) How much is $74 billion? It's higher than the GDP of more than half the countries in the world, including Lebanon, Paraguay, Nepal and Lithuania.

Some people make a lot of money from Incarceration Nation. Incarceration Nation employs about 800,000 people as prison guards, administrators and the like -- almost as many people as are employed in the entire U.S. automobile industry -- and in some rural areas, prisons are the main employers. But the real money goes to the operators of private prisons and the companies that make use of prison labor.

December 21, 2013 at 10:55 AM | Permalink


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Well gosh. We hear everything about "Incarceration Nation" except descriptions of the greedy, violent, fast-buck and/or rapacious behavior that earns your citizenship there!

Well that's cool. It is, after all, the intellectually honest thing to do to microscope the results while sticking the causes behind the curtain.

Posted by: Bill Otis | Dec 21, 2013 12:25:49 PM

Bill, Doug discusses "the causes" all the time. The difference is he's "intellectually honest" enough to admit there are more than one - e.g., the fact that, "Some people make a lot of money from Incarceration Nation." Unless you think that profit does not motivate human behavior, which isn't a particularly conservative stance to take.

Posted by: Gritsforbreakfast | Dec 21, 2013 12:48:09 PM

I would find a psychological study of what incarceration-nation looks like far more revealing that a demographic report of the sort detailed here. If our prison population were to actually be a country I suspect that it would be worse than most third world hell holes. At least some of the third world countries give bare subsistence farming and nomadic herding an honest chance.

Grits, sorry gotta agree with Bill on this one. Prof. Berman's gloss on why people are in prison is very much "why do we send people to prison for such long periods?" He applauds judges for sentences at the low ends of whatever ranges apply, even applauding sentences that are in fact illegal under existing law.

Posted by: Soronel Haetir | Dec 21, 2013 3:37:49 PM

I largely agree, Bill, that this would have been a much more effective piece if the residents of Incarceration Nation were profiled much more dynamically. Specifically, I would like to see details accountings of (1) how many violent felony convictions the residents have, on average, and (2) how many drug convictions the residents have, on average. And I concur that such an accounting would make us much less sympathetic to the plight of those force to live in this land.

That said, I think it also would be very interesting to get reports on what % of folks have some history of mental illness and/or substance abuse. I do know that a large % have not finished high school and also likely never had private health insurance and also likely came from "broken" homes (if that term is still acceptable).

Critically, as you and perhaps others likely do not believe, my main "gripe" with incarceration nation in the US is that we spend --- in my view, waste --- a whole lot of money using the deprivation of freedom in an effort to seek to keep us safer when I think there are lots of other cheaper means that could/would, I think, be more effective. Critically, even with recent declines in crime and with massively expensive growth in the size of our prisons, US crime rates are relatively high (especially in many southern states with some of the largest prison populations).

One reason I am agnostic about whether Obamacare might be a good or bad development is because I am hopeful that throwing govt healthcare money at the poor and undereducated might increases the chances they get needed mental health treatments before starting a criminal career AND might decrease the chances of certain populations self-medicating with a range of illegal narcotics. Similarly, one reason I tend to favor school voucher programs is because I think giving schooling money to the poor directly rather than to public school systems might also end up having a positive impact on crime rates.

In sum, I concur that "greedy, violent, fast-buck and/or rapacious behavior" is typically what earns citizenship in incarceration nation. But I am troubled that we now "reward" that behavior with taxpayer-funded liberty deprivations costing on average $30K per year. For probably half or more of the folks in that sad nation, that may not be a bad price to pay to keep "us" safe from "them." But for the other bunch, I fear we keep throwing good taxpayer money after bad.

What I applaud, Soronel, is not judges imposing "sentences that are in fact illegal under existing law," but rather judges using their judgment, consistent with existing law and sound empirical evidence, to impose prison terms that appear no longer (i.e., no more costly) than necessary to serve public safety needed. Sometimes I fear judges impose prison sentences that are not long enough -- e.g., most sentences imposed on drunk drivers --- but other times I fear judges (and prosecutors and others) have incentives to impose sentences that are much longer than needed to serve public safety needed (e.g., sentences that extend far beyond when statistics show criminal behavior begin a steep decline with age).

Posted by: Doug B. | Dec 21, 2013 6:15:34 PM

It would be nice if "Incarceration Nation" lost a few more than 39 murderers per year.

Hopefully, on that front, 2014 will be a much better year . . . . especially if the 11th Circuit panel ever gets off its duff and approves Alabama's protocol.

Posted by: federalist | Dec 21, 2013 9:50:42 PM

The real test of lawyer sincerity, as opposed to more sophisticated rent seeking and growing of big government, a wholly owned subsidiary of the criminal cult enterprise:

State crime statistics correlate with the fraction of black population. They commit six time more crimes, and Hispanics perhaps twice the crime of whites unless newly arrived, then less crime than whites.

One has to take my word that blacks do not have higher rates of antisocial personality disorder, and that they abuse drugs and alcohol less than whites. Daniel, our resident psychologist, may verify.

So what is the single most powerful explanation of this racial disparity in rates of crime? Racism? No. See the rates of crime of pitch black people, recent immigrants from Haiti or Africa. Poverty? See the crime rate of dark skinned people of Egypt (before the Revolution). They have 8 children, live on $2000 a year, with prices the same all over the world. Employment rates? See the developing reverse racism, where employers seek out extremely dark skinned people as great employees.

Would Prof. Berman express his sincere desire to eliminate crime by eliminating bastardy? It explains all racial disparities in economics, in crime rates, in health? It would mean crush the feminist lawyer, shrink the huge welfare state depending on bastardy for jobs.

Short of this change in culture and lawyer addiction to government jobs, incarceration for $30K is the biggest government bargain, and a fantastic benefit. This is especially true for black crime victims who are 6 times more likely to be victimized, and about whom the feminist lawyer does not care. If the average ultra-violent predator in prison commits 200 crimes a year when loosed by the pro-criminal lawyer, that is only $150 a crime prevented or shifted to the inside of prison. Compare to the likely $millions in direct and collateral damages done by this criminal when loose, including huge drops in real estate prices of the most desirable property in town, that close to work downtown.


This phony lying propaganda from law prof, Rosa Brooks, (not black, but an Ivy indoctrinated feminist pig) forgets the real prisoners: the black crime victims who cannot leave their homes after dark in all the inner cities of our lawyer run nation.

Posted by: Supremacy Claus | Dec 21, 2013 10:18:54 PM

"What I applaud, Soronel, is not judges imposing 'sentences that are in fact illegal under existing law,' but rather judges using their judgment, consistent with existing law and sound empirical evidence, to impose prison terms that appear no longer (i.e., no more costly) than necessary to serve public safety needed."

If you think about that sentence for about 10 seconds, you'll see how intellectually bankrupt it is. Preservation of public safety isn't the only reason for sentencing. We sentence people who may not be generally dangerous (e.g., people who kill their spouses or their kids) to long stretches simply because they did a terrible thing. Additionally, determining a sentence that is no longer than necessary to preserve public safety isn't exactly an easy thing. There's a risk allocation at work. We don't know how long it's going to be--so we err on the side of incapacitation. In other words, Doug, the search for the Goldilocks sentence for each criminal is a fool's errand. particularly at the time of sentencing.

The funny thing--my theoretical approach to incarceration, i.e., that every prison bed is a scarce resource, is probably not too far off from Doug's. Additionally, incarceration can result in a lot of opportunity costs. But you know what, when a career criminal uses force to get a kid to hand over his pizza, I don't have a problem with 25 to life. I am sure that Doug probably would have thought Komisarjevsky's sentence for his 12 nighttime home invasions (i.e., burglaries of occupied homes) was good to go. And we know how that turned out. Of course, anyone can cherry-pick an anecdote, but the fact is that when people commit serious transgressions, their criminal behavior can lead to awful tragedies. And it ain't like that comes out of the blue.

The other bit of surreality is Doug's invocation of "empirical evidence." What empirical evidence are we talking about? And what about the blameworthiness of the conduct? The idea that judges are sitting around making empirical calculations before they sentence is fantasy. Does remorse matter? Who knows? Does that factor into the "empirical evidence." What about family support? Does that factor in? And is it fair--some bad seed from a "good family" gets to trade on that? Yeah, someone who's 60 probably isn't going to commit much violent crime--is that all we're talking about? Really? And Doug's going to "applaud" because some judges think about this when determining a sentence. Well, to quote Vincent Hanna, "I am overf***ingwhelmed." (And, Doug, wouldn't that argue in favor of longer sentences for young criminals?).

I guess if I had my own blog and I constantly had to comment on things, I'd say a lot of dumb things too. This one is up there with your recommendation of that witch Martha Coakley for AG.

Posted by: federalist | Dec 21, 2013 10:26:45 PM

federalist, you do not need your own blog to say a lot of dumb things... indeed, you said a lot of dumb stuff in just your latest post. For starters, you suggest judges sitting around making assessments of blameworthiness is more sound and sensible than them making assessments of public safety. Really, to parrot your own comments, does remorse matter to assessment of blameworthiness and does it matter how "genuine" this remorse is? What about family support? Does that factor in? And is it fair -- some bad seed from a "good family" gets sentenced worse than one from a bad family because they are more blameworthy?

More broadly, federalist, are you going to "applaud" when a judge completely ignores all evidence of cost and public safety in order to makes assessments of blameworthiness at sentencing that are different from yours? Is it really your belief that judges can/should seek to give expression to their own personal views of blameworthiness and do everything within the bounds of the law to give that view expression at sentencing? In other words, do you really want a judge to ignore all forward-looking public safety concerns and simply "search for the Goldilocks sentence" in retributivist terms?

What makes your comment goofy, federalist, is that it fails to recognize that I have long espoused my own commitment to consequentialist sentencing philosophies embedded within a society that values secular freedoms and representative democracy. I am not asserting that everyone must adopt that philosophy, nor do I disagree that in making sentencing risk assessments it may often be better for judges to err on the side of incapacitation for the clearly guilty (especially for those who are repeat offenders). But I also do not think prison is often the ideal or most cost-effective way to serve these interests -- e.g., technology could much more effectively incapacitate drunk drivers than a short prison term.

More fundamentally, for someone so critical of judges who make decisions you do not like, federalist, it seem especially curious to urge them to be moved by and focused on non-verifiable concerns like blameworthiness rather than moved by and focused on concerns like public safety.

Posted by: Doug B. | Dec 22, 2013 7:28:50 AM

Your post apotheosizes what is so difficult about discussing things with you. You write something, then when it is criticized, you don't defend it--rather you use the criticism as a launching pad for other stuff.

The sentence I criticized had two serious flaws--the first was that a necessary implication of your statement that judges should shoot for the lowest sentence consistent with law and public safety. Obviously, judges shouldn't be acting lawlessly from the bench. But with respect to "public safety" and sentences, trying to get the lowest possible sentence that is consistent with public safety is a fool's errand for the simple reason that predictions of future human behavior isn't easy, particularly when you're trying to predict behavior that is counter to what the particular human has done in the past. Curiously, you state in your reply that erring on the side of incapacitation may be ok. That is almost 180 degrees out from your "no longer than necessary" standard espoused upthread. As for incapacitation by other means, I said nothing about that, and I don't necessarily disagree with you.

The second flaw is the reference to "empirical evidence." It's a cute phrase, but when you sit and think about it, it makes little sense. There is, of course, evidence that recidivism drops as criminals get older. But where is the empirical evidence about recidivism for all the other factors I mentioned? That sentence makes it seem like there is a repository of evidence to which judges have ready access that will allow judges, based on empirical evidence, to assess the myriad factors that go into the public safety consideration. That's simply not the case, and there are some problems with it, as I briefly point out. So, when you tie your standard "no longer than necessary" with "empirical evidence," you seriously go off course. How do you get the basis to applaud a sentence that is supposedly "no longer than necessary" when the evidence for that conclusion simply doesn't exist? The answer is that you can't. So basically, that sentence is just sophistry.

Your other assertions are completely bizarre. First of all, most of my criticisms here are based on legal concerns, not discretionary sentences. I do broadly criticize the idea that the problem in America is too lenient sentences. But so what? Judges' lenience can be dealt with by legislative action. But to your point, I can criticize judges, even harshly, but still not want a model of judges having to hew to "verifiable" concerns about public safety.

"In other words, do you really want a judge to ignore all forward-looking public safety concerns and simply "search for the Goldilocks sentence" in retributivist terms?"

Um, where in the world did you get that idea? First of all, nowhere do I say that there is a Goldilocks sentence for a given crime--that was my criticism of your "no longer than necessary" standard. Second of all, public safety is, and always will be, a core concern of mine. It just happens to dovetail with my general view that serious crime needs to be seriously punished.

Posted by: federalist | Dec 22, 2013 12:27:30 PM

The left will not face real factors of crime. Are they shy, stupid, or liars? No. They cannot tolerate threats to tax funded jobs.

Black Americans commit more crime.

The sole reason is the elevated bastardy rate, now at 70%. Pitch black skinned people with familieshave low crime rates.

The lawyer run judicial system has a huge discount for victimizing black crime victims, to encourage crime, but also to herd it into the correct areas.

The above lawyer discussion is an example of the refusal to stare at the self evident. Focus on minutiae, avoid staring at the sun. Continue the fairy tale of black victims of racism, not of the family crushing feminist lawyer.

Posted by: Supremacy Claus | Dec 22, 2013 1:04:44 PM


Under 123D, the murderer of a wife with cancer goes home. The shoplifter who heads a drug cartel gets executed. There is no way to chase crime succesfully. One has to go after the person. The idea of punishment is not preventing crime anyway, since everyone is committing many crimes a day.

Public safety is a value that unifies the commentators, I believe. The person is the sole path to safety.

Posted by: Supremacy Claus | Dec 22, 2013 1:12:38 PM

You always amuse and puzzle me, federalist, especially with your desire to pick fights over comments you seem ultimately to embrace once I press you to explain you belligerent initial criticism.

If public safety is a core concern of yours, why fault the notion that judges at sentencing should be attentive to extant statistical evidence that serves that concern? And saying judges should err on the side of incapacitation when uncertain about public safety needs is not inconsistent with saying they should not lengthy sentences based on vague notions of desert with no basis in public safety considerations.

Your real gripe seems to be your own concocted belief that I think judges can or should be trying to engineer a perfect sentence like a scientist. I said no such thing, and your eagerness to misread a phrase I take from Congress in 3553 shows both your lack of legal knowledge and eagerness to pick a fight for whatever reason.

I also agree that serious crime calls for serious punishment, but public safety and the harm principle informs my understanding of serious. In some other nations, based on other views of justice, homosexuality and adultery and even showing disrespect to god are serious crimes. Are you meaning to validate this view of making sentencing judgements?

Please know I am trying to understand what views are driving you eagerness to fight when I suspect we have quite similar perspectives.

Posted by: Doug B. | Dec 22, 2013 7:20:09 PM

Oh good grief. First of all, the opening thread is about incarceration nation--not just the federal system. So who cares if you were just quoting 3553? I was talking about sentencing generally--state and federal. But let's take a step back shall we?

First of all, I have no clue what you are actually thinking. None. All I can do is go by the words on the page. When you combine things like lowest sentence, public safety and empirical evidence, there's an implication there, whether you want to deny it in later posts or not. Second, your use of 3553 language doesn't pick up all of paragraph 2--you only mention public safety. Now maybe "public safety" means all those other things in paragraph 2 (respect for the law, reflect seriousness of the offense, just punishment etc.), but that would be a somewhat idiosyncratic meaning of the phrase.

So you're left with some judge using his judgment and "empirical evidence" to figure out what the minimum amount of time in the graybar hotel necessary to protect public safety (and otherwise consistent with law). I called BS on that--and I am the ignorant one? Hardly. It may not mean a scientific determination of a particular sentence, but it sure conjures up an odd image of a judge reposing to the empirical evidence storehouse for a sentencing that will win your applause. But hey, you can applaud whatever methodology you want.

Your earlier post also betrays a fundamental lack of understanding of risk allocation. You talk in terms of maybe half/maybe more prisoners that don't need to be in prison. Let's assume you're correct. Who is going to figure out which prisoners we can let go? Well, if we cannot, then we should ask who should bear the risk of uncertainty--society or criminals? Komisarjevsky is a perfect example. Not all nighttime home invaders graduate to triple capital murder. But enough do so that a person who does 12 of them ought to get decades in prison. So what if we've oversentenced dozens-the consequences of one slipping through can be awful.

Posted by: federalist | Dec 22, 2013 8:57:49 PM

We are making progress here, federalist, especially because your last paragraph highlights where our views differ. But let me go first respond to some of your other comments:

1. You are right that we are here talking about general prison sentencing approaches, not just the federal sentencing scheme. But my philosophy, which I articulated to Soronel in response to the claim I applaud lawless judges, was that I want all judges (state and federal) to follow the law but also impose the least amount of prison time to serve public safety. This view, which para-phrased federal sentencing law's "no greater than necessary" lingo, reflect my affinity for human liberty and freedom as well as my fear that "empirical evidence" shows not only that prison is very expensive, but also "criminogenic" for certain kinds of offenders and their families -- i.e., sending a small-time drug user/dealer to prison for years instead of into a drug-court program, sending a CP downloader to prison for decades instead of using economic sanctions -- may hurt public safety more than it helps and do so at a great cost to taxpayers.

Put very simply, and perhaps sounding too much like Bentham, I think locking any human in a cage for any period of time is conceptual harm in a nation conceived in liberty and a real cost in a nation that struggles to pay its bills, and thus I "applaud" US judges when, consistent with applicable law, they order incarceration only when there is a sound and necessary basis (i.e., "empirical evidence") to believe that public safety ends will be served by costly-liberty-deprivation means.

2. These are my "words on the page," which reflect my philosophy of sentencing law, policy and practice. I would expect smart regular readers like you would not find any of these statements surprising or "intellectually bankrupt" or "dumb." But, for reasons I still do not understand, rather than discuss the merits of one sentencing philosophy or another, you want to pick a fight over one way in one comment I responded to the inaccurate claim that I applaud lawless judges. I am pleased that you seem to accept my assertion that I want judges to follow the law --- and I surmise you do, too. So at issue in our discussion is what else should impact a judge at sentencing. I want concerns about public safety and empirical evidence as well as a a commitment to human freedom and modern economic realities to be the concerns of modern judges. In you first comment, you seemed to suggest you want judges using blameworthiness as a guide, then you shifted to say public safety is a "core concern" but added that some vague notion of "serious crime" needing to be "seriously punished" is also in the mix, and now you seem to welcome "oversentenc[ing] dozens" in order to minimize the awful consequences of "one slipping trough."

3. Again, federalist, I am just here struggling to understand your sentencing philosophy and your eagerness to pick a fight over mine. Do you think judges, when deciding the length of prison terms within the bound of established law, ought to be focused on their own views of blameworthiness AND/OR their own views of what are "serious crimes" and "serious punishment" AND/OR their own views of when society should or should not bear the risk of uncertainty? I use the phrase "empirical evidence" when talking about what I think sentencing judges should consider to capture the idea --- which I would think tough-on-criminal-types like you and Bill would like --- that judges should not be eager to rely only on gut instincts, personal feelings and subjective beliefs at sentencing. But if you are critical of the notion of judges considering empirical evidence at sentencing or think judicial views of blameworthiness and seriousness should trump any extant data, then I think you are eager to give license (or at least ready cover) to sentencing judges using their gut instincts, personal feelings and subjective beliefs to justify their sentencing decisions.

4. What I really surmise from your last comment, federalist, is not a disaffinity either for my emphasis on public safety or empirical evidence, but rather just a concern that my philosophy would encourage judges imposing the lowest legal/sound prison term rather than the highest. So what, you seem to suggest, if dozens of crackheads serve hundreds of arguably unnecessary years in prison, as long as we have reduced the chance that one of them is not free to beat up someone if free. So what if thousands of CP downloaders serve arguably unnecessary decades in prison, as long as we have reduced the chance that one of them can touch another kid.

That is a reasonable sentencing philosophy, federalist, but it has nothing to do with judicial views of blameworthiness AND/OR assessments of "serious crimes" and "serious punishment." Rather, it is a variation on the views usefully summarized by SC when he says 123D. With that phrase, SC is saying humans get two chances to show they will not harm society, and then we deal with risk by executing after the third strike, whatever it might be. Because you have so many different things about your sentencing philosophy in this comment thread, federalist, I am not going to "accuse" use of embracing 123D. But one reason I let SC go on his rants is because he, at times, is at least clear and consistent in his articulation of a sentencing philosophy (as I likewise try to be).

Posted by: Doug B. | Dec 23, 2013 10:05:09 AM

I don't know that I was picking a fight, or just responding to what I considered a bit of not so well-executed sophistry. The sentence I quoted linked "empirical evidence" and the minimum length of sentence needed to ensure public safety. With all due respect, that is nonsense on stilts. The reality is that it's well-nigh impossible to determine what such minimum sentence is, and to make a statement that, by necessary implication, "empirical evidence" can get us there is ill-considered. Yes, criminal history and age do tell us things (of course, criminal history in a particular case may be evidence that some judge got the calculus wrong in a previous sentence, something which some poor innocent person paid the price for)--but those general observations don't get us anywhere close to being able to determine minimum sentences necessary to preserve public safety. (And, by the by, age may point to a longer sentence--if I am a judge, you think I am going to give a violent 18 year old a break--I'd be very very hesitant given the reality of age and violent crime--of course, my sense is that would make you unhappy.)

I also find it odd that you criticize me for ignorance. You posited that you praise judges who give minimums necessary to preserve safety, then when I criticize that, you take me to task for not having Section 3553 memorized. But 3553 encompasses more than public safety.

I also like how you twist what I wrote. I said nothing about judges using what data there is that is out there (although, like I said, it may push towards harsher sentences)--I just said that what data exists (and notice how you use the word "data" which has a veneer of precision) cannot get us to the minimum sentence required for public safety.

You asked about my sentencing philosophy--putting aside financial crimes and political crimes (e.g., the leaking of Joe the Plumber's confidential information--something which should have been punished by at least a decade in prison)--i tend to think that certain serious crimes should be met with a serious societal response. I think that people who commit certain crimes have forfeited their right to live among us for a substantial amount of time. Rape a daughter in a home invasion after you've tied up the father--personally, death would be ok, but I couldn't see anything less than 30 years. And that would be an absolute minimum. Given the maudlin sensibilities of so much of our population, this is why I tend to think that exceedingly harsh penalties for more minor crimes is counterproductive (I also think them immoral in certain cases)--because it undermines the regime of harshness for serious crime. And since I believe that harsh punishments should be certain for serious crime, I don't really care all that much if some judge uses his gut to tack on a little more in assessing the blameworthiness of the crime. In other words, I am not really all that willing to give judges the ability to give lenient sentences for serious crimes. And guess what--sentences based on blameworthiness and public safety go hand in hand. That someone is willing to commit a serious and violent transgression of societal norms generally shows that he or she is very dangerous. So your attempt to show schizophrenia on my part falls well short of the mark. I care about blameworthiness and public safety.

I don't think I've been too opaque on those point. But this really isn't about my views on sentencing--it's about changing the subject from the statement I harshly criticized.

I was going to leave your comments about freedom to one side. Obviously, the incarceration of violent criminals is necessary for the freedom of the rest of us and it is no stain on our collective conscience--so when you talk about freedom it's a wee bit slanted. But you do have a larger point, and one you and I share (at least on a theoretical basis)---punishments have to be deserved, first and foremost. A free society can do no less. This is why you don't see me defending Brady violations or criticizing those who prove innocence of the incarcerated. And this is why you see me react to harsh sentences for non-serious conduct--e.g., locking a hunter up for almost 20 years because he had three minor convictions decades before.

Posted by: federalist | Dec 23, 2013 10:42:02 PM

federalist, we keep going round and round, and I continue to try to explain to you that all my statement was designed to do was explain the judicial philosophy/approach to sentencing that I applaud. To explain again, I want sentencing judges, within the bounds of the law, to be concerned principally with imposing sentences that will enhancing public safety at the least cost (economically and in term of liberty deprivation) and to be informed when making sentencing decisions by sound data/evidence (and not just personal feelings).

In turn, you keep wrongly asserting/suggesting that I mean somehow to be advocating/endorsing/seeking some kind scientific precision when judges make sentencing decisions. That is neither my belief nor desire. That said, I do want extant and sound data about how crime and punishment really works, rather than just personal feelings and gut instincts (or religious beliefs), to play a predominant role as judges consider the range of sentencing options made available by law.

What I do not find especially satisfying or meaningful is a vague statement that judges at sentencing are to be concerned with "certain serious crimes [being] met with a serious societal response." How is a judge at sentencing to decide what is serious either with respect to crime or punishment in contested cases? Is downloading CP serious? How about dealing an ounce of crack? Running a medical pot shop in Montana when doing so is a federal crime? Illegal entry into the US? Possessing a gun without a serial number? Drunk driving? Shoplifting some golf clubs? Insider trading? Perjury in a federal investigation? And is one year in prison serious? Five? Ten? 20?

You keep using violent rape and murder as your examples of serious crimes. Well that is hardly contested in classic violent cases, although unclear is whether consensual sex between a 25-year-old teacher and a 15-year-old student is in your definition of rape. Also, would a mercy killing like the one in Ohio qualify as serious? You are right, of course, that in "easy" cases involving repeat violent criminals, assessments of blameworthiness and public safety will tend to dovetail. But not always in hard case involving, for example, mentally ill or juvenile offenders. Indeed, whether in the form of SCOTUS judges or public policy advocates, it tends to be those seeking to eliminate the death penalty and LWOP and other harsh terms who say a lack of blameworthiness should limit the application of severe sanctions even if public safety may be well served.

Please understand, I am not trying to change the subject. I continue to be willing and eager to defend my articulated preference for a judicial philosophy/approach to sentencing. But when you assert this approach is "nonsense on stilts," I want to better understand what alternative you propose to guide judges at sentencing in order to better understand your criticism. I keep seeing you use phrases like "serious crime" without giving any account of how judges are supposed to give meaning to such a vague term other than to rely only on gut instincts, personal feelings and subjective beliefs about what qualifies as serious in contested cases (e.g., the kinds of cases listed above which are, of course, in federal courts much more than traditional violent rape and murder). And saying also you "care about blameworthiness and public safety" is no more meaningful than saying you care about freedom and security, or quality and affordable health care. We all care about classic uncontested values, the hard issue is what to do when those value come into tension. In this setting, in those tough moments when advocates are fighting over what blameworthiness and public safety mean for a particular sentence for a particular offender, I want judges focused on public safety concerns informed by evidence rather than on blameworthiness notions informed by personal feelings.

Perhaps your basic point is that we cannot escape the reality that judges at sentencing have to rely only on gut instincts, personal feelings and subjective beliefs about what is serious, and we just need to face up to that reality rather than have judges create a false sense of what is really going on by looking to data and public safety evidence to inform their sentencing judgments. Again, I can see merit in this view, though I am not sure this really dovetails with your anti-leniency sentiments.

In the end, federalist, I surmise your philosophy is that judges at sentencing should be applauded when they successfully divine and adopt the "federalist view" of seriousness and blameworthiness and impose just right harsh prison terms accordingly, always making sure to err on the harsher side so that criminals rather than society at large are the ones that suffer from any errors in assessing the "federalist view" of seriousness and blameworthiness. This is not an incoherent view, but it is one that seems hard to turn into an effective rule of law for sound applications for thousands of sentencing judges, many of whom may neither be able to eager to divine and adopt the "federalist view" of seriousness and blameworthiness.

Posted by: Doug B. | Dec 24, 2013 12:34:50 AM

Doug, whether you meant it or not, the statement I criticized was ill-advised, for the reasons I have set forth. Your sentencing philosophy may not be--but when you discuss federal and state sentencing generally (and keep in mind much of state sentencing is, as a practical matter, post hoc due to the availability of parole--so the idea that judges in these sentencing systems can come up with minimum necessary sentences is a bit off) and quote a phrase in a federal statute and attach it to but one factor and then, by necessary implication, state that the minimum sentence necessary to protect the public can be divined by "empirical evidence" you deserve to be called out. That sentence is nonsense on stilts. You can say all you want that minimum necessary has some fuzziness--and i don't really disagree--i mean what's the difference between a sentence of 110 months and 113 months? But you talk in terms of a standard that's somehow divinable by "empirical evidence." It's not. How does one quantify the existence of family ties, socioeconomic status etc. on sentencing outcomes--and even if we could, is that fair?? And it's also BS to say that I am characterizing your statement as saying that there is scientific certainty. And that's the sophistry embedded in this whole exercise---when you use words like "empirical evidence" and "data" to make your case, you are giving a sentence that you applaud a veneer of objective correctness. To rebut that obvious conclusion, you overstate my criticism. You then get to avoid the criticism. That's a weak tactic, and I am calling you out on it.

Maybe I am a little unfair for picking one sentence and subjecting it to scrutiny. But jeez, it really doesn't bear serious analysis. I suspect you know it.

Posted by: federalist | Dec 24, 2013 1:34:26 AM

federalist, you will give you criticisms a lot more heft and meaning if you explain what you want judges to consider in their exercise of sentencing discretion instead of (or in addition to) empirical evidence and data. I remain happy/eager to defend and further explain this approach -- e.g., sound evidence highlights that criminal history and age correlates with recidivism, ergo I applaud judges who consider criminal history and age when using their judgment to impose prison terms.

The only way I can understand and respond to your criticism is to know what you would applaud a judge for considering in her exercise of sentencing discretion instead of (or in addition to) empirical evidence and data: when Justice Sotomayor was a sentencing judge, would you applaud when she based her sentence on her own notions of what is serious or blameworthiness or what is fair? Did you applaud the judge in the recent Texas drunk driving case because she plainly thought the 16-year-old killer did not deserve any prison time because he suffered from affluenza?

You keep harping on the claim that I am trying to give sentencing decision-making a "veneer of objective correctness." As usual, you misconstrue the reality in order to pick a fight. What I am trying to do is push sentencing decision-making to focus on objective considerations, rather than gut instincts, personal feelings and subjective beliefs. Meanwhile, you keep dodging the issue/question at the core of your criticisms, and so I will as it one last time in the hope you will face up the the reality that your criticism entail:

federalist: Since you seem so troubled by my statement that I applaud judges who focus in their exercise of sentencing discretion on empirical evidence and data, is it your view that instincts, feelings and beliefs about seriousness and blameworthiness and fairness are more important when judges decide how long prison sentences should be within the bound provided by law?

Posted by: Doug B. | Dec 24, 2013 10:25:45 AM

Doug, you can say all you want that I am harping on the veneer of objective correctness. But the fact remains that you talked in terms of "empirical evidence" etc., and attached it to a standard, i.e., minimum necessary to protect public safety. Those words have an unmistakable connotation. To deny that is to deny the obvious.

But putting that to one side--your statement doesn't make a ton of sense in the context of discretionary parole eligibility. It also doesn't make a ton of sense to crow about quoting language from a federal statute when (a) you were talking about sentencing generally and (b) when the quoted language is attached to but one factor in a multifactor decision.

As for my sentencing philosophy, I think that the only way you can stamp out overly lenient sentences is to take away the ability of judges to impose them. That means mandatory minimums. I grant that they can lead to unfortunate results. But overly lenient sentences do as well--as we have seen many many times. So I err on the side of harshness. But I full well understand that numerous anecdotes of overly harsh sentences lead to an undermining of our resolve to punish wrongdoers, so I believe that care has to be taken when dropping the hammer. You bring up "hard" cases. But what is astonishing to me is how often the easy cases get screwed up by liberal judges. Take Jennifer Hudson's family--should that guy, given his record, have been walking the streets? I think we should start by getting those right--before we start telling judges they need look try to get to minimum necessary.

Posted by: federalist | Dec 24, 2013 12:44:36 PM

Hey Doug, take a look at the NJ carjacking-murder story. Looks like an epic fail when it comes to sentencing and public safety.

Posted by: federalist | Dec 24, 2013 1:07:02 PM

And here's another underpunished criminal with predictable consequences:


But hey, sentencing a guy who sexually assaulted some girl at a bus stop to a small amount of time shows our commitment to freedom.

Posted by: federalist | Dec 24, 2013 2:08:50 PM

Federalist, you again fail to address the main point of this discussion. We are not debating MMs here, but how judges should sentence with the bounds of law. If you are trying to say judges often use discretion to be too lenient, the next question is why. I would suggest it is largely because of folks talking about blame worthiness and fairness, not folks talking about data and public safety.

Indeed, that is why I think you are just foolishly picking a fight over an approach to judicial sentencing you likely embrace. You examples are epic fails defined in term of public safety, not in term of fairness.

Posted by: Doug B. | Dec 24, 2013 4:00:23 PM

So what if we aren't debating MMs? You asked my sentencing philosophy. I told you.

The sentence I criticized was ill-advised. I don't really feel like getting into a larger debate.

Posted by: federalist | Dec 24, 2013 7:47:21 PM

Federalist and Doug--

I think you two have done a pretty good job of carving out the two tracks in the correction planning and programming process; namely, holding offenders accountable and controlling/reducing their risk. The reasons for holding offenders accountable do not change once established. Risk does change. These two tracks are fundamentally different.

As to your lengthy back and forth about blame, I would just add that social norms are important. They have to be nourished or they fade away. That's one thing judges do. They help sustain certain social norms. This is done with examples. Judges speak for all of us in this regard, usually within established guidelines.

Posted by: Tom McGee | Dec 24, 2013 9:45:05 PM

federalist, you started and persisted with a larger debate because your misguided effort to aggressive criticize a few terms I used when responding to Soronel's mistaken claim that I applaud sentencing judges for exercising sentencing discretion illegally. But now I am not surprised you are ready to give up trying to defend your aggressive criticism because doing so would require you concede you did not think through the necessarily implications of your criticism. More broadly, I am not surprised you do not want to get into a broader debate because your sentencing philosophy really seems to be I do not want judges to be more lenient than federalist thinks they should be. If you become a judge, you can turn this philosophy into practice, but I fear it will be hard to articulate this philosophy for other judges effectively.

Because sentencing is not your field, federalist, I do not fault you for not having thought through challenges posed by your own sentencing philosophy. But when you persist with aggressive criticism of my criticisms, I feel I should try to help you gain insights as to the implications (and what I see as faults) with such criticism. And thus, as we wrap up, I hope you now understand that I think judges exercising sentencing discretion can rely on, generally speaking, feelings/beliefs OR data/evidence and can seek to serve, generally speaking, visions of fairness/justice OR concerns about public safety/crime control. My preference -- i.e., what I applaud -- is when judges at sentencing focus on data/evidence in an effort to serve public safety/crime control at the least economic and human cost.

Thanks for the engagement, federalist; I always benefit from our back and forth and from seeing how some are troubled by the ways I phrase my views and how I can articulate my views for greater clarity and understanding. Happy holidays!

Posted by: Doug B. | Dec 25, 2013 9:03:47 AM

We don't hear much anymore about "wise judges." Maybe that's because judges increasingly are picked more for political proclivities and connections and less for decisions that reflect independence, fairness, bravery and wisdom.

Then again, maybe judges were always selected for their willingness to pander to the vengeful, punitive impulses of democracy and to cater to the ambitions and opportunistic whims of lawmakers and enforcement agencies.

Either way, it appears the judiciary has been effectively neutered over the past 40 years by a right-wing crowd chanting "it's all about the judges" in their quest to prevent judges from blunting the right wing's legislative agenda -- including "getting tough" on crime.

As for prison packing, America didn't earn its incarceration-nation nickname because the country has been overrun by evil, blood-thirsty criminals. If prisons were full only of (as Bill and federalist might have it) greedy, sneering thugs who robbed Girl Scouts at knife point -- nobody would be complaining there's too many prisoners.

No, we're the world's No. 1 jailer because some of our smartest, most imaginative people (lawmakers and prosecutors) devote their intellect and energy to criminalizing too many things with laws that are impossibly complex, vague and expansive. They've ratcheted up punishments with mandatory minimums and sentencing commissions that strike me and much of the rest of the world as draconian.

Laws churned out decades ago ostensibly to take down lawyered-up drug kingpins and mob bosses now typically are used against ordinary citizens indulging non-violent personal habits (possessing pot) or cutting corners/working gray areas in their business dealings.

Not all...not most...but too many citizens are in prison (or walking free with the stigma of criminal convictions) for offenses that, as Doug correctly argues, could just as easily and more reasonably have been dealt with in cheaper, less destructive ways.

Posted by: John K | Dec 25, 2013 11:28:31 AM

The above hard to understand exchange is about the margins, the two have a 10% difference between them. Meaningless to the public.

In 123D, sentences are mandatory to the extent of repetition of violent crime. It solves the problem of discretion by giving it to judges within the limits of repetition. As the criminal moves toward more public damage, discretion fades away quickly to maintain public safety. No lawyer is advocating for the public due to the inherent conflict of interest. It has no remedy but to remove the lawyer from decision making, as the Guidelines did 20 years ago. Result? Across the board drop in crime of 40%, the greatest lawyer achievement of the 20th Century. Why Prof. Berman is not as pleased and as grateful as I am for the profession's achievement, I do not know, other than rent seeking and dependency on higher rates of crime, which we are getting post Apprendi/Blakely/Booker/Cunningham. I blame Scalia for these catastrophic mistaken and lawless decisions, so rent seeking knows no party affiliation. Lawless? You bet. Article I Section 1 gives the legislative power to the Congress, and not to the little Caesars from Yale and Harvard, hate America, treason indoctrination camps. These are personally horrible people, bookworms, studying 80 hours a week, devoid of human quality, you would not want coming to your house for dinner. Yet, they get to cancel laws, without the slightest shred of authority from the constitution. Someone, show me where judicial review is authorized in Article III or anywhere else.

When judges use personal feelings or even data applicable to the conduct of groups, with no validity for individual decision making, 9 of 10 times, the public safety is damaged. There is an inherent conflict of interest of which the left leaning have no awareness. Your criminal law jobs depend on having more crime, coddling criminals so as to not scare them, right into your unemployment. No one in the criminal law has the public safety as the prime motivator. Prosecutors have the public as a client, but let 9 of 10 serious crimes go unanswered, give away the opportunity for safety in plea deals in 95% of cases, have no liability to their client the public, including for failure to exercise discretion within professionals standards. Even Federalist is crime dependent. End crime, Prof Berman is out of a job and now competing for his transactional job.

123D allows the judge to show kindness within the limits of repetition. Man murders wife with agonizing terminal cancer in Number One. May go home. What is the point of prison time, here? Drug kingpin is caught shoplifting in Number Three, gets immediate death penalty, with no discretion for the judge. Has slaughtered a 1000 people, will slaughter a 1000 more, even from inside Super Max. Those future murders have the foreseeability of planetary orbits, and are 100% the fault of the judge who fails to kill the kingpin.

Start the count at 14 and no violent criminal sees the 18th birthday. End crime, as they have where the lawyer lives. There, the death penalty is at the scene, with no counting. No serious crime only 5 miles from Fallujah like Darwinian neighborhoods.

Posted by: Supremacy Claus | Dec 25, 2013 11:49:34 AM

I think we have bid up the cost, without receiving greater value from the crime related social norms in our portfolio. It's largely a matter of prosecutorial excess.

Posted by: Tom McGee | Dec 25, 2013 1:30:35 PM

Doug, I criticized the sentence. It has three flaws:

1) It's somewhat besides the point to talk about "minimum necessary" to protect public safety in regimes where there is discretionary parole.

2) Use of the term "empirical evidence" (by the way, ever read David Hume?) to describe getting to a minimum necessary standard of incarceration connotes a precision that isn't there. Moreover, although there is empirical evidence about recidivism and age (age them out being a legislative response to the problem of recidivism) as well as recidivism and criminal history (although that's not perfect because, you know, people get away with crime), there is little in the way of empirical evidence to deal with all the other sentencing inputs (e.g., family ties etc etc.) And additionally, even if empirical evidence were extant on things like this, there are serious countervailing concerns with using it. Should a "bad seed" from a "good family" get a break?

So, (a) the "empirical evidence" is necessarily incomplete, but, by necessary implication, you suggest that something as important as public safety should be entrusted to decisions based on necessarily sparse "empirical evidence"--this seems less than sound and (b) the term itself has a connotation that implies a lot more precision than is really there.

3) Your 3553 quote excises the other considerations that go into sentences. So basically you applaud judges that sentence based on one factor? That goes a long way to confirming Soronel's point.

And you're the one saying I am caving--because I dont want to get into a debate about judicial sentencing philosophies? Ha ha. Personally, I just don't see a whole lot of value to be gained by talking about the exercise of judicial discretion--other than to say that I am suspicious of it. The only thing I would add is that a judge should have the moral courage to drop the hammer, but they should always be aware that it is a hammer that is being dropped.

Your response to my two anecdotes are weak. You talk incessantly about oversentencing--well, these are two instances of undersentencing with some pretty heinous consequences. (This is why I talk about risk allocation--sentencing decisionmakers don't have a crystal ball.) And you're blaming a lack of use of objective evidence. That's a neat trick. I am sure that the problem is not a focus on objective evidence--judges, unless complete tyros, understand recidivism--rather the problem was, in the case of the bank robbery, insufficient outrage at the crime and with respect to the sex assault, simple liberalism. But who knows? You can't make any conclusions--and certainly not with respect to whether the judges were insufficiently attuned to the "empirical evidence."

John K, you know, they looked at the prisoners in Indiana and California, and they found that very very few were not serious criminals.

Posted by: federalist | Dec 25, 2013 1:51:37 PM

I talk about excessive use of imprisonment for non violent criminals, federalist, because that seems to be a much bigger problem in the US circa 2013 than the under sentencing problem you lament (while the opposite was true 40 years ago). Just in the last few weeks, groups have detailed thousand of folks serving LWOP for non - violent offenses and federal drug offenders getting on average 11 extra years when they exercise trial rights.

Sounds like your gripe is not my articulated approach to discretionary sentencing, but with discretionary sentencing for serious/violent crimes. Fine, but then the pressure is on to define what offenses fit your labels. How about CP downloading? Cracker distribution? Illegal gun possession? These are what can trigger long mandated prisom sentences in many US jurisdictions, while drunk driving and forms of rape and homicide do not. So your anecdotes are just one of many examples of how sentencing can go wrong because this is, so obviously, not a scientific endeavor.

At issue in our whole debate is whether we should seek more rigor and more public safety focus when judges have sentencing discretion. I applaud when judges seek to be more rigorous and focused on public safey. I still am puzzled by what you want judges to focus on.

Posted by: Doug B. | Dec 25, 2013 4:49:02 PM

I feel like I should pay tuition for reading this thread.

Posted by: Bill Otis | Dec 25, 2013 7:46:49 PM

Doug, the reason you are puzzled is because (forgive that awful syntax) you think that because I criticized you rather than articulated my vision for judicial sentencing. I don;t think that common-sense conclusions about recidivism have no place in sentencing--I just don't think that they're necessarily all that helpful in determining what the minimum sentence is that will protect public safety--in other words, I think that they have some value in determining a sentence, just not so much at figuring out what the minimum sentence is (why this is so hard is beyond me). I also don't think that there's much in the way of empirical evidence when it comes to testing remorse, the impact of family ties, etc.

I think I've well-explained the flaws in the sentence I criticized. I chose not to get into a larger discussion about these issues. Not because I am really afraid to discuss them, but rather because the subject isn't all that interesting to me from an intellectual standpoint.

As for your discussion about what the most serious problems are in the justice system, perhaps you are right, but as much as I think that Clarence Aaron was punished too harshly, I feel a lot more sorry for the poor bastard in NJ who was killed for a Range Rover. I noticed that you had very little criticism for Kennedy's oeuvre in the Plata case--even though their "letting people out may increase public safety because of less recidivism" is so ridiculous on its face that only an appellate judge could swallow it. Um, newsflash to Kennedy--if you let a bunch of people go, then their recidivism is a Day 1 problem, whereas the supposedly lessened recidivism of the others is maybe a day 2 crime reduction that isn't close to being guaranteed. How the Supreme Court could credit this nonsense is beyond me, and how you could spend a lot of blog posting discussing this case and not pick up on that flaw is beyond me.

Posted by: federalist | Dec 26, 2013 2:24:38 AM

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