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December 8, 2014

Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?".  The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.

I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:

Not to worry -- this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.

Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.

Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.

But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.

The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise.  The liberal bubble is big. It's also, for the most part, impenetrable.

And it's one more thing -- wrong.

If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones.  One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....

[T]there are some prominent people in the Republican Party on board with "sentencing reform."  But the great majority of Republicans, and the center of the Party, are not being fooled.  The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....

So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform."  Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.

There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.

Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party).  Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey."  Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.

But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform.  Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years.  And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.

Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons.  According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws.  But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.

(Notably, these generational and demographic realities concerning sentencing reform are not only a  GOP story.  Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform.  But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)

Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works."   Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working.  That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.  

Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties.  But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo.  Whether and how these competing groups views as to  "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950. 

December 8, 2014 at 04:14 PM | Permalink


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Bill – and to some degree you too Doug – are stuck in a bubble as well: a federal-oriented bubble. There has been significant sentencing reform in a whole number of states over the past couple of years, including many very conservative states. Mississippi, South Carolina, South Dakota, and Texas come to mind. Utah is moving forward as we speak.

Do these bills go as far as I (a liberal) would go? No. But are they significant? Absolutely. In Mississippi, for example, since January 1, 2014, the prison population is down more than 10%. That is nothing to sneeze at.

Bill is right to say that the concrete policy results of sentencing reform are much less impressive than the near-unanmous public rhetoric. But in many places in America, in lots of ways, big and small, sentencing reform is beginning to happen. Whether the changes turn out to be large or small is something we will only know with time.

Posted by: dm | Dec 8, 2014 5:31:10 PM

Bill's post suffers from a serious error of omission when he attributes the crime rate increase in 2011 and 2012 to the prison population decline in 2010. My recent presentation to the Virginia Bar Assn shows that arrest rates and incarceration rates have both plummeted for younger age groups and increased for those over age 45 for more than a decade. Bill is right about high recidivism rates for released prisoners, and I suspect that sentencing reform advocates are overestimating how much we have or can reduce incarceration rates through sentencing reforms. That said, the high rate of recidivism combined with the massive declines we have already seen in youth incarceration should produce ongoing declines in crime rates for years to come. The number of youths in residential placement fell by 43% from 1999-2011, with much larger declines for the youngest juveniles: 80% for age-12, 70% for age-13, 60% for age-14, and 50% for age-15. From 2000-2013, there was also a 69% decline in the number of juveniles (age 17 or younger) in adult state prisons, and from 2002-2013, the prison incarceration rate fell by 61% for men ages 18-19, 34% for ages 20-24, and 25% for ages 25-29, but increased by 30% for men ages 40-44. If these trends continue (and they will), then it is only a matter of time before we find that we are running out of recidivist prisoners.

Posted by: Rick Nevin | Dec 8, 2014 9:12:50 PM

Rick: The actual presence of more lead in felons convinced me of your theory.

There has been an abortion theory, that the criminals were aborted in greater number after legalization in 1973.

I am proposing a fecundity lowered by imprisonment theory. That people in prison have fewer children. So if 10 children are prevented from being born by 10 hussies, you are really going to drop crime by the 100's/year each did not commit because not born. But the cause is incarceration. And the result is fewer children by criminals with low IQ, impulsivity, low morals, selfishness, and fearlessness, with their female opposites, to produce kids without a genetic chance. Average women will reject them as mates. The missing children would be 20 years old and entering their busy period of crime.

Because they like them young, the teen birth rate is an indicator. It is falling at 10% a year. From the CDC, "Declines in rates were steepest for Hispanic teenagers, averaging 34% for the United States, followed by declines of 24% for non-Hispanic black teenagers and 20% for non-Hispanic white teenagers." It dropped to 50% of the 1991 rate. Incarceration nation may be a factor. There is no study answering this specific question, however.

Bill is unlikely to adopt this argument, but is correct, just at the self evident level. Too bad he was driven away by unlawyerly personal attacks.

Posted by: Supremacy Claus | Dec 9, 2014 8:48:57 AM

I agree with DM -- while drawing a distinction between coastal/DC elites and the "real America" can be an effective rhetorical tactic (and Otis is nothing if not a master rhetoritician), in this case that distinction suffers from being largely unsupported by fact. I hardly think that it is Mother Jones magazine or some liberal bubble that is driving states like Alabama and Texas to take a hard look at reducing their prison populations...

Posted by: anon | Dec 9, 2014 10:13:48 AM

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