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August 1, 2015

Latest reform news means still more waiting for those eager for federal sentencing reform

This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:

Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.

The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....

Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.

But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....

The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.

And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.

Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.

As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law.  (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.)  I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."

August 1, 2015 at 08:28 AM | Permalink


Congress would be far better advised to pass laws to rein in idiot judges like this:


I guess the arrogant judge in this case was just showing her commitment to freedom--Doug, you have a fan on the DC bench.

Posted by: federalist | Aug 1, 2015 10:29:05 AM

Do you want judges, federalist, who lack a commitment to freedom?

I will readily acknowledge that not all judges will operationalize that commitment in ways I prefer, even at sentencing -- e.g., I think far too many drunk drivers are given far too much freedom to get behind the wheel again despite showing repeatedly that they are a potential death machine on the road. But I genuinely fear that if and when judges lack a commitment to freedom, there is an ever greater risk of a tyranny of the majority in all sorts of worrisome settings.

Posted by: Doug B. | Aug 1, 2015 11:21:25 AM

Why actually reform the system, when you can gets lots of publicity talking about the importance of reforming the system?

Really, talk is cheap and everyone is happy to show problems with govt. Once you do something, you own the problem and have to face the consequences if anything goes wrong. Let's expect lots of talk going into the election and little action, maybe a safe nibble - something symbolic to talk about that really does nothing.

Prove my cynicism wrong, politicians.

Posted by: Paul | Aug 1, 2015 5:27:24 PM

Doug, do you really think that Judge Yvonne Williams cares about "freedom" in the sense of our traditions of liberty? If you peruse the Washington Blade article linked in the Slate article, you'll note the following:

It’s really an opportunity for me to just talk,” she said. “And apparently, as the judge, you can just summon people and everybody has to come listen to you. So here we are.”

No, Doug, this sounds like an arrogant (and stupid) judge full of herself. If the DC judiciary were truly committed to freedom, judges who steal busy people's time (and rub their noses in it) like this one would be removed from the bench and have their law license suspended. This arrogant woman has zero business having power over the lives of others. And that's not even getting into the lack of consideration for the basic freedom of being safe from appalling attacks such as that that befell the victim in this case.

As for freedom, I tend to want judges to have a sense of the liberties that made America good. For example, I'd want judges who understand that one's home is one's castle, so that when someone comes into that castle brandishing a gun and robbing the inhabitants, he gets more than just probation. But Olu Stevens is probably your kind of judge--lenience to criminals and public humiliation of victims. I'd also want judges to understand the bureaucratic maw that befells our citizens and to call BS when people are charged with bleeding on a police officer's uniform.

In another thread, you complained that I was looking at three horrible cases in hindsight. I let that pass because it was late, and I had other fish to fry, but in all honesty, that is about as dopey a comment as you've made in a while. The issue, of course, as I have repeatedly stated is one of risk allocation. We cannot, of course, predict that a Komisarjevsky would commit a brutal triple murder. But we can look at the seriousness of his transgression--namely the entry into numerous homes which he knew to be occupied. He have to presume that he was prepared to use violence against the home's inhabitants. So when faced with criminals who do this (note, that we're looking at thousands of criminals) the legislature makes judgments about the seriousness of the transgression and the danger a person committing that transgression poses to society. My gut tells me that someone willing to break into occupied home repeatedly is a very dangerous person and that if I were designing policy, I would want to make sure that a group of criminals with that sort of criminal history were incapacitated for a long long time. You see Doug, it's possible to take chances on a one-off basis, but if you have 100 criminals committing 12 home invasions like Komisarjevsky, as sure as night follows day, you will have a not insignificant amount of brutal crimes committed by such a group. Hence, you need to be harsh with all of them, unless you want to plant an 11 year old girl after she's been raped.

Now. of course, there are always examples where a crime is way overpunished---you'll recall a thread in here about some poor bastard who committed a few crimes years earlier who got 15 years for possession of a hunting rifle. Such staggering injustices, particularly when compared to open criminal violations like Hillary's mishandling of classified info or Corzine's capers or Eliot Spitzer's structuring. But you mischaracterize my positions and fail to pay attention to the most obvious points I make.

Posted by: federalist | Aug 1, 2015 8:13:59 PM

federalist: I share your distaste for arrogance, and I suspect most others do as well. Indeed, I think this is why your comments and Bill Otis's (too often) trigger vitrolic and uncivil responses -- some comments can be perceived as dripping with arrogance. Your first comment here is an example: rather than discuss seriously what you think would be a good law to "rein in idiot judges," you poke me and indirectly suggest this "idiot judge" was too committed to freedom.

When I press you on your mischaracterization of my commitment to freedom in sentencing decision-making, you then pivot to reveal your real concerns with this case are not at all about a commitment to freedom, but (1) judicial arrogance, (2) failure to respect the sanctity of the home, (3) leniency to criminals, and (4) public humiliation of victims. If you were not so eager to be arrogant, federalist, you would acknowledge that I share these concerns in this case and others. And it is these very concerns make me a support of sentencing reform because I am hopeful (but not optimistic) that wise, data-driven, risk-focused, victim-focused, violence-focused sentencing rules would look very different than the rules we now have.

To that end, federalist, I agree 100% that we can learn from the three horrible violent crime cases you cited elsewhere, but I still worry about "hindsight" bias and what our "gut tells" us can distort sentencing laws and policies. As you know, successful businesses will generally structure their policies and practices around serious data analysis, not just hindsight and gut insights. And I think serious data analysis incorporated into sentencing would treat harshly all 100 criminals committing 12 home invasions like Komisarjevsky, though I think it also would create a prison environments that would enable some of the 100 to prove over time that they have changed their risk profile and thus can earn release (subject to significant supervision).

Posted by: Doug B. | Aug 2, 2015 10:07:03 AM

Doug, regarding the "commitment to freedom", my point is that it is a nebulous concept devoid of any real substance. What it tends to equate to, in your arguments, is ad hominem criticism of tough on crime folks, as if we are not committed to freedom. (I suspect, actually, Doug, my commitment to freedom is far greater than yours, given my utter dislike of bureaucratic statism.) So that's why i chose those two examples--one from Slate and one from a Louisville suburb--I was being sarcastic---you're commitment to freedom argument is really just sloganeering--and my choice of these two incidents was decidedly made in sarcasm.

And, to be perfectly blunt, your stated commitment to "data driven" seems to be less than meets the eye. In Plata, Justice Kennedy credited the "let them go and you will increase public safety" due to less recidivism. You generally agreed with Plata, but have said nothing out this pig ignorant "analysis." (Hint: it's pig ignorant because (a) the alleged reduction in recidivism would take a very long time to happen since the current population would have already been hardened, so releases would come from that population and (b) what about the immediate increase in crime from the release of hardened by overcrowding criminals?) Yet you had nary an unkind word about the Plata decision and cheered it. So how am I supposed to uncritically accept your stated desires for data-driven decisions?

As for my three anecdotes, you had earlier said that they were just anecdotes---now the suggestion is that we can learn from them? But of course, you have to tut-tut about "hindsight." But the "hindsight" issue is really a manifestation of the fact that neither judges nor legislators (or parole boards) have crystal balls. And while I agree that it's easy to point to one or two horrible crimes and create a harsh policy that has no bearing on reality, the relatively harsh sentencing regimes that have grown up reflect the lessons of so many funerals, and you seem to attack those who point that out while reserving praise for people like Barack Obama who resorts to the most transparent of racial demagoguery. I'll ask you, point black, Doug, do you think that Obama's characterization of the Jena Six assault as a "schoolyard fight" was right? Do you think that it says nothing about his worldview and a "distorted"--to choose your word--view of criminal justice in America? And keep in mind, Doug, he characterized a six-on-one racially-motivated assault wherein an innocent victim was sucker-punched, and stomped while prostrate as a "schoolyard fight." please forgive me that I am not as willing to accept his "wisdom" when nonsense like that spewed forth from his mouth.

As for "idiot judges"---um how would you characterize the two I mentioned? Huh? My sense is that there is some lese-majeste idea going on here based on your back-handed criticism of me

Posted by: federalist | Aug 2, 2015 11:27:58 AM

Couple of quick responses:

1. I dispute that discussing "commitment to individual freedom" in the context of prison/sentencing policy is any more nebulous than, say, a commitment to free speech or a disaffinity for "bureaucratic statism." Of course, a commitment to freedom is a contestable and vague concept, but so are all general principles. Most critically in this setting (at least for me and borrowing your terminology) is a commitment to having government power to harm individuals --- here in the particular form of coercive, freedom-depriving, bureaucratic statism --- employed and deemed justifiable only if and when such government power has a good chance of enhancing individual freedom. Long imprisonment for 100 Komisarjevsky might be justifiable (especially when supported by reasonable data), whereas long imprisonment for 100 Edward Youngs (15 years for possessing shotgun shells) or 100 Weldon Angeloses (55 years for marijuana sales with personal guns nearby) seem not to be. And I do mean to question the "commitment to individual freedom" among those who continue to contend, without any supportive data, that the extended prison sentences given to the Youngs and Angeloses should be maintained. (Critically, other (virtuous or vicious) values might be advanced by the sentences given to Young and Angelos, but I do not think they reflect a commitment to freedom.)

2. You can complain about Plata not being data-driven OR about Kennedy mis-using data, but the law being applied in Plata did not call for data-driven analysis. You can fault Congress --- as I would --- for failing to include data-driven requirements in the PLRA, though my complaints about Plata would go back to the failure of California officials bringing better data analysis into (a) the operation of its 3-strikes laws and (b) its decision to not build more prisons (which were the chief reason prison overcrowding got to the point where the PLRA rules for a release order kicked in). I cheered Plata because it struck me as (1) faithful application of the law, and (2) a needed constitutional kick in the pants for California --- and California had the choice throughout the litigation to build more prisons if it thought that was the right "data-driven" response to the unconstitutionally crowded prisons it had created.

3. For the record, I agree that even good data is only a tool for moving forward on certain kinds of legal reform and a tool that is contestable in lots of ways (e.g., Kant (and perhaps you and Bill) would assert that justice demands some killers be executed no matter what data says). Speaking of tools, anecdotes likewise are a tool, a contestable tool, and can be used lots of different (responsible and irresponsible) ways.

Posted by: Doug B. | Aug 2, 2015 3:07:10 PM

Concerning Congress, Paul nailed it with the following.

Really, talk is cheap and everyone is happy to show problems with govt. Once you do something, you own the problem and have to face the consequences if anything goes wrong

This is why Grassley from Iowa is going to offer a really weak bill as he and his constituents ( Bill Otis is his mentor). Love the mandatories and all of glorious engancements.

But we no longer can handsome sentences that gave done nothing to resolve the clients i itial problem...

Posted by: MidWestGuy | Aug 2, 2015 7:38:35 PM

Doug, the problem with a "commitment to individual freedom" in the context of your arguments is that you use is as a slogan. So we have the nebulousness AND the cheap sloganeering and the not so veiled attempt to paint those of us who believe in a generally harsh sentencing regime for crimes that represent serious moral transgressions. An additional consideration that renders your invocation of individual freedom hopelessly mushy is that individual freedom within a society strongly implies safety and hence the commitment cuts both ways, and probably more, if you think about it, in my way.

The other problem with your whole proposal is that we've seen what discretion can do. It ain't pretty. It's really easy to promise the world when we're talking theory---but in the real world, we have a trail in blood.

As for your defense of Plata---wow--you really give away the game there--so basically, there's no daylight between you and Reinhardt on what constitutes overcrowding etc. Fascinating. Congress didn't anticipate such a panel. I guess we can blame Congress for that, But what's worse Doug, from an intellectual standpoint---Congress said that public safety couldn't be harmed---and that panel concluded that releasing criminals would help public safety--So basically the people charged with coming to the factual conclusion with respect to a standard set by Congress served up some garbage on the point, and you think that's ok. Hmmmm. Note: I notice you don't take issue with my logic on the point of recidivism and criticism of the Plata opinion--so you don't dispute my conclusion that the logic is garbage. And remember Doug, the Plata panel didn't give California any credit for amelioration or allow California to house prisoners out of state---SCOTUS upheld that as a part of how litigation works--but if you profess to be concerned about public safety--that had to trouble you--except that it didn't. So that leads me to conclude that public safety isn't that much of a priority for you.

You bring up Angelos and Youngs. Angelos' sentence isn't horrible, in my mind---drug deals and guns aren't a good mix. Personally, for his case, I'd think 20 was enough--from the standpoint of justice. Youngs seems like an overreach. But so what? I've always said that you will have some "over punishment" due to the risk allocation issue. That's why we have clemency. I've often said that a prison bed is a scarce resource--it should be used wisely. Other than that--I don't fall for the siren song of drug dealers who carry guns to drug deals whining about the life-ruining consequences of their actions. 55 years--yeah, harsh. Doesn't keep me up at night.

I cannot help but note---you have nothing to say about Obama and the Jena Six. Figures---you want to ask me about anything---I respond. But you don't. Obama's euphemization of a pretty nasty (and racist) assault speaks volumes about his view of the justice system---and you cheer his viewpoint. If it were a one-off, maybe we could cut Obama some slack, but the minimization of the crime and the reflexive criticism of the justice system is, unfortunately, not.

And it's surpassing funny that you criticized me for anecdotes but then said we could learn from them. Ha ha. Not to be rude, but your argument style reminds me of people who like the rhetorical gamesmanship, rather than a good debate on the subject matter at hand. The problem is that sophistry doesn't do so well on the printed page. You wind up saying silly things like "obsessed with procedure" etc. And people like me will bury you with it.

As for the vitriol--hmmm. I think your calling me out over "idiot judges" is kind of weak. If you read what Yvonne Willilams and Olu Stevens did, "idiot[ic]" is mild. Olu Stevens used his perch as a judge to abuse an innocent family who was the vicim of an awful crime. And I am the bad guy for calling him an idiot? In any sane system of justice, Stevens should lose his robe AND his law license. And as for my criticism of the "wise [sic] Latina"---I know that bothers people--so what? No one ever can defend the opinions I criticize (I notice that you, a Harvard law grad and a law prof, won't take me on with respect to these issues--even though I am just a dumb transactional lawyer.) Personally, I think think a commitment to individual freedom demands that law profs and the bar ruthlessly criticize judges who screw up as badly as Williams, Stevens and the "wise [sic] Latina." But we don't see that because, as a rule, you guys generally like judges having so much power and it's bad form to criticize our robed friends.

I am going on vacation, so I won't respond to this for a while.

Posted by: federalist | Aug 3, 2015 9:18:36 AM

Enjoy your vacation, federalist, and bask in the shine of your arrogance and peculiar pot shots. So much of your rant here reinforces the key reality that you seem strangely eager to deny --- namely that tough-on-crime folks like you prioritize often emphasize values like "public safety" and "justice" and "risk allocation" over individual freedom. That is a totally valid moral position. I careful analysis of your rant reveals that values other than individual freedom are predominant in your tough approach. I am not trying to "paint" you or others as anti-freedom, but I am trying to highlight that for the tough crowd other values --- legitimate values, but distinct values, like "public safety" and "justice" and "risk allocation" --- are often given priority over individual freedom.

On Plata, you keep butchering the applicable legal standard, the case facts and the public safety data, and so it is hard to "take on" your claims in a serious or systematic way. (Most fundamentally, Congress did not say "that public safety couldn't be harmed," it said a court must give “substantial weight to any adverse impact on public safety." This phasing makes plain Congress envisioned a prisoner release order thiat, in some cases, could and would have an "adverse impact on public safety.")

Your Plata failings may partially be the curse of this fora, but it often seem you have some peculiar interest in "scoring" rather than have a sober discussion about Plata or other topics. Not sure what is the source of your insecurity here, but it makes it extra difficult engaging in a useful discourse with you. (And, for the record, here is why I continue to have a hard time understanding your persistent anti-Plata mania: according to the latest official data in CA, "violent crime fell to its lowest rate since 1967." www.wsj.com/articles/violent-crime-in-california-falls-to-lowest-rate-since-1967-1412360177)

Speaking of mania, your enduring complaints about comments made by Prez Obama concerning a decade-old case and a five-year-old comment by Justice Sotomayor leads me to worry about engaging with you on any racially-tinged crime and punishment issues. I think far too many, on both the left and right, obsess far too much about race in ways that distract from and distort other criminal justice concerns. And you seem especially eager, for reason I do not at all understand, to inject race into conversations that I am eager to keep away from a topic that often generates far more heat than light.

As always, I appreciate your engagement. But your tone and style is off-putting and reflects quite poorly on your otherwise interesting perspectives.

Posted by: Doug B. | Aug 3, 2015 2:15:35 PM

The poimt about Plata that i made and thst yiu cannot address---the idea that releasimg criminals would help public safety is simply preposterous. It fails on its own terms. And i was mentioning all of this because i am questioning your bona fides on public safety. You like Plata because it released criminals----you dont care that the three-judge panel didnt give credit (so to speak) to changes california had made after the litigation. Or that there is a serious flaw im its reasonng----which yet again you do not dispute, In response you try to gig me for a shorthand rendition of PLRA when that was pretty much besides the point. Whatever.

As fior the commitment to freedom---your arguments are baffling. I understand the whole incarceration nation stuff---but the bottom line is that public safety is one of the first priorities of government is to protect people, and i will note that one of the bitterest complaints about apartheid was the lack of justice for violent criminals. And you yourself conceded that examples such as komisarjevsky shoukd inform sentencing policy. By the by--- how much individual freedom do mrs. Petit and her daughters have? That would be none.

As for your comments about california's crime rate dropping----so what? The issue is whether the releasees committed crimes or not---not whether crimes for the whole state dropped.

Finally, i note the dodge on obama---i ,ight agree with you if obama's jena six comments were a one-off. But it is not, you know it and i know it. You profess to think that race shoukdnt be so much of a focus. But thats clearly not obama's worldview, So why criticize me for criticizing obama on this point? I suspect the answer is that your place in the academy wont allow you to say that obama's jena six comments are appalling, and you cant defend them---so you cast aspersions on me. Whatever

Posted by: Federalist | Aug 8, 2015 9:20:18 PM

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