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September 8, 2015

Highlighting headwinds for federal sentencing reform in coming critical period

Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'."  The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress.  Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.

Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing.  Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.

Some prior related posts:

September 8, 2015 at 09:11 AM | Permalink


We know that criminality is a chronic condition like diabetes or arthritis. It can be managed, never cured with today's technology. By the way, crime is down, but still outrageously high. Thank the lawyer profession for its perpetual failure.

Now imagine, Prof. Berman being a doctor. My blood sugar was very high, and I was in a diabetic coma. You treat it, and get me out of it. During follow up visits, my blood sugars are not normal but decent. You say. stop the insulin. What do you think of that idea? That is what Bill is arguing. You may say, post hoc ergo propter hoc fallacy. There is lead levels, aging, marijuana, video addiction, obesity, the soaring value of welfare payments. You will never say, bastardy is up, but I will. Those are environmental factors. Diabetes has environmental factors, diet, exercise, a fever, alcohol, other medications. All have tremendous impact on diabetes, and insulin is merely one factor among many that affect blood sugar control. But would you stop the most powerful of all, the established treatment?

Incapacitation is the insulin of crime prevention. It also pays off big time with a bonus, a lower fecundity of super-predators making children with crack whores. You are not only preventing the 200 felonies on the outside of prison every year of incarceration, but you are preventing the 200 felonies of the child the felon did not have this year. If he stays 10 years, there are his 2000 felonies, plus the 200 felonies each of his 10 children not born, that's 2200 future felonies a year prevented. If you price each conservatively at $10,000 in harm, the savings on the $500,000 invested in his incarceration amounts to $22,000,000. Over 10 years, spend $500,000, make $22 million not taken from the economy, with 100% guarantee, no risk. Find me another guaranteed investment with return on investment like that.

If the prisoner is innocent, he should be compensated in torts. We must end all self dealt lawyer immunities, including those of the judge, the jury, and especially of the prosecutor. Bill and I disagree on that. He says we immunize government to carry out our objectives. I say, fine, carry out our objectives, and never get sued. But when deviating from standards of due care and causing harm, pay for your carelessness.

Posted by: Supremacy Claus | Sep 8, 2015 12:36:54 PM

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