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October 10, 2015

Via the National Review, an unintended parody of various arguments against modest federal sentencing reform

Tumblr_mr31fpWYLB1qzpxx1o1_500I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo.  Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.

I bring all this up as a prelude to spotlighting this notable new National Review commentary by Andrew McCarthy, headlined "Keep Minimum Sentencing, to Discourage Criminals." This lengthy piece, in my view, reads almost like a parody (unintentionally, I assume) of many arguments against federal sentencing reform that Bill and some other prosecutors make much more soundly in other settings. Here are some few passages from the piece that strike me as especially cringe-worthy:

Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties. For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply ... life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”

The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists. Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses ...[but a] judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.

Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion....

Even if many judges were not instinctively sympathetic to arguments in favor of harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.

It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row. So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.

It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.

Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.

Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.

Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.

If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”

I share the closing sentiment that a problem need to be accurately diagnosed to be solved. But there are so many problems in the arguments before that sentiment, I almost feel unable to unpack them all in the space. What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about "gut feeling," that it is problematic judges consider "every bounce of the due-process ball," and that sentencing would be better if more attentive to every "call for a harsh sentence from the peanut gallery." Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a "sociopath" that must be subject to severe punishment because surely they have committed "many more crimes than they are prosecuted for."

All these curious contentions aside, I find it especially remarkable how McCarthy concludes after saying nothing is wrong with the harsh mandatory drug and gun sentences created in recent decades by Congress and applied (inconsistently) by federal prosecutors. He says the "main" problem is other federal criminal laws created in recent decades by Congress and applied (inconsistently) by federal prosecutors which creates, so he claims, a "nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed." In other words, it seems, when it comes to imposing punishment for crimes, we should continue to distrust modern judges and trust old mandatory sentencing laws created by Congress in the 1980s, but when it comes to defining what is a crime, we should not trust Congress because somehow they enact criminal laws (but not "severe sentences") that are not really "a reflection of society’s values."

I trust I am not the only one who see how backward a lot of what is being said here. But apparently the folks at the National Review see reasonable logic or some kind of wisdom here that perhaps requires spending more time in the Beltway to understand. Or maybe I just need to go re-watch Breaking Bad, which NR has extolled, so I can better understand the "sociopaths" federal judges cannot be trusted to sentence properly because they have the wrong "gut feeling" while concerned with "every bounce of the due-process ball."

October 10, 2015 at 11:59 AM | Permalink


The Supremacy has repeatedly complained 1) criminals are each committing 200 felonies a year; 2) of the millions of felonies a year, only 1 in 10 gets prosecuted; 3) whatever injustices take place in the system, all together are totally dwarfed by the injustice of millions of criminal victimizations; 4) the criminal justice system's failure to protect and its failure to accurately punish reflects the inherent stupidity of the lawyer profession, from which all judges come, the profession is just stupid, so judges cannot be trusted with any responsibility, they are really stupid.

Beyond stupidity, the lawyer profession looks out only for itself. It will never allow the end of crime because of the resulting lawyer unemployment. That is the situation now, so lawyer unemployment totally explains and predicts this reform movement. I predict that none of the 6000 super-predators to be released by criminal lover Obama, a Harvard Law indoctrinated lawyer, will ever move back into any lawyer residential neighborhood. The overwhelming majority will return to devastate minority areas, and those of poor white people.

Then there is no legal recourse, because this profession has fully infiltrated and totally controls the three branches of government. Nor do I advocate a violent revolution, since every one in history has been catastrophic. That includes the American Revolution, which propaganda validates, when it was truly catastrophic. The remedy to this human caused mass catastrophe will have to come in a century when people wise up. Even if no lawyer were to be elected, lawyers on staff will tell the elected figurehead what to support and what to sign.

Posted by: Supremacy Claus | Oct 11, 2015 12:50:59 AM

To think about the article, the public should be aware of WHICH crimes result in mandatory sentencing. From my knowledge, these are drug crimes, and possession of a weapon crimes. What else?

If the public knows and agrees with what type of crimes produce these required minimum sentences (and they are crimes that would clearly be thought of as CRIMES)...there may be a place for them. For instance, it is generally public knowledge that things associated with illegal drugs may lead to problems with the law. Therefore, law abiding citizens would generally avoid illegal drugs.

Yes, it is unfortunate, and maybe tragic, that these laws led to some unjust "my hands are tied" sentences for some people that through addiction or other reasons allowed themselves to become involved with illegal drugs...for the naive, the young, the stupid, the less culpable, the desperate, the lowest person on the totem pole of a drug conspiracy who had no one they could offer up to the prosecutor to get the breaks on a plea deal...and who ends up with a horrible sentence because of mandatory minimums. Maybe THOSE people should get a Meaningful "safety valve" review AFTER the whole process has played out. That's what clemency was for, and perhaps parole too...looking at the whole person, and the whole situation after everything plays out...and say "you know, this harsh punishment, while applied by the law, should be mitigated...and here are the reasons." But for so long, and for so many people...no hope of this happening existed.

Overcriminalization is also a problem...but the "crimes" that fall under this category usually are not associatied with mandatory minimums...which is what the article Seems to be addressing. But if we also take the article as addressing overly harsh sentencing (that is ALLLOWED but not REQUIRED by the law)...then YES..we have a real problem with that in our country too.
On appeal, ANY sentence that falls within what "Congress has deemed reasonable" seems to get the approval of the appeals court.
As someone who went through a Federal Trial (and was acquitted of all charges) for essentially "buying a boat"...it was shocking to know that, had I been found guilty, the court COULD have imposed a twenty year sentence. Now, that's a problem!

Posted by: folly | Oct 11, 2015 8:26:26 AM

Folly. Things are far worse than you imagine. Your boat prosecution was the result of the rent seeking aims of a criminal cult enterprise, the lawyer profession. We pity Mexicans who have to hand a corrupt police officer a $twenty in a traffic stop. In our case, the three branches of government have been fully infiltrated and are in the total control of a criminal cult enterprise that extracts $trillion a year, and returns nothing of value. It actually acts as an anchor to prevent growth, safety, and peaceful existence in our nation.

Posted by: Supremacy Claus | Oct 11, 2015 2:21:11 PM

I've had to take my post conviction case to the Supreme Court for relief. (just because you are acquitted of all charges doesn't mean you get your property back, including the same boat I was accused of criminal conduct for buying! The courts held that my ACQUITTAL is proof I don't own the self same boat I was indicted for buying! I am not making this up) Here's hoping I'll get some traction. I have now been spent seven years entangled with the Federal Government.

Posted by: folly | Oct 12, 2015 11:31:49 AM

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