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May 6, 2016

Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences

Kirsanow,PA helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts.  I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below.  These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:

I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.

Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.

During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance.  One also would have thought that ex-offenders were essentially indistinguishable from non-offenders.  Further research revealed this to be far from the truth....

The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely.  Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended.  Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....

We can rest assured, then, that a substantial number of released prisoners will re-offend.  Who are their victims likely to be?   It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men.  Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well.  Those African-American men will then return to their communities, which are more likely to be predominantly African-American.  It is therefore likely that the victims of those released early will also be disproportionately likely to be black.  This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group.  White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black.  If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated.  But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....

There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime.  If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.

Download Letter re Sentencing Reform Act May 5 2016

May 6, 2016 at 02:49 PM | Permalink


The reason why most people re-offend: the causes or reasons for their offending are never "cured" or addressed through incarceration. Add to that labelling theory -- society is callous, the federal government has no expungement process and the stain is permanent -- and its a vicious cycle. Incarceration never "stamps out" crime, it just removes crime from the general population into small little prison cells, out of sight and out of mind. Drugs are available in prison. Fraud, sex and murder are committed in prison. There are "victims" in prison too.

Jobs -- you expect convicts to be released, denied jobs, discriminated against and not to re-offend? Of course, its all the convicts' fault. Sure, anything else you want to add?

Sentencing reform is not about disparate impact alone, although this letter seems to be motivated on it to the exclusion of anything else. Sentencing reform is necessary because for offenders its become a vicious cycle and for society too costly of a cycle to bankroll. A single offense mars a person for life and more often than not leads to dizzying periods of incarceration with little to no focus on rehabilitation or reintegration into society leading to, you guessed it, re-offending, which costs tax payers money! There is anecdotal and empirical evidence from several red and blue states and even other countries to support the argument that a criminal justice system that focus on restorative justice and integration rather than retribution or predictive analytics of recidivism fares a lot better in the long run.

Posted by: Marc B. | May 6, 2016 2:58:58 PM

Well said. Most are getting out eventually anyway. Complete straw man.

Posted by: Fat Bastard | May 6, 2016 3:51:39 PM

He fails to address the studies of those people released "early" due to the crack guideline change. Their recidivism rate was no higher than that of other folks released "on time."

Posted by: defendergirl | May 6, 2016 4:06:42 PM

"But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black...."

This point would have greater salience if it weren't the case that white cops are gunning down black youth almost every day. It's hardly a point in favor of incarceration that it spares black men from the black thug when it just sets them up to be shot by the white officer.

Posted by: Daniel | May 6, 2016 4:31:28 PM

Look around a little. This guy is just another closed-minded, old, right-wing hack-nutter. This coming from an open-minded, middle-aged, right-wing non-hack, non-nutter.

Posted by: Fat Bastard | May 6, 2016 9:07:00 PM

with his bald head and river boat gambler mustache, he looks streo type and fixed minded. very uncreative thinking and should just be ignored.

Posted by: MidWestGuy | May 7, 2016 4:24:06 PM

I won't hold the bald against him, but the waxed mustache and Russian surname are bizarre on a black man.

Posted by: Fat Bastard | May 7, 2016 7:54:21 PM

I find it hard to take anyone with mustache like that seriously unless they're in a barbershop quartet. At least get rid of the waxed ends, this is 2016 not 1916.

Posted by: Ed | May 9, 2016 4:36:40 PM

One of the most amusing parts of this to me is that the source for his statement "even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person...." is none other than himself, in at the very least a mischaracterization of Blumstein's findings.

Posted by: Dilynn Roettker | Jun 28, 2016 3:28:20 PM

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