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May 7, 2018

Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission

As reported in this prior post, Prez Trump back in early March announced these notable new nominations to the US Sentencing Commission.  As I have noted before, it is usually only hard-core sentencing nerds like me who pay much attention to USSC nominations.  But this slate of nominees, especially the nomination of Bill Otis, has led to more than the usual amount of focus on how Prez Trump is looking to put his stamp on the USSC.  I noted in this post back in March an array of critical commentary from media outlets like Mother Jones, Reason and Slate, and recently these two new commentaries have furthered this notable nominee chatter:

Here are some excerpts from the New Republic piece, with some notable quotes for and against the nominee:

The commission isn’t typically prone to partisan warfare. In fact, Congress created the seven-member body in 1984 precisely so it could avoid politicized battles when crafting federal sentencing guidelines. Otis’s nomination could upset that balance.

“He’s been the arch-nemesis of criminal-justice reform at the federal level for a decade at least,” Kevin Ring, the president of Families Against Mandatory Minimums (FAMM), told me. “He’s opposed basically every legislative reform, every reform the Sentencing Commission has passed, and just seems to enjoy that curmudgeonly position of saying no.”

FAMM, which advocates for sentencing reform through Congress and before the Sentencing Commission, has never endorsed or opposed a commission nominee before, preferring instead to work with those commissioners once they’re in office. But Otis’s nomination changed that. “He’s an ideologue in a position that is supposed to be driven by evidence and data,” Ring said....

If confirmed by the Senate, Otis would bring first-hand experience with the federal criminal-justice system under both Democratic and Republican presidents. Among the posts he held during three decades in the government are stints as a legal advisor to the Drug Enforcement Agency’s administrator, as a special counsel in the George W. Bush White House, and as a federal prosecutor in the eastern district of Virginia, where he led the office’s appellate division.

Otis’s nomination has raised alarm among pro-reform groups that see the commission as a key ally in reining in mass incarceration in America, and it’s at odds with the reformist zeitgeist that’s swept D.C. think tanks and advocacy groups on the left, right, and center. Organizations ranging from the American Civil Liberties Union to the Koch brothers’ political network have put muscle behind the effort to reduce over-incarceration in recent years. Lower crime rates also helped spur state and federal lawmakers to rethink harsh policies from a bygone era.

Not everyone is on board with the shift away from tough-on-crime politics, including Trump and Attorney General Jeff Sessions. But few are more vocal about it than Otis. “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,’” he wrote in 2014.

Otis declined to comment for this article, citing standard practices for pending judicial-branch nominees. Those who’ve worked with him say his appointment would bring a much-needed alternative perspective to the Sentencing Commission’s work. Kent Scheidegger, a California-based attorney and legal director of the Criminal Justice Legal Foundation, told me that he thinks it’s important to avoid a “uniformity of viewpoint” on the commission.

“[Otis] has a view that the rush to lessen sentences, particularly for serious crimes, is a mistake, that it’s going too far too fast, and that people who have the contrary view necessarily are opposed to that,” he said. Scheidegger shares that skepticism of reformers’ efforts, telling me, “I think they’re largely forgetting history and condemning us to repeat it.”

The two men are regular contributors to Crime and Consequences, a blog that discusses criminal-justice issues from a conservative perspective. Otis’s posts there offer brief but illuminating glimpses into how he approaches the subject. His central theme is straightforward and often bluntly expressed: that tough-on-crime policies helped bring down crime over the past 25 years, and scaling them back will cause crime to surge upwards once more....

Otis occasionally takes aim at perceived elites whom he casts as insulated from the consequences of their policy decisions. “When early release goes wrong, as it so often does, who pays the price?” he wrote in 2016. “The sentencing reform crowd at their posh, self-congratulatory, ‘we-are-so-humane’ parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?”

But Otis’s views are also out of sync with a growing number of conservatives. Republican leaders in red states like Georgia and Texas have adopted measures aimed at reducing recidivism and lowering excessive prison populations. “Someone who doesn’t adapt to new ways of thinking that have actually proven to be a lot more effective than simply warehousing people for years on end — someone who can’t accept that reality — doesn’t really need to be on the Sentencing Commission,” Jason Pye, the vice president for legislative affairs at FreedomWorks, told me.

Scheidegger said the debate over Otis’s positions would be a net positive for the commission. “I think it’s a good nomination, and I think it’s important to keep it in the context of the whole panel, including representation on the other side of the aisle as well,” he told me. “That’s an important aspect of the nomination. Diversity of viewpoint on this subject is a good thing.”

Trump’s nominees to the commission are still awaiting Senate confirmation.  The other three are William Pryor, a Sixth Circuit Court of Appeals judge, as well as Third Circuit judge Luis Restrepo and federal district-court judge Henry Hudson.  Reform advocates told me they also had concerns about Hudson, who once went by the sobriquet “Hang ’em High Harry” as a prosecutor in the 1980s, but acknowledged he has plenty of practical experience as a sentencing jurist.

But Otis is still a bridge too far, they told me, even though many of them said they like him personally. “Part of the commission’s job is to take some of the politics away from the politicians,” Ring said. “You want sentencing to be driven by this commission as some insulation from Congress. And that’s the worst place for an ideologue from either side.”

Prior related posts:

May 7, 2018 at 10:00 AM | Permalink


Bill's offense? Advocacy for crime victims. So, he must be personally attacked. That is the left. The facts abandoned it 100 years. So, all they have is personal attack to protect the rent from big government. There is a false propaganda campaign that crime rates are dropping. Instead, billions of new crimes are taking place on the internet, including federal crimes.

Posted by: David Behar | May 7, 2018 10:46:17 AM

Kent Scheidegger, who I gather is in his corner, will be on C-SPAN tonight:


Posted by: Joe | May 7, 2018 1:07:17 PM

[reads] Well, there you go.

Posted by: Joe | May 7, 2018 1:09:31 PM

Mr. Otis still has not grasped that correlation is not causation. The drop in crime happened during the war on drugs not because of but in spite of harsh sentences that destroyed lives and communities. The consensus of the research shows that longer sentences don't have increased deterrent effects and are counter-productive. Recidivsm rates for those released early after drug guideline amendments are no higher and in some case are shorter than those for folks who served their entire drug sentence. But keep on keeping on, Mr. Otis. You and your buddy the Attorney General will be judged by history.

Posted by: defendergirl | May 7, 2018 1:43:17 PM

And I see our trial period is over and Mr. Behar has joined us once again. Professor Berman, will you be posting data on comment rate/quality before and during his hiatus?

Posted by: defendergirl | May 7, 2018 1:44:45 PM

Defendergirl. In my absence, one person turned in a cogent and detailed analysis of some sentencing matter. The rest was the same in quantity and quality.

Prof. Berman pointed out the improvement in the quality of the life of the Comments from less conflict with me. That is because no one was challenging his denial of the explosive increase in the crime rate. You and he truly believe crime is decreasing. Denial is worse than lying. In lying, there is more awareness.

Posted by: David Behar | May 7, 2018 2:17:34 PM

Defendergirl, David shows his faulty empirical skills with his response. Roughly speaking, there were about 400 comments during the 30 days before David agreed to take a break, and roughly 400 comments in the 29 days he was gone. But about 180 of the comments in the prior month were David's, so we saw a roughly 80% spike in the quantity of comments. And I think the quality was better, too, in part because there were no need for other commentators to encourage David to be more civil.

Long story short, if David was truly an honest man, he would admit that the comment section is more robust and less hostile in his absence. And especially because so many are understandably troubled by his return, I am contemplating asking him to leave again soon.

Posted by: Doug B. | May 7, 2018 3:49:06 PM

Professor Berman: Thanks for the data. While I would prefer encouragement of civil debate over banishment, the fact that comments went up in Mr. Behar's absence indicates to me that folks are tuning back in instead of avoiding the comments due to the tone and insults. Hopefully Mr. Behar, you will be inspired to make meaningful contributions to the discussion here.

Posted by: defendergirl | May 7, 2018 4:08:26 PM


Any chance of a letter from law professors opposing Mr. Otis? He strikes me as an ideologue who willfully disregards empirics and takes a no-nothing reflexive opposition to any efforts at sentencing reform. He has made statements in the past that, if not actually racist, are at best insensitive. He seems to have no interest at all in addressing over-incarceration and almost seems to enjoy perpetuating our system of unneccessarily long prison terms. Is someone like this really a good choice for the Commission? I bet there would be several Republicans willing to oppose. In my field — antitrust — academics have had a lot of success in moving policy towards more rationale outcomes. It would be great to see more of that in criminal law. There is a near consensus among learned commentators tgat we over-incarcerate, but it seems very hard to translate that learning to legislation. It may be that it is easier to translate informed views into policy in fields with a common law tradition. I note that European countries have much bettr outcomes with criminal justice by ensuring policy is somewhat insulated from politics (ie, insuring the uninformed arent able to distort outcomes). Thanks.

Posted by: Mark | May 7, 2018 4:13:09 PM

Interesting idea, Mark. There is certainly going to be some organized opposition to Bill, but I am not sure what form it will take.

Posted by: Doug B. | May 7, 2018 4:42:05 PM

Prof. Berman. It would be expected that David Duke would ask a Jew to not Comment on his blog.

This post below is evidenced based. And, he is not even part of a religiously based cult, with its indoctrination, enforcement, and massive organized crime activity, taking in a $trillion a year.


Posted by: David Behar | May 7, 2018 6:50:33 PM

If you stay on topic and avoid repetitive and tiresome rants, David, I will not ask you to leave.

Posted by: Doug B. | May 7, 2018 8:46:48 PM


Mr Behar has nothing meaningful to contribute, so he can’t
Provide meaningful contributions


Posted by: Bruce Cunningham | May 7, 2018 8:48:59 PM

“[Otis] has a view that the rush to lessen sentences, particularly for serious crimes, is a mistake, that it’s going too far too fast..."

I'm not sure what lessening of serious sentences he means. The 100:1 crack:cocaine disparity was reduced a long time ago but there was no "rush". The Sentencing Commission started recommending the reduction in 1995 and it didn't become 18:1 until 2010. Eight year later, no other reform of sentencing for "serious" crime. No rush going on, and everyone else is frustrated with the lack of progress.

Posted by: Paul | May 7, 2018 8:52:00 PM

My first post to this site was a few yrs ago, went like this.

Ausa Ashcroft memorandom stated to prosecute to the highest level charge and ensure guideline sentences. Bill Otis response was, what are they supposed to do, loose.

This was in 2006 roughly. Bill is smart and e cellent at research and above all, loves to argue. Hes good at it, with his background and knowledge, unfortunely he will carry influence.

Tough sledding for any meaningful mandatories getting rolled back by with Trump, sessions and Bill feeding a weak and uninformed Congress.

Ussc for sure wont be making any drugs -2 related reductions in upcoming yrs.

Thats my story and Im sticking to it.

Main ofoblem with federal guidelines us they are made general purpose yes, but what happens in Philly, Chicago, La, Kansas City, Detroit diesnt apply to the smallville, USA.

Thats why the feds need to be reserved for Cartels and multi state rings and inner city gangs..

Speaking of gangs, the Feds suck at getting a handle at the shootings in Chicago. Also their section 8 housing is a flop, supposed to be filtering criminals. Our town is now infested with Chicago hoods and the Naacp prohibits any rent changes to minimize these sloths from migrating. Need to take a bulldozer and cleanup the Feds.

Also the mandatories are supposed to be used to squeeze collaboration out if cartel members, but Re ysed for garden variety drug addicts. Pretty sad when the USA goes after someone in this poor condition. I see them wNdering locally, torn jeans, lived in old wrecks of a car. Oh well...Whats one to do.

Posted by: MidWestGuy | May 7, 2018 10:28:33 PM

Paul, I think Bill would also stresses the USSC drug -2 reform as a significant reduction of sentences for a lot of current and future drug dealers (whom Bill likely considers "serious" because they are brought into the federal system). He might also lament the fall out from the Johnson ruling which functionally reduced sentence for a sub-group of gun offenders with some criminal history.

Posted by: Doug B | May 8, 2018 10:36:36 AM

Prof. Berman. The word rant is an ad hominem insult. It is a sign of frustration, often with the facts.

The word, "all" in Article I Section 1 voids judicial review and all executive branch regulation. If you want those, amend the constitution.

There is no drop in crime. It modernized, and is intentionally not being counted.

Sentencing and prison reform are Soros attacks to hurt our country. Soros is worse than Castro who emptied his prisons and asylums, dumping the criminal, the insane, and the criminally insane onto the US in the Marielito Boat Lift. The Soros promoted decarceration of 3% immediately resulted in a surge of murder in a dozen cities.

Posted by: David Behar | May 8, 2018 12:11:07 PM

Rant = "to speak at length in a wild, impassioned way." Your last 7 sentences in your last comment is a wild and impassioned (and foolish) speech about the constitution, crime and Soros, no part of which is really germane to what others are discussing. I am now asking you to leave again, but I encourage you to create a running commentary on another webpage. I will then welcome you to come back, periodically... say once a week, to provide links to your comments elsewhere.

Posted by: Doug B. | May 8, 2018 1:18:41 PM

Getting rid of me will not change the facts, which you are trying to deny.

Posted by: David Behar | May 8, 2018 2:18:11 PM

But getting rid of Behar will vastly improve the discourse on this blog.

Posted by: bruce cunningham | May 8, 2018 2:35:05 PM

I wonder if Behar is a man of his word. I distinctly remember when he said that if Doug asked him to leave the blog, he would do so.


Posted by: bruce cunningham | May 8, 2018 2:40:38 PM

I am not trying to change facts, David, I am trying to reduce noxious comments that add little of substantive value and deter others from participating in the comment space. As Bruce notes, you have previous indicated you would leave when asked. I am asking you again to leave because it seems my efforts to encourage your to reduce the number and incivility of comments have proven unsuccessful.

Posted by: Doug B. | May 8, 2018 3:45:37 PM

Thank you Doug! Trolls (especially David) who don't seem to have any relevant professional experience or expertise, have been the worst part of this blog for a long time. If I want rants about Soros, I'll go to my local newspaper's comments section. I come here for the informed opinions of academics and practitioners with real knowledge of the criminal justice system.

Posted by: Anon AFPD | May 8, 2018 5:35:57 PM

Mark, where are your examples of Otis' racism or insensitivity.

I support the nomination.

Posted by: federalist | May 8, 2018 7:23:34 PM


“Mr. Nicey”. “Thugs.” Utter insensitivity to efforts to release prisoners who no longer need to be incarcerated, whi are disproportionally minorities. Belligerent rhetoric that has morr in common with the Orange Idiot than a reasoned commentator. Bill is well educated and should know better. How can you support such a compassionlee, reflively anti-reform, polemisicist? He is totally out of step with empirical work and academic consensus. Do you believe we just dont have enough folks in federal prison serving LWOP or decades. What say you?


Posted by: Mark | May 8, 2018 9:38:48 PM

Mark. Problem. the "empirical work and academic consensus" are not true. They are false propaganda by biased and by extreme selection. That is the same way the posts on the David Duke website are anti-Semitic. David Duke has more integrity not pretending to be a neutral professional. He is the head of the Klan, and is honest about this hatred. You lawyers are as anti-crime victim as duke is anti-Semitic. Duke does not have a Comment section. He will not allow rebuttal by dissenters from his hate filled views. Prof. Berman is well on his way to doing the same in my case.

Posted by: David Behar | May 8, 2018 11:04:25 PM

I promised to leave for 30 days. I did. There was no change in anything. The same left wing biased crap is being posted by you over and over. It is all false. It is all denial. You are denying your own eyes. The Inquisitors saw the horizon curve. They saw people return after disappearing over the horizon. They saw the shadow of the earth during a lunar eclipse was round. They still persecuted anyone dissenting from their flat earth views. You are as big a denier as they were.

Posted by: David Behar | May 8, 2018 11:10:23 PM

David, I have allowed you to rant in this space for years, and I have no plans to delete any of the 2000+ prior comments you have made in just the last few years under your actual name (or the many thousands you previously posted under other names). But we have all seen you make the same "dissenting" points, in uncivil and unproductive ways, soooooo many times; allowing you to keep repeating the same belligerent points in your distinctly noxious way does not advance the collective dialogue.

The problem, David, is not that you assert here that, to use your metaphor, the earth is round. The problem is that you are persistently attacking everyone existing on the earth, and doing so in ways that prevent anyone from wanting to engage with you or to even be around the comment space you occupy. Not only did the comments increase in your absence, David, but many favorably remarked about the improved atmosphere with you no longer making multiple comments that pollute the discourse.

Respectful and thoughtful dissent is always welcome in this space, but that is rarely what you provide. And that is why I am asking you again to leave because it seems my efforts to encourage you to reduce the number and incivility of comments have proven unsuccessful.

Posted by: Doug B | May 8, 2018 11:55:36 PM

Mark, calling people thugs and Mr. Nicey isn't racist, and insensitivity to the situations in which criminals find themselves is just your typical tough on crime approach.

Do I support all of Otis' positions--of course not--I have an anti-statist streak that is a mile wide. But I do think that violent criminals need to go away for a long time. And on that Mr Otis and I see eye to eye.

Posted by: federalist | May 9, 2018 7:14:49 AM

Mr. Behar, you have a short memory Several years ago, i suggested that you leave the blog. You declined, but said you would leave if Doug asked you to leave. He has now done that. Be a man of your word, and depart.

Bruce Cunningham

Posted by: bruce cunningham | May 9, 2018 8:18:39 AM

The article describes Mr. Otis's view "that tough-on-crime policies helped bring down crime over the past 25 years, and scaling them back will cause crime to surge upwards once more . . . " Is this notion truly so controversial? The idea that longer sentences deter criminals is certainly doubtful. But it seems almost self-evident that a prison sentence incapacitates an offender and prevents him or her from re-offending in the community, for as long as the sentence lasts. Incapacitation should always help reduce rates of certain crimes, if one accepts that some of the criminals in question would have continued to re-offend "but for" their incarceration.

Of course, incapacitation is not the only legitimate goal of sentencing, and probably shouldn't even be the main goal most of the time. Prison is expensive and does nothing by itself to rehabilitate most offenders. But none of those points detract from the fact that incarceration has a basic and sometimes-valuable effect: it removes criminals from communities. Depending on the crime, that might be the most important function that the sentence can serve. With that in mind, the view ascribed to Mr. Otis may have some value on the Sentencing Commission.

Posted by: Thomas | May 11, 2018 3:51:32 PM

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