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July 22, 2018

More old-school, tough-on-crime talk and thinking from Attorney General Jeff Sessions

Attorney General Jeff Sessions delivered these remarks today at the 2018 Summer Conference for the Prosecuting Attorneys' Council of Georgia.  Much of what he said will sound familiar to those who have followed his public speeches, but today I was really struck by a certain logical disconnect in some of his standard rhetoric.  Here are excerpts, with bold added to highlight key passages for follow-up comments:

From the early 1990s until 2014, the crime rate steadily came down across the country.  But from 2014 to 2016, the trends reversed.  The violent crime rate went up by nearly seven percent. Robberies went up. Assaults went up nearly 10 percent.  Rape went up by nearly 11 percent. Murder shot up by more than 20 percent!...

We’ve got to get back on track. We must take these recent developments seriously and consider carefully what can be done about them.  Yielding to these trends is not an option for America and certainly not to us in law enforcement.  We have clear goals. From day one — I plainly stated our goal at DOJ — reduce crime, reduce homicides, reduce prescriptions, and reduce overdose deaths!...

We’ve got to be smart and fair about who we put behind bars and for how long.  This is not mindless “mass incarceration”.  But prison does play a role.  Two months ago, the Department of Justice’s Bureau of Justice Statistics released a report on the recidivism rate of inmates released from state prisons in 30 states.

This is the longest-term study that BJS has ever done on recidivism and perhaps the largest. It was designed and started by the previous administration.  The results are clear and very important — historic importance. The reality is confirms what experienced professionals like yourselves have seen.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.

The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years.  Almost half were arrested within a year — one year – of being released. The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.

Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place.  It will not surprise you that this is often true for drug offenders. Many have thought that most drug offenders are young experimenters or persons who just made a mistake.  But the study shows a deeper concern.

Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also. Importantly, nearly half of those arrests were for a violent crime.  Sometimes arrests lead to treatment, drug courts — often the problem is more serious.

Recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime. We’ve been studying this and working on this for 40 years.

As any prosecutor in this room can tell you, when a criminal knows with certainty that he is facing real time, he is a lot more willing to confess and cooperate with prosecutors. On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance.

Our goal as prosecutors is not to fill up the courts or fill up the prisons.  Our goal is not to manage crime or merely to punish crime.  Our goal is to reduce crime in America....

Law enforcement is crime prevention.  When we enforce our laws, we prevent new crimes from happening.  As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact.  With every conviction we secure, we make our communities safer.

A blog post is an imperfect forum to work through all the particulars of AG Sessions' speech.  But his extended discussion of the BJS recidivism data (which concerns only state prisoners) suggests that modern prisons — at least in the late 1990s and early 2000s — functionally operated to make a lot of criminals worse, which in turn suggests that sending more people to prison would be a recipe for making ever more aggravated criminals.  Of course, this is what "professionals" generally know: time in prison tends to be criminogenic.  As Professor Mark Kleiman puts it, brute force often fails and we ought to seek to (and likely can) achieve less crime with less punishment.  

Put another way, the BJS recidivism data suggest we were doing something quite wrong with our prison policies even as crime was dropping from the early 1990s until 2014.  And yet the tenor of this speech, and what seems to be AG Sessions' general disaffinity for any federal criminal justice reforms, suggest AG Sessions is ever eager to embrace and champion all the policies and practices that contributed to modern mass incarceration despite evidence that those "old-school" policies and practices produce startling recidivism rates.

The significant crime spike that preceded AG Sessions coming in to office will seemingly always serves as a foundation and justification for him to promote and justify ever more federal prosecutors bringing ever more federal prosecutions.  But, as the title of this post hints, his old-school talk and thinking is tired and tiring, and likely disserves his presumably genuine commitment "to reduce crime in America."

July 22, 2018 at 08:10 PM | Permalink


Sessions needs to begin punishing local governments. I do not mean withhold federal funding. I mean arrest mayors and chiefs of police for conspiracy. They refuse to arrest criminals.


Posted by: David Behar | Jul 22, 2018 9:35:57 PM

Welcome to the lawyer Twilight Zone world of Prof. Berman and of all pro-criminal lawyer, far left ideologues.

End state mandatory sentencing guidelines. These were enacted because criminal coddling, pro-criminal lawyer judges caused a massive crime wave. Crime starts to decrease because of these mandatory guidelines, no matter what the far left academic lawyers say.

Drop the length of sentencing, again by criminal coddling, pro-criminal lawyer judges. Release the prisoners. Crime goes up. The reason? Prison made them worse. So release more. Are you crazy, stupid, or evil?

Posted by: David Behar | Jul 22, 2018 11:13:46 PM

David Behar - free speech is all very well - but these idiotic rants devalue the worth of this blog big time. There is no point in a comment option, which is supposed to encourage intelligent debate, when the first things we invariably read are two posts such as you have just made.

Posted by: peter | Jul 23, 2018 3:50:52 AM

Jeff Sessions is the man.

Posted by: federalist | Jul 23, 2018 7:32:14 AM

"Put another way, the BJS recidivism data suggest we were doing something quite wrong with our prison policies even as crime was dropping from the early 1990s until 2014."

So crime was falling yet "we" were doing something wrong?

If you look at the international studies on recidivism, what they show is that a small percentage of the population is responsible for most of the crime.


Posted by: justme123 | Jul 23, 2018 8:33:09 AM

Peter. You are not a lawyer. You do not understand their rent seeking scam to increase lawyer employment. The 40% drop in crime from mandatory sentencing guidelines caused lawyer unemployment. Eventually, such unemployment would necessitate the closing of law schools. Berman knows exactly what he is doing by advocating the loosing of vicious super-predators on minority communities.

Posted by: David Behar | Jul 23, 2018 9:25:36 AM

Peter. The debate will be settled by the Chinese. The overwhelming majority of opioid overdose deaths are among addicts, using Chinse made carfentanyl. Each death will prevent their yearly 200 crimes, and lower their fecundity rate. Crime will soon come close to disappearing or reaching Swiss or Japanese levels.

The lawyer profession is going to succeed to nearly eradicate crime, by emptying the prisons. One of the outcomes that these far left, pro-criminals are not addressing is the death rate outside of prison. This is unbelievable, but half are murdered. The other half will now pass away from overdoses.

The lethal overdose of carfentanyl is 20 mcg. A microgram is a millionth of a gram. There are 30 grams in an ounce. A kilo of carfentanyl costs $3000 delivered by Federal express from China.

Here is a fentanyl site with customer satisfaction ratings, like your local restaurant reviews.


You pro-criminal far left wackos are going to get all the criminals killed by your stupid advocacy of emptying the prisons. That is when lawyer employment will get really serious.

Posted by: David Behar | Jul 23, 2018 9:45:47 AM

The German maker of fentanyl is getting 4 stars from customers. The idiots running the states' death penalties should take note.

Posted by: David Behar | Jul 23, 2018 9:52:02 AM

David, do you have any support for this new claim that the "40% drop in crime from mandatory sentencing guidelines caused lawyer unemployment"? First, what mandatory sentencing guidelines are you discussing and where is evidence that that they cause a 40% drop in crime? Second, where is evidence that a crime drop caused lawyer unemployment? A relatively small percentage of all lawyers work in criminal justice, and many who do are not significantly impacted by variations in crime rates.

justme123: if prisons are making offenders worse criminals by increasing their likelihood and severity of recidivism, I think "we" are doing something wrong (assuming we hope and expect that prisons will not make offenders worse). The data stressed by AG Sessions is suggestive of the notion that our prisons are making people worse. Perhaps you think that declining crime rates suggests prison still produces a net benefit, but even that view does not undermine the notion that we could and should be trying to make prison more rehabilitative and less criminogenic.

Posted by: Doug B | Jul 23, 2018 1:02:22 PM

There should be a provision added stating that "tough-on-crime" does not apply when oneself or partisan allies are the subject of a law enforcement investigation. In that case, law enforcement is biased and engaged in a witch hunt. But if the investigation involves someone not oneself or partisan allies, then roo-ha law enforcement and throw the book at them!

This kind of gets absurd though as everyone who is "tough-on-crime" cries foul when they themselves are the subject of a criminal investigation.

Posted by: anonuser879 | Jul 23, 2018 1:14:46 PM

Prof. Berman. I agree a number like the crime rate has multiple factors. However, the coincidence between the passage of 5 years after mandatory guidelines were adopted at the federal and at the state levels, and the beginning of the drops in common law crimes is overwhelming. Then the 3% decarceration rate resulting in a huge wave of crime in our biggest cities, cannot be ignored. The basic logic that people in prison commit fewer crimes outside of prison also cannot be denied.

I am also the one arguing that crime has not decreased, but it has modernized to the internet. Crazy and self defeating to rob a bank, when one can score far more from a single identity theft.

As to lawyer jobs, this 2012 estimate was prior to the full effect of Booker, and prior to the Fergusoning of police departments. Close to half of law grads were not going to find jobs requiring a law degree. Now prospects have improved for lawyer employment.


Posted by: David Behar | Jul 23, 2018 3:58:48 PM

David, the link you cite rightly notes how "outsourcing and computer automation" has had an impact on the market for lawyers, and these forces were enhanced by a lean economy through the crash and slow recovery in 2008 to 2012. But as crime was dropping from 1991 through 2008, there is little evidence that it impacted lawyer populations: https://www.americanbar.org/content/dam/aba/administrative/market_research/Total_National_Lawyer_Population_1878-2018.authcheckdam.pdf

More generally, what the heck is the "full effect of Booker" and how were we still awaiting it 7 years after Booker was decided? More to the key point, the federal system processes way less than 5% of all significant criminal cases (and less than 1% of what you call "common law crimes"), so it is especially hard to see how federal sentencing changes are alone likely to have a major impact on national crime rates, let alone on lawyer employment.

This is why your rants are so tiresome --- they hit the same themes over and over again, without real facts or real thought, and they are often contradictory. E.g., if increased crime is good for lawyers, why aren't all the lawyers praising your efforts to argue crime is really increasing? And if crime is moving on-line, it is no longer "basic logic that people in prison commit fewer crimes outside of prison" if they can get on-line. And so on.

No long ago, you seemed to want to try to provide a link/evidence to support a point you make. I hope you will try that again so as keep the ranting limited. Or better yet, go back to ranting on your own blog and then just provide a link here.

Posted by: Doug B. | Jul 23, 2018 4:39:16 PM

Prof. Berman. Spin and ad hominem insults. You are a denier. A denier does not argue in good faith. A denier has an agenda, and yours is lawyer rent seeking.

States adopted mandatory guidelines for common law crimes. Cunningham struck these down in 2007. It takes 5 years for lawmaking by the Supreme Court to percolate to the street. After the worst of the economy was over, but 5 years after Cunningham, crime began to rise again.

AI and artificial intelligence have greatly improved and spread. Yet, lawyer employment prospects have improved again.

Why lawyers are not counting 30 million identity thefts and billions of federal violations in social media, is best explained by lawyer stupidity. Or, it may be because internet crime is not being prosecuted, and is not generating your stupid lawyer jobs. Have you heard anyone else, besides me, in any legal circle, point to the explosion of internet crime? No. It is nearly immune from prosecution, and of no interest to the rent seeking lawyer profession.

Posted by: David Behar | Jul 23, 2018 5:11:03 PM

David, crime hit record lows in 2014 (nationwide and in CA) seven years after Cunningham. And there still are mandatory sentencing laws in states, Apprendi and Blakely and Cunningham just require a particular proof process for their application. Your can have your own distorted opinions, but let’s try to keep facts clear.

And, as a matter of fact, lawyers talk all the time about cyber crimes and there are law school classes on the topic. And if you look at explosion of child porn prosecutions in last 20 years, it should be obvious all sorts of lawyers are aware of these crimes (and are employed prosecuting/defending those accused). But that is not why lawyer employment has improved —- rather, an improved economy means more money for civil litigants to seek the “luxury good” of a lawyer. The legal market generally moves up and down with the economy (with a few years of lag), not with the crime rate.

As usual, you anti-lawyer bias makes it hard for you to see what should be clear. I will not try to convince you to give up your bias against lawyers, but I will keep encouraging you to get your facts straight.

Posted by: Doug B. | Jul 23, 2018 8:23:14 PM

The rate of common law crime cannot be counted by arrest rates. Those reports are pure Democratic Party propaganda. The idea that NYC has low crime is ridiculous. You can walk around for half an hour and count multiple crimes. Then, the gold standard of crime measurement, the household survey of victimization had its methodology "upgraded" by Obama operatives to cover up the rate of black criminality, a Democratic Party constituency. So there was no real measurement of common law crimes. The murder rate is harder to hide than other crimes. That one began to rise with the smallest decarceration.

Downloading child porn may not even be a real crime, but a First Amendment activity. In historic, natural experiments, on-off, on-off, it has also been associated with a drop in the sexual abuse of real children. That is the same effect was seen in the 1960's when adult porn was legalized. The number of rapes of real adult women also decreased.

I am speaking of identity thefts. Those are in the millions, and nearly immune, thanks to the incompetence or collusion of the lawyer profession. The lawyer profession is doing nothing about it.

Then there are billions of fraudulent appropriations of real people's profiles to bulk up the viewership of social media. These false followers result in higher advertiser fees. These should be measured, and social media should be refunding advertisers for fees based on their fraudulent, inflated viewerships. Is any law school course addressing this $trillion scam? I have argued for the civil forfeitures of all these social media companies, auctioning them like the Ferrari of a drug dealer. Arrest their owners, and throw away the keys.

Crime is rampant, both common law and modern internet crime.

Posted by: David Behar | Jul 23, 2018 9:09:29 PM

The arrests in Baltimore used to be 100,000. After the Fergusoning of Baltimore by Rod Rosenstein, and the election of that Black female mayor, the arrests have dropped to 25,000. Has crime in Baltimore dropped by 75% since it was Fergusoned by Rod Rosenstein?

You should stop saying crime is less frequent. At best, the crime rate is unknown. It is more likely being covered up by Democratic Party politicians.

Posted by: David Behar | Jul 23, 2018 9:19:59 PM

David, you started this messy discourse with your assertion that a "40% drop in crime from mandatory sentencing guidelines caused lawyer unemployment." I foolishly sought some sensible accounting of this suspect claim, and now you say I "should stop saying crime is less frequent."

Your rants are annoying enough when not internally contradictory, but this thread highlights how eager to you are repeat silly tropes against lawyers and Dems without regard to any logic or sensibility. And this is why your rantings are so disconcerting to everyone here (and surely elsewhere): it is impossible and ultimately pointless to try to engage with you rationally. Rationality calls for ignoring you, and before long I am going to be inclined to conclude that rationality calls for deleting your comments.

Posted by: Doug B | Jul 23, 2018 10:05:36 PM

Professor, arguing with Mr. Behar is a waste of time. He is a "true believer" in whatever nonsense he spouts. Such folks (like Trumpers) are never persuaded by facts. They have "alternative facts."
I remember well one apt statement Freud's writings: "Needless to say, no one who suffers from a delusion, recognizes it as such." Regretfully, this applies to Mr. Behar.

Posted by: Dave from Texas | Jul 24, 2018 6:49:22 PM

If someone is not capable of reform, attempts to reform them do no good. In an ironic way, Mr. Behar is actually proving this point quite well.

Posted by: William Jockusch | Jul 24, 2018 8:08:54 PM

Dave. Psychoanalysis is a form of quackery.

I prefer to call Berman a denier. That is someone who argues in bad faith, in furtherance of an agenda. Holocausts deniers want the extermination of the Jews. Harvard Law radicalized deniers want to grow tyrannical far left government, and to have their alumni tell everyone else how to live, all the while, generating worthless government make work jobs. The agenda of the Harvard Law radicalized lawyer is rent seeking.

Posted by: David Behar | Jul 26, 2018 1:45:40 PM

Prof. Berman. You are not influenced by facts. People were angry about crime. In the greatest achievement of the lawyer profession, your mandatory guidelines dropped crime 40% within 5 years of adoption. That is the standard time to see a new law take effect. Your profession did very well. The drop in crime was a major factor in the explosion of economic success in the second half of the 1990's as resources were diverted to economic activity. You are in denial even about this tremendous achievement of the lawyer profession. Why? Your job, what you are paid to do is to get law students jobs. Drops in crime threaten your personal job.

Posted by: David Behar | Jul 26, 2018 2:21:49 PM

William. Why do you say that about me, and not about yourself or about Berman. You cannot see your own denial. Berman also knows this is advocacy. Yet, he persists in make ad hominem remarks. This is very common for the far left. Trump had the best first year of any President in history by objective standards. Yet, you people cannot stop attacking. You are in denial about your own economic success this year. That is denial. Berman needs to disclose his economic self interest in lawyer rent seeking, and job generation. Once disclosed, I would have nothing to say about him, since it is self evident everyone pursues their own self interest.

Me, I have made a great living from lawyer shenanigans. I am arguing against my economic self interest. That makes me morally superior to everyone here.

Posted by: David Behar | Jul 26, 2018 2:34:31 PM

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