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July 10, 2022

Couple of choice Concepcion commentaries

The Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), is an important sentencing precedent that is sure to be overshadowed by this Term's higher profile cases.  But I have been pleased to see  a couple new notable commentaries on Concepcion.  Here are links and excerpts from two pieces worth reading in full:

From CNN by Van Jones and Nisha Anand, "A rare Supreme Court ruling this term where conservative and liberals joined forces"

The Supreme Court's ruling in Concepcion could mean reduced sentences for thousands of people.  It also means that the Court just made it easier to reward those who take steps to better themselves.  And allowing judges to take new information into account will help ensure that rehabilitation becomes the main point of our criminal justice system.

Helping people transform their lives reduces crime.  It keeps us all much safer than simply locking people behind bars with no hope for the future. If members of a deeply divided Supreme Court can recognize this, then surely the rest of us can as well.

From Law360 by Mark Osler, "Justices' Resentencing Ruling Boosts Judicial Discretion"

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law.  However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities.  After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing....

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant.  While this decision, in isolation, may bring mixed results, that trend is a good one.

Prior related posts:

July 10, 2022 at 07:56 AM | Permalink


"Helping people transform their lives reduces crime. It keeps us all much safer than simply locking people behind bars with no hope for the future."

Good grief. Could we just stop with this rote liberal bilge?

We ALREADY KNOW what reduces crime. We reduced it by close to half in the 20 years between 1990 and 2010. That was a period in which the prison population swelled. For most of that time, judicial discretion in sentencing was more circumscribed than it is now.

As this massive crime reduction unarguably demonstrates, what "keeps us all much safer" is keeping hoodlums segregated out of civil society and incapacitated from ransacking your home or office while you're away, or carjacking you, or selling meth to your high school kid.

The Left constantly yelps "follow the data" but wants to do no such thing. The data are clear and our experience is clear. The Left wants to follow its "criminals are victims of society" ideology and that's all it wants to follow. It's been doing a fine job over the last few years as murder has spiked back up. Good work there, guys.

As to "transforming lives" -- first, the majority are not transformed, as the appalling recidivism statistics tell us; and second; transforming your life, that is, the basic way you think about how you want to behave, is not something the government can do. It's only something you can do. So go do it and quit pretending it's someone else's problem.

Posted by: Bill Otis | Jul 10, 2022 7:51:57 PM

Spot on, Bill.

When I taught in the prison system, I didn’t “transform” a single life. It would be arrogant for me to believe otherwise.

Some came in, were committed to improving their lives, worked their tails off, and succeeded (or not) with my help. Many more walked into my class disinterested and walked out the same way. They were destined to fail.

Prison is the lesser of two evils and keeps the rest of us demonstrably safer than any alternative.

Posted by: TarlsQtr | Jul 10, 2022 8:53:18 PM

What Concepcion left open, and what the post-decision commentary doesn't address, is whether district judges have the discretion to consider post-sentencing STATUTORY changes that Congress has made prospective only. For example, can a district court ruling on a Section 404 motion take into account that the defendant would have a much lower statutory minimum and maximum were he sentenced today, even though Congress specifically chose NOT to make those statutory changes retroactive? I don't know that Concepcion, which permits consideration of post-sentencing developments that affect the Guidelines range, answers that question.

Posted by: Da Man | Jul 11, 2022 7:57:26 AM

The other side of the coin in Concepcion is what about the offender who does not do well in prison. In my experience, a lot of inmates have very bad disciplinary records in prison. When a sentence is vacated, the law on resentencing permits the sentencing judge to impose a higher sentence if it is based on new information that came to light after the original sentencing. So there will be some offenders who as a result of Concepcion reaffirming that judges can consider how an offender has done in prison who will be worse off.

Posted by: tmm | Jul 11, 2022 10:30:43 AM

tmm --

Just so. The reigning view here seems to be that criminals want to become law-abiding and just need some help. But actual experience shows that this is not true. By the time they get to prison (no easy task), they have generally formed their view of life. There are exceptions, sure, but that's exactly what they are -- exceptions.

Posted by: Bill Otis | Jul 11, 2022 1:24:32 PM

Hi Bill and Tarls -
I just wish that you two would recognize that though "keeping hoodlums segregated out of civil society" may be necessary (though I believe prison should always be the last resort - diversion programs and community based approaches should be the primary responses to crime) we would do well to recognize two things -
1. That we all are capable of becoming hoodlums and that "there but for the grace of God go I" and we should be try to be more understanding and compassionate - a stern approach fails to recognize that we are all fundamentally flawed.
2. There are naturally financial limits to the use of incarceration (the costs of prisons, police) and that we cannot simply incarcerate everybody who is a lawbreaker - the fact that prisons have a recidivism rate of 70 to 80 percent indicates to me that we should try to use prison as little as possible and institute possible sentencing caps (20 to 25 years except in extreme cases (terrorists, serial killers, and so on).
Your approach may be in line with conservative ideology (self reliance, pull yourself out by the bootstraps) but it fails to recognize that we all may need help out of desperation and that we are all, deep down, may need to resort to crime if our circumstances get bad enough.
Thank you.
Brett Miler

Posted by: Brett Miler | Jul 11, 2022 3:17:44 PM


1. I disagree with the premise. Yes, we are all flawed but we don’t all become hoodlums, even most of those raised in situations we normally associate with a breeding ground for criminality. I would go even further and say it doesn’t matter. Of course we should try to prevent people from becoming hoodlums. However, once they begin hitting grandma over the head for her SS check, my concern for them is replaced for concern for grandma. Your compassion is in the wrong place.

2. There are plenty of costs to crime, both economically and socially, that are never added up by the penny pinchers. They add up the cost of incarceration but not the cost of keeping criminals on the street to do it again and again.

Posted by: TarlsQtr | Jul 12, 2022 11:57:42 PM

The United States spends nearly $300 billion annually to police communities and incarcerate 2.2 million people.
The societal costs of incarceration—lost earnings, adverse health effects, and the damage to the families of the incarcerated—are estimated at up to three times the direct costs, bringing the total burden of our criminal justice system to $1.2 trillion.
The outcomes of this expense are only a marginal reduction in crime, reduced earnings for the convicted, and a high likelihood of formerly incarcerated individuals returning to prison.
The value citizens place on the small increases in deterrence is difficult to quantify, but as a matter of logic it must be substantial to merit incurring the measured costs.

Posted by: moshopino | Jul 13, 2022 3:35:37 PM

The direct governmental cost of our corrections and criminal justice system was $295.6 billion in 2016, according to the Bureau of Justice Statistics.[1] With more than 2.2 million people incarcerated, this sum amounts to nearly $134,400 per person detained.

Roughly half of these funds—$142.5 billion—are dedicated to police protection. The next largest share of this expense—$88.5 billion—is the cost of operating the nation’s prisons, jails, and parole and probation systems. The remainder—$64.7 billion—is spent on the judicial and legal systems.[2] As shown in the following chart, local governments pay more than half of the total costs—mostly for policing, while the federal government pays just one-sixth.[3] States spend the most on corrections, a reflection of the fact that nearly 60 percent of all detainees (1.3 million people) are held in state prisons

Posted by: خرید ساعت اینویکتا | Jul 13, 2022 3:37:28 PM

A study by the Brookings Institution found that only 55 percent of former prisoners had any earnings in the year following release, and of those, only 20 percent (or 11 percent of the total) earned more than the federal minimum wage (roughly $15,000). While these figures largely reflect the experiences of individuals prior to their time in prison, as noted here, another study found at least a 24 percentage-point drop in employment among those who were steadily employed before being incarcerated for a year or more. Further, the aggregate figures obscure distinctions, and there are stark racial differences in the likelihood of being unemployed, as shown in the chart below. The greatest difference in post-incarceration unemployment rates compared to the general population is for Black women—a difference of 37.2 percent. White men faced the weakest incarceration penalty with a difference of 14.1 percent

Posted by: خرید ساعت | Jul 13, 2022 3:39:11 PM

So, what should we spend on incarceration? The amount actually spent is insignificant. The important number is what you are willing to spend.

But you both miss the point. What about the cost of not incarcerating people? If someone steals a $30,000 Lexus, is that added up by anyone for the cost of not incarceration? Lost work for victims of crime?

Why is only one side of the equation solved?

Answer: Because the pro-criminal bar and academia would find it inconvenient.

Posted by: TarlsQtr | Jul 13, 2022 4:42:41 PM

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