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May 31, 2023
New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more
The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans. For full context and coverage, everyone should check out the full piece. Here are just a few snippets that especially caught my eye:
Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons. We worked on the original [Sentencing Commission] guidelines. We were talking about recidivism. And I said, “Well, Norman, you’ve had years of experience. You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?” And he said, as I recall, “To be honest, I don't know.”
And so people have all kinds of ideas, and it's worth trying different ones. But it's hard to do. It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places. So how well has that succeeded? Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....
[The death penalty] is so unfairly administered. There's neither rhyme nor reason. The whole point of this criminal justice system is fairness. Is justice. That's why it's called “criminal justice.” And that is not an oxymoron, at least in theory. So when I see that time after time, after time — I'm not saying “You're all innocent.” But there are a couple of cases where I really wonder.
I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty. I want to do something, if I'm going to do this, that really explains what I've seen. And that's what I tried to do in Glossip. And it tries to explain to other people, who can explain it to state legislatures. And all it is, is what I've seen over a couple of decades. And by the way, it's going to get awful expensive. Why reconsider it? Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.
May 31, 2023 at 08:54 AM | Permalink
Comments
Justice Breyer is a smart guy, honest, good-hearted, friendly and funny. But the death penalty is constitutional, as the Court has said repeatedly (and now). Whether it's good policy is a question for the legislative branches, not the courts, to decide.
For anyone who's curious, nine of the world's twelve most populous nations have it. All six at the top of the list have it -- China, India, the USA, Indonesia, Pakistan and Nigeria.
Posted by: Bill Otis | May 31, 2023 10:56:49 AM
Justice Breyer asks Norman Carlson - the former Director of Fed. Bureau of Prisons; director emeritus of GEO, the private prison company; a sociology professor at U. of Minnesota; and past president of the American Correctional Association (hardly a soft-on-crime guy): "...what would you do to reduce recidivism rates?”, and he said "To be honest, I don't know.”
Well, if this 'tough-on-crime' stalwart admits that he didn't know, then who would?
How about those who run the prisons in foreign countries who have reduced their recidivism rates? At least consider their approaches? How about successful private rehabilitation programs that have at least some modicum of success? How about trying some other approaches not consistent with the "tough-on-crime" dogma?
I don't think this article is particularly centered on the constitutionality of the DP. Nor does it speak to any statistical analysis, such as the number of countries in which the DP is utilized. When reading the comments of Mr. Otis, the phrase "red herring" comes to mind. No offense, Bill.
Posted by: SG | May 31, 2023 2:29:47 PM
SG --
First, thank you for conspicuously declining to dispute that the DP is constitutional and is used by a healthy majority of the world's most populous countries.
Second, since those like you who take McVeigh's and Tsarnaev's side in the DP debate repeatedly (if falsely) claim that it's unconstitutional and isolates the USA as a particularly bad country, an occasional reminder to the contrary is needed. If you object to my supplying it, gosh, too bad.
Third, Justice Breyer gets an audience, not because he has any special insight into the DP, but because of his high place in the judicial branch. But he's not in Congress or any of the state legislatures, so his POLICY prescriptions have no more weight than yours or mine would. Pointing this out is not only not a red herring; it's directly relevant to assessing Justice Breyer's reported views.
Fourth, it's not up to Norm Carlson or anyone else in the government check recidivism. It's up to the released criminal to do what all the rest of us have to do from the get-go, namely, obey the law as a matter of course and respect other people's rights. The way to do this is to get a conscience and follow it. Although you seem to believe in an all-powerful government that can grow consciences on trees and then hand them out, that's not how it works.
Last, although you've pointed out more than once, and with apparent pride, that you're a high school dropout, I don't know that it's wise to go to great lengths to prove it.
P.S. It's not up to Norm Carlson or anyone else in the government check recidivism. It's up to the released criminal to do what all the rest of us have to do from the get-go, namely, obey the law as a matter of course and respect other people's rights. The way to do this is to get a conscience and follow it. Although you seem to believe in an all-powerful government that can grow consciences on trees and then hand them out, that's not how it works.
Posted by: Bill Otis | May 31, 2023 4:23:32 PM
My apologies for repeating Point 4 as a P.S. I can only say in mitigation that it's not my fault because the government failed to rehabilitate me from my failure to attend proofreading class.
Posted by: Bill Otis | May 31, 2023 4:27:25 PM
Bill,
Nobody within the posted article nor any commenters (so far) have argued the constitutionality of the DP. It is only you who have raised the issue.
Yes, the DP has been ruled thus by present and past justices. But not because they have any special insights into the DP, but because of their high place in the judicial branch, to quote a noted legal expert.
As to "how to rehabilitate a criminal/addict", you have, in the past, admitted that you know very little, if any at all, on this subject. (Perhaps we should keep logs of our postings as reference).
When it comes to legal arguments, I absolutely defer to you and your vast legal experience. You have homefield advantage on that. On the other hand...when it comes to the area of rehabilitation, you're playing on my turf.
I have disclosed to you in the past my personal history, and my prior expertise in this field. If you so desire, I can post it once again to refresh your memory. (I don't expect folks of advanced ages to have highly functioning memories, myself included).
Nonetheless, we can discuss your posting above. And I do appreciate your comments.
You refer to the need for wrongdoers (criminals/addicts) to "grow a conscience". A conscience is but a byproduct of the necessary 'conversion process' such folks must undergo. And, interestingly, such folks can learn how to conform their behaviors without developing this so-called 'conscience'. There are in fact psychopaths and sociopaths who go through life not breaking the law (many running corporations and/or becoming politicians). I'm sure you can think of some examples.
However, the prison/govt. approach as to how to accomplish such 'conversions' has been an abject failure, one must admit (proof in the pudding).
Incapacitation of violent offenders and others who present a clear and present danger to the community is a separate subject. For that, prison is obviously effective.
Your statement as to "that's not how it works" (referring generally to a rehabilitation process) is free from
any articulation as to a functional, working methodology - that is, "how it DOES work". Is this because you really have no idea what works?
The approach that you have advocated, up til now, is to "lock 'em up for a long time, and then let them go but they must then undergo monthly reporting, while being shackled with dehumanizing ankle bracelets; undergo random drug testing (urinalysis while someone closely watches them providing the sample); random home visits by parole/prob. officers; imposition of various other restrictions, conditions, obligations, etc.". The "reward" is: we won't lock you up again if you satisfy our demands, and you don't screw up.
Sorry Bill..when it comes to "growing a conscience", or undergoing a "conversion process"...this just plain does not work.
Long periods of time in a prison cell does not result in a "conversion process" nor growth of a conscience. In fact, those who do happen to undergo a 'conversion process' while in custody (a clear minority of prisoners) do so in SPITE OF PRISON, and not because of it.
But change is possible in an environment that provides the information, setting, materials and the resources necessary for such change. For this population, the "prison model" describe above is just not conducive for such change.
Please note that there is never a 100% foolproof method for 100% of wrongdoers that will result in a 0% recidivism rate. No such animal exists.
Ultimately, the wrongdoer is responsible for their own rehabilitation, and their success is determined by the level of their own participation in the process. But they need and MUST HAVE guidance, positive re-inforcement, compassionate support and understanding, and often 'honest feedback and tough love' - none of those things being present in a prison setting.
No need to apologize for the proofreading, or lack thereof.
Posted by: SG | May 31, 2023 7:16:40 PM
Breyer is commenting now as a private citizen. He devoted a big chunk of his professional life to this subject, so I would say he has more expertise than the Man on the Street. Still, it is just his opinion, and I doubt he has any illusions about his ability to change policy. By the way, I do not recall that Breyer has ever said flat-out that the DP was unconstitutional in all circumstances.
Bill said, “It's not up to Norm Carlson or anyone else in the government check recidivism.”
Why not? For all crimes where eventual release is a possibility, why wouldn’t we be interested in whether the punishment has succeeded in deterring future bad behavior? Given that this is one of the purposes of punishment, I think we’d want to know how well it works.
Posted by: Marc Shepherd | Jun 1, 2023 11:54:54 AM
Marc Shepherd --
"Bill said, “It's not up to Norm Carlson or anyone else in the government check recidivism.”...Why not? For all crimes where eventual release is a possibility, why wouldn’t we be interested in whether the punishment has succeeded in deterring future bad behavior? Given that this is one of the purposes of punishment, I think we’d want to know how well it works."
You're correct that I did not adequately explain my point. The BOP should indeed have an interest in "checking" recidivism, if "checking" means "keeping tabs on." BOP should also furnish the (occasionally effective) catalysts for leading a straight life, things job training. But it is not up to BOP or any other component of the government to PRODUCE a conscience in the inmate, which is by a huge measure the thing that will most help avoid recidivism.
All my experience in life tells me that if you have a conscience, you'll find your way, and if you don't, you're on the path to repeatedly bad behavior no matter how many wholesome opportunities are provided to you.
Posted by: Bill Otis | Jun 2, 2023 11:07:42 AM
Marc,
I am wondering why Bill Otis chooses to ignore the cogent points I make in my most recent posting (above) in respect to HOW TO ACCOMPLISH THE GOALS OF REHABILIATION manated by statute (in "Otis Speak" - develop a 'conscience').
I join in your remarks in which you make the salient point: "For all crimes where eventual release is a possibility, why wouldn’t we be interested in whether the punishment has succeeded in deterring future bad behavior?"
This is logical, and self-evident. Some on this blog have wrongly stated that the GOVT should not be responsible to accomplish such goals, and therefore, why bother even examining such ineffective methodologies?
Of course, it is essential for us to constantly review and improve the methodologies employed by our Govt. at an exceedingly high cost, both financially as well as in the cost to the wrongdoer, and the communities to which they will eventually return.
Recidivism rates, in my parlance, is the CJ System's "report card", a measurement as to the effectiveness of the model championed, promoted, endorsed and executed by those in positions of power and authority (which may include even some who are active participants on this blogsite).
Perhaps the point is not addressed by such folks because it flies in the face of their long-used theory that "Punishment aims to convince (the wrongdoer) that his conduct deserves moral blame; that he should repent and restore his damaged relations with the community". While the goal is noble, the vehicle used to achieve the goal is a miserable failure. It just doesn't work.
Please refer to my prior posting (above) in which I articulate a more reasonable model that has proven to be effective, at least, more effective than the "prison model". (Note that I exclude those wrongdoers who present a clear and present danger to the community. They absolutely do need to be incapacitated).
I appreciate your remarks.
Posted by: SG | Jun 2, 2023 2:17:48 PM
SG --
I simply see no great benefit to be had by going through this again and again, In addition, I am disinclined to have much of a conversation with someone like you, who has called me "cowardly." That charge is false and intentionally insulting, as you knew when you made it. It's also wonderfully ironic, coming from someone who keeps his name hidden while being directed to someone who signs his name every time.
If you want to keep using a superior attitude with me, that's your choice, but as I told you before, I have many worthwhile people to talk to who are lots more courteous. You only have to be but so smart to figure out who I'm going to invest my time with.
Very, very briefly, however: Like the criminals you choose to spend your time with, you want always to shift responsibility to anyone and everyone else. Yes, you occasionally say the right words (a person has to be responsible for himself), but your whole emphasis is in the other direction. Like the system needs to bow down to you and your pals. Sure.
As I said this morning to Marc Shepherd, "All my experience in life tells me that if you have a conscience, you'll find your way, and if you don't, you're on the path to repeatedly bad behavior no matter how many wholesome opportunities are provided to you."
If you think conscience isn't real, or is just a construct of law-and-order types, then there's just not a lot of use in trying to talk to you.
Posted by: Bill Otis | Jun 2, 2023 3:26:34 PM
Bill,
I have repeatedly stated that, yes, developing a conscience is amongst a number of character traits necessary for a character disordered person to successfully achieve a long-term and permanent change (but not the only trait).
I have repeatedly stated, and believe, that the individual is primarily responsible for their own change. You have implied that I believe something different. Objection, your Honor. This is without foundation.
The reality is that “character disordered individuals” cannot achieve necessary changes, or “conversions”, all by themselves, and especially while they sit in a prison cell for a number of years, while surrounded by similarly situated folks in a deadly dangerous setting. Again, this approach just plain does not work. We point to the high recidivism rates as proof. Do you dispute this?
So, then how to best accomplish the stated goal of getting convicts to achieve ‘change’, or rehabilitation, or ‘development of functional personal traits’, (including a conscience) that will lessen their likelihood of recidivating?
To accomplish this, these “character-disordered individuals” must be provided an environment that promotes their personal growth and change. They do not have control of their environment. And what's more, they do not know how to accomplish these changes by themselves. Left to their own devices, in the state that they are in when entering a prison, they will simply continue on with their anti-social beliefs and attitudes. Do you not agree?
The convicts are badly in need of "life instructions" as well as education, guidance, direction, instruction, and at times 'tough love' through honest feedback, and more (meaningful work; motivation to seek and assume responsibility; for some, a basic education. I could go on). Do you disagree?
Those who have oversight of our CJ System (those in power), if they are to be successful, must consciously construct an environment in which the focus is to optimize the capacity of these individuals to achieve these changes, along with the previously referenced guidance, etc.
Convicts are sent to prison AS PUNISHMENT, not FOR PUNISHMENT. If we are to provide direction, education, guidance and instruction, it must be done so without hostility, distrust, and overly-critical judgment based upon their past acts/offenses. Yes, they need a firm hand when being guided, but not always, and exclusively. Do you disagree?
I am not sure of your beliefs or understandings on any these points (which I have articulated in prior postings), as so far, you have not addressed any of them.
By the way....accusing me of (to paraphrase) choosing to spend my time with criminals outside of my work as a legal or counseling professional...well, objection, your Honor…lacks foundation. (Talk about a “superior attitude”. Oy vay).
Posted by: SG | Jun 2, 2023 6:19:55 PM
SG,
Your entire premise is an assumption, that your plan will work. In fact, it is unlikely to any more than incarceration. The problem is not that incarceration fails. The problem is that after prison, just as in any program you offer, the criminal goes back to the same neighborhoods with the same friends who exhibit the same behavior you tried to prevent. A gangbanger goes right back to his “family,” the other feral children in the streets. A lifetime of learning how to act is very difficult to overcome with a few months of some feel good program. You even imply you know this by saying many will still need to be incarcerated.
Prison was a lot more hellish in the 40’s. So, why do we have “mass incarceration” and recidivism today? It tells us it is more than prison.
You also don’t address the elephant in the room, mental illness. A larger portion of inmates and recidivists come from that segment of society. I know you will have a “program” but it is destined to fail. They will get out, stop taking medication, and be in their previous states in a few months.
As I said before, the only solution to create a well formed conscience is the “little platoons” of family, church, and community that Edmund Burke spoke about. The number one indicator of a person going to prison is bastardy. How do you plan on solving that?
Posted by: TarlsQtr | Jun 2, 2023 6:43:56 PM
Tarls,
A part of the guidance which I, along with my colleagues at the time, would provide to those who came to the private substance abuse rehabiliation organization (where from 1970 to 1990, I 'cleaned up', and subsequently became a staff member/ counselor), was exactly the point you make here. We would say(words to the effect of): "Returning to the environment from which you just came, and then continue to associate with those very people (fellow gangbangers, addicts, criminals, etc.) who helped get you here, is a guaranteed recipe for disaster".
But our guidance, advice, etc. was but only a small, but essential part of the overall recovery process. It would take me quite a bit of writing to fully articulate the "self-help" process.
Mental health treatment is important for those suffering from settled psychological/psychiatric maladies. No argument there. However, and this is not to minimize the issue at all, the numbers of those with such mental infirmities are but a small portion of those suffering from substance abuse issues.
And I do agree that, unfortunately, the majority of addicts, criminals, etc., once released from prison, do return to those communities from which they came. This is where their families and other important people in their lives still reside (parents, siblings, spouses, children, etc.). It is a problem. What is your solution?
Some of the points I have made is that incarceration of non-violent offenders for years and years, in environments (prisons) which does not foster or promote meaningful change, is a missed opportunity. And NO, I am not saying (as has been implied by others in prior postings) that I believe that the GOVT/PRISON is responsible to 'cause the change' within the convict. That's ridiculous, and I have never said it, implied it, nor believe it. Please read my above comments directed towards Mr. Otis above.
The issue of "bastardy" to which you have referred (and which is shorthand for "growing up without a father in the house") is a problem, as is: attending substandard schools, going to bed hungry and going to school hungry, the shame of being impoverished, an absence of healthcare, lack of meaningful employment opportunities, lack of mental health resources, pressure to join gangs, exposure to violence and guns, exposure to drugs and alcohol at young ages, and a host of other challenges. I have a pretty good understanding of the underlying causes leading to dysfunctional and criminal behaviors, with "Bastardy", not excluded.
There is no simple, easy answer. And no one approach intended to re-educate and rehabilitate criminals, addicts, or others in need, will fit all sizes.
But I do appreciate your comments. We all have a desire to help others, and improve our society.
Posted by: SG | Jun 2, 2023 8:36:37 PM
TarlsQtr --
"...the only solution to create a well formed conscience is the 'little platoons' of family, church, and community that Edmund Burke spoke about."
There you go again! What better proof can there be that you're a racist?
Still, I guess that's better than being a "Nazi" married to a "self-hating Jew," as one of our noble opponents (not SG) would say (and has said).
These guys and their self-righteousness crack me up. But they keep right on keepin' on.
Posted by: Bill Otis | Jun 2, 2023 8:46:35 PM
'little platoons' of family, church, and community.
Is this all that different from the suggestion that "It takes a village"? Seems pretty darn close to me.
I seem to recall a politician who had offered the concept that "It takes a village". The politician was subsequently derided and ridiculed endlessly by those in opposition. They called it a "ridiculous idea", and that each individual was only and always responsible for themselves, no exceptions. Who was it that said "It takes a village"? Tarls, do you recall? Bill?
Posted by: SG | Jun 2, 2023 9:35:42 PM
SG --
Wasn't it the lady who threw a table lamp at Bill Clinton?
Posted by: Bill Otis | Jun 2, 2023 10:08:11 PM
Bill,
Why, yes!! That was her. At least she didn't hurl bottles of ketchup at the ol' boy.
Posted by: SG | Jun 2, 2023 10:42:05 PM
As long as the ketchup didn't stain anyone's blue dress........oh........wait........I'm trying to keep this a family blog.
Posted by: Bill Otis | Jun 2, 2023 10:59:13 PM
SG,
A strong family, belonging to a church, and being involved in the community is far different than schools, government, etc., raising your kids for you. It doesn’t take a village. The village is, in part, the prison system.
It’s the difference between my parents sending me to school with lunch everyday or going to school and the school provide it free to all the kids, taking the responsibility from parents.
It’s more like saying, “Ask not what your country can do for you. Ask what you can do for your country.” If I raise my child right, I’ll benefit my family, my church, community, and country.
Posted by: TarlsQtr | Jun 2, 2023 11:40:32 PM
SG stated:
“The issue of "bastardy" to which you have referred (and which is shorthand for "growing up without a father in the house") is a problem, as is: attending substandard schools, going to bed hungry and going to school hungry, the shame of being impoverished, an absence of healthcare, lack of meaningful employment opportunities, lack of mental health resources, pressure to join gangs, exposure to violence and guns, exposure to drugs and alcohol at young ages, and a host of other challenges. I have a pretty good understanding of the underlying causes leading to dysfunctional and criminal behaviors, with "Bastardy", not excluded.”
All of the things you mention above are symptoms of the root cause of bastardy. For example, kids who join gangs, go to bed hungry, etc., are much more likely to not have fathers in the home.
Posted by: TarlsQtr | Jun 3, 2023 12:30:30 PM
Tarls,
Please consider the possibility that the "absence of a father in the home" may be as a result of the father being in prison, or dead (for whatever reason). In other words, sometimes the father is not there but NOT as a matter of choice.
All the factors that both of us have mentioned, including 'bastardy', are inter-woven and inextricable from each other, in my opinion. I cannot agree with you should you single-out just ONE over-arching causal factor.
Posted by: SG | Jun 3, 2023 4:42:04 PM
SG,
The father in prison likely had no father in his life. See the cycle?
Posted by: TarlsQtr | Jun 3, 2023 8:55:06 PM
https://www.marripedia.org/effects_of_fatherless_families_on_crime_rates
“ Today, nearly 25 million children have an absentee father.1) According to the professional literature, the absence of the father is the single most important cause of poverty.2) The same is true for crime. Of all adolescents, those in intact married families are the least likely to commit delinquent acts.3) Children of single-parent homes are more likely to be abused, have emotional problems, engage in questionable behavior, struggle academically, and become delinquent.4) Problems with children from fatherless families can continue into adulthood. These children are three times more likely to end up in jail by the time they reach age 30 than are children raised in intact families, and5) have the highest rates of incarceration in the United States.6) According to Kevin and Karen”
Posted by: TarlsQtr | Jun 3, 2023 8:58:54 PM
Tarls,
I appreciate the information and I'll study the report.
And of course, the 'cycle' of fatherless households likely stems back several generations. Of course, not every fatherless household result in criminal offspring, and in fact, are likely not the majority. There are plenty of folks who did not have a father in their home who DID NOT become a juvenile delinquent, adult criminal offender, or suffered adverse childhood experiences.
Which brings us to the issue of children raised in non-traditional households in which there are two mothers, or mother(s) and grandmother(s), (either gay or straight) and where there are no male authority figures present. I'm wondering what the research says on this. Are you familiar with any such studies?
Posted by: SG | Jun 3, 2023 10:15:14 PM
TarlsQtr --
Liberals then: "This insistence on married, two-parent families is just so much bourgeois BS from a bunch of Puritan jerks"
Liberals now: "Single parenting is awful for children and effectively sentences them to prison -- and these bourgeois Puritan jerks don't care."
Posted by: Bill Otis | Jun 3, 2023 10:18:18 PM
Bill,
Very true. They ignore Chesterton’s Fence and wonder why overthrowing tried and true family models in place for 2000+ years creates problems. All in the name of atomistic individualism.
PSA- Matt Walsh’s documentary “What is a woman?,” is free through tomorrow on Twitter. It’s worth a watch for anyone here who hasn’t seen it.
Posted by: TarlsQtr | Jun 3, 2023 11:36:42 PM
SG,
The one I provided does discuss “paternal authority.” Two moms is not the same.
Posted by: TarlsQtr | Jun 3, 2023 11:47:10 PM
Tarls,
"Two moms is [sic] not the same"...your definitive statement is based upon what empirical evidence?
Posted by: SG | Jun 4, 2023 5:18:10 PM
SG --
Actually, TarlsQtr's statement, "Two moms is not the same" is grammatically correct. TarlsQtr is not referring to each of the two moms separately, which would indeed require a plural verb. Instead, he's referring to the PHRASE "two moms." That phrase is singular and takes the singular verb he gave it.
Example: "Black lives matter is a good thing" is grammatically correct because the verb refers to the singular phrase and not to the plural, "lives." This is why you never hear anyone say, "Black lives matter are a good thing."
Posted by: Bill Otis | Jun 4, 2023 7:52:06 PM
Bill,
Not that I need to tell you this, but this is where they go when they cannot win a debate.
It’s one reason I seldom “go there” online. Some proofread their work more than others. If I was or was not grammatically correct had zero relevance to my point. SG decided to take it there.
I do have to admit, though, it is a special kind of delicious to get corrected and have the grammar police be wrong.
Posted by: TarlsQtr | Jun 5, 2023 8:40:54 PM
SG,
https://www.heritage.org/marriage-and-family/report/the-research-same-sex-parenting-no-differences-no-more
Posted by: TarlsQtr | Jun 5, 2023 8:45:59 PM
