I've had the good fortune to get to know, if only slightly, a couple of Commissioners on the US Sentencing Commission. They're good people and thoughtful lawyers, to say the least. But this does not stop me from noting that the Commission has not sufficiently confronted -- and indeed, it seems to me, has danced around -- the crucial issue of criminal recidivism.
One of the principal purposes -- and, over the last generation, one of the major successes -- of sentencing is the incapacitation of criminals. When they're in jail, they're not ransacking your house in order to get money for their next fix, assaulting your college-age daughter on a meth-fueled high, or selling PCP to your teenage son.
It's therefore crucial, in deciding whether and to what extent to reduce sentences, to be entirely forthcoming and candid about what impact those reductions will have. Specifically, we need to be clear about whether the reductions will produce more crime.
On this critical front, the Commission has fallen short. It simply must take recidivism more seriously, and it must do so before deciding whether massively to expand, through retroactivity, the reach of its recent scattershot lowering of drug sentences.
The case in point is the Commission's report last month emphasizing that the recidivism rate for crack offenders released under the more lenient provisions of the Fair Sentencing Act is not significantly different from, and indeed is slightly lower than, the recidivism rate for those released after serving terms under the prior, sterner, law.
The report's major conclusion is stated thusly:
[T]here is no evidence that offenderswhose sentence lengths were reduced pursuant to retroactiveapplication of the 2007 Crack Cocaine Amendment had higher recidivism rates than a comparison group of crack cocaineoffenders who were released before the effective date of the 2007Crack Cocaine Amendment and who served their full prison termsless earned credits.
There are some significant problems here.
First, the study is too narrow to have the import being so gleefully attributed to it by proponents of lower drug sentences. The central question is not whether the pre- and post- recidivism rates are similar. The question is what are those rates? When released, do crack dealers go back to trafficking, or do they straighten up?
Further down in the report, we get the answer. The recidivism rate for the pre-FSA group was about 48%, and for the post-FSA group, 43%.
Translation: More than two out of five crack offenders go back to crime. To think that this constitutes an argument for putting crack offenders as a group back on the street earlier is to take leave of one's senses.
The second problem is even worse. Recidivism for crack offenses -- although too high to be as complacent as the Commission and its backers seem to be -- is lower than the reported recidivism rate for offenders who use and sell even more harmful drugs like methamphetamine and heroin.
As I noted in my last post, the overall recidivism rate for drug offenses is 77%.
SEVENTY-SEVEN PERCENT. Let that sink in.
The appalling truth is that somewhat more than three-quarters of the criminals sent to prison for drug crimes will do it again when they get out. The huge majority of them will start within a year of their release.
What this means, among other things, is that instead of saving money, reduced sentences will cost more money in the long run when the released but crime-repeating prisoners get re-cycled through the system the next time they're caught -- more money to pay for police, prosecutors, defenders, probation officers and all the rest that comes with the costs of criminal litigation. This is not to mention the costs of re-entry into prison, this time with what is likely to be (and should be) a longer sentence due to the commission of further crime while on "supervised" release. See, e.g., Edward Dorsey.
Bottom line: Until the Sentencing Commission deals more forthrightly and less dismissively with the problem of drug recidivism -- its impact on victims, and its costs both in human and financial terms -- its proposal retroactively to apply reduced guideline levels should be dead in the water.