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About That "Unstoppable Momentum"....

Renowned sentencing expert (and long time buddy) Prof. Doug Berman put up a post about a year ago with this title:  "Could Momentum for Sentencing Reform Now Be Unstoppable in the Federal System?"  The gist of it was that, what with Eric Holder on board, the very enlightened coalition of libertarian-leaning Republicans like Rand Paul, and liberal Democrats, would enact significant sentencing reform legislation.  ("Sentencing reform," for those unfamiliar, means only one thing, to wit, putting felons back on the street faster than they get there now).

Doug quoted a gushing article by Juan Williams in The Hill newspaper that said, among other things:

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.

So where are we now with that which is unstoppable?
Where we are is that the proposed legislation is as dead as a doornail.

The principal bill that was supposed to be unstoppable was the Justice Safety Valve Act, a provision that would essentially abolish every mandatory minimum sentence in federal law. The JSVA, however, proved to be so radically pro-criminal that Chairman Leahy, a resolute liberal, did not even bring it up for a vote in his own Committee.

The other proposal, the Smarter Sentencing Act, was brought up and passed in Committee by a lopsided 13-5 vote, with several Republicans joining all the Democrats.  Thereafter, on May 7, as reported here:

Senate Majority Leader Harry Reid told John Gramlich of CQ Roll Call that he would soon be bringing the bill to the floor of the Senate for debate (paywall): Asked whether he intends to bring committee-approved sentencing legislation to the floor soon, Reid said he has been consulting with the bill's sponsor, Sen. Richard J. Durbin, D-Ill., and "the answer is yes." 

Reid did no such thing, although he controls the floor to the extent that he changed the filibuster rules to pack the DC Circuit with Obama's hand-picked Lefties.

One must wonder, then, why Reid never brought the bill up for a vote, and left it by the wayside as the Senate took off to escape Washington's traditionally dreadful August.  I can think of two (related) reasons.

The first is that he doesn't have the votes, even with a few Republicans coming over. There are a bunch of competitive races, and perhaps as many as a dozen Democrats might jump ship, correctly thinking that the well-being of the country is not advanced by more crime.

The second is that the nervous Democrats have no problem with more crime, since some of their most vocal and fat cat constituents are found in the private bar and pro-defendant interest groups like FAMM, but would strongly prefer to keep quiet about it and not take a recorded vote until after the election.

Even then, though, the Smarter Sentencing Act will still be dead.  It hasn't even been brought up for a vote in the House Judiciary Committee, whose Republican majority and chairman are not in the thrall either of the libertarian holiday from responsible thinking or the Democrats' well-heeled bundlers and think-tank cheerleaders. 


Hey, Bill, where is the credit I merit for having said back in Aug 2013 that I di not think the SSA or any other federal legislation was a sure thing (or even likely) despite all the big talk from big players on both the left and the right?

Not to be overlooked, though, is the perhaps more important reality that the drugs-minus-2 guideline change AND the USSC's unanimous decision to make that change retroactive is ultimately a more consequential development than the SSA (at least for the size of the federal prison population). Whether by design or by happenstance, it seems that the SSA proved to be a useful "stalking horse" for other drug sentencing reforms.

Further still, for lots of reasons, federal laws and policies on marijuana reform as well as back-end early-release bill --- which also seem to engage the same basic coalition of libertarian-leaning GOP members and Ds concerning about mass incarceration --- may be ultimately more consequential for the size and direction of the federal criminal justice system in the coming years than any tweaks to mandatory minimum drug sentencing provisions.

In other words, to quote a famously confusing mantra: "The federal sentencing reform king (known as the SSA) is dead... long live federal sentencing reform (in many other forms)."

Doug --

It's a bit odd, I think, to claim credit for seeing that sentencing "reform" would probably tank (in the first paragraph), then say there has in fact been significant sentencing reform (in the second). Be that as it may:

1. You are correct in claiming the credit. Actually you would pretty consistently voice your pessimism that the legislation would get through. But at the same time, you put up many, many articles to the general effect that "reform" had a "growing consensus."

2. The success of the lower-sentencing forces on the Commission and at DOJ have very little to do with any intellectual ferment in Congress. What they had to do with was a Democratic majority on the Commission, and the most liberal, pro-defendant AG since Ramsey Clark as the head of DOJ.

That said, I think you neglected to mention the "reformers" biggest victory, that being laying the groundwork for Obama to empty the federal prisons with thousands of pardons. Not wanting to take any political responsibility for this disastrous move, he'll delay it until the month AFTER the elections. See, e.g., his numerous delays of the politically unpopular parts of Obamacare.

3. As to what may be "ultimately consequential," I don't know, there being no facts, and precious few good guesses, about the future. But, as I have noted on this blog, crime is now increasing and has been for the last couple of years, just as -- amazingly! -- the population of criminals in prison has been decreasing. I wonder if there's a relationship in there somewhere. Hmmmmm...

4. I saw your blog entry this morning and just want to say a word, that being: If (as seems slightly likely) the GOP wins the Senate, it's Grassley, not Rand Paul, who will take over as chairman of SJC. Grassley did a super job of leading the (as it now turns out, successful) opposition to the SSA.

A few follow up questions/comments on point 2 and 4:

1. Are you really predicting "thousands of pardons" from Obama after the 2014 election? I expect hundreds of commutations of sentence for those who've served a decade or more already, but I am not expecting "thousands of pardons." Are you?

2. Even republican members of the USSC supported reduced drug guidelines and full retroactivity of those guidelines. That prompts me to believe that the members of the GOP advocating for sentence reform are having an impact on both sides of the aisle and in all inside-the-beltway decision-making.

3. I believe Grassley is a sponsor of some of the back-end reform bills which would restore, at least in a new re-entry/risk reduction form, a kind of parole for some kinds of prisoners. For lots of reasons, I think such a bill is MUCH more consequential and significant for the federal criminal justice system than the SSA. So even with Grassley in charge, I am somewhat optimistic about the potential for important federal sentencing reform if (when?) the GOP has control of both houses of Congress.

1. Yes, commutations are more likely, you're right about that. And it will be thousands. I don't know whether it will be after the 2014 or 2016 election. It would be far better for Obama to do it right now, and take responsibility for it. One reason executive clemency has a bad name is the aroma still arising from Clinton's January 19, 2001 midnight pardons.

2. The Commission likes to operate by consensus. The Republicans didn't have the votes to block it, so the smart thing to do is go along to build up some collegiality chips for the fights to come. (Just to be clear, although I slightly know some Commissioners, I have not talked to any of them about this).

3. Grassley signed on to Cornyn's bill, mostly as an afterthought and to keep things chipper, since Cornyn is important to fighting the even worse JSVA and SSA. It's a political body. With Grassley in the chair, this whole thing will grind to a halt. And that's not to mention the House, which will become more conservative next January.

4. It's all speculation and a good deal of hype. One thing I constantly see among my adversaries is their making like their views are the tide of history. This was true, as it happens, in the late Sixties when they were telling me that the death penalty was on the way out because of said tide. And they were right -- for maybe eight years, after which they were dead wrong.

Absent the Lehman Bros. collapse in September 2008, McCain might well be President now, and the Commission and the AG's Office would look completely different. People constantly mistake contingencies of the moment and temporary majorities for the "tide of history." This tendency exists on the Right, but is more pronounced on the Left.

6. I'm happy to see you're not disputing that crime is now rising, in a depressing and ominous reversal of a generation of progress, and is doing so -- remarkably -- at the exact same time the prison population has started to decrease.

Just like your numbered list, Bill, I am not sure the numbers add up with your claim that crime is now rising. I believe it is still dropping in states that have run their CJ systems relatively well (e.g., Texas, NY), while it may be going up in states that have run their CJ systems less well (e.g., California, Illinois).

I will be the first to admit/assert that a poorly run criminal justice system risks incarceration and then letting out offenders more likely to recidivate, especially because good evidence indicates that stints in prison are criminogentic. Ergo, putting the wrong people in prison and then letting them out without sound programming will increase the risks of crime. Ergo, the feds should embrace reform ASAP to prevent these problems from persisting. Ergo, your LEGO movie approach to reform (e.g., "everything is awesome" with a big government, mass incarceration approach to trying to keep us safe) may be making us less safe.

Doug --

You say, "I am not sure the numbers add up with your claim that crime is now rising."

Wrongo! As I noted in my recent entry "Too Much Safety":

These [crime rate] numbers were reported by that fanatic right-wing source, PBS, which last October ran the following story: "Survey finds violent crime increase for second year in a row". As the story notes:

"One year of bad news [about violent crime rates] is something you notice but don't necessarily draw conclusions about. Two years of bad news suggests it might be time to start worrying," said Carnegie Mellon University professor Jonathan Caulkins.

University of Maryland criminology professor James Lynch said the crime victimization survey, combined with a separate report recently issued by the FBI, suggests that the 20-year trend of dropping crime rates may be approaching an end.

"You're getting more evidence that this is a change in the trend," said Lynch, a former director of the U.S. Bureau of Justice Statistics, the agency that issued Thursday's findings.

Oh, OK. Quick now. Is there any other change in a trend that's been happening over these last most recent years?

Yes, there is. As the Justice Center of the Council of State Governments reports, "US Prison Population Declines for Third Consecutive Year." Charles Lane has also covered this story, here. ###

Not only that, Doug, but crime is rising most quickly in the state with the most early releases, California.

You also say, "...good evidence indicates that stints in prison are criminogenic."

If that is so, how did it come to pass that when we had vastly more stints in prison (1990-2010), we got vastly less crime? If imprisonment produces increasing crime, then we should have had a great deal MORE crime over those two decades. Instead, we got a great deal less.

How would you explain that?

Bill, you are using old data to make an old point, and the latest data from the FBI (headed by your pal James Comey) has this notable information:

"Preliminary figures indicate that, as a whole, law enforcement agencies throughout the nation reported a decrease of 5.4 percent in the number of violent crimes brought to their attention for the first 6 months of 2013 when compared with figures reported for the same time in 2012. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States from January to June of 2013 decreased 5.4 percent when compared with data for the same time period in 2012. Property crimes include burglary, larceny-theft, and motor vehicle theft. Arson is also a property crime, but data for arson are not included in property crime totals. Figures for 2013 indicate that arson decreased 15.6 percent when compared to 2012 figures from the same time period."


Indeed, Bill, if you check out this related chart you will see significant consistent drops in the most serious violent crimes (murder and rape) over the last three years AS PRISON POPULATIONS ARE FALLING:

And, as I have trued to help you better understand, because California poorly handled prison releases under court order, it is not surprising --- especially given that stints in prison for the wrong people increases their likelihood of additional crime --- that California's extended history of sometimes putting the wrong people in prison for too long and then letting them out without sound programming will increase the risks of crime from releases. But, fortunately, other parts of the country (e.g., in states both red and blue like Texas, NY) have handed these issues more systematically and have safer communities and lower incarceration at the same time.

This really should not be that hard for you to understand these important nuances about modern crime and punishment data --- unless you have an agenda to push that itself depends on misconstruing the recent data to serve your big CJ government goals.


You give away the game in your last two paragraphs.

I'll address your final paragraph first, in which you say, "This really should not be that hard for you to understand these important nuances about modern crime and punishment data --- unless you have an agenda to push that itself depends on misconstruing the recent data to serve your big CJ government goals."

In the space of a single paragraph, you question my (1) intelligence, (2) integrity, and (3) bona fides as a small government conservative.

It's that kind of stuff that persuaded me to abstain from SL&P. That and the fact that about two-thirds of your commenters are an assortment of halfwits, lunatics, haters, dopers, snark artists, convicts, ex-convicts and anonymous cowards who do drive-by smears. I am simply not going to put up with it.

I will answer on substance in this instance, however.

First, as Kent has explained (perhaps you missed it), the statistics supplied by law enforcement reporting are differently derived than the UCR crime victimization statistics that the PBS story I cited discusses. The UCR statistics paint a truer picture because a huge number of crimes NEVER GET REPORTED TO THE POLICE.

Second, as one of your own entries brilliantly showed, police agency administrators (I think yours was about the Chicago police department) COOK THE BOOKS to make themselves look better. In this, they are no different from any other sort of government administrator.

Third, even if your police-generated statistics were more indicative of the true state of play than the UCR statistics, they would still not be reliable, not at this point. They are, as you note, "preliminary," meaning that the government reserves the right (very quietly) to change them when no one is looking, just as it did quite recently when it had to drastically lower its "preliminary," and very rosy, first quarter economic growth numbers.

You also say that California, the state that constantly embarrasses your side with its combination of early releases and dramatically increasing crime, can be dismissed because it "poorly handled [its] prison releases." You give no documentation to prove this, and it is inconsistent with the views of liberal Stanford Prof. Joan Petersilia, whose work you quoted with high approval on SL&P, here: http://sentencing.typepad.com/sentencing_law_and_policy/2014/07/careful-examination-of-californias-mixed-record-with-realignment.html

There is simply no documented reason to believe that California prison and corrections authorities are singularly stupid. Nor, for that matter, does the fault for more crime lie with them, or their counterparts in Illinois (or Texas or Michigan or what have you).

Here's the part I'm just not getting through: When you put the people who commit crime back on the street, you get more crime. The country's shocking recidivism figures, which I seldom see you cite, prove this in spades. It is even better proven by DECADES of experience even before the last few years of more early releases accompanied by more crime.

Only someone who is truly a partisan of big government would think that it's the government's doing, rather than the criminal's, that accounts for crime. Your faith in expensive government-engineered rehab is misplaced. It's not the government's rehab program here or anger management class there that makes the difference. It's the criminal's conscience, such as it may be.

Bill, I do not question your intelligence or integrity, but I do question your "bona fides as a small government conservative" because you (like far too many liberals) use some failings of government to justify more of the same type of government. You justify continuing to waste much money on an expensive big-government incarceration program by claiming how much it would cost society if we try to cut back on this big government programming. This is just like the liberal who wants to keep extending unemployment insurance based on claims that it would cost society too much if we try to cut back on this big government programming.

I assume you and I would both agree that California is an example in other arenas where big government grows and grows, along with taxes, and yet some big problems do not get much better. In that respect, the crime and punishment problems in California are another example. In contrast, Texas seems to be a state where government gets cut, and that state in turn has led the way with smart cuts to imprisonment and has had a crime control benefit. (Notably, California has very high recidivism rates, whereas Texas and Ohio has much lower recidivism rates)

I do not think government policies cause crime (except via some of its unwise prohibition policies), and I likewise have limited faith in government-engineered rehab. So I advocate less government in all these respects, whereas you just advocate against the parts of government you dislike and want to preserve and expand on the parts of government you like. Ergo, I do not think your "bona fides as a small government conservative" are what you want to think they are. So be it.

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