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"Smart Sentencing" Heads For the Gutter

I was astounded to find on Sentencing Law and Policy this title, "'A Holocaust in Slow Motion:  America's Mass Incarceration and the Role of Discretion.'"  The article is introduced on the blog thusly:

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don't lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels.

Yes, well, we all know what other kind of incarceration was "fundamentally unrelated to actual crimes"  --  concentration camps!

The title is not merely "provocative," as it's being soft-peddled.  It's appalling and disgusting, and it's no mere coincidence that it comes in the immediate aftermath of two gruesome beheadings by the new Nazis, ISIS.  The stomach-turning slur against the thousands of people  --  judges, lawyers, ordinary citizens and crime victims  -- who believe incarceration in our country has helped reduce crime is mind-boggling.
Two commenters on SL&P sum it up well:

That title...is disrespectful to all of those INNOCENT people who were victimized during the Holocaust. It is unfortunate that a sitting federal judge would allow himself to be associated with a title like that. It is doubly unfortunate that a law school would publish [it]. 


Let's see, the genocidal execution of 11 million human beings whose only crime was being Jewish, Gypsy, disabled, gay or another "undesirable" equates to punishment for criminals who have been presumptively provided due process before being incarcerated? That title choice is absolutely abhorrent and the authors and DePaul University should be ashamed of themselves.

Along with its other appalling features, the article is also a point-blank lie:  The degree of incarceration in the United States most certainly IS related to actual crime levels.  Not a single person I've ever heard of doubts this.  There's a debate about how much the relationship is, but it's simply beyond serious argument that putting more criminals in jail has helped reduce crime.

That the sentencing debate has descended so far into the gutter that "Smarter Sentencing" advocates  --  including a sitting judge  --  now sneeringly accuse their opponents of engineering a Nazi-style "Holocaust" tells us more than anyone would care to know about these people's "character."

Anyone waiting for an apology will be waiting a long time.


Hyperbole is the norm in America. Attention getting, blown out of proportion, headlines; political opponents running over-the-top attack ads; and commenters using incendiary language to provoke an audience to read their drivel.

Comparing one's cause-of-the-day to the Holocaust has, sadly, but predictably become commonplace. I am just waiting to read the NYT's next front page headline: America's Unseen Holocaust: The Killing of America's Youth By Militarized Cops.

And, yes, every single unjustified reference to the Holocaust demeans the memory of all of the millions of poor souls that were exterminated in the name of ______ .

Perhaps a mandatory vist to the United States Memorial Holocaust Museum would be in order for Mr. Osler and Mr. Bennett. But I doubt it would do any good as they would probably simply draw an analogy between each victim's horrific plight and demise to some state or federal policy or law that they disagreed with.

I don't disagree with you, but I think we have to expect, and demand, a higher level of discourse from a sitting federal judge and a full professor at a good law school than what we see here.

Not to quibble (and I only read the introduction), the authors were using the term "holocaust" as a general term as opposed to the more specific "Holocaust" which of course describes Nazi World War 2 extermination of Jews, Gypsies and many others.

Of course the issue at end (drug sentencing) is nothing even close to so-called "lesser holocausts" such as white farmers in Zimbabwe or Albanians in Kosovo. It definitely over the top, but it does not bother me all that much, I use example analogies all the time that are probably over the top - in fact just the morning, I told a client the judge "made the worst legal ruling since Dred Scott" - obviously my case is not nearly as important, but it does help make my point.

And lastly, I have never liked the capital "H" holocaust to describe the Nazi atrocities. It implies that somehow that particular holocaust was somehow so much worst than any previous or following holocaust, which I do not think is true. It should be called the "Nazi Holocaust" -

Whether for good or ill, the word "holocaust" has taken on a specific and immediately identifiable meaning, that being what the Nazis were doing to the Jews, gays, Gypsies, etc. between roughly 1939 and 1945. The word is immediately associated with the worst kind of brutality and savagery, undertaken out of sheer hate. When you say "holocaust," that's what everybody thinks of.

This is precisely why Osler and Bennett used it. It's an attention-getter, sure. When used to describe your opponents' position, it's also a gutter-level smear.

My initial reaction when I saw this headline on Sentencing Law and Policy was that if the authors needed to use such a provocative title in an attempt to attract readers, the information in the article (whatever that may be) probably wasn't good enough to stand on its own. Additionally, the fact that it's published on SSRN as opposed to a Law Review or academic journal reinforces my initial reaction.

With that said, I find your post condemning the use of the word holocaust as rather interesting. If I am understanding correctly, you find the use of such an inflammatory and emotionally charged term to be appalling in and of itself, especially when used in the context of academic discourse. What confuses me though is that while you find the term holocaust to be offensive, and you clearly indicate in your comment that the holocaust was carried out by the Nazis (thus one could conclude the latter term is as offensive as the former), you have no problem with regularly using the term Nazi in your discourse. In fact, you even use it in this very article, both condemning the word holocaust and then comparing ISIS to the Nazis. I was not aware that ISIS had formed a political party and obtained majority status in office, from which it was able to institutionalize a system of mass genocide. Additionally, this doesn't seem to be anything new for you:

"I wonder how many of those who routinely accuse federal agents of being Nazis have ever even visited the Holocaust Museum."
- Bill Otis, 7/15/2014

"The United States is not Nazi Germany (a comparison that, astoundingly, I often hear when this subject comes up in debates with libertarians) and it is not the antebellum South."
- Bill Otis, 4/29/2014

"Besides, those released are actually innocent, and were in to start with only because police and prosecutors are Nazis, and manufactured the evidence. "
- Bill Otis, 9/26/2013

" Since this makes me a hopeless, wahoo troglodyte (either that or a prosecution-loving Nazi), excuse me while I recur to my cave."
- Bill Otis, 9/11/2013

"We all know the answer to that. He would be fired the next day. Defense blogs would be ablaze.: "DA Finally Admits Nazi Underbelly of Prosecution Thinking.""
- Bill Otis, 7/23/2013

You appear to use the term Nazi on a somewhat regular basis in your writings, and it is clearly not for the purpose of historical reference. Is it your opinion then that usage of the word holocaust for the purpose of comparison is appalling and disgusting, but usage of the word Nazi for comparison (especially when done for the purpose of sarcasm and/or snark) is acceptable. Your post here indicates you believe the former, and your words from previous posts indicate you also believe the latter. Could you please explain how you differentiate these two terms, with one being unacceptable in discourse, and the other being completely acceptable.

I suppose I'll conclude by using one of your specific-to-group stereotype tactics.

That the sentencing and crime debate has sunken so far in the gutter that opponents of smarter-sentencing - including a former federal prosecutor and adjunct law professor - believe it's okay to continually use the term Nazi in an intentionally inflammatory manner and for the purpose of misguided attempts at sarcasm, tells us more than anyone would care to know about these people's "character."


anonuser879 --

I'll stretch to assume you're serious in this inquiry, rather than just being a wiseguy. So I'll give you a straightforward answer. That said, your question has the aroma of snark, and I would ask, if you have future questions, that the snark disappear.

Your entire comment is premised on the view that I find, or have implied, that use of "Nazi" or "Holocaust" is, as you say, "appalling in and of itself." Not so.
I do not find either word appalling or even offensive per se, and nothing I have written could possibly lead you to any other conclusion.

It's HOW they're used that matters.

If they're used, for example, to say, "The Nazis wanted to conquer Europe," there is obviously no problem. If the use is, "I contribute to the Holocaust Museum" (which I do), that also is obviously no problem.

Similarly, if one were to say, "ISIS is the new Nazism," I have no problem with that either, since, for starters it's true. (And it's therefore so much silliness for you to sniff, "I was not aware that ISIS had formed a political party and obtained majority status in office, from which it was able to institutionalize a system of mass genocide"). (I mean, hello, so what? You know perfectly well that it's mass murder, inhuman brutality and savagery that we're talking about here, not political organization).

If, however, these words are used to argue that people who support mandatory minimum sentencing are like the Nazis, it's a gutter-level slur. I have debated this issue often before live audiences, and never once has my opponent pulled such a thing. It's scurrilous. Mostly it gets done only when the person doing it can hide, as by using the Internet or writing anonymously.

Similarly, when "Holocaust" is used as it was in Osler and Bennett's enormously slanted article, it is not acceptable. The word "Holocaust" has a specific meaning and reference -- indeed, it's PRECISELY BECAUSE everyone knows this, and knows what the reference is, that it's an attention-getter. To disclaim this fact is preposterous.

It was used in the Osler/Bennett article to compare determinate sentencing (and in particular, determinate drug sentencing in federal law) to the torture and extermination of the Jews. Necessarily, it tars the thousands of people who support such sentencing, of whom I am known to be one, as comparable to the sadists who were doing the torturing and exterminating. Such a comparison is not merely "provocative." It's odious and, while we're at it, false.

I will continue to use the word "Nazi" and the word "Holocaust" when appropriate. I have not and will not use either term simply to demean people who disagree with me about federal sentencing law. I wish I could say the same about Osler and Bennett.

Lastly, I reiterate that your central premise -- that I find, or have ever said, that use of "Nazi" or "Holocaust" is unacceptable per se, and am thus hypocritical in criticizing Osler and Bennett for using those words -- is transparent nonsense. So, therefore, is your dog-and-pony show of sentences I have written.

I think this is a fascinating discussion about semantics as I largely agree that using the term "holocaust" in this context is completely out of line (for a supposed scholarly article written by a Federal Judge and law professor) -

On the other hand, if one is trying to make a point, hyperbole can be an effective mechanism even if it ridiculous. For example, some years back, a black baseball player was dissatisfied with some racist comments made by the owner of his team and his response was "I am not going to be *insert bad racial slur* on his plantation anymore". Obviously, getting paid to play baseball is not even remotely comparable to slavery, but his analogy definitely made his feelings on the situation quite clear.

And final point, is while ISIS might be Nazi-ism to Bill, it is just an Egyptian god to me (I'm hoping that makes everyone laugh).

I thought it referred to skating on the pond, as in, "It's been freezing so long that the ISIS hard enough."

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