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A Conversation Among Conservatives About Sentencing Reform

At its National Convention just concluded, the Federalist Society sponsored a panel discussion among conservatives on sentencing reform.  It was an excellent group featuring John Malcolm of the Heritage Foundation and Marc Levin from Right on Crime, and  --  expressing a more skeptical view  --  Judge and former Attorney General Michael Mukasey, and yours truly.  The moderator was Judge Bill Pryor of the Eleventh Circuit.

It was pretty much a packed room.  Among the audience members was none other than C&C's leading light, Kent Scheidegger.

I'm grateful to the Federalist Society for sponsoring this important give-and-take and for being included among such experts.

A tape of the event is here.  (For those interested, I start at about the 35:00 minute mark).


Professor Otis,

This was an interesting debate. I'm always impressed by your eloquence and wit, even though I strongly disagree with your views.

However, I was shocked by the former Attorney General's lack of grace. First he argued that he opposes front-end sentencing reform because he does not want to "decriminalize conduct" or to send the message of "home free all, you're all free to go." The sentencing bills pending in Congress do no such thing, and it's disgraceful for a man of his intelligence and stature to suggest otherwise.

Second, he argued that "nonviolent drug offender" is an oxymoron, citing Mexican drug cartel beheadings as proof. Such a statement may be fair game for a politician, but any lawyer making such an argument would be laughed out of court.

Look, I know the Federalist Society is an insular body and folks should have space to joke around. But given the profound moral implications of incarceration, a former Attorney General should behave with more dignity.


Kudos, Jeremy, for calling out another US Attorney General for taking an unduly political perspective to the debate over sentencing reform.

As you likely know, Bill, is often quick to assail our current AG Holder for putting politics over law in this debate. It seems that, were Bill being truly "fair and balanced," he might lodge the same criticisms against Holder's predecessor in the top spot at DOJ.

Jeremy stated: "Such a statement may be fair game for a politician, but any lawyer making such an argument would be laughed out of court."

I am not sure why you have an issue with this.

Saying that "nonviolent drug offender" is an oxymoron is true in practice, regardless of whether it would pass muster in a courtroom. He was not in a courtroom.

And if sentencing reform will result in criminals being released or not going to prison, it does send that message whether you like it or not.


You look foolish comparing Mukasey's comments with Holder's actions. Even if you find Mukasey's statements hyperbolic, it is a far cry from deciding whether you will enforce voter intimidation laws based on the skin color of the defendant.

I very much appreciate Jeremy's compliment. If the overall debate featured participants of his good will, this town would be better off.

As to his substantive views, I respectfully dissent, for the reasons stated in my presentation, and the one I gave before the House.

I don't think it's at all accurate to call Judge Mukasey's outlook "political," except in the vacant sense that it is shared more by Republicans than by Democrats. This makes it inappropriate? I guess the voters thought otherwise. But as Mr. Obama's idea man, Prof. Gruber, has taught us, what do they know?

In addition, remarks by a sitting AG are vastly different from those of a former AG, who no longer wields the power of government. I would have thought this to be too obvious to have to point out.

As TarlsQtr notes, the association between drug dealing and violence is well established. To those who think the nation should have continued to tolerate the drug-fueled murderous rampages of the Sixties and Seventies, and the lenient, what-me-worry, judges-must-be-served sentencing of those days, fine, it's a free country. Free, no thanks to druggies and their violence-happy pals.

Talk about being political, Tarls and Bill; why do you think a conversation about sentencing reform would be improved or advanced by talking about voter intimidation laws or Prof. Gruber? Both those references are about politics and not even sentencing politics. I hope that, in addition to exhibiting good will, this discussion will also stay on-point.

Trying to get back on topic, I wonder if Tarls and Bill think everyone involved state-legal marijuana regimes should be deemed a "violent" drug offender. Even just focused on the single state of Colorado, there are tens of thousands of persons involved every day in breaking federal drug laws --- based on estimates that roughly 20,000 folks are employed by the state-legalized industry. Would you say it is an oxymoron to call all those Colorado folks --- or the many thousands breaking federal marijuana laws in dozens of other states --- "nonviolent drug offenders"?

Most critically, if you think (as I do) that pot prohibition may ultimately fuel "murderous rampages" more than pot itself, would it be fair to say in a debate that "nonviolent DEA agent" is an oxymoron? Of course, that is only a joke, but it is a designed to help you see the offense associated with saying every illegal drug user is, categorically, a violent offender.

I am eager to make this a "good will" conversation about proper legal/policy terms, not about who is being more political in their rhetoric. Thus, as a matter of sound discussion, I really want to know if you think it is improper to use the term nonviolent drug offenders when referencing any illegal drug users.

Doug: Based on 35 years of experience in the field, I would estimate that over 90% of drug dealers protect their stash with a gun or other deadly weapon.

This combustible combination is often not reflected in counts of conviction, hence the ongoing pollyannaish characterization of drug dealers as "non-violent offenders."

I do not question your statistic, mjs, but at issue his is not just whether many illegal drug dealers can be violent but whether ALL drug OFFENDERS should be always called violent criminals. Of course many illegal drug dealers --- like many illegal bootleggers generations ago --- are ready to commit violent crimes in service to their trade. But that fact does not mean it is impossible to be a nonviolent drug offender -- just as it was also possible to be a nonviolent drinker during alcohol Prohibition.

This violence lingo is important because it seems that the tough-on-crime drug warriors have come to see that only by linking drugs to violence can they continue to promote effectively big government prohibitions and tough punishments. But just as society came to see alcohol use and abuse to be better handled as a public health regulatory concern rather than a criminal justice punishment concern, I think more and more are coming to see that the same approach might work better for marijuana and perhaps even other drugs.

But rather than have a forthright debate over modern drug policy, it seems some folks rather just peddle the claim that every drug offender is a violent offender even though this is patently not true.

1. I don't believe Judge Mukasey said, "ALL drug OFFENDERS should be always called violent criminals." The truth of the matter, as mjs correctly notes and history has proven beyond serious debate, is that violence is endemic in the illegal drug business. It's time to focus on that instead of the sidelight of attributing to Judge Mukasey remarks he did not make.

2. You state, "This violence lingo is important because it seems that the tough-on-crime drug warriors have come to see that only by linking drugs to violence can they continue to promote effectively big government prohibitions and tough punishments."

That is simply not so.

First, it completely ignores the fact that Smarter Sentencing advocates skate around the massive HARM that drugs do, and pretend that only direct VIOLENCE counts. I spoke about that a good deal in my remarks, and I see no response to it.

Second, the premise could hardly be more wrong. The Smarter Sentencing Act didn't win. Indeed, it didn't even show up for the fight. Where was the floor vote Harry Reid promised? Where is a single newly elected Republican Senator who will help the SSA get farther than it did last time?

It's just so much political fluff to make like proponents of strong sentencing are on the defensive in Congress. To the exact contrary, they won last time and will win even bigger this next time even assuming the SSA gets re-introduced in Chairman Grassley's committee, which I doubt.

3. I'm amazed that there is so much blind faith in the supposed ability to limit early releases only to those who'll commit no violence -- even if violence were the only problem, which it isn't. Why do you, the libertarian, have so much faith that government bureaucrats can unerringly distinguish between those who will be a menace and those who won't? And why should the public have to bear the risk of those bureaucrats inevitable, numerous and disastrous errors?

Couple of quick responses:

1. Glad you admit, Bill, that nonviolent drug offender is not an oxymoron. I also hope you will admit as well that the majority of drug offenders --- as opposed to major drug dealers --- are nonviolent. I do not dispute that illegal drug dealers (like illegal bootleggers generations ago) commit violent crimes in service to their trade. But I hope you will not dispute that most illegal drug users are nonviolent, just as most illegal alcohol users were nonviolent generations ago.

2. I agree 100% that drugs do massive harms --- as go guns and alcohol and tobacco and transfats and Big Gulps. At issue in this debate is how best to reduce these harms in a country committed to personal liberty. As a libertarian, I greatly prefer the public health harm-reduction approaches we try with alcohol and tobacco and transfats and Big Gulps rather than a big-government prohibition approach. You are right, of course, that SSA is stalled because it seems that big-government GOP types like you and Senator Grassley still believe that a big-government prohibition approach is a better harm-reduction strategy. I respect that perspective, I just this is both wrong on the facts AND inconsistent with American commitments to human liberty even when that liberty creates some risk of harm.

3. I have no blind faith in big govt bureaucrats, Bill, which is why I am so consistently tough on prosecutors like you. You have faith that the big govt bureaucrats who work as prosecutors make good decisions about who to send to prison in the first instance. As Justice Scalia is often quick to note, prosecutors and judges who sentence folks to long prison terms should not be blindly trusted, and I think the huge taxes we pay to support costly and harmful pot prohibition regimes and excessive incarceration terms serve as good examples of how the public already endures the big govt harms of prosecutorial "bureaucrats' inevitable, numerous and disastrous errors."

Of course, you do not see it that way. In your view, only prosecutors and judges who are not eager to be as tough as you ever make mistakes. It was not, in your view, a mistake to imprison Weldon Angelos for decades for a few pot deals or to require Holloway to get a functional life term because he exercised his right to a jury trial. Instead, you think it is a mistake to ever consider reducing the severity of sentences (and damn the taxpayer or human costs).


Your replies cover a lot of ground. I'm going to try to take things up one at a time.

My first question is this: Having acknowledged that government bureaucrats will make bad decisions and grant early release to prisoners who -- contrary to the bureaucrats' expectations -- then commit violence up to and including murder after they're back on the street, how many such episodes should we tolerate before calling a halt to early releases? Three? Ten? A hundred?

Please be specific.


Second question: You say, "I have no blind faith in big govt bureaucrats, Bill, which is why I am so consistently tough on prosecutors like you."

I'm just mystified at this. As I thought you knew, I am not a prosecutor and haven't been one since the last millennium. Did I fail somewhere to spell this out?


Third question: Do you really think Big Gulps and Big Macs rationally belong in the same discussion as heroin and meth?

Fourth question: You mention harm reduction, but neglect to note that harm has been massively reduced by the tens or hundreds of thousands of crimes that were NOT committed because the criminals who would have been out on the street to commit them were locked up instead.

Has there been no harm reduction resulting from the massive decrease in crime over the last generation?

Shouldn't we celebrate rather than condemn the measures that helped bring about such a big reduction in crime?

Fifth question: Who has the better chance to avoid the whole crime/incarceration problem to begin with -- the government, by changing the law; or the criminal, by changing his morals and his choices?

Doug: Whether all drug offenders should be labeled violent criminals is not the point. The main tenet of the Progressive attack on "incarceration nation" has been based on their thesis that drug offenders, by and large, are non-violent actors.

This is the canard that I wish to expose.

I will start with mjs by just making sure we distinguish drug offenders and drug dealers. I suspect that drug offenders, by and large, are non-violent actors given that surveys indicate that at least 10% of the nation uses illegal drugs and I suspect the vast majority of these 30 million drug offenders are not violent actors. I suspect that drug DEALERS may be a different story. (The hard follow-up question is whether prohibition is what makes drug dealers more likely to be violent. Few legal opiate drug dealers -- e.g., doctors -- are violent. So is it being an opiate dealer or being a prohibited dealer that is really making heroin dealers violent?)

Now to Bill's various points:

1. I will give you specifics, Bill, on early release "error rates" when you answer my version of the same question on the front end: "Having acknowledged that government prosecutors/judges will make bad decisions and convict defendants who -- contrary to the these bureaucrats' expectations -- are not in fact guilty of the charged crimes, how many such episodes should we tolerate before calling a halt to any and all criminal convictions? Three? Ten? A hundred?"

You and I both know you do not stop the criminal justice system because 1 (or 2 or even 10) out of 100 convicted defendants turn out to be innocent. Similarly, I do not think it is a show-stopping argument against early releases that 1 (or 2 or even 10) out of 100 ends up committing a serious crime.

I am prepared to say that whatever "error rate" you are willing to tolerate with government prosecutors/judges sending people to prison is probably about the same error rate I am prepared to tolerate for the same prosecutors/judges making decisions about letting people out of prisons. Does that sound about right to you (even though it still prioritizes securing over liberty)?

2. Sorry I keep thinking of you as a prosecutor, when I should remember to call you a former prosecutor. It is just you are always so quick to tell me you know more about prosecutors than I do (which is true), so I think of you as a spokesperson for that huge class of government bureaucrats known as prosecutors.

3. It seems to me that the reason sugary drinks and hamburgers are so safe and heroin and meth so dangerous is because the former are legal and regulated while the latter are subject only to black market structures thanks to prohibition. Of course, we are finally coming to see the dangers of a legal opiate marketplace due to recent spikes in overdoses, but that is largely because Big Pharma has proven to be such an effective drug pusher (and has kept a safer pain reliever people can grow themselves illegal). We also, notably, have an obesity problem that is a MUCH bigger threat to US public health than heroin or meth because Big Soda and Big Fast Food are also really good at pushing us to consume stuff which is unhealthy but fun.

So, yes, I do think the same fundamental questions arise when Michael Bloomberg tries to reduce the harms of obesity by restricting Big Gulps and Michelle Obama tries to get all of us to eat fewer Big Macs and when the DEA seeks to stop anyone from buying pot or heroin or meth. At issue is, within a nation "conceived in liberty," what types of government paternalism to reduce self-inflicted (and related) harms should we embrace. Notably, folks on the right are quick to complain when Bloomberg or Obama suggests government regulate Big Gulps or Big Macs (or guns or tobacco or greenhouse gases), and more of them are coming to see that the same fundamental concerns are at stake as we work toward sound modern criminal justice drug policy.

4. I agree that mass incarceration reduces various harms, but it does so at a HUGE cost to liberty. We could, of course, end the harms of car accidents by impounding all cars, but at what cost to liberty? As a fan of liberty, I am always concerned about claims we can only reduce harms --- harms from drugs or from cars or from guns or from other potentially harmful products --- only through massive reductions in liberty.

I do celebrate crime reduction, while ALSO seeking more liberty enhancement. Notably, during the Obama years, we have gotten less crime AND less reductions in liberty. I just want to find ways to keep this great MOJO going through continued reforms.

5. Of course I want criminals to change his morals and choices --- just like I want all drivers around me to stop texting and drinking and drive real safe. But just because I want to encourage better individual behavior does not mean I ought not change the laws to enhance liberty along the way.

I hope I have responded to all your questions and concerns while exhibiting good will, too.

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