I want to thank NPR once more for giving me the chance to chime in about why "sentencing reform" (translation: meat-axe lowering of sentences) is a bad idea.
As the show was presented this morning (transcript here), my principal adversaries turned out to be Judge John Gleeson of the EDNY, and Prof. (and Sentencing Commissioner) Rachel Barkow of NYU Law School.
Each made an important point, and both are dead wrong.
Judge Gleeson noted that we have filled federal prisons with non-violent offenders. In discussing the point, however, Judge Gleeson did something that has become typical of "reform" advocates: He talked about non-violent offenders as if they were non-harmful offenders. This is simply and grossly false, as Judge Gleeson cannot help knowing.
I explained it to the Federalist Society National Convention Criminal Law panel last month:
For punishment purposes, however, the correct question is not just whether the offense involves violence; the question that matters is whether it involves harm.Non-violent offenses do incalculable harm. The trafficking and consumption of hard drugs, for example, is one of the most socially destructive enterprises going on in America, even when if comes without direct violence. There's nothing violent going on when a teenage addict slides the needle into his arm, but if he gets the dose wrong, he'll be dead by nightfall. There's nothing violent when a nine year old is enticed to pose for obscene pictures, but her childhood has been poisoned. There's nothing violent when an older couple is swindled out of their life savings, but their hopes for the future are gone. The siren song of the "low level, non-violent" offender will lead us into a swamp in which people who can't afford law degrees will drown.
In addition, while Judge Gleeson appeared to concentrate on drug offenses, his actual belief in the desirability of lower sentences reaches across the board. The most prominent example of how far he is willing to go to implement a program of lower sentences, no matter how serious the crime, is found in his handling of the Francois Holloway violent carjacking case, which I put on display here and here. In that case, he persuaded US Attorney Loretta Lynch to move to vacate previously obtained convictions even though both he and Ms. Lynch knew the convictions were sound and that Holloway was legally and factually guilty.
Prof. Barkow made a different point. She did not dispute my argument that now, in the era of so-called "mass incarceration," we are safer than at any time since the Baby Boomers were in grade school. She maintained, however, that criminologists don't know why.
That is extremely misleading. They might not know precisely what contributions the various crime-suppressing factors have had, but I don't know of a single serious student of the question who doesn't think the increased use of imprisonment has, over these last two decades, averted thousands, or more likely millions, of crimes. C&C has covered this point before as well.
This is not rocket science. When you incapacitate criminals, you get less crime, and when you incapacitate a lot more criminals, you get a lot less crime. Pretending that it's an indecipherable mystery is whistling past reality.
Bill,
Your second point seems logical to my simple mind. I think it can be reduced to the following:
1. The vast majority of crime is committed by a small group of offenders who recidivate at alarmingly high rates.
2. People generally can't commit crimes (at least that harm the public at large) when they are incarcerated.
3. Incarcerating that small group of offenders for longer periods of time will result in less opportunity for that small group of offenders to commit crimes.
4. The overall crime rate will fall.
I am sure I am missing something--which is why I am neither an Article III judge nor a law professor at an "elite" school.
-A Simple Mind
I don't think you are missing anything, "Simple." You have nicely summed up the thesis of James Q. Wilson in Thinking About Crime (1975).
Wilson was one of the most brilliant men I ever met. Yes, he was a professor at Harvard at the time he wrote the book, but of government, not law.
He explained to America what to do. We did it. It worked.