Bill: If a study could show that, at least for some group of persons/criminals, "abolishing punishment, and replacing it with welfare" would reduce crime, increase personal freedom and save more, would you be strongly opposed to the "radical, shrewd, and ambitious" agenda you seem to think your "opponents" have?

The group of persons/criminals I first have in mind, as we begin this important discussion about American values, are military veterans with PTSD and/or drug problems. I am not sure I would call veterans who come home and commit crimes "victims" --- e.g., I am thinking about some I have tried to help convicted of federal drug crimes like Patrick Lett and Chris Williams --- but I am sure that I am very sympathetic to the concern that veterans (particularly those who were in actual warfare) return home with scars that are rarely obvious and can result in criminal activity.

For folks like Patrick Lett, I will readily admit my "zeal" for being eager to help those who served in battle, especially if/when there is good reason to believe that they helped me and our nation by doing the hard work of defending our freedoms abroad. And that is why, especially if there were good data showing that providing these veterans with social services rather than a prison cell might help reduce crime in the future, I think we might all be on the same team (not "opponents") at least with respect to some (small?) population of offenders who might end up better serving America if given support rather than punishment (especially for first offenses).

Doug --

"If a study could show that, at least for some group of persons/criminals, 'abolishing punishment, and replacing it with welfare' would reduce crime, increase personal freedom and save more, would you be strongly opposed to the 'radical, shrewd, and ambitious' agenda you seem to think your 'opponents' have?"

1. The first thing your comment establishes is how shrewd and ambitious your side truly is. I appreciate the verification!

2. As to shrewd: You pick out the most sympathetic possible class and want to start down the road to "welfare not punishment" with them. Like any smart lawyer, you know to pick the best test case to go with FIRST. Not for nothing did you go to Harvard.

3. As to ambitious: The problem is that FIRST is what it will be. The next class for special treatment will be those who suffered abuse as a kid. The third will be those who were raising money to help a sick child. The fourth will be those who at one time served on the police force and did years of work serving the public. The fifth will be those whose opportunities have been cramped by racial prejudice. The sixth will be..........

You see how it goes -- and so do I. There will be no such thing as "just this one exception." Every legal clinic from coast to coast will jump on the exception bandwagon, both politically as a policy issue and legally as an equal protection issue (the argument being that the legislators who allowed Exception Number One are really a bunch of bigoted thugs for not allowing the next three thousand).

And I suspect that you'll be pitching in, not so?

It's all true, Doug. I wasn't born yesterday! I know how it works! I'm happy to say I got some of my lessons from your many posts on Miller and Graham, in which you have so frequently argued how (what you see as) the most important rationale of those cases should be expanded and spread far and wide throughout sentencing jurisprudence.

4. "The group of persons/criminals I first have in mind, as we begin this important discussion about American values, are military veterans with PTSD and/or drug problems."

Only neither of the men you mention actually had a "drug problem." Like most criminals, they had a greed problem: They wanted to make a fast buck, or a lot of fast bucks, doing something they knew was illegal. Normal jobs are, as we have seen so often, for suckers.

5. Although it's probably gilding the lily at this point, let me return to your first line, in which you ask what my view would be "if a study could show..."

Leftist academics (you're more libertarian) are forever coming up with slanted "studies" that show whatever they want them to show. (Leftist academics are not the only groups to do this, for sure, but they're as shameless, and as frequent, as any).

The one that comes most readily to mind is the almost comic Brennan Center "study" that purports to show that the very substantial increase in incarceration over the last 15 years had essentially NO EFFECT WHATEVER in the strong reduction in the crime rate over that period.

I don't know what gymnastics the Brennan Center went through to get to that result (or whether it's just made up), but things that can't be true aren't true.

I think I'll keep my skepticism. It's been earned, cf. also years of aggressive academic lying about Roger Keith Coleman.

6. One final note, to return to the central point of my post. The article you put up on SL&P does indeed argue for lowering sentences for violent criminals, is that not so?

And haven't we been promised for years that the sentencing reform movement will, to the exact contrary, focus only on "non-serious, non-violent" offenders?

Do you see why I titled my post, "The Mask Slips"?

I do not think there is much doubt, Bill, that many persons concerned about mass incarceration want to lower sentences for violent criminals. I will be the first to say that I do not think anyone should get LWOP sentences. Also, arguably Weldon Angelos and Chris Williams were both "violent criminals" and I wanted both of them to get less than effective LWOP sentences.

You are right that some advocates will say they are only concerned with reducing sentences for the most sympathetic of defendants, but that is largely because you and fans of toughness do not want to even do that. You oppose the SSA and the JSVA and other reforms that would allow for lower sentences even for "non-serious, non-violent" offenders. How can you blame advocates for wanting to start there and make that the initial focus unless and until those on the other side help change that extreme? Of course, you explain why you do not want to help do better for one group because you fear you will then lose the battle on the next front. Not sure why that should worry you if you really have the courage of your convictions, but perhaps that is the real underlying story. Once folks are no longer scared about doing better for Weldon Angelos and Chris Williams, they might not be scared by all your other claims that crime will rise if we even back off tough on crime policies.

Doug --

"I do not think there is much doubt, Bill, that many persons concerned about mass incarceration want to lower sentences for violent criminals."

Then I trust that the next time one of them testifies before Congress or holds a news conference, he or she will start out with, "Let me be clear, we want to lower sentences for violent criminals."

I'll bet you $500 here and now that doesn't happen. Are we on? (Fear not. When I win, I'll contribute the money to the charity that was formed for the families of the two policemen who were assassinated in New York by Mr. Nicey).

"I will be the first to say that I do not think anyone should get LWOP sentences."

Again, I'll be waiting for those seeking abolition of the DP to announce: "Although many of my colleagues have promised to support ironclad LWOP in order to urge elimination of the DP, in fact they secretly believe, as I do openly (for a change), that no one should get LWOP sentences. Anyone falling for this 'ironclad LWOP' line is just as big a sucker as we abolitionists have been playing you for."

My bet is available for that one, too.

"You are right that some advocates will say they are only concerned with reducing sentences for the most sympathetic of defendants, but that is largely because you and fans of toughness do not want to even do that."

How 'bout if those advocates tell the truth about what they're thinking regardless of the position of their adversaries? Isn't that what honest people do?

"You oppose the SSA and the JSVA and other reforms that would allow for lower sentences even for 'non-serious, non-violent' offenders."

Part of the reason for that is that I know the "reforms" won't stay limited for more than five minutes to "non-serious, non-violent" offenders. Another part is that I don't trust the other side's definition of "non-serious" or "non-violent," and I will give California's absurd (and in some cases, lethal) interpretation of those words as an example. A third part is that "non-violent" is used as a catchphrase to convince the public it actually means "non-harmful," which is completely and intentionally false. There are numerous other parts, starting but hardly ending with the fact that I want to suppress drug abuse.

But for however that may be, it is not my opposition that's the problem. The JSVA was not even brought up for a committee vote BY ITS OWN SPONSOR, Pat Leahy. Why don't you take it up with him?

Have you?

And when the SSA got through committee, ace liberal and (then) Senate Majority Leader Harry Reid also did not so much as bring it up for a vote, not even as a favor to his buddies, the Deputy Leader (Dick Durbin) and the very senior Sen. Leahy.

Why don't you take it up with Harry?

It's baffling that you think I'm the problem. The Democrats, of whom I am assuredly not one, had complete control of the Congress for four years, the Senate for eight, and the Presidency for six.

But I, a part-time law professor with no power, am the problem???

"Of course, you explain why you do not want to help do better for one group because you fear you will then lose the battle on the next front. Not sure why that should worry you if you really have the courage of your convictions..."

This is wrong on a large number of fronts. First, I oppose lowering sentences because the regime of higher sentences has helped reduce crime, and because I think criminals can avoid prison altogether by making the easy choice to live normal, honest lives. It doesn't need to go any farther than that.

Nonetheless, second, yes, I am aware that once we start lowering standards (and sentences), it will be harder to stop. What I'm missing is why it's wrong for me to understand the concept of the camel's nose. Zillions of people understand it. Why shouldn't I?

Third, why should I fear losing the NEXT battle when my adversaries can't get out of their own back yard in the PRESENT battle?

Fourth, in fact, I have publicly (and now repeatedly) said that I support some kind of commutation for Weldon Angelos, despite the fact that he made his own bed. So it is simply factually incorrect to say blanketly that I oppose "one group" of drug offenders. For clemency purposes, each case should be examined individually.

Lastly, why does it so often get to be about me and my "courage" (or lack of it)? I am not the subject of, and my supposed numerous character flaws not relevant to, the sentencing reform debate.

Debunking Racial Disparity Myths of Police Shootings and Race
Ferguson Highlights Distortion of Facts in Policing and Race Issues
By Michael P. Tremoglie

According to the FBI, blacks were 43 percent of the known killers of law enforcement officers during the period from 2004-2013. But blacks were only about 13 percent of the U.S. population in 2013. You will not read this in the New York Times.

The Ferguson incident provides another exploitation opportunity for the racial fearmongers and hatemongers. They, once again, along with their media claques, distort the facts surrounding law enforcement and race. The narrative is that of police officers as racist murderers. One of their favorite casuistries is the use of the statistical racial disparity. But, as we have just seen, such disparities cut both ways.

But the fear- and hatemongers have a well oiled public relations machine. They are able to communicate their message. Activists, as well as the soi-disant guardians of Americans’ civil liberties, ally themselves with pietistic pundits. Together, this coterie use their media myrmidons to wage a disinformation campaign for the political benefit of a certain few on the left. They make specious arguments using the racial statistical disparity canard. For example, they correctly state that blacks are disproportionately imprisoned for murder or that blacks are disproportionately shot by police. But they incorrectly - explicitly or implicitly - ascribe this to racism.

The statistical disparity does not prove racism. Because statistical disparities are found in criminal justice statistics almost uniformly - not to mention professional athletics. These sophists omit all the facts because to state all of the facts would hinder their objective.

But as someone once said - and it was not Harry Reid although he quoted Adams often - facts are stubborn things. What follows is information that will not be found in any other news source. Applying the statistical disparity argument to this data debunks the myths of racism and police shootings.

According to the Bureau of Justice Statistics, From 2003 through 2009, a total of 4,813 deaths were reported to the Bureau of Justice Statistics’ (BJS) Arrest-Related Deaths (ARD) program.
Of these, about 6 in 10 deaths (2,931) were classifie as homicide by law enforcement personnel

Homicides by law enforcement personnel accounted for 61 percent of the arrest-related deaths for the period 2003-2009. Homicides by law enforcement accounted for 60.9 percent of whites and for 61.3 percent of blacks killed while being arrested for this period.

It was estimated, by the FBI, that during these same seven years state and local law enforcement officers made nearly 98 million arrests. This means that only 5 thousandths of one percent of arrests involved the killing of the person being arrested. Think about this - one out of every 20,000 arrests result in someone being killed. According to one source, there is a four times greater chance of being electrocuted than being killed while being arrested.

But now look at it from the other side. According to the FBI, for the period from 2004-2013, 43 percent of alleged known killers of police were black -who comprised about 13 percent of the population.

The statistical disparity argument is discredited again, because we see that blacks kill police officers in an amount three times greater than they are among the general population. Obviously, this is not because of racism - unless the racial hate and fearmongerers want to say that blacks who kill police are racist because they are disproportionately represented among killers of police.

The most comprehensive study of homicides by police that I could locate was conducted by the Bureau of Justice Statistics of the Office of Justice Programs, U.S. Department of Justice, and published in March 2001. The report titled Policing and Homicide 1976 to 1998, listed the demographic information about citizens killed by police that were determined to be justifiable homicides and about police killed by citizens.

The report stated that black officers committed a statistically disproportionate amount of justifiable homicides by police in 1998. White officers were 87 percent of America’s 641,208 police and accounted for 82 percent of justifiable homicides by police in 1998. Black officers were 11 percent of police forces and accounted for 17 percent of all justifiable homicides.

Black officers also killed black felons more than white officers and vice-versa. The black-officer-kills-black-felon rate was 32 per 100,000 black officers in 1998, which is higher than the white-officer-kills-black-felon rate of 14 per 100,000 white officers. The white-officer-kills-white-felon rate was 28 per 100,000 white officers in 1998, which is higher than the black-officer-kills-white-felon rate of 11 per 100,000 black officers.

The monograph also stated that young black males murdered police officers at a rate almost 6 times that of young white males. Young black males made up about one percent of the U.S. population but 21 percent of felons who murdered a police officer from 1980 to 1998. Young white males were eight percent of the population but 20 percent of the murderers of law enforcement officers for the same time frame.

Most justifiable homicides by police are intraracial. According to FBI national data on justifiable homicides by police from 1976 to 1998. The officer’s race and the felon’s race were the same for about 65 percent of justifiable homicides by police.

Finally, what is probably the most shocking fact is the attitude of the public. According to the University of Chicago's prestigious National Opinion Research Center, General Social Survey, 12.8 percent of Americans, in 2012, who said that they can imagine a situation where they would approve of a police officer striking a citizen - said that a policeman should not strike an adult male citizen who was attacking the policeman with his fists. What is even worse is that this figure has increased about four times what it was nearly forty years ago.

Simply put, about 12 of every 100 Americans, do not think police officers should defend themselves even when the officer is being attacked by someone using their fists. It is quite possible that the majority of these people are journalists.

After reviewing the facts, one can see that there is not a massive racist genocide of black men by police. One can see that the racial disparity argument is distorted for political reasons.

Yes, blacks are statistically overrepresented in shootings by police, but they are also statistically overrepresented as killers of police. Yes, blacks are overrepresented in crime categories - but as both victim and perpetrator.

What needs to be determined is why.

It is hard for me to respond to your lengthy post, Bill, especially with this lengthy commentary about race in between. I am glad you raised the issue in a new post, and I trust we will continue there, though I will close by noting that AG Holder's advocacy for less use of incarceration always was repeatedly stated in terms of his general belief (which I share) that "too many people go to too many prisons for far too long for no good law enforcement reason." That is the problem reformed want to deal with, but also a problem that I surmise you do not acknowledge or agree with.