Bill,

An on-point study:

http://link.springer.com/article/10.1007%2Fs00127-013-0783-y

The title says it all:

"The 1 % of the population accountable for 63 % of all violent crime convictions."

All good questions, Bill, but do you think the public would have the same answers if we changed the question to focus on increased spending on health care (paid mostly by the government through higher taxes) rather than increased use of incarceration (paid mostly by the government through higher taxes)?

Though you might disagree, I think it would be fair to ask in this general conversation about the use of public monies and public safety:

1. How much of the huge drop in crime over the last 25 years is because of the increased spending on health care?

2. What is the electorate's view of the current state of crime and spending on health care in America?

3. Does the public think the health care system has made consistently sound, or unsound, decisions about who should get medical care and for how long? Does the public think, if we change the system, that roughly the same people will make consistently sound, or unsound, decisions about who should not get medical care?

Please understand, I bring this up not to play politics, but because the data tell us that the only public expenses that have exceeded increases in criminal justice spending have been increases in health care spending. I think a reasonable empirical argument could be made that increases in health care spending may be more of the causal factor in the crime decline than increased incarceration spending. (Also, as you note, even with increased incarceration, we get a 75% recidivism rate for those incarcerated. I think there is good evidence that those who get lots of health care resources do not commit crimes at nearly that rate).

Doug --

I have absolutely no objection to your questions getting polled. Indeed, I hope they will be. But I would like to see mine polled as well, and I think their answers are particularly relevant to the sentencing reform debate.

As I have said many times, I think there are a number of significant factors in the crime decrease -- more incarceration, more police, more targeted policing, and an aging of the most crime-prone segment of the population. There may be others as well. My only point is that we should find out from serious and neutral inquiries.

Doug-

Asking people to choose between more government spending on health care or more government spending on incarcerating criminals actually makes some sense. Historically, reducing incarceration results in more violent crime. The victims who survive certainly need healthcare.

I am pleased to see consensus on the value of asking the people these questions. Does CJLF have the resources to fund a poll with these questions? I am not sure what a small poll costs, but I would happily seek funding from OSU if/when I could be involved in the creation of the questions to be asked.

Of particular value, especially in these context, would be to focus on different age demographics. My guess is that younger folks (e.g., those under 40) and older folks (e.g., those over 60) might have very different views on all these questions. In particular, I think age (certainly more than party affiliation) is the biggest dividing line on lots of hot-button political issues of the day.

I am serious about wanting to work with Bill or others at CJLF at putting together a good objective poll to look at modern state/federal government spending on criminal justice and modern state/federal government spending on health care.

Doug:

These is no consensus, you simply missed by point. I'll sharpen it. You suggest a false choice. Asking people to choose between health care and incarceration would provide no meaningful information about either issue. A decision about what is the best way to handle criminals has nothing to do with whether most folks would like more government subsidized health care.

If CJLF ever has the money to fund a poll, it would be focused on what people believe is the best way to protect them from known criminals.

I am not suggesting asking people to choose, rather the question is to ask people whether they think the government in various areas of considerable spending gives them a sound return on their tax-paying investment.

Bill seems to think that most folks think they are getting a good return/benefit for their tax dollars being spent on government criminal justice expenditures. I wonder if this is true, especially with respect drug war expenditures. I also wonder if most folks think they are getting a good return on tax dollars spent on government health care expenditures.

On #1, the National Research Council considered this question last year and concluded that "the growth in incarceration rates reduced crime, but the magnitude of the crime reduction remains highly uncertain and the evidence suggests it was unlikely to have been large." (See: http://www.nap.edu/openbook.php?record_id=18613&page=130.)

And even if incarceration reduces crime on the margins (e.g., by locking up a serial rapist), this approach has diminishing returns, particularly for drug offenses. There's little evidence to suggest that more and longer prison sentences reduce either drug use or sales. Many people who sell drugs do so to support their own substance abuse habits. As long as there is a demand for illegal drugs, there will be a ready supply of sellers.

Bill: There are a number of polls, albeit perhaps subject to being seen as slated (like many polls), that suggests the public supports significant reform of harsh sentencing laws:

Via a FAMM Oct 2014 press release: "A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses. That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question." (See also FAMM collection of polls here: http://famm.org/law-enforcement/what-the-public-thinks/)

I agree 100% that taxpayers spend a lot more on health care and education than on incarceration in this country, and you may well be right that most of the public is generally pleased with how much we spend on incarceration (and on the death penalty in expensive cases like Jodi Arias). But, most critically, I share your interest in finding out what the taxpayers themselves think. And I suspect most younger folks (e.g., those under 40) would generally like to spend less on incarceration and health care (and perhaps more on education), whereas and older folks (e.g., those over 60) would generally approve on our spending more on incarceration and health care (and perhaps want less spending for education).

Certainly the outcome of all the most recent sentencing reforms voter initiatives concerning these sentencing/drug war matters --- e.g., 3-strikes and Prop 47 reforms in California AND marijuana legalization reforms in Alaska, Colorado, DC, Oregon and Washington --- suggests that voters are generally coming around to the view that it is time to cut-back on some of the tough on crime laws.

I generally view elections, rather than just polls, as a good indication of what voters really care about. And, as listed above, I can point to 7 recent election results suggesting voters want at least some so-called "smart on crime" reforms. Other than the California vote for the death penalty in 2012, are there any other significant recent examples of voters actually voting for a tougher set of sentencing laws?

Couple of continued follow-up on this valuable conversation:

1. Do you have any strong faith that social scientists could/would get us a "definitive study" that would "pin down much more precisely the extent to which increased incarceration has reduced crime"? We have had lots of different folks exploring the arguably easier question of whether capital punishment reduces murders, and there is nothing close to a definitive assessment in the empirical literature. I agree 100% that a definitive study would be very valuable, but I am not sure it is possible (e.g., consider all the competing/conflicting studies about gun control and crime rates).

2. It seems based on the votes by California citizens in 2012 and 2014 that one large swatch of the public does believe California's laws put too many people in prison for two long. Do you dispute that these election results provide strong support --- albeit in one very blue state --- that the public does agree with AG Holder than we should reduce the severity of our sentencing laws? In other words, at least in one jurisdiction, your question has been answered in an actually election, not in a (potentially slated) poll.

3. My guess is that, if the poll asked are too many people are in prison for too long for nonviolent drug offenses, people would say yes. If the poll asked are too many people in prison for too long for violent offenses, people would say no. And, notably, very few people are advocating for significantly reduced sentences for violent offenders (other than juveniles) --- nearly all the reforms proposed in Congress and elsewhere are focused on what it seems people now favor in terms of reduced sentences (or increased judicial authority to reduce sentences) for those persons perceived by the public to present less real risk to public safety.

4. If we had something even close to a "definitive study" showing that ending marijuana prohibition helped reduce crime (as we now know that the end of alcohol prohibition did), would you join my efforts and other of others to end this potentially harmful big government, anti-freedom policy?

As I suggested in another thread, Bill, I hope you will start to vocally support efforts to make marijuana de jure legal since you think it is already de facto legal. I think the law in the books should aspire to be in keeping with the law in practice, and so your assertion of de facto legality should prompt an openness for de jure legality here.

Hey Bill: Did you see the new poll out today:
http://sentencing.typepad.com/sentencing_law_and_policy/2015/03/new-right-on-crime-poll-reports-texans-want-to-spend-more-money-on-effective-treatment-programs-rath.html

Not sure if this answers your concerns under point #2 in the main posting, but it sure seems like a timely new data point in light of our discussion here.

Doug --

As I noted previously (not that it needed noting), if you word the question to get a predetermined answer, you will get that answer. This is true in any event, but is especially true when the question is worded in a poll paid for by an advocacy group whose whole agenda is pegged to getting the answer they built in.

Hey, this could give push-polling a bad name.

P.S. Any time a neutral organizations wants to poll the actual question, I'm all ears. Here's the question, again: "Which comes closest to your view: that, as the Attorney General says, we have too many people in prison for too long; or that we aren't doing enough to keep people who commit crime off the street?"

Just curious what you think legalization is an endorsement of, Bill. Is legal pornography an endorsement of that? How about legal gambling? Legal smoking and drinking?

More to the front, if you think what is most important is that law not "send the wrong message," you have a lot in common with those who oppose the death penalty because it, in their view, sends the wrong message.

More worrisome, what about the message sent by a de jure criminal laws that you say is violated de facto nationwide. What message does this send?

Doug --

"Just curious what you think legalization is an endorsement of, Bill."

Of the proposition that pot is harmless. I believe no such thing, of course, and I doubt you do either, but that is how I suspect legions of people, particularly uninformed (or hoodwinked) young people, will think.

"Is legal pornography an endorsement of that?"

To an extent.

"How about legal gambling?"

To an extent.

"Legal smoking and drinking?"

In my dreams, there would be as much of a cultural push against pot smoking as there is against smoking generally and drinking. Instead, the culture is perfectly fine with the notion that pot is cool, even medicinal. Only fascist Puritan old fogies like me oppose it.

"More to the front, if you think what is most important is that law not 'send the wrong message,' you have a lot in common with those who oppose the death penalty because it, in their view, sends the wrong message."

Their view is wrong. Was that supposed to be hard?

At this point, I have answered quite a few of your questions, and, mindful that this is a two-way street, I'd like you to answer a couple of mine that are still pending.

First, if you were on the Boston Marathon bombing jury, and had the information you have at present about the offense and the offender (and a great deal is known about both), would you vote for the DP or LWOP?

No dodging, I would respectfully ask, and no filibuster. The DP or LWOP. Which?

Second, why, in 2014, did then-Chairman Patrick Leahy refuse even to bring up for a vote in his own Committee the JSVA, of which he was a co-sponsor? Was his refusal the work of Sen. Grassley? Of cowardice? Of Leahy's knowing that the JSVA was too radically pro-criminal even to gather the votes of his own Party members?

I'm really curious about your take on that.

1. Candidly, Bill, I do not know how I would vote if I were on the BMB (Boston Marathon Bomber) sentencing jury. I likely would go into the process with a presumption to vote for death based on the crime, but I would be eager through the trial to hear about more about (1) the defendant's past and present mental history and (2) the views/interests of surviving victims --- especially concerning the real risk that imposing a death sentence will ensure BMB becomes a celebrity of the abolitionist community and perhaps a martyr for radicals.

Notably, nearly all other similar US terrorists prosecuted by the feds have gotten LWOP sentences --- e.g., Eric Rudolph, Unibomber --- and they are largely forgotten by the media and the public as a result. But if these folks were on federal death row, every appeal development for at least a decade after their sentencing would be front-page news. Indeed, if BMB got a death sentence, I think it is a near certainty that SCOTUS would have to take up the case on direct appeal (concerning the venue/Skilling issue, at the very least). I would really be interested in hearing from victims if they feel they would be better served by having the BMB forgotten in a dark hole (LWOP) or instead front-page fodder on a regular basis over the next few years.

I presume Judy Clarke will calling (a lot of?) victims who will express a sincere interest in an LWOP sentence instead of a death sentence. I could readily be moved off my presumptive vote of death if a large number of victims were to sincerely testify that this was their preference.

I am sorry if this seems like a dodge, but it is the most clear and candid view of how I would likely act in this case. And I would be interested to hear your views, too (knowing, of course, that if you said you are 100% sure you would vote for death you would not actually be eligible to serve on the jury).

2. I am not versed in political scheming inside the Beltway, but I assume Sen Leahy when chair thought the SSA had the best chance of getting through the full Senate and the House and so he prioritized that bill. And when that bill got stalled after his committee approved it, Sen Leahy (cowardly in my view) decided not to bother with the JSVA.

I think the JSVA is a much better bill, and it serves to make the SSA largely not needed (save for needing still to make the Fair Sentencing Act retroactive). And I am ready and willing to call all current members of Congress --- particularly on the D side --- of being cowards. Note the cowardly way in which the FSA was passed in the House: through a voice vote so nobody could be held to account. This is me is cowardice based in a (misguided) belief that any vote to reduce sentences is a political problem. Senator Paul has figured out that one not only should have the courage of their convictions, but that showing such courage in the CJ arena will garner respect from different constituencies.

Finally, can I quote you for the proposition that giving federal judges discretion to sentence in their discretion without fixed mandates is "radically pro-criminal"? I ask because it suggests that CJ Rehnquist was a critical vote in Booker a "radically pro-criminal" remedy to Sixth Amendment problems in the SRA. I have not generally viewed CJ Rehnquist as "radically pro-criminal," but perhaps you have a different view.

Doug --

Thank you for your answers.

I would vote for the death penalty. As Alan Dershowitz remarked in a debate I had with him on the Piers Morgan show, if anyone deserves the death penalty, it's this defendant. Deliberate child mutilation and murder, out of seething hate for America, is simply intolerable if we want to preserve civilized life.

As to Leahy, it wasn't just that he "prioritized" the SSA. If that were the case, after getting the SSA through Committee, he would have moved on (with added momentum) to the JSVA.

The JSVA was not a victim of "priorities." It was a victim of itself. People saw that it was not only a blank check, it was a blank check that would get written in only one direction, with the criminal as the payee. (Feel free to quote me on that).

If the public actually wants that outcome, I suspect Leahy -- an excellent politician -- would have known it. I suspect he knew the opposite, but my suspicions are just suspicions, which is why I continue to want the poll question I've been talking about so we can get some actual facts.

People who oppose the JSVA are hardly ipso facto "cowards." They take a different view of the merits, including (I would certainly think) most of the Democrats who oppose it.

As to your question, "...can I quote you for the proposition that giving federal judges discretion to sentence in their discretion without fixed mandates is 'radically pro-criminal'"?

The answer is you can quote me on anything I ACTUALLY SAY, using the words I wrote. But to give a fuller answer: With Jack Weinstein out there giving scandalous and illegal breaks to people who do rancid porn with little girls (not high schoolers); with John Gleeson unethically sitting on a case he had prejudged so he could cut a big break to a repeat, violent carjacker; with the Montana judge who said the 14 year old deserved to get raped because she "looked older;" and with Mark Bennett out there saying those who support the incarceration system we have are to be compared to lynch mobs -- with all that, do you think there might be a basis for thinking that the JSVA, which would empower all that kind of thinking, could be viewed as radically pro-criminal? Because I'm sure having a tough time seeing who else benefits from attitudes like that.

P.S. Rehnquist never, in his long service, voted against a statutory mandatory minimum. He also voted with the segment of the Court that would have held there was no constitutional problem with mandatory guidelines, and thus that there should be NO remedy at all.

Bill, you and I know that the Booker remedy (which Rehnquist was a key 5th vote for) gave A LOT more power in a lot more cases to Weinstein and Gleeson and Bennett than the JSVA would. In term of sentencing outcomes and giving power to federal district judges, the Booker remedy is indisputably much more significant than the JVSA -- according to the USSC, mandatory minimums apply in only about 25% of all federal sentencing cases, whereas Booker applies to 100% of all federal sentencing cases.

So, to be clear, the Booker remedy --- which CJ Rehnquist was the key 5th vote --- gave federal judges much more sentencing discretion in 100% of all federal sentencing cases and complete discretion in the roughly 75% of those case in which no mandatory minimum is applicable. Statistically speaking, then, isn't it accurate to say that the Booker remedy that CJ Rehnquist made possible is/was 3 TIMES for "radically pro-criminal" than the JSVA?

I would put this on my blog to discuss, but you no longer go there. So I hope you consider using my claim as the basis for a new post and a new discussion thread: Prof Berman says that the Booker remedy gives federal sentencing judges 3 TIMES more discretion than would the JSVA. Thus, he says, if you oppose the JVSA, you should be even 3 TIMES more opposed to the Booker remedy and should be spending more time trying to get that reversed....

Doug --

If I recall correctly, one of the main gripes I see from your commenters, many of them defense lawyers, is that Booker has had so LITTLE impact, and that judges still follow the guidelines much (although not fully) to the same extent they did before Booker was decided.

I repeat, Rehnquist never once voted to strike a mandatory statutory minimum, which is the only thing "mandatory" left in the federal system. That and my other remarks about him were and are correct.

(I'm glad to see the acknowledgement that mandatory minimums account for 25% or so of federal sentences. From the non-stop bellyaching of the defense bar about them, one would think they accounted for 110%).

Oh, and how do we know what the numerical impact of the JSVA would be, since it has never been passed (or even brought up in committee)?

Oh, wait, I know! We have to pass the law to find out what's in it!!!

You are right, Bill, that most defense attorneys generally would like to see judges use their Booker discretion even more to lower federal sentences for their clients. And if the JSVA were to become law, I suspect many defense attorneys would hope judges would use this addition sentencing discretion a lot, and I suspect many would complain when judges continue to impose sentences at or above minimums set by statutes.

The reason I raised the Booker remedy and CJ Rehnquist's critical vote for it is because, if you think any proposal to give federal judges more sentencing discretion to lower federal sentences is "radically pro-criminal," then it logically follows that the Booker remedy is the most radical pro-criminal decision ever made by SCOTUS because it gives federal judges discretion to lower federal sentnences in roughly 99.95% of all federal cases (I think a new USSC report shows about .05% of cases involve mandatory LWOP sentences in which the Booker remedy has no impact).

Your point about judges often not using all their Booker discretion is exactly why I do not think the JSVA is radical, either in design or likely effect. All that it would do is allow federal judges to have the authority --- subject to appellate review and only on a writen open record --- to decide if application of an MM is unjust in certain cases. Notably, federal prosecutors already have this power, and they exercise it without any review and without any transparency.

And, as you know, the JSVA is only about 2 pages long, and we know exactly what is in it. We would need to pass it to see how often it would have an impact, but I would tentative guess it would significantly impact only a few hundred cases each year. And those cases would be those like Weldon Angelos and Chris Williams and Edward Young, persons facing decades of mandatory federal impisonment for not-so-extreme crimes.

Indeed, I think it might to useful to include in the JSVA, if it might help it secure passage, a sunset provision in the JSVA stating that after a certain period of time the added discretion for judges will be eliminated if appellate courts find it is being used poorly on a regular basis --- e.g., if application of the JSVA get reversed for abuse of discretion in, say, even 10% of all cases.