I noted here that Sen. Lindsey Graham has proposed establishing a National Criminal Justice Commission. I'm skeptical of the idea, because such commissions generally either do nothing or make mischief. When it's the latter, it's because their membership turns out to be selected "experts" -- experts, that is, as defined by inside-the-Beltway think tanks, academia and politicians with this or that constituency to please.
Does anyone think that such a Commission would not have a heavy dose -- maybe 100% -- of Obama appointees? Will a Commission consisting of Eric Holder clones (or Holder himself, for all I know) make sound recommendations? Or ones that will compound the problems we already have?
Still, the idea of a Commission is tempting for people who teach law to contemplate, so I came up with some agenda items. I confess I have my doubts that they are what the Administration has in mind.
-- Abolish the Sentencing Commission. I fleshed out this proposal four years ago in Engage, the magazine of the Federalist Society. In the post-Booker world, it does nothing but (1) make increasingly ignored suggestions to increasingly irritated judges (within-guidelines sentences are now imposed less than half the time), and (2) bad suggestions to Congress, all grounded in the odd idea that incarceration is the problem rather than the answer to the problem.
-- Expand and improve the AEDPA. The death penalty is undergoing a slow strangulation because it is becoming too expensive and drawn out over too many years. This has to stop, or abolitionists may win by artifice, without ever having made their case to the public or the courts.
-- For our libertarian friends, eliminate the great majority of non-mens rea federal crimes. In the version of the SSA that passed the Senate Judiciary Committee in the last Congress, Sen. Jeff Flake (R-AZ) got a proposal that would merely have required the Attorney General to list non-mens rea federal crimes.
-- Abolish armed raids by any federal officers except for the FBI, DEA, ATF, ICE and the Marshalls. It is a misuse of the power of the state to be having armed raids by EPA and Oceans and Wildlife and that sort of thing. There is a big difference between robust enforcement of criminal law and government run amok. The present Administration is giving us more of the latter and less of the former. We need to reverse this.
-- Undertake a study to determine the extent to which the massive increase in incarceration over the last 25 years has contributed to the massive decrease in the crime rate. This is the single most important fact in the criminal justice "reform" fight. Recently, the Brennan Center, a far-left advocacy group, claimed that the increase in incarceration contributed little or nothing to the decrease in crime. More neutral studies have found, to the contrary, that at least a quarter of the last generation's decrease in crime can be laid to imprisoning more criminals longer. This needs to get resolved.
-- This one might be a bit out there, but I'll mention it anyway: By statute, we should re-define "custody." One of the things that drives up the costs of incarceration so much is that the prison is responsible for paying for the inmate's entire life, including all the things he (theoretically) would have had to earn for himself on the outside.
This is not a knock on the Commissioners. The ones I know are first-rate. But the Commission lost its central mission the day Booker was decided, now more than ten years ago, and is predictably wandering into trouble, all at taxpayers' expense.
-- Require judges who sentence a large percentage of defendants outside the guidelines to prepare and make publicly available detailed explanations of why they are doing this. This would not be unconstitutional because it would not alter either sentencing outcomes or the rules under which those outcomes are determined. Judges could still impose any sentence they want within the law. A disclosure requirement strikes the right balance between judicial independence and the need for judges, like other government officials who wield enormous power, to have accountability, visibility and transparency.
-- Expand and improve the AEDPA. The death penalty is undergoing a slow strangulation because it is becoming too expensive and drawn out over too many years. This has to stop, or abolitionists may win by artifice, without ever having made their case to the public or the courts.
We should spend whatever money and time it takes to make sure we have the right guy when there is some serious question on that score. But the amounts invested in years of manufactured procedural challenges have gone beyond all sense. It should be brought to a halt.
-- For our libertarian friends, eliminate the great majority of non-mens rea federal crimes. In the version of the SSA that passed the Senate Judiciary Committee in the last Congress, Sen. Jeff Flake (R-AZ) got a proposal that would merely have required the Attorney General to list non-mens rea federal crimes.
It was, shall we say, optimistic to think such a list would ever have been produced, even if the SSA had become law. But a mere listing is insufficient in any event if one takes seriously Sen. Flake's worthwhile objectives. Criminal sanctions simply should not be used to enforce a limitless regulatory state. Instead, they should be confined to their historical justification: To punish behavior a person with a normal conscience would understand to be wrong.
-- Abolish armed raids by any federal officers except for the FBI, DEA, ATF, ICE and the Marshalls. It is a misuse of the power of the state to be having armed raids by EPA and Oceans and Wildlife and that sort of thing. There is a big difference between robust enforcement of criminal law and government run amok. The present Administration is giving us more of the latter and less of the former. We need to reverse this.
-- Undertake a study to determine the extent to which the massive increase in incarceration over the last 25 years has contributed to the massive decrease in the crime rate. This is the single most important fact in the criminal justice "reform" fight. Recently, the Brennan Center, a far-left advocacy group, claimed that the increase in incarceration contributed little or nothing to the decrease in crime. More neutral studies have found, to the contrary, that at least a quarter of the last generation's decrease in crime can be laid to imprisoning more criminals longer. This needs to get resolved.
-- This one might be a bit out there, but I'll mention it anyway: By statute, we should re-define "custody." One of the things that drives up the costs of incarceration so much is that the prison is responsible for paying for the inmate's entire life, including all the things he (theoretically) would have had to earn for himself on the outside.
By a single vote on the en banc First Circuit, the state of Massachusetts escaped being on the hook for a murderer's sex change operation. But the writing is on the wall. A criminal should not be able to put the government on the hook for life expenses that he himself did not pay when he was a free man. The legal idea of "custody" should be pared back toward the notion of providing only that which is needed to keep the prisoner in confinement, plus education and vocational training for those who sincerely want it.
I like all these suggestions, Bill, but I want to propose tweaks to #1 and #2 and add a third to get your reactions:
1. Keep the USSC, but alter its responsibilities to preclude any further guideline amendments and to have its staff tsked with issuing reports on the agenda proposed by you above for the National Criminal Justice Commission. The USSC has long been bipartisan, has a great big research staff and rarely has done much without consensus. No need for a new commission, repurpose what we have.
2. Let's require ALL judges in ALL case to prepare and make publicly available detailed explanations of why they pick any sentence. I agree 100% with your statement that a "disclosure requirement strikes the right balance between judicial independence and the need for judges, like other government officials who wield enormous power, to have accountability, visibility and transparency." But I think this is true in ALL cases, don't you?
AND
3. Let's require ALL prosecutors in ALL case to prepare and make publicly available detailed explanations of why they pick any charge [or decide not to charge as in the IRS and Wall Street settings]. Because I agree 100% with your statement that a "disclosure requirement strikes the right balance between [official] independence ... and the need for accountability, visibility and transparency." Indeed, if we had such a requirement for prosecutors, I would be MUCH less opposed to MMs.
On board?