But in many...states, including Michigan, New Jersey and New York, drug sentences are already reduced. There is no avoiding the politically poisonous question of releasing violent offenders or reducing their long sentences. "We need to start what's going to be a long and difficult conversation about violent crime," [Ryan] King [a sentencing reform expert] said.
I was startled by these calculations for New Jersey, for example: Cutting in half the number of people sent to prison for drug crimes would reduce the prison population at the end of 2021 by only 3 percent. By contrast, cutting the effective sentences, or time actually served, for violent offenders by just 15 percent would reduce the number of inmates in 2021 by 7 percent -- more than twice as much, but still hardly the revolution many reformers seek.
New Jersey could reduce its prison population by 25 percent by 2021. But to do it, it would have to take the politically fraught step of cutting in half the effective sentences for violent offenders.
In other words, the real debate over how to deal with criminals has hardly begun. And that debate will inevitably have to be argued state by state on terms that may well cause the bipartisan agreement on the need for change, focused on nonviolent offenders, to break down.
Actually, the real debate has begun, just in disguised terms. Any bill introduced as designed for non-violent offenders will be subject to floor amendments to take changes in incarceration where the reformers actually want them to go: To a return of violent crime.
This is what happens when we become obsessed with incarceration per se and oblivious to the reasons criminals get incarcerated to begin with.
"This is what happens when we become obsessed with incarceration per se and oblivious to the reasons criminals get incarcerated to begin with."
Bingo.
The fact that there is so much sentencing reform focus, at least in rhetoric, on non-violent drug offenders shows that the movement (and its opposition) is not "oblivious" to reasons criminals get incarcerated. Indeed, Bill, your persistent opposition to federal sentencing reform based in the reality that most STATE prisoners are in for violent crimes highlight that you, too, often employ a shell-game approach to advocacy in this arena.
To that end, I am still waiting to hear from you or anyone else opposed to federal drug sentencing reform why the 5-year experience with the Fair Sentencing Act, as recently documented by the U.S. Sentencing Commision, should not embolden and speed up the push for additional federal drug sentencing reform. The FSA saved taxpayer money in incarceration costs, enhanced human freedom for those getting shorter sentences, and seemingly with no measurable impact on crime. That seems like major federal sentencing reform success story, and it is one I hope the Feds can replicate --- and it is one that gives particular attention to the reasons certain folks get sent to the federal pen.
But perhaps you see the FSA story different, and I am very eager to hear your informed perspective on this front. But until you can help me understand what was wrong with the FSA, I am going to hard a hard time understanding your opposition to similar reform proposals coming from Congress in the months ahead.
You continue to want to concentrate on one part of one drug prosecuted within the federal system. You are of course free to maintain that narrow focus on your blog. But here, we're going to focus on the truer and bigger agenda the sentencing reformers aim to achieve -- an agenda that includes, I am glad to see, (increased candor now being part of their game) is the freewheeling, mass release of violent criminals.
They'll start things off with the Feds, sure. It's the smart move. Just as with the SRA of 1984, the Feds start with changing the game, establishing a model many states adopt. Today's reform proposals learned from this strategy and aim to replicate it, only in reverse. No one said they're not clever.
The initial releases of the (relatively) less harmful druggies is quite a shrewd loss leader. I can understand why you want to paste it all over sentencing reform's windows. But, being the curious fellow I am, I want to look at what goods are actually inside the Whole Sentencing Reform Store before I throw open the door to the rest of the merchandise.
Like most loss leaders, the FSA is deceptive -- that, indeed, is WHY it was chosen as the loss leader to begin with. The plan is to get the public to think, "Well, this isn't so bad," as a way of softening it up for the violent crime bonanza that was, and is, the main objective all along.
You may blog all you wish on SL&P about the wonderfulness of having a third (still a very substantial number) of crackheads go right back in business. By itself, that depressing number is pretty revealing if that's what the reform group has to choose in order to wheedle people to come in for the rest of the goodies, now (as we have seen) to include murder rape and robbery).
But I respectfully decline to be diverted by your invitation to become entranced by the card trick at the door to the tent. Sentencing reformers have only just begun, as the NYT article makes crystal clear. I want to see what's being hidden INSIDE the tent. The NYT does us the great favor of pulling back the canvas. Inside we see a determined quest, just around the legislative bend, to push for the release of muggers, strongarms, armed robbers and rapists -- people with a recidivism rate of over 70%. That 70% is something the Sentencing Commission does not deny (indeed shrewdly doe not mention at all), and Holder's BJS just last year confirmed, http://www.bjs.gov/content/pub/press/rprts05p0510pr.cfm.
What that means is that the present bills are just the stalking horses for what sentencing reform actually wants -- mass deincarceration. And, as the increasing number of honest academics and advocates on that side are now admitting (see the NYT article), mass deincarceration is point-blank impossible without the mass release of violent criminals.
With a recidivism rate slightly more than 70%, what that means is that for every 1000 violent criminals we release, the public will suffer 700 violent crimes that would have been averted had incarceration not been cut short.
Those are the numbers, Doug. I'm just reporting them. Is 700 more injured, defenseless (and now needy from the public fisc for medical care) people OK with you?
Are we promoting human happiness with that?
Accountability? Cost savings? Is more crime really better than less crime?
Bill stated: " Is 700 more injured, defenseless (and now needy from the public fisc for medical care) people OK with you?
Are we promoting human happiness with that?
Accountability? Cost savings? Is more crime really better than less crime?"
One more question. Would the victims of the 700 more crimes per 1000 really call sentencing reform "enhanced human freedom?"
Once again, Bill, you play fast and loose when reporting these recidivism numbers. The primary arrest reason in the 2005 recidivism data you cite is for public order offenses. Less than 20% of those rarrested after release in 2005 from state prisons were arrested for a violent crime. Moreover, it was the younger folks more likely to get in trouble again AND a decade later we have even better risk assessment tools, and we have a keener understanding of where investments of public dollars best contribute to enhanced public safety.
That all said, I do not dispute that many reformers wish our impisonment levels were more in line with other nations around the world, and that would require shorter sentencing across the board. But I think it possible to build on recent successes like the FSA, and it seems you do concede that this first round of reform was successful. We can leave it at that.
Doug --
You say, "Once again, Bill, you play fast and loose when reporting these recidivism numbers. The primary arrest reason in the 2005 recidivism data you cite is for public order offenses."
Since when is it playing fast and loose to give the exact citation (which I will do again, http://www.bjs.gov/content/pub/press/rprts05p0510pr.cfm)
In addition, I will give the study's main conclusion, verbatim:
"Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders."
As I said, over 70% of VIOLENT offenders recidivate ("recidivate" being the study's word, not a word I invented or altered).
You also say, "Less than 20% of those rarrested after release in 2005 from state prisons were arrested for a violent crime."
Tell me, what is the arrest rate among the GENERAL POPULATION for a violent crime? One percent? Two percent? I have no idea, but I've been around for almost seven decades and I do not know a single person (except defendants I handled) who was arrested for a violent crime.
In other words, rather than refuting, you underscore, my main point: That early release of violent offenders will increase the incidence of violent crime massively above the rate for the general population. This is a good thing in which universe?
I agree, however, that there is some fast and loose going on here. That would be your self-pronounced declaration of my "concession."
I concede zero, nor should I. It would be more correct to say that the USSC's viewing as a "success" a recidivism rate of MORE THAN FOUR IN TEN for a hard drug like crack is astonishing. A starker admission of failure would be difficult to conceive. I guess the handicapping (and sometimes the ending) of those four in ten (almost always) black lives doesn't matter.
P.S. I'll be looking forward to your admonishing the Brennan Center for playing "fast and loose" with their own recidivism figures, which you breathlessly put up on your blog. The Center claimed to have shown that increased incarceration had little or nothing to do with the decrease in crime over the last 15 to 25 years -- a claim so grossly out of line with any other assessment, including by various and knowledgeable pro-sentencing reform leaders, that it couldn't possibly be true, and isn't.
Bill, you said for every 1000 violent offender releases we would get 700 violent crimes. That is not what the data show, plain and simple.
You are right that recidivism is disturbing high for those released from prison, and that is why I want fewer going to prison in the first instance. The evidence suggests prison is criminogenic, especially when we do not have sound programming that fosters rehabilitation and re-entry and ties releases to risk assessment metrics. Sadly, through the 1990s and beyond, sending more people to prison for longer was the only goal and it is quite possible that sending more people to prison increased recidivism rates. We often get to this point in this discussion and you keep returning to the recidivism study to argue prison is great, whereas I see evidence prison has hardened a lot of folks and heighten the risks they create upon their release.
I have highlighted on my blog John Pfaff's work critcizing NAS and Brennan for their questionable data, and you are welcome to come back and criticize Brennan analysis, too. But I try to stick to accurate representations of what the data reported by others actually say, and you did not do so with your assertion that 1000 releases leads to 700 violent crimes.
In the end, I understand your affinity for incapacition in the name of safety, but I think we have already hit a tipping point where we can get a lot more bang for our buck with fewer prisoner. In contrast, it seems you remain eager to keep millions of Americans in prison as long as possible -- and are apparently of the view that Congress should not have modified crack sentences in 2010. I also assume you are generally troubled by any and all commutations for persons not named Libby.
Past my bedtime, so I'll take on just one small thing. Do you agree that, given all you have said about the primal importance of freedom, and given that Libby was a first-time, low-level, non-violent offender in his late fifties with essentially no chance of recidivism (and there has been none), that, on those facts, he was a credible candidate for clemency?
Gosh, Doug, here I was trying to see things your way for once, and I find that no good deed goes unpunished. Phooey.
I was wondering whether you might consider maybe setting up a statute of limitations for my seemingly villainous success in getting a good result for the very sort of defendant for whom you and your colleagues seek similar results all the time.
Could I maybe expect a SOL in 50 years? Maybe a 100?
Or would you prefer that I pledge never again to speak up for clemency no matter how reasonably appealing the equities?
Bill, I bring up Libby often because it shows that you will actively advocate for early release of at least one type of nonviolent federal felon. As you should recall, when called to testify before Congress about the Libby commutation, I did not assail it, but rather urged Congress to urge the President to grant hundreds more similar offenders a kind of similar freedom-enhancing, taxpayer-saving relief from a prison sentence not obviously needed to enhance public safety. (For the record, Libby's crime does not seem to me to be a low-level version of perjury/obstruction. Indeed, save for Prez Clinton's lies under oath, I see Libby's version of perjury/obstruction to be about as high level as it gets.)
As you may recall, in my own blogging and testimony, I stressed the case of Victor Rita as an even more deserving candidate than Libby at the time (because he truly was low-level). Disappointingly, you and Prez Bush did not seem as concerned with his 30 month prison term as with Scooter's. More broadly, if only 0.5% of the current federal prison population is comparable in term of risk to the public, Prez Obama could grant commutation to 1000 federal offenders before getting beyond the Libby-likes.
Your advocacy on behalf of Libby merits my respect, and it does not make you a villain in my eyes. Rather, what drives my disconcert is your steadfast advocacy against anyone who suggests there may be hundred more Libby-like felons wasting time and taxpayer money in the federal pen.
"Any bill introduced as designed for non-violent offenders will be subject to floor amendments to take changes in incarceration where the reformers actually want them to go: To a return of violent crime."
Yes, I'm certain that the Republican Congress would allow and then adopt amendments that would reduce criminal penalties for violent offenders. Seems likely.
1. Seems just as likely as that, a year ago, Sen. Grassley or Speaker Boehner would support ANY kind of "reform." And we know that could never happen, right?
2. The amendments will be disguised in fuzzy language to make it hard to tell what is being included and excluded, allowing the Jack Weinstein's and Mark Bennett's of the world to go to town. Cf. the language in the ACCA.
3. Even if there is clear language barring application to violent crimes, DOJ will instruct AUSAs to waive it on the defendant's request -- something it is already doing with MM's.
4. Just the introduction of it will be cited in liberal, big-state legislatures as evidence that the time has come to seriously attack the "incarceration problem," and that "since our state (unlike the feds) cannot borrow limitlessly, we need to take this bolder and more progressive step."
5. Or we can just cut to the chase and have states adopt Prop 47-type measures to dumb everything down all at once. See how easy it is to get the "violence" out of "violent" crime just by statutory wording!!! Actual changes in the thug's behavior not required!!!
Was that supposed to be hard? We've all learned, unfortunately from long experience, how the other side operates.