In my most recent entry, I noted that last week's Salon piece accused opponents of mass sentencing reduction of enlisting emotion to trump research and reason (which, so the piece quite directly implied, were the sole province of sentencing "reformers"). Thus, it opined:
Ultimately, the reform movement will have to touch on people's emotions, too. But instead of Otis's reliance on fear, disgust and anger, reformers will need to inspire feelings of empathy, forgiveness, and understanding. They'll need to create a culture where a person like Otis would never speak of a "thug" menacing your "daughter," because he knows that such demagoguery will earn him more opponents than friends.
The proposition that proponents of the present, successful sentencing system -- the one that has contributed to historic crime reduction -- rely on emotion is one I see all over the place.
It's false. In fact, we rely on facts, most of them undisputed or barely disputed: That crime has fallen dramatically, to the great benefit of our citizens; that increased incarceration has contributed to this achievement; that sky-high recidivism rates all but insure that, if we go down the path of mass sentencing reduction, we'll get more crime; and that the crime increase will disproportionately harm minorities, as ever.
But that's not the end of the story.
It's not merely that proponents of our present success are falsely accused of whipping up emotion; it's that our accusers are the ones actually whipping it up, and doing so in a particularly damaging and unworthy way.
It is true that sentencing "reformers" emphasize feelings of empathy, forgiveness, and understanding. Many -- in my experience, most -- of them are sincere in this, although misguided and myopic. They seem focused on the feelings they would like to see directed toward criminals. The feelings that should be directed to crime victims, and particularly the many additional such victims sentencing "reform" is certain to give us, get much less attention. Seriousness of purpose in avoiding the coming harm is not one of them, so far as I have been able to see.
But the feelings sentencing reformers would like to call forth are scarcely limited to empathy, forgiveness, and understanding. The feelings they specialize in leveraging are different, and not nearly so attractive: Guilt, shame and fear.
You cannot read two days's worth of sentencing "reform" advocacy and not see the snarling accusation of RACISM! near the center of their efforts. The United States is racist, and if you support the present sentencing system, so are you. Blacks are disproportionately jailed, and the reason for this is not disproportionate criminal behavior (which tends to get pushed into the corner when mentioned at all). It's because YOU ARE A KLANSMAN, or at best, a Klan Wannabe. There's just not that much difference between you and Dylann Roof.
White Privilege, people. That's the whole problem. You have no empathy towards those whom you leave no choice but to try to put food on the table by drug dealing. This is because you are callous, mean-spirited, arrogant and -- did I mention this? -- racist.
Our opponents are so convinced of this (or at least convinced of the value of claiming it) that I doubt I'll see any denials. (This could be an interesting comments section).
Shame, of course, is the handmaiden of the guilt we should feel for supporting slavery or its (very) slightly different analog, the modern criminal justice system. (Hence "Orange is the New Black"). Mass release, is, we are told, not merely a frugality measure or the correcting of a once-arguably needed response to crime. It is a moral imperative, an overdue and insufficient gesture of atonement for the searing immorality of "incarceration nation." If you don't get this, you are not merely wrong. You are evil.
And then there's fear. This was wonderfully exemplified in the Left's reaction to the riots in Ferguson and Baltimore, among other episodes. If we don't change our behavior toward blacks, we can expect violence, looting and riots, because that is what we have earned. And since we have it coming, the rioters will be given, in the revealing words of Baltimore Mayor Stephanie Rawlings-Black, "room to destroy." In the meantime, white police officers like Darren Wilson can look forward to having their careers ruined by a cascade of rancid accusations for which -- when proven false -- there will be no apology. There will only be the next demand for, and reality of, dead cops.
My point here is not that emotion has no place in public debate. I don't believe that at all. Avoiding what's in the center of you is neither desirable nor possible for human beings, particularly as they speak about issues of crime and punishment. My point is that when sentencing "reformers" tell us that their opponents trade in emotion (at the expense of reason), while they, the reformers -- ever with An Elevated and Dispassionate Eye on the Latest "Data-Driven Conclusions" -- are too advanced to allow feelings in the door, they're not telling the truth.
They use feelings aplenty, and they use them, as the Salon piece makes explicit, to attempt, not to out-persuade, but to silence, their opponents.
Ever eager to engender an interesting comments section, I will give you some quick thoughts to this interesting and useful post:
1. Let me start with a criticism that links the Salon piece and this commentary (and lots of other political/policy discourse I find misguided): It seems to me that far too many commentators spend far too much time seeking to describe and attack --- often with mischaracterizations --- the views/beliefs/feelings/claims of opponents rather than explaining and extolling their own views/beliefs/feelings/claims.
I viewed, Bill, the Slate piece as quite good and the Salon piece as quite poor because the Slate piece sought mostly to explain fairly your views and beliefs, whereas the Salon piece sought mostly to attack unfairly your views and beliefs. (Similarly, this post gets in trouble when you go beyond explaining fairly than many reformers seek to remedy a justice system they see infected by racial biases to asserting unfairly that reformsers believe there is not "that much difference between you and Dylann Roof").
2. As you may know, I have written about the importance of engaging emotions in sentencing, and I recoil from any assertion or suggestion that "reason" must always eclipse "emotion" in this setting or others. Indeed, much of my scholarship about sentencing and reform is about avoiding the harms of false dichotomies and rigid binary thinking, and I tend to regard poorly any absolutism in this arena (ergo my general disafinity for capital abolotionism or blanket marijuana prohibition).
That said, the problems of excess emotion is often easier to see and criticize than excess reason. Often I see this is the extraordinary attention given to animal abusers at sentencing while child abusers go unnoticed (or, of late, the extraordinary attention given to the killing of a lion in Africa that few even knew existed a month ago). And, especially given that in-court sentencing has historically been full of much more emotion than data, and as we continue to gather more useful data about crime and punishment in modern times, I think it wise to now seek to err on the side of data as we move forward with reform efforts. (Notably, though, the left is already raising (emotional?) cries of unfairness as data-driven risk-assessment tools come into sentencing decision-making in various settings.)
3. Now, a challenge for you, in light of a visible and timely federal reform long informed by cries of racism and lots of data: What say you, five years later, about the sentencing reforms reflected in the Fair Sentencing Act of 2010, which lowered federal crack sentences across the board?
In this particular context, I will assert that racial dynamics explained in part (but NOT entirely or even mostly) why (1) the 100-1 crack/powder ratio got enacted in 1986, (2) the US Sentenction Commission effort to equalize in 1995 was rejected by Congress and Prez Clinton, and (3) the additional 15-year slog before even the minor reform of the FSA became a reality despite the USSC writing again and again that science/data did not support the 100-1 ratio.
Though you are welcome to dispute whether racial dynamics played any role in this history, the release yesterday of the USSC report on the 5-year impact of the FSA is what I am eager to hear your views on. In particular, you assert above that there are "many additional victims" that "sentencing 'reform' is certain to give us." I think your case against new proposed federal sentencing reforms --- many of which could end up far LESS consequential than the FSA --- would be strongly advanced if you could help me identify the "many additional victims" that the FSA has given us so far.
Notably, the USSC report calculates that the FSA has saved in prison costs approximately $1 billion. I am especially hopeful that these monies are and will be invested in "data-driven" proven recidivism and crime reduction programs (like more reentry services and better trained/staffed police forces). If so, I think the FSA could help lead to fewer victims, not many additional ones. But I am especially eager to here your analysis on this front, especially as it informs future sentencing reform effort.
This thread is about the uses and misuses of emotion in the sentencing reform debate, and, rather than see it shifted to the latest news from the USSC, that is where I'm going to keep it.
I will, however, say a couple of things very briefly. First, the FSA concerned one type of one drug, and is therefore far too small a sample size for the proposed dimensions of sentencing reform writ large -- dimensions that now expressly and eagerly include not only all drug offenders, but the early release of violent criminals.
Second, Eric Holder's DOJ found only last year that the overall recidivism rate is three-quarters. People may want to run away from or explain away that figure, but I am sticking with it. (I am sticking with it even though it is almost certainly low, since many, many criminals escape arrest, much less conviction. The true recidivism rate undoubtedly exceeds 90%).
With that as the re-offense rate, it is certain that more releases will mean more crime.
We tried all this before, Doug, in the Sixties and Seventies. Want to go back to that?
1. Bill, I respect your interest in staying on point here. But I do think the data (and emotion) that surrounds federal crack sentencing reform and the FSA is central to my own affinity and support additional federal sentencing reform. I also think important the data (and emotion) that surrounded race-focused criticisms of the old 100-1 crack/powder ratio --- in part because it was especially easy for advocates to cry out (emotionally?) that this extreme federal sentencing ratio (and its persistence for two decades) was powerful evidence of structural racism baked into our federal sentencing laws.
2. Whether the "true" recidivism rate is 35% (as it seems to be for federal crack offenders), or 50% as is common norm in lots of studies, or 75% as reported in the DOJ study you cite, or exceeds 90% as you now claim, any recidivism rate over 0% allows the (facile?) claim that any early releases means some percentage of those released early get to commit a crime earlier. But serious concern for crime victims (including victims of crime inside prisons) calls for a much more sophisticated analysis, especially if there is any possibility:
A. that early releases can help cut recidivism rates -- i.e., if it is the case that 75% of prisoners will revidivate within 3 years if/when forced to complete a long sentence through 2017, but only 50% of these folks will do so over 5 years if released early at end of 2015, by the end of 2020 we have less total crime and fewer victims (not to mention more individual freedom and less taxpayer costs) resulting from early releases.
B. that early releases create cost savings that can be reinvested in proven crime-fighting strategies to prevent many others crimes, as the Justice Reinvestment movement urges. Notably, as the latest USSC report reveals, crack use seem to be going down even as federal crack sentences have gotten less harsh, and federal prosecutors have (wisely in my view) started spending more resources going after heroin dealers and as a result likely have been, I hope, preventing even more heroin deaths/crimes by having reinvested limited resources this way.
3. Despite your repeated misleading claim that "we have tried all this before," in fact we have tried NONE of this before. In the 60s and 70s we had (1) no structured sentencing laws at all, (2) no real use of sentencing data, (3) no sentencing commissions, and (4) an imprisoned population of about 125/100,000. Even the most aggressive calls for sentencing reform --- e.g., #cut50 --- seem to want to (1) preserve many existing structured sentencing laws, (2) use data in deciding who goes to prison and for how long, (3) keep sentencing commissions, and (4) have an imprisoned population of at least 350/100,000.
Similarly, as you should know from my writings, my advocacy has long included advocacy for modern structured sentencing reforms, using data to make wiser and more cost-effective sentencing decisions, and having commissions and other expert bodies help study and enhance the operation of the system. So, obviously, I do not want to go back to the sentencing approaches of the 1960s and 1970s. And I think you could be accused of "not telling the truth" whenever you suggest that this is what most sentencing reformers are advocating for.
4. I sincerely hope you will do a separate post to explain your views on how proponents and opponents of additional federal sentencing reforms ought to respond to our experiences with the FSA so far. Based on USSC reports, I am even eager to claim that the FSA experience shows that, at the very least, modest federal drug sentencing reform can be a win-win. In turn, I am eager to move forward ASAP with, at the very least, additional like reforms (e.g., federal decriminalization of marijuana, reductions in the most severe mandatory minimums for other drugs if/when USSC/DOJ data shows current laws may leads to misallocation of limited federal resources).
I am genuinely eager to hear from you if there any other way to read the data coming from the USSC other than as strong and powerful data-driven support for, at the very least, more modest statutory federal drug sentencing reforms. In particular, I want to better understand if and how an opponent of any further federal reforms could/would claim that the FSA/crack reform experience provides evidence that we ought not now risk any additional like reforms going forward.
Quick follow-up, Bill: I would 100% understand if you do not wish to discuss in any way either the data or the emotion that surrounds federal crack sentencing and its reform. But, if that is true, please let me know here or elsewhere so I will not keep bringing it up (even though I think the FSA story is most fundamental to continuing federal sentencing reform debates in Congress).
Doug,
-- It was Eric Holder's study, not mine. He was hardly looking to undermine the very sentencing reform he did so much to champion.
The recidivism rate is (at the minimum) what Mr. Holder's study found it to be. I am not buying "well-gosh-we-just-can't-say."
The reason reformers want to push such solipsism is that they know that, once the public finds out what these guys do when released, the proposals for releasing them earlier will tank.
-- In the relevant senses, we most certainly HAVE tried all this before in the Sixties and Seventies: Bovine faith in rehab, unlimited discretion for judges, reluctance to use incarceration, the "criminals-are-victims" narrative, etc. et al.
-- Although as we agree, this debate cannot and should not be free from emotion (concern about increased violence and drug overdose deaths, to use one example), I rely for the basics on numbers.
Those numbers are stark. Crime is massively down over the last 25 years. Incarceration has contributed to this, significantly. When we let them out, the huge majority go back in business. As we begin down the path of sentencing reform and its cousin, hatred of the police, we are seeing a huge spike in both murder and drug-related deaths.
Those are facts. I didn't make them up because I have this emotion or that emotion. They exist outside me.
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