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Are Sentencing "Reformers" Getting Worried?

In Washington, DC, one way of gauging whether you're making any headway is by the intensity of the opposition .When the other side is confident, you pass unnoticed. When they feel it slipping away, things get a little more.........heated.

I suppose, although there's no way I can be sure, that this is what accounts for the increasing interest in my opposition to mass sentencing reduction, opaquely labelled as sentencing "reform."  In late July, there were articles about me on successive days in Slate and Salon.  The former was, I thought, fair-minded and thoughtful, although the author, Mark Obbie, made clear his disagreement with my substantive views.  The latter was more personal.  I answered it here and here.

I see from today's edition of Sentencing Law and Policy that Ms. Julie Stewart, head of Families Against Mandatory Minimums (FAMM), has a piece in Reason Magazine, a libertarian publication, that essentially makes me out to be a know-nothing crackpot.  I have read only the SL&P summary, trusting it to be fair, but I don't believe that characterization overstates her view..

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points.  Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart.  (If she seeks a live debate with me, that would be another matter).

I'm quite sure she's sincere. But, for reasons stated below and in hundreds of things I have said on this blog and elsewhere, I believe she is in error.
The (intentionally limited) points I make below will, for the most part, be familiar to readers.

1.  My main point  --  the one I began with in my Federalist Society speech last November  --  is that, looking over the last fifty years, when we have more prison, we have less crime, and when we have less prison, we have more crime.  

If FAMM disputes this central fact, I am unaware of it.  But the numbers, about both incarceration and crime rates, are available to anyone who cares to look.

Now maybe it's all strictly coincidence that crime decreases year after year, for decades, as we incarcerate more and more of the people who commit it.  For those who actually believe it's a coincidence, feel free.

2.  Ms. Stewart says, "Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing."

That is not so.  If we cut the prison population by half tomorrow morning, it will not be "America's undoing." But it will be a bad thing, both because it would be unjust, and because it would result in more crime faster, as DOJ's recidivism study shows beyond any serious argument.

Not that FAMM is talking just about the much-heralded "non-violent drug offender"  --  not by any means, and despite the deliberate implication of Ms. Stewart's statement. The pot-smoking but otherwise blameless 19 year-old who gets his life ruined by some ungodly prison term has long been the poster boy of sentencing reform. But it has become clear that a poster boy is all he is.  As Prof. Berman has pointed out, FAMM is seeking lower sentences across the board for violent criminals along with the rest of the lot (as are other leading advocates in the sentencing "reform" movement).

3.  Ms. Stewart says, "Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act." 

That's because it is the crack dealers relief act.  Indeed, it was pushed principally on the idea that crack dealers had been over-punished for years, and warranted relief. But for however that may be, can someone tell me who has benefited from it more directly and immediately other than crack dealers?  

4.  Ms. Stewart says, "Fortunately for those of us concerned about public safety..."

Note the quite direct and knowingly false implication that I am not concerned with public safety.

"...Otis was wrong again -- amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs."

Gads.  Is Ms. Stewart telling us that crack use is down because of the FSA?! Where's the evidence for that? Still, I'm grateful, I guess, for the concession that at least one part of the war on drugs is succeeding; I keep hearing from FAMM's allies that it's a total failure.  And the recidivism rate for FSA beneficiaries is, according to the Sentencing Commission, over 40%.  So, unless crack no longer causes misery, then, yes, misery is indeed a product of earlier releases of crack offenders.

Still, Ms. Stewart is wise to avoid talking about heroin.

But for however that may be  --  and I don't know whether Ms. Stewart missed this or is just being intentionally obtuse  --  I have explained this point time and again.  I will do so once more:

It is true that there have been modest sentencing reforms in several states and crime has continued to decrease in them. But this is exactly what we should expect.
Imprisonment alone is but one contributor, albeit an important one, to the decrease in crime. It gives us roughly a quarter of the decrease. Other contributors are, e.g., more police, more proactive policing, more effective private security, and the aging of the most crime-prone component of the population.
It follows -- and this is obvious to everyone who follows the subject -- that a state can indeed marginally reduce its prison population in the short run and still see crime decrease as long as the other crime suppressing measures remain in place (or accelerate). Particularly in the southern states where much of the "reform" has taken place, that's exactly what has happened.  Thus, crime overall continues to decrease in those states, but at a slower rate as one of the important suppressors (incarceration) has been diluted. 

5.  Ms. Stewart says, "Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third."

Again, this is simply false.  If Ms. Stewart had taken the trouble to ask, she would know that I explicitly answered this point early last year (although not on this blog, which is why she ought to have asked; It's all true; I actually talk to people).

The answer, then and now, is that Prof. Levitt's more recent remarks  do not rebut or purport to rebut his 2004 finding that the increased use of incarceration accounts for "a quarter or more" of the decrease in crime since 1990 (that is, in the era of mandatory minimums).  See his 2004 study, here, at pp.  177-179.  Nor do they rebut his specific finding that, "The evidence linking increased punishments to lower crime rates is very strong," id. at 178.

Prof. Levitt Levitt has never said that either of his findings was erroneous or misleading, and the late Prof. James Q. Wilson of UCLA agreed with both in his 2011 piece in the Wall Street Journal. 

Prof. Levitt said that the increase in public safety "diminished" as the prison population continued to grow in the 2000's; he didn't say it had stopped, and it hasn't.  He was saying that it has slowed.  Of course it has  --  the law of diminishing marginal returns to scale applies to imprisonment just as it applies to everything else. But diminishing returns are still returns.

That Prof. Levitt now believes we should reduce the prison population may well be his opinion as a citizen, but that is hardly the same as his findings as a social scientist  --  something Ms. Stewart must know, even as she conflates the two. 


As I noted at the outset, I could spend the next 10,000 hours going back-and-forth with Ms. Stewart (or two dozen other critics who can and will pop up as they choose). I decline.  

I will leave the comments section open for a time, but I think it best not to allow it to become either personal or a re-play of the entire debate about sentencing "reform."


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