I have previously noted that the startling national spike in murder, and the coast-to-coast heroin epidemic, present obstacles to sentencing reform that were not foreseen only a few months ago. See, e.g., Reason No. 7 in my Baker's Dozen. I now read that the ever-observant Prof. Doug Berman has seen the same thing, in his comments here:
Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close.
As I've said before, Doug Berman is nobody's fool, and I think he shows his keenness again here.
I disagree with Doug only in thinking that it is not the talk about the surge in murder, but the surge itself, that's the problem for sentencing reformers.
Sentencing "reform" was never going to occur in a time of high crime, which focuses the mind far more effectively than back-slapping at the NACDL reception.
If the public does not know from the numbers, it knows instinctively, that battling crime with more police and more prison has worked. Sentencing reformers are at once cynical and shrewd to push their pro-criminal agenda at the very time the methods they most oppose have produced the complacency they most need.
Mass sentence reduction simply is not going to occur when the bodies are piling up. This is especially true now that reformers have admitted they seek early release of violent criminals and not just the joint smokers they spent years pretending would be the main objects of their beneficence. But it was always true anyway.
So my advice to sentencing reformers echoes Doug's: Ram this thing through now before America wakes up!
The problem, Bill, is that you once against want to have it both ways with federal drug sentencing toughness: when crime is down, you say tough federal drug sentencing has obviously worked and we cannot risk changing it, when crime goes up you say we especially cannot afford reforming federal drug sentencing toughness.
That said, I agree that crime spikes and high-profile cases can influence legislative debates, and it will be interesting to how the spike in murders in some cities will impact the federal and state sentencing reform conversation. I would hope it will lead to even more focus on distinguishing violent and non-violent criminals and to approaching drug reform in new (public-health-oriented) ways. But my sense is you always have an easier answer --- more prosecutions for more offense with longer and longer prison terms because we are never likely to hit a tipping point where we have gotten too tough.
"The problem, Bill, is that you once against want to have it both ways with federal drug sentencing toughness..."
No, the problem is a surge in murder and in heroin overdose deaths.
"[M]y sense is you always have an easier answer --- more prosecutions for more offense with longer and longer prison terms because we are never likely to hit a tipping point where we have gotten too tough."
I am not concerned with whether the answer is easier or harder. I'm concerned with whether it works. More prison, more police and more proactive policing work. That's where I'm focused.
You ask whether we have gotten too tough. Let me ask in response: Have we gotten too safe? Is it OK now to have a few more murders? A few more addicts? A few more teenage overdose deaths?
I think you might be on to something , Bill: perhaps we could and should just seek to incarcerate all teenagers, which surely would reduce (though not eliminate) teenage overdose deaths. More prison will work here too, no?
Indeed, since you claim we cut crime in half in large part by going from roughly 375,000 imprisoned to 2.25 million, perhaps we should aim for a prison population of 5 million or 15 million or even more in the years ahead. After all, it seems you think that we can never be too safe and thus we can never have too many people behind bars, right?
Gee, this is pretty easy when you approach matters in a facile way and see only benefits and no harms from depriving liberty for long periods of time at significant expense.
You can do better than that, and almost always do.
If I wanted to "argue" in that fashion, I could just say, "Perhaps we should aim for a prison population of zero in the years ahead. After all, it seems you think that people can never be too free, regardless of what they've done to deserve punishment, and if we eliminate imprisonment, the world won't come to an end."
Yes, I could argue like that. But I won't, because it's just so much silliness. Seventh grade debaters do better.
The fact that the murder and heroin spike makes selling sentencing reform more difficult is not something I invented. It exists outside me, so your frustration might be better directed elsewhere.
Actually, Bill, your effort to lampoon my views is a useful reminder that I have a core principle of freedom (and limited government) driving my philosophy for less use of incarceration whereas your core principles are harder to identify --- is it safety? Then you should favor incapacitation even before any wrongdoing; is it deservedness/Justice? Then you should support sentencing reform for some low level offenders stuck in excessively long prison terms. And, most critically, I think it fair to say that my core principle here is more in keeping with those of the Framers and modern movement conservatives than are yours.
I realize that a real world with flawed dangerous people is one in which more freedoms for some means less freedom for others, and thus I accept incapacitation via prison as a necessary evil in some cases. (But I would ultimately prefer the death penalty to LWOP for those too dangerous to ever be free again and I would like to find more efficient and cost effective ways to incapacitate others than spending $30k to keep them idle in a cage.).
In contrast, you seem to embrace imprisonment as a positive good, though I continue to struggle to understand exactly why. If it is only about safety, I would hope you would recognize that high recidivism rates suggest prison is often not an efficient and cost effective way to reduce crime over the long term; if it is also about Justice, I would hope you would see the injustice of using years of prison as a punishment in cases other than when the defendant is named Scooter Libby.
In short, when freedom and limited government is a core principle as it is for me (and I think many on principled right), it becomes clear real quickly that we likely have reached and passes a tipping point when American has become the largest govt deprived of freedom through imprisonment in world history. But when other values matter more --- safety? Justice? --- I understand it is hard to conclude that we have too many imprisoned. That is why I wonder why you are not advocating for continued prison growth.
1. I wrote a lampoon because I was responding to your lampoon. Perhaps now we can move on to something more enlightening.
2. My core principles for criminal sentencing are, in order, just punishment, incapacitation, deterrence and rehabilitation. I'm sure you will recognize these from the SRA of 1984.
3. The issue quickly becomes too complicated to analyze in blog comments because of the huge number of plausible and historically-advanced theories (and outcomes) about what is "just" punishment and how much incapacitation overvalues (or undervalues) the rights of future victims. That is something I cannot go though in a comment thread, and won't try.
4. What I am left with for practical and immediate purposes is whether our present system is working, or failing, for the objectives I think most important. Since I highly value crime suppression as the principal aim of the criminal justice system, I tend to want to preserve, rather than risk, the very substantial gains we've achieved over the last generation.
Sound and sober points, Bill, that get us past our "silly season" above. But now two (more enlightening?) follow-ups:
1. Do you think the application in the United States of your core principles for criminal sentencing --- i.e., "just punishment, incapacitation, deterrence and rehabilitation" (which I will call JPIDR) --- can and should be informed, at least somewhat, by (constitutional) commitments to human freedom and limited (federal) government powers? At the very least, would you be prepared to say that, if/when presented with two criminal sentencing options that would seem to be quite comparable in serving JPIDR, we ought to generally adopt in the US whichever one best serves human freedom and limits the size/scope of (federal) government powers?
2. Especially with respect to FEDERAL DRUG sentencing in particular, would you acknowledge there are valid (data-based) arguments that existing FEDERAL DRUG sentencing laws are poorly serving JPIDR? Given that DRUG offenses have not obviously been dramatically reduced throughout the US (especially with respect to marijuana and heroin), and also given how FEDERAL DRUG mandatory minimums based on drug quantities do not always match up to true culpability levels, couldn't I come to believe that someone truly committed to the core principles of JPIDR should be open to some modest reforms of current FEDERAL DRUG sentencing statutes?