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Release Now, Pay Later

The Department of Justice is set to undertake the biggest legalized jailbreak in history.  That is not an exaggeration; it's a close paraphrase of today's Washington Post article, which begins:

The Justice Department is set to release about 6,000 inmates early from prison -- the largest one-time release of federal prisoners -- in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

Notice what this paragraph does not include  --  the specific crimes for which those to be released were sentenced (the great majority of them for trafficking, including trafficking in heroin and other deadly drugs).  Also conspicuous by its absence is any reference to the judicial finding, a la' Plata, that federal prisoners are overcrowded to the point of an Eighth Amendment violation (there being no such finding).  Finally, no mention is made of the recidivism rate, since that would alert readers to the fact that the huge majority of these criminals  -- three-quarters  -- will soon enough take up where they left off.

In other words, less than a week after the introduction in the Senate of a major bill to require the premature release of thousands of drug traffickers, we learn that the release of thousands more was already in the works.

Goodness.  Why didn't any of the bill's sponsors highlight this in their announcement?
Not that the "release now, pay later" binge is anywhere close to finished.

The early release follows action by the U.S. Sentencing Commission -- an independent agency that sets sentencing policies for federal crimes -- which reduced the potential punishment for future drug offenders last year and then made that change retroactive.

The commission's action is separate from an effort by President Obama to grant clemency to certain nonviolent drug offenders, an initiative that has resulted in the early release of 89 inmates.

So we see that it's not just last week's bill (if and when enacted); and it's not just the imminent release of the 6,000; it's also the President's power of clemency, which absolutely no one expects to stop at 89 and in fact aims for thousands, as the White House has earlier acknowledged.

But wait, there's more!

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation's approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

"The number of people who will be affected is quite exceptional," said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform.

The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016.

And still more:

The releases are part of a shift in the nation's approach to criminal justice and drug sentencing. Along with the commission's action, the Justice Department has instructed its prosecutors not to charge low-level, nonviolent drug offenders who have no connection to gangs or large-scale drug organizations with offenses that carry severe mandatory sentences.

Translation:  The law will no longer be applied as Congress wrote it; instead, it will be avoided to suit the tastes of the ideologues now in charge at DOJ.  Not that this Administration is a stranger to walking away from laws it disfavors, thus effectively splicing into the Constitution a retroactive veto the Framers apparently just forgot.  (Yes, there is such a thing as prosecutorial discretion, but using that discretion to nullify an entire swath of law stretches it too far in the direction of an Imperial Presidency and of usurpation).

The major point, though, is that the urge to release federal felons had reached the point of frenetic irrationality before the Senate bill was even announced.  Note that no one (or at least no one away from the fringe) is contending these people are innocent.  No one is contending their sentences as imposed were or are illegal. No one is contending that even a large fraction of them are rehabilitated.  And most importantly, no one is contending that thousands of them won't go back to crime.

When they do, who will pay the price?

We need to ask ourselves:  Who is the real beneficiary of these actions?  The more than 99% of us who, leading peaceable lives, are not in federal prison?  Or the tiny fraction of 1% whose greed-driven and criminal choices put them where they are?


There is no frenetic irrationality here at all, Bill. Rather, a judicial branch expert agency with appointments from multiple presidents, concerned about excessive sentences for drug offenders, modestly reduced those sentences and made the improved sentences retroactive. They did so with the support of the executive branch controlled by democrats and the Congress controlled by republicans. And prisoners could only garner early release after getting judicial approval.

This multi-branch, multi-year process is neither frenetic nor irrationality. You may think it bad policy, but it seems precious few in power inside the Beltway agree with you.

"You may think it bad policy, but it seems precious few in power inside the Beltway agree with you."

I have seldom agreed with you more heartily. As the Slate article noted, I am waaaaay out of step with inside-the-Beltway thinking (even though that's where I live most of the year).

On criminal justice, I do not agree with this Administration,* or with the leftist-dominated Sentencing Commission (which will be down to three of its seven members at the end of this month), or with the billionaires George Soros or the Koch brothers and their influence with Congress. Only rarely has there been more vivid evidence that money really is the mother's milk of politics.

I of course have nothing like the billions my adversaries have. But I have ideas and a keyboard, and, notwithstanding my cracker barrel, trailer park, Wahoo, cowboy, big hair, troglodyte outlook (which amazingly survived Stanford Law), I persist even in my dotage in speaking out about them.

P.S. If, solely in your discretion, you would care to take a crack at the last four questions in my post, I would be interested in your views.

* I do agree, however, with Attorney General Lynch that pot should remain illegal.

The three-quarters recidivism rate you cite is for state prisoners, not federal inmates, and therefore isn't relevant here.

Since you asked, here I will answer:

Q1: "When they do [go back to crime], who will pay the price?"

A1: I believe 1/3 of the group will be immediately deported, so these folks will be problems for other nations, not for US taxpayers. Of the rest, for those who go back to selling drugs, the people who buy the drugs from the dealers will pay the price (though they were paying to other dealers in the meantime). And, if the past crack early releaserecidivism data are replicated, it is quite possible that fewer will go back to crime because they shaped up a bit more in the process of obtaining early release. It is possible that will not all work out, but there is a reasonable basis that the true full/long-term "price" will be lots of taxpayer monies saved and a reduction in recidivism.

Q2: "Who is the real beneficiary of these actions?"

A2: I am hopeful beneficiaries will, long term, include federal taxpayers and citizens as a whole being safer due to reduced recidivism and monies reallocated to better public safety uses. In the short term, federal prison guards have less crowded facilities and family members of those incarcerated will be getting their loved ones home sooner.

Q3: "The more than 99% of us who, leading peaceable lives, are not in federal prison?"

A3: Yes, if we care about justice, fairness and reducing wasteful spending of taxpayer resources. Our benefits, if we do not have a loved one coming home early, are much more dispersed than for those released early. But I feel good when the the arc of the moral universe in the US continues to bend towards justice.

Q4: "Or the tiny fraction of 1% whose greed-driven and criminal choices put them where they are?"

A4: Surely those released early benefit most from retroactive justice, and I sincerely hope they use this benefit to rebuild their lives as effectively as possible.

Now questions for you, Bill, in light of your asterisk: Do you support Chris Christie's pledge to enforce federal pot prohibition in all 35+ states which have legalized marijuana in various ways? I believe there may already be over 25,000 persons working in the marijuana industry in Colorado alone. How many of this number would you seek to have prosecuted for federal felony drug offenses and what kind of prison terms do you think they should receive for their "greed-driven and criminal choices"?

It's highly relevant; it's just not exact. Unless there is some dramatic difference between the propensities of those charged in state vs. federal court, there is no reason to think their recidivism rates would be much if any different.

If anything, the federal inmates' recidivism would be higher. The relatively lower recidivism rates tend to be concentrated in violent offenders, and federal criminal jurisdiction is NOT your violent, murder-rape-and-robbery type. It's more drugs-immigration-and-fraud. Those folks have recidivism rates higher than the violent criminals you see more often in state court.

"Do you support Chris Christie's pledge to enforce federal pot prohibition in all 35+ states which have legalized marijuana in various ways?"

I would adopt the same approach we had at DEA when I was the Counselor to the Administrator: Federal law is supreme in all instances and throughout the country. The rigor of enforcement with limited resources will depend on where it is deemed most needed, an assessment to be made by looking at, among other things, the desires of local communities, the degree of interstate effect, and the harmfulness of the drug, with heroin being more toward the top and pot lower on the chain. But no one gets an immunity card or a quasi-kinda-sorta promise of immunity. You knowingly violate federal law, you assume the risk.

i read both mr. otis and prof. berman and am interested in what you both have to say

but is it clear that "1/3 of the group will be immediately deported"? is there not quite a bit of documentation showing that even convicted felons are not being deported, let alone "ordinary" illegal immigrants?

On the recidivism front, Bill, I would think the crack defendants released early from federal prison would be the better comparison group for those soon to be released from federal prison for other drug offenses. I believe the data indicated under a 35% recidivism rate. So to predict that a "huge majority" of the federal drug released will commit crimes again is as inaccurate and inflamatory as your false contention that "frenetic irrationality" drives what is going on now.

Further, the recidivism number you love to cite comes from state released offenders in 2005, during a time when we had invested so little in reentry efforts (and thus likely enhanced the criminogenic dynamics of imprisonment). Especially in the wake of the Second Chance Act and other like programming, there is a reasonable basis for believing that recidivism rates will never again be this high in studies of subsequent released cohorts.

All this said, I do not fault you for wanting to make sure that the subsequent crimes of those released early should be a focal point for attention and analysis. But let's all try to be responsible with the numbers in this setting so that reality rather than rhetoric can inform our efforts.

Recidivist rates are most often defined as those releasees who are convicted of new crimes-often exclusively felony offenses-within a prescribed time frame.

Accordingly, it does not take into account the following anti-social acts in the community:

1-new arrests that do not result in conviction or
2-release or parole violations of any type including drug use, failure to report for supervision or failure to comply with counseling or treatment

Given the above, recidivist rates by any measure often under estimate the harm visited upon the community.

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