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Briefing at the Senate on Sentencing "Reform"

A week ago, at a Federalist Society function at the Senate Visitors Center, I had the opportunity to brief the audience  --  including, I think, quite a number of Senators' staffers  --  on the proposed sentencing "reform" bill that was passed out of the Senate Judiciary Committee.  The briefing took the form of a debate, with three panelists favoring the bill and three opposed.  The debate was not recorded, so unfortunately I cannot reproduce it here.

I did, however, write out my opening statement, which I set forth below.  One point I made near the end, which I want to emphasize here, is that those of my Republican friends who think passing this bill will be politically advantageous are making a big mistake.

In Washington, DC, and around the country, we are in the midst of a murder spree and a heroin epidemic of the kind we have not seen in decades.  Republicans control both the House and Senate, and if they pass a bill taking it easier on federal felons  -- which is, for practical purposes, the main thing this bill is about  --  they should, and they will, pay the price at the polls.

Once again, Obama has fleeced many members of what is sometimes called the Stupid Party into carrying water for his pro-criminal agenda.  If Republicans persist in this foolhardy enterprise, they will have done more than usual to earn the name.
As I told the audience:

My purpose today is not principally to examine the details of the SRCA, something my colleagues on the panel have done.  It's to ask you to take a close look at the stated impetus for this bill, the reliability of its factual underpinnings, and its broader but all-but certain outcroppings.

First, let me suggest a correction to the vocabulary we've been using today.  This is not a sentencing "reform" bill.  It's a sentencing "reduction" bill.   It's revealing that the bill's backers decline to call it by the only name its main operative provisions justify.

The animating premise of the bill is that our present drug sentencing laws, and indeed the criminal justice system itself, are "broken," something we have heard many times.  It's not so.  Stiffer sentencing, more proactive police work, less judicial license, and more use of incarceration are  central parts of what is, instead, arguably the most effective domestic program of the last four decades.  Crime rates are down by 50%.  Our successful suppression of the crack wars of the late 80's and early 90's has helped drop the murder rate by more than 50%.  There are 10,000 fewer murders per year in the United States today than there were 22 years ago.  

The system may indeed look broken to the pusher who gets caught and is serving a long sentence.  But it would be obtuse for Congress to adopt legislation premised on a drug pusher's point of view.  The measure of the health of the criminal justice system is not the incarceration rate but the crime rate.  The former affects 2.2 million felons who are in jail because of their own criminal choices.  The latter affects us all  --  the other 320 million, or 99.3% of the population  --  who live normal lives and would prefer to keep it that way. 

The other premise of this bill is that our spending on incarceration is breaking the Justice Department's budget and is unsustainable.  This newly discovered devotion to frugality would be more plausible if the federal government had not spent the last seven years adding ten trillion or so to the national debt.  Not that it makes much difference:  Everyone in this room knows that agency budgets are not a statement of fiscal reality but of political priority.  We always find the money to spend on things that are truly important.  What is more important  --  indeed what is more at the core of government's proper functioning  --  than maintaining the safety of its citizens?

And one more thing:  As everyone in this room also knows, the Justice Department's budget is going up next year, and the next and the next, whether or not this bill becomes law.  Not one  dime will be returned to the taxpayers.   If we cut back on incarceration, the Justice Department will simply spend that money, and more, on other programs more in keeping with its  ideology.  The money will go for such things as indigent defense, counseling and re-entry.  These things may well be worthwhile, but that's not the point.  The point is that reducing incarceration won't save any taxpayer money but merely re-direct it. 

And while supporters of this bill trumpet savings that are illusory, they ignore costs that are certain:   More crime, more crime victims, and more costs to those victims  --  both in expenditures and in human suffering.

The idea that we can release more felons earlier with no increase in crime is not merely mistaken; it's enough to give wishful thinking a bad name.   We already know what happens when criminals are released, because Eric Holder's Justice Department told us in an extensive study released last year. To quote it, "Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders...and 71 percent of violent offenders."  Almost 40% of inmates re-offend within less than a year.

If this bill would keep us just as safe or  --  as some have claimed, safer  --  than we are now, there is no explanation for the Committee's having rejected Sen. Perdue's amendment.  That  would have required the Sentencing Commission to keep track of recidivism by offenders given early release and publicly report it to Congress.  If these offenders are as unthreatening as they have been portrayed, the Commission's review would tell us, and the sponsors of this bill would justifiably take credit for their work.  

What reason can there be for enacting a bill that is overwhelmingly likely to affect public safety, but then refusing to keep track of its results?  

Again as everyone in this room knows, this bill is going to result in crimes being committed that otherwise would have been prevented by continued incarceration.  Strictly as a matter of sound policy, shouldn't Congress at least make a studied effort to determine  --  and  determine before it acts rather than afterward  --  how much additional crime the released inmates  will commit? 

What kinds? 
To whom? 
Will the additional crime victims be disproportionately members of minorities?

Does the bill have a safety valve  --  not for defendants (we know it does for them), but for the public, if we get more, and more violent, recidivist crime than we thought?

As I've said, there is no crisis in the criminal justice system of the kind we keep hearing about, but even if there were, this bill would over-correct for it.  (This is true even putting to one side the summer's optimistic assumptions when the bill was drafted, assumptions that now seem dubious in the face of the ongoing crime surge).   First, just last week, 6000 prisoners were released as a result of retroactive reductions in the Sentencing Commission's guidelines.  Thousands more are on the way; credible reports put the eventual number at 46,000.  Second, the President is sure to make good, at the time of his choosing, on the vastly increased use of executive clemency his Administration has been talking up for months.  Assuming arguendo than a remedy for "over-incarceration" is warranted, what is Congress's rush?  Isn't by far the wiser course to assess the extent and the results of sweeping measures from the other branches already in train?

I'll say just a word about some specifics.  The gun provisions of the bill are bad enough, as Sen. Cruz has pointed out, but the retroactivity provisions are probably even worse.  Not only would they result in the early release of tens of  thousands of criminals; they would tie up already overburdened federal prosecutors in re-litigation of a legion of old sentences while new cases go languishing.  In a time of rising violence in this city and from coast to coast, this is the definition poor re-allocation of resources.

Where, in the end, does this bill aim to take us?  In my view, it's not about compassion; it's about retreat impersonating compassion.  I would ask my Republican friends in particular to re-examine whether they want to turn away from the policies of Ronald Reagan and Ed Meese  --  who has strongly opposed this bill  --  to advance the policies of Eric Holder and Barack Obama.  And, I have to add, to be left holding the bag when the additional crime those policies all but insure comes home to roost.

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