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The Blase' Racism of Sentencing Reform

| 14 Comments
An unnamed Republican Senate aide is quoted as follows in responding to the Wendell Callahan sentencing reform scandal, in which two little African American girls and their mother were knifed to death by a federal inmate given early release under a 2010 sentencing reform law:

You're never going to eliminate the Willie Horton type of situation, the political ads aside, of somebody coming out [of prison] and committing a crime. It's the nature of the human being. You're never going to have 100 percent certainty, that's never going to happen. But it would be a shame to just not ever do any sentencing reform, any criminal justice reform, because of that.

It is difficult to tell which is worse in that remark  --  its dismissive racism or its blunderbuss stupidity.
If sentencing reform were not a cause being pushed by Barack Obama, Al Sharpton and Loretta Lynch, the "Republican aide's" remark would be blasted, and rightly so, for its dismissive, boys-will-be-boys attitude toward the murders of black children and their mother.  To say that, well, hey, look, we can't get everything right, so if little girls (girls who, had they been permitted to live, would have had next to no chance of getting a fat job in the Senate) get murdered by a drug pusher we released early, we just have to walk past that and move along with early release for yet more potential killers.

Republicans are often, almost always unfairly, accused of racism.  It is blase', callous and arrogant remarks like that, however, that give currency to such accusations.

(The remarks also impeach the constant demand by "reformers" for "evidence-based" outcomes.  When evidence  --  the Callahan case  --  surfaces, what do they do? Ignore it, hide it, belittle it, or dismiss it).

The "Republican aide's" dismissive reception also reveals the analytical obtuseness of sentencing reform.  Of course it is true that we can't get 100 percent certainty.   Error is not only unavoidable but commonplace -- with some sentences, in our present or any future system, very likely too long, and others not long enough. The decisive questions then -- the ones reformers tend not to ask -- are, first, how grievous are the results of error, and second, who should have to bear its costs? Should it be the criminal, who made his own choices, or the future victim, who never had a chance?

Errors involving overlong sentences are bad; there is no denying this fact. But the nature of the harm flowing from insufficient sentences being what the Callahan case shows it can be, any change in the system that pushes more of the burden of error onto future victims like the two murdered little girls and their mother goes beyond merely bad. In a country that values decency, it is unacceptable.

14 Comments

Three follow-ups, Bill:

1. Can you more fully explain why you think this GOP staffer remark justifies an accusation of racism? Are you asserting that this remark would not have been made had Callahan's victims been white?

2. Even with sentence reductions, Callahan served more than 8 years in federal prison for his crack dealing, but apparently did not serve significant state time for prior violent crimes. Isn't this case really more properly an example of the problems with state sentencing realities, not an example of federal sentencing generally being to lenient on crack dealers?

3. In light of your criticism of the GOP staffer comment and your concern about the risk of error taking innocent lives, do you see real merit in the claims of death penalty abolitionist that we must not allow executions to go forward unless and until we can "have 100 percent certainty" that no innocent defendant will ever be sentenced to death?

Delighted to hear that you disapprove of unsubstantiated accusations of racism, Doug. I wish I had a dollar for every time some jackass has said that anyone who supports policy X must necessarily be a racist merely because policy X happens to have a "disproportionate impact."

1. It is not the racial tone-deafness of the Senate aide's remark but its mind-blowing callousness toward present and future murder victims that's the problem. Still, in the age of Black Lives Matter, I am not, and will not become, oblivious to the fact that the victims here were black (and two of them were little children).

And I view your concern about the possible racial implications of this callousness as, shall we say, ironic, coming from someone who is cool to Judge Merrick Garland because -- ready now? -- he's not black!

I, on the other hand, have never and will never criticize a nominee because of his race (unlike the Democrats who attacked Clarence Thomas).

Since the aide (very understandably) refused to identify himself or the Senator he's working for, I can't say whether he would have the same chipper attitude toward murder-through-sentencing-reform if the victims were white. My guess is that he wouldn't give two hoots in hell, because the important thing is just that the victims wind up on a slab in the service of lower sentences.

2. The problem this case shows is easy: Both state and federal systems are getting soft, in part (but not entirely) because of the non-stop attack on America as being too punitive. A considerable part of that attack is fueled by the theory that America cares insufficiently about black people (yet now I'm supposed to ignore that this aide is all but snickering about black murder victims).

Still, I don't know why you're blaming the state system. Had the FEDERAL system not gone soft of crack dealers like Mr. Callahan (as some now propose it should go soft on heroin dealers), those two little girls would be alive today.

Callahan had an awful history, and should have been maxed out on his federal sentence to begin with. Instead, he got not one but two retroactive federal sentencing breaks.

How is that anything but a travesty of justice? Not to mention mind-bendingly stupid?

3. It would take a fertile mind like yours to see any comparison between executing adult murderers pursuant to law, and after years of exacting judicial review; and slicing to death two little girls pursuant to a drug dealer's vicious rage after he found out their mother was seeing someone else.

But for however that may be, abolitionists' actual goal is not to make sure we only execute people we're certain are guilty. Their goal is to make sure we execute no one at all no matter how ice-cold clear it is that they're guilty. Their poster boy is not Mr. X. It's Dzohkhar Tsarnaev, their original Mr. Nicey.

Kent, not only do I "disapprove of unsubstantiated accusations of racism," I think all of us would do well to embrace and emphasize 2 critical realities that I think define much human decision-making in the US circa 2016: (1) very few persons intentionally and consciously think poorly about a large group of other people based SOLELY on their race (or gender or age or religion), but (2) many people, at least unconsciously and arguably appropriately, consider a person's race (and gender and age and religion) as one of a number of factors when making snap judgments/guesses about that person's personal background and opinions and interests.

I think only those persons who intentionally and consciously think poorly about a large group of others based SOLELY on their race should be labeled "racists."

---

Bill,

1. I still do not understand what qualifies as "the racial tone-deafness of the Senate aide's remark." I also do not see how the remark amounts to "snickering about black murder victims" because the comment seems neither a snicker nor does it make any direct reference to the race of any victims.

I hope you will try again to explain to me what racism you see here in this aide's comment. Is it the reference to Willie Horton? Is it the fact that Callahan is black or is it because his victims are black? I am not accusing you of anything, I am just trying to understand where you see "dismissive racism" or "racial tone-deafness" in a seemingly race-neutral comment about "nature of the human being" and the problems of using a single sad case to undermine a massive reform proposal that seeks to improve outcomes in hundreds of thousands of other cases.

2. I am cool to Garland because, as an older white man with a history as a prosecutor and circuit judge, he has a personal/professional perspective on crime and punishment (and other issues) that is already very well represented on the Supreme Court. I value personal/professional diversity, especially in a multi-member court, and that is why I was rooting for, e.g., Janice Rodgers Brown or Edith Jones to get selected over Samuel Alito for his spot, why I have been generally pleased with many of Prez Obama's judicial/executive nominations, and why I liked more than Garland just about everyone else on the "short lists." (As you may know, I especially liked the idea of Gov Sandoval if Obama's goal was to pick a true moderate, but it seems Sandoval took himself out of the running.)

By my above-stated definition of "racist," I do not think my opinion on this front makes me a racist. But it seems you have a different working definition of racism, Bill, so maybe you think my views here are racist. If you do, I would like to know.

2. You say the Callahan case shows that "Both state and federal systems are getting soft," but the problem with state sentencing for Callahan's prior violent seemed to happen in 2005 and 2007 before he was picked up for crack offenses by the feds. Moreover, the feds are still not "soft" on crack offenses --- they still get the longest average sentence of any offense other than murder and producing child porn in the federal system. And Callahan got breaks because neither the state nor the feds went hard after him for his violent offense and instead were lazy because severe federal drug sentences encourage such laziness.

I agree that it is a "travesty of justice" and "mind-bendingly stupid" that federal law sentences Weldon Angelos to 55 years and, in so doing, fails to direct limited resources to go after violent folks like Callahan who have an "awful history." In my view, the JSVA, the SSA, the SAFE Act, and the SRCA are all (imperfect) efforts to make federal law better in this regard. But you oppose them all.

3. I think your mind is fertile enough, Bill, to appreciate that the point made by the aide here is quite akin to the point often made in response to DP abolitionists when they say we should not have a functioning death penalty unless we "have 100 percent certainty" that no innocent person will every be wrongfully convicted.

I surmise that the very points you make here --- "Error is not only unavoidable but commonplace" and the prospect of an innocent "future victim" of a wrongful capital conviction --- has been a very big factors states like Illinois and Maryland and Connecticut to recently abolish the death penalty. All I am trying to understand is if you think this argument is as forceful to justify ending the death penalty as you think it is to justify ending federal sentencing reform efforts.

"...why I have been generally pleased with many of Prez Obama's judicial/executive nominations,..."

Really? How many of those nominations come within 10 miles of being "libertarian?"

Race is more important than the ideology you claim?

Interesting.

BTW, can you name me a single great libertarian thinker who believes, like you, that racial diversity is more important than their ideology and fealty to the constitution?

You have often spoken up for openness and transparency in debate about sentencing reform. So I have some questions.

Would you like to know who the Senate aide is?

Would you like to know who his boss is?

Would you like to know why neither name has been reported?

Do you think his comment reflects well on sentencing reform?

Do you think the costs of error in sentencing should be borne more by the criminal, or by the future victim?

Who bore them in this case?

Do you think the race of Callahan's murder victims is irrelevant? (I do, but my efforts to subtract race from the sentencing reform debate have utterly failed due to sentencing reformers' insistence that the current system is racist. I thus have no choice but to engage in the debate as it is framed).

Do you think I would hesitate for a nanosecond to say that you are a racist if that's what I thought?

Am I known for being shy? HAHAHAHAHAHA.

Of course, you already knew that I think no such thing. The whole topic (like your trying to drag in the death penalty) is just a diversion from the "Senate aide's" not-that-well-disguised complacency about child murder as the perfectly tolerable price we (or more correctly, future victims) should be compelled to pay for the privilege of giving early release to vicious, drug-pushing hoodlums like Callahan.

Those children would be alive today but for (1) a mendacious defense lawyer who stated that Callahan was not a threat to public safety, (2) an incompetent (or worse) USAO that happily went along with it, and (3) most importantly, the federal sentencing "reform" statute that gave effect to their deceit and laziness. Little girls paid the price.

Is that OK?

What is the number of additional murders the country should accept in the name of the far broader sentencing "reform" statute now proposed?

Or are you promising that there will never again be such murders?

If not, WHAT IS THE ACCEPTABLE NUMBER?

"Errors in overlong sentences are bad...But the nature of the harm flowing from insufficient sentences...any change in the system that pushes more of the burden of error onto future victims...goes beyond merely bad."

Your statement seems to acknowledge the current system hands down erroneous overlong sentences, a problem Congress is currently trying to address with sentencing reform. Your arguments on future victims of criminal offenders is a scare tactic designed to blockade any changes to the status quo.
This scare tactic is evident in the link you provide to Americans for limited government with the headline "senate GOP will own inevitable murders that follow mass criminal release". In a previous comment you answered in the negative if you would be agnostic on prospective only sentencing reform. Your rhetoric would equate to life without the possibility of parole for every single defendant.

The SRCA is a comprehensive sentencing reform bill, only one part of which is about retroactive sentence reductions. Recidivsm is an important consideration for the retroactive reductions part. but you seek to torpedo the whole bill and not because of any particular failing in the bill, but because you want to maintain the status quo.

You support mens rea reform, if a bill addressing this area were introduced with lower sentences would you similarly oppose such efforts unless the bill's backers promise no defendant would commit a future homicide?

Melissa --

"Your statement seems to acknowledge the current system hands down erroneous overlong sentences, a problem Congress is currently trying to address with sentencing reform."

My statement holds that the current system and any future system hands down some sentences that are too long and others that aren't long enough. Do you disagree?

I also said that any system we adopt will have error. Do you disagree with that?

Who should bear the costs of error? The defendant who made his own choice, or the future victims like these little girls (the ones your comment consigns to unmentioned oblivion) who had no choice?

"Your arguments on future victims of criminal offenders is a scare tactic designed to blockade any changes to the status quo."

My "scare tactics" are no match for the scare tactics of abolitionists, who tell us this story and that of supposedly innocent people (e.g., Roger Keith Coleman) who got executed. Only they weren't innocent.

But for however that may be, pointing out that there will be future victims of early-released prisoners is simply telling the truth -- a truth you conspicuously don't deny. There are some facts any sane person would fear, and the next Callahan (or Callahans) are among them.

Unless you think we should just accept child murder as the cost of doing business in a world of expanded early release.

Do you?

How many child murders are acceptable? That does not call for a filibuster. It calls for a number.

It's also false for you to assert that I want to "blockade any changes in the status quo." As you acknowledge down the page, I favor mens rea reform, which would be a major change. I also favor a return to binding guidelines with proof of enhancers BRD. So your statements about both my beliefs and my motives are false.

"Your rhetoric would equate to life without the possibility of parole for every single defendant."

What complete tripe (as you knew when you typed it). You don't get to fabricate my position by leapfrog inferences velcroing in what someone else said.

I have asked more than once that, if a commenter wants to state my position, he or she QUOTE it. You have repeatedly ignored this request in order to put absurd words in my mouth, as you do now.

Given this history, from now on, this will be the rule: If you give a distorted rendition of my position, I will either erase it or edit it, at my option, to correct it.

If you want to continue to comment here, you are perfectly welcome to do so. But, given your not inconsiderable history of distorting my position to create straw men, that is how it's going to be. Your future commenting will understand and accept this fact.

Tarls, I did not say, nor do I believe in any way, "race is more important than the ideology" I embrace. Rather, in the context of federal judicial appointments, I have come to the view that, at least in recent decades, minority/diversity appointments to the federal bench generally tend to distrust government power a bit more than others --- see, e.g., Thurgood Marshall, Sandra Day O'Connor, Clarence Thomas, Janice Rodgers Brown. Thus, my affinity for minority/diversity appointments to the federal bench is in service to my ideology.

Do you think I am wrong to believe Sandoval or Srinivasan or Jackson-Brown would tend to distrust government power a bit more than Garland? And, for the record, I would likely prefer Senators Rand Paul or Mike Lee on the Supreme Court to all of these folks, although I would worry that they (like all DC insiders) would tend over time to embrace government power in big cases (see, e.g., Kennedy and Scalia in Raich). Sadly, these days to even be in the mix for an important federal judgeship, it seems you have to make lots of friends in govt, so I doubt many real libertarians have much of a shot.

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Bill, I am still eagerly waiting for your explanation of your repeated use of the term racism in this setting. I have explained how I use terms like racist and racism, and I continue to hope you will explain why you repreately decribed this aide's comment as involving racisim because I still fail to see it. I also continue to wonder how you read this comment as a form of "snickering about black murder victims." As you like to say, "words have meaning," and I want to better understand your meaning in this context.

As your your questions, let me try to provide a bunch of quick answers:

Q: Would you like to know who the Senate aide is?

YES

Q. Would you like to know who his boss is?

YES

Q. Would you like to know why neither name has been reported?

YES

Q. Do you think his comment reflects well on sentencing reform?

I THINK HIS COMMENT REFLECTS REALISM ABOUT ALL EFFORTS TO IMPROVE THE LAW. I DO NOT THINK WE SHOULD STOP BUILDING ROADS EVEN THOUGH EVERY NEW HIGHWAY MEANS AN INCREASED CHANCE OF A DEADLY ACCIDENT, AND I DO NOT THINK WE SHOULD END THE DEATH PENALTY BECAUSE OF THE CHANCE OF A WRONGFUL CONVICTION. I READ THIS COMMENT IN THE SAME VEIN.

Q. Do you think the costs of error in sentencing should be borne more by the criminal, or by the future victim?

IN 1-1 COMPARISONS, I WANT THE RISK TO BE ON THE CRIMINAL. BUT I AM NOT SURE HOW TO EFFECTIVELY WEIGH CLEAR COSTLY PAST ERRORS ON HUNDREDS OF THOUSANDS OF CRIMINALS --- ALL THOSE SENTENCED UNDER THE 100-1 CRACK/POWDER RATIO --- TO JUST THE RISK OF (A FEW? MANY?) ERRORS IN THE FUTURE. THE POINT OF THE AIDE'S COMMENT, I THINK, IS THAT TRYING TO FIX PAST HUGE SENTENCING ERRORS SHOULD NOT BE FOREVER STOPPED WHEN WE LEARN OF ONE NEW ERROR IN OUR FIXING EFFORTS.

Q. Who bore them in this case?

AS I HAVE SAID BEFORE, I THINK THE CALLAHAN CASE IS MUCH MORE ABOUT ERROR IN THE STATE SENTENCING SYSTEM FOR VIOLENT OFFENSES THAN ABOUT FEDERAL CRACK SENTENCES BEING TOO LENIENT. ARE YOU CAMPAIGNING HARD TO FIX THESE PROBLEM AS YOU ARE TRYING TO STOP FIXING OTHER FEDERAL PROBLEMS.

Q. Do you think the race of Callahan's murder victims is irrelevant?

NO, AND NEITHER DO I THINK IS THE RACE OF THOSE MOST SUBJECT TO OVERLY SEVERE DRUG SENTENCES OR THOSE MOST LIKELY TO BE SUBJECT TO LWOP SENTENCES FOR NONVIOLENT OFFENSES, ETC. SINCE YOU SAY YOU DO THINK IS SHOULD BE IRRELEVANT, I RETURN TO MY SINCERE QUESTIONS ABOUT YOUR CLAIMS OF RACISM IN THIS CONTEXT.

Q. What is the number of additional murders the country should accept in the name of the far broader sentencing "reform" statute now proposed?

WE SHOULD NOT "ACCEPT" ADDITIONAL MURDERS ANY MORE THAN WE SHOULD "ACCEPT" ADDITIONAL DEADLY TRAFFIC ACCIDENTS OR ADDITIONAL WRONGFUL CAPITAL CONVICTIONS. RATHER, WE SHOULD LEARN FROM PAST MISTAKES IN PRISONER RELEASE, AND ROAD BUILDING, AND CAPITAL PROSECUTIONS TO TRY TO ELIMINATE ANY FUTURE MISTAKES. BUT TO SAY EFFORT TO IMPROVE GOVERNMENT FUNCTIONING MUST STOP WHEN WE SEE A SINGLE BIG MISTAKE MADE BEFORE STRIKES ME AS BOTH SIMPLISTIC AND FOOLISH --- AND I THINK YOU ARE NEITHER BILL AND THUS, LIKE DP OPPONENTS, I SEE YOU AS HAVING AN ALTERNATIVE AGENDA.

Just very quickly, as I'm running off to lunch with one of my old AUSA buddies.

-- Thanks for the (mostly) direct answers.

-- I have no "alternative" agenda, but I very much have an agenda, you bet. That would be to stop the considerable damage I see coming if Congress adopts the SRCA. I don't think I've been too subtle about that agenda.

-- Part of advancing my argument is to show readers the costs of sentencing reform. The Callahan case is a ghastly illustration of this, and not just because of the little girl victims (although that too).

It is ghastly principally because it is all but certain that multiple episodes like this are going to happen again.

One reason we know they're going to happen is that the defense lawyer and AUSA will repeat the same cookie-cutter mistakes (I'll assume they're just mistakes) that happened here. The defense lawyer will argue that good in-prison behavior shows his client is not dangerous, and the prosecutor will be too lazy or distracted or overburdened adequately to check up on it, resulting in catastrophe.

It's a classic scene. The reason you won't promise it won't happen again is that your honesty prevents you from doing so.

The only question is how often -- or, in other words, what's the total price going to be of adopting the SRCA?

Until we know, it would be crazy to buy the package, anymore than you would make any other major purchase without knowing the price. Rational people simply do not do that.

I appreciate these responses, Bill, though I hope you will at some point get back to my first and main question: where and how do you see dismissive racism in the remark?

You keep failing to answer this seemingly simple question about a word you used in the main post title and twice in the text of the post. Why? Do you think I am asking an unfair question?

You note in the post that you think accusations of racism are often unfair, but then suggest such an accusation is fair in this case based on the remark you quote. But I do not see it at all, and so I keep wondering, and remain very puzzled, that a statement that has no mention of race at all in this case justifies your repeated use of this provocative pejorative. (If you are unwilling to explain what you mean with this use of a repeated claim of racism based on this remark, just say so and I will stop asking.)

I am starting to wonder now if you know who this aide is and why he is being hidden and that explains you accusation of racism. Is this Mark Furman or somebody with a long history of overtly racist statements? If the speaker's past history of racism is what drives your accusation, why is this person a GOP aide in the first place? But if this person does not have a past history of overtly racists statements, I am especially troubled that you seem so eager to lodge this accusation based on one seemingly race neutral comment about human nature.

Blacks are 13% of the population and 100% of the victims here. The disproportion is, shall we say, striking.

Full well knowing that disproportion, a Senate staffer hiding in anonymity sniffs that, when three black people, including children, are killed by a drug dealer on early release from federal prison, well, hey, look, we can't get everything right, so grow up and let's move on with yet more sentencing reform.

If you decline to see the offensive racial undertow of that particular brand of boys-will-be-boys callousness toward black victims, you are of course free to make that choice. My choice, with all respect, tilts differently.

I will add only that, when a police officer killed one unarmed black person (6'4', 292 lbs.) in Ferguson, Mo., in what was determined by two grand juries to be LEGAL SELF DEFENSE, the entire country was abuzz about the racial valence in the case. If a Senate staffer had said, "Look, the police can't get everything right, so we need to just move forward," he would have been fired that afternoon.

I will leave the comment thread open for the moment, in the hope that it will now pursue an unexhausted topic.

As you know, Bill, blacks and other minorities are also a disproportionate number of those subject to incarceration for federal drug offenses (especially crack offenses). This explains, in part, why every civil rights group on record support the SRCA. Are you suggesting that they, too, do not care about black victims when they want sentencing reform to continue to move forward?

I do not see an "offensive racial undertow" in the staffer's comment because he said what is the honest thing to say in this context: namely that "you're never going to have 100 percent certainty" that a few of hundreds of thousands of the beneficiaries of reform are not going to cause future harm, but that reality "it would be a shame to just not ever do any sentencing reform, any criminal justice reform, because of that." The same statement would be true and should be said if, as in the Willie Horton case, the victims here were white.

What I do see in your repeated accusation of racism is an effort by you to use the racism label in a very suspect and questionable way --- in a way that, as Kent rightly implies, is comparable to other all-too-common examples of "unsubstantiated accusations of racism" --- to further your own policy advocacy against the SRCA. Please understand, I am not criticizing for throwing around the "racism" term to serve your policy agenda --- lots of people on both the left and the right embrace loaded words to advance there political causes. And I hope you understand that I have press this issue because I was surprised to see you use this label since I believe you have generally attacked others for doing so in a similar manner.

(This is really same point I sought to make when I questioned your use of the term "mass" to describe Prez Obama's so-far-still-paltry use of his clemency powers. I very much enjoy and respect when you question and criticize various folks for the terms and rhetoric they employ, but I find it a bit troubling when you too readily embrace the tools your otherwise criticize when you think it serves your political purpose.)

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