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Sentencing Commission: Do No (More) Harm

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For about the last two years, there has been a major crime surge across this country, as even liberals now concede.  The heroin crisis is out of control.  A major part of the reason for this is repeat criminals:  It would be all to the good if the thousands of inmates we release each year went straight, but by-and-large, that is not what happens.  To the contrary, we have an appalling overall recidivism rate of 77%. For violent crimes, it's over 70%.  And all those figures are low, because a huge amount of crime never gets reported.  This is particularly true of drug crimes, a major component of federal criminal enforcement.

Sooner or later, virtually all criminals will finish serving their sentences, and it would be unjust (and illegal) to keep them incarcerated simply because we know the majority will go back to crime.  Some will indeed straighten out and, regardless, indefinite incarceration is not the American way.

But we face an entirely different situation with respect to criminals who get early release from legal sentences they have earned.  In federal jurisdiction, thousands of early releases have already been allowed, and many thousands more are underway.  This is a part of the recidivism (and the related crime surge) problem we can do something about right now.  Specifically, the US Sentencing Commission must curb its early release binge.  First, however, it will have to show at least a modicum of interest in the degree of harm its early release policies have already caused, and how much more damage, if left unchanged, they are likely to foment.

Victims of early-released federal inmates are human beings with rights and feelings no less than their victimizers.  They deserve our attention and help.  At rock bottom minimum, they deserve more attention from the Sentencing Commission than they've been getting. 
What needs to happen is  for the Commission to understand more fully, and take responsible measures to step back, the recidivist crime to which its early release programs have contributed.

There are at least two things the Commission needs to undertake to get this done.  First, it needs to issue guidance that district courts considering early release under existing Commission guideline amendments should take special care to understand their obligation to determine the potential future dangerousness of those seeking retroactively reduced sentences.  The Commission should cite in particular the grotesque case of Wendell Callahan's triple murder  --  Callahan having received not one but two retroactive sentence reductions notwithstanding that there was no question either about his guilt or his violent and dangerous history.

Our federal sentencing system can never again be complicit in such a bloody scandal.

Second, the Commission should immediately adopt the no-pig-in-a-poke policy offered by Sen. David Perdue as an amendment to the SRCA in October 2015. I posted about that here,  It's worth repeating now that the electorate has chosen the candidate who pledged to Make America Safe Again:


...the current sentencing reductions [will] bring about the release of thousands of convicted drug felons without having any very good idea of what they are going to do after they return to the streets, and  --  in some ways even worse  --  no way of finding out.

Why is it that the proponents of [reduced sentences] are so disinterested in tracing their handiwork?  If, as they claim, the bill will produce safer streets, not more dangerous ones, they should be eager to show the world how perspicacious they've been. Those of us who think that prison helps reduce crime will have been shown up.

Maybe the proponents don't mean what they say.  Just maybe, they know that crime will go up, and, therefore, it's best not to track the behavior of [the criminals] who'll be getting early release.

This is just so typically sleazy from what we see in Washington: Proponents of Bill X promise us it will produce wonderful results, but then quietly scuttle any means to find out what the results actually are.

For those who'd prefer a more honest an open approach, let me commend the "Anti-Pig in a Poke" Amendment (my title) offered by Sen. Perdue,  

SIL15793 S.L.C.


Purpose: To require the United States Sentencing Commission to submit to Congress a certain quarterly report relating to recidivism.


IN THE SENATE OF THE UNITED STATES--114th Cong., 1st Sess  S. 2123

AMENDMENT At the appropriate place, insert the following: 


SEC. 110. REPORT ON RECIDIVISM. 

(a) DEFINITION.--In this section, the term ''covered  individual'' means an individual-- 

(1) whose sentence is reduced under this Act,  or an amendment made by this Act; and 

(2) who, after the date on which the individual  is released from the custody of the Bureau of Prisons, is charged with or convicted of a criminal offense. 


SIL 15793  S.L.C.


(b) REPORT.--Not later than 180 days after the date  of enactment of this Act, and every 90 days thereafter, the United States Sentencing Commission shall, in coordination with the Attorney General and the Comptroller of  the United States, submit to the appropriate committees of Congress a report that contains information pertaining  to covered individuals, including -- 


(1) the name, date of birth, and Bureau of  Prisons Register Number of the covered individual;  

(2) the nature of the offense committed by the  by the covered individual, including the name of the  offense and corresponding citation to Federal or  State law; 

(3) the jurisdiction in which the offense was  committed; 

(4) the status of any Federal or State proceeding arising out of the offense; and 

(5) any other information related to the offense  or subsequent criminal proceeding related thereto  that the United States Sentencing Commission determines is relevant. 


******************************************************************** 


When I wrote my pig-in-a-poke entry 13 months ago, it was not as clear as it has since become that crime is surging.  Wendell Callahan had not taught us so tragically and graphically about the  dangers of federal early release. And we had not had an election that re-balanced where we should draw the line between the risks of too much incarceration, and the risks of not enough.


It is simply foolhardy for the Sentencing Commission to push forward with its lighter sentencing binge without having far more data than it does, or seems interested in getting, about the costs its policies have imposed (and if continued, will continue to impose) on law-abiding, innocent citizens.


My fellow academics constantly remind us of the need for data-driven policies. I agree.  It's time for the Sentencing Commission to take a deep breath on blunderbuss early release; adopt the Perdue policies; get and maintain robust data about recidivist federal felons, keeping Congress continuously in the loop; and re-think its behavior in light of the grimmer crime realities we face heading into 2017.



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