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Checking Up on Those Record-Setting Commutations

President Obama issued more sentence commutations than his twelve predecessors combined.  It might be the case, of course, that Mr. Obama is more far-sighted and humane than essentially everyone who sat in the Oval Office since WWII.  Or it might be that Obama's political constituency is more heavily invested in the notion that America is a brutal and racist country that needs a slap in the face to come to terms with its wretchedness.

A tip-off as to which of these is more likely to be the driver might be found in the fact that Obama began his clemency binge in earnest only after November 2014  -- at which point he would no longer be facing an election where voters beyond his constituency could deliver their judgment. 

But one way or the other, you can almost hear the other shoe not dropping.  That is, where is the media's curiosity about what the drug pushers given clemency are doing with it?  We were told their prison records and rehabilitation showed they would routinely become productive family men, good citizens and taxpayers.  It shouldn't be that hard to find out.  Why isn't anyone asking?
I don't know the answer to that question for sure, but I think there's a tip-off to be had there, as well.  

Cocaine trafficker Wendell Callahan did not receive a commutation in haec verba, but he received the functional equivalent of one when his sentence was cut (twice) courtesy of a bill, the Fair Sentencing Act, based in the same skepticism about America's basic decency that underlay the clemency surge. When Callahan used his early release to commit multiple murder, including knifing to death two little girls, the national media simply went blank.  I could find local affiliates of the big networks that carried the story, but no news story to my knowledge ever appeared in any national outlet.  (I would be eager to be proven wrong about that by any reader who could link me to a national-media Callahan news story).

The Callahan white-out makes a suspicious man like me think that the Obama mass clemencies might have had their own unfortunate consequences, but they're being swept into the media's cone of silence.

I should note some caveats here.  First, it's relatively early.  As noted, Obama back-loaded his clemency surge, so recidivist episodes are likely to be recent. That, combined with the fact that reliable crime statistics tend to run about a year late, could mean that the press simply has not had time to investigate what our new model citizens are doing (although a major story like Callahan's ought to have been would not need a compilation of statistics).

Second, there's the possibility that the media have been preoccupied with more serious stories, e.g., the conflict of interest that might arise from Ivanka Trump's line of clothing or shoes or perfume or whatever it is.  With the press, we need to remember that it's first things first.

Still, should the press find itself able to turn its attention toward recidivist crime by those granted leniency  --  crime in its sometimes non-violent and sometimes violent forms  --  there is more than one question to ask.  This story from Breitbart notes many areas for curiosity.


Bill, I think you are right to inquire about the recidivism rate for those granted clemency, but I think you are so very wrong to assert that Wendell Callahan's sentence reductions based on federal legislation is the "functional equivalent" of clemency. If these are equivalent, as Justice Scalia liked to say, so are chalk and cheese.

Clemency is an executive grant of relief not subject to either legislative limitation or judicial review. Callahan's sentence was reduced based NOT on executive power, but due to Guideline changes by a judicial-branch agency, one of which was required by legislation Congress passed nearly unanimously.

Your affinity for using the Callahan story to assail all possible sentencing reform is impressive, but it is plainly NOT remotely a clemency story. The law of numbers suggests that a good number of the 1,700+ receiving Obama commutations will get in trouble again -- even a wonderfully low recidivism rate of, say, 10% will mean 170 will get in trouble. So, you can/should make your point about recidivism without misguided efforts to line up your favorite talking points. Let's stick to talking about clemency when talking about clemency and not conflate issues by bringing up the ugly Callahan case in this distinct context.

First, thank you for linking on SLP my prior extended criticism of Prof. Whiting.

As to the present subject: Both Callahan and the Obama commutees got shortened sentences for exactly the same reason -- that the original sentence was seen by backers of sentencing reduction as too harsh, outdated, and racially tinged.

-- That being the case, the two are similar (at the minimum) for the purposes I am discussing. They also share more structurally than might seem the case at first blush. The FSA was signed into law by Obama, thus giving the President a key role in, and responsibility for, the "benefits" it conferred. And the reductions Callahan got were green-lighted by Obama's US Attorney, who, tragically and scandalously, did not dispute defense counsel's grossly false assertion that Callahan posed no danger to the community.

But for Obama and his pro-criminal views on sentencing, both Callahan and the commutees would have served their original terms.

-- "The law of numbers suggests that a good number of the 1,700+ receiving Obama commutations will get in trouble again..."

Whether a person gets in trouble with the law is not a function of "the law of numbers," whatever specifically that might mean. It is a function of the person's behavior and the cops' diligence and alertness.

-- "... even a wonderfully low recidivism rate of, say, 10% will mean 170 will get in trouble."

I would question whether 10% is really "wonderful," but, for however that may be, it's not going to be anywhere close to as little as 10%. It's going to be somewhere between 50% and 100%.

Drug dealing, being a consensual crime, is grossly under-reported, much more so than other crimes. But even for the gross under-reporting, the USSC recently pegged the overall recidivism rate at 50%, and (if I remember correctly) 60% for crack pushers. The state recidivism rate for drug offenders is 77% as reported, and, with the significant under-reporting we see, is certain to be closer to 100%.

-- In addition to the other reasons for bringing up Callahan, that case highlights the central question at the bottom of ALL forms of early release: Given that we know we're going to get high recidivism, how much of a price in additional and faster crime should the country be willing to pay in order to bring about more early releases?

Like any sane person, I want to know the full price of the package before I buy what's inside. But oddly -- or not so oddly -- no one has been willing to say.

It is fair to say, Bill, that the USSC crack guidelines/statutory reductions and clemency grants share the same philosophical underpinnings --- namely that long prison sentences for non-violent drug dealing can be unjust (and sometimes counter-productive for crime control). Nearly every member of Congress --- including the current AG, Jeff Sessions --- signed on to this "pro-criminal view on sentencing" as reflected in the Fair Sentencing Act that helped spring Callahan. You complain about the media not reporting on the Callahan case, but I find it telling that you blame Obama for this case, but not also AG Sessions.

As for recidivism, the USSC's best data shows an average recidivism rate of 45% for crack offenders, and that rate was lower among those who got a reduced sentence from 2007 guideline amendments: http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/20140527_Recidivism_2007_Crack_Cocaine_Amendment.pdf

I am hopeful the commuted Obama sentences recidivism rate is much lower, and I share your interest in seeing what this group does in the years ahead. Because time in prison is criminogenic, I am not optimistic the recidivism rate will be very low. But I am hoping for the sake of society and for the offenders.

Finally, the "price" of sentencing reform need to include not only the costs of recidivism, but also the savings in human and economic terms of not having the government excessively deprive citizens of liberty. You are, for rhetorically powerful reason, eager to focus on the costs of recidivism. But there is great harm from excessive government and its use of coercive force, as any true conservative should truly appreciate.

"But there is great harm from excessive government and its use of coercive force, as any true conservative should truly appreciate."

Standard debating tactic and weak sauce.

The problem, of course, is in the details. We are a nation of over 300 million. Thus, in a criminal justice system for such a large nation, there is going to be "overpunishment" in certain cases, or as you like to tendentially put it, "excessively deprive citizens of liberty." In other words, a Goldilocks sentencing regime is just not attainable.

You abjectly refuse to deal with that issue, and instead focus on the horrors of those who bring guns to drug deals getting long sentences. (Now that Weldon Angelos is out, who is your harsh sentencing regime poster child?)

I get it--there are areas in the CJ system where conservatives should be appalled. But harsh sentencing of drug dealers isn't one of them.

By the by, I don't recall you getting all worked up about Martha Coakley's run for Senate. As you know, that woman is a big reason why Gerald Amirault still lives in chains. Barack Obama campaigned for her--interesting to juxtapose that with Obama's concern for East St. Louis crack house managers.

1. federalist, I do not "abjectly refuse to deal with" the inevitability of "overpunishment." Rather, it is precisely because all understand that some overpunishment is inevitable that we have a long tradition of executive clemency. And especially when a system abolishes parole, it is increasingly important that clemency powers get exercised to try to deal with some of the worst overpunishment cases that come to the executive's attention. (Weldon Angelos was one obvious example of overpunishment, though he was not a clemency recipient, and there are plenty more in federal and state systems. Ernest Young comes to mind: he got 15 years ACCA sentence for illegal possession of 7 shotgun shells. Or how about 100 years simply for having CP on a laptop, a case from Florida last week? I could give you many more, from Sholom Rushashkin to the roughly 3000 persons serving LWOP for non-violent offenses to folks profiled here by Rolling Stone: http://www.rollingstone.com/politics/news/the-nations-shame-the-injustice-of-mandatory-minimums-20141007)

Of course, as you like to highlight in various settings, federalist, there is also an inevitable "underpunishment" problem when we have so many individuals run through the CJ system. The interesting question is whether small-government conservatives --- dare I say true conservatives? --- ought to be more concerned with "underpunishment" problems or "overpunishment" problems. As a libertarian, I tend to worry more about the growth of government that enables and enhances the overpunishment problem (along with overcriminalization and overregulation, etc). I like to needle Bill by calling him a big-government conservative because it seems he worries very little about "overpunishment."

2. Plenty of conservatives, past and present, have been troubled by the harsh punishment of drug dealers in the federal system. Folks like Rand Paul and Mike Lee and Ted Cruz all endorsed the Smarter Sentencing Act, and out current AG was among hundreds of conservative GOP members who voted to cut crack penalties across the board via the Fair Sentencing Act. Notably, the FSA is rightly seen as a statement by Congress that the federal system was generally "overpunishing" crack dealers for roughly a quarter-century (from 1986 to 2010), and I think more than 100,000 persons were sentenced crack offenses under the overpunishment rules. Against that backdrop, Obama's grant of clemency to roughly 1500 crack offenders amount to an effort to remedy the overpunishment of only about 1.5% of the population that essentially all members of Congress said were overpunished via passage of the FSA.

3. If I got worked up about every lame prosecutor who ran for political office, I would not have the time I need to get worked up about everything else in life.

There you go again, Doug.

Do you even realize that "overpunishment" and "underpunishment" have so much freight and apply to so many different issues (e.g., malum in se vs. malum prohibitum) that opining about what a "true conservative" would think is arrogant nonsense.

I think I can speak for what any sentient human would think though--Martha Coakley is an appalling human being, and your guy, Barack Obama, supported her. What Doug, does that say about Obama? Trump, last I checked, hasn't campaigned for anyone like Coakley.

I need to throw back a variation of your own line regarding why Bill (and others) do not seem concerned about over punishment. Like Coakley, we cannot be concerned about every single person who some feel is over punished.

Over punishment is just not the problem (in pure numbers or harm to communities) that under punishment is. And the victims of under punishment (those harmed by criminals let out early) did nothing to deserve the pain they go through. Others may be "over punished", but they did something to get punished in the first place.

I'd like to feel bad about the drug dealer who got 25, but I'm all cried out.

"[T]he 'price' of sentencing reform needs to include not only the costs of recidivism, but also the savings in human and economic terms of not having the government excessively deprive citizens of liberty."

OK, for the sake of argument, I'll take your response here on its own terms:

Given whatever estimate you may choose of the benefits of not having the government impose "excessive" imprisonment, how many Wendell Callahan episodes -- that is, how much child murder -- should we accept to achieve those benefits?

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