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Where Are They Now?

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President Obama commuted more sentences than his 12 predecessors combined. The total was more than 1700.  The idea  --  one that we heard repeatedly  -- was that they would return to their communities to become productive, tax-paying citizens.

Someone didn't get the memo,

A convicted cocaine dealer released from prison early by former President Barack Obama is going to be an inmate again after getting arrested for theft and violating the terms of her release.

Carol Denise Richardson, 49, was arrested by the Pasadena (Texas) Police Department on April 13, less than a year after her life sentence for cocaine trafficking was cut short. She was placed on supervised release for ten years and the arrest and probation violations, such as quitting her job, will send her back to federal prison for 14 months.

In a Thursday hearing, assistant U.S. Attorney Ted Imperato said, "This defendant was literally given a second chance to become a productive member of society and has wasted it. She has shown a willful disregard for the law and must face the consequences for her crime."

Obama commuted a record amount of convicts, 1,715, and Richardson is at least the second of the bunch to have been arrested after their release. Robert M. Gill, another drug dealer, was arrested with two pounds of cocaine more than a year after his release, according to the New York Post.

With a sky-high recidivism rate for drug offenders (a rate Obama kept out of sight while on his clemency binge in favor of Happy Face statements he knew would never get pinned to him), what were we expecting?

14 Comments

Sincere question, Bill, on which I hope for sincere answer:

If, say, 1500 of the 1715 Obama released early go on to become productive, tax-paying citizens, while 215 go back to criminal ways, would you assert Prez Obama did a good job or a bad job?

As you note, the recidivism rate for some is over 70%, so arguable the Obama clemency effort was a pretty wise version of parole if only, say, half of this population stayed out of trouble. But I genuinely would like to get a sense of your working metric for success in this arena.

In order to avoid having a one-way street develop here, I'll respond to your question, but only after I get a response to the one I asked about a week ago that still awaits an answer.

We were discussing the Callahan case and the light it shines on the fact that early release will have, and has had, costs.

You pointed out that it also has benefits -- benefits in terms of savings on prison beds, smaller government, and more freedom for those who otherwise would be incarcerated.

I asked in reply that you place any value you think correct on those benefits, and then say how many Wendell Callahan episodes the public should tolerate in order to achieve them.

That is still my question: How many little girls should we be willing to see get murdered by criminals given shorter sentences and early release in order to achieve the benefits, whatever you take them to be, of sentencing reform?

"How many" calls for a specific number.

I remain curious.

Sorry I missed your question. Here is an attempted answer:

Specific number: Zero. We should not be "willing" to see anyone murdered as a result of sentencing reform, just like we should not be "willing" to have 62 law enforcement officers shot as a result of the Second Amendment (2016 FBI numbers). Am I wrong to see your blaming sentencing reform for Callahan's victims as akin to the left blaming guns for shooting victims? But, then again guns don't kill officers, people do....

In my eyes, sentencing reform in the name of freedom and gun rights in the name of freedom --- and lots of other freedoms (e.g., to drive, to use the internet) --- allows some people to misuse freedom to cause terrible harms. We should try to reduce those harms as much as possible while also acknowledging that freedom has costs and assessing what costs of freedom are worth bearing and also whether the government can be trusted to reduce those costs effectively.

The Obama clemency question is the freedom side of the equation. Obama increased freedom for 1715, and I want to know how many need to misuse that freedom for you to say that such a pro-freedom decision was a bad idea. I want to understand if you claim that the fact that not every one of the Obama 1715 will be perfect is enough to say that not a single one should be freed. Your Callahan emphasis, and this post, lead me to think the risk of one harm from thousands freed is more than you think we should bear and thus government should curtail freedom accordingly. That I why I think of you as a big government conservative. And so I am just trying to see how far your big government instincts run in this setting.

You question is should we bear the Callahan cost of freedom, and I say we should look to minimize it without giving up a commitment to increasing freedom and shrinking government. Obama increased freedom with his clemencies, and I just want to know if you think the cost is too high.

"Specific number: Zero. We should not be 'willing' to see anyone murdered as a result of sentencing reform, just like we should not be "willing" to have 62 law enforcement officers shot as a result of the Second Amendment..."

Thank you for the direct answer.

Acknowledging that we should accept ZERO as the number of people who will be killed via shorter sentences is the end of the sentencing reform debate.

You can't promise, as no one could promise, that no victim will get killed by a freed inmate who served less time than he would have under existing law. Indeed the great likelihood is that there will be dozens if not, over the years, hundreds of such victims.

You say, as any humane person would, that such deaths are intolerable. That being so, it can hardly be the case that we should go ahead and not merely tolerate, but increase, these deaths by changing existing law in favor of those some of whom are certain to do the killing.

I will continue shortly, but this point is so important I want it to stand alone. The intolerability of avoidable increased violence, when all we have to do to avoid it is keep existing law, is the end of the road for sentencing reform.

The next thing I want to do is give a direct answer to your question.

You asked: "If, say, 1500 of the 1715 Obama released early go on to become productive, tax-paying citizens, while 215 go back to criminal ways, would you assert Prez Obama did a good job or a bad job?"

A bad job.

The reason it's a bad job is not particularly related to numbers. The reason is that this massive commutation -- bigger than his 12 predecessors combined -- was an effective usurpation of Congressional power. It also resembled a post-facto veto of existing sentencing statutes, a veto nowhere found in the Constitution. The threat to the balance of power among the branches in my view outweighs any good that might come from giving guilty and properly convicted and sentenced inmates a release three or five (or what have you) years earlier than they were going to get it anyway.

As I've said before, the timing of these commutations is a surefire indication of their constitutionally aromatic nature. Obama did the huge majority of them only after he knew two things -- (1) that he would not have any further electoral accountability, and (2) that the SRCA was going down.

Given that, I view the commutations as an effective usurpation. Obama couldn't get the additional leniency he wanted through Congress, so he did what he could (which was plenty) on his own. This was within his literal power, yes, but was executive overreach. One measure of this, although hardly the only one, is how extraordinarily out of line it was with the actions of prior presidents of both parties going back to the Korean War.

Let me give a postscript to my prior answer, which will, for once, be short.

There is no earthly way only 215 of the 1715 would return to crime. Recidivism statistics for drug offenses, whether you look at the Holder study or at the USSC numbers (which are lower, possibly because federal post-release supervision is tighter) tell us the number of recidivists would be much higher than your hypothesized 12.5% Even the USSC number is three to four times that.

And that's only part of the story, because crime is significantly under-reported. This is especially true of drug trafficking, since the last thing a drug user wants is to lose his supplier. Accordingly, the existing drug recidivism stats, though awful, are actually understated. The real world drug recidivism rate is sure to be higher, and probably much higher.

More broadly, your inquiry here is quite thoughtful. It gets to the heart of the matter: What trade-off should the law strike between the freedom at the heart of America's vision, and earned (as a result of committing a crime) curtailment of that freedom through incarceration?

Very long articles have been written about that, and I can't hope to get the full answer down in a blog comment. I will, however, make one observation.

Since perfection in sentencing is unattainable, with some sentences sure too be too long and others too short, the only questions an adult gets to ask are, (a) what is the nature of the error on either side, and (b) who should bear the risk of error?

As to (a), the risk of giving too long a sentence is that a guilty man will be jailed for an excessive amount of time. This has considerable moral weight, and there's no point in denying it. On the other side, the risk of letting a guilty man out too early is that you have another Wendell Callahan, or several or dozens or hundreds of them. This has a moral weight beyond what a humane person can bear. The reason I keep talking about the two little girls he killed is not that I was struck with anger, although that too. I was more struck with grief.

As to (b), the answer is similarly clear-cut. The criminal makes his own decisions and perforce assumes the risk of bad and not-entirely-predictable consequences. His next victim, by contrast, never had a choice.

Allocation of the risk and burden of error turns out to be an easy choice, if not a happy one.

Bill, a couple of points in response:

1. Saying "ZERO as the number of people who will be killed via shorter sentences is the end of the sentencing reform debate" is like saying there can be no reasonable debate about whether we should have a mandatory minimum sentence of LWOP for every crime involving any danger. Will any illegal seller of opioids possibly go back to selling if they get a sentence short of LWOP, if yes, all must get LWOP. Will any drunk driver go back to drunk driving, if yes, they must all get LWOP. It is not only facile as an argument, it is a totalitarian's logic: if there is any risk of serious harm from more freedom, the government must not even consider the possibility of more freedom because the costs are too high.

You can make such an argument, but everyone should see it is the kind of argument that will always support more government and less freedom. Ergo, my assertion you are a big government conservative, deploying classic big government logic with great rhetorical force. And, critically, gun death statistics from places like Australia highlight why such an argument is even more forceful as a justification for as much gun prohibition/control as possible.

2. If Obama granted clemency to, say, 20,000 drug offenders (roughly 10% of the federal prison population), your usurpation argument might move me. But at less than 1% of federal prison population --- and in many cases offender whom got extreme sentences in part because they exercised their trial rights (about 1/2 of those who got clemency) and/or were subject to a sentencing law Congress changed in 2010 with only a handful of dissenting votes --- the reality is that this was much more of a strategic application of modern congressional values than a usurpation. Tellingly, relatively few in Congress were heard to complain about Obama's use of clemency --- in sharp contrast to hearings about some Clinton and Bush clemencies --- and Congress really does not have an efficient or effective means to do the kind of review the Obama WH did in this setting. (Notably, the Callahan case shows what can happens when Congress orders a more "blunderbuss" approach to sentence reduction, so arguably recent experience suggests we should welcome the Obama approach over the FSA approach.)

In the end, I do not think you really think Obama clemency work was a usurpation any more than the Libby clemency you pushed was some kind of usurpation of the work of a special prosecution. I suspect you just view the cost of freedom for convicted drug dealers to be not worth bearing no matter what Prez is doing it for whatever reason. That is fine, but don't dress up your concerns in suspect separation of power terms. (Also, Prez Ford in his Vietnam era pardons did something MUCH more extraordinary than what Obama did. Did you forget that because the thousands of draft dodging clemency recipients strike you as more worthy?)

3. I agree that, statistically speaking, we ought to expect a recidivism rate much higher than 12% for any group released from prison. That is why I picked this number --- to try to find out how effective the Obama clemency screening needed to be to garner any begrudging respect from you. You continue to avoid addressing this hard question because it is easier, conceptually and rhetorically, to criticize more freedom here based on its possible costs rather than to seriously tackle how to try to balance these concerns in service to expanding freedom. In your eyes, we are all plenty free enough until we choose to commit a crime, at which point all balances should run against the criminal (unless the have the name Scooter Libby).

4. Your final point gets back to where we started, and I will finish with pointed questions based on your final (a) and (b) observations:

Don't your points, given that thousands of innocent people are killed each year by repeat drunk drivers, support giving mandatory LWOP sentences in any and every case of serious drunk driving (say BAC over .15)? How many innocent persons should we be willing to see get run over by criminals given shorter sentences?

Doug, do you really mean to equate the risk of releasing people with a past history of harming others with allowing people to exercise their constitutional and God-given right?

The irony is that the 62 murdered officers are not the victims of the second amendment, they are the victims of the same criminals you and your ilk want to let out of prison early.

Bingo.

I would add that there is a much higher hurdle to changing the Constitution than merely to preserving existing statutory law.

At the founding of the Republic, it was decided there should be a right to bear arms. This decision was made with full knowledge that arms could and would be misused by criminals.

By contrast, it's perfectly sensible to adjust the limits we place on judicial discretion depending on how, over time, that discretion is being used (or misused). We found, during the crime wave of the Sixties and Seventies, that it was being misused by judges to hand out irrational (and dangerous) leniency.

The legislative branch decided to do something about it by embracing mandatory sentencing laws. The result has been massively successful. While ideological extremists like Judges Weinstein and Bennett continue to insist that they know better than anyone else -- so Congress should butt out -- more modest judges understand that Congress was well within its rights to adopt binding rules.

Lastly, I would note that the proliferation of gun ownership over the last 25 years has coincided with a massive DECREASE in crime. Thus, the data are no more consistent with the notion that guns cause violence than with the equally data-denying notion that incarceration causes crime.

Tarls, folks who advocate for gun control point to the very low gun death rates in other nations and advocate for repeal of the Second Amendment and/or other means of gun prohibition. They say that failing to enact gun control leads to some number of statistically predictable gun crimes, just as Bill says that sentencing reform that allows early release leads to statistically predictable crimes by those released early. I am not contending either argument should carry the day, but rather highlighting that argument to curtail freedom is parallel.

And my point it that just as the Second Amendment does not create victims, so too with sentencing reform. Laws are laws, people commit crimes in part because out laws and our society safeguards freedoms. And freedoms are used by some to do harm, sadly. And I am not at all eager to debate gun control as to highlight the dangers to all lovers of liberty of the kind of argument Bill is eager to make to assail any expansion of freedoms.

And, to that point for both of you, I will press again the questions that for me helps reveal the danger of Bill's arguments:

Don't your points, given that thousands of innocent people are killed each year by repeat drunk drivers, support giving mandatory LWOP sentences in any and every case of serious drunk driving (say BAC over .15)? How many innocent persons should we be willing to see get run over by criminals given shorter sentences?

Doug -- Do you really see no difference between (1) repealing part of the Bill of Rights, and (2) declining legislatively to enact statutory changes to mandatory sentencing laws?

This is putting entirely to one side the question of prudence -- our present sentencing laws having proved not merely prudent but remarkably successful.

To answer the bulk of your analysis: As I've explained at length, yes, it is a question of tradeoff's.

We could put everyone in prison for 25 years for jaywalking and reduce crime.

We could also swing wide the prison gates, let everyone out no matter what, and increase crime.

But no sane person wants either of those. The actual question for adults is at the margin.

The answer is the one the American people have reached. We are going to keep the Second Amendment despite some Democrats' desire to ditch it (along with the First Amendment). We are also going to refuse to dilute present federal sentencing law. If anything, we might make it slightly tougher to deal with the present heroin/fentynal/opioid crisis.

Bill, of course I see a difference between (1) repealing part of the Bill of Rights, and (2) declining legislatively to enact statutory changes to mandatory sentencing laws. But I also see the similarity between the left's anti-gun arguments and your anti-sentencing-reform/anti-clemency arguments. That is the point, and I know you get it as much as you want to dodge the fact that these arguments are big government arguments that, at their core, view the costs of freedom to be too high.

In addition, despite your weak and false claims of "usurpation," Prez Obama's clemency actions did not serve to "dilute present federal sentencing law." Rather, he decided to grant early release/more freedom to a tiny percentage of the current federal prison population. You noted above one of those persons who misused this grant of freedom, and that person merits criticism. But you still have not been willing to engage the serious question of whether you think Prez Obama deserves criticism for any clemency, because every little extra bit of freedom has an extra little bit of risk of harm.

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