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Too Much Safety

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Justice William J. Brennan had a way with words.  One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp, why the majority was afraid of "too much justice."

Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.

Prison Holiday

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The US Sentencing Commission voted to support more and earlier heroin (and meth and PCP et al.) trafficking.  It did so by deciding to make its already ill-advised all-comers-welcome reduction of the guidelines for drug sentencing fully retroactive. Here's the USSC press release.

Today I'll be flying back to the mainland from Hawaii, so I can't go into the detail this story deserves.  I'll say only two things.  First, the Commission's press release is astonishingly (and I have to believe intentionally) deceptive.  It states:

The Commission studied offenders released early after a similar 2007 amendment to the guidelines reducing sentences for crack offenders and found that those offenders were no more likely to re-offend than offenders who had served their original sentences.

How slick is that!  The newly retroactive guidelines apply to all drugs, not just the drug (crack cocaine) dealt with in the 2007 amendment.  And the recidivism rate for all drugs is 77%  --  an enormous figure, and more than twice the number the USSC had been trumpeting previously.  In other words, slightly more than three-quarters of drug offenders return to crime.  I guess it's no surprise that the actual drug recidivism rate is cleverly, if very conspicuously, invisible in the Commission's press release.

Second, one of the stated grounds for slimming down the federal criminal justice system has been its budget.  But re-litigating between 40,000 and 50,000 sentences will have gigantic costs.  How gigantic?  Well, we don't know, because the whole cost-of-re-litigation issue is swept under the rug by the Commission  -- the same Commission that undertook the guidelines reductions in the first place largely, it claimed, because of  -- you guessed it  --  its grave concern that costs are getting out of hand.
About six weeks ago, I testified before the House Task Force on Over-Criminalization.  The focus of the hearing was on mandatory minimum sentencing in federal law and, more generally, on whether federal drug sentences are "too long."  

I closed my remarks by asking Congress to wait for the results of a couple of recent developments (the AG's effective abandonment of mandatory minimums for many drug crimes, and the USSC's two-level guidelines reduction for drug offenses).  For those who believe in "evidence-based" sentencing, it would seem natural to want to see some, well, evidence:  Maybe these new measures would work out, and maybe not.  Time would tell.

I can't say that Congress took my advice exactly, but the Smarter Sentencing Act, which would lighten if not cripple drug sentencing, has stalled in Congress over the summer.  And sure enough, evidence from the new norm of lighter sentencing has started to come in, reported by, of all things, the NYT.

The story, and the evidence, is underneath this headline:  "Second Thoughts for Lighter Sentences for Drug Smugglers".

My goodness.

Hold Your Horses

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The Federal Judicial Conference got it mostly wrong, but got the bottom line right, in assessing the need for "sentencing reform."  That phrase has a more common sense translation meaning, "let felons out earlier than present law would provide and hope for the best."

The Conference Report, out today, noted that:

...policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

"Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts," said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee." 

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"The Conference most recently supported, with certain conditions including delayed implementation, retroactivity for the Sentencing Commission's recent amendments to the Drug Quantity Table. Implementing this policy on a retroactive basis will result in many inmates being released from prison and into the custody of probation officers, who work for the Judicial Branch.  Without delayed implementation for the Judiciary to seek necessary resources and prepare for this influx of offenders into the probation system, public safety could be compromised."

Very roughly translated, what this means is that we should stand back, take a deep breath, and examine, with patience instead of haste, what the measures already in train (such as lowered present guidelines and DOJ's cutting back on mandatory minimum charges) produce.  Will there be big cost savings?  Or will there be, as there has been in California, significantly more crime?  The Conferences's explicit warning that public safety may be compromised by moving too quickly is a particularly welcome reminder, and should weigh heavily with policy makers.

Early Releases: More Cost, More Crime

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The major promise behind proposed federal legislation to lower mandatory minimum sentences is that it will reduce prison costs while preserving the low crime rate we have achieved over the last 20 years.

That of course is an empirical question.  Many in favor of these proposals, in particular ones like the Smarter Sentencing Act, point to the experience of such states as Ohio and Texas to show that the promise has been kept.

They seem to be much more quiet about the state that has more early releases than the rest of the states combined  --  California.  The second item in today's News Scan shows why:  As the early release program in the Golden State has taken hold over the the last three years, prison costs are up by a whopping two billion dollars and the crime rate is, unlike the majority of the rest of the states, also up.

So what should Congress do with the Smarter Sentencing Act?  I gave the answer in my testimony before the Over-Criminalization Task Force of the House Judiciary Committee last month.

Impenetrable at Stanford Law

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Not to knock my alma mater, but Stanford Law School is home to a lecturer in law, Michael S. Romano, who seems oblivious to the preeminent realities about crime and sentencing staring him in the face.

This article from the National Journal  --  the eight trillionth about supposed overwhelming Republican zeal to join forces with the criminal defense bar  -- contains the following paragraph:

What's changed the political equation on crime [in the last three decades]? The most important factor is the decline in the crime rate. After surging through the 1980s as the crack epidemic crested, the violent crime rate has fallen almost every year since 1993 and now stands at only about half of what it was then, according to FBI figures. (A separate Bureau of Justice Statistics crime survey shows the violent-crime rate ticking back up over the past two years but still down about two-thirds from its 1993 level.) "We have an incredible opportunity for change because crime is down," says Michael S. Romano, a lecturer at Stanford University Law School.

Is this what passes for critical thought at Stanford nowadays?

 
I've had the good fortune to get to know, if only slightly, a couple of Commissioners on the US Sentencing Commission.  They're good people and thoughtful lawyers, to say the least.  But this does not stop me from noting that the Commission has not sufficiently confronted  --  and indeed, it seems to me, has danced around  -- the crucial issue of criminal recidivism.

One of the principal purposes  --  and, over the last generation, one of the major successes  --  of sentencing is the incapacitation of criminals.  When they're in jail, they're not ransacking your house in order to get money for their next fix, assaulting your college-age daughter on a meth-fueled high, or selling PCP to your teenage son.

It's therefore crucial, in deciding whether and to what extent to reduce sentences, to be entirely forthcoming and candid about what impact those reductions will have. Specifically, we need to be clear about whether the reductions will produce more crime.

On this critical front, the Commission has fallen short.  It simply must take recidivism more seriously, and it must do so before deciding whether massively to expand, through retroactivity, the reach of its recent scattershot lowering of drug sentences.
In the jumble of faux-refined "analysis" the Justice Department presented to the Sentencing Commission in speaking up for the interests of criminals broad retroactive application of more lenient drug guidelines, it buried the main question: What do drug traffickers do after their release?

The Department itself told us, ever so quietly, back in April:  They go right back in business.  Here's the BJS report, which begins:

An estimated two-thirds (68 percent) of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of release from prison, and three-quarters (77 percent) were arrested within five years, the Bureau of Justice Statistics (BJS) announced today.

More than a third (37 percent) of prisoners who were arrested within five years of release were arrested within the first six months after release, with more than half (57 percent) arrested by the end of the first year.

As to drug offenders specifically, you have to read down to the seventh paragraph, which states (emphasis added):

Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders.

Let's be clear then, about what moving up the release dates of drug traffickers by retroactive application of more lenient guidelines is going to do.  It's going to produce more drug trafficking, earlier.  It's as simple as that.


Mr. Retroactivity

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Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the Savings Statute, 1 USC 109, to find that the Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

That degree of retroactivity, bad as it was, pales by comparison to the essentially time-unlimited retroactivity the Justice Department endorsed today for lighter drug penalties across the board.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he goes right back in business.  Why would he do anything else when he sees that we've lost our nerve?

Now as I was saying about Mr. Dorsey......
It has long since been clear that the Justice Department is working, not for ordinary citizens who have benefited from the crime reduction we've enjoyed with longer sentences, but for the drug pushers who'd prefer that we go back to the disastrous, crime-ridden ways of the Sixties and Seventies.

Today the pushers got another (but hardly unexpected) boost when DOJ recommended large scale retroactive application of the newly reduced drug guidelines.  

One of the theories for lower sentences is that they are needed to reduce DOJ's very tight budget.  Today's move pokes a hole in that line, what with the significantly increased litigation costs certain to come about as tens of thousands of gleeful drug traffickers file motions and demand hearings to reduce their fully lawful sentences.

The Department's statement follows the break.

Look for What You Don't See

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Roll Call has an article out this morning about the agenda Majority Leader Harry Reid will pursue for the rest of this year's dwindling legislative session.

There's a bunch of stuff on it:  The Highway Bill, VA reform, student loans, energy efficiency, and the Export-Import Bank, among many others.

One omission caught my eye  --  the Smarter Sentencing Act.  This does not necessarily mean that it won't be brought up.  But if you're an SSA backer, you would not be happy having read Roll Call's assessment of what lies ahead  this year.

As for next year:  I don't know of anyone who expects the Party principally backing the SSA to get stronger; indeed the only question is how much weaker it's going to be after the November election.
After last week's House hearing on federal penalties, and in particular on federal mandatory minimum sentencing, I wrote to Jeremy Haile of the Sentencing Project, which has been one of the leading organizations promoting what it views as reform of mandatory minimums, and, in particular, the Smarter Sentencing Act.  I sent Mr. Haile a number of questions and invited his response.  He gave it this morning, and has allowed me to put it up here.

After the break, I reiterate the questions I sent him, and his answers.  Since he took a good bit of trouble to put the answers together  --  although he owes me nothing  --  I would ask that, if readers care to look at my questions, they look at his answers with equal attention.  Of course I disagree with almost all of them, and in later posts, I hope to be able to continue the discussion.


The Over-Criminalization House Hearing

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For those who missed today's House hearing but would like to take a look, the video is here.  Although the Task Force is interested primarily in examining the proliferation of non mens-rea crimes as the regulatory state gets bigger and nastier, today's hearing was about the mandatory minimum debate.  The Congressmen make their opening statements, followed by the witnesses, of whom I was called upon first, starting at about minute 29:00.

I thought the four witnesses did a good job of summarizing the arguments on both sides. Having been a participant, I don't want to grade my own paper, so I'll make only two observations:  First, Ranking Member Conyers was the same complete gentleman he has always been to me, but might have ruined my reputation by accusing me of sounding reasonable.  Second, I have to admit I was happy to see that I have more hair left than anyone at the witness table, and practically any man in the room.

At my age, you count everything.
Tomorrow morning at 9, in the House Rayburn Office Building, the Over-criminalizaiton Task Force of the Judiciary Committee will hear testimony on criminal penalties.  The Task Force was organized primarily to look into the propriety of using criminal law to enforce the regulatory state, but tomorrow's hearing will examine mainly mandatory minimum sentencing.

The witnesses include some familiar figures.  In order of appearance:  

  • Prof. William G. Otis
    Adjunct Professor of Law
    Georgetown University Law Center
  • Mr. Eric Evenson
    National Association of Assistant United States Attorneys
  • Mr. Marc Levin
    Policy Director
    Right on Crime
  • Mr. Bryan A. Stevenson
    Founder and Executive Director
    Equal Justice Initiative

The Latest on the Smarter Sentencing Act

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CQ Roll Call published an article yesterday about the Smarter Sentencing Act, now somewhere in limbo in the Senate.  The CQ piece is behind a paywall, but I have attempted  to reproduce it after the break.  It does a balanced and informative job of describing where things stand, including a note on what I view as something of a generational divide.  (I'm quoted in the piece).

On SL&P, Doug Berman says this:

I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.

I'm not sure what "new" legal and political realities Doug has in mind.  Last I looked, when you needle yourself with too much heroin, you're still dead; when a thug belts you to grab your purse, you still have a knot on your head and no purse; and when Mr. Nicey rapes your eight year-old, you still have a defiled little girl to try to help.

I do understand, however, that, in a sense, we have "new political and legal realities": A far-left Attorney General up to his eyeballs in race-huckstering with his buddy Al Sharpton; a Sentencing Commission whose majority is now effectively owned by the defense bar; and a bunch of judges newly at ease in snickering at crime victims.

And I don't think SSA backers want to embrace any "new realities." They simply want to repeat the disastrous mistakes of the past.

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