Recently in Sentencing Category

Let's do a quick-hitter of what we've learned so far about the top reasons to reject the mass sentencing reduction parading as "sentencing reform," and about why, instead, we should preserve the  system of honest and sober sentencing that has helped reduce crime by half over the last generation. 

It's depressing that we should even have to make an argument to safeguard a huge benefit all our citizens have enjoyed, particularly those most at-risk  --  and those who will disproportionately suffer if we lose focus and slide back to the failed, crime-ridden policies of the past.

But you do what you gotta do.  Here goes.

Separation of Church and State, Then and Now

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There was a point in our history when it was accepted that there is, and ought to be, a pretty clearly defined separation between church and state.  The Framers thought one Church of England was enough.  Almost all of them were Christian, but did not want religion, theirs or anyone else's, thrust upon others.

Liberals were avid fans of this view of things  --  until they found out that the opposite view could advance their agenda.

My, how times do change.
I hope it has not become controversial that the law should punish intentional behavior that knowingly produces great harm simply for the quick profit of the miscreant.

It has been accepted for years that trafficking heroin, a deadly drug that will ruin your life before taking it, deserves severe punishment.  But that's now all up for grabs, as sentencing "reformers" plan  to dumb down sentencing for heroin (and everything else), and to do so in the midst of a heroin epidemic. It is for this reason that I have suggested that any "reform" legislation be voted on senator-by-senator and drug-by-drug.  Let our legislators say out loud that now is the time to let the sentencing system go easier on smack pushers  --  go easier just as overdose deaths are spiking across the country.

I haven't  heard a peep about attacking the heroin epidemic from such well-known "reformers" as Dick Durbin  (D-IL) or Mike Lee (R-UT).  I am happy to report, however, that Senate Majority Leader Mitch McConnell is planning action  --  and, to be fair, is planning it in coordination with Obama Drug Czar Michael Botticelli.

Thus, Politico reports:
Much has been made of the fact that blustering tycoon Donald Trump leads the field of Republican presidential candidates. There have been a number of reasons suggested for this.  Among them is that he (supposedly) says what a large number of Republicans, and I daresay many others, really think:  That Washington is just an insider's game, with a lot of backroom deals and mutual back-scratching among well-funded interest groups that care little or nothing for the public interest.

This got me to thinking about sentencing "reform," the euphemism pasted on proposed mass sentencing reduction.  Such "reform" is all the rage in the press, academia (when not faking "scholarly" papers), much of the legal profession, and Big Money folks from the Koch brothers to George Soros.

In other words, mass sentencing reduction is popular with the inside-the-Beltway interest group culture that Trump has had a field day torching .  The question is whether it is popular with ordinary citizens.

I have never seen evidence that it is.  For months, I have looked for a poll that would ask, "Which comes closer to your view of the problem with our criminal justice system  --  that we have too many people in prison for too long, or that we don't do enough to keep criminals off the street?"

With all the money behind sentencing "reform," that question could have been polled long ago.  Why hasn't it?

I  strongly suspect the "reform" groups don't poll it because they know what the answer is. As do we all.  Our citizens prefer to keep criminals off the street, a strategy that has helped produce huge public benefits for a generation.

Republicans who allow themselves to be bull-rushed into signing onto sentencing "reform" are being hoodwinked.  It's not just that it's a bad idea on the merits, although that should be enough.  It's that it has no political benefit.  It is, to the contrary, exactly the sort of cozy, flush, special-interest, wine-and-cheese  project that has a blowhard like Trump feeling his oats.

The Alternate Universe of Washington, DC

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In a couple of weeks or so, the Senate will return and unveil a bill for sentencing "reform," the liberal and libertarian code for "mass sentencing reduction."  As has recently become clear, "reformers" by no means intend to stop with their fabled "low-level, non-violent" offender, although he is their poster child.  As they have now made plain  --  taking a pre-victory victory lap  --  they seek the mass release of violent criminals.  As so often in Washington, DC, this flies in the face of the ugly, everyday reality "reformers" would see at their doorstep if they cared to look.

Thus today's Washington Post story, aptly if shockingly titled, "Straight up execution: Crime surges across the District."

This is the gist of it.  Violent crime, and violent criminals, are getting back in business in a way we have not seen in years.  This includes, but is scarcely limited to, murder.  At the moment this is happening, many of the people we send to Washington are proposing the first (and understandably half-concealed) step toward restoring leniency to these proven criminals. As we know from decades of statistics, not to mention more recent news, when released, they're going to take up where they left off.

Ordinary citizens often wonder what the heck is going on in Congress's thinking. They have good reason to wonder.


The title of this post is taken directly from an article in the Crime Report  --  a publication of the Center on Media, Crime and Justice of the John Jay College of Criminal Justice in New York City, hardly a bastion of right wing thinking.  It states:

More than 10 percent of Washington, D.C.'s spiking number of homicides this year have involved previously known violent offenders who have recently been released from prison, says Police Chief Cathy Lanier said yesterday, the Washington Post reports. Lanier said that of 91 homicides this year, ten offenders "have previous homicide charges and are recently back in the community," He added: "Ten. That's significant and it's different from anything we've seen before," she said. Fifty-five of the homicides still are open cases.

Lanier, who addressed reporters with Mayor Muriel Bowser, said that she still did not know what was driving the city's rising homicide count, up 28 percent from this time last year. City officials are under pressure to show that they are undertaking a meaningful strategy to stem the tide. District police have responded by fanning out in some neighborhoods and by altering their patrols and visibility in other neighborhoods, Lanier said. But the slayings have continued, sometimes in the course of petty arguments. "In some of the violence we've seen recently, it has just been dispute resolution with a gun. It's that simple," said Lanier. Bowser said police were reviewing deployment strategies and considering "preventive measures" such as better lighting and cameras in public housing and high crime areas.


Those who want a mass reduction in sentences often tell us that America is, or at least it should be, the Land of Second Chances.  The question they routinely omit is, second chances to do what?

Does Congress want to start down the path to a renewal of the violent crime wave that killed and injured so many thousands of Americans in the Sixties, Seventies and Eighties? One would hope not.  But if a sentencing reform bill advertised as principally helpful to "low-level, non-violent" drug offenders gets traction, that is exactly where we're headed. This conclusion is obvious, though (wisely) muffled, in a recent New York Times piece by Erik Eckholm.  Toward the end of the piece, Mr. Eckholm says:

But in many...states, including Michigan, New Jersey and New York, drug sentences are already reduced. There is no avoiding the politically poisonous question of releasing violent offenders or reducing their long sentences. "We need to start what's going to be a long and difficult conversation about violent crime," [Ryan] King [a sentencing reform expert] said.

I was startled by these calculations for New Jersey, for example: Cutting in half the number of people sent to prison for drug crimes would reduce the prison population at the end of 2021 by only 3 percent. By contrast, cutting the effective sentences, or time actually served, for violent offenders by just 15 percent would reduce the number of inmates in 2021 by 7 percent -- more than twice as much, but still hardly the revolution many reformers seek.

New Jersey could reduce its prison population by 25 percent by 2021. But to do it, it would have to take the politically fraught step of cutting in half the effective sentences for violent offenders.

In other words, the real debate over how to deal with criminals has hardly begun. And that debate will inevitably have to be argued state by state on terms that may well cause the bipartisan agreement on the need for change, focused on nonviolent offenders, to break down.


Actually, the real debate has begun, just in disguised terms.  Any bill introduced as designed for non-violent offenders will be subject to floor amendments to take changes in incarceration where the reformers actually want them to go:  To a return of violent crime.

This is what happens when we become obsessed with incarceration per se and oblivious to the reasons criminals get incarcerated to begin with.

In my most recent entry, I noted that last week's Salon piece accused opponents of mass sentencing reduction of enlisting emotion to trump research and reason (which, so the piece quite directly implied, were the sole province of sentencing "reformers"). Thus, it opined:

Ultimately, the reform movement will have to touch on people's emotions, too. But instead of Otis's reliance on fear, disgust and anger, reformers will need to inspire feelings of empathy, forgiveness, and understanding. They'll need to create a culture where a person like Otis would never speak of a "thug" menacing your "daughter," because he knows that such demagoguery will earn him more opponents than friends.

The proposition that proponents of the present, successful sentencing system  --  the one that has contributed to historic crime reduction  --  rely on emotion is one I see all over the place.

It's false.  In fact, we rely on facts, most of them undisputed or barely disputed:  That crime has fallen dramatically, to the great benefit of our citizens; that increased incarceration has contributed to this achievement; that sky-high recidivism rates all but insure that, if we go down the path of mass sentencing reduction, we'll get more crime; and that the crime increase will disproportionately harm minorities, as ever.

But that's not the end of the story.

Salon Follows Up on Slate, Blows It

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Kent noted that Slate author Mark Obbie published a piece profiling me and my efforts to oppose the plans for mass sentencing reduction, said plans going under the euphemistic label "sentencing reform."  While I do not agree with the bulk of Mr. Obbie's views of the subject, I was impressed that he took considerable time to talk with me and, as his article makes clear, to read a great deal of what I have written.  I appreciate his diligence, an increasingly scarce commodity in journalism.

On Thursday, Salon followed up on the Slate piece with an article by Elias Isquith.  I have not met or spoken with Mr. Isquith, and to my knowledge he made no effort to contact me.

The gist of his article, which I urge readers to judge for themselves, is that my efforts have traded on emotion rather than facts or reason, and that my opponents' failure to understand and counteract my tactics underlies their difficulties in passing sentencing "reform."  I don't think it's an exaggeration to say that the Salon article assumes that any fair-minded person, not sidetracked by emotion, would sign onto "reform" and reject my trailer park blandishments.

I respectfully dissent.

Slate Article on Bill Otis

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Mark Obbie has this article in Slate with the subtitle, "Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis."

The title of the article is "Meet the last man standing."  The thesis is that Bill is the only voice opposing the movement to soften sentencing.  It is good to see Bill's prominence as an advocate recognized, particularly by a partisan outlet for the other side.  The assertion that he is the only one is, of course, preposterous.  The exaggeration is even greater than the earlier National Journal article about me and the death penalty.

Former Attorney General Michael Mukasey is a stronger advocate in this fight than the article lets on.  As noted in this post, the Association of Assistant United States Attorneys has done significant work in this area. CJLF is also an important voice, although we have focused more on California than on the present federal controversy.

Despite the article's deficiencies, Bill's forcefulness and effectiveness as an advocate makes him a force to be reckoned with, and the recognition of that fact is well deserved.

The Other Side of the Story

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It's hardly news by now that I oppose the proposed mass sentencing reduction  --  for both garden-variety drug dealers and classic violent criminals  --  that goes under the deliberately vague name of sentencing "reform."

My view is a minority among academia-oriented and think-tank culture that dominates inside the Beltway.  In the interest of robust debate, I want to present the other side of the story from Prof. Frank Bowman, a friend of mine from many years ago, when we worked together on the Attorney General's Advisory Subcommittee on sentencing.  This was back in the mid- and late 1980's, at the dawn of the Sentencing Reform Act of 1984.

Frank is one of the leading experts in the country on federal sentencing policy. Although we now see things differently on that score, I am pleased that Frank gave me permission to re-print a note he sent me in response to yesterday's Slate article profiling my efforts in this area.


Heroin Deaths, Out of Control

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The Washington Examiner has the grim story:

Heroin deaths are spiking in the U.S., concerning lawmakers who proclaim it an epidemic and public health issue.

Between 2012-13, the number of U.S. drug overdose deaths resulting from heroin spiked from 5,900 to 8,200, said Michael Botticelli, director of the White House Office of National Drug Policy Center.

"I've been with [the] DEA almost 30 years, and I have to tell you, I've never seen it this bad," Jack Riley, acting deputy administrator of the Drug Enforcement Administration, said at a House judiciary subcommittee hearingTuesday.

Only in a parallel universe could our lawmakers be considering lighter sentencing for heroin at a time that its lethal impact has never been more appalling.

If there is to be a vote in Congress on lowering drug sentences, it should be taken one drug at a time.  There may be many who would vote to lower sentences for pot. But if there are those who also want to lower sentences for heroin (or meth or Ecstasy or numerous other hard drugs), it would improve visibility and accountability if legislators would stand up, one at a time, and say so, drug-by-drug.

There was a day when liberals and libertarians agreed that visibility and accountability were valuable qualities in government.  We may see soon if that is still their view.

Killers and Rapists, Rejoice!

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One thing my father taught me was to thank God for your opponents.  As usual, he was right.

My opponents in the sentencing reform battle  --  those favoring mass sentencing reduction and the additional crime that is certain to come with it  --  have been shrewd up to now in being relatively quiet about the fact they they favor releasing killers, rapists and muggers of all sorts along with the fabled "low-level, non-violent" offender.

But, giddy (and careless) with new momentum as more and more Republicans allow themselves to be bull-rushed into sentencing "reform," the other side has prematurely tipped its hand.

It was never about just "low-level, non-violent" offenders; that was the head fake. It was about creating a new violent crime wave in America (something that is already happening as serious policing has come under attack and, in California, Prop 47's dumbing down of the criminal code has started to do its work).

Hat tip to Doug Berman for putting up two op-eds that spell it out.
A:  So awful  --  because so radically pro-criminal  --  that even the Obama administration can't bite down on it.

I didn't think I would ever type that sentence, but there is no other conclusion to be drawn from today's BuzzFeed article, which begins:

The Obama administration objects to key provisions in a bipartisan criminal justice bill in the House that has picked up support from both the tough-on-crime end of the Republican Party and advocates of overhauling federal prison sentencing guidelines, BuzzFeed News has learned.

The bill's sponsors say the Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015 -- or SAFE Act -- takes the best ideas from state criminal justice efforts in recent years and applies them to the federal system, but Obama administration officials have told supporters of the bill they don't like several of its provisions, including a key one that would essentially create a federal version of the drug court programs an increasing number of states use to divert low-level, first-time drug offenders away from prison and into probation.

Ah yes, the proverbial "low-level, first-time" drug offender.  Not that sentencing "reform" aims to stop there, or anywhere near there, and not that the "low-level, first time" drug offender is the harmless choir boy so often presented to us, as Kent pointed out in his comment just today.



This story from Roll Call says a good deal about who will win and who will lose if mandatory minimum sentencing is dumbed down or eliminated  --  not that any of this was hard to understand before.

The headline of the story is "Convicted Republicans call for mandatory minimums changes".  It's about three formerly high-level Republicans, Kevin Ring, Bernie Kerik, and Pat Nolan, all of whom discussed with Congressional staffers the supposed evils of mandatory minimum sentencing (although, oddly, none of their sentences resulted from mandatory minimums).

What the three have in common is that they are convicted felons, and the offenses for which they served time involved corruption, influence peddling and/or dishonesty. It's telling that this sort of resume' is what the sentencing reform side views as making you an "expert" on questions of public policy. Some of us might say that the more apt term for this outlook would be "conflict of interest" or "unreconstructed self-justification."

What might be even more telling is that Washington is now so completely engulfed by interest group culture that ex-cons are considered, in the Beltway's lobbyist lingo, "stakeholders" in "the system."

Will Committee staffers bring in Blago next?  How about Dzhokhar Tsarnaev? They've got even bigger "stakes" to "hold."

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