Recently in Sentencing Category

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

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

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

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!

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."
WaPo editorial writer Charles Lane has this article on sanctuary cities:

In reality, there is no free lunch. In the alternate reality known as the American political debate, however, that's the only kind on the menu.

Conservatives say tax cuts boost economic growth, which yields higher revenue. No need to worry about bigger budget deficits.

Meanwhile, over on the left, we have laws and policies in more than 200 jurisdictions, including some of the largest cities and counties in the country, that are meant to protect immigrant communities by preventing local authorities from cooperating with federal deportations of undocumented immigrants who have run-ins with the law.

Advocates claim that "sanctuary," as they call it, achieves a moral goal -- peace of mind for people who, whatever their immigration status, are often longtime residents, leading productive lives -- at little or no practical risk or cost to anyone.
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Jason Riley has this piece in the WSJ  with the above title:

Why the fate of criminals should matter more than the fate of crime victims is a question that went largely unasked, let alone answered, during last week's bipartisan celebration of President Obama's decision to release dozens of individuals from prison and push for looser sentencing guidelines.
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Higher black incarceration rates reflect higher black crime rates, but like many liberal critics of "mass incarceration" the president would rather focus on the behavior of police and prosecutors, not the behavior of the young black men responsible for so much lawbreaking. Not surprisingly, the poor and working-class blacks who are the primary victims of black criminality tend to have different priorities.
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Occasionally, an honest liberal, like the one who taught Mr. Obama at Harvard Law School, will state the obvious. "The most lethal danger facing African Americans in their daily lives," wrote Prof. Randall Kennedy in these pages 21 years ago, "is not white, racist officials of the state, but private, violent criminals, typically black, who attack those most vulnerable to them without regard for racial identity."
The National Association of Assistant US Attorneys has a report with the above title, issued last Friday.  NAAUSA President Steve Cook wrote a reply op-ed in  USA Today, in opposition to the main editorial which says all the same stuff you would expect.  David Murray and John Walters have this post on the Weekly Standard's blog.
Daniel Horowitz has a wonderfully perceptive article in Conservative Review about President Obama's clemencies last week, and his overall push for criminal justice "reform."  I repeat several paragraphs verbatim:

With much of Obama's amnesty for illegal aliens on hold as a result of [a federal district] court's injunction, the legislator-in-chief is looking for every remaining opportunity to fundamentally transform America from the Oval Office...  His next conquest is the dismantling of law and order and criminal justice laws that have helped lead to a miraculous decline in violent crime over the past two decades.

On Monday, Obama announced his plan to commute the sentences of 46 drug offenders serving time in federal prison, bringing the total number of commutations to 86 since he has taken office.  He even had time to write them a personal letter as he ignored the family of Kate Steinle and other victims of violent crime, such as Kevin Southerland who was gruesomely stabbed to death on the subway right in the nation's capital.  While libertarians and some conservatives are supportive of targeted changes to drug laws, everyone should be gravely concerned about where this is coming from and where it's headed. 

Good point.  How is it that the President found time to pay an amicable and understanding call on convicted traffickers in hard drugs, but couldn't so much as have an Assistant Secretary drop a line to murder victims' families?  Or, for that matter, to the families of the two policemen assassinated in New York?

Sentencing "reform" is the name given to across-the-board sentencing reduction, both prospectively and (in the plans of "reformers") retroactively as well.  Although most often and most loudly advertised as intended for "low-level, non-violent" offenders, it will not be limited to that.  As "reformers" tend to admit toward the bottom of whatever press release they're putting out, they fully aim for violent criminals to benefit as well.  If there is any limit on the types of violence (e.g., child rape) they would exclude from these new benefits, I haven't heard about it.  I think the reason for this is simple: Once you see the criminal as the victim, and society as the (often racist) oppressor, it's only fair that all criminals get their reductions. America's rottenness, according to this theory, is not limited just to its treatment of drug pushers.

Recently, an increasing number of Republican legislators and candidates have been signing on to sentencing "reform," although their plans might be disappointing, in some ways at least, to the more vocal "reform" advocates.

The question is, why the change in some Republicans' outlook?  It's not a change in the public's outlook  -- I know of not a single poll in which the public prefers large-scale (or, indeed, any) sentencing reduction to preserving our gains against crime.  

Something else is afoot with Republican politicians.  What is it?

Is the Criminal Justice System Broken?

There are two central themes in the President's Criminals-Are-Cool week-long campaign:  That the criminal justice system is "broken," and that the way to fix it is through softer sentencing and earlier release for convicted felons, mostly including (so far) dealers in hard drugs.

As I show after the break, both themes are breathtakingly false.  For now, however, I want to ask why the press (and almost all of academia) is so ready to believe them.  I think the answer is deeper than merely their affinity for a Democratic President.  The answer hinges on who the questioner thinks is more worth focusing on.

The outlook taken by the President and his backers focuses on convicts.  They are, in the view of leftist ideology, "the other"  --  the downtrodden, the "marginalized," society's victims.  Questions about how, specifically, they wound up in prison are not encouraged, nor are questions about their exact number. Simply letting it go with the catchy phrase "incarceration nation" will do.  (In fact, zero point seven percent of the population is incarcerated and ninety-nine point three percent is not).

The opposing outlook focuses on normal people with families and jobs, people who are not looking to make a fast buck stealing or swindling or selling coke to your 15 year-old.  To these people, is the criminal justice system "broken?"
Do criminals owe a debt to society, or is it the other way 'round?  

The Obama Administration's answer is no longer open to serious doubt.  As ABC News reports:

The 46 sentence reductions [Obama granted today] are the most presidential commutations in a single day since at least the administration of President Lyndon Johnson, according to the White House. Overall, Obama has commuted sentences of 89 people, surpassing the combined number of commutations granted by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

They represent a sliver of all those seeking clemency: Justice Department statistics show that roughly 2,100 commutation petitions have been received so far this fiscal year, and about 7,900 are pending.

White House counsel Neil Eggleston predicted the president would issue even more commutations before leaving office, but added that "clemency alone will not fix decades of overly punitive sentencing policies."

The president this week is devoting considerable attention to criminal justice. In addition to his speech Tuesday [to the NAACP Convention] in Philadelphia, he is to become the first sitting president to visit a federal prison when he goes to the El Reno Federal Correctional Institution outside of Oklahoma City on Thursday. He'll meet with both law enforcement officials and inmates.

Some might think that "overly punitive sentencing policies" had something to do with the dramatic drop in crime in the last quarter century, but that goes unmentioned in the story and unseen in the President's outlook.  

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