Not to worry -- this post is not psychobabble about my feelings. It's about a question I was asked by two journalists with whom I spoke recently.
The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform. Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.
Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely?
I told them I don't.
Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.
I see where this is coming from, believe me. No one living inside the Beltway, with its liberal- and libertarian-leaning think tanks, its liberal press, its numerous, energetic pro-defendant interest groups (FAMM and the Sentencing Project to name two), and its love affair with academia, can be blamed for thinking that lower sentences are the Wave of the Future.
But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.
The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise. The liberal bubble is big. It's also, for the most part, impenetrable.
And it's one more thing -- wrong.
If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones. One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years.
1. In the last Congress, the Grand Prize of the smarter sentencing movement, the Justice Safety Valve Act, went nowhere. It would have effectively eliminated mandatory minimums throughout federal law, not just for the most dangerous drugs, but for child pornography and firearms.
It had big-time sponsorship, including Sen. Pat Leahy, the Chairman of the SJC, and Sen. Rand Paul, a leading candidate for the Republican Presidential nomination.
It fell flat. It was so lacking in support it didn't even get a committee vote.
The consolation prize was supposed to be the Smarter Sentencing Act, sponsored by Deputy Majority Leader Dick Durbin and Sen. Mike Lee of Utah, a leader among the libertarian-leaning members of the Senate.
The SSA fared better, at least at first. It got a gushing review in committee, and passed 13-5 with the votes of three Republicans. The opposition was led by the then-outmanned (but in my view, brilliant) Sens. Chuck Grassley and Jeff Sessions.
But the day it passed out of Committee was the high-water mark for the SSA. It was all downhill from there. Late in the spring, Majority Leader Reid said he was going to bring it to the Senate floor.
It never happened. And if there is any talk of bringing it to the floor in what little remains of the lame duck session, I haven't heard it. The Smarter Sentencing Act is dead in the Senate -- although if you're waiting to hear the pro-defendant groups admit it, you'll have better luck waiting for the arrival of the people from Mars.
But for as much of a loser as the SSA turned out to the in the Democratic Senate, it emerged smelling like a winner compared to its fate in the Republican House, where it never so much as came to a committee vote.
If this amounts to "Big Mo" for sentencing reform, all I can say is that I'll be rooting for a lot more Big Mo in the months to come.
2. Still, hope springs eternal, as does shake-and-jive. So what we hear now is that the new Congress will be more hospitable toward "smart sentencing." The theory is that its central ideas take root in libertarianism; that libertarianism is the future of the Republican Party; that the Republican Party is newly powerful and energized; and that it will do a Nixon-to-China on sentencing reform.
One thing to notice about this take is that you tend to hear it from Democrats and liberals and their friends in the press. You never hear it from Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC). You don't hear it from Michael Mukasey, perhaps the leading Republican thinker on sentencing issues (having been, for one thing, a sentencing judge for 18 years).
And there's one other, very instructive place you're not hearing it from: Not one of the nine newly elected Republican Senators campaigned on a platform of lowering sentences, to save money or for any other reason. Not a word.
Yes, there are some prominent people in the Republican Party on board with "sentencing reform." But the great majority of Republicans, and the center of the Party, are not being fooled. The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans.
3. Despite all this, it might nonetheless be the case that lower sentences and a shrinking prison population are the on-the-ground reality across the country.
That of course is an empirical question. Let's look at the numbers, as described by the New York Times in its recent story, "Report Finds Slight Growth in Population of Inmates."
The specifics of the report are noteworthy. Under Eric Holder's reign, headed toward its sixth year (although it seems to some of us more like four hundred), the federal prison population declined last year. And in 2010, 2011 and 2012, overall prison populations in the Untied States also declined, albeit only slightly.
But a strange thing happened on the way to The Wave of the Future. In 2013, the overall prison population started going back up. It increased by about half a percent.
This is particularly interesting because, according to such advocate organizations as Smart on Crime, the sentencing reform movement was supposed to be led by the states. Apparently, it's not working out. More people are back in prison in 2013, and, with the feds headed in the opposite direction, the increase is due solely to those self-same states.
So what happened?
Reality happened. With a recidivism rate of slightly more than 75%, when you release prisoners early, you get more crime. That's what showed up, and it showed up almost immediately. When the prison population declined for the first time in the modern era in 2010, the crime rate increased in 2011. It did so again in 2012. This was the first time in decades that crime increased for two consecutive years. The country responded.
So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform." Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.
Great post, Bill, to which I partially respond here: http://sentencing.typepad.com/sentencing_law_and_policy/2014/12/bill-otis-provides-important-though-incomplete-review-of-the-real-state-of-debate-over-sentencing-re.html
I'm pleased to have given you a blog-post idea, Bill. And to have a heads-up that Carrie Johnson is my direct competitor on this story!
And thank you for allowing me to chew your ear off for an hour as I went on and on and on. You're one of the most patient people I ever ran into.
Let me make just a few comments.
First, thanks for noting my post on SL&P. Second, I think one of the reasons I sort of look "lonely" on this subject is that people satisfied with the way things are going on the crime front -- which is a majority when, as now, crime is relatively low -- tend not to say much. Third, while it's true that the dissidents in the Republican Party tend to be the younger group, younger still are the bunch just elected (e.g., Joni Ernst, Tom Cotton, Cory Gardner), none of whom campaigned on sentencing reform.
I guess my last thought is that minorities, being disproportionately crime victims, have been disproportionately the beneficiaries of the reduction in crime that incarceration has helped bring about. Al Sharpton might speak for some of them, but I would bet a goodly amount that the majority of blacks and Hispanics are plenty happy with reduced crime.
Highlighting that nobody on the GOP side in 2014 recently campaigned on sentencing reform is valid, Bill, but 2014 was base-turn-out election year and the GOP base is older and whiter. But nearly all the folks with an eye on a general election in 2016 --- Govs Christie and Perry, Senator Paul, Rep Ryan --- are talking up reform. And their voices will be the dominant GOP voices for the next few years if not for the decades ahead.
In addition, I am sure everyone is happy with reduced crime, but not everyone agrees that severe MMs and the drug war and mass incarceration has done more good than harm. That is the key question going forward and one that we are sure to keep debating as the crime and incarceration rates continue to move around in the years ahead.
One of the things I love about the Left is its insistence that, even though X happened, not-X is about to happen, because They've Seen It In Their Crystal Ball.
Thus: (a) California is about to repeal the death penalty -- NOT; (b) California is about to legalize recreational pot -- NOT; (c) the country is about to adopt the Equal Right Amendment -- NOT; (d) the SSA has unstoppable momentum -- NOT; (e) we're simply going to have to learn to accommodate the Soviet Union -- NOT.
Walking past facts (like the election a month ago) to relish future speculation is a neat game, but just a game. There ARE no facts about the future. If there were, here's one of them: The majority of Republican voters don't want the increase in crime we know from history comes with a low-incarceration system. One can't make the Sixties and Seventies go away simply by refusing to learn from them.
I do not recall hearing anything about sentencing reform on the campaign trail leafing up to this election. From exit polls, criminal issues were not on the mind of any voters. I agree with Bill, that the reduction in crime over the past 20 years is correlated with the increase emphasis on putting and keeping criminals in prison. I am not one to mess with success especially when it comes to public safety.
I do disagree with one point Bill made and that is his implication that people who live in certain cities on the coast are not real americans. I grew up in Seattle and live in Los Angeles area and think that we are not all clueless liberals and I have spent a bit of time in "red" America (Oklahoma) and I would rather live in Los Angeles or Seattle any day. If I misunderstood your comment Bill, please feel free to clarify or set me straight.