My longtime good friend Bill Otis has written a very clever “quick-hitter” baker’s dozen reasons to oppose sentencing “reform” (his scare quotes, literally and figuratively, not mine). As I have previously stated:
[S]entencing reform is a difficult issue. Some believe that our current sentencing regime is unfair, that too much discretion has been removed from judges, that the pendulum has swung too far in terms of imposing harsh sentences, and that increased incarceration has led to other inequities in our society. Others believe that increased incarceration and harsh sentences have taken some very dangerous people off of the streets and have resulted in dramatic decreases in crime, and that if such sentences are cut, crime may well increase to the detriment of society. I understand both of these perspectives and understand why people of good will passionately disagree about this issue.
As always, Bill makes some excellent points, some of which I agree with. For instance, Bill states that “Sentencing ‘reform’ has done a clever job of conflating itself with overcriminalization and overfederalization, but they are different problems with different solutions.” While I do believe that sentencing reform in the federal system is related to both of those issues, I agree with Bill that much of the overcriminalization and overfederalization problems deal with too many federal crimes (both statutory and regulatory) with weak or non-existent mens rea standards, which is conceptually different from sentencing issues and requires different solutions, some of which I have explored elsewhere (see here and here). It is my sincerest hope that Congress addresses those issues too, especially mens rea reform, since the time to do so is long overdue.
Nonetheless, with respect to many of the other arguments that Bill makes, there are other points worth considering too. For starters, Bill makes repeated references to hard drug traffickers and violent criminals and adds that a “good chunk of sentencing ‘reform’ is actually hard drug legalization-lite.” While there may be some who do favor legalizing or at least decriminalizing drugs who may also favor sentencing reform, that view is by no means universal. As I have also stated:
I believe that drug dealing is harmful to society and poses a threat to public safety. The potential for violence, gang involvement, and lethal overdose is inherent in most drug transactions. Indeed, … I prosecuted several drug dealers when I was an Assistant United States Attorney. I believe drug dealers should be punished, but the question is for how long.
Moreover, as Patti Saris, Chief Judge of the United States District Court for the District of Massachusetts and current Chair of the United States Sentencing Commission, recently noted, 23 percent of federal drug offenders (nearly half of whom were charged with mandatory minimum offenses) are low-level couriers, not kingpins or even “hard drug traffickers.”
Even more to the point, so far as I am aware, none of the proposals currently being seriously considered by either the House or the Senate provides for any reduction in mandatory minimum penalties if death or serious bodily injury occurs as a result of the offense, and none of the proposals receiving serious consideration contemplates eliminating mandatory minimum penalties and returning complete discretion to those “unaccountable and ideological judges” whom Bill abhors. Like Bill, I favor many of the “structural benefits of the sentencing reforms enacted in the Reagan Administration” and believe that mandatory minimum penalties have their place. Again, our disagreement is over whether we have too many mandatory minimum sentences applying to too many offenses and too many people for too long a period of time. Bill thinks “no,” and I think “yes.”
Bill points out, correctly so, that recidivism rates are staggeringly and persistently high for many offenders. What he neglects to mention, however, is that some of the reforms that are on the table are designed to provide incarcerated offenders with some of the skills (such as a GED or vocational training) or treatment (mental health or substance abuse) they so desperately need and which are designed to reduce the likelihood that they will recidivate upon release. Bill may refer to this as “social services for criminals” and may believe that some reformers favor “[t]reating criminals as victims,” but, like it or not, roughly 95% of those who are presently incarcerated will eventually return to our communities, and we should think long and hard about whether they will be equipped with the skills and stability they need to become law-abiding citizens upon release or whether they will continue to pose an ongoing threat to public safety.
One final point, Bill says that there is “essentially no public support” (his emphasis, not mine) outside of the Beltway for sentencing reform. I would simply note, as I have elsewhere, that while Congress may finally be getting around to this issue, many states, including many prominent conservative states, have already passed and implemented sentencing reform, and the results thus far look very promising. Furthermore, those conservative governors who touched the third rail and risked being labelled “soft on crime” have run for re-election touting their justice reform proposals and have won handily. Clearly somebody outside the Beltway is listening.
There are, to be sure, some disturbing signs out there—murder rates (much of which I attribute to the “Ferguson effect” and the horrific impact it has had on police being able to do their jobs, much to the detriment of the communities they serve) and heroin overdoses are skyrocketing. Nonetheless, where Bill sees “decline and retreat” when it comes to sentencing reform, I see promise and prudence. While sentencing reform is a very tough issue for many conservatives and for understandable reasons, it ought to be clear that with the support of people like Senators Mike Lee and Ted Cruz, former Speaker Newt Gingrich, Georgia Governor Nathan Deal, former Texas Governor Rick Perry and groups like the American Conservative Union, Heritage Action for America, Americans for Tax Reform, and the Charles Koch Institute (I could go on, but you get the point), the sentencing reform proposals being considered are not, as Bill believes, just a “liberal wish list.”
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