In order to appreciate the insignificance of the United States Sentencing Commission’s recommendation that guideline drug sentences be reduced by 17%, one needs to remember the pre-Mistretta days of America. Back then, drug crimes were almost entirely handled in state court, and the crack epidemic had hit the country like a plague. It was, to be blunt, very bad times for drug and crime, with regular shoot-outs in the streets between groups at war over turf.
Yet even then, with the experiment of the unduly harsh Rockefeller Laws proving to be an utter failure to serve their theoretical purpose of deterring drug crime, no one dreamed that America would lead the civilized world in incarceration. Almost 30 years later, the system has so internalized the guidelines that we fear this downward departure. Megan Quattlebaum explains:
Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising — almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000.
The fear of criminals running rampant is a strong one, raising the specter of all manner of harm from these predator degenerate recidivists drug-crazed murdering predators (yes, I used predator twice, because it’s such a fear-inducing word).
But as Megan shows, a scale reduction in guidelines sentences (remember, the Supremes neglected to mention they were only advisory until Booker, leaving those sentenced in between locked into the guidelines. Bummer, guys.) doesn’t put marauding criminals back on the streets, but merely undoes a small part of the excess.
Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation. Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense.
The argument was that non-citizens should not be able to commit crimes and avoid prison by deportation, so they had to serve their sentences first, and then be deported. Whether this argument is sound doesn’t matter for the moment, as the only point here is that they have served long prison sentences and, upon release, won’t be put back on the street to be predatorial predators. They’re leaving on a jet plane. Wave good-bye, and sleep well at night.
Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years. In the universe of criminal justice, 38 is old.
It takes a lot of energy to be a successful predator. Or as the old saying goes, predator is wasted on the young. At 38, they’re well past their predatorial prime. No matter how hard they try, they just won’t be the predator they could have been. They’ll get over it. So should you.
Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.
It’s unclear what this means, other than that they will go back to Texas and so will never present a threat to anyone who matters. The crown prince of sentencing, Doug Berman, took issue with this fourth prong, suggesting that there were reasons why Texas would contribute disproportionately to the number of federal prisoners for reasons other than it merely being so punitively backwards. Being across the river from Mexico was a prime example.
Fair enough, but had Megan only had three thoughts about the 17% reduction in the guidelines, and left out the smack at Texas which, despite pleasing a lot of Floridians who, for once, weren’t the butt of the joke, her point would remain valid.
Of the thoughts raised by Megan, one is overarching. Before the Sentencing Guidelines, we were not dedicated to absurdly long terms of imprisonment as if it was the way God explained it to Moses in the tablets handed down on Mt. Sinai. It just seems that way now, having enjoyed more than a generation of guidelines sentences so that a 10 year mandatory minimum seems normal, and 20 to 30 year sentences is hardly shocking.
There was a time when a ten year sentence was considered brutal and harsh, and was imposed sparingly.
So a guy convicted in a drug conspiracy may see his 30-year sentenced reduced to about 25 years if the change is adopted and made retroactive. Without the guidelines, this same defendant would have been sentenced closer to ten years, and would have been out 15 years earlier. And the sentence still would have fulfilled as much of its purpose as it will for the next two decades of imprisonment.
We got crazy back in 1989. Crazy sentencing became the norm, and because of mistaken deference to the Sentencing Commission and its pretense that it had magical pseudo-scientific powers to divine correct sentences that departed from anything ever imposed before, we accepted the Commission’s guidelines as sound. Now the Commission tacitly admits they, like the Supremes before them, screwed up and need to pull back just a little bit on their leap into total insanity.
This is only about making sentencing a bit less crazy. There is no reason to fear uncraziness. In some circles, uncraziness is considered a good thing. Those circles are commonly referred to as sane people.