What’s Two Levels Between Friends?

Meet the United States Sentencing Guidelines Table:


And now meet the Drug Quantity Table.  It occurs to me that some of you have yet to be introduced, and since this post is about the internecine battle over the Sentencing Commission’s proposal to reduce drug sentences by two levels, and whether it should be fully, partially or not retroactive, you ought to make friends first.  Everybody say hi.

The federal judiciary supports full retroactivity, albeit with delayed implementation.  The Department of Justice supports limited retroactivity, so it only applies to those people who wouldn’t embarrass anybody if they show up in a Willie Horton ad.  Advocates for retroactivity explain why the DoJ’s position is vapid.  And the “tough on crime” crew, represented by the inimitable Bill Otis, explains why any reduction means your daughters will be raped in their beds at night.

All of this proves that if you stare at the sun long enough, you’ll go blind.

See the grid? See the drug equivalency tables? See all the numbers? Why?  What makes them real?  But even worse, what makes sentencing real to begin with, because if there is no actual purpose to 121 months, its imposition is palliative.  We feel like we’re doing something useful because, well, that’s how we feel.  And once it becomes real to us, we accept it as reality.

The facile response is, well, we have to do something to these criminals.  While that may be true, it remains a question that no honest person can deny whether what we have chosen to do serves any of the purposes we use to justify it.

This is why we sentence people:

  • General deterrence.
  • Specific deterrence.
  • Incapacitation.
  • Rehabilitation.
  • Retribution.

It’s all quite theoretical, as we argue how these purposes are served by terms of imprisonment.  The relative values of each purpose differ according to personal sensibilities, and two of the five factors, incapacitation and retribution, are easier to quantify than the others.  Incapacitation means keep the criminal out of society so he can’t do harm to others for a period of time.  Retribution is punishment, make them hurt for what they did.

Sentencing is a religion.  We believe because we believe. If we ever figured out a real answer, we would be capable of eliminating crime, emptying prisons and closing the courts. It didn’t happen before the Guidelines. It didn’t happen during the Guidelines mandatory application. It hasn’t happened since they became advisory.

If this discussion is to be honest, then it has to start with the recognition that the Sentencing Guidelines Table and Drug Table are religious icons.  We believe in them because they are the physical manifestations of the theory, and the system, the high priest of the law, says they matter.  That’s all there is to sentencing. Blind faith that by attaching numbers to quantities, we will achieve Nirvana.

In this debate, the person with the closest point to something real is, wait for it, Bill Otis.

As to drug offenders specifically, you have to read down to the seventh paragraph, which states (emphasis added):

Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders.

Let’s be clear then, about what moving up the release dates of drug traffickers by retroactive application of more lenient guidelines is going to do.  It’s going to produce more drug trafficking, earlier.  It’s as simple as that.

Then again, the numbers show that early release versus serving full terms cuts the other way:

The recidivism rate for the pre-FSA group was about 48%, and for the post-FSA group, 43%.

In English, this means that those who were released due to the crack reduction were 5% less likely to commit new crimes than those who weren’t.  But Bill adores incapacitation, perhaps to the exclusion of all else, which is why he neglects to factor into his recidivism argument the fact that prisons aren’t doing much to spit out good guys on the back end, and society isn’t doing much to accept them back into the fold, having paid their debt to society.

What all this tells us is that this discussion is about a system that doesn’t work, never worked and likely never will.  It’s not accomplishing the goals society has espoused to justify imprisonment, and rather than spend time figuring out how and why we can’t do better, we argue over whether 135 months or 166 months is going to save society or destroy it.

I’ve asked judges why 121 months in prison is the “right” number, but 122 months, or 120 months, isn’t.  They give me the evil eye, because they know, as do I, that these are just numbers.  The beauty of the advisory guidelines is that it takes the heat off the court for coming up with the length of time that can be “explained.”  I use scare quotes around “explained” because it refers back to the sentencing religion, our belief that the guidelines reflect some cosmic truth about the length of time a human being should be put in prison for the reasons espoused.

But it’s just religion.  If you stare at the Sentencing Guidelines Table long enough, you can see Jesus’ face. No, really. Try it.  Lots of people can see it. Can you?  And so we argue over retroactivity for a two-level downward change, because if the High Priests of Sentencing tell us that 135 months is the proper number, then the guy who was sentenced to 166 months before the word came down from Sinai got too much time.

It won’t really matter because both will rape our daughters if we release them and hold them out as pariahs to be hated, scorned and unemployable no matter what.  Except for the people in prison, an extra month or year for no particular reason except as a sacrifice to the sentencing gods matters a lot.  For them, this is very real. For the rest of us, it’s just a game we play with their lives.


6 thoughts on “What’s Two Levels Between Friends?

  1. Jeff Gamso

    You sure I can’t nominate one of yours for blog post of the year?

    Best damn explanation of this I’ve seen. I have to say, though, that I’ve never fully understood (and still don’t, sorry) the difference between specific deterrence and incapacitation.

    1. SHG Post author

      I suspect that my explanation will only resonate with those of us who spend time inside the onion. Outsiders can’t appreciate it the same way.

      As for specific deterrence and incapacitation, the former applies after the prisoner gets out (he won’t do it again). Until then, it’s incapacitation.

  2. John Barleycorn

    Someone should float the tunes of hello again, you dearly imprisoned ones..

    Every time you….you walk in the room is a real thing.

    mostly good and very real.

  3. Michael Sshapiro

    A succinct, trenchant analysis of modern US sentencing. As a 40+ year toiler in the criminal law vineyards I appreciate the sentencing as religion metaphor. Whether religion or, as I’ve described it, pseudo-science, too many judges and nearly all prosecutors worship at the alter of the Guidelines and eschew reason, logic and even 30 years of Guidelines experience.

    1. SHG Post author

      One of the gravest concerns now is that AUSAs who came into the office post-Mistretta and have now gotten robes have no baseline frame of reference except the guidelines. It’s the only religion they’ve ever known. Even advisory, they believe that numbers that were once crazy are now real because they’ve never known anything else.

  4. Boffin

    Sinners in the hands of an angry prosecutor. The best that can be hoped for is Prosecutorial Grace. Amen.

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