After The Gushing: Sentencing Reform Is Inadequate

A mere month ago, everybody was gushing praise over the “bipartisan” sentencing reform that finally won the blessing of Iowa Senator Chuck Grassley, who holds the keys to change as chair of the Senate Judiciary Committee. Even FAMM got behind the bill, and if FAMM backed it, it must be good.

Not perfect, perhaps, but, as the New York Times proclaimed as they issued their good housekeeping seal of approval, “a crucial first step on the long path toward unwinding the federal government’s decades-long reliance on prisons as the answer to every ill.” Anybody could see that, right?

Except one old, negative curmudgeon who called bullshit.

As the glow of irrational exuberance wore off, and people actually read the bill, thought about what it gave and what it didn’t, not to mention took away, it slowly began to dawn on people that this glorious bipartisan proposal kinda didn’t do much

As we have reflected on the bills, however, and tried to determine their likely impact on past and future offenders, public safety, and the federal prison budget, we have concluded that these proposals fail to match the overwhelming support for reform that can be found across the political spectrum.

What the bills “match” is Chuck Grassley’s gamesmanship in creating the appearance of reform without doing much of anything to effect actual reform.

As we said when the Sentencing Reform Act was introduced, we think Congress can do better – and that the American people want and deserve more reform. We have already suggested numerous specific improvements to the House bill.

What was actually said was:

Julie Stewart, president of Families Against Mandatory Minimums (FAMM), calls legislation unveiled today “the most significant pieces of sentencing reform legislation in a generation.” The provisions described by FAMM make the Grassley-backed bill sound significantly better than MSNBC’s preview suggested.

And the MSNBC preview was pretty darn glowing.

Top Senate Republicans and Democrats have reached a bipartisan deal on criminal justice reform, a breakthrough that has been years in the making.

Finally, the trailing indicator of thought has broken out of its adorable rut and realized that its praise for reform might have been a wee bit premature.

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

Now it’s worth taking a closer look?  Spoken like an editorial board that blew it completely up front, trying desperately to cover its failure by absurdly suggesting that the time to think is after the fact.  Cool story, Timesbros.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts. That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The Pew report puts numbers to the lie that has permeated the nation’s psyche, that more and longer incarceration is the solution to all that ails us.

The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime—violent, property, drug, public order, weapon, and immigration offenses—imprisonment periods increased significantly. For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.

Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone. Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy—a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.

From the perspective of someone who stood in the trenches before the United States Sentencing Guidelines and since, no report was needed to establish what had happened. It happened. I watched it happen. I argued against it happening at the time and since. It didn’t get much traction because everybody knew that longer sentences would save us from the criminals and deter future criminals. Just like the Rockefeller Drug Laws worked so well.

It’s not that I’m so damned smart. It’s that I refuse to wear blinders so that I won’t see the baloney embedded in reform. Look for the good and bad, but not through rose-colored glasses. Anybody can do that. Few want to. And fewer still want to throw a wet blanket on everybody’s celebration, even if they’re celebrating crap.

And while it’s gratifying that the New York Times finally recognizes that its applause was misdirected, the editorial board still can’t come to realize that it’s perpetuating a lie about the legal system:

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, nonviolent crimes, and have no serious history of violence.

The vast majority of drug offenders are serving sentences as part of drug conspiracies, which were alleged to involve massive quantities, whether real or ghosts. The nature of conspiracies is that the guy who fetches the nickel bag dealer who gets his stash from the middle man after the bigger guys step on it following the main man’s importation, are all culpable for the same amount. Just as the one gun (for the 30 co-conspirators) found in the stash house is “used and carried” to add the consecutive time on the back end.

Virtually all of these convictions involve drug trafficking, but that can mean anything from being a kingpin to being a drug mule driving a truck to a street-corner seller. Prosecutors often rely on the threat of mandatory-minimum sentences against low-level players to go after the leaders of a drug operation.

And without a person by person parsing of what each is accused of actually doing, this is all meaningless gook. Even use of the word “kingpin” is a joke, as it refers to the top guy in a pissant group of nobody-level dealers who would be characterized as low-level had the feds gone a step or two higher in the chain.  The first name on an indictment is always characterized as a kingpin, no matter how inconsequential his conduct may be.

Yet, the most significant failing is that the Times remains stuck on the myth of the sympathetic criminal because it’s so much easier to sell to a deluded public that’s been hearing about these mythical poor low-level, non-violent souls for so long.  Eventually, the New York Times will catch up with reality, but it would be really nice if the guys with the biggest soap box could get ahead of the curve for once rather than always be the caboose of thinking.

I may not have any persuasive force with Chuck Grassley, unlike Bill Otis, but those on the New York Times editorial board who read SJ might want to give me a little more credit than they do for dot-connecting way ahead of them. Wouldn’t it be great if the Times got it right the first time once in a while? Even if it means being a little bit curmudgeonly?


5 thoughts on “After The Gushing: Sentencing Reform Is Inadequate

  1. Richard G. Kopf


    How dare you tell the truth! You didn’t even have the common decency to provide us with a trigger warning.

    You made us feel uncomfortable. You harshed our mellow (whatever the hell that means)! In fact, you invaded our safe space. You probably even raped us too, although to be Frank, we can’t say for absolute certainty.

    Shame on you.

    All the best (worst?)


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