There was a time when being a member of the United States Sentencing Commission was a big deal. But that was before Booker, holding the Sentencing Guidelines advisory. Since then, most judges have come to the realization that the grid was more random numbers than reality, more Draconian aspiration than a reflection of sentences either appropriate under § 3553(a) or some empirically determined aggregation of actual sentences meted out by actual judges.
That doesn’t mean the Commission doesn’t matter. There are still a few judges who refuse to recognize that the numbers on the sentencing grid, and calculations done to reach those numbers, are merely social engineering. And there are the younger judges, who never practiced law before the Mistretta went and screwed everything up, to whom the monstrously long sentences seem totally normal.
But there is one guy for whom the Guidelines were just too lenient, too soft on crime, a gift to the vicious jaywalkers who deserved life, or the more serious criminals who deserved life plus cancer. And it comes as no surprise that he’s finally getting his close-up.
That’s right, Bill Otis has been nominated for the USSC. In the past, when I had nothing more pressing to do and felt a bit masochistic, I would take a stroll over to his blog. Crime & Consequences, to see what sort of lunacy Bill and his partner in crime, Kent Scheidegger, had cooking. If nothing else, it made for a fun juxtaposition between the rational and outrageous.
I was not always kind to Bill. It wasn’t that he isn’t a nice guy to have a beer with. Many people I disagree with can be nice. It’s that he was the bar by which the lunatic fringe was measured. Thus, it comes as no surprise that Bill was nominated by the Trump administration for this position. Mark Obie did a profile on Otis for Slate while some were trying to push a tepid reform bill* through the Senate. Why he thought it a good idea to elevate Otis’ profile remains a mystery.
Now that Otis is nominated,** Mark Joseph Stern at Slate gives a run down of Bill Otis-isms.
In 2016, Otis lambasted President Barack Obama for commuting the sentences of many nonviolent drug offenders, calling his move “over-the-top extremism.” Otis actually goes so far as to reject the notion that it’s possible for drug offenders to be nonviolent, because addicts can die of overdoses. (Prosecutors have increasingly used this theory to bring murder charges against drug dealers.) He dismisses reformers as “pro-criminal” advocates who want to be “nice to drug pushers” by letting “robe-wearing partisans” impose more lenient sentences. And he supports life without parole for juveniles.
Naturally, Otis also despises the Black Lives Matter movement as well as intellectuals and academics who support its goals. He calls them the “Amerika Stinks” crowd and blames them, in part, for a present era “of cultural rot impersonating advanced thinking.” In 2017, Otis asserted that “black-on-black violence—an ugly, everyday occurrence in American cities—wreaks far more damage than police abuses.”
Not even Stern has the words to be hyperbolic about Otis. He’s that over-the-top.
So is this nomination a bad thing or the worst thing that’s ever happened to the Sentencing Guidelines? Maybe this is the nomination the Guidelines needed to finally show how ridiculous and baseless they are, and always have been. Maybe Otis is the nail in the coffin of mandatory minimums. Maybe, just maybe, Bill Otis is the right man at the right time. Didn’t see that coming, did you?
Much as Donald Trump has answered that aching question of whether any clueless fool can be president, and you don’t need to know anything about governance, law and the Constitution to hold office, Bill Otis is his sentencing analog. The rhetoric of outrageous extremism does a lot better when screaming in the wilderness, from outside, a good distance away from where the grown-ups make serious decisions.
But put the crazy guy in a position of some power, some influence, and he serves to reveal just how awful, how crazy, his views are. If there is anybody who can fulfill the job of making ever-more-harsh sentences look insane, it’s Otis. If there is anybody who can show how mandatory minimums are the tool of the simpletons, Otis is the man.
Serious people need a foil to remind them just how bad and ineffective tough-on-crime policies have been, and pushing the envelope to even tougher, even more harsh, sentencing may be just the epiphany needed for the other members of the Sentencing Commission to see how the Guidelines have no connection to reality, serve no legitimate purpose and are too damn harsh.
It’s unfortunate that someone like Bill Otis will gain some putative gravitas as a result of his nomination and possible appointment to a position of some significance in criminal law. In a better world, Otis’ name would only grace the pages of SJ on the rare occasion that comic relief was needed. But if he’s going to get a nod from an administration that thought Scaramucci was a good choice of spokesman, at least he should serve some societally useful purpose.
Congratulations, Bill. You got nominated for the gig. Be you, Bill. Please be you.
*The bill is still on the table, but earlier efforts at serious reform were destroyed by well-intended crim justice advocates diving down their mythical “non-violent drug offender” rabbit hole.
Her bio says “DOJ alum,” and yet her complaint is that “Hang ‘Em High” Otis’ first name isn’t Sally? Because Otis wouldn’t be a spectacularly bad choice if he was a woman?