Bill Otis’ Big Gig

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.

**There is no shortage of reasons why Bill Otis’ nomination is a really bad idea. So in response to Zoe Tillman’s announcing the nomination, this reaction happened.

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?

 

28 thoughts on “Bill Otis’ Big Gig

  1. Hunting Guy

    So he’s crazy and his views are awful.

    But he’s got the position with the power to do things.

    Like it or not, rational people will find ways to deal with him.

    Others will yell and screech and write blogs and letters that preach to the choir but accomplish nothing because he will ignore them.

    It will be interesting to see what happens.

    1. SHG Post author

      It’s a commission, not a fiefdom. There are grown-ups on it as well, and they are influenced by thoughtful and knowledgeable writings, even blogs, particularly in contrast to his rantings.

  2. albeed

    Bill and I use to go toe-to-toe when he used to comment on Doug Berman’s Blog but he got upset a few years ago and picked up his toys and went home. In his simple mind, everything was a conservative vs. liberal issue. When I pointed out that he being a “Big Government Conservative” in that he favored every possible expense and toys (tanks, submarines, ICBMs, etc.) for local law enforcement and the feds and that no law too was extreme for him to violate the Fourth Amendment or the privacy of individuals, he was not really a conservative but a neo-con (a different word than n-z-). He would go immediately into a shell of self-deception and delusion. He kept pulling out data and quotes from a somewhat discredited 1996 Study (Freakonomics) to support his positions.

    I use to pity the students in his Law Classes at Georgetown. I know he has a home in Hawaii. Am I a bad person to root for a very localized tidal wave on occasion?

  3. B. McLeod

    Idling someone in prison for “x” time for “y” offense has never made any logical sense. It should not be surprising that “guidelines” on how to do it have also never made any logical sense. As far as I can tell, the only argument there has ever been for the guidelines is they are supposed to prevent the nonsense from being impermissibly discriminatory on the basis of ethic, religious, or other improper grounds.

    1. SHG Post author

      The purpose of the Guidelines is to eliminate sentencing disparities, such that judges impose similar sentences for similiarly situated offenses and defendants across the nation.

      1. B. McLeod

        So they can be “successful” in their aim even if all of the sentences are harsh or lenient or nonsensical. Because they were never supposed to get rid of the nonsense, just apportion it equally.

  4. Richard Kopf

    Scott,

    As one who continues to believe the Guidelines are worth having, I don’t want Mr. Otis on the Commission either.

    As you might expect, my reasons are different than yours. Deliciously, you suggest that having Mr. Otis on the Commission will result in even more ridicule being heaped on the Commission. I don’t see that as a good thing but I understand your point of view. Indeed, I marvel at your Machiavellian mind.

    Why I don’t want Mr. Otis on the Commission is simple. If the Commission is to perform the task it was originally intended to fulfill, one cannot seriously do his or her job on the Commission while advocating for the preservation of mandatory minimum sentences. This is so because mandatory minimum sentences contradict the raison d’être for the Commission’s very existence; that is, addressing sentencing disparity.

    All the best.

    RGK

    PS Mr. Otis was very annoyed with my 2014 Hobby Lobby post. He suggested I retire, helpfully noting that: “We all age, Judge Kopf, and aging takes its toll. Your post reflects that it has taken a toll on the restraint, respect and dignity your office must command.” It would be unduly snarky of me to suggest that Mr. Otis is several months older than I am, so I won’t.

    1. SHG Post author

      I suspect Judge Pryor will tire of Otis’ rants quickly. As you know, I’m no fan of the Guidelines, and even less a fan of mandatory mins. If reason can’t convince them, maybe crazy will? And poof, that’s where Otis comes in.

      1. albeed

        “And poof, that’s where Otis comes in.”

        I can see it now if WO is on the Sentencing Commission, reading the SJ blog will be a Level 2 enhancement, along with using a computer in the commission of a crime.

        We’ll see if he uses his most common tactic during the confirmation hearings. Rather than responding to a direct question, he will say, “Senator, I am a mind reader and can read between the lines, what you really meant to ask was…..”

    2. Nemo

      Judge Kopf, you called SHG “Machiavellian”. I see you not only called that “bet”, but raised, there in your postscript. Well done, sir, well done.

          1. SHG Post author

            I have a handy-dandy method of distinguishing between the two: if you know who Len Bias was without googling, then meanie it is.

    1. SHG Post author

      I’m sure they have stats on below-guidelines sentences, so if you want to know, you could always . . . google.

      1. MonitorsMost

        I meant more from the legal-side. I was under the impression that judges discretion was still chained by the depature factors under the guidelines and that blowing past them was grounds being reveresed on appeal for abuse of discretion.

        1. Richard Kopf

          Monitors Most,

          Nationally, the Guideline compliance rate (sentences within the Guideline range) for the period of October 1, 2016, through September 30, 2017, was 49.1%. Judges went below the Guidelines without a request from the government 20.1% of the time. 27.8% of the time the government asked for a below-Guideline sentence. See Table 8 NATIONAL COMPARISON OF SENTENCE IMPOSED AND POSITION RELATIVE TO THE GUIDELINE RANGE (United States Sentencing Commission Quarterly Data Report, 4th Quarter Release, Preliminary Fiscal Year 2017 Data Through September 30, 2017).

          The Sentencing Commission produces reams of data and releases it to the public, although individual statistics for judges are not released and that is a shame. The published numbers are computed and published for the nation, the circuit and district.

          If a judge varies (departs) from the Guidelines the judge (if he or she is not an idiot) is now not likely to be reversed. Yet, compliance with the Guidelines occurs nearly 50% of the time. There is a debate why this is so.

          All the best.

          RGK

          1. Jardinero1

            If, as SHG states, the purpose of the Guidelines is to eliminate sentencing disparities, then Judge Kopf’s data does not speak well to that. Applying a null hypothesis of “the guidelines increase sentencing disparities”, then the data tends more to support the null hypothesis, since more than half the time the sentences deviate. Also, the data seems to follow the crude outline of a normal curve. If you did not know that there were sentencing guidelines establishing a median, then you could assume that judges do pretty much whatever they want, with the median being just that, the median.

            1. Richard Kopf

              Jardinero1,

              Without going into details, one fallacy of your argument is that you assume the data set is comprised of similarly situated data points (or as I like to say icky defendants).

              All the best.

              RGK

            2. Jardinero1

              Yes, It is a type of question begging to assume the data collected is sufficiently similar and reliably reported. I took it for granted that Judge Kopf would not ply us with garbage data given his stated belief that the guidelines are worth having.

  5. Windypundit

    As soon as I saw the news item about Otis, my first thought was “How will Scott react to this? Will he be sputtering with fury? Will the veins on his forehead stand out? Will he keel over from the shock?”

    I’m glad you took it well.

    PS My long shot wished-for best-case outcome here is that Otis gets close enough to the Trump administration that the Mueller investigation takes a look at him and finds something juicy enough that he gets to know what it feels like from the other side.

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