Bieler: We Are Going to Mass Incarcerate Forever

[Ed. Note: This is a guest post by my brilliant Fault Lines colleague, Sam Bieler,]

After we parted ways at Fault Lines, Scott told me that someday I would read something that would piss me off, and when that day came SJ would be there. Well, here I am, nice and pissed off because of what Andrew Fleischman tweeted. Or rather, what people tweeted in response. You see, Andrew had a notion about sentencing. The reactions to that notion explain why the U.S. will probably have mass incarceration forever.

Andrew asked whether, given the non-violent nature of Paul Manafort’s crimes, the 19-24 year sentence Mueller requested was excessive. Andrew’s tweet offered a chance to think about why and how we choose to punish. Andrew promptly got ratioed by morons.

If you have the stomach, or perhaps a very large bottle of whiskey, read the comments. Watch these people, many ostensibly part of the justice-reforming left, cheer the caging of another human. These people, these exact damn people, are the reason we have mass incarceration and probably will forever. They are pulling for a huge sentence. They want to hit Manafort the way we socked it to people when we declared a War on Dr-…oops.

I bet these people think they are different from the Drug Warriors of yesteryear. Indeed, several trot out a version of “I am a reformer but…” They are not.

Think Manafort’s crimes are different because they inflicted terrible harms and killed people by some long chain of causation? Bill Bennett would like a word. Think we need to drop the hammer because we are always under-punishing white-collar crime? That’s what we thought about drugs and their dealers. Think this one is different because you’re striking some sort of blow for racial justice? Yeah, the Drug Warriors thought that too. Or maybe you’re just one of those “the law is the lawwunderkinds whose moral reasoning and critical-thinking skills don’t extend past blind adherence to whatever a legislature cooked up. None of this is new. The song and dance are the same every time. We just change the labels a little.

The sad thing is you can believe that Paul Manafort did terrible things and still take issue with the response. Nowadays, a sentence only seems to be considered “severe” if it edges in the 20-year range. Sentences of a year, five years, ten years are all to be scoffed at like it would be nothing to have a void in your life that long. In the last year, I got married, found a job, and watched dear friends walk down the aisle. In the last five years, I left work for law school and moved in with the woman I would marry. Ten years ago? I was a dumb freshman who couldn’t dream of what the future would hold. I cannot imagine losing even one of those years. Yet when the topic is punishment, people toss around decades like it is only then that we “start getting serious.” You only make that leap with bloodlust and panic separated from all context, empathy, or grace. That is what is on full display in Andrew’s comments.

Originally, I planned to categorize these commenters into types and explain why their special, individual brands of stupidity would saddle us with massive prison populations until the sun goes down. In truth though, there are no different types. These people are bound together by their complete inability to think one step past “I must destroy this bad thing.”

Whether, it’s drugs, violence, or sex-crimes, the show plays out the same way. Someone has made the mob mad and now the mob wants to hurt that person. They want to hurt that person as hard as they can without thought, reflection, or pause. Why have sentences climbed and prosecutions increased? Andrew’s commenters want blood and as long as they vote, the government is going to give it to them.

In a day, a month, a year, the mob will forget about who made them so mad or about the huge, grinding machine they put together to destroy that person, the person after that, and the person after that. But the system won’t forget. The system will grind on, year after year, until someone looks around and realizes just how many people have been ground up in the gears of some now disfavored or forgotten panic.

Someone will say we should do something about this and maybe we’ll make a few tweaks to undo the horrors that the panic of yesterday inflicted on today. But mostly, we’ll get mad, lash out, and keep grinding people up.

8 thoughts on “Bieler: We Are Going to Mass Incarcerate Forever

  1. Richard Kopf


    Your essay caused the hairs on the back of my neck to stand up. I saw myself in those idiots who railed against Andrew’s tweet.

    After a quarter century of sentencing under federal law, there are times when I think like the shit-for-brains crowd who expressed their desire to hang and quarter Manafort.

    You write: “Sentences of a year, five years, ten years are all to be scoffed at like it would be nothing to have a void in your life that long.” That disregard of the devastation wrought by middle term but still lengthy sentences, often driven by anger rather than reason, is an occupational hazard that I sincerely try to guard against. I confess that I am not always successful.

    Thanks for the reminder. All the best.


    PS For drugs, my average sentence was 94 months, my median sentence was 75 months, and the average Guideline Minimum Sentence, if I adhered to the Guidelines, was 103 months. Meth constituted 92% of all my drug cases.

  2. Sam Bieler

    Judge Kopf,

    Thank you for your reply and for your candor. I have also struggled (though with lower stakes) with reining in the desire to harm in the face of some particularly odious acts. The instinct is usually there when the question of punishment arises, and whatever the charms of grace and forgiveness, those emotions rarely seem to have the visceral satisfaction of a hammer falling. So, the post is a reminder to me as well, hopefully an angel on my shoulder if the time ever comes where my thoughts on punishment matter.

    I am glad you enjoyed it and hope you are doing well.


  3. Tom

    As I understand it, Mueller’s people weren’t requesting a 19-24 year sentence. What they said in their filing is they had no objection to the guidelines calculation. Those are two different things.

    1. SHG Post author

      Sam’s not concerned about Mueller’s agreement with the guidelines calcs, but with people’s reaction to the erroneous headlines and Andrew’s twit.

  4. Austin Collins

    The hyperlink in the first mention directs to a generic GoDaddy web page.

    I mention this only because after reading and enjoying the guest post and comments, I was quite interested in learning more about Sam’s background.

    Yes, I know Google exists and will use it; I simply thought given your esteem for him you may want correct the link .

    No need to publish this comment; your prescreening it communicates the issue on its own.

  5. restless94110

    It is very rare for me to see someone who has the essence of this American problem down to a tee.

    You are EXACTLY right, sir.

    This is the problem with American “justice.”


  6. Bear

    I thought my liberal friends had become Jacobins in their responses to Mr. Fleiscman’s tweet and had learned nothing from Robespierre and the Terror. Perhaps they need to rethink their position on capital punishment because at least it ensures no recidivism on the part of the “guilty” individual.

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