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Wednesday, May 11, 2005

The Congressional Response to Booker

In response to the Supreme Court's Booker opinion, which struck down the mandatory nature of the federal sentencing guidelines, the House is now moving to increase mandatory minimum sentences for a range of crimes, including drug-related and gang-related offenses.

In other words, whereas Booker first appeared (to many) to be a positive development for those concerned with draconian sentences, it likely will have the opposite affect: Congress may now impose draconian mandatory minimums that allow for absolutely no wiggle room for judges faced with unusual circumstances.

From a legal perspective, I think the central idea in Booker, that a person may not be sentenced based on facts not found by a jury or pleaded to, was absolutely correct.  But, unlike many liberals, I was never under the illusion that it would result in more just criminal penalties.

Posted by Hillel Levin on May 11, 2005 at 11:20 AM | Permalink


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My problem with mandatory sentencing is that it takes discretion away from judges and gives it to prosecutors. And prosecutors do what rational people would do in that case, optimize their results (i.e. conviction rate) while minimizing their workload.

How do they do that? By laying on the charges, then plea bargaining to one of the lesser offenses. Even if I am innocent, if I am faced with 20 felony counts that may find me behind bars for the next 40 years, I may take seriously an offer of 5 years, based on the vaguaries of the criminal justice system - esp. if I am defended by a PD who has similar incentives to the prosecutors, though often at lesser pay and higher caseload.

Posted by: Bruce Hayden | May 12, 2005 9:27:04 AM

Frist--drug crime is down? I don't know where you get that from. Drug use (which, based on principles of supply and demand, I think should also account pretty well for manufacture and distribution) has remained pretty consistent, overall, since the mid-1980's, when the harsh mandatory minimums were passed (there was a drop between 1979 and 1985, before they were passed). Some groups have had slight jumps and some slight decreases, but I don't see how anyone could say that drug crime is down. It's been pretty consistent for 20 years. (http://www.whitehousedrugpolicy.gov/publications/factsht/druguse/#general). As an aside, drug use has increased slightly since 1991 among kids--the group the drug war is designed to protect. (http://www.monitoringthefuture.org/data/04data/pr04t1.pdf). So, for drug crimes, I think it's pretty safe to say that tough sentences have only led to more prisoners, not less drug use (stats. on the effectiveness of treatment versus incarceration and comparisons with abuse in the Netherlands versus the US also back up the ineffectiveness of prison for drug offenders.)

Second--you don't respond at all to my points about *federal* sentencing which is, after all, what we're talking about. To reiterate my points (that relatively few crimes are prosecuted under federal law--especially violent crimes--and that drug offenses have seen the largest increases but drug use has not dropped), check out, for example, this document: http://www.ojp.usdoj.gov/bjs/abstract/tspfo97.htm. The last summary bullet point on page one shows time served for federal drug crimes doubled between 1986-1997 from 20-43 months. During the same period, bank robbery went from 55-60 months. Check out table 4 on page 7 for the breakdown of time served by offenders on date of release. Then, please explain to me, if you can, why one should assume that a huge increase in time served by drug offenders and a negligable increase in time served by violent offenders in the federal prison system (which, by the way, only deals with a small percentage of crime compared to state law) is responsible for the decrease in crime? Personally, I don't think the murder rate is down because we've gotten tough on pot users.

Now, on the related question of whether *state* sentencing increases for violent crime could have caused a decrease in crime... I say that "I don't necessarily disagree" (instead of "I blindly accept your theory") because I don't know enough about state sentencing to say for sure. I don't know, for example, which states have had large increases for violent crime sentences and which have had increases only for drug crimes (or which, if any have had decreased sentences). More importantly, I don't know what the relationship is between decrease in crime and increase in sentence for each state, as it relates to particular offenses. Yes, I think it's fine to assume that an increase in sentences for violent crime is responsible for some decrease, but I'd like to see a study comparing rates in different states to sentencing in different states (and accounting for issues like the one raised by Dan) before I make any final conclusions. I don't think a request for some non-conclusory analysis makes me some "head in the sand" liberal.

In any case, this is all tangential to the question of whether long *federal* sentences (aimed mostly at drug offenders) have had any impact on the crime rate. I don't think there is much evidence that they have.

Posted by: ADK | May 11, 2005 11:47:41 PM

what say you to the proposition by Steve Levitt that the real reason for the great reduction in crime during the 90's is due to the introduction of legalized abortion during the 1970's, following Roe? Levitt's thesis in short is that a generation of would-be criminals (who would be between 13-29 during the 90's) were aborted in the aftermath of Roe.

Posted by: Dan Markel | May 11, 2005 9:07:06 PM


"I don't necessarily disagree that long sentences for violent crimes could have caused a decrease in violent crime."

Could? We're not talking theory here - sentences have gotten longer and the prison population has increased. What has happened to the crime rate during this time? Property crime is down nationwide. Violent crime is down nationwide. Drug crime is down nationwide. What would convince you of a correlation: Signed affidavits from inmates saying "I wanted to commit crimes, but I couldn't get out of my cell."? What are your theories as to why crime is down by 40%?

That there is a strong correlation between these decreases and the enactment and enforcement of tougher sentencing laws at both the state and federal level is blindingly obvious. No one says that is 100% solely attributable to federal or state mandatory sentences and guidelines, but you truly have to put you head in the sand to say that the fact that as the prison population has gone up while the crime rate has gone down is just coincidence.

Being on the left seems to mean that anything good that happens because of a conservative pricipal must just be a freak coincidence and therefore must be refuted with liberal theory. Conservatives said if we pass longer, tougher sentencing laws, the crime rate would come down. We did. It has.

It is a legitimate argument to say that incarcerating so many Americans is not worth the corresponding reduction in crime, but to say that these laws have had no significant impact on the crime rate is sociobabble sophistry.

Posted by: MJ | May 11, 2005 8:59:25 PM

I for one am not convinced that the federal guidelines or mandatory minimums are, to a significant degree, responsible for the drop in crime. For one, even with the federalization of crime over the past thirty years, the vast majority of criminal prosecutions are still under state law. This is particularly true for violent crimes. According to the sentencing project, 55% of federal prisoners are in for drug offenses and only 13% for violent offenses. (http://www.sentencingproject.org/pdfs/federalprison.pdf) However, the rate of drug use has remained relatively stable over the past 20 years. There are dips here in there for certain drugs, but overall there is no trend in decreased use.

Since most crimes are prosecuted under state law (especially in the case of violent crime) and, in the one area targeted most heavily by federal law--drugs--it does not seem particularly successful, I think it is a huge stretch to attribute a decline in violent crime to increased federal punishments. Maybe it is the case that, somehow, locking large numbers of drug offenders (many of them low-level addicted dealers who are at the bottom rung of a "conspiracy") in federal prison is responsible for the drop in violent crime. But, I'd have to see a pretty thorough and convincing study before I'd believe it.

I don't necessarily disagree that long sentences for violent crimes could have caused a decrease in violent crime. But if that's the case, I'd think it would be due almost entirely to state law, since the federal government has had relatively little to do with violent crime.

Posted by: ADK | May 11, 2005 6:23:37 PM

OK. I'm tired of being the skunk at the garden party. I'll leave.

But, first, it's not a straw man, google any root of the above referenced terms w/10 of Republican (or just go to Dailykos)and you will see what I mean. Not you specifically, but, yes, the left generally overuses those terms.

Second, you say the minimum sentencing laws are unjust. Compared to what then? Since we are not allowed to make observational remarks that are not supported by "sophisticated regression analysis" - unjust compared to previous laws? Foreign laws? The harm caused to inner cities by drugs? Guns? (Bivariate linear regression preferred, please)

What effect did minimum mandatory guidelines have after enacted at the state level? Some results have been mixed, some very successful. See for example California's first five years 1993-1998. Is it solely responsible? Certainly not. Is it the only way? No. New York reduced their crime rate dramatically by improving their policing and putting more cops on the street. But you have to do mental gymnastics not to see some correlation between tougher sentencing laws and a reduction in crime.

I say "just" and proportional to the benefit society gets from locking up more people longer. Reasonable minds...

Posted by: MJ | May 11, 2005 3:29:17 PM

No one has declared this "Nazi-like" or "theocratic." That is your strawman. As for your objection to the term "draconian," I think the term is generally used to mean "unduly and unjustly harsh," which is precisely what I mean here.

To the extent that you object to a comparison to 1940s Italy, keep in mind that it was only raised to refute your argument that the fact of efficiency and effectiveness is evidence of reasonableness.

In fact, the two have little bearing on one another. At the risk of reporting the obvious, the fact that something is efficient does not mean that it is just. Executing first-time drug offenders is likely to be even more efficient and effective at reducing recidivism rates, and thus overall crime rates. I assume you can see that it does not remotely follow that execution is a reasonable means of achieving those goals.

Simply put, your contention is that harsh mandatory minimums are effective. Mine is that they often unjust. Those are two ships passing in the night.

Note also that you've succeeded only in proving a correlation between extremely harsh mandatory minimums and a decrease in crime rates. That doesn't prove causation. I'm prepared to accept such a causitive relationship, though probably not to the extent that you are suggesting. A lot has changed in the world since 1994, and not just (or even primarily) mandatory minimum sentences. Moreover, what about the period of time from the early 80s to the early 90s? What affects did mandatory minimums and sentencing guidelines have then? Thus, even your efficiency/effectiveness argument requires significantly more evidence, mostly in the form of a sophisticated regression analysis. Good luck.

Posted by: amosanon1 | May 11, 2005 2:35:52 PM


I thought it was related to the discussion at hand - I reject that these laws are overly harsh and thought it a worthwhile discussion to point out that there have been benefits to our country as a result of these laws.

If it is hijacking to reject the premise of the assertions that these laws are draconia (explict) or unjust (implicit), I'm guilty. Leniency, please.

Posted by: MJ | May 11, 2005 2:26:26 PM

I think it points to the possibility that these laws are not overly harsh, but instead a proportional response to rampant crime.

I also think the left should get away from referring to anything that they disagree with as either "fascist" "Nazi-like" "draconian" and "theocratic" - it diminishes the magnitude of the wrongs behind each of those terms.

Posted by: MJ | May 11, 2005 2:19:21 PM

The most effictive and efficient solutions were those often employed in Italy around 1940. Republican government is not efficient. The Bill of Rights is not efficient.

MJ, the topic wasn't what mandatory minimums had or had not done. You hijacked the thread.

Posted by: Joel | May 11, 2005 1:57:37 PM

I don't dispute that (1) the mandatory minimum sentences (or mandatory sentencing guidelines) have contributed to the decline in crime rates, or (2) that greater than 50% of the electorate supports such measures.

But it doesn't even remotely follow that the guidelines and mandatory minimums are not draconian.

Posted by: amosanon1 | May 11, 2005 1:43:29 PM

While I do hear a lot of folks on the left lamenting "draconian minimum sentences", I never hear anyone persuasively take on the success of these laws in the last 15 years. For example, violent crime rates have declined since 1994 to the lowest level ever recorded in 2003 in the thirty years that the Bureau of Justice started keeping such statistics.

Are these laws 100% irrefutably responsible for the decrease in violent crime? Probably not (though the same folks who attribute it to the Clinton economy can't seem to explain why it has continued to go down despite the fact that I heard about 5,000 times during the election that the Bush economy was "the worst since Hoover"), but the fact is, these sentences are at least partially responsible for a very significant reduction in crime, and I have not yet heard any groundswell by voters indicating that they are unwilling to foot the bill for any increases in law enforcement/prison spending.

It's a fair argument to say that the social costs in imprisoning an increased percentage of our population is too high. But to accurately gauge the social costs you also need to consider the social benefits - a nearly 40% reduction in violent crime.

I think I know where the voters will stand on this one.

Posted by: MJ | May 11, 2005 1:36:43 PM

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