Will Biden Throw in with Defense Bar Extremists or with America?
There is understandably a good deal of speculation about whether Joe Biden intends to govern from the center-left or the far left. Biden won the nomination largely as a centrist-sounding counterpoint to the left wing in his Party, represented by Sen. Elizabeth Warren and particularly by Sen. Bernie Sanders. But his platform on criminal justice is anything but centrist, calling, for example, for elimination of the death penalty (a punishment a clear majority of Americans support) and an end to — rather than merely a reduction in — mandatory minimum sentences, freeing judges to impose little to no punishment regardless of the savagery of the crime.
Which way will Mr. Biden go?
Doug Berman provides a clue in competing entries on his blog. In the more recent one, Prof. Berman reminds us that Biden and Sanders combined to form a “Criminal Justice Unity Task Force” that, Doug says, “ought to get sentencing [reduction] fans especially excited.” Doug continues (emphasis added):
[L]et me start…by spotlighting arguably the most exciting and challenging of all the CJUTF recommendations:
Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation. The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served. Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision.
In other words, the Biden/Sanders plan is to comprehensively reduce sentences by hook or by crook — or, more accurately, by hook and by crook.
Question: Is reducing sentences what America wants?
Answer: The estimable Prof. Berman helpfully told us in another entry just a week ago. As I noted in discussing that entry:
[The Gallup poll Doug highlights shows] that slightly more than three-quarters of Americans think the system as it stands is not tough enough (the plurality) or about right. About one-fifth of Americans think it’s too tough. Or to put it another way, three and a-half times as many Americans think the system isn’t tough enough or is about right where it is as think it should become more lenient.
When the “stay-where-we-are-or-get-tougher” side outnumbers the “get-more-lenient” side three and a-half to one, is that a mandate to cut back on policing and water down sentencing?
I suspect we shall see shortly whether Mr. Biden understands what a three and a-half to one majority means — and with it, whether he aims to accommodate America’s center or its far left.
SUBSCRIBE TO OUR FEED
So, Bill, who might you recommend for Prez-elect Biden to appoint to the USSC?
Doug — You and me for starters, along with Bill Pryor, my old boss Henry Hudson, and my friend and Georgetown colleague Shon Hopwood. We might not get much done, and little to nothing will get through a divided Congress anyway, but we’d have a blast debating. Then we could all head off to one of the really good taverns near the Commission building.
P.S. I see you wisely don’t disagree with my point that the great majority of Americans — three quarters — do NOT want comprehensive sentence reduction, and that a plurality would like to see severity increased. With violent crime headed up this year, and still with tens of thousands of overdose deaths from drugs, I think the President-elect would be prudent to heed what this strong majority wants.
In fact, I disagree with your PS claims, Bill, especially as it relates to federal sentencing where there vast majority of sentences are handed out for non-violent crimes. Given 2020 suport for a range of CJ reform ballot initiatives, I see considerable support for all sorts of sentence reductions and other reforms. Many Americans seem to believe, not unreasonably, that severe drug sentencing contributes to overdose deaths and a range of other public harms. And I sense younger folks, aka the voters of the future, are especially keen on criminal justice reforms that include reducing sentences significantly.
That said, I think the will of the majority is particuarly clear with respect to ending federal marijuana prohibition. Do you think the President-elect and all members of Congress would be prudent to heed what the strong majority wants with respect to federal marijuana reforms?
A few points. First, pot is already de facto legal and has been for decades. Q: Out of 100 times a joint gets smoked in this country, how many times does the smoker wind up in prison? A: Rounded off the the nearest whole number, zero. It’s all a battle about next to nothing. And if you have evidence the public wants to legalize large-scale pot selling, I have yet to see it. In fact, most of the state legalization measures (perhaps all of them, I don’t know) sharply limit the amounts a person can obtain and possess at any one time. Without that limit, they wouldn’t have passed to begin with.
As to the harder drugs, the public is massively against legalization. See this Huffington Post poll: https://www.huffpost.com/entry/drug-legalization-poll_n_5162357. But if Mr. Biden wants to propose their legalization, I absolutely don’t want to stop him. He’s going to be a one-term President anyway, but that will help seal the deal.
You and I may differentiate between federal and state sentencing, but I see no evidence that the public does, nor that the public did not include federal sentencing in thinking about the responses it gave to the Gallup poll. Again, those responses were that a hefty three-quarters wants sentencing left where it is OR MADE TOUGHER (the plurality). A puny one-fifth wants sentencing to get softer. And while we’re at it, it doesn’t advance your argument to say that the vast majority of federal sentences are handed out for non-violent crimes, because the vast majority of ALL sentences are handed out for non-violent crimes — to wit, stealing of one sort or another, auto theft, larceny, fraud, and of course the many, many state sentencings for drugs.
Overdose deaths are caused by a number of things. One of them is people thinking that drugs are safe, a dangerous impression that will only be INCREASED by legalization and the government imprimatur it implies. But the main thing is the biochemical effects of the drugs themselves. The DEA is not the problem; the effects on the body of drugs are the problem. And one of the best ways to address that problem is to raise the risks and costs of buying, selling, or taking drugs to begin with. We do that by keeping them illegal.
Bill, on average, more than 10,000 Americans get arrested each and every week in the US for marijuana possession. You show how disrespectful you are to both the police and those they arrest when you cal this tantamount to “de facto legal” and “next to nothing.” You also insult the rule of law, but that is another matter altogether.
In any event, if you view ending federal marijuana prohibition to be “a battle about next to nothing,” then you should not hesitate for a moment in supporting Prez-election Biden seeking the repeal of blanket federal marijuana prohibition in accord with what the “stong majority” wants. Do you? If and when you say you do in this space (or elsewhere), I will engage your other points. But if you are unwilling or unable to support reform on “a battle about next to nothing” when Gallup polls — and consistent state-level election results in red and blue states — reveal support for such reforms, these other issues are not worthy of further discuss.
Either you respect and sugges the Prez-election be guided by Gallup polls (and actually election results), or you cherry-pick the results that serve your interests when giving advice. Feel free to play the cherry-pick game, but I am only interested in seeing if you really believe the “President-elect would be prudent to heed what this strong majority wants” when it comes to marijuana reform. I surmise that you do not.
Hi Doug — Something is illegal in a sense worth talking about here if, in the real world, it results in any significant criminal punishment. In order to explore that issue, I asked this question: Out of 100 times a joint gets lit up in this country, how many times does the smoker wind up in prison? The answer I gave was that, rounded off the the nearest whole number, the figure is zero. Conspicuously (and correctly) you do not dispute this.
I don’t know where you’re getting your figure of 10,000 arrests per week for pot possession, and I have my doubts about it, at least if “arrest” means what it actually means, to wit, TAKEN INTO CUSTODY BY THE POLICE to answer for a crime. Being given a ticket or a summons IS NOT AN ARREST. Were you including those? Nor, for that matter, is being given a ticket or a summons even indicative of being charged with a crime. The last few tickets I’ve gotten have been for traffic violations, which are infractions. Infractions are not either misdemeanors or felonies, and therefore are not crimes. Which is actually a good illustration of my point: Mere possession of pot is roughly as illegal as changing lanes without signalling or running a stop sign. Which is to say, yup, you can get stopped for it, and yup, you can get fined for it, but it’s no great shakes, and you’re not going to prison it even if you get hit with that fine, which you might or might not.
In other words, smoking a joint is illegal, but not very illegal, and that’s where I would keep it. And, a I said, it’s been this way for decades, and even more so now.
Your second paragraph is a study in, first, non-sequiturs, and second, evasion. I never said that I do or would support policies only if they have a polling majority. I, like any other conscientious private person (you, for example), will support policies if I think they’re right, and not otherwise. Of course, I am not an elected public official, as Biden will be in a couple of months, so I am not bound by majority sentiment. So you shouldn’t, and of course you actually don’t, expect me to support full-scale pot legalization in its own right, and still less as the opening gun to heroin legalization, the thing your side has up its sleeve but understandably prefers to keep mostly out of sight (for the moment) while we instead stay preoccupied with the small stuff.
It’s thus merely a feint for you to condition discussing other issues on my acquiescence to a position you already know I oppose. Nor does it make any difference, for those purposes, what I think of pot. If the legalization vel non of OTHER drugs — the hard drugs — is worth debating, it makes no difference what I think about dope (or immigration or affirmative action or capital punishment this or that). Since this point is obvious, I am led to think that the real reason you don’t want to discuss heroin, meth, ecstasy, LSD and all that other good stuff is that — ready now? — that is a much harder debate for your side! And better kept in the closet. For now, anyway.
Amazing!
However, let me be as direct as I can. I am not with the polling majority on pot legalization. I’ll state that directly. Why is that an impediment of a discussion of other subjects? Has cancel culture come to Ohio State? But for however that may be, I am certainly with the majority on whether hard drugs should be legalized. Are you? Are you calling on Biden to keep criminalization of those drugs in place? On should he, with the smallest mandate in over 50 years, depart from the huge majorities opposing the legalization of hard drugs so that we can have even more teenage overdose deaths than we have now? Inquiring minds want to know!
Bill, the arrest data comes from the FBI, as quoted here in a recent press accounting: “a total of 545,601 marijuana arrests in 2019 — representing 35 percent of all drug arrests — according to FBI’s Uniform Crime Reporting program. That’s down from 663,367 the prior year and 659,700 in 2017.” https://www.marijuanamoment.net/marijuana-arrests-decline-nationally-for-first-time-in-four-years-fbi-data-shows/. Do you consider an FBI report of an arrest to be a “real” arrest or do you want to request some kind of recount?
Notably, the FBI reported that in 2019 there were 495,871 people arrested for violent crimes. Not sure if you would also question that data, but your eagerness to discount hundred of thousands of marijuana arrests per week is telling and part of why I am disinclined to further discuss other drug reform matters here. If you readily discount the data and significance of federal marijuana prohibition’s costs because, for you, this is just “small stuff,” I do not expect a conversation to move forward productively. (I hope basic data and evidence means more to you than to some other former federal prosecutors in the news these days, but maybe not.)
Staying on topic, perhaps you can explain to me why you think it worthwhile to have 10,000 people each week arrested for marijuana offenses — while millions more purchase this product “illegally” from state stores nationwide — because I am eager to hear your substantive case for continued federal prohibition. Perhaps more to the point, why should FEDERAL law continue to categorically prohibit this activity when nearly ever state has now provided for state-legal medical or adult-use of marijuana? If you only endorsed, say, the STATES Act under which federal law respects state law choices here, I could see a principled federalism-based approach to federal reform. But as of now the Beltway bunch blocks and thwarts what people nationwide are saying they want in so many ways — e.g., via clear polling, where medical marijuana often polls at 90%+, and via vote after vote after vote in state ballot initiatives and for candidates pledging marijuana reform (including the Biden-Harris ticket, which won the popular vote by more than any GOP ticket in 30+ years if we want to focus on “mandate” size — which you apparently approach like how Prez Trump judges crowd size).
I am always eager to focus on what “huge majorities” want, in this case federal marijuana reforms, and I am sincerely eager for a substantive explanation of why you are against this reform. I will happily discuss the other stuff after you explain you opposition to federal marijuana reform in light of the “huge majorities” supporting reform. I can only understand your rationales (and perhaps your own inconsistencies) when you explain your views. This comment debate started when you said “President-elect would be prudent to heed what this strong majority wants.” I agree when it comes to federal marijuana reform, and I want a better understand of the justifications for your flip-flopping here. I am never eager to cancel you, Bill, but rather want you to help me better understand how your castle, with seemingly so many rooms, has an intellectual foundation.
Hi Doug —
“Staying on topic, perhaps you can explain to me why you think it worthwhile to have 10,000 people each week arrested for marijuana offenses …”
Oddly, you seem to believe that the “topic” of this post is federal pot prohibition. Wrongo! If you’d look at it, the topic is whether Biden is going to follow through on ACROSS-THE-BOARD lowering of sentences (as his joint agreement with Sanders suggests) or whether he is going to follow the massive majority — 76% — who want no change or STRICTER sentencing. Federal pot law is a small part of that, yup, but only a small part. And it’s yet smaller given that only a tiny percentage of the federal prison population is in for simple possession of pot. (A similarly small percentage of the few given prison sentences for pot were ARRESTED by the feds, now that I think of it). Accordingly, I decline to walk past the gigantic subject of across-the-board sentencing reduction for drugs and everything else — the actual topic of this post and the project to which Biden has seemingly committed himself — to confine myself to what you erroneously take to be the much, much skinnier topic of this post.
I suspect that a major part of your refusal to address the Biden-Sanders agreement in its own terms (which I quoted from your description of it) is that your side is losing so massively everywhere except on pot. You often preach the virtues of looking to data and evidence, and that self-same data and evidence — again, taken from an entry on your own blog — shows that your “get softer on sentencing” side is LOSING BY 55 PERCENTAGE POINTS, 76 to 21.
Your blog is titled, “Sentencing Law and Policy.” Fine, that’s a good topic, and it gets a lot of ink here as well. It is not titled “Arrest Law and Policy,” and for good reason. The Biden-Sanders agreement also discusses specifically sentencing. So the sin I’m committing here is talking about the very thing you and Biden-Sanders talk about. Guilty as charged, your Honor!
Still, I want to be an accommodating man, so I’ll answer your question directly: I support continuing the federal ban because pot, like smack (but certainly to a lesser degree) is an unwholesome and unhealthy substance, and legalizing it at the federal level would send a false and dangerous message that’s it’s actually OK. Since its harms are less than the harms of smack (and LSD and meth and the other stuff you want to pretend shouldn’t be in the discussion), it should be less harshly punished, and it IS less harshly punished. Indeed, it’s barely punished at all. But in my view, some legal sanction remains warranted.
And there’s this too: I generally oppose having the government fix for people what they can easily fix for themselves. Self-reliance and all that. The way to avoid even the minimal penalties for pot possession is — ready now? — don’t possess pot! Wasn’t that easy?
Well it might be easy, I can hear you say, but it’s an infringement on liberty. And that’s true, but it’s about the most trivial infringement I can think of. I mean, really. If we were talking about infringements on speech or assembly (got your COVID rules handy?) or religion (ditto), yes, that would be serious stuff, very much worth your time and mine. But it isn’t. Going through life without smoking a joint is, let’s be blunt, not a hardship worth a great deal of puzzling over. Indeed, it’s not a hardship at all. It is, to the contrary, a benefit.
So I plead guilty to wanting to keep minor sentences for pot to preserve that benefit. I also plead guilty to being part of the 76% who oppose the willy-nilly lowering of sentences — a three-quarters majority that you seemingly want to push behind the curtain.
The post was about whether Biden will do “what America wants,” and I highlighted that America’s views on marijuana reform are very clear and should lead to reform if Biden does what America wants. But, unsuprisingly, Bill Otis does not want Biden to do what America wants when it is not what Bill Otis wants. So be it, but if you are going to urge elected official to be guided by Gallup polls, realize where that can lead.
Meanwhile, if we are to focus on what might be wanted when it comes to federal sentencing reform, I think it notable that the last two Administrations have both supported significantly lowering lots and lots and lots of federal sentences — Obama via the Fair Sentencing Act and the drugs -2 amendment; Trump via the FIRST STEP Act. Notably, the increase in good-time credits in the FIRST STEP Act did amount to an “ACROSS-THE-BOARD lowering of sentences” for all federal prisoners, and there were lots of other sentence reducing provision in their that got super-majority support in both the GOP-controlled Senate and House in 2018. Are you accusing Prez Trump and the GOP Congress of pushing most Americans behind the curtain. If you really follow modern federal sentencing reforms (which I am not sure you do), you should see how silly it is to claim that any sentence reductions must be against the will of the people given that so many representatives of both parties have voted repeatedly to reduce federal sentences in significant ways over the last decade (reducing the federal prison population by about 30% along the way).
Meanwhile, I am sure the AOC crowd will be so very pleased to have Bill Otis on their side when they seek to have federal law prohibit a wide array of substances and activities they consider to be “unwholesome and unhealthy,” ranging from using handguns to burning fossil fuels to cigarettes and sugery sodas and transfats and fast foods. Heck, I believe many on the left sincerely view the police and prisons as “unwholesome and unhealthy,” and it is telling that you think that the federal government can and should feel empowered to criminally punish whatever you might consider “unwholesome and unhealthy.” Since we have not engaged here in a while, I forgot what a big federal government guy you were. I guess you should be excited that the era of government seems to be making a comeback.
“Since we have not engaged here in a while, I forgot what a big federal government guy you were.”
Now let’s see. One person on this thread gets a government salary and one person doesn’t. Let’s guess who is which.
“I guess you should be excited that the era of government seems to be making a comeback.”
It never left. DJT never even pretended to be a small government guy, and neither will Joe.
As to the government’s criminalizing “unwholesome and unhealthy” stuff: First, I’m glad you don’t dispute that pot is unwholesome and unhealthy, which is why no smart person, including you, encourages his kids to do it. Second, lines must be drawn, right? Isn’t that what law is about? And where exactly the criminalization line is drawn by definition is going to create marginal cases on both sides, be it about fatty foods or sugary drinks or anything else. And one can make debating points about that, sure, but debating points is all they are. Many on your side of the pot question absolutely don’t want to legalize heroin, for example, so if we are to get into line-drawing debates, maybe you should start with them. Good luck there!
“The post was about whether Biden will do “what America wants…”
Well, that’s close. It’s about where America wants to go, overall, on criminal justice — get tougher, stay where we are, or get softer. By a gigantic 55 percentage point margin, it does NOT want the agenda you’re pushing, that is, comprehensive lowering of sentences.
Can we agree on that? I mean, I didn’t make up these numbers. There they are.
Of course, that does not mean that it wants absolutely no sentences lowered for anything ever, and a lowering of simple possession pot sentences is the result. OK, fine. What about everything else? Murder? Rape? Robbery? Child molesting? Carjacking? Identity theft? Smack? Meth? Ecstasy? That is the real world of criminal law, not smoking a joint, and I’d love to know how the decarceration movement squares itself with the poll your own blog entry featured. Maybe you should ask that that self-same AOC, who is much more in your camp than mine.
I guess I’m left wondering what you think the poll you featured means. Does a poll where “don’t get softer” outnumbers “get softer” by better than three-to-one, what should we take from that? Is such a lopsided majority just nuts? Racist? Puritanical? It must mean something or you wouldn’t have written about it. So what does it mean?
Bill, I suspect the Gallup poll reflects the tendency of the public to focus on high-profile cases like Felicity Huffman or Brock Turner when thinking about the severity of our punishment system, but you know those cases are relative outliers and do not fully capture the “real world of criminal law.” (I will readily note that cases like Weldon Angelos are also relative outliers.) The poll numbers it might also reflect the low “clearance rate” for many serious crimes, which I think we’d both like to see improved. It might also reflect some of the chirping we hear, mostly from the left, about supposedly so much white-collar crime being unaddressed. And the trends f the last few decades are interesting to watch going forward.
But you conveniently leave out the Gallup finding from the same poll that “more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).” So, by nearly a two-to-one margin, it seems Americans would like more big government dollars to go to social services than to continued bloating of our punitive criminal system. So, if we want to take direction from Gallup polling, it seems there is “lopsided majority” favoring limiting the severity of our system if cost savings are used to address social and economic problems in other ways. I am certain that is exactly what the (mainstream?) decarceration movement is advocating — and I am proud to be part of a government institution that spends taxpayer dollars seeking to educate our citizenry rather than seeking to cage them longer. But I understand you might still think we get a better taxpayer return from bars rather books, cages rather than classrooms. Seems like a poor investment, especially with respect to “crimes” like marijuana activity (which is unhealthy for some, but seems to provide real medical benefit for other, and always seems less “unwholesome and unhealthy” than an arrest for private, personal behavior). Do you recognize that, for many persons, an arrest is more “unwholesome and unhealthy” than marijuana use? The widespread public support for ending federal marijuana reform is clearly based in this view.
Ttellingly, and undiscussed by you so far, is the fact that Prez Trump via the FIRST STEP Act pushed an “ACROSS-THE-BOARD lowering of sentences” for all federal prisoners, and this law got super-majority support in both the GOP-controlled Senate and House in 2018. Moreover, Prez Trump bragged about this GOP achievement on the campaign trail, and he promised to do more criminal justice reform if reelected. But he was defeated by a candidate who promised to be even more of a criminal justice reformer. Because elections have more consequences than polls, I am looking forward to seeing if a Prez Biden lives up to his campaign promises.