Should Felons Decide What Sentences Felons Deserve?

Sentencing Law and Policy has this thought-provoking post urging President Biden to make filling Sentencing Commission slots a priority, and recommending  —  you’ll never guess  —  “diversity.”  But it’s diversity of a notable kind.  The post’s final paragraph tells the story in only slightly scrubbed language:

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

What to make of the suggestion that the inmates should decide how long other inmates remain in the asylum?

It had previously been thought that living a decently law-abiding life, and thus showing respect for the property and safety of those around you, as well as an understanding of the need to obey the rules, was a minimum qualification for the Commission.  Knowledge of the theory and legal standards of sentencing practice would be a plus, too.

It is not my purpose here to debate these old-fashioned qualifications  —  not because the debate would be unimportant, but because it would be useless.  I don’t see any way that those who think a life of crime is a “plus” for a seat on the Sentencing Commission are going to get their minds changed at this point.

So instead, I’d like to explore the specifics of the diversity they seek.  There are, after all, all manner of crimes, and it must be the case that those given to The New Way of Thinking believe that some crimes have more “educational value,” for sentencing purposes, than others.  So I’m going to set out a list of crimes and invite readers to hold forth on which have the greatest value as qualifications for a seat on the Sentencing Commission.

—  Child rape.

—  Fleecing old people out of their life savings.

—  Carjacking in which a weapon was (1) discharged, or (2) merely brandished (choose one).

—  Human trafficking, especially of little girls.

—  Selling overdose levels of heroin to an addicted 15 year-old.

—  Revenge porn.

—  Identity theft to destroy the financial foundations of 100 young couples.

—  Burning a cross on a black neighbor’s lawn.

—  Polluting the water supply of a small city.

—  Murder for hire.

Now that’s only ten.  Obviously I’m leaving out lots and lots.  But we have to start somewhere!  Six of the seven Commission seats are vacant, so we need a sense of urgency in prioritizing what sort of criminal background would be most “beneficial” in getting the Commission up and running.

P.S.  Bonus points for making an an argument as to why, as the SL&P post explicitly notes, we should look not merely to former, but to “present prison inmates.”  Yet more bonus points if the present inmate is in disciplinary confinement for slashing a cellmate’s throat for refusing sexual favors.  And still more bonus points for making the case that this sort of criminal or that should be, not merely a Sentencing Commissioner, but a federal judge  —  such judges having considerably more power over individual sentencing than mere Commissioners.


13 Responses

  1. Douglas Berman says:

    Thanks for noting my post, Bill, though I think it much more helpful to focus on the actual people I have in mind with “relevant things to say about” our criminal justice systems. I could likely list hundreds of persons who were once incarcerated who may know more about criminal justice realities than you and I combined, but here is a ready diverse (and alphabetical) list focused only on persons who served time in federal prisons:

    Weldon Angelos
    Conrad Black
    Christopher Bryant
    Jose Compean
    Ricky Kanter
    Michael Milken
    Pat Nolan
    Jon Ponder
    Amy Povah
    Ignacio Ramos
    David Safavian
    Topeka Sam

    Notably, these folks were convicted of a variety of federal crimes, though mostly drug, firearm and fraud charges that are the mainstay of the federal docket, and I sense they all represent a diversity of backgrounds and personal/professional experiences. They all share the distinction of receiving a pardon from former Prez Trump. (I could likely add dozens more from the Trump commutation list.) Of course, there are lots of other former federal inmates who know a whole lot about our CJ systems — folks like Shon Hopwood and Piper Kerman and Kevin Ring come to mind — who have not yet won the clemency lottery.

    If we were to look to state experiences, which I strongly believe the USSC ought to do a lot more, I could readily list dozens more individuals with distinct and important insights who served time in state systems. Brandon Flood mentioned above and newly elected Washington state rep Tarra Simmons come readily to mind, though there are so many more possibilities (not to mention far too many wrongfully convcited persons).

    I would actually like to see Congress expand the size of the USSC so that it would be easier to have a widely diverse slate of commissioners (“lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists” as Judge Frankel advocated). But, even with “only” seven total slots now, I think we are long overdue for people like those I have listed here to have a voice and a vote on how best to improve and advance our sentencing systems.

    I would be eager to hear if you think not a single one of the 17 names I have provided here should even be considered for a role on the USSC,

    • Bill Otis says:

      — Your blog is a very helpful resource, and I’ll probably be using this space to discuss more of your entries.

      — The main thing wrong with putting criminals on the USSC is that they are overwhelmingly likely to have a single-minded and reflexive agenda, to wit, less accountability for criminals (which I strongly suspect is why you want them on, no?). I don’t want a single-minded, pre-packaged agenda. I want an open-minded agenda, and preferably one steeped in knowledge of modern sentencing law.

      — The other thing wrong with your suggestion is that persons holding positions of public trust and responsibility should have a lifetime record of responsible, civic-minded, honest accomplishment. Dealing drugs, stealing, cheating, swindling and alien trafficking just don’t come to mind.

      — I recognize only four of the 12 names (Angelos, Lord Black, Milken and Nolan). None has the character I want to see in public officials. Neither do Paul Manafort and Roger Stone, two other recipients of Trump’s bizarre list of pardon grantees. But now that you mention it, being a pardon recipient is itself so massively atypical that recipients would not make representative Commissioners, even looking only at the population of federal felons.

      — Like everyone else of my age who blogs, I don’t take homework assignments. Hence I won’t be investigating the other eight people you (now but not before) mention. This is the same reason I didn’t answer your earlier question about whether the lawyers for the many dozens of Capitol rioters are acting unethically in pleading them not guilty. There is no realistic way I can know the facts in each case well enough to give a sound answer. I can say, and I do, that it’s dishonest for a lawyer (or a defendant) to say something he knows or has strong reason to believe is false. Indeed, that’s the definition of dishonesty. The last thing this country needs is more dishonesty and sleaze than it already has in the legal profession.

      — The list of names you provide includes relatively sanitized criminals (although I see one or two violent ones). But, as is ever the case, I’m willing to give up something in order to get something. Thus, I will publicly support my friend and colleague Shon Hopwood for consideration for the USSC if you, with equal enthusiasm, will support coke dealer Wendell Callahan. I’m all for a full public examination of the Callahan record to see, among other things, what criminals who’ve been given leniency do with it.

      — Just as you’re interested in the 17 names you give, I’m interested in whether you would support for the Commission a person convicted for any of the ten kinds of crimes I listed in the entry. Since those are serious offenses, a person convicted of them would be likely to have felt even more of a sting from the criminal justice system, and thus, under the criteria you seen to espouse, would be yet better able to tell us how it should be improved. Indeed, someone given a federal death sentence — Tsarnaev, for example — would have maximal knowledge of the system’s harshness. Do you think, therefore, that Tsarnaev has a maximal case to be placed on the Commission? If not, why not?

      • Douglas Berman says:

        Bill, the suggestion/contention is not that EVERY person convicted of any crime is a good candidate for the USSC, but rather whether ANY of the 75+ million adults with some kind of criminal record could have a uniquely valuable perspective to add to the USSC’s work. On a multi-member commission, I think it valuable to have diverse informed views on the operation of federal sentencing system, and those with perspectives as federal defendants have never been a part of the discussion even though they are the primary subjects of the system.

        Good nominess with (or without) a past criminal record should not have a “pre-packaged agenda,” they should be open minded and be eager to learn from research and the insights of others while also sharing their own distinct insights. I sure hope the many prosecutors/former prosecutors who have served on the USSC did not come with a “pre-packaged agenda” (though I have long been worried about DOJ’s extra thumb on the USSC scale through its permanent ex officio representation.) Would you support having at least one person on the USSC with experience as a defendant for, say, every five or even persons with experience as a prosecutor? So far, we have had 20+ commissioners with prosecutorial experience (as well as many more DOJ ex officio reps).

        I am pleased that you support my proposal in the form of your support for the consideration of Shon Hopwood to the Commission. Can I fairly assert that Bill Otis endorses my suggestion that President Biden should consider nominating at least one person to the U.S. Sentencing Commission guilty of a serious federal crime? (I do not want to be accused of any “dishonesty and sleaze” since I share your concern that we have too many lawyers who seem lately quite comfortable with “dishonesty and sleaze.” I just wish you would castigate the many current and former prosecutors who seem all too comfortable with dishonesty these days — folks like Rudy and Sydney Powell and federal prosecutors in SDNY: Do you share my view that “dishonesty and sleaze” by current and former prosecutors — not to mention Presidents and Senators — can be uniquely corrosive to public trust in lawyers and government officials?)

        As your support for Shon reveals, it should not be too hard to come up with more than a few persons with a criminal record who could garner widespread support for USSC consideration. And that is the whole point: while not every person with a criminal record should be seriously considered to advance federal sentencing policies and practices on the USSC (just like not every law professor or former prosecutor should be so considered), a few should. I am glad we agree on this point, as it is meaningful to have Bill Otis on my “consider persons with a record” bandwagon.

        • Bill Otis says:

          My discussion of Shon was and is conditional only. What I said was, “I will publicly support my friend and colleague Shon Hopwood for consideration for the USSC if you, with equal enthusiasm, will support coke dealer Wendell Callahan.” You just blow past the condition. My goodness.

          In the meantime, I don’t see you supporting Mr. Callahan or mentioning him at all. So the trigger event remains absent.

          As is usual with me, I mean exactly what I write, nothing more and nothing less. But there was, in addition to its text, a lesson in my proposed deal. For every once-in-a-zillion defendant like Shon, there are hundreds or thousands of Callahans. Wendell Callahan is worse than most, but he is representative in a way Shon most surely is not, to wit, he went back to crime. The overwhelming majority of convicts do, according to BJS statistics. That is not a recommendation for the Sentencing Commission or any other position of influence or public trust. It is very much a recommendation against.

          In addition, although I like and respect Shon, I’m quite sure that he comes with a pre-set agenda, i.e., that sentences are too high and must be lowered. The reason you like him is that that’s your agenda, too. But to me, a pre-set agenda, especially one woodenly favorable to criminals, is a significant mark against any prospective nominee. It is not necessarily and forever disqualifying per se, but in order to buy it, it would have to come as part of a very sweet deal. I’m not buying any deal, or even thinking about buying one, until I see all its specifics.

          There are literally hundreds of millions of people in this country who’ve managed to live a life without committing serious crime, who obey the rules, who respect the property and safety of others, and who have empathy for crime victims past, present and future. I’m quite sure that, among THAT gigantic and completely crime-free number, we can find six for the vacant seats on the Commission. That’s where all past presidents have looked, and that’s where Pres. Biden should look as well. And the lodestar for selection should not be to honor people whose own selfish and wrongful choices got them in deserved trouble. It should be to honor the four goals of sentencing Congress established in the Sentencing Reform Act: Rehabilitation if possible; deterrence, incapacitation, and just desserts, including the concept of retribution. A qualified person who has shown by his career that he will respect these goals should never be put behind a person who, disregarding known and important rules of behavior, put himself at the head of the Goodies Line.

          • Douglas Berman says:

            I find it telling that you peristenly cite the high recidivism rates reported by BJS for state offenders prosecuted in the late 1990s/early 2000s and released in 2005 to try to justify not rethinking the policies and practices of the late 1990s/early 2000s. More proof, I suppose, of your own “pre-set agenda,” especially since the USSC has produced much more detailed/up-to-date recidivism reports about federal offenders. Given my eagerness for Commissioners who are “open minded and eager to learn from research and the insights of others,” you reinfroce my belief that Shon Hopwood (and others with a record) would merit more consideration as a Commissioner than some former prosecutors.

            The goal of the Commission is not to “honor” anyone with an appointment, it is to advance federal sentencing policy and practice to achieve the goals you mention. The widespread and forceful criticisms of the work of past Commissions — from so many Justices and judges, from so many members of Congress on both sides of the aisle, and from so many others (including you) on so many grounds — strongly suggest Commissions heavy with current/former prosecutors are not ideal. That you do not even want to imagine how folks like Shon Hopwood or Alice Marie Johnson or Kevin Ring could now contribute to advancing federal sentencing policy and practice is not all that surprising, but it is a useful reminder of why certain former prosecutors may bring wooden agendas to these discussions.

        • Bill Otis says:

          I left out an answer to a legitimate question you posed: “Do you share my view that ‘dishonesty and sleaze’ by current and former prosecutors — not to mention Presidents and Senators — can be uniquely corrosive to public trust in lawyers and government officials?”

          The answer is yes, with the footnote that I would not include the word “uniquely.” Trust in government has been cascading downhill since the Eisenhower administration. Some of it has to do with elected officials, certainly including Presidents and senators. Some of it may have to do with corrupt prosecutors, like the Duke lacrosse hoax prosecutor or the ones who went after Flynn using one slippery tactic after the next. But I know of no study finding that the public “uniquely” distrusts prosecutors. The closest thing I know of, the Gallup poll on respect for professions, finds exactly the opposite: Respect for the POLICE vastly exceeds respect for lawyers, the huge majority of whom are private counsel, not prosecutors.

          • Douglas Berman says:

            Thanks for a reply on this question, which I am now eager to refine circa 2021: Do you share my view that past and continuing ‘dishonesty and sleaze’ by former prosecutors — and a former President and members of Congress and others — concerning the legitimacy of the 2020 election is *uniquely* harmful our democratic institutions?

            For all your attacks on criminal defense attorneys, Bill, I cannot think of any such attorneys who have promoted as loudly and extensively the ‘dishonesty and sleaze’ peddled by former prosecutors Jenna Ellis and Rudy Guiliani and Sydney Powell about the 2020 election. Disconcertingly, their ‘dishonesty and sleaze’ as further promoted by Prez Trump and members of Congress resulted in an insurrection on Jan 6 and continues to infest our political dialogue. (E.g., I see Jenna Ellis on the program at CPAC along with panels that may further perpetuate and amplify various dishonest or sleazy claims about the 2020 election.)

            In short, I do find *unqiuely* troublesome and worrisome the ‘dishonesty and sleaze’ related to claims of the 2020 election being “rigged” and “stolen” through some kind of “centralized … fraud ” Do you?

          • Douglas Berman says:

            If you might still want to discuss our concerns with ‘dishonest and sleaze,” here are a few recent headlines to consider:

            “Lies, disinformation and conspiracy theories are increasingly being embraced as acceptable political strategy, AP investigation finds”

            “At conservative conference, Trump’s election falsehoods flourish”

            I post here because I want you to be 100% confident that I deeply share your concern about ever-declining commitments to honesty and responsible behavior by all sorts of lawyers and other public officials. I just do not see those defense attorneys who are responsibly representing their clients falling anywhere near the heart of our current problems with dishonesty and sleaze. But I do fear folks trying to distract from (or just ignore) the heart of our current dishonesty problems are essentially contributing to them.

  2. Bill Otis says:

    “That you do not even want to imagine how folks like Shon Hopwood or Alice Marie Johnson or Kevin Ring could now contribute to advancing federal sentencing policy and practice is not all that surprising, but it is a useful reminder of why certain former prosecutors may bring wooden agendas to these discussions.”

    Your assertion that I “do not even want to imagine” Shon’s making contributions to advance federal sentencing policy is just breathtakingly false. To the exact contrary, I have said on this very thread that I would endorse Shon for a seat on the USSC, if only you will endorse another former federal convict, Wendell Callahan. But you won’t even mention Callahan. Why not? He has in spades the qualifications you have praised for being on the USSC: first hand experience with the harshness of the system (he had a longer sentence than Shon), early release because of a prior version of “reform” legislation, and then, as you might say, being “caught up again” by the system. These are exactly the experiences you’ve said you want to see reflected in Commission nominees.

    But one way or the other, your assertion that I can’t imagine Shon’s contributing to a discussion of how to improve federal sentencing is grossly, wildly incorrect.

  3. Bill Otis says:

    Doug — Isn’t it the case that by far the predominant reason you want previously convicted felons to be on the Sentencing Commission that you believe (certainly correctly) that they would vote to lower sentences, which is the main thing you want done?

    Let’s see if we can cut to the chase.

    • Douglas Berman says:

      So, Bill, I am supposed to take seriously that you would actually advocate for both Callahan and Hopwood to be considered together for the Commission? To be accurate, can I use your statements here to assert that you are eager to support a ticket of appointments to the USSC that includes a multiple murderer, and/or that you have said you would only support a qualified person like Hopwood if and only when someone else endorsed an unqualified murderer? I have never said or suggested that EVERY person with a criminal record would be a good pick for the USSC, rather I have said that having a record ought not be disqualifying and experience as a defendant could be a plus to be usefully considered along with other factors. You seem to be saying that the one qualified pick with a criminal record you are prepared to endorse should only be endorsed if another unqualified pick is endorsed. I did not take that seriously because we are talking about serious matters, not playing games. But if you want to really play these games, please explain more fully why you think I ought to endorse Callahan for the USSC. You seem to be saying here that Hopwood is worthy of consideration of the USSC, but you want me also to endorse Callahan. If you really want to make the case for Callahan, too, please go ahead an try to convince me I should endorse him.

      If you want to cut to the chase, I am eager to stress that my goal is to have a well functioning USSC that seeks to better serve both our constitutional values and, in your words, “the four goals of sentencing Congress established in the Sentencing Reform Act: Rehabilitation if possible; deterrence, incapacitation, and just desserts, including the concept of retribution.” Most judges and other observers (including DOJ) view the current guidelines as poorly serving these ends because many of the guidelines are unduly severe (which is why, especially for a certain guidelines, a majority of sentences are imposed by judges below the guideline ranges as they apply the 3553(a) factors.

      Notably, most of the guideline changes over the last 15 years have lowered sentences because even a USSC dominated by prosecutors came to see how poorly the severity of the crack guidelines and drug guidelines and a number of others served the federal criminal justice system. But there is a lot more work to do as DOJ recognized in its own advice about the CP guidelines, as many now see the dysfunction of extreme criminal history rules, and as Congress through the FIRST STEP Act plainly signalled it wants continued reforms to reduce sentence severity.

      Critically, though I do think lower sentences will generally continue to better serve congressional goals, there may be research and developments to justify increased sentences in some setting with homicide and gun crimes now increasing. What I want is open-mindedness with respect for critical values and trends as reflected in modern policies and practices. I have long sensed you do not think lower federal sentences could ever advance federal policy and practice — which seems to me the very definition of having a pre-set agenda.

      So I wil ask it this way as we cut to the chase: Do you think lower sentences could serve congressional goals and can you cite to any examples of where you have advocated for lower federal sentences?

      • Bill Otis says:

        “So, Bill, I am supposed to take seriously that you would actually advocate for both Callahan and Hopwood to be considered together for the Commission? ”

        I sure hope not, since under no conditions would I support Callahan for public office of any sort. In fact, I think he should have been sentenced to death. I like and respect Shon Hopwood but I don’t want him on the USSC because he has a predominant agenda (lowering sentences across the board) with which I disagree.

        “To be accurate, can I use your statements here to assert that you are eager to support a ticket of appointments to the USSC that includes a multiple murderer, and/or that you have said you would only support a qualified person like Hopwood if and only when someone else endorsed an unqualified murderer?”

        Here’s a neat idea! Don’t USE my statements, QUOTE them. That way, readers can see what I think IN MY OWN WORDS rather than as put through the washer and dryer.

        If that happened, they would see that at no point and in no way did I offer to endorse a slate with a murderer anywhere on it. I asked whether YOU would endorse Callahan — thinking that Callahan has the features you’ve emphasized in speaking up for “criminal justice system-involved persons” (i.e., felons) to be given Commission seats. Those features are first-hand experience with the system and knowledge of the hardships of incarceration. Callahan certainly has that, no?

        The reason I offered up Wendell Callahan to you was not because I thought you’d embrace him, but because I believed (as it turns out, correctly) that it would nudge you toward this key acknowlegement: In evaluating whether we want to put convicts on the Sentencing Commission, we have to look at WHY THEY BECAME CONVICTS. Now that you do that — better late than never! — you recoil at the notion that a person like Callahan would get anywhere near the Commission.

        Getting that recognition was the whole point of my leading off this entry with a “diverse” list of crimes and then asking readers to rank them in order of usefulness for achieving an astute Commission.

        So the whole deal was to arrive at what I would have hoped would be elementary from the get-go: Being convicted of a federal felony is a strong strike against, not a reason for, putting someone on the USSC.

        “You seem to be saying here that Hopwood is worthy of consideration of the USSC, but you want me also to endorse Callahan. ”

        Nope. I’m saying just what I just wrote: that being convicted of felony is a reason to oppose an prospective candidate for the Commission, not a reason to favor him. It conceivably may not be disqualifying per se, depending on his other qualities and the composition of the slate of which he’s a part, but it’s a negative not a positive.

        “So I will ask it this way as we cut to the chase: Do you think lower sentences could serve congressional goals and can you cite to any examples of where you have advocated for lower federal sentences?”

        I think what I’ve said dozens of times before — that the go-softer era of the Sixties and Seventies saw a crime explosion, while the get tougher era of the Nineties and early Two-Thousands (that is, mostly the Clinton-GWB era) saw a massive lowering of crime, to the great benefit of our people, particularly minorities. Since I like less crime rather than more, I want to preserve the ways that helped us achieve such spectacular success rather than cash them in to go back to the ways that paved the way for failure. That means, at a rock-bottom minimum, that policy makers respect the truth that more incarceration has helped bring about less crime in civil society.

        That said, there is no human system that can’t be improved. If in a discrete area (you have pointed to the CP guidelines) judges from across the spectrum are overwhelmingly of the view that the guidelines are too severe, then that is something we should look at. But we should bear in mind that Congress adopted a Guidelines system at all over judges’ objections, and that sentencing judges were in pretty much open rebellion until SCOTUS put an end to it in Mistretta. So the opposition of sentencing judges, while a factor to consider, should not be determinative.

  4. Douglas Berman says:

    Bill, I think we are making some progess, and I am grateful that your Callahan reference allows me to more fully explain why I think someone like Shon Hopwood could be such a valuable and important contributor to the work of the USSC. As you know, Callahan stands as a failure of our system: he was released from federal prison and went on to commit horrible murders. Alice Marie Johnson is another form of failure: she was due to waste taxpayer dollars serving decades more in federal prison but for Kim Kardashian and Prez Trump. Risk assessment tools and other research now aspire to help us better avoid both types of errors, but I think persons who have actually served time in prison may have distinctly important insights about how to avoid over-incarcerating more Johnsons and under-incarcerating more Callahans. (As I mentioned before, we have had past Commission’s heavy with current and former prosecutors, and the reviews of their work from all quarters has been underwhelming. We ought to look for one or two commissoiners who have served time, have avoided become recidivists, and may have distinct wisdom on how we can avoid both Callahan and Johnson errors.)

    As for judges, I share your sense they should not make all the sentencing rules. And neither should just prosecutors nor defense attorneys nor law professors nor persons with only one particular background. This is why I advocate for diversity on the USSC and why I am troubled that roughly 2/3 of all commissioners have had a prosecutor background. As I said before, I would like to see Congress grow the Commission to facilitate more diversity to advance congressional goals.

    I also like less crime, but I would like that to be achieved at less taxpayer costs and with smaller government. Many states have achieved less crime with less prison punishment in recent decades, and I think the USSC ought to draw on that experience. (“Between 2007 and 2017, 34 States Reduced Crime and Incarceration in Tandem”: Someone like Marc Levin from Texas or Holly Harris from Kentucky would be great picks for the USSC who seem well informed on how we can seek to reduce crime and reduce taxpayer costs and the size of government at the same time.

    Do you share my interest in reducing the size and cost of government as we seek to reduce crime? Or do you measure CJ policies only in terms of crime reductions — will bigger costs and more government always be justified if some measure of crime is reduced?