Perhaps it is chemo fog, but I’m getting soft on crime

I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines. See, e.g., Prepared Testimony of Richard G. Kopf, United States District Judge, District of Nebraska for the United States Sentencing Commission, Washington, D.C. (presented on Tuesday, February 15, 2005) (asserting that district judge’s should be required to provide a “plainly superior, principled reason why the advisory Guidelines should not be given decisive weight” when sentencing particular individuals).  Given that background, I write today about statutory minimum sentences and the evolving controversy about whether they should be retained.

Reducing federal prison populations is all the rage. Some want to do it for monetary reasons, but others want to do it because they believe there are “non-violent” drug dealers sentenced to terms of federal imprisonment that are far too long and those long sentences fall disproportionately on black and Hispanic people. Whatever the motivation, Congress is considering slashing or doing away with mandatory minimum sentences.

This week thoughtful and highly regarded former prosecutors, including two men who served with distinction as Attorney General, sent the Senate majority and minority leaders a letter opposing reduction of mandatory minimum sentences for drug dealers.  One of the signatories, former Attorney General Mukasey served 18 years as federal district judge sentencing people. These folks are brilliant, tough, and experienced and they are motivated by an intense desire to protect the public from the drug predators that currently prowl about in numbers that would stagger the uninformed.

The letter reads as follows:

May 12, 2014

The Honorable Harry Reid
Majority Leader

The Honorable Mitch McConnell
Minority Leader

United States Senate
Washington, DC 20510

Re: Federal Criminal Sentencing Reform

Dear Majority Leader Reid and Minority Leader McConnell:

As former government officials who served in the war on drugs, we care deeply about our nation’s system of justice. During our tenure, we labored to see that justice was well served, the guilty punished and the innocent protected. We recognize the ongoing need to continue to improve how the nation deals with crime.

Significant components of our statutory framework for sentencing lie at the heart of our nation’s success in confronting crime. Collectively, these sentencing measures have helped substantially to reduce crime throughout our nation over the past thirty years. A series of laws, beginning with the Sentencing Reform Act of 1984, have dramatically lessened the financial and human toll of crime on Americans. Critical to these laws has been the role of mandatory minimum sentencing and the exercise by Congress of its Constitutional prerogative to establish the minimum of years of detention served by a federal offender. While federal judges are properly entrusted with great discretion, strong mandatory minimums are needed to insure both that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences. In addition, and of central importance, prosecutors use strong mandatory minimums, along with safety-valves built into the current system, to induce cooperation from so-called “smaller fish,” to build cases against kingpins and leaders of criminal organizations.

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals. We are concerned specifically by proposals thatwould slash current mandatory minimum penalties over federal drug trafficking offenses — by asmuch as fifty percent. We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law foralmost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperationand, thus, breaking down drug conspiracies, large criminal organizations andviolent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

Sincerely yours,

William P. Barr
Former United States Attorney General

Michael B. Mukasey
Former United States Attorney General

Samuel K. Skinner
Former White House Chief of Staff and Former United States Attorney, Northern District of Illinois

William Bennett
Former Director of the White House Office of National Drug Control Policy

John P. Walters
Former Director of the White House Office of National Drug Control Policy

Mark Filip
Former United States Deputy Attorney General

Paul J. McNulty
Former United States Deputy Attorney General and Former United States Attorney, Eastern District of Virginia

George J. Terwilliger III
Former United States Deputy Attorney General and Former United States Attorney, District of Vermont

Larry D. Thompson
Former United States Deputy Attorney General and Former United States Attorney, Northern District of Georgia

Peter Bensinger
Former Administrator, Drug Enforcement Administration

Jack Lawn
Former Administrator, Drug Enforcement Administration

Karen Tandy
Former Administrator, Drug Enforcement Administration

Greg Brower
Former United States Attorney, District of Nevada

A. Bates Butler III
Former United States Attorney, District of Arizona

Richard Cullen
Former United States Attorney, Eastern District, Virginia

James R. “Russ” Dedrick, Former United States Attorney, Eastern District, Tennessee and Eastern District, North Carolina

Troy A. Eid
Former United States Attorney, District of Colorado

Gregory J. Fouratt
Former United States Attorney, District of New Mexico

John W. Gill, Jr.
Former United States Attorney, Eastern District, Tennessee

John F. Hoehner
Former United States Attorney, Northern District, Indiana

Tim Johnson
Former United States Attorney, Southern District, Texas

Gregory G. Lockhart
Former United States Attorney, Southern District, Ohio

Alice H. Martin
Former United States Attorney, Northern District, Alabama

James A. McDevitt
Former United States Attorney, Eastern District of Washington

Patrick Molloy
Former United States Attorney, Eastern District, Kentucky

A. John Pappalardo
Former United States Attorney, Massachusetts

Wayne A. Rich. Jr
Former United States Attorney, Southern District, West Virginia

Kenneth W. Sukhia
Former United States Attorney, Northern District of Florida

Ronald Woods
Former United States Attorney, Southern District, Texas

Reprinted from Crime and Consequences.

I agree with much of what is contained in the letter.  In particular, and despite weak liberal reasoning to the contrary, harsh federal drug sentences have undoubtedly reduced federal crime rates for drug offenses to record lows. Mandatory minimum sentenced undoubtedly help prosecutors squeeze lesser drug dealers so that the prosecutors can get at bigger fish. To say that the federal prisons are largely comprised of “non-violent” drug dealers defies the reality of the terribly vicious and violent drug business. Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.

But I have come to the conclusion after these twenty two years that mandatory minimum sentences for drug offenders should be totally eliminated or at least scaled back such that they play no part in most federal drug cases. Here, in summary fashion, is why I have come to that conclusion:

  1. If Congress intends to maintain the Sentencing Commission and the ideals behind the Sentencing Reform Act of 1984, which is my paramount desire and concern, then mandatory minimum sentences must go.  It makes no sense to give the Commission the power to build a rational and empirically driven sentencing scheme and then instruct the Commission that no matter how rational and data-driven that scheme might be the design must be arbitrarily altered by fixed numbers.  If we are to have a panel of thoughtful sentencing experts backed up social scientists of high repute (the Commission) Congress must set the Commission free.
  2. We must decide who sentences.  Statutory minimum sentences essentially bifurcate the act of sentencing between the Executive branch and the Judicial branch.  The prosecutor picks a sentence of a certain number of years (the statutory minimum) and anything more is left to the judge. This dichotomy is both theoretically confusing and it also practically produces sentencing disparity by allowing prosecutors to pick and choose when “they will sentence” and when they will allow the sentencing judge to fully perform the act of sentencing.
  3. If the coercive power of a statutory minimum to obtain cooperation is necessary, the Commission could implement a rationalized but far more consistent equivalent by rewarding offenders who cooperate with the government.  For example, think of the role reduction Guidelines as model. Through a similar Guidelines approach, a cooperating individual might receive anywhere from a one point reduction and up to a four point (or greater) reduction for cooperation if sought by the government and approved by the judge. The Commission has always been sensitive to the interests of the Department of Justice and there is no reason to think that future Commissions, unconstrained by statutory minimums, would ignore the legitimate needs of DOJ.
  4. The authors of the letter add that they fear the Commission is moving to otherwise reduce drug sentences and imply that elimination of mandatory minimums is an example of a Commission gone rogue. No one who has followed the Commission over the years would classify it as soft on crime. While prosecutors may think the Commission is going too far reducing base offense levels for drugs, the cure for that is a debate with the Commission and not the blunderbusses of statutory minimums.

So, there is my story and I’m sticking to it. If I am getting soft on crime, then so be it.


40 responses

  1. Mandatory minimums should go, in my opinion. If a defendant deserves what WOULD have been the mandatory minimum, then the sentencing judge can still impose it. But there are indeed defendants who were not those envisioned by Congress, who get caught up in them. And those individuals frequently have nothing to give in order to get the reduced sentence because… they were not the individual envisioned by Congress. Most of the US Attorney’s office appears to believe that their job is to convict everyone and get the highest sentence possible. Makes one wonder why our country has such a high incarceration rate comparatively and why we spend so much money on it, doesn’t it? What happened to their mission being to find the truth? I am beginning to feel that the prosecutor should have no input into the sentence. He brought the defendant to the attention of the system, charged him and maybe it should be left to others to pick the sentence. There is an advisory guideline range. There is a defense attorney who can argue on behalf of the defendant to make sure the court has as much information as possible. And there is a judge who is a well-reasoned legal scholar (or supposed to be if he’s not) that knows their responsibility under section 3553(a). Why not the judge and a voice for the defendant? Instead it’s the government and the probation officer arguing for a high sentence. Just seems there’s a better way.

  2. Judge:
    As a political conservative who is extremely tough on law and order type issues, I do not believe that the supposed “evils” which led to the creation of the Sentencing Guidelines (to quote the above letter “…that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences.”) justify same. As I have written here previously, it is wrong as a matter of principle to take away a judge’s prerogative in sentencing defendants. To accept that premise, judges would be free to exercise discretion in various ways without regard to the charge a prosecutor filed or whether the defendant was worthy of leniency. The upholding of that principle seems to me to be worth the occasional inconsistency in sentencing or the excessively lenient sentence. But please note that I am open to being persuaded otherwise.

  3. I enter in only to challenge on of the basic presumptions of the argument that strong sentences have “kept us safe” and reduced crime rate. The inference being that a change in the laws will result in a large spike in crime. It is true that strict laws have had an impact in reducing crime. However, social scientists have actually attempted to quantify that impact and found shocking (to me) results: namely that legalized abortion has produced a far, far larger effect on the reduction of crime rates than any other factor. I am posting to links of that social science research (Published in the University of Chicago, Quarterly Review of Economics) to guard against the inevitable comment that I am in favor of abortion or some other incendiary remark.

    Click to access DonohueLevittTheImpactOfLegalized2001.pdf

    I think everyone should think very hard about attributing lower crime rates to, what are in my opinion, draconian sentences laws. They do have an effect, which I am not disputing, but the effect is much smaller than the “credit-takers” would admit.

    I concur with you conclusion: whatever merit the sentencing guidelines and commission had when they drug recommendations were empirically based has been lost because of mandatory minimums and other drug specific inflation of sentences.

  4. If prosecutors have that many options in choosing what to charge, than the problem may not be sentences. Seems to me the simplest solution is to consolidate the number of available offenses that someone can be charged with. If you want to curb prosecutorial control over sentencing, that’s the most efficient way.

  5. “Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.”

    Good news for us Pacific Islanders!

    I don’t think you meant anything untoward by mentioning “blacks and Hispanics,” but it does sound odd in the context of the post.

  6. Mark,

    Since much of the reasoning supporting reductions in sentences writ large, and statutory minimums in particular, is based up the disproportionate impact on those groups, I thought I should make it clear that I am not unfamiliar with imposing heavy sentences on blacks and Hispanics. A lot of people think of Nebraska as barren of minorities.

    All the best.


  7. Messenger,

    Correlation is not causation. Must of the stuff you refer to is subject to persuasive and legitimate criticism for methodological flaws. You could also cite the lead paint studies (little minority kids ate paint and that’s why the sell crack), etc.,

    However, I do agree that teasing out how much heavy sentences matter to crime reduction is difficult. What is undisputed is that crime rates have fallen since the Guideline regime was put in place. More importantly, sentencing disparity fell too, although it is rising again (particularly within the same district) as judges exercise their vaunted discretion.

    All the best.


  8. Judge Kopf’s reasons 1 and 2 for abolishing mandatory minimums are much the same as the warrant requirement under the Fourth Amendment: the competitive enterprise of criminal prosecution can (not the same as does) lead to overcharging and misuse of the effective authority to sentence. Far better to have the actual and complete authority to sentence in the judge, the neutral and detached magistrate to complete the Fourth Amendment analogy.

    But the sentencing guidelines for drug crimes remain in need of substantial reform, as they skew too much because of related mandatory minimums and quantity component. Thanks to Scott Greenfield mentioning Judge Gleeson’s opinions in two cases, Dossie and Diaz, I’ve read those along with Judge Bennett’s opinion in US v Hayes and some opinions by Judge Kopf’s colleague, Judge Bataillon; these opinions, in my opinion, make a very persuasive case for amending the sentencing guidelines applicable to drug cases.

    Finally, the worst of the mandatory minimums, in my experience, was the 5 grams of crack cocaine gets 5 years mandatory, which is not thankfully a thing of the past, and now is the marijuana plant, (100 plants = 5 years, 1000 = 10 years) mandatory minimum, which does not distinguish between an actual harvestable, marketable plant and an infant male plant that has no value and will soon be pulled up and thrown away by its grower. In our circuit at least, a plant is a plant is a plant and this had led to some unjustly long sentences. On the other hand, marijuana cases, which were once fairly frequent in these parts, are now few and far between.

  9. While I think the abortion/crime link is probably spurious,* that doesn’t imply that federal sentencing severity might not also be a spurious correlation. By way of evidence, I give you America’s control population – Canada.

    Canadian crime rates peaked at 10,000 crimes per 100,000 population in the early 1990s, and have declined since then to under 6,000.

    During this timeframe, Canada embraced a sentencing reform which substantially reduced prison terms, and specifically embraced using a system of conditional sentences in many cases, with an express goal of using imprisonment as a last resort. Conditional sentences are of the type you’d see in drug court in many US jurisdictions. The law in question is Bill C-41 (1996).**

    *For many funny, even more spurious correlations, check out this site: Did you know there’s over a 99% correlation between the divorce rate in Maine and the per capita consumption of margarine?

    **Keep in mind that all criminal law in Canada is handled at the federal level. Provincial courts and police are authorized to enforce many of those laws, but the lawmaking power over criminal acts rests ultimately with the Parliament.

  10. Robert,

    I will make a quick point. I don’t care so much that sentences by any judge are too low. I care deeply that in the same district sentencing the same offense conduct with the same criminal history has and is resulting in sentences that are widely divergent. In other words, dope dealer 1 does a lot more time than dope dealer 2 only because I sentenced dope dealer 1 and my colleague sentenced dope dealer 2.

    All the best.


  11. You’re not “soft on crime” but able to understand what an abysmal failure mandatory minimum sentences have been. Your approach makes a lot of sense and, hopefully, voices like yours will lead to reform. Thanks for speaking out.

  12. Dear Robert,

    I am all for lowering the Guidelines for drugs and developing algorithms for sentencing ranges that are based upon the Commission’s best judgment. I am not wowed by Judge Gleason, Judge Bataillon and others who develop their own. They are brilliant and wonderful people, but, and without trying to start a debate, that is not their job and, frankly, they lack the expertise that only the Commission possesses. All the best.


  13. Peter H.,

    Just because John Candy thought about invading Canada does not make Canada, its people, its customs or its laws even vaguely analogous to the United States when it comes to crime control. Put more simply, Canada is to the United States as Canadian bacon is to bacon.

    All the best.


  14. Messenger,

    Clarification: I was going too fast when I wrote about the lead paint study. Basically, it concluded that crime rates fell when lead paint was removed from inner cities. Supposedly, that was because young minority kids were not brain damaged by eating lead paint and thus less likely to turn into criminals.

    All the best.


  15. The first sentence of 2. “We must decide who sentences.” is the central problem in my opinion but there is a secondary serious problem involving eligibility for parole and two problem are often lumped together. I think it would help if they were treated as separate issues and there was more transparency with repect to the parole process.

  16. John,

    There is no parole in the federal system. There is “supervised release” which is very different.

    All the best.


  17. Fair enough. Thanks for taking the time to share your views on this topic. And glad that you’re maintaining your sense of humor going through the chemo.

  18. On occasion we supervise some of your folks with our parole and probation officers. If our people mess up we turn them over to the Dept. of Corrections and if your folks mess up we trun them over to some federal agency. When they are in the community there is little difference.

    I guess the difference is how they get released and that does not seem to be very transparent.

  19. Peter H.,

    I hate Moore except when I love Moore. All the best.


    PS I loved John Candy (a Canadian by the way) without reservation.

  20. John,

    The federal sentencing system is built on the idea that the sentence pronounced is what the defendant will serve (less 54 days a year for earned good time). The judge, at sentencing, and not a board later, sets both the length of post-incarceration supervision and the terms. This is called supervised release.

    If there is a violation of supervised release the sentencing judge decides if there has been a violation and if so the additional time that may be served in prison which normally may not exceed five years depending upon the severity of the underlying crime. The offender is supervised by a US Probation Officer, but there are times when that probation officer get courtesy help from local state authorities.

    In short, federal supervised release is handled differently from most state parole procedures. Hope this helps.

    All the best.


  21. Dear Julie,

    Three quick thoughts:

    1. As a normative manner, you and I disagree on who is important at sentencing. You believe the defendant is the most important. I don’t. I think the defendant and the public are the most important.

    2. Given point 1, I always want to hear from the prosecutor.

    3. US Probation officers are employees of the judiciary. Their job is to provide an unbiased presentence report that objectively advises the judge of the facts, application of the Guidelines (including whether the facts warrant a variance) to the facts, and the officer’s views about the proper sentence. Federal probation officers are employed by and work for we judges rather than the prosecutor or the defendant. The advice I get from the probation officers, including any sentencing recommendations, is almost always unbiased and very helpful to me.

    All the best.


  22. Good point on the public. I had not thought of that. I will have to consider that more and I do appreciate that insight (as well as many others I have gotten here). Still, prosecution and probation befuddle me. They seem to be geared to getting the defendant the highest sentence possible. Sometimes, deservedly so. But I rarely see either concede that the defendant’s sentence should be lower than the guideline range. Just seems that the law of averages would dictate that some cases should receive lower sentences. Good chance is, I would have to work those jobs to understand.

  23. Though unrelated to statutory minimum sentences for drug-related offenses, a U.S. District Judge in Norfolk, Va., where I practice, just sentenced a defendant convicted of piracy to 41.5 years imprisonment, even though the statutory minimum for piracy is life. The Virginian-Pilot has the details here:

  24. Judge:

    Sorry, but you were not appointed for life to conduct sentencings by rote, without using your judgment and experience. Perhaps you should consider whether or not prosecutors and politicians who wish to be “tough on crime” have a better perspective on proper sentencings than you do. I’m sure the Guidelines make your job easier by bypassing any discretion on your part, but if so, why not use a computer to sentence? Are Article III Judges nothing more than rubber stamps? If they are, it’s a distortion of the intent of the Constitution.

    Further, the letter you quote is rife with conclusions without facts, like the assertion that crime has been reduced. It hasn’t. If you wish, I’d be happy to supply facts but perhaps the mere increases in state and federal prison populations put the lie to the assertion. Plus, the fact of incarceration has created a vast class of people who are functionally unemployable and actually bitter. These people, almost without exception (there are rare exceptions) can never become good citizens again.

    Using possible sentences as a crowbar to force plea bargains is also (in my mind) beyond the pale as a purpose for statutes, let alone sentencing. Personally, I believe that NO criminal case should be subject to a plea bargain – all should either result in an open guilty plea or a Trial. The proceedings to incarcerate or kill any defendant should not be streamlined in any way.

    I apologize, Judge, but I’m greatly disappointed that any Judge, state or federal, would willingly relinquish any part of his discretion, especially in sentencing.

    Russ Carmichael

  25. Dear Russ,

    Don’t be sorry. Your strong views are held by a lot very smart lawyers and very smart federal judges.

    My view is that judges generally are no better than well informed lay people when it comes to selecting sentences. That being the case, and being very worried about sentencing disparity, I like the Guidelines because the Commission and its staff have the capacity, if Congress sets them free, to help judges really think through the act of sentencing in a rational way through use of the Guidelines.

    All the best.


  26. Julie,

    We now require our probation officers to explicitly address whether there are grounds for a variance and the extent of a variance. I am getting recommendations for variance in a sufficient number of cases (particularly in child porn cases) that are extremely thoughtful such that I am convinced probation is taking our directive to heart.

    As for prosecutors, remember that line AUSAs seldom have discretion to agree to a variance. That said, experienced line AUSAs who appear before me frequently “submit” variance motions without argument (except to say the government opposes a variance) when they know I am about to grant one.

    Anyway, I feel lucky to work in the sticks.

    All the best.


  27. Mathew,

    The latest statistics show that the District of Nebraska ranks 8th in the nation with 229 criminal cases per judge. By comparison, EDNY ranks 75th in the nation with 59 criminal cases per judge. We have a huge drug docket.

    With the foregoing in mind, let me say that Judge Gleason, a former prosecutor, is a very bright guy and I have the highest regard for him. As for drug courts, I seriously doubt that they would work here because the great bulk of our potentially eligible folks would fail as shown by our detention rates following drug treatment we provide at our cost and because specific and general deterrence require a prison term for the vast majority of the drug defendants.

    All the best.


    PS My old law partner, who I hold in high esteem, is a state court trial judge who has been honored by the Nebraska Supreme Court for his work with drug courts. I am not against drug courts.

  28. I won’t fake expertise I don’t have–for all I know, you’re right that drug courts won’t work there and right about why. But my impression is that Gleeson wouldn’t share your serious doubts. He described his own prior ‘it can’t work here’ certainty, and how common such certainty is before an honest effort is made, but he said when it’s done right the results speak for themselves. I don’t know if he’s right.

    I appreciate your reply, and I appreciate much more your thoughtful engagement of the issue.

  29. Mathew,

    We don’t use a drug court, but we are doing something special with offenders after they get out of prison and are on supervised release. It is called Moral Reconation Therapy. Here is a good link. Sixteen of our probation officers have been trained to use MRT. We don’t have good statistics yet, but we do think it is likely to reduce recidivism, particularly during supervised release.

    Here is a further brief description from our probation chief: “[The] various duties with MRT include, but are not limited to: facilitating the weekly groups, meeting with offenders individually after group to help them complete their necessary course work, collaborating with community agencies, meeting as a team to ensure program consistency, and conducting district-wide graduation ceremonies for offenders. Also two of the team members conduct quality assessments on the groups and their respective facilitators to ensure quality and consistency. Additionally, the MRT team tracks completion and revocation rates. During 2013, our revocation rates for graduates was lower than that of the offenders who had not participated in the MRT programming.”

    In fact, our probation office was recognized this week at the local Federal Executive Association’s Awards luncheon. The MRT team was one of seven nominees in the team category. Our MRT team was the winner. The six other nominees were the Construction Security Team from U.S. Stratcom; HQ AFWA Scientific Team from the U.S. Air Force Weather Agency; National Interest Waver Physician Team from the U.S. Citizenship and Immigration Service; Omaha Area OSHA Office; Offutt Air Force Base Information Infusion Team from the 55th Wing; and the USDA Rural Development Team from the U.S. Department of Agriculture.

    MRT is not drug court. That said, I think that it is far more realistic approach for the very rough offenders we typically see out here where the wind never stops blowing.

    All the best.


    MRT is similar to cognitive behavioral therapy (CBT) in the free world. CBT is very practical and so is MRT. MRT is specifically designed for offenders, however.

  30. Judge Kopf – I’m glad to see you address these issues. In my view something is woefully wrong with our justice system given the astonishing number of folks we have incarcerated since the advent of the war on drugs. I think you give way to much deference to the sentencing commission. There are many powerful studies demonstrating the capricious nature of many of the guidelines. I can email you some if you’d like.

    I don’t think this is something that is all the rage, quite frankly. We’ve got a broken system and folks are finally realizing that it needs fixing.

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  32. Tom,

    I am familiar with the many criticisms of the Commission and its work. I don’t think any of the studies show, however, that the Commission’s work can fairly be described as capricious. Wrong headed perhaps. Insufficiently grounded in statistics, perhaps. Influenced by statutory minimums set by Congress, no question.

    All the best.


  33. You said: “What is undisputed is that crime rates have fallen since the Guideline regime was put in place.”

    The connection of the Guideline regime with falling crime rates is exactly the relationship I am calling into question. In your own words, “Correlation is not causation.” I might add, the connection of the the Guideline regime and falling crime rates has a much weaker correlation than the abortion/crime rate example I cited.

    In the study I cited above, they said increased penalties for crime accounted for approximately 30% of reduced crime – but I am not aware of that being connected to only federal laws. Presumably it would include state laws as well. Furthermore, the specific part of the guidelines we are discussing, i.e. mandatory minimums, would be responsible for an even smaller part of any correlation the guidelines regime could legitimately claim.

    Do you think it is possible attorney’s general and other government officials are taking credit to make themselves look good and to accumulate more power for their region of the government? I do. I also think judges and lawyers (like ourselves) are much more likely to see the correlation (not causation) relationship between falling crime rates and our own work because we are inherently self-important creatures (all of us) who want to believe it is our own efforts that created a positive impact. The need to believe in the causation relationship is amplified when compared to the alternative idea that our work did basically nothing but a policy we absolutely abhor (legalized abortion) brought about the result (reduced crime rates) that we made central to our lives. It’s the kind of punch in the gut that must be dismissed with a quick statement that “causation is not correlation” while immediately crediting and even thinner correlation (not causation) connection in the same breath. I mean who wants to confront the conclusion that the best way to have made a personal impact on reducing crime rates would have been to be an abortion doctor rather than a judge, lawyer, cop, etcetera? That is a truly scary thought.

    By the way, in the end we agreed on the policy. So, please don’t misunderstand my point. I just don’t like how the AG’s are waving the “safe community” card in support of mandatory minimums. The AG’s using an unsupported argument that strongly resonates with people for all the wrong reasons (i.e. I am scared = keep me safe = give these guys huge power). It bothers me even more because I just don’t think mandatory minimums are good policy. I would rather a judge, such as yourself, think about a situation and do their best to find justice. Their argument just rubs me the wrong way. Forgive me for my sensitivity to one particular argument made by the AG’s and please don’t ban me :).

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  35. Don’t Shoot the Messenger,

    I agree that it is impossible to tease out of the state/federal crime rates the precise extent to which the Guidelines are correlated with the reduction in crime rates. I also agree that the the AG-letter drifts off into “soft on crime” sophistry. Finally, I agree that your well-argued comment warrants no ban but it might in the future if you and others continue to use emoticons.

    Every time I see one of those damn emoticons, I get scared and confused. They always seem to be looking directly into my soul with a nasty and creepy smirk. Something like: “Come here little boy and I will [fill in the horrific of your choice].” As I reread this response I realize it is becoming far too psychoanalytic. So, I will stop now and go gaze upon my navel.

    All the best.


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