A to and fro with Scott Greenfield at Simple Justice on the question of bail

Image credit: domainstick.com

Image credit: domainstick.com

Yesterday,  at Simple Justice, Scott wrote about an op-ed piece in the New York Times authored by a lay person (whose biography is lefty)  that advocated that bail should never be required. Apparently, the use of bail, particularly in the New York state courts, remains ubiquitous. Unlike the author of the op-ed piece, SHG unpacked the use of bail with his customary brilliant blend of cynicism and realism.

Anyway, I wrote a comment and the following to and fro resulted:

Me:  According the NYC Comptroller, it costs $96,232 per inmate per year at Rikers. While the federal system (Bail Reform Act of 1984) is hardly perfect, the preference for release and then supervision by pretrial service officers under strict conditions is a decent model. I can’t remember the last time I saw a federal case in our court where bail (money) was required.

Of course, we also engage in outright “preventive detention” which is an anathema to many. That said, there is a certain honesty required by having to state the reasons the judge is detaining someone, even if that explanation is contained in “fill in” the blank form.

By the way, I did a lot this type of work while serving as a Magistrate Judge for five years. On the other hand, I don’t know a damn thing about New York.

Scott:  The quantity of drugs in SDNY and EDNY tends to make the detention presumptive, and rarely can a defendant overcome the presumption. I really hate that.

On the other hand, I love PRBs with a couple of FRPs. That preserves the pool of resources available for counsel.

Me:  Re: drugs in SDNY and EDNY:

In terms of drug cases, measured on a per judge basis, for the period ending September of 2014, our per judge felony criminal caseload was 228. SDNY’s number was 64 and EDNY’s number was 81.

We ranked 7th in the nation and 2nd in the Circuit. From 2008 to 2012, drug convictions comprised the largest portion — 46 percent — of criminal convictions in federal court in Nebraska, according to a U.S. Sentencing Commission report. Of that, about 58 percent of Nebraska’s federal drug cases involved meth — more than 40 percentage points above the national average.

Out here, in a drug case, the trick is to see the pretrial services officer quickly to propose a release plan. That gives the officer time to investigate it, so the MJ can, armed with the release plan, say the presumption is overcome and he or she can do so with a straight face. The defendant may be detained initially, but reviews of detention are freely given.

Scott: I was previously unaware of the correlation of living in Nebraska and meth, but it makes perfect sense. [Zing]

Scott: [Referring to an earlier post of mine] But DRUGS and crack whores. Sorry, Judge Kopf, but I just couldn’t restrain myself. [Zing]

Me:  I have a special affection for “crack whores” but not in a PERV way.

There is both substance and gallows humor in the foregoing exchange. That is why I pass it along to you. On the other hand, it might just be babble.

RGK

 

The effects of prison sentences on recividism

As Scott Greenfield properly points out, I am big on empiricism at sentencing, particularly the use of actuarial data, including age, race, and gender. See Scott H. Greenfield, Prisons, Off The Hook (November 16, 2014). In a forthcoming article in the Federal Sentencing Reporter (which I have shared with Scott but asked him to withhold until publication), I will develop my thoughts further.

Nonetheless, using his powerful analytical skills, Scott now poses an important question: For those like me who push empiricism, where is the empirical analysis of the failure of prisons? He answers his own question. In a response to a comment, Scott cites to Paul Gendreau and Claire Goggin, The Effects of Prison Sentences on Recidivism, Corrections Research, Department of the Solicitor General Canada (1999).

Here is the executive summary of that article:

The use of prisons to control crime has increased in frequency in the last decade. Most recently, mandatory minimum sentencing policies have gained widespread popularity throughout the United States, severely limiting judicial discretion in sentencing. The principle rationale for mandatory minimums is the belief that length of time in prison acts as a deterrent to future recidivism.

Three schools of thought dominate the area. The first is that prisons definitely suppress criminal behaviour. Given the unpleasantness of prison life and the negative social stigma associated with incarceration, these should serve as deterrents to later criminal behaviour. The second, the “schools of crime” viewpoint, proposes just the opposite, that is, that prisons increase criminality. By this account, the barren, inhumane, and psychologically destructive nature of prisonisation makes offenders more likely to recidivate upon release. The third school of thought, which we label the “minimalist/interaction” position, contends that the effect of prison on offenders is, for the most part, minimal. This view states that prisons are essentially “psychological deep freezes”, in that offenders enter prison with a set of antisocial attitudes and behaviours which are little changed during incarceration. This perspective also suggests that lower risk offenders may be more adversely affected by greater lengths of incarceration through exposure to an environment typically dominated by their higher risk, more hard core peers.

Fifty studies dating from 1958 involving 336,052 offenders produced 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction. The data was analysed using quantitative methods (i.e., meta-analysis) to determine whether prison reduced criminal behaviour or recidivism.

The results were as follows: under both of the above conditions, prison produced slight increases in recidivism. Secondly, there was some tendency for lower risk offenders to be more negatively affected by the prison experience.

The essential conclusions reached from this study were:

1. Prisons should not be used with the expectation of reducing criminal behaviour.

2. On the basis of the present results, excessive use of incarceration has enormous cost implications.

3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.

4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.

For now, my response to this article and Scott’s larger point is muted. Suffice it to state that for the utilitarian judge like me, and keying upon 18 U.S.C. § 3553(a)(2)(C) commanding that the “court, in determining the particular sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to protect the public from further crimes of the defendant . . . .,” I am in general agreement with the authors of the study* that the primary goal of sentencing ought to be incapacitation, with a dollop of retribution thrown in for good measure.  As a matter of fact, I believe that an empirical approach to sentencing may allow us to refine our decisions about offenders who require longer incapacitation versus offenders who require shorter prison sentences (or perhaps none).

In summary, thanks to Scott for his thoughtful views on this subject.

RGK

*I note that the article relies on data that is fairly old–86% of the studies examined in the meta-data analysis were from the 1970s.

Very important correction

I screwed up. In my post yesterday addressing Scott Greenfield, I attached a photograph that I believed portrayed Scott’s classic sports car. I got the wrong photo.

Since this is a matter of some importance to me (I plan on trying to steal Scott’s car), I have now obtained a photo that correctly depicts the auto. Boy, do I covet that thing. Anyway, sorry for the error.

Here is a correct photo of the classic owned by SHG:

Scott's classic sports car with his son (now at MIT), age 14, behind the wheel.

Scott’s classic sports car with his son (now at MIT), age 14, behind the wheel.

Some things are more important than others.

RGK

Memo to Scott Greenfield: Now is not the time to attack Smokey the Bear

Like my affection for the Sentencing Reform Act (a part of Comprehensive Crime Control Act of 1984, Pub.L. 98–473, S. 1762, 98 Stat. 1976, enacted October 12, 1984), the Sentencing Commission and the Guidelines regime, I love Smokey the Bear. I had my own Smokey when I was about 8. My damn brother threw him into the bath and since my Smokey was stuffed with straw he began to smell just like a real bear.* My Smokey soon went missing, along with the foul odor flowing out of him like a bear on beans.

However, I did not know then that, like the Sentencing Commission, Smokey was the product of an Act of Congress that dealt with criminal penalties. See Smokey Bear Act of May 23, 1952, P.L 82-359, Ch. 327, 66 Stat. 92;18 U.S.C 711; 16 U.S.C. 580p-2 (“Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character ‘Smokey Bear’, originated by the Forest Service, United States Department of Agriculture, in cooperation with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name ‘Smokey Bear’ shall be fined not more then $250 or imprisoned not more then six months or both.”).

With the foregoing in mind, I now turn to Scott H. Greenfield (Simple Justice) directly and his post entitled The Fallacy of Sentencing Deference. In that post, and in a powerful style unique to SHG, he takes me on for my post entitled Perhaps it is chemo fog, but I’m getting soft on crime. In that post, I strongly endorsed doing away with mandatory minimums, but also wrote that: “I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines.”  That Guidelines stuff set SHG’s teeth to gnashing.

SHG wrote:

Of course, there is no sound basis for the fact that the Guidelines were crafted at the outset around mandatory minimums, skewing from the outset the perception of proper sentencing and thereafter producing a generation of absurdly severe sentences to form a data set of normalcy for imposing life plus cancer on defendants.

So who needs mandatory minimums anymore? They served their purpose, as new federal judges never practiced law a day in their lives when sentencing took into account the hunger in a child’s stomach compelling a mother to carry a bag with ten kilos of heroin across a border, who think a sentence of 121 months was handed down to Moses on Mt. Sinai.

But for judges with 22 years experience molding the lives of children of uneducated parents with little expectation of feeding them because IBM wasn’t hiring minorities from Fort Washington that day for executive vice president positions, falling back on the magical voodoo of the commission made it perfectly acceptable to impose sentences of decades, lifetimes, for hard, bad choices, for the frail-minded, for the traumatic brain-injured from a few clubs to the head during their youth, for the angry, the miserable, the hopeless, the cynical. After all, the Sentencing Commission said this was the correct sentence, and they must know best.

Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.

(Emphasis in italics by Kopf.)

Let me first say two things about SHG or his post without intending to curry his favor. (There is no real chance of doing that anyway, and we both know it. However, others might not.) As I have said before, and now say again, I think SHG would make a terrific federal district judge. I would be honored to have him as my colleague.

Furthermore, the most powerful of Scott’s criticism is the ending sentence to his post. Summarized, it this: federal district judges who are believers in the Guidelines regime (like me) can, and sometimes do, fool themselves into ignoring the human carnage that they (and they alone) impose by the draconian sentences fairly frequently called for under the Guidelines. By such self-delusion, judges do terrible harm and they do so without any legitimate excuse.

Now, I want to address SHG directly on several other things. The reader can tag along.

Scott, I assume you abhor unchecked forest fires and concede that all of us should band together to do everything we can to put them out. But because you practice criminal law in New York, because you drive a really neat classic sports car (that I sincerely covet)** and because you are, above all else, a realist, I assume that you also believe that Smokey the Bear is a silly creation of 1950 era advertisers that serves no useful purpose.

But, here is my point:  Statutory minimums are like raging forest fires. We absolutely must put them out. The Sentencing Commission is like Smokey the Bear. If we have to kill him, we can do that later. Let’s not fight about that now.

I deeply fear that such arguments will distract from the most important message that you and I both agree on: Death to statutory minimums. I can just hear the refrain now in Congress by rabid Republicans nut cases:  “They say they want to do away with statutory minimums, but don’t be fooled; this is really all about liberals, criminal defense lawyers, Holder and Obama killing the Sentencing Reform Act and the Sentencing Guidelines while letting all the predators out of prison.”

SHG, I bet you are typing a response now. It has something to do with me being a chicken shit unwilling to engage you on the merits of the Guidelines. Stop! If you really want to argue about the Guidelines, I am willing.  After all, you are far more media savvy than I am. You might be right that nothing you say or I say will distract the dumb asses in Congress.

So, if you conclude that now is the time to fight about the merits of the Guidelines regime, let us have at it. But please let’s avoid generalities. I propose that we start with average and median sentence lengths and sentencing disparity. If you decide that now is the time to have that debate, and agree that we should write first about average and median sentence lengths and sentencing disparity, you go first and I will follow.

What say you?

RGK

*Kip, assuming you read this from your home near Cleveland while contemplating other nasty things to do to me from that far away, I am still really pissed off at you for turning Smokey the Bear into Stinky the Bear, as you laughing called him. This remains true despite the fact that Mom loved you best and gave me all sorts of excuses why you should not be staked to a pine tree and burned to death in a raging forest fire. Bastard!

**SHG’s classic.

Photo credit: Photo by RGK of image on Scott's Twitter page.  Fair use claimed.

Photo credit: iPhone photo by RGK of image on Scott’s Twitter page. Fair use claimed. (I have no earthly idea what that claim means, but it sounds good and legal.)

Scott Greenfield and “Why Judges Won’t Condemn Cops”

At bottom, I like to think this blog is about legal realism.  That’s why I want everyone who reads this damn thing to go over to Simple Justice and read Scott’s post “Judicial Incentives: Why Judges Won’t Condemn Cops.

Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.

What do you think about the post? Let Scott or me know. And, “no” I have not conspired with Scott on this matter. I leave conspiracies to right-leaning academics and drug dealers.

RGK

PS. Scott features Professor Will Baude’s take on lying cops. Guess where brother Baude teaches? Guess who received an undergraduate degree in Mathematics with a Specialization in Economics?  The foregoing said, and as Scott makes clear, you don’t have to buy into the “law and economics” stuff to accept Scott’s point.

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