The folly of leniency-for-felons legislation: A response to John Malcolm

John Malcolm of the Heritage Foundation has responded to my critique of his article defending the leniency-for-criminals legislation being pushed in the Senate. I appreciate his response.

Like a good lawyer writing a reply brief, Malcolm begins by citing the points he made that I didn’t dispute. Let me begin by returning the favor. Here are points I made that Malcolm does not dispute. I consider them decisive.

First, Malcolm doesn’t dispute that the mandatory sentencing regime he wants to soften has prevented many hundreds of thousands, if not millions, of violent crimes during the past 30 years. This is true even if, as I conceded for purposes of argument, the bulk of the reduction in crime during this period was due to other factors. It’s true if tough mandatory minimums account for 35 percent of the reduction (the figure Malcolm cites) or even just 25 percent.

It’s also worth noting that improved policing — the other factor, besides sentencing, that Malcolm cites as responsible for declining crime — is under attack by many of those pushing sentencing reform (though not by Malcolm, to my knowledge). The curtailment of proactive policing is already responsible for a surge in violent crime in Baltimore, for example.

Thus, in at least some parts of the country, we cannot rely going forward on the quality policing of the last few decades to help keep the lid on crime, and to cope with the increase in the number of criminals who will be on the street early if lenient sentencing reform is enacted. In short, the enactment of such reform would produce a double whammy.

Second, Malcolm doesn’t dispute that high rates of recidivism mean that prisoners who serve reduced sentences will, collectively, commit lots of crime during periods when, under current law, they are locked up. In fact, he concedes it:

There is, of course, the ever-present possibility that an offender who is given a second chance will commit additional crimes, including violent offenses. That occurs now—way too often—and will continue to occur regardless of what Congress does.

The concession understates the problem (it also incorrectly assumes that we’re talking only about second chances, as opposed to third or fourth ones). In the case of “an offender” there is only the “possibility” that a reduced sentence will produce more crimes. But given the vast number of offenders who would get the relief Malcolm advocates, there is certainty that the bill would produce a very large number of violent crimes that the current system prevents.

Third, Malcolm doesn’t dispute that a vastly disproportionate amount of the extra crime, including violent crime, generated by legislation he advocates would be inflicted on law-abiding African-Americans. Nor does he deny that Kim Kardashian, Ivanka Trump and Jared Kushner, Sen. Chuck Grassley, and the Koch Brothers and others who fund the Heritage Foundations won’t be victims of the crimes committed by the beneficiaries of the jailbreak they advocate.

Malcolm’s only response is to assure us that his views are not for sale to Heritage Foundation donors. I agree, and did not say or imply otherwise.

Fourth, Malcolm doesn’t dispute that rehabilitation programs are available to, and can be enhanced for, the felon population without knocking extra time off their sentences. Moreover, he doesn’t explain why prisoners interested in rehabilitating themselves — the only kind of prisoners at all likely to benefit medium or long-term from such programs — need the inducement of reduced sentences to participate in effective rehabilitation programs.

Fifth, Malcolm doesn’t dispute my critique of home confinement, which is what would await many felons released early. He doesn’t deny that at least 50 cases of murder have been committed by prisoners who were supposedly thus confined or that the legislation he supports doesn’t provide the resources necessary to make home confinement more effective. Nor does he explain why conservatives should trust the federal government to effectively monitor and supervise the beneficiaries of early release.

The matters Malcolm doesn’t dispute make the case against leniency-for-criminals legislation. They show that less prison time served can only lead to many more crimes, especially against African-Americans. They show that early release is not required to induce those who can be rehabilitated to enter rehabilitation programs.

Saving money, the main argument Malcolm makes in support of inflicting all of this crime on Americans, isn’t worth it. Indeed, Malcolm hasn’t denied the points made by Sen. Tom Cotton on this issue in the piece Malcolm challenged in his first article: (1) that after national security, the government’s most basic responsibility is to protect its citizens from crime and (2) the costs of crime and disorder—personal and economic—far outweigh the downsides of putting serious criminals behind bars.

Now let’s turn to the points Malcolm says I didn’t deny. First, he’s correct that I did not take issue with the claim that other factors beyond mandatory minimum sentencing, such as improved policing practices, are likely responsible for the bulk of the reduction in crime that we have experienced over the last two decades. I explained above why, even if we make this concession, tough mandatory minimums have prevented many hundreds of thousands of violent crimes, if not more.

Second, Malcolm is right that I didn’t dispute that many “low-level” drug offenders get caught up with mandatory minimum penalties or that the Sentencing Commission (dominated by liberals) so concluded. However, I have disputed this conclusion in the past and will dispute it now. Under the present system, a safety valve exists so that these “low-level” offenders can avoid mandatory minimums if they cooperate with prosecutors and it’s their first offense. To be sure, the safety valve doesn’t usually apply. But that’s because the offenders are rarely low level.

Third, Malcolm is right in saying I didn’t dispute that, under the leniency legislation, sentencing judges retain the discretion to sentence an offender to a period of incarceration up to the statutory maximum. But the conclusion he draws from this — that “the worst of the worst would still be punished accordingly” — doesn’t follow.

Mandatory minimums were imposed because liberal judges were far too lenient on offenders, including some very bad ones. No conservative should take seriously the notion that today’s liberal judges (collectively a more left-wing crew than their counterparts in the pre-Obama era) will use their discretion to impose tough sentences on hard core felons.

In Tom Cotton’s article, the one Malcolm addressed in his first piece, the Senator provided the harrowing example of how liberalized federal sentencing enabled Wendell Callahan, a beneficiary of a liberal judge’s discretion, brutally to murder Erveena Hammonds and her two daughters, ages 10 and 7. Callahan was absent from Malcolm’s response to Cotton.

The many victims of soft sentencing seldom make it into such pieces.

Fourth, Malcolm says I did not dispute that many states that have implemented their own reforms have experienced lower crime rates, lower recidivism rates, and lower costs. What I did say was that Malcolm and his co-author “significantly overstate the value of the programs they tout in reducing recidivism.” I backed up this statement with two links addressing the subject. Malcolm didn’t respond.

Malcolm devotes much of his reply to attacking my attempt to quantify the amount of time that the leniency legislation would knock off the sentences of various types of offenders. My attempt was based on a fact sheet prepared by opponents of the legislation. I didn’t link to it because it wasn’t (and as far as I know, still isn’t) on the internet.

Malcolm says he doesn’t understand how the numbers in the fact sheet were derived. Here is my understanding of how, for example, a fentanyl dealer sentenced to what currently is a 20-year mandatory minimum sentence (reserved for repeat offenders trafficking in the largest amounts) could be back in the community in as little as 7 years, 10 months (as opposed to 16 years, 1 month under current law).

Current system: starting sentence: 20 years.

– Assume the prisoner gets a 1 year reduction for participation in RDAP.

– Assume the prisoner behaves in prison, so he is eligible for 894 days for “good conduct” (54 days
per year served).

– Assume, as is common under current law, the prisoner gets to spend 6 months of that sentence in home confinement.

The result is about 48 months of reduction, or 16 years in prison.

The leniency bill: starting sentence: 15 years, because the penalty is reduced for trafficking fentanyl, even if you have a serious record.

– Assume the prisoner gets the same 1 year reduction for participation in RDAP.

– Assume the prisoner behaves in prison, and under the new good time calculations in the First Step Act, the prisoner gets 54 days off for each year sentenced, not served: about 810 days off.

– Under First Step Act, because he is in for fentanyl trafficking, the prisoner, if at minimum or low risk category, starts getting an additional 15 days in time credits towards home confinement for every 30 days participating in an “evidence based anti-recidivism program”. (Note that this doesn’t mean a full day of participation. The prisoner can take a 15 minute class on anti-bullying and that counts for a “day”).

– This works out to about 3 years, 11 months. (If the fentanyl trafficker is medium or high risk, he still gets credit, but the reduction is 10 days, not 15).

The result for the so-called minimum or low risk fentanyl trafficker is 15 years, minus 1 year (RDAP), minus 27 months (good time credits), minus 3 years, 11 months. This equals 94 months in prison, or about 7 years 10 months.

That’s a massive reduction in the sentence. But even smaller reductions, such as the five-year reduction Malcolm talked about in his original post, are too much. The average offender will be caught committing a crime during those five years and, since most crime isn’t reported or solved, will actually commit more than one crime.

As President Trump has recognized, we need tougher sentences for fentanyl dealers, not softer ones. If anything, the leniency legislation Malcolm supports takes us in the wrong direction. Liberals want to go there. Conservatives should not.