A Troubling Nomination to the U.S. Sentencing Commission

One of the jobs of a think tanker is to synthesize information from other sources and put it in the context of his or her particular field. Hard data are particularly important to our work because data are measurable outcomes from policy and practice in the real world. No one cares what anyone at Cato “feels.” Feelings have their place, of course. Measuring the feelings of a particular group or groups of people can be useful in the aggregate because people will act in accordance with those feelings, but those feelings make up just another metric on which we collect data to explain the world. Reliable data and provable outcomes are fundamental to shaping and forming effective public policy.

As irritating as strict libertarians may find it, several bodies within the federal government are very good at collecting and analyzing data. One of these bodies is the U.S. Sentencing Commission. From the USSC website:

The U.S. Sentencing Commission, a bipartisan, independent agency located in the judicial branch of government, was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.

The Commission collects, analyzes, and distributes a broad array of information on federal sentencing practices.  The Commission also continuously establishes and amends sentencing guidelines for the judicial branch and assists the other branches in developing effective and efficient crime policy.

The Commission publishes data on the impacts of sentencing, the levels of recidivism among different populations of the formerly incarcerated, and other inputs and outputs related to our federal carceral system. For criminal justice researchers of all levels, the Commission provides detailed and easily accessible information about how federal policy and law translate into practice and outcomes.

Another component of the Commission’s work is passing along recommendations about sentencing law to Congress. Reasonable people may disagree with these recommendations, but the Commission clearly bases its recommendations on the best available data they have collected and analyzed. Individuals of all ideological persuasions should want any nominee to the Commission to share this dedication to data collection and evidence-based practices. Instead, President Trump nominated William “Bill” Otis.

Otis is an adjunct professor at Georgetown University Law Center and spent many years in the Justice Department. He has continuously lambasted bipartisan efforts to reduce sentences and remains a stalwart proponent of the “tough on crime” rhetoric of the 1980s, warning of great crime waves that will follow widespread sentencing reduction.

Otis marshals no empirical evidence for his claims—because there isn’t any. And that’s the problem.

To be clear, I’m not worried about Otis’s nomination because he’s conservative. Plenty of conservatives work on criminal justice issues, and some have led the way on reforms. Republican governors and GOP-controlled legislatures in Georgia, Texas, and other “red” states have passed significant criminal justice reforms that reduced prison and jail populations while also reducing crime rates. When presented with evidence-based opportunities to help individuals and save public money, many realized criminal justice reform could be a conservative cause.

The problem is, as Julie Stewart, the founder of Families Against Mandatory Minimums wrote in 2015, “Otis is impervious to facts and evidence.” Put another way, Bill Otis is interested in the politics, not the policy, of criminal justice.

The mountains of data that support less carceral policies and alternatives to incarceration have not swayed Otis’s rhetoric at all. When a man who had benefitted from reducing the sentence for a crack cocaine conviction brutally murdered a woman and two children, Otis was quick to blame the shortened sentence:

Three people, including two children, are dead today because of early release from a duly imposed, lawful and fully deserved federal drug trafficking sentence.

How many times were we lectured that those released under lowered sentencing rules would be only “low level, non-violent offenders?” I don’t know, exactly. Hundreds if not thousands.

Question:  How many more lives are the congressmen and senators who support the [Sentencing Reform and Corrections Act] willing to see sacrificed for their “we’ve-been-too-tough” agenda?

An exact number, please, gentlemen.  We want to remember who you are on election day.  And we will.

It’s Willie Horton all over again.

Yes, a few people who are incarcerated for drugs may do horrible things when they get out. Most of them, even those who commit new offenses, will not. According to several Commission reports, the most common reason for re-arrest among federal drug offenders is a violation of supervision policies—that is, getting drunk or committing some other minor infraction—and certainly not murder.

The latest data from the Sentencing Commission shows no statistical difference in recidivism among those released early under new drug sentencing guidelines and those who served the longer sentences:

The recidivism rates were virtually identical for offenders who were released early through retroactive application of the [Fair Sentencing Act] Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

These data coincide with previous data from the Commission that measured the effects of crack cocaine sentencing retroactivity that found no significant statistical difference between recidivism among those who got out early and those who served the full sentence.

All this is not to say that policymakers should not find ways to reduce recidivism, no matter how serious the offenses are. But Otis’s belief that serving long drug sentences will make convicted individuals more lawful citizens is at odds with what liberals, conservatives, progressives, and libertarians in criminal justice have found in years of research and by measuring the effects of new policies put into practice. The push for reducing incarceration is not a conspiracy of groups taken in by George Soros and Al Sharpton, as Otis suggested in 2016, but a broad coalition of individuals, organizations, and lawmakers who look at the evidence and formulate policy accordingly.

The Sentencing Commission provides, among many other things, a trove of information that can teach us more about how our policies do and do not work. Otis’s nomination signals a return to reactionary politics based on what some people think and feel, rather than what they can show and prove.