Addicted To Incarceration : A Federal Judge Reveals Shocking Truths About Federal Sentencing

[TwiceHorn 32104]

16 hours ago, slorch said:

So do you feel the prominence of  prosecutorial backgrounds make judges generally too harsh or too lax?

 

Do the guidelines need to be changed?

I didn't say prosecutorial backgrounds, but the guy who did is right.  That's kind of a different problem or angle on it than the one I was attacking.

I think the guidelines probably need to be abolished entirely.  The reason they were adopted, to increase uniformity in federal sentencing, was a solution looking for a problem in the first place.  And if there was any sort of problem, it was driven in large part by the proliferation of federal crimes over the last half century or so, in large part due to the drug war. Worse, there's still a good bit of arbitariness and a lack of uniformity in federal sentencing despite them, because, for all their attempt to make sentencing an analytical science, they just introduce more and more wiggle room on more and more small factors so that the totality of the sentence loses connection to the crime committed and the defendant who committed it.  Yet, like a lot of pseudo-scientific things, the  rectitude and utility of the Guidelines is just accepted without question by those who actually implement them.

We can keep the Sentencing Commission, but they should draft an entirely advisory sentencing manual that still leaves sentencing discretionary with the sentencing judge.  The Commission should also advise Congress on criminal laws and sentencing issues.  And Congress should pay some fucking attention.

My problem with criminal justice is this.  I'm a patent lawyer.  Until the last 15-20 years, this was an obscure, but important field of law for innovation policy and American competitiveness, both domestically and internationally.  The Patent Act, although written and passed in 1952 to replace another one, has undergone major, if not wholesale, revision at least a half dozen times since its passage, that is, about once a decade.  A few of those revisions have been relatively thoughtless Congress-specials resulting from financing and pressure from special interest groups.  Nevertheless, patent and IP policy is scrutinized by academics and stakeholders constantly and revisions proposed, criticized, and some adopted on a fairly regular basis.

Criminal law and procedure, on the other hand, is basically more than 100 years old.  The only revision it typically undergoes is to add new crimes and  lengthen sentences, whose starting points are themselves more than 100 years old and their reasons for existence are mostly lost to history.  In that time, we have learned vast amounts about human behavior and psychology that undermine huge portions of the criminal law, or the assumptions that made it what it is.  Yet, it rarely changes much, especially at the federal level, which is often influential at the state level.

A startling fact is that no one knows exactly how many federal criminal laws exist.  Estimates put it at more than 5000.  A lot of federal criminal law overlaps with state criminal law, and that is offensive to me on federalism grounds.  We spend a shit-ton on the federal criminal apparatus and there is no real federal interest in a great deal of their work.  It's one area that should be left to the states to a greater degree than it is.

As a general proposition, I would like to see more critical thought directed toward the criminal justice system (a lot of social scientists write theoretical stuff about it, but no one in power ever seems to consider it or do anything with it).  Like the article in the OP.  Criminal law, to me, suffers as much or more from idiocracy as any set of laws one might care to name.  And it dramatically affects huge swaths of society.

Edited April 25, 2018 by TwiceHorn

[XYZ 2154]

On 4/24/2018 at 6:44 AM, slorch said:

Some people in this thread, including the article in the OP; act as if nobody is actually committing crimes before they end up in prison.  

Strawman fallacy.

[TwiceHorn 32104]

15 minutes ago, XYZ said:

Strawman fallacy.

Fallacy or no, it's the kind of simplistic thinking that got us into this mess.  Sure, they're guilty, so lock em up for whatever period of time the statute prescribes.  But I'm more interested in questions like who do we choose to prosecute, who do we choose to investigate, who gets what plea bargains and why, and where did we get the idea that 2-20 is the right sentencing range for every second degree felony in Texas, for example?  Does anyone consider whether the defendant in question could/should avoid a conviction, prison, and a felony record and might go on to be a productive member of society?

 

Ask these sorts of fundamental questions and they have answers in a field like patent law, or employment law, etc.  Ask them in criminal law and people just shrug.

[Guest]

30 minutes ago, XYZ said:

Strawman fallacy.

No it isn't.

 

My chances of going to prison are virtually zero, and it's not because of my race, socio-economic background, or anything other than I will never commit crime against another human being unless it is in self defense or defense of someone else.

 

Regardless of my opinion on marijuana, it is illegal.  it will never be in my possession.  Same attitude goes for other criminal activity.  The building of prisons has ZERO to do with whether i commit a crime or not.

 

When I say the problem would be solved if people stopped breaking the law, it is an absolute fact, as long as our system of criminal justice maintains an ounce of credibility.

 

 

Edited April 25, 2018 by slorch

[TwiceHorn 32104]

14 minutes ago, slorch said:

No it isn't.

 

My chances of going to prison are virtually zero, and it's not because of my race, socio-economic background, or anything other than I will never commit crime against another human being unless it is in self defense or defense of someone else.

 

Regardless of my opinion on marijuana, it is illegal.  it will never be in my possession.  Same attitude goes for other criminal activity.  The building of prisons has ZERO to do with whether i commit a crime or not.

 

When I say the problem would be solved if people stopped breaking the law, it is an absolute fact, as long as our system of criminal justice maintains an ounce of credibility.

 

 

Fine.  You're a grown ass man.  Lets go back however many years to age 18 or 19.  You seriously gonna tell us you didn't go unapprehended and unprosecuted and unpunished for at least some misdemeanors?

 

And no one is saying we're ever going to eliminate crime or that people should go unpunished.  But I have this nagging sense that a lot of our punishment is unnecessary and disproportionate.

 

What do you think is accomplished by locking someone up?  What is accomplished by locking someone up for 20 years rather than 10, rather than 5?

Edited April 25, 2018 by TwiceHorn

[BillyBadAss 197]

My take is prison, at least any significant sentence, should never be about punishment. The only people who should be in prison are those deemed to be a likely risk to society at large. Someone making a mistake, however serious, should be appropriately punished and/or forced to make recompense for their offense; but prison serves no purpose to society except to keep truly dangerous people segregated and controlled. As a means of punishment only it hurts society more than it helps. 

[XYZ 2154]

Two million people in prison or jail in the USA. But let’s not question anything because there’s zero chance that I will ever see the inside of a cell. Great logic there.