Debating sentencing data

A few weeks ago, as noted here, the Washington Post ran this op-ed entitled “Mandatory Madness” in which law professor and NACDL president Barry Scheck calls for reform of harsh federal mandatory drug sentences.  In the middle of his wide-ranging and powerful critique of federal sentencing laws, Professor Scheck stated: “According to the Bureau of Prisons, more than half of the 180,000-plus people in federal institutions are there for drug law violations. Most are low-level, small-time and nonviolent offenders.”

This weekend, the Washington Post ran this letter in response from Dan Bryant, who is identified as “assistant attorney general for legal policy at the Justice Department.”  The letter asserts that Scheck’s claim about low-level, federal drug offenders “is inaccurate,” and then rattles off the following statistics:

Justice Department data show that 91 percent of all prisoners (state and federal) are either recidivists or violent offenders. Of those in state prisons, 76 percent are multiple offenders and 62 percent have a history of violence, while a full 66 percent of federal offenders have been convicted of multiple or violent crimes.

Furthermore, most nonviolent criminals are neither low-level nor small-time: 84 percent of these “nonviolent” offenders in state prison have prior criminal records, averaging more than nine arrests and four convictions apiece. In fact, a third of these nonviolent offenders could even be classified as “previously violent,” as they have previous arrests for violent crimes. Federal nonviolent inmates have only marginally less criminal backgrounds than their state counterparts: 79 percent have prior records, averaging more than six arrests and two convictions. The notion that our prisons are filled with nonviolent, first-time offenders is simply not true.

This letter concludes: “We agree that there should be a healthy debate about sentencing, but we insist that this requires equipping Congress and the American people with the facts, not misleading rhetoric.”  (The use of the “we” hints that this letter may represent a semi-official Justice Department response, rather than Dan Bryant’s personal views.  Indeed, the letter echoes points and phrases used by Assistant AG Christopher Wray, in his official testimony to the US Sentencing Commission last month.)

Over the weekend, this letter and its data-based rebuttal of Professor Scheck’s assertions have been the buzz of a listserve to which I subscribe.  In the dialogue, I noted that the letter makes heavy use of state statistics (or combined state/federal statistics) in response to an op-ed which was focused exclusively on federal sentencing.  Another person spotlighted that the letter makes a “rhetorical slip from ‘low-level’ to ‘first-time’ offenders.”  Others noted that even some minor federal drug offenses are statistically categorized as “crimes of violence.”  For a letter espousing the importance of facts over misleading rhetoric, the letter does a mighty good job stressing facts which could mislead.

Putting aside dickering over rhetorical use of facts, the data stressed in the Bryant letter actually prove Scheck’s chief points.  The statement that “66 percent of federal offenders have been convicted of multiple or violent crimes” in turn means that 34% (more than 1/3) of all federal offenders are one-time, nonviolent offenders (and I suspect the percentage of low-level, nonviolent drug offenders may be even higher).  With a federal prison population of over 180,000, this suggests that in excess of 60,000 persons are serving time in a federal prison as a result of a one-time, nonviolent offense.   It seems our federal prisons are in fact filled with nonviolent, first-time offenders.  (Notably, the 60,000 persons now serving federal time as a result of a one-time, nonviolent offense is more than double the total federal prison population 25 years ago.)

I am glad to see from the Bryant letter that the Justice Department welcomes “healthy debate about sentencing,” and I am also glad to see an emphasis on offenders “convicted of multiple or violent crimes.”  The states have generally been effective at focusing long sentences on repeat and violent offenders, and federal law should follow their lead.  Indeed, based on the themes and claims in the Bryant letter, it would seem that DOJ would and should be against all mandatory sentencing except for serious recidivist or violent criminals.  That was the main thrust of Scheck’s op-ed, and a careful analysis of the Bryant letter perhaps reveals more harmony than discord in views about sensible federal sentencing policy.