Commentary: We’ve Made Progress With Criminal Justice Reform. This Trump Pick Could Undo It All
Mike Pompeo and Gina Haspel, President Trump’s nominees to be Secretary of State and the Director of the CIA, respectively, will garner much attention in the Senate in the coming weeks, and for good reason. But it’s President Trump’s little-known nominee to the U.S. Sentencing Commission, William Otis, who also should be making headlines. The Senate should reject Otis’ nomination because his views on criminal justice and sentencing are far out of the mainstream and are driven by hyperbole and fear, rather than evidence and data.
Otis, who would wield unchecked power over an important federal agency, is precisely the wrong person for this moment, just at the time there is reason for optimism. Widespread consensus, from the Koch Brothers and Newt Gingrich to Sen. Kamala Harris (D-Calif.) and the Black Lives Matter movement, has recently emerged that we must change course on our country’s addiction to incarceration. The prison population in the United States has more than quadrupled since 1980, with 2.4 million Americans currently behind bars. We have less than 5% of the world’s population, but over 22% of the world’s prisoners. One in every 28 children in our country now has a parent in jail or prison. We imprison blacks at a rate six times of that of South Africa during apartheid.
Progress is being made at the state level, demonstrating that we can both lower incarceration rates and reduce crime. Texas, which has focused on treating addiction as a public health problem by diverting drug offenders from prison and into rehabilitation, saw a 10% reduction to its incarceration rate over a recent five-year period. That reduction in incarceration did not lead to an increase in crime; rather, Texas’s crime rate plunged by 18%. Similarly, Georgia has instituted large-scale criminal justice reforms, including eliminating certain mandatory minimum drug statutes and returning sentencing discretion to judges, who can most appropriately weigh a person’s culpability. These changes both reduced levels of incarceration and saw a corresponding 17% reduction in crime.
But we are woefully behind at the federal level. There was a glimmer of hope for reform over the last few years, when bipartisan coalitions in Congress proposed various bills to modestly revise harsh mandatory minimum drug statutes. While the bills did not go nearly far enough, they were a start. Ultimately, those bills failed to pass, as Senate Majority Leader Mitch McConnell refused to even bring them to the floor of the Senate for a vote.
Congressional inaction has meant that the Sentencing Commission—a body largely unknown to the public with the responsibility for promulgating sentencing guidelines, collecting data on sentencing practices, and assisting other branches in developing effective and efficient crime policy—has become much more important. For example, when Congress failed to act on mandatory minimum sentencing reform for drug offenses in 2013, the Commission reduced drug sentences in 2014. There is no evidence that these and other sentencing reductions initiated by the Commission have led to an increase in crime or higher recidivism rates.
Otis has shown no interest in the Commission’s data-driven mission, and firmly believes in the antiquated notion that longer prison sentences are the answer to all of society’s ills. In a 2014 panel for the conservative Federalist Society, Otis said: “When we have more prison, we have less crime. And when we have less prison, we have more crime.” This view ignores recent data from the states and a trove of evidence-based analysis. For example, in 2015, the Brennan Center concluded that increased incarceration did not do much to reduce crime in recent decades. It found that it was responsible for about 6% of the drop in property crime in the 1990s, varying statistically from 0 to 12%, and determined it did not have any meaningful contribution to the continued drop in property crime in the 2000s. It also found that increased incarceration had no effect on the drop in violent crime in the last 24 years. There are several reasons: The deterrent effect of prison is based on the certainty of punishment, not the length of sentences; overuse of incarceration leads to ineffectiveness—the concept of diminishing returns; and prisons, both by their very nature and due to deteriorating conditions in the United States, often inhibit rehabilitation, leading to recidivism and more crime. In other words, our addiction to incarceration makes us less safe.
Otis has also made clear that he disagrees with the continued existence of the Sentencing Commission itself—the very body he seeks to serve on. In 2011, Otis told a House subcommittee that he believed the Commission should be abolished, calling it “an overfed lemur.” At best, Otis hopes to reverse the sentencing revolution ushered in by United States v. Booker, which rendered the federal sentencing guidelines advisory and rightfully returned sentencing discretion to judges. There is no doubt that Otis will work to put more people in prison by advocating for a return to a mandatory guidelines regime. This would be devastating; federal sentences are already too long. Approximately 75% of federal inmates are serving sentences of five years or longer, and approximately 50% are serving sentences of 10 years or longer.
Furthermore, Otis has made recent comments and assertions that question his fitness and judgment to serve in federal government. In 2014, despite decades of evidence showing otherwise, Otis argued that innocent people never plead guilty. He has argued that racial disparities in the criminal justice system are justified and described all federal judges appointed by our nation’s first African American president as “a bunch of judges newly at ease in snickering at crime victims.”
We can and should do better than William Otis. The Sentencing Commission, by statute, is required to be bipartisan. There are surely other Republicans whose views on sentencing and criminal justice are in the mainstream and who support the Commission’s mission to “establish sound and equitable sentencing policies and practices for the federal courts.”
Erica K. Zunkel is assistant clinical professor of law and associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School.