I’ve mentioned before that Mitch Daniels is my favorite pick for the GOP Presidential nomination, so I’ve been watching some of what he has been doing in Indiana recently. One fascinating development has been reform of criminal sentencing policy.
Indiana’s prison population has spiked in recent years, and state officials realized that they were going to have to spend about $1 billion in new prisons over the next 7 years to fit all the prisoners in the state prison system. In response, Governor Daniels announced a plan to study the State’s sentencing laws, together with two non-profit groups, the Pew Center on the States and the Council of State Governments Justice Center, to see if the state’s criminal sentences had become too punitive. The groups published their report, which found that the drug laws had become too draconian and “one size fits all,” and that there wasn’t enough support for susbtance abuse treatment. The report recommended less punitive and more nuanced sentencing laws for nonviolent drug offenses as well as better substance abuse counseling as a way to lessen the prison population and avoid having to build new prisons. Last week, Daniels endorsed the report. Now the attention will turn to translating the report’s recommendations to statutory language, and Daniels will then have to get those recommendations through the state legislature.
I highly doubt any of this does anything for Daniels’ chances of getting the GOP nomination, and for that matter it’s still unclear if Daniels has any interest in running for President. But given how fears of seeming “soft on crime” so dominate criminal justice policy, it is a breath of fresh air to see a state Governor trying to make sure that sentences are appropriate, fair, and cost-justified rather than just high.
George says:
As prison costs keep rising and tax revenues stay unstable or falling, every governor needs to confront these issues. Fortunately he’s not locked in to excessively costly commitments like California. I’m very much into “tough-on-crime,” but long sentences for nonviolent drug offenses are obvious candidates for thoughtful cost-benefit treatment. I think that a good right-wing politician can make that case to the public. Bush’s reelection campaign for Texas governor focused heavily on his efforts at juvenile justice reform, for example.
December 19, 2010, 8:48 pmtom952 says:
Yea I agree. MD is probably too rational and reasonable to be atop the next GOP ticket.
December 19, 2010, 8:52 pmHoward says:
But given how fears of seeming “soft on crime” so dominate criminal justice policy, it is a breath of fresh air to see a
state GovernorRepublican trying to make sure that sentences are appropriate, fair, and cost-justified rather than just high.Easier for him, of course, since he probably won’t have Republicans baying for his head. You really don’t want to call a spade a spade, do you?
December 19, 2010, 9:24 pmAlan Gunn says:
Daniels has been a superb governor, pushing for (and getting) budget cuts where practical but also increasing some needed outlays,, like child protective services, where caseloads had been ridiculously high. Unfortunately, he probably doesn’t have what it takes to become president, like a willingness to tell blatant lies with a straight face, to pander to unsavory interest groups, to get people riled up about things that no politician can change.
December 19, 2010, 9:25 pmFloridan says:
An interesting way to look at it — prison sentences are too draconian not because the punishments don’t fit the crimes, but because they cost too much money.
December 19, 2010, 9:33 pmOrin Kerr says:
Howard: “You really don’t want to call a spade a spade, do you?”
My policy is that if I think it’s a spade, I call it a spade. If I don’t think it’s a spade, I don’t call it a spade. Of course, you may think it’s spade when I don’t: This happens.
December 19, 2010, 9:37 pmdht says:
Mitch Daniels probably does not have a chance at getting the nomination because he is serious about governing, which is not always a criterion for running for President (or any other office).
December 19, 2010, 9:52 pmCornellian says:
If law professors like him his campaign for President is probably doomed already.
December 19, 2010, 10:10 pmHoward says:
We all like to think that about ourselves, of course, but we all have unconscious biases. Just to be clear: My impression is that charges of being “soft on” crime (or communism, or terrorism) are bludgeons that Republicans use on Democrats. This may have created a situation where it’s easier for a Republican to do what needs to be done, the Nixon/China phenomenon. Obviously there are analogous issues for Democrats, but let’s call a Democrat a Democrat and a Republican a Republican. Is my impression wrong?
December 19, 2010, 10:30 pmgeokstr says:
Professor Kerr, this looks like a back of the hand to the Tea Parties, who will have a lot to say about who gets the nomination. But the TPs are not about crime and punishment issues as much as they are about smaller government, less spending and lower deficits.
If nothing else, Daniels will get kudos for his attempts to rein in Indiana spending. He has a lot of distrust from the Tea Parties to overcome, having been the budget director for Dubya, who is seen by many on the right as having betrayed conservatism with his profligate spending.
December 19, 2010, 10:49 pmOrin Kerr says:
Howard writes:
Howard, your impression that it is easier for a Republican to do that certainly matches my impression, for the reason you say –it’s the Nixon in China dynamic, as Republican politicians traditionally are more law-and-order oriented than are Democrats. I take it we all understand this.
With that said, I can’t discern what that has to do with your comment that I really don’t want to call a spade a spade.
December 19, 2010, 10:52 pmBruce Hayden says:
Let me suggest that there really is a problem here. It isn’t just that the prisons are full right now, and in the midst of the biggest recession in most of our lifetimes, we can’t afford that. There are likely a number of people prison around the country right now who don’t belong there. Not because they didn’t do what they were accused of, but the harm to society doesn’t rise to the level that really requires that they go to prison in the first place, or, once there, they stay there too long.
For me, for one thing, I don’t think mere possession of any amount of drugs calls for incarceration, unless the only realistic interpretation of that amount is distribution.
I don’t want to eliminate prison for non-violent crimes, since we don’t want to give criminals a green light in that area. But maybe they could apply a violence multiplier to any property crimes. Likely nothing could come of that.
Oh, and one more place to cut expenses – eliminate most SWAT teams and the like. To some extent, they are an institutionalized violation of Constitutional rights, training to effect entries into residences in such a way that the letter of the law may be respected while violating its spirit. I don’t think that the militarization of some of the police has not been good for our country.
I do think that the point that Republicans may have an easier time here than Democrats is valid. The Democrats always face the problem that any cuts that they may do in sentencing may be seen as pandering to their minority bases. Plus, don’t they already represent the criminal interest group, trying to give them voting rights?
December 19, 2010, 11:03 pmJRL says:
Interesting. I was just reading tonight about Kasich moving in the same direction in Ohio. Sounds like Kasich is already further along–he’s skipped the study and said the state’s sentencing policies for non-violent offenders are insane.
December 19, 2010, 11:18 pmOrin Kerr says:
Bruce Hayden:
Bruce, your description suggests that you want to eliminate SWAT teams because you disapprove of how they execute warrants, not because they cost too much. Any ideas how much they actually cost? And who pays for them?
December 19, 2010, 11:37 pmleo marvin says:
I share Orin’s confusion about this. More generally, if we want opponents to take positions not popular with their constituencies, don’t we have to give them credit when they do so? Daniels won’t get my vote, but I say good on him for this.
December 19, 2010, 11:39 pmDave N. says:
Adding to OK’s response to Bruce Hayden, state corrections is typically an expense belonging to the State. Law enforcement, including SWAT teams, is typically an expense of local government.
I do hope Daniels runs — he seems like a very able administrator who has done a great job as Governor of Indiana.
December 19, 2010, 11:42 pmHoward says:
I apologize if that struck you as insulting; it wasn’t intended that way. (Maybe a little bit of a dig.) My point was just as I said in the original post: it seemed as if you were choosing not to criticize Republicans for a problem largely of their making, and instead speaking of “state Governors” and “criminal justice policy.” Maybe I read too much into it. I agree that it’s refreshing, btw.
December 20, 2010, 12:51 amBruce Hayden says:
I am opposed to them for a number of reasons. Not overall, because I see some need, esp. in large metropolitan areas to respond to heavily armed criminals.
My understanding is that a lot of the initial funding and especially equipment came from the federal government. At least some of the full auto M-16s seem to have made their way into police departments across the country, as our military has moved towards the 3 shot versions. Mostly done, of course, in the furtherance of their War on Drugs. –
But with a lot of things with the federal government, it appears that much of the cost of SWAT teams is born locally, esp. after they are up and running, as evidenced by the number of police departments that have eliminated such over the last year or so for budgetary reasons.
But, I will also admit to have taken this onto a tangent. The original post was about money, and I took this into civil liberties, etc., which is not what was at issue. Sorry.
December 20, 2010, 1:37 amDavid M. Nieporent says:
There’s nothing wrong with what Mitch Daniels is doing; I applaud him for it, too. However, let me suggest that if Mitch Daniels wants to cut prison expenditures (whether out of a sense of justice or out of fiscal concern), he doesn’t need to wait for the legislature to translate a report into legislation; he can start by liberal use of executive clemency.
December 20, 2010, 2:35 amkazinski says:
I hope this is a trend, Chris Christie is looking into New Jersey’s draconian laws targeting non-violent owners of legal guns.
December 20, 2010, 2:57 amDesiderius says:
“I highly doubt any of this does anything for Daniels’ chances of getting the GOP nomination”
I don’t. This is the sort of things grown-ups do. The nation will be looking – desperately – for a grown-up in 2012. The GOP hasn’t lost all interest in what the nation is looking desperately for.
December 20, 2010, 8:23 amFrank Drackman says:
You call a Spade a Spade where I live, and you’ll get stabbed.
December 20, 2010, 8:38 amOr shot…
Joe says:
The nation will be looking — desperately — for a grown-up in 2012.
knock on wood. The “grow-ups” in ’10 left something to be desired. And, “the nation” isn’t going to choose the Republican candidate.
December 20, 2010, 8:51 amgo vols says:
Didn’t Daniels either raise taxes or suggest raising taxes once as governor? Won’t that put him at a huge disadvantage in the primary given current GOP rhetoric?
I would like to hear a well-reasoned argument to the contrary. It would be exciting to see the GOP nominate someone like Daniels, or even Gary Johnson (with whom I assume I would disagree about 75%) rather than the depressing list of people they are likely to actually pick.
December 20, 2010, 9:07 amlgm says:
A Democratic Governor of Massachusetts did something similar before he ran for President against George H.W. Bush. The result was Willie Horton. I guess sentencing reform is bad mainly when Democrats do it.
December 20, 2010, 9:27 am1040 says:
orin – why was my first comment deleted? There was no attack on you or any of the commenters in it.
December 20, 2010, 9:42 amDave N. says:
Sentencing reform is AWFUL when you have a program that allows weekend furloughs for people serving sentences of life without the possibility of parole. Frankly, it is indefensible.
That’s what happened in Horton’s case. He was originally prosecuted for stabbing a cooperating robbery victim and putting the victim into a dumpster to bleed to death. A Massachusetts’ court sentenced Horton to LWOP for the crime. 12 years later, Horton was released on a weekend furlough from which he did not return — instead traveling to Maryland. There, Horton twice raped a woman after pistol-whipping, knifing, binding, and gagging her fiancé. He then stole the car belonging to the man he had assaulted. He was later captured by police after a chase.
But it has somehow become a liberal talking point that it was racist to bring Horton up, even though Dukakis publicly supported the furlough program for prisoners like Horton.
If Mitch Daniels supported a program that idiotic, I’d have severe doubts about his judgment, too.
December 20, 2010, 9:52 am1040 says:
Thank you for so helpfully summarizing the “liberal talking point”. Even though it is wrong. The racism was in the context. The revolving door ad of GHWB which showed Hispanic and black criminals alone, or the description of William Horton as “Willie”, or Roger Ailes remark about the only doubt being whether to show “Willie” Horton with a knife in his hand or without it.
December 20, 2010, 10:05 ambailey says:
The big political problem with “sentencing reform” is that criminals get released and go do what it is they do ie. commit crimes and victimize citizens. If you are a pol and your policies lead to an early release of someone who goes and murders or rapes someone, is it not “adult” to expect accountability for your policy choices? If no such thing happens with Daniels, he’ll do fine and no one will care.
December 20, 2010, 10:12 amUrso says:
Then there are places where they’ll lock you up for having an unpaid parking ticket in a different jurisdiction…
http://www.nola.com/crime/index.ssf/2010/12/report_concludes_nopd_wastes_t.html
December 20, 2010, 10:56 amDave N. says:
Yes, because it is racist to note that Horton’s preferred weapon was a knife. As I said the policy is indefensible, so the liberal thing to do is to change the subject.
December 20, 2010, 11:04 amOrin Kerr says:
orin — why was my first comment deleted? There was no attack on you or any of the commenters in it.
Because it led many other commenters to attack your position, leading to about a dozen comments about Willie Horton that had nothing to do with the comment thread. To try to keep the thread about Mitch Daniels, I deleted all of those comments together with the lead comment that triggered them.
December 20, 2010, 11:46 amOrin Kerr says:
I should add, 1040, that your returning to the Willie Horton story after I deleted your comment will now help make this a thread about Willie Horton again, with all the stupid partisan bickering that follows from that. Oh well.
December 20, 2010, 11:49 amMike says:
I’m entirely willing to believe that many offenders who are released from prison will commit crimes.
For the people being discussed, however, that crime will likely be non-violent use of illegal substances. I think I can live with that.
Why in your argument is there no difference between relaxing sentencing for nonviolent offenses and giving early release to rapists and muggers? Even if many violent offenders start as nonviolent offenders, they are a minority even among the nonviolent offenders. You might as well lock up people who exceed the speed limit, as I’m sure most murderers have gotten at least one traffic ticket in their life.
December 20, 2010, 12:08 pmDavid M. Nieporent says:
(1) The first claim is a flat-out lie. The revolving door ad did not “show Hispanic and black criminals alone.”
(2) I don’t know when the word “Willie” became racist.
(3) A private smart-alec comment by Roger Ailes is relevant to what, exactly? How does a comment which says nothing about race somehow show racism?
Sorry, but the only “context” is the liberal idea that groups matter rather than individuals, such that a black criminal is a stand-in for all black people, rather than simply a criminal who happens to be black.
December 20, 2010, 12:21 pmDavid M. Nieporent says:
Oops. Saw Orin’s comment after I posted; sorry to discuss Willie Horton.
They are very different issues; the Willie Horton issue was not about “sentencing reform” at all.
December 20, 2010, 12:27 pmSarcastro says:
I came for the rational discussion of sentencing reform. I’m staying to see if Orin’s internet hopes get dashed against the rocks of Horton-induced partisan madness.
December 20, 2010, 1:06 pm1040 says:
Sure, feel free to remove it then.
Willie Horton is relevant precisely because it shows how the Republicans have made their image being tough on crime and the grief they will bring to bear on any crimes that might result based on somebody being released as a result of sentencing reform.
But maybe a republican taking the lead is the only way it will happen. who knows?
December 20, 2010, 1:33 pmbailey says:
All anyone is saying is that sentencing “reform” is not risk free. Huckabee caught plenty of abuse not that long ago with a grant of clemency for someone who went on to kill cops. I am certain that no politician, be they R or D, will be so insensitive as to use that against him.
December 20, 2010, 2:05 pmSeattle Law Student says:
Bailey – Sentencing reform and clemency are two different things.
Huckabee granted clemency to Clemmons (the murderer of four Lakewood WA police officers) apparently based in large part on Clemmons’ supposed reform in prison, his youth at the time of sentencing, and his “newfound” Christian faith. Sentencing reform would change the rules for everyone convicted of a particular crime, irrelevant of personal circumstances.
I am personally appalled at Huckabee’s clemency decision, in part because he appears to have given great weight to Clemmons’ christian faith. I wonder would a devout Jewish, Hindu, or Muslim clemency petitioner have the same chance of success.
December 20, 2010, 3:08 pmDave N. says:
By the way, someone up thread mentioned they thought the Tea Partiers might have a problem with Daniels because he served as OMB director under George W. Bush.
I would note two things: 1) I didn’t see the Tea Party shun Ron Portman’s Senate bid, even though he served as OMB Director after Daniels did (2006-2007); 2) Daniels’ tenure as OMB chief was at the beginning of the Bush Administration (2001-2003), which I think precedes when many Tea Parties think Bush lost his way.
December 20, 2010, 3:35 pmwhit says:
here where i work, we actually just received a report that we have significant EXCESS prison/jail space… this is not surprising considering crime has been dropping for decades.
regardless, i’ll skip the nuance and say that imprisoning people AT ALL for drug possession is stupid.
i *am* tough on crime, but not tough on policing what people put in their bloodstreams
December 20, 2010, 4:00 pmHoward says:
No, the conservative thing to do is to give him a nickname that makes him sound black, even though it’s not his nickname, then, after the ad has been approved, add a scary-looking mug shot that is “every suburban mother’s worst nightmare.” Look out, whitey! Criminals of unspecified race are gonna getcha! It strikes me as a dumb policy, but don’t tell me they were arguing it on the merits.
December 20, 2010, 4:39 pmHoward says:
Oops for me too. Ok, here’s a comment on sentencing reform. If it’s somebody’s decision to let a large number of nonviolent offenders out of jail, there’s political risk because statistically one or more of them is likely to commit a violent crime, even though there was no objective reason to hold them. Easier to change the standard prospectively, but that takes a long time to relieve overcrowding.
December 20, 2010, 4:56 pmFree Society says:
Governor Daniels announced a plan to study the State’s sentencing laws, together with two non-profit groups, the Pew Center on the States and the Council of State Governments Justice Center, to see if the state’s criminal sentences had become too punitive.
No such thing.
December 20, 2010, 5:21 pmHoward says:
So you favor the death penalty for speeding?
December 20, 2010, 5:27 pmbailey says:
Death penalty for speeding? Probably a little severe but how about the silliness you sometimes get where a columnist or writer thinks it puzzling that crime is going down despite the prison population increasing. Junkies and drug addicts usually get to where they are at in prison by committing “non-violent” crimes like smash and grabs, B&E’s and all sorts of things that people don’t find acceptable. You usually have to work your way into prison and generally don’t get sent there for your first offense dime bag. You’ve usually had a few chances before the iron bars clang behind you.
December 20, 2010, 5:45 pmFree Society says:
Speeding is an infraction, not a crime. But a society that lets the small things slip by will soon suffer larger problems. A zero tolerance policy for minor crimes in many major cities has led to a significant decline in overall crime rates.
December 20, 2010, 6:28 pm1040 says:
Multiple serious studies have shown that the broken windows theory confuses correlation with causation.
One of those studies, which garnered lots of publicity for a different reason, was the abortion explanation in Freakonomics.
December 20, 2010, 7:13 pmwhit says:
two points
1) we’ve had this discussion before. last checked, there were still SOME jurisdictions where speeding, etc. are still traffic CRIMES, although in most jurisdictions, such things have been decrim’d and are in fact infractions
2) “has led to”. correlation =/= causation. yes, we are all familiar with broken windows theory. however, it should be noted that generally speaking, crime was dropping PERIOD nationwide in the same timeframe. also note there is a significant difference between minor crimes and minor crimes that do not hurt other people. drug use falls in the latter category.
i have seen no evidence, for example, that cops, prosecutors etc. routinely ignoring pot possession has any negative effect on crime etc.
that’s the kind of stuff we are talking about. fwiw, where i work, nobody gives a flying #$(#$( about minor possessory offenses of pot, except maybe buck rookies looking to pad their stats.
it’s a de facto decrim/legalized thang, since most cops aren’t going to waste their time with it.
December 20, 2010, 7:14 pmMitch Daniels on Sentencing Reform | Yet Another Blogging Lawyer says:
[...] Orin Kerr points out an interesting bit of news about Mitch Daniels, GOP presidential possibility and Governor of Indiana. Indiana’s prison population has spiked in recent years, and state officials realized that they were going to have to spend about $1 billion in new prisons over the next 7 years to fit all the prisoners in the state prison system. In response, Governor Daniels announced a plan to study the State’s sentencing laws, together with two non-profit groups, the Pew Center on the States and the Council of State Governments Justice Center, to see if the state’s criminal sentences had become too punitive. The groups published their report, which found that the drug laws had become too draconian and “one size fits all,” and that there wasn’t enough support for susbtance abuse treatment. The report recommended less punitive and more nuanced sentencing laws for nonviolent drug offenses as well as better substance abuse counseling as a way to lessen the prison population and avoid having to build new prisons. Last week, Daniels endorsed the report. [...]
December 21, 2010, 9:24 amMitch Daniels on Sentencing Reform | Yet Another Blogging Lawyer says:
[...] Daniels on Sentencing Reform Posted on December 21, 2010 by Jonathan| Leave a comment Orin Kerr points out an interesting bit of news about Mitch Daniels, GOP presidential possibility and Governor of [...]
December 21, 2010, 9:24 amMB says:
As part of the new Public Policy Incubator Program at Arizona State University’s Sandra Day O’Connor College of Law, several students and their professor recently wrote a report on sentencing reform in Arizona.
“The report proposes several changes, including increasing pretrial diversion programs, expanding mandatory probation for drug possession, requiring drug treatment programs to use practices proven to reduce repeat offenses, establishing a statewide system of mental health courts with specialized public defenders to deal with mentally ill defendants, and encouraging plea bargaining. It also suggests creation of a Sentencing Commission to collect data, study successful sentencing reform in other states and suggest further changes to the Legislature.”
An article about the report, as well a link to the report, can be found here: http://asunews.asu.edu/20101215_sentencingreport
An Op-Ed by the professor can be found here: http://www.azcentral.com/arizonarepublic/opinions/articles/2010/12/19/20101219hessick20.html
December 27, 2010, 2:39 pmDecember 31 roundup says:
[...] Daniels and Criminal Sentencing Reform in Indiana” [Orin Kerr] Daniels isn’t backing down from call for truce on social issues [...]
December 31, 2010, 7:12 amEfficient Government, Indiana edition | Morton and George says:
[...] on statistical measures of success and demanding compliance with incentives. For example, he commissioned a study to determine how to reduce prison budgets and confirmed what crime expert Mark Kleiman has [...]
January 10, 2011, 12:21 am