White collar sentencing amidst criminal justice “reform”

The criminal justice “reform” movement is worth watching.  It could actually result in some bipartisan legislative changes to the federal criminal justice system.  As I have said before, I am on board with some aspects of this effort (e.g., overcriminalization, overfederalization, strengthening mens rea elements) and am more troubled by others (e.g., overstated focus on “mass incarceration,” eliminating some mandatory minimums, and other proposals).  I’m confident that some of these reforms will represent important and needed changes in federal criminal justice policy; others will be counterproductive; some will likely make little difference.  But anyone following these efforts – and anyone who is on board with the “mass incarceration” narrative and the effort to free non-violent drug offenders from federal prisons – should check out Jeff Smith’s commentary in Politico.

Smith was a Missouri state senator who was sent to federal prison for violating federal election law.  His commentary, based on his recent book on the same subject, describes his time in prison.  He also describes the reaction of his prison counselor when he first reported to the prison.  After looking at Smith’s background and offense, the counselor says: “This is crazy.  You shouldn’t be here.  Complete waste of time.  Money.  Space.”

For those interested in reducing “mass incarceration” and releasing those who have not committed violent crimes and pose no real danger to the community, why all of the focus on drug offenders and not on white collar offenders?  Releasing drug offenders with no connection to violent crime or criminal organizations may make some sense, but it will not really put much of a dent in our incarceration numbers.  You almost surely have to dip into the violent offender pool.  But if the idea is to free up public resources and prison space for people who present the greatest threats to free society, shouldn’t white collar offenses like fraud, insider trading, campaign finance violations, and other public corruption offenses also be part of the dialogue?  This is not to say that such conduct should not be criminal (though, for some of these kinds of crimes, that is a legitimate argument to have), or that it should not be punished.  But some white collar sentences can be quite long (e.g., Rod Blagojevich and William Jefferson, 14 years and 13 years, respectively, for political corruption; Matthew Kluger, 12 years for insider trading).   When should they be?  When is a lengthy sentence for a white collar offense a waste of precious time, money, and space?  I understand the arguments about deterrence and about sending a message to these offenders, but those arguments could well be made with respect to any kind of offender, including non-violent drug offenders.  The President’s remarks at the El Reno federal prison this summer highlighted the problem of long sentences for non-violent offenders, but again, focused on drug offenses (what he said were the “primary drivers” of “mass incarceration;” not sure about that).

I get that there are distinctions to be made here.  I certainly acknowledge that non-violent crimes can cause substantial harm, harm that in some cases may warrant imprisonment, even significant imprisonment.  Moreover, my track record of supporting severe sentencing for violent crimes is well-established.  Looking at my career, no one will mistake me for the “soft-on-crime” type (though I’m not sure precisely what that is).  But not all “crime” is the same, just as not all criminals are the same.  My point is simply that any meaningful discussion of sentencing reform and “mass incarceration” needs to focus on all non-violent federal sentencing, not just drug offense sentences.



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