Fact Checking the Washington Post on Sentencing Reform

February 8, 2016 3:03 PM | Posted by Bill Otis | 0 Comments
The Washington Post’s “fact checker” evaluated Sen. Tom Cotton’s statement that the SRCA would “release thousands of violent felons.”  It’s analysis is here.  It concludes:
There are thousands of inmates  11,524, to be exact  who would be eligible for resentencing under the Senate bill. But not all of them are convicted of a violent crime, and it’s unclear exactly how many of these inmates would actually get their sentences shortened if the bill became law. There are 3,433 inmates in the two sections that include people who may have been convicted of a violent felony. Even then, those inmates may be there because of a sweeping law that has been found to impose excessive sentences.
Cotton is of the opinion that drug traffickers are still “violent felons,” even people who are not technically convicted of a crime of violence. We can’t fact-check opinions, but we’ll note that “violent felons” generally conjures the image of a murderer, not a drug dealer caught illegally possessing a gun  or just a bullet.
Cotton’s claim minimizes the provisions in the bill that target actual violent offenders while alleviating excessive sentences for low-level drug offenders. The bill is intended to address over-incarceration of low-level, nonviolent offenders. Even if all eligible inmates petition for a reduced sentence, the ultimate decision is with a federal judge. Cotton creates a misleading impression of this complex legislation, and earns Two Pinocchios.
Now let’s fact-check the Post.  Three Pinocchios.
Where to start?
—  The Post says at the outset that the legislation aims to alleviate “over-incarceration” in federal prisons.  It thus simply assumes one of the staples of the sentencing reform movement  —  that current levels of incarceration are excessive and that current punishments don’t fit the crime.  But that, as the Post says of Cotton, is simply an opinion.
The Post is entitled to its opinion.  But it is not entitled to call its opinion a “fact-check” on opposing opinions.
—  The SRCA would release criminals not crimes The pertinent question for deciding whether to reduce an existing legal sentence is whether the criminalis violent, not whether the specific crime for which he went to jail is.
A huge number of potential releasees  —  much larger that the Post lets on  —  have violent backgrounds, whether or not violence was undertaken in the particular crime they were jailed for (often a bargained-down version of more menacing behavior).  Indeed, they can be violent men in ways unconnected to their drug dealing (e.g., Wendell Callahan, the early release/child killer from Columbus, Ohio).
—  As Sen. Cornyn and Sen. Grassley, among many others, have correctly pointed out in the past, the dealing of hard drugs is an inherently violent business.  The fact that there was no (or not much) violence in the particular offense of conviction scarcely means the person convicted did not or will not engage in violence, and still less that he is at “low risk,” as we are constantly told.
—  That a judge has to approve the release is hardly a guarantee against the trafficker’s future violence.  Many judges like Jack Weinstein and John Gleeson support the push for lower sentences, and they are likely to view re-sentencings through a rosy, ideological lens.  But even where judges are playing it straight, they are certain to err (e.g., the reputable Judge Graham in the Callahan case).  Why should unsuspecting future victims bear the risks of error?  And in the real world of the drug trade, those risks and harms will be borne disproportionately by minorities  —  a fact central to this debate, but which the WaPo whistles past.
To use language our friends on the Left would love, there will be no accountability for mistaken or even deadly releases under the SRCA.  Bad decisions would be made by the powerful, but paid for by the marginalized.
—  The fact checker focuses on the trees while ignoring the forest.  She never mentions the thousands of Sentencing Commission early releases going on right now, at levels authoritatively predicted to reach 46,000.  The SRCA releases would come on top of that.  Thus the number of hard drug traffickers potentially eligible for early release is four or five times what the fact checker is telling us.  That is, obviously, a huge blind spot, and extremely misleading to the Post’s readers, including its (intended) audience in Congress.