President Trump has nominated an extremist to the U.S. Sentencing Commission, one Professor William G. Otis of Georgetown Law, whose other credits include a stint at DEA under George H. W. Bush and a federal prosecutor gig in Virginia. His nomination hasn’t attracted much attention in this crowded landscape of nominations and confirmations. It should: If confirmed, Otis would have a lot—a lot—of potential to thwart sentencing reform and even sabotage the Sentencing Commission, which is integral to reform.
The U.S. Sentencing Commission, a bipartisan, independent agency located in the judicial branch of government, was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.
The Commission collects, analyzes, and distributes a broad array of information on federal sentencing practices. The Commission also continuously establishes and amends sentencing guidelines for the judicial branch and assists the other branches in developing effective and efficient crime policy. Learn the basics of federal sentencing.
The glaring issue with Otis’s nomination: He opposes the Commission’s existence and mission.
Before a House subcommittee in 2011, [Otis] called for abolishing the Sentencing Commission altogether, declaring that its guidelines “favor the criminal” and labeling it “an overfed lemur” that costs too much and no longer has the respect of the judiciary.
Expect him, if confirmed, to block every sentencing reform he can.
Sentencing reform, he said, is “part of our country’s recent pattern of decline and retreat, of settling for lower standards in the name of a toxic brand of equality.”
Recognizing of the implications of Otis’s confirmation, proponents of reform have vowed to fight his confirmation—a first for nominees to the Sentencing Commission.
“We will not make this an easy vote,” said Kevin Ring, president of Families Against Mandatory Minimums [FAMM]. “The commission has been the venue for the biggest and best reforms over the last 20 years.”
FAMM is reaching out to senators and the public alike to block Otis’s confirmation.
In a letter to the Senate Judiciary Committee, FAMM urged senators to oppose Otis, calling him “an ideologue who seems impervious to evidence and data.” Otis has asserted that “when we have more prison, we have less crime,” FAMM said. But crime rates and incarceration rates have declined at the same time for most of last decade.
Beyond his facially faulty positions on the commission and reform, Otis seems immune to reasoned analysis and devoid of concern for the social effects of higher rates of incarceration.
In blog posts, he has written that he believes the harsh crime policies and War on Drugs prosecutions of the 1980s and 1990s contributed to the precipitous crime rate drop in subsequent decades.
“Our whole sentencing system that started in the Reagan-Bush era, the system of guidelines and mandatory minimums has been a big success,” he said. “If one judges the success of the criminal justice system by the crime rate rather than the incarceration rate, under the system we’ve had and that Jeff Sessions is now restoring, there has been a tremendous fall-off in crime.”
Most researchers who have studied the drop in crime that began in 1991 agree that locking up more people played some role — but at a high cost in dollars, damaged communities and racial inequity. People of color are disproportionately represented in the nation’s jails and prisons.
Otis has adopted a particularly hideous (read: racist) explanation for why African American and Latinx people are overrepresented in prison. And it doesn’t have to do with faulty sentencing laws.
[O]n his Crime and Consequences blog, Otis wrote: "When Fifth Circuit Judge Edith Jones said at a University of Pennsylvania Law School talk that blacks and Hispanics are more violent than whites, a consortium of civil rights organizations filed a complaint. The complaint calls for stern discipline, on the grounds that the remarks were 'discriminatory and biased.' "
He added: "So far as I have been able to discover, it makes no mention of the fact that they're true."
BONUS: Otis also has thoughts on “Orientals” and incarceration. Thoughts that he seems to think prove he’s not racist: It’s just about values, folks.
“Orientals have less incidence of crime than whites. … The reason Orientals stay out of jail more than either whites or blacks is that family, life, work, education and tradition are honored more in Oriental culture than in others. Values, not race or skin color, influence choices.”
If confirmed, Otis would be perhaps the best poised of Trump’s appointees to institute the administration’s law-and-order crackdown ramblings. Not that Trump’s not also doing his best to get hardliners on the bench to dole out extreme sentences one by one.
Adding to the ire of reformers is a second Trump nominee, U.S. District Court Judge Henry E. Hudson, a favorite of Attorney General Jeff Sessions and a judge who acquired the nickname “Hang ‘Em High” Henry because of the harsh sentences he has meted out.
As a hard-charging prosecutor, he once said he lived “to put people in jail,” and he drew criticism for prosecuting a borderline mentally impaired man in a 1984 rape and murder. When the man was exonerated by DNA evidence after serving five years in prison, the judge said he saw no reason to apologize.