The U.S. Sentencing Commission is a bipartisan, independent, seven-member panel that sets sentencing guidelines for federal judges. Although it rarely attracts public attention, in recent years it has done more than Congress or the White House to reduce the population of the federal prison system, mainly by recommending lighter sentences for drug offenses.
In the nearly three decades since its creation, those who closely monitor the commission cannot remember a time when a nominee was contested in a Senate confirmation hearing.
But the nomination of Georgetown University Law Professor William G. Otis, a flamboyant advocate of the tougher-on-crime views endorsed by President Trump, has infuriated criminal justice reformers and prodded some senators to consider trying to block the appointment.
“We will not make this an easy vote,” said Kevin Ring, president of Families Against Mandatory Minimums. “The commission has been the venue for the biggest and best reforms over the last 20 years.”
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.
But the 70-year-old judge is viewed as fair-minded, according to attorneys who have faced him. His nomination to the federal bench by President George W. Bush in 2002 easily won Senate confirmation.
Otis’ nomination, on the other hand, is regarded by critics as putting a fox in the henhouse. Before a House subcommittee in 2011, he 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.
An influential conservative op-ed writer and cable news contributor, Otis has served as a federal prosecutor in Virginia, an advisor for the Drug Enforcement Administration and special counsel to President George H. W. Bush.
Messages left for Otis through Georgetown Law and for Hudson at the Richmond, Va., federal courthouse were not returned.
Otis’ musings on federal sentencing trends can be found on the Criminal Justice Legal Foundation-sponsored blog, Crime and Consequences, as well as in news interviews or Congressional testimony over the years.
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.
In a 2013 blog post, Otis defended a judge who said blacks and Hispanics are “more violent than whites” and added that “Orientals” hold “values” that keep them out of jail.
He has mocked scholars who disagree with him, writing on one occasion that “liberal academics don't have to live in crime racked neighborhoods — a fate foisted off on Lesser People.”
He has said sentencing reform proposals to keep “low-level offenders” out of prison are misleading.
“Low-level offenders seems to me to be an undefined phrase,” he said. “You don't know exactly what low level means. Often it's used to mean a courier in a drug business. What people don't realize as much as they should is that a courier in the drug business is just as essential as a car is in a pizza delivery business.”
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.”
“Increasingly, we have turned away from America's strength and resolve, and have discounted the interests of those who lead peaceable and productive lives in order to cut breaks to those who don't,” he wrote. “The way forward in criminal sentencing is not an embrace of the soft thinking and disastrous results of the Sixties and Seventies.”
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.
Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, defended Otis in a blog post, saying the Georgetown professor is unfairly picked apart on issues of race and for being “behind the times.”
“In subjects this controversial, if nobody hates you, you aren't accomplishing anything,” Scheidegger wrote. “The people saying Bill is a throwback to the 80s are themselves a throwback to the 60s. They have forgotten the history of deluding ourselves into thinking we could magically rehabilitate all criminals, and their policies would condemn America to repeat that history.”
“Bill has a sharp legal mind,” Scheidegger said in an email to The Marshall Project. “Personally, I have found him to be a kind, gracious, and generous person. As for working with others on the commission, he would certainly be a vigorous debater. He can ‘disagree without being disagreeable,’ and if those on the other side of the fence can also then that debate can be constructive. If they choose to stoop to tactics such as seeing racists under every bed, that will be a problem with them rather than him.”