Jurisprudence

Law and Order: Dinosaurs

Trump picked a mass-incarceration advocate obsessed with “black-on-black” crime for a job setting federal sentences.

Bill Otis.
Bill Otis.
Screenshot via PBS NewsHour.

On Thursday, President Donald Trump announced four nominees to the U.S. Sentencing Commission, the powerful agency that promulgates sentencing guidelines for federal courts. Trump nominated three federal judges to the seven-member board as well as a man named Bill Otis, all of whom will require Senate confirmation. Otis’ nomination marks one of the Trump administration’s most aggressive moves against criminal justice reform, and all senators who have professed to care about the issue should vote against his nomination. A prominent pro-prosecution crusader, Otis passionately defends the same law-and-order policies that created our current crisis of mass incarceration.

Otis worked as a federal prosecutor at the Justice Department for 25 years, though he never tried cases himself. He also served as special counsel to President George H.W. Bush. He currently teaches one class at the Georgetown University Law Center and advocates incessantly for lengthy prison sentences. Otis vigorously supports mandatory minimum laws, particularly in drug sentencing, which he attributes (without empirical evidence) to the decline in crime rate. He sharply criticized then–Attorney General Eric Holder for shifting away from mandatory minimums for nonviolent offenders and praised Attorney General Jeff Sessions for shifting back to them. (To avoid longer sentences, he wrote, criminals should “consider quitting the smack business and getting a normal job like everybody else.”)

In 2016, Otis lambasted President Barack Obama for commuting the sentences of many nonviolent drug offenders, calling his move “over-the-top extremism.” Otis actually goes so far as to reject the notion that it’s possible for drug offenders to be nonviolent, because addicts can die of overdoses. (Prosecutors have increasingly used this theory to bring murder charges against drug dealers.) He dismisses reformers as “pro-criminal” advocates who want to be “nice to drug pushers” by letting “robe-wearing partisans” impose more lenient sentences. And he supports life without parole for juveniles.

Naturally, Otis also despises the Black Lives Matter movement as well as intellectuals and academics who support its goals. He calls them the “Amerika Stinks” crowd and blames them, in part, for a present era “of cultural rot impersonating advanced thinking.” In 2017, Otis asserted that “black-on-black violence—an ugly, everyday occurrence in American cities—wreaks far more damage than police abuses.” He continued:

While such abuses must be honestly confronted and curbed using all the tools of the law, reality is what it is. By far the major source of misery in black communities is violent crime, much of it driven by drug gangs. We are not going to succeed in suppressing that violence by hectoring or handcuffing the police. Instead, we are simply going to accelerate the devastating crime trends of at least the last 24 months.

Otis also gave a partial defense of the arrest of Eric Garner in 2014. Otis pilloried George Will for questioning police officers’ decision to arrest Garner for illegally selling “loose” cigarettes. He pointed out that Garner was violating New York tax law and wrote that “[n]either such taxes nor criminal penalties for evading them had previously been thought to be the hallmark of despotism.” It’s perfectly reasonable, he explained, that “the government will use force to implement criminal law.”

Although Otis endorses punitively long sentences for most offenders, violent and nonviolent, he has, at times, taken a softer stance—as in the Scooter Libby case. A former adviser to Vice President Dick Cheney, Libby was convicted of perjury, obstruction of justice, and making false statements for his role in the Valerie Plame affair. A federal judge sentenced Libby to 30 months in prison, two years’ probation, and a $250,000 fine. Otis wrote an op-ed in the Washington Post arguing that this punishment was “excessive.”

“Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison,” Otis wrote, adding that “Libby thought he was serving his country” by committing perjury and obstruction. “A sense of proportionality,” he concluded, “argues in favor of eliminating Libby’s prison term.” President George W. Bush wound up doing exactly that, while leaving the rest of his sentence intact.

Otis has also written that special counsel Robert Mueller’s investigation into collusion between Trump and Russia is “politically tainted.” And he has accused the New York Times of habitually “lying against Donald Trump.”

It’s easy to see why the Trump administration settled on Otis for the Sentencing Commission: He will be able to advocate for the draconian punishments that Trump and Sessions have championed. Indeed, Otis is already well-practiced at framing narratives in a manner that aligns neatly with the administration’s position. On the same day that his nomination was announced, Otis published a blog post titled “The Staggering Cost of Leniency” in which he blames the Parkland, Florida, shooting on “the soft policies I have spent years opposing.” He views the massacre not as a result of lax gun laws but as “the [cost] of leniency” demanded by “the soft-and-softer crowd.”

The Sentencing Commission’s guidelines aren’t binding, but all federal judges take them into consideration and most follow them quite closely. Judges who don’t comply with the guidelines are much more likely to have their sentences reversed on appeal. If confirmed, Otis will have significant influence over the rules that determine how long federal offenders must languish behind bars. In recent years, the commission has shortened sentences with the goal of reducing federal prison populations. Bill Otis is just the man to keep those prisons at maximum capacity.