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The Victims of "Smart Sentencing"

Over most of the past decade liberal groups, which originally opposed and have for years sought to eliminate the so-called  "harsh" habitual criminal sentencing policies adopted in the 80s and 90s, have launched collaborative efforts with libertarians and some Republicans to encourage alternative sentencing.  "Right on Crime","Smart on Crime" and "Smart Sentencing" advocates have been successful at changing policies in many parts of the country to reduce sentences for criminals categorized as non-violent, and placing them instead in community programs to help them become law-abiding members of society, with the promise of saving millions in state and federal prison costs.  At a time when crime rates are relatively low, and our European betters and Hollywood movie stars are constantly scolding America as the incarceration nation, the allure of an America where bright, dedicated government employees guide minor offenders off the criminal path is difficult for many to resist. 
Most people have forgotten that this had been tried before.  Many do not remember the criminal plague of the 70s and 80s that turned millions of innocent people into victims.  Some were too young and others have forgotten how and why Three Strikes laws Federal Sentencing Guidelines and the Federal Armed Career Criminal Act were adopted.  As a result, we are relearning the lesson that consequences matter, and that most criminals do not rehabilitate until age forces them to do so. 

As in the past, California has become ground zero for alternative sentencing.  The state's so-called prison overcrowding was caused by a legislature which, in response to the voter's adoption of Three Strikes, refused to increase the state's prison capacity to handle a generation of criminals spawned by the last wave of alternative sentencing.  Now in its third year under "Public Safety Realignment", which has washed thousands of felons out of prison and requires counties to try and rehabilitate them, California is providing the nation with a teachable moment.  

Thursday Stockton police arrested Robert Lee White, a habitual felon free under Realignment, for the murder of a 38-year-old man.  He had been arrested for ditching parole and failing to register as a sex offender but was released after five days.  Before Realignment, a sex offender who violated parole would have gone back to prison.  White went to county jail instead, and the already-full county jail has been further overfilled by Realignment, forcing early releases.

Last year, an LA criminal free under Realignment murdered four people.  A sex offender on the streets under that law kidnapped a 12-year-old girl from her bedroom and raped her.  A San Francisco gang member free under Realignment shot three people then ran down and killed two bystanders during a high speed chase.  There have been people murdered in Sacramento, San Diego, Stockton, Fresno, Oakland, Fairfield and dozens of other California cities by so-called non-violent criminals released to light supervision and rehabilitation under Realignment.  I am not counting the rapes, beatings, robberies, burglaries and tens of thousands of vehicles stolen by other known criminals that this "smart sentencing" law has kept out of prison.  For and extended chronicle of the impact that Realignment has had on public safety in California visit the link here.


Mike --

A timely and sobering post. I hope people will learn from it. I'm going to incorporate it in my Federalist Society National Convention panel discussion with former Attorney General Michael Mukasey this November.

Is there a website I can go to in order to follow the California crime rate? I know it went up in 2011 and 2012 in the wake of Realignment. Do you know if the 2013 figures are out yet? What source do you use for California's crime figures?

We get our statistics from the FBI Uniform Crime Reports. The full report for 2013 should come out next month.

In the latter half of 2013, reports from the FBI and the Public Policy Institute of California (PPIC) documented statewide increases in property crime of 7.4% and violent crime of 3.7% in 2012. This was well above the national average and rates in most other states. Some California counties suffered much higher violent crime rates. Violent crime in San Diego County jumped by 8.8%, Orange County by over 9%, Sacramento County by 8.5%, and Contra Costa County by 12.6%

I agree, Michael, that there is much to learn from California's recent experiences with sentencing reform, but I think it is a lesson in "dumb sentencing," not smart sentencing. As you likely know, states that have been proactive with truly "smart" sentencing reforms as prison populations grow --- red states like Texas and blue states like New York --- have been able to reduce prison populations without an obviously harmful impact on public safety. Thus, when sentencing reform is done in a proactive and smart way --- as recognized by folks on the right ranging from Jeb Bush to Ken Cuccinelli to Newt Gingrich to Grover Norquist to Rand Paul to Rick Perry --- there is not certain to be a negative impact on public safety.

But California failed to take proactive smart steps during the Schwarzenegger administration --- either to raise taxes to build more prisons or to reform its sentencing laws (perhaps with the help of a sentencing commission) --- when the severe problems with prison overcrowding became so very clear. So, rather than get moving forward with smart, data-driven reforms, California was forced to take emergency reforms only once the Supreme Court confirmed the US Constitution could not tolerate a prison system so dysfunctional that a prisoner was dying every week unnecessarily. Those regular prisoner deaths were the result of dumb sentencing in California, just as may be additional harms you are eager to lay at the feet of Realignment.

Like you and Bill, I see the crime problems that may be the result of Realignment to be an important lesson in modern sentencing reform. But that lesson is that states should --- ideally with the help of a commission and other wise, data-driven investments --- get started on smart sentencing reforms before to price of dumb sentencing leads to all the harms in California that you justifiably lament.

The proactive smart step that the California Legislature -- not Schwarzenegger or his predecessors -- failed to take was to build enough prison capacity. California never did have drug laws as severe as New York's, and they had been further softened by an initiative years earlier. We didn't have a lot of room for reduction in that area. And for all the publicity the "three strikes" inmates generated, there weren't a lot of them and still aren't. They weren't a major factor in the overall numbers.

Simply put, California had not been locking up substantial numbers of criminals who did not need to be locked up, so large reductions could not be achieved without endangering public safety. The three-judge court's finding to the contrary was nonsense, and people are dying as a result.

Pointing to reductions in other states that had more severe laws and different prison populations to start with does not make a case to the contrary.

Fair points, Kent, though I am not sure your 3-strikes claim is fully accurate when you consider its second-strike. Weren't about 3000 offenders with a non-violent 3d strike impacted by the 2012 reform? And don't thousands of second strikers get their sentences automatically doubled EVERY year? I saw an article earlier this year reporting that there are "about 24,000 [second strikers] in prison on a non-violent second-strike offense."

Most critically, Schwarzenegger called the prison situation an emergency many years before the SCOTUS Plata ruling AND there has been advocacy for a sentencing commission to help with truly "smart" sentencing reforms for even longer. But political divides kept solutions from emerging, which in turn led the Plata judges/Justices to realize they had to make a constitutional ruling to get anything to happen.

Fault whomever you want for this state of affair --- and there is plenty of justified blame to go around --- but I think it is misguided to look to the California experience and call it a lesson is "smart sentencing." Rather, and this is my main point, what has transpired in California is proof of the dumb things that can and will happen--- and serious harms to prisoners and the public at large, not to mention taxpayers --- if/when political in-fighting precludes proactive data-driven "what can work" fiscally-responsible reform to sentencing and correction systems.

Finally, to the extent you now claim Kent that California has less-severe laws and worse offenders, you are undercutting the thrust of Michael's claims that we ought not move forward with reforms elsewhere because of the rise in crime in California. In the federal system which I know best (and which Michael references in the main post), a whole lot of non-violent offenders are serving very long prison terms and statutory reforms that I support (and Bill opposes) like the JSVA and SSA and others could help reduce the risk that the feds follow in California's dumb footsteps AND increase the prospect of following the smart Texas path.

The problem is, neither state or federal governments, using the best "data driven" tools available, have not been very good at determining which so called "non-violent" offenders are going to commit one or more violent crimes. The offender I cited in my post is just the latest "non-violent" offender who killed someone. This was not an isolated case, as a brief review of the Realignment press releases on our website demonstrates.

The smart Texas path is a very measured exercise which required a functional legislature and a responsible executive branch to enact and monitor. There are also half a dozen other good reasons why comparisons of Texas with California, or Ohio, or New Jersey or any other state, are unworkable. The success of smart sentencing in Texas over the long term is still an open question.

Some rehabilitation advocates have been honest enough to admit that California's Realignment, which has all the "smart sentencing" ingredients, is an experiment. Sadly, there has been some collateral damage while the glitches are worked out, a few hundred deaths, rapes, maimings and a few hundred million in property losses so far, but advocates still believe it might work.

For too many reasons to note here, the experiment will never work, and it is not OK for innocent people to die or have their lives permanently scarred before society learns that lesson again. What is happening Douglas, is that a new generation is learning that "smart sentencing" means that getting caught for most crimes nets the eqivalent of a stern lecture. Real punishment does not come into play until you are caught and convicted of killing or injuring an innocent person.

The positive effect of several years of smart sentencing is that nationally, home and commercial security businesses are booming. Those who follow the news may have also noticed that the law abiding public has decided that it's time to buy one or more guns for self defense.

Doug, my "three strikes" argument is fully accurate for the argument I actually made -- the third strikers so prominently featured in the opponents' argument that we are locking up people for much longer than is warranted by their crimes are an insignificant portion of the total.

The second-strike aspect of the same law is a different issue. On that point, the doubled sentences are justified on both retribution and incapacitation grounds, and possibly deterrence as well. A person who has been given a second chance and returned to crime should get a much longer sentence. The fact that the second offense is "non-violent" does not mean it was not serious. Someone who breaks through my bedroom window at midnight with a gun in his waistband is dangerous and needs to be locked up for a long time if he's done this before, even though I don't happen to be home on that occasion.

Your faith in sentencing commissions to be "smart" strikes me as quite naive. There is no reason the Legislature can't rework the Penal Code by straightforward legislation. The calls for commissions come from those who want the final product to be more lenient than the public wants (and the public is right) while letting legislators off the hook.

What the California debacle illustrates is that a lot of people are running around calling any reduction in the severity of sentencing "smart" even when it is quite stupid.

Michael simply did not say we should not move forward with any reform anywhere. He did not say there are no laws anywhere that are too severe and should not be modified. That is not CJLF's position. We noted favorably on this blog the reduction of the 100-to-1 crack-powder ratio initially put into the law by Joe Biden et al. You are employing the straw man fallacy.

We need to proceed very cautiously. We are in danger, at this point, of a combination of liberals, libertarians, and the media pushing through stupid changes while calling them "smart." The fact that this has indeed happened in California should be a caution to the rest of the country.

Doug --

The fact of the matter is that the specific early releases Mike talked about in his post have resulted in multiple homicides. If the killers had still been serving their original, and fully legal sentences, none of them would have happened.

I was wondering if you could put a price -- a specific dollar figure, please -- on the life of the 38 year-old man killed by Robert Lee White. How much is it worth in saving incarceration dollars to have put the killer prematurely out on the street?

Again, specifics, please. On your blog, you often give us specific figures about the amount SAVED (or projected to be saved) by early release plans. What I'm hoping for here is an equally specific figure for the amount LOST by one.

After that, I'm hoping you might designate (1) how you know that the authorities in an enlightened, Blue State like California got to be so much more stupid that the retrograde wahoos in a Red State like Texas, and (2) what guarantees you'll offer that, assuming the California authorities get A Whole Lot Smarter -- as you have suggested they should become -- that there will be no repeat of the episodes Mike related in his post.

If you will not offer such a guarantee, would you provide us with some method -- scientific and enlightened, of course -- for designating the people who'll get killed by the Smarter Sentencing System's inevitable errors.

If you won't do that, then I beg your indulgence for believing that what "Smart Sentencing" is really about is preferring the liberty interests of criminals to the safety interests of everyday citizens.

As always, I appreciate the engagement with smart folks who seek (like me) to oppose dumb sentencing reforms, as do I. And that was my main point in this thread: that California's experience (and its various harmful outcomes) should not be viewed as a lesson in truly smart sentencing. It would be better to call California's experience an example, as Kent puts matters, of labeling as "smart" what has been quite stupid.

As I assume we all recognize, these are hard public policy issues both normatively and empirically. Notably, while Bill and Michael are quick to stress the sad death of Robert Lee White, others in the Plata litigation were quick to stress a prisoner dying unnecessarily every week in California because of all the dumb funding decisions made in the state. Though I will not try to quantify what any of these lives or death were "worth," I will persist in stressing that smarter, proactive data-driven sentencing reforms as we have seen in Texas are preferable (both economically and on lots of other metrics) to dumber, reactive, instinct-driven reforms we have seen in California.

And this is not a matter of Red vs. Blue state, Bill, but rather a matter of trying to do good government given the inevitability of some crime and on-going risks to public safety. I could claim, Bill, that if we have not repealed Prohibition, the 25,000+ innocent Californians who have died from drunk driving in the last few decades never would have happened. But that claim (and those lives lost) does not itself prove repealing Prohibition was a mistake, it rather suggests we try to improve government policies to make Californians safer.

We all know, no matter what our policy choices, there will be repeat offenders who kill and drunks drivers who kill on California and elsewhere. But that fact alone is just a reason to try to do this part of government smarter. That is my point, and California's experience bears it out, I think.

Finally, I agree Kent that a Legislature should be able to reform laws smartly without needing an expert commission. But such a commission helps, for a number of reasons, as the very reform of federal crack laws highlights. That reform came to happen in large part because the USSC kept saying, again and again based on good data, that such reform was justified. Similarly, I think a sentencing commission in California could better --- but not perfectly, of course --- sort through research/data on early releases under realignment to try to make a dumb, reactive, instinct-driven reforms a bit smarter. That has proven to be the case in both red and blue states nationwide --- i.e., sentencing commissions are not perfect, but they tend to help a legislature do better --- but you and Bill and others want to believe (wrongly) that this is all about partisan politics rather than about sound policies. I will readily note that politics plays a big role --- especially with respect to death penalty issues --- but there is still a big part of the equation that is about sound policy.

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