"Sentencing reform" is the deliberately gauzy name given the movement for shorter sentences and earlier release. Its advocates say it will be focused on "low level, non-violent" offenders, but quietly, and less prominently, acknowledge that it's intended to apply to "all offenders."
This is one reason I want to add explicit language to one of the main "reform" measures, the Justice Safety Valve Act, before it gets a vote. I want the public to know exactly what "all offenders" means.
It's also the reason I want to highlight an item from today's News Scan. The Scan is sometimes easy to pass by quickly, because it contains a number of stories. But this one deserves our immediate attention:
Sex Predator Gets Second Chance, Reoffends: Michael Shepard, released after serving a 15 year sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least seven children after being out of prison 18 months. Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter. He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence. Shepard claims that the children fabricated their stories.
Now it's possible that seven different children fabricated rape stories, just as it was possible the child victims in the Jerry Sandusky case from Penn State separately fabricated theirs. It's just not very likely.
Advocates of sentencing "reform" tell us that our criminal justice system has made huge errors over the years in deciding who should be imprisoned and for how long. In the next breath, they tell us that the same system can now be trusted in deciding who should be released and how early.
Of course, there's a difference. If we decide to imprison an inmate for an excessive sentence, it's the criminal who bears the costs of our error. If we decide to release an inmate after a deficient sentence, who bears the costs?
The public. Victims. In this case, child rape victims.
A key part of public policy is understanding the inevitability of error and deciding, given that inevitability, who is going to pay the price when it happens.
In this case, two practitioners of the sort-of-science holding forth as "psychology" essentially decided that Mr. Nicey was safe enough to release. They got it wrong. If sentencing "reform" advocates have their way, we are looking at thousands, perhaps tens of thousands, of similar decisions. When they go wrong, someone will pay the price.
Will "reformers" be paying it? Not likely. Instead, they be holding posh conferences to congratulate themselves on how enlightened they are, and wondering why it took so long to defeat the troglodytes who kept insisting that incarceration works.
But someone will pay the price. If it's some terrified and battered nine year-old, or dozens of them, or hundreds -- hey, people, deal with it.
Fair points here, Bill, but does not their logical extension call for LWOP or the death penalty for any and every potentially dangerous offender based on their first offense? Are you advocating that, because of these risk of error problems, we ought never release any adjudicated criminal if and whenever there is any risk they will commit a future crime?
"Fair points here, Bill, but does not their logical extension call for LWOP or the death penalty for any and every potentially dangerous offender based on their first offense?"
No. The principal purpose of sentencing is to do justice. Giving the two most serious punishments for "any and every potentially dangerous offender based on their first offense" would not be just.
"Are you advocating that, because of these risk of error problems, we ought never release any adjudicated criminal if and whenever there is any risk they will commit a future crime?"
We keep going over this. What I "am advocating" is found in exactly the words I use and no others.
But for however that may be, my remark above is the answer: Incapacitation and deterrence are important goals, but justice is the most important.
The point of course, which I see you do not dispute, is that it's more just to allocate the inevitable costs of error in the direction of the criminal, who made his own choices, than in the direction of victims and future victims, who don't.
I am not sure the commitment to proof beyond a reasonable doubt at trial is in accord with your risk of error analysis, and I struggle to figure out what justice means in a bunch of settings. What was just punishment, in your view, for Weldon Angelos or Chris Williams or Edward Young? They are the offenders who come to my mind when I think about federal sentencing reform, though I recognize there is a risk that, when released, one or more could eventually commit another crime.
Similarly, did you think the pre-FSA crack sentences were just? What sentence would you consider just for the Florida defendant given LWOP after a child porn downloading conviction? And is each prosecutor and sentencing judge supposed to use their own sense of what is just when exercising their lawful discretion?
"I am not sure the commitment to proof beyond a reasonable doubt at trial is in accord with your risk of error analysis..."
As I thought was clear, my analysis applies to determinations of the length of the sentence, not determinations of guilt or innocence.
"What was just punishment, in your view, for Weldon Angelos or Chris Williams or Edward Young? They are the offenders who come to my mind when I think about federal sentencing reform..."
In my view, it's a big mistake to have three cases out of tens of thousands in mind when thinking about the system. Not a good sample size.
But now that you ask:
1. I have already said that I agree with Paul Cassell and you that Angelos is a good clemency candidate. Your memory must be like mine -- slipping.
2. Chris Williams had two problems. The first is that he's an unrepentant True Believer jerk. The second is that his lawyer wasn't far behind, as you and I know.
3. Edward Young's version of events is unbelievable. I don't care if others believe it (which I have my doubts about). I wasn't born yesterday, and his story is baloney.
The main post here was about a single bad case of recidivism, and now I am seeking your vision of just punishment for three cases in which I have been involved. I do not want to put words in you mouth, but I read your comments as indicating that you think the Angelos case involves a sentencing injustice.
In the Williams case, as you may recall, mandatory minimums required 80 years before prosecutors dismissed charges. Are you saying 80 years was a justified sentence for a true believer jerk?
In the Young case, it sounds like you think the given sentence was possible unjust absent other facts which you think could be found.
These seem like the kinds of cases most critical to a discussion of the JSVA, as it seems like these federal cases --- not the one you link to from Florida courts --- are the kinds of cases that motivate a reform proposal like the JSVA.
"The main post here was about a single bad case of recidivism..."
Wrongo. It's about 14, that's F-O-U-R-T-E-E-N, instances of recidivism and seven child victims in just 18 months. The guy is a walking crime wave.
Who, specifically, do you think should pay the costs to these children of releasing this creep?
"... and now I am seeking your vision of just punishment for three cases in which I have been involved."
I don't need the whole record to answer that, but I would need to know more about the specifics of the cases than I do to give an answer. Nor, now that I think of it, do I have a "vision" for them. I'm more mundane than that. Just the facts and the law will do.
"I do not want to put words in you mouth..."
Excellent.
"...but I read your comments as indicating that you think the Angelos case involves a sentencing injustice."
I think it was too long, given the facts of the case. I also think Mr. Wonderful needs to take some responsibility for packin' heat while doing his drug sales. Drugs and guns do not mix, and create a substantial danger from which our country has suffered a good deal.
"In the Williams case, as you may recall, mandatory minimums required 80 years before prosecutors dismissed charges."
You must be getting this wrong. Prosecutors are evil, and conspire to use their hidden, Star Chamber authority to force innocent people to falsely swear to guilt. This happens routinely.
Isn't that what I keep hearing? Yes? No?
Oh......wait. They gave the guy a break when they had him ice-cold for 80 years.
"Are you saying 80 years was a justified sentence for a true believer jerk?"
There you go again with this "Are you saying?" line. I am not going to keep repeating: If you want to know "what I am saying," read the words I type, as I have typed them, without additions or deletions.
Now that you mention it, however, I don't think 80 years was a just sentence because it was not the sentence at all.
Was that supposed to be hard?
In addition, I never said, and do not think, that Williams deserved any particular sentence simply because he's a True Believer jerk. He deserved what he got because he knowingly and over a long period of time violated federal law, and to this day claims the right to do so.
Fine. Let him. But with his "I-make-my-own-rules" attitude, and thus the near certainty of recidivism, I have no problem with his sentence. The man needs to change his attitude, along with his lawyer.
"In the Young case, it sounds like you think the given sentence was possible unjust absent other facts which you think could be found."
To the extent I understand what you're saying, which is not very much, I do not subscribe to it. And, again, I alone will be the one to say what I think.
"These seem like the kinds of cases most critical to a discussion of the JSVA, as it seems like these federal cases --- not the one you link to from Florida courts --- are the kinds of cases that motivate a reform proposal like the JSVA."
The Florida case is a perfectly apt for the point I am making with this entry: That mistakes are inevitable both in the decision to incarcerate and the decision not to; that those mistakes have costs; and that a policy choice is necessary in determining on whose side those costs primarily will fall.
I think they should fall primarily on the criminal -- on the guy who made his own choices. They should not fall on innocent victims, and still less on children.
Upon whose side do you think they should fall?
I think the comments here in what I shall dub Otis v Berman III are arguing two different points. Bill is making a point about the dangers of under-sentencing child rapists and Doug seems to be talking about several individuals who may have received excessive federal sentences for whatever reason. I don't see the correlation unless one equates child rape with dealing pot, which I think is silly.
For what it is worth, I think the most important factor in sentencing is public safety followed by deterrence. I think justice is important too, but sometimes I have a hard time wrapping my arms around the concept in the abstract. And, in all my self centered honesty I am more concerned about my daughter being safe on the playground than trying to figure out what is just for a pedophile.
I am not trying to put words in your mouth, Bill, but rather trying to understand what you are saying and believe and how your beliefs and assertions support your adamant opposition to any modern federal sentencing reform proposals.
You post here starts by mentioning the federal JSVA and then you pivot to a state case involving a repeat child rapist (in a state, I will note, has not done any significant modern sentencing reform). When I ask about what your claim mean for the kinds of federal cases that could be impacted by the JSVA, you use a lot of notable assertions, but I still struggle to understand whether you think justice was served in these case or whether the JSVA might have helped better achieve justice in these cases.
In the end, the Williams case highlights the extreme power that MMs give only to federal prosecutors and that the JSVA could help address. The judge in the Williams case would have been duty bound to give him 80 years in prison unless and until the prosecutors unilaterally---and without explanation---opted to drop 75 mandatory years in exchange for Williams giving up all his appeal rights. With the JSVA, prosecutors would not have had to undo seemingly valid convictions, and the judge would not have been duty bound to impose a sentence that strikes me as obviously unjust.
I share your concerns about the harms of evil people being recidivists. But that is sure to continue to be a major problem with or without modern federal sentencing reform, as your cited case highlights, and I do think a reform like the JSVA could help address other problems in the kinds of cases I noted. And I continue to want to know if you think the cases I have mentioned are problematic or instead represent justice well served.
Again, as I keep repeating and will keep trying to make clear, I do not want to put words in you mouth nor pin you to assertions that do not reflect your views and beliefs. Rather, I just hope to clearly understand what are your views and beliefs in federal cases that I view as troublesome because of the operation of mandatory minimum sentencing provisions.
"And, in all my self centered honesty I am more concerned about my daughter being safe on the playground than trying to figure out what is just for a pedophile."
Bingo!
Bingo with two additions. First, concern for the safety of one's children is, far from self-centeredness, the main form of altruism that permits the human race to survive. Second, your honesty is, in my experience in the blogosphere, way above what I usually find. You basically call it as you see it, without a bunch of ideological BS.
I share Matthew's public safety concerns and perspective. But I continue to struggle to see how federal mandatory sentencing provisions requiring judges to give functional LWOP sentences to folks like Weldon Angelos and Chris Williams truly serves to make our kids safer.
Moreover, I take pride in America because it has historically been the nation most committed to human liberty in world history. It is with pride and gratitude that I live in a nation in which citizens pledge allegiance to a flag that represents "liberty and justice for all" and sing about being the "land of the free and the home of the brave." But what does and should continue to make America great is not only mouthing these values, but trying our darnedest to live up to them.
A federal justice system that imprisons Angelos and Williams for decades based on what they did, in my view, undermines these essential American values. And I think the JSVA could help remedy the ways in which MMs in extreme cases can undermine what I think makes America truly special. But, I fully understand how fear will lead many to accept and even endorse major restrictions on liberty in order to feel safer. And yet I continue to worry that federal laws which demand huge liberty sacrifices without any clear public safety benefits undermines the core values that have historically made America exceptional.
Off the top of my head, I see three problems with your approach.
First, appreciation for America as a liberty-loving country would point to the complete elimination of imprisonment. But no country on earth does that, to my knowledge.
Second, if one understands love of liberty as a fundamental principle -- but one that must co-exist with other important principles -- then it loses essentially all its value as a means to determine A SENTENCE IN A PARTICULAR CASE. It is simply too broad to tell us that Mr. X should get eight years rather than nine. Or ten.
Third, it all but ignores the tradeoff's an urban society cannot escape. As I noted before, the system is certain to make errors in both directions (in some cases, too much imprisonment; in others, too little).
We cannot eliminate error. The best we are going to do is decide where most justly to allocate its costs. As I asked before in discussing this case, I think they should fall primarily on the criminal -- on the guy who made his own choices. They should not fall on innocent victims, and still less on children.
In the Angelos case and other extremities, we already have a mechanism for correcting an over-allocation to the defendant. In the Williams case, we have the same -- prosecutorial discretion, in that instance to vastly whittle down easily provable charges. But I hardly think it improves respect for the rule of law to give yet further breaks to a defendant who insists that THE RULE OF LAW DOES NOT APPLY TO HIM.
To reward defiance of law rather than respect for it is to create exactly the wrong set of incentives.
Notably, Bill, American at its foundation was largely devoid of imprisonment as a punishment for crime when the Constitution was written. Physical punishments, economic punishments, civil disabilities banishment and death were all far more common form of punishment in the colonies and throughout our nation's history until, roughly, after the civil war. That said, I think the Framers recognized when authoring the Constitution that liberty needs to be balanced with other important principles, and I share that (moderate?) view. However, I truly believe human liberty is the most important of competing value/principles --- e.g., what good is being safer if one is not free to enjoy that safety --- and I also read the Constitutional to reflect the perspective that liberty has and always should have a top spot in any American hierarchy of fundamental concerns.
As to specifics, you say that a commitment to liberty as a fundamental principle is "too broad to tell us that Mr. X should get eight rather than nine. Or ten." Actually, liberty as a value ASTUTELY INFORMS that judgment, as it says quite simply, all other important concerns being equal, 8 years of liberty deprivation imposed by the government is much better than 9 years, which in turn is much better than 10 years, which in turn is better than LWOP. (And no prison time and the use of economic or physical punishments may be even better.)
In notable contrast, and the basis for many of my questions about specific cases above, I do not understand at all how "justice" (which you call "most important") tells us anything at all clear about whether 8 vs 9 vs 10 vs LWOP is right for someone who, say, downloads 454 images of child porn or who deals a whole lot of marijuana while otherwise lawfully owning guns. Indeed, I think giving Angelos or Williams (or Vilca, the Florida CP case I am referencing) an LWOP is incredibly unjust. But then I see you and others argue against federal judges being able to Angelos or Williams "just" sentences because you fear, understandably, that judicial visions of justice may not match up with prosecutorial visions of justice in those and lots of other cases.
I am not sure why you think an "urban" society is different than any other society in making liberty/safety trade-offs, but I am sure that the Framers warned us of the tendency for government officials to be eager to deprive a lot of liberty while claiming such deprivations are needed in the name of safety or equality or whatever other competing value is of government concern at the time. On topics ranging from drug crimes to gun control to health care to climate change, I see plenty of examples of the federal government claiming we need to give up more and more of our liberties to achieve values ranging from public safety to protecting Medicare to protecting the planet. And I continue to fear that, as a consequence, we are raising new generations of Americans who no longer see a nation that prioritizes human liberty as a unique and uniquely important American value. And the more that happens, the more I fear America will not continue to be an exceptional nation.
I do not know if you share my long-term fears about a lack of commitment to liberty in America these days, but I hear similar concerns a lot more folks on the GOP side talking up this problem. I know you hang out with those GOP folks a lot more than I do, so I do hope you will correct any of my misunderstanding as to what a righteous American concern for human liberty should be all about.
My comments about public safety were using the example of the pedophile referenced in the above post.
I do not have much of an opinion on the various people referenced in the comments as being subjected to overly harsh sentences as I know next to nothing about their cases. It is sometimes hard to keep track of all the cases that are often cited as examples of injustice for whatever reason. I am not saying this to be sarcastic at all, it just seems like sometimes names are tossed around with an implicit assumption that all readers know who you guys are talking about(however, I'm always up to speed on athletes and crime, so I can tell you a lot about Aaron Hernandez). It might be helpful to include links -- I am always interested in learning more.
I think whether any particular sentence is "unjust" is to some extent a matter of personal preference. I read an article this morning about some lady staring down 30 years for another Shaken Baby Syndrome case (full disclosure -- I find SBS to be slightly more viable than the "rape culture"). To me that is an injustice, but to those who disagree with my assessment of SBS would think it is justice.