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Killers and Rapists, Rejoice!

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One thing my father taught me was to thank God for your opponents.  As usual, he was right.

My opponents in the sentencing reform battle  --  those favoring mass sentencing reduction and the additional crime that is certain to come with it  --  have been shrewd up to now in being relatively quiet about the fact they they favor releasing killers, rapists and muggers of all sorts along with the fabled "low-level, non-violent" offender.

But, giddy (and careless) with new momentum as more and more Republicans allow themselves to be bull-rushed into sentencing "reform," the other side has prematurely tipped its hand.

It was never about just "low-level, non-violent" offenders; that was the head fake. It was about creating a new violent crime wave in America (something that is already happening as serious policing has come under attack and, in California, Prop 47's dumbing down of the criminal code has started to do its work).

Hat tip to Doug Berman for putting up two op-eds that spell it out.
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

A:  So awful  --  because so radically pro-criminal  --  that even the Obama administration can't bite down on it.

I didn't think I would ever type that sentence, but there is no other conclusion to be drawn from today's BuzzFeed article, which begins:

The Obama administration objects to key provisions in a bipartisan criminal justice bill in the House that has picked up support from both the tough-on-crime end of the Republican Party and advocates of overhauling federal prison sentencing guidelines, BuzzFeed News has learned.

The bill's sponsors say the Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015 -- or SAFE Act -- takes the best ideas from state criminal justice efforts in recent years and applies them to the federal system, but Obama administration officials have told supporters of the bill they don't like several of its provisions, including a key one that would essentially create a federal version of the drug court programs an increasing number of states use to divert low-level, first-time drug offenders away from prison and into probation.

Ah yes, the proverbial "low-level, first-time" drug offender.  Not that sentencing "reform" aims to stop there, or anywhere near there, and not that the "low-level, first time" drug offender is the harmless choir boy so often presented to us, as Kent pointed out in his comment just today.



This story from Roll Call says a good deal about who will win and who will lose if mandatory minimum sentencing is dumbed down or eliminated  --  not that any of this was hard to understand before.

The headline of the story is "Convicted Republicans call for mandatory minimums changes".  It's about three formerly high-level Republicans, Kevin Ring, Bernie Kerik, and Pat Nolan, all of whom discussed with Congressional staffers the supposed evils of mandatory minimum sentencing (although, oddly, none of their sentences resulted from mandatory minimums).

What the three have in common is that they are convicted felons, and the offenses for which they served time involved corruption, influence peddling and/or dishonesty. It's telling that this sort of resume' is what the sentencing reform side views as making you an "expert" on questions of public policy. Some of us might say that the more apt term for this outlook would be "conflict of interest" or "unreconstructed self-justification."

What might be even more telling is that Washington is now so completely engulfed by interest group culture that ex-cons are considered, in the Beltway's lobbyist lingo, "stakeholders" in "the system."

Will Committee staffers bring in Blago next?  How about Dzhokhar Tsarnaev? They've got even bigger "stakes" to "hold."

Way Beyond Unhinged

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Criminal justice, sentencing, and police behavior  --  especially behavior toward African Americans  -- have become contentious issues.  As one would expect, they have shown up in the race for each party's Presidential nomination.  They have opened a window on (1) what treatment is given speakers with opposing viewpoints, and (2) what, in some circles, is considered an "opposing viewpoint."

The appalling state of play was summed up in this headline from CNN:  "O'Malley Apologizes for Saying 'All Lives Matter" at Liberal Conference."  The first three paragraphs of this extremely depressing story are:

Democratic presidential candidate Martin O'Malley apologized on Saturday for saying "All lives matter" while discussing police violence against African-Americans with liberal demonstrators.

Several dozen demonstrators interrupted the former Maryland governor while he was speaking here at the Netroots Nation conference, a gathering of liberal activists, demanding that he address criminal justice and police brutality. When they shouted, "Black lives matter!" a rallying cry of protests that broke out after several black Americans were killed at the hands of police in recent months, O'Malley responded: "Black lives matter. White lives matter. All lives matter."

The demonstrators, who were mostly black, responded by booing him and shouting him down. 

When the President of the United States hypes racial grievance at every turn, this is what you get.



In my last entry, I introduced Daniel Horowitz's analysis of the origin of the push for mass de-incarceration (called by the intentionally opaque name "sentencing reform"), and where the movement is headed.  I want to continue to explore the ideological anchors of "sentencing reform," and what they tell us about the movement's eventual destination.  (Hint:  Although sentencing reform has attracted some prominent libertarian allies, libertarianism is not its wellspring, nor liberty its goal):

Horowitz notes:

Given Obama's disregard for enforcing laws he dislikes and his aggressive desire to transform the country and dismantle law enforcement, this development [much greater use of clemency than in recent decades] should put goose bumps on anyone concerned with the rule of law, aka, most Americans outside of public policy circles. If Obama is this alacritous to sign a get-out-of-jail free card with 18 months left to his presidency, it's clear that this is the tip of the iceberg. 

This is, in an odd way, a bit unfair to Obama, who has disregarded laws he likes, not just those he doesn't.  He has, for example, repeatedly ignored ACA deadlines when it became clear that enforcing them as written would be politically inapt.

The more troubling question for our purposes, however, is what exactly lies beneath the tip of the sentencing transformation iceberg.


Daniel Horowitz has a wonderfully perceptive article in Conservative Review about President Obama's clemencies last week, and his overall push for criminal justice "reform."  I repeat several paragraphs verbatim:

With much of Obama's amnesty for illegal aliens on hold as a result of [a federal district] court's injunction, the legislator-in-chief is looking for every remaining opportunity to fundamentally transform America from the Oval Office...  His next conquest is the dismantling of law and order and criminal justice laws that have helped lead to a miraculous decline in violent crime over the past two decades.

On Monday, Obama announced his plan to commute the sentences of 46 drug offenders serving time in federal prison, bringing the total number of commutations to 86 since he has taken office.  He even had time to write them a personal letter as he ignored the family of Kate Steinle and other victims of violent crime, such as Kevin Southerland who was gruesomely stabbed to death on the subway right in the nation's capital.  While libertarians and some conservatives are supportive of targeted changes to drug laws, everyone should be gravely concerned about where this is coming from and where it's headed. 

Good point.  How is it that the President found time to pay an amicable and understanding call on convicted traffickers in hard drugs, but couldn't so much as have an Assistant Secretary drop a line to murder victims' families?  Or, for that matter, to the families of the two policemen assassinated in New York?


Sentencing "reform" is the name given to across-the-board sentencing reduction, both prospectively and (in the plans of "reformers") retroactively as well.  Although most often and most loudly advertised as intended for "low-level, non-violent" offenders, it will not be limited to that.  As "reformers" tend to admit toward the bottom of whatever press release they're putting out, they fully aim for violent criminals to benefit as well.  If there is any limit on the types of violence (e.g., child rape) they would exclude from these new benefits, I haven't heard about it.  I think the reason for this is simple: Once you see the criminal as the victim, and society as the (often racist) oppressor, it's only fair that all criminals get their reductions. America's rottenness, according to this theory, is not limited just to its treatment of drug pushers.

Recently, an increasing number of Republican legislators and candidates have been signing on to sentencing "reform," although their plans might be disappointing, in some ways at least, to the more vocal "reform" advocates.

The question is, why the change in some Republicans' outlook?  It's not a change in the public's outlook  -- I know of not a single poll in which the public prefers large-scale (or, indeed, any) sentencing reduction to preserving our gains against crime.  

Something else is afoot with Republican politicians.  What is it?

Is the Criminal Justice System Broken?

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There are two central themes in the President's Criminals-Are-Cool week-long campaign:  That the criminal justice system is "broken," and that the way to fix it is through softer sentencing and earlier release for convicted felons, mostly including (so far) dealers in hard drugs.

As I show after the break, both themes are breathtakingly false.  For now, however, I want to ask why the press (and almost all of academia) is so ready to believe them.  I think the answer is deeper than merely their affinity for a Democratic President.  The answer hinges on who the questioner thinks is more worth focusing on.

The outlook taken by the President and his backers focuses on convicts.  They are, in the view of leftist ideology, "the other"  --  the downtrodden, the "marginalized," society's victims.  Questions about how, specifically, they wound up in prison are not encouraged, nor are questions about their exact number. Simply letting it go with the catchy phrase "incarceration nation" will do.  (In fact, zero point seven percent of the population is incarcerated and ninety-nine point three percent is not).

The opposing outlook focuses on normal people with families and jobs, people who are not looking to make a fast buck stealing or swindling or selling coke to your 15 year-old.  To these people, is the criminal justice system "broken?"
Do criminals owe a debt to society, or is it the other way 'round?  

The Obama Administration's answer is no longer open to serious doubt.  As ABC News reports:

The 46 sentence reductions [Obama granted today] are the most presidential commutations in a single day since at least the administration of President Lyndon Johnson, according to the White House. Overall, Obama has commuted sentences of 89 people, surpassing the combined number of commutations granted by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush.

They represent a sliver of all those seeking clemency: Justice Department statistics show that roughly 2,100 commutation petitions have been received so far this fiscal year, and about 7,900 are pending.

White House counsel Neil Eggleston predicted the president would issue even more commutations before leaving office, but added that "clemency alone will not fix decades of overly punitive sentencing policies."

The president this week is devoting considerable attention to criminal justice. In addition to his speech Tuesday [to the NAACP Convention] in Philadelphia, he is to become the first sitting president to visit a federal prison when he goes to the El Reno Federal Correctional Institution outside of Oklahoma City on Thursday. He'll meet with both law enforcement officials and inmates.

Some might think that "overly punitive sentencing policies" had something to do with the dramatic drop in crime in the last quarter century, but that goes unmentioned in the story and unseen in the President's outlook.  



Obama to Apologize to Criminals

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President Obama will make a trip to a federal prison in Oklahoma and will meet with, among others, inmates.  "Inmates" is another word for "criminals."  The story is here.

I'll take bets here and now that the President will have a great deal more to say about what's wrong with "the system" than what might have been wrong with the behavior of the inmates  --  the behavior that got them sent to prison in the first place.

Really.  I invite bets.  Any takers?

Obama, of course, is scarcely alone in thinking the problem is not in the behavior of hoodlums, but the behavior of the rest of us. Republicans like Rand Paul, Newt Gingrich and numerous others are increasingly falling for the line that criminals are victims (victims of our callousness, that is) and it's the rest of us who need to Get Our Minds Right.

With this thinking so prevalent in Washington and other places like legal academia, the era of falling crime is coming to an end.  We will all be hurt by this, but those who will be hurt the most are those living in the most crime-ridden areas.  This conspicuously would not include White House staff, congressmen and senators, and Soros- or Koch-funded think tanks. 
The ABC News affiliate in Omaha has this story about a family that has volunteered with the Nebraska citizens' effort to allow the electorate to have its say on the legislature's death penalty repeal.  

As the story points out, billionaire George Soros has donated $400,000 to the effort to deny giving the voters their say.  I'm glad at least that he's such a fan of participatory democracy.  If I'm remembering correctly, he and his allies were backers of getting the death penalty on the ballot for voters to have their say in California in 2012 (Prop 34).  Perhaps the experience there (the death penalty won by a little less than half a million votes) convinced abolitionists that voters should be kept out of it.

Contributions to Nebraskans for the Death Penalty can be made here.


What Happens When We Lose Our Nerve

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What happens is that we return to past failures.  An article in Quadrant begins:

Welcome to the 1970s! In New York, anyway, one of the decades Tom Wolfe denominated "purple" has made a stunning comeback. Consider crime. After a precipitous decline that began under the mayoralty of Rudy Giuliani and continued under Michael Bloomberg, violent crime has soared in the city. From May 2014 to the end of May this year, shootings increased almost 10 per cent while murders jumped a stunning 19.5 per cent during the same period. Meanwhile, Central Park has once again become a haven for thieves and muggers. "Police are investigating another mugging in Central Park," begins a May 20 story in the New York Post, "the latest in a string of robberies that has residents on edge."

It continues:

The centrepiece of Bill de Blasio's mayoral campaign in 2013 was a promise to end one of the most effective weapons against violent crime: "stop and frisk", the practice by the police of stopping, questioning and, in some cases, frisking suspicious characters. De Blasio wanted to end the practice because the overwhelming majority of those stopped and frisked were Black. The reason for this was that the overwhelming majority of suspicious characters that the police encountered were Black, but that reality did not prevent de Blasio from pretending that the practice was inexcusably racist. Former Police Commissioner Ray Kelly warned that "people would suffer" if the prophylactic practice was abandoned. No matter. It was too good an opportunity for a left-wing demagogue to ignore.

I don't subscribe to everything the author argues, but I very much subscribe to the underlying thesis:  If we turn away from standards, and the enforcement of standards, that made life safer and better, it will return to being more dangerous and worse.


A Chance for Obama to Speak Up for Justice

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President Obama made some remarks about the Charleston church massacre. They were notable both for what they included and what they omitted.

What they included, as reported by the Washington Post, was this:

 "We don't have all the facts, but we do know that once again innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun," he continued. "Now is the time for mourning and for healing, but let's be clear: At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries.  It doesn't happen in other places with this kind of frequency."

Is any of that true?

Rand Paul, We Hardly Knew Ye

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Sen. Rand Paul is running for the Republican nomination for President, but sounds to me more like Bernie Sanders or Jesse Jackson.  Whenever he speaks about crime and punishment, he seems to view the criminal as the victim and the law as the oppressor.  He would eliminate all federal mandatory minimum sentencing  -- sponsoring a bill so radically pro-criminal that its co-sponsor, then-Senate Judiciary Chairman Pat Leahy, refused to bring it up in his own Committee. Apparently, even liberal Democrats wouldn't touch it.

If Sen. Paul supports the death penalty, I've been unable to find out about it.  His position seems to be that juries are insufficiently trustworthy, a stance virtually always associated with abolitionism. His views on what needs to be done to combat terrorism are also out of the mainstream.  He wants to block, not merely the Patriot Act's provision for bulk data collection, but the entire Act.  

Not for nothing does the Real Clear Politics poll average have him running in single digits, behind  Bush, Walker, Rubio, Huckabee and Carson. 

Two very different Washington Post columnists, Dana Milbank and Jennifer Rubin, recently explained why Paul is all but finished as a candidate.  For those interested, their pieces are here and here.

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