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Sentencing Reform, Through the Looking Glass

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I saw this article in SL&P about Bernie Sanders' campaign promise:

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size. Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Bernie's pledge is deconsructed for the nonsense it is, but the deconstruction itself misses two of the most obvious flaws.

First, Bernie is willing to take at face value China's report of its prison population.  Talk about credulous!  (This is from someone who wants to be President of the United States). This is like being willing to take at face value Iran's report of it's plutonium stockpile.

Second and far more important, Bernie holds forth on the prison population without a single word about why criminals are in jail to begin with.  Pledging to reduce the prison population while omitting any mention of the prevalence of crime  is like pledging to reduce the hospital population while omitting any mention of the prevalence of disease. So far as appears in Bernie's statement, there is no such thing as the cunning or violent criminal; there is only the woe-begotten inmate, deprived of his freedom for no reason worth mentioning, much less exploring.

The Real Force Behind Sentencing Reform

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The main sentencing reform bill, the SRCA, was effectively withdrawn today by its sponsors after it became clear that it had failed to hoodwink enough senators to get enacted.  See my post here.  

But we shouldn't kid ourselves.  They'll be back.  The forces working to reduce sentences are too powerful and too determined to just give up.

Contrary to much of what we hear in the press, the main backers are not libertarian Republicans like Sen. Mike Lee and many people at CATO.  Republicans have given a good deal of political cover to this plainly pro-criminal proposal (tell me again who principally benefits from reduced sentences?), but they are not the prime movers. For reasons I remain unable to fathom  --  since the bill is a political loser in addition to being bad for the country  --  they have allowed themselves to be enlisted in someone else's cause.

And who would that be?  George Soros would be a good guess, as would Al Sharpton and the NACDL.  Good, but we need to look a little higher.


We have heard a good deal about the "growing momentum" of the "bi-partisan consensus" for sentencing reform.  One would think that, with such a supposed consensus, the reform bill (the SRCA) would breeze through Congress.

Ooops.

Here's today's press release from chief co-sponsors Sen. Chuck Grassley and Sen. Dick Durbin:

"Over the course of the last year in putting together this bill, we listened to a diverse set of views and came up with a consensus piece that passed the committee by a 15-5 vote.  Now, as we look to floor consideration, we're again listening to colleagues, including those who have well-documented concerns with certain aspects of the bill.  We're working to find a path forward that addresses some of those concerns while maintaining both the core principles and significance of the bill and the broad bipartisan support that the bill has already garnered.  How those changes will look is still being determined, but we're moving ahead to get a bill ready to be considered on the Senate floor."  

Translation:  The current bill is dead meat.  We have to make its wording more opaque to try to fool more people.

Well, good luck with that.  A fancy dance with wording isn't going to make the mind-numbing surges in heroin and murder go away.  It won't make the ocean of risky early releases through the Sentencing Commission go away.  It won't make the early release/child murders of Wendell Callahan go away. 

The problem is not failure to smooth over unnamed "concerns."  The problem is reality.  
The Washington Post's "fact checker" evaluated Sen. Tom Cotton's statement that the SRCA would "release thousands of violent felons."  It's analysis is here.  It concludes:

There are thousands of inmates -- 11,524, to be exact -- who would be eligible for resentencing under the Senate bill. But not all of them are convicted of a violent crime, and it's unclear exactly how many of these inmates would actually get their sentences shortened if the bill became law. There are 3,433 inmates in the two sections that include people who may have been convicted of a violent felony. Even then, those inmates may be there because of a sweeping law that has been found to impose excessive sentences.

Cotton is of the opinion that drug traffickers are still "violent felons," even people who are not technically convicted of a crime of violence. We can't fact-check opinions, but we'll note that "violent felons" generally conjures the image of a murderer, not a drug dealer caught illegally possessing a gun -- or just a bullet.

Cotton's claim minimizes the provisions in the bill that target actual violent offenders while alleviating excessive sentences for low-level drug offenders. The bill is intended to address over-incarceration of low-level, nonviolent offenders. Even if all eligible inmates petition for a reduced sentence, the ultimate decision is with a federal judge. Cotton creates a misleading impression of this complex legislation, and earns Two Pinocchios.


Now let's fact-check the Post.  Three Pinocchios.



The death penalty came up briefly in the Clinton-Sanders debate.  Even though it came second, let me quote Sanders first:

MADDOW: Senator Sanders, you have singled out the death penalty, and Senator Clinton's support for the death penalty, as an issue that makes it hard to consider as progressive in your mind...

SANDERS: ... Look, I hear what the Secretary said, and I understand, but look, there are -- all of us know that we have seen in recent years horrible, horrible crimes. It's hard to imagine how people can do, bomb, and kill 168 people in Oklahoma City, or do the Boston Marathon bombing, but this is what I believe, and for a couple of reasons.

Number one, too many innocent people, including minorities, African Americans, have been executed when they were not guilty. That's number one. We have to be very careful about making sure about that.

Too many?  Name one, Senator Sanders.  Name one demonstrably innocent person executed in the modern capital punishment era (1976+).

For many years, Roger Coleman was the poster boy as the absolutely, incontrovertibly innocent person wrongfully executed.  Then improved DNA technology conclusively proved him guilty.  Oops.  Then they latched on Cameron Willingham, a case where the arson evidence was shown to be inconclusive.  (Contrary to myth, the arson evidence does not affirmatively show accidental fire.)  When AP contacted the jurors, every one they could find said that would have made no difference, because it never was the forensic evidence that convinced them in the first place.  The most damning evidence against Willingham was his own words and actions, all of which still stand.

"We have to be very careful about making sure about that."  Correct.  And we are.

What Happened to John Cornyn?

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The title of this post is taken from today's Powerline entry by my friend Paul Mirengoff.  It also coincides with a question I was asked just two hours ago on another thread.

Sen. Cornyn is the senior senator from Texas.  Quite oddly, it seems to me, he has reversed years of his prior enthusiastic and well-reasoned argument against mass (and retroactive) sentencing reductions.  Instead, he has aligned himself with President Obama, George Soros, Al Sharpton and the SEIU in support of the the current Senate sentencing reform proposal.

The short answer is:  I don't know what happened to Sen. Cornyn, but it's certainly a question worth exploring.

The Significance of the Ted Cruz Victory

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Tonight, against the predictions of almost all the recent polling, Sen. Ted Cruz won the Iowa Republican primary.  The finish was: Cruz 28%, Trump 24%. and Rubio 23%.  No one else even reached 10%.  In my opinion, the Republican nominee is all but certain to be one of those three.

The question for this blog is whether Sen. Cruz's victory has any significance for the major criminal law issues facing our country.  I think the answer is "yes."
The national media have been quite subdued in reporting the murders of three African Americans in Columbus, Ohio by Wendell Callahan.  Years before, Callahan, a man with a violent past, had been sentenced to federal prison for trafficking crack cocaine. He was released four years early because of a sentencing "reform" bill Congress passed in 2010.  But for the early release, his three victims  --  a mother and two daughters, aged 10 and 7  --  would be alive today.  See my post here.

Put another way, this was preventable murder.  And prevention was easy.  All we had to do was keep a violent man trafficking hard drugs in prison for his original sentence.

Preventable murder is about as odious a thing as one can imagine.  You would think the usual cadres of criminal justice protesters would be up in arms.  Where's Black Lives Matter, now that three black lives have been thrown away courtesy of a law that was passed as the remedy for supposed injustice?  I haven't heard a peep. Maybe some black lives matter more than others.

Fortunately, Debra Saunders of SFGate is paying attention.

Will Hillary Get Indicted?

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Three Justice Department veterans  --  one at the top and two in the middle  --  think so.  I am one of those in the middle.  The story is here.
Yesterday, Mike Rushford wrote a post detailing the dismal experiences California has had implementing its version of dumbed-down sentencing and early release called "realignment."  Realignment was signed by Gov. Brown roughly five years ago, in April 2011, in response to years of problems with prison overcrowding.

As Mike noted, the results have ranged from disappointing to dreadful.  One promise of realignment has been kept, true:  The state has about 30,000 fewer prison inmates.  But the main promise to the electorate  --  cost savings  --  has been shredded.  As Mike pointed out, the state is spending two billion more per year now on incarceration than when the reforms were adopted.  That would be T-W-O  B-I-L-L-I-O-N.

The other main promise was that Californians would be just as safe.  Crime wouldn't increase; if anything, it would decrease, as the state adopted a more humane attitude and spent more on social services (which it has certainly done to the point of non-trivial bankruptcy concerns).

What has become of that critical promise?
I blogged here, here and here about the murder this month of two children and their mother by a man, Wendell Callahan, who should and would have been in federal prison but for the early release he was given under a 2010 version of sentencing "reform."  Callahan was a hard drug dealer (crack cocaine) who had his sentence twice reduced.  He was said at the time to be no threat to public safety. This was simply false.  At best, those who took this position were forecasting a future they could not know. At worst, they were lying (having plenty of reason to know, from Callahan's violent past, that he was a threat).  In either event, two little girls and their mother wound up paying the ultimate price for their mendacity.

This horrible story illustrates what sentencing "reform" is actually going to cost if Congress is foolish enough to go ahead with a version of it even more sweeping and reckless than the 2010 edition.  Perhaps not surprisingly, the mainstream media has buried the Columbus early release massacre story, apparently taking the view that some black lives matter more than others.

We should thus be thankful that Sen. Tom Cotton (R-AR) has taken up the cause. Apparently, his advocacy is gaining new adherents to the opposition of the Establishment's sentencing reform bill, the SRCA.  In particular, I thought these paragraphs from today's Politico were telling and very encouraging:

[S]entencing changes are triggering the biggest -- and most vivid -- rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, in which a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch....

Cotton isn't alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate.

Until sentencing "reformers" are willing to come clean about specifically how much violence the country should tolerate from the thousands of felons they aim to release early, Congress should refuse to move on this bill.  It's bad enough to buy a pig in a poke, but worse still once you already know the pig can kill you.

New U.S. Supreme Court Cases

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The U.S. Supreme Court has issued a short orders list out of its Friday conference today.

The one criminal case taken up is the corruption conviction of former Virginia Governor Robert McDonnell.  The question presented is:

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. ยงยง 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
The Court declined a second question on jury voir dire and pretrial publicity.

Also taken up was law-enforcement-related civil case, Manuel v. City of Joliet, No. 14-9496.  "The question presented is whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment."

A long orders list will likely be issued Tuesday.  (Monday is a government holiday.)  If the usual pattern holds, all the grants are on today's list, and Tuesday's list will be all denials.

An NYT Hatchet Job on Ted Cruz

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David Brooks has this column in the NYT on Ted Cruz, and it can only be described as a hatchet job.  CJLF does not endorse candidates and takes no position on the Republican primary.*  However, I do think we should correct misrepresentations about the candidates when they fall within our area of expertise.
BuzzFeed tells us that Pres. Obama will have, among his guests at the State of the Union address, a convicted securities swindler and former international fugitive, Ms. Sue Ellen Allen.  Ms. Allen will not be introduced as a person wrongly convicted.  Instead, she will be introduced, it appears, to illustrate the "compassionate side" of the President's criminal justice reform package.  It seems that, after her release from seven years of incarceration, Ms. Allen frequently returns to prison to help less fortunate inmates get an education and prepare to re-integrate after release.

Efforts like this are all to the good  --  but not if the real purpose of showcasing Ms. Allen is to divert attention from less heralded heroes of our criminal justice system. Those would include, for example, crime victims who have overcome the injury and loss inflicted on them by dishonest or violent people; thousands of police whose proactive work has helped so dramatically drive down national crime victimization (now about half what it was 25 years ago); and prosecutors who bring justice to the wrongdoer and, in so doing, the beginnings of an understanding that makes rehabilitation for him possible.

The Republican response to Obama's address will be delivered by Gov. Nikki Haley of South Carolina.  After the break, I suggest some guests Gov. Haley might have with her to illustrate these central themes in criminal justice  --  themes Mr. Obama seems prepared to walk past.

Coming: A New Crime Wave

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The title of this post repeats the title of a news story recounting an interview with Assistant US Attorney Steve Cook on the Laura Ingraham show.  Cook is President of the National Association of Assistant United States Attorneys, an organization of 1200 to 1300 career (i.e., non-political) federal prosecutors.  

The career people often act as a counter-weight to their politically-appointed superiors.  The careerists (of whom I was one for a time) see this as essential to maintain the integrity and non-political character of the Justice Department; the political appointees (of whom I was one more recently) see it as a bureaucratic drag on the mandate they believe they earned to set their own priorities.

Cook has been an AUSA for many years, and had some alarming, and illuminating, things to say, principally that the SCRA (the "reform" bill presently pending in the Senate) "would reverse [a quarter century of] gains by letting dangerous criminals out of prison."

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