Recently in Probation and Parole Category

First Step Act Kills Providence Man

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When the First Step Act was pushed through Congress, we knew that its expansive drafting was going to kill people. Troy Pine of Providence, Rhode Island died on October 2. The direct cause of death was stabbing, and a formerly life-sentenced former gang leader, Joel Francisco, has been charged with that crime. See this article by Brian Amaral in the Providence Journal. The indirect cause was the way the First Step Act was written.
Many parts of the country are now in a headlong rush to spring as many criminals as their advocates think they can get away with. The proposals are becoming so extreme that they are raising alarms in places that don't often challenge the "progressive" agenda. The Sunday WaPo has this editorial:

Residents of the District of Columbia deserve protection from the most violent criminals and to be confident those offenders receive prison sentences commensurate with the gravity of their crimes. A bill pending in the D.C. Council would undermine that expectation and subject residents to unwarranted risks from convicted murderers, rapists and child sex abusers.

The legislation would directly benefit the most serious and violent criminals -- specifically, those who killed, raped or committed sexual abuse before reaching age 25 -- by making them eligible for release, or a reduced sentence, while still in their 30s.

It's important to be clear about the implication of the pending legislation, sponsored by D.C. Council member Charles Allen (D-Ward 6): Under the bill, if the gunmen who massacred innocent people in El Paso and Dayton, Ohio, this month had instead committed their crimes in the District -- and had both survived -- one would be eligible for release or reduced sentence at age 36, at a judge's discretion; the other at age 39.
Sadie Gurman has this article in the WSJ on a wave of prisoner releases today as a result of the First Step Act.

Federal sentencing law has long been more severe than most state laws, and some adjustments are in order. I was in favor of bringing down then-Senator Biden's absurd 100/1 crack/powder ratio for cocaine, for example.

Whether the First Step Act is successfully implemented to separate those who actually deserve earlier release from those who need to be kept locked up remains to be seen. The dismal drafting of the bill certainly is no guarantee. See this post and this letter.

With Bill Barr at the helm, we at least have a shot that this won't turn out to be a massive jailbreak. Of course, administrative implementation can be reversed by a subsequent administration, but the policies established at the threshold do have a tendency to get baked in, so there is some hope.
The proponents of Proposition 57 assured Californians that its early release was only for "nonviolent offenders." Is arson a nonviolent offense? People die in arson fires, both people caught in the flames and firefighters who respond to them.

Dale Yurong reports for ABC30:

A Madera County arsonist convicted of a string of fires in Yosemite Lakes Park could be eligible for parole and that has many people concerned.
In most American jurisdictions, there are provisions by which a person who could be incarcerated for an offense can be released but subject to supervision under conditions. If he violates the conditions, he can be sent to jail or prison with a more expedited procedure and lower burden of proof than would be required for a new criminal conviction. These arrangements include probation, parole, and, in the federal system, "supervised release."

In most cases, the time that the conditions-violator spends behind bars is time he could have spent there for the original offense. However, in 18 U.S.C. §3583(k), Congress provided that violators found to have committed certain new offenses, including possession of child pornography, must receive an additional prison term of five years, not limited by the term for the original offense.

Not surprisingly, the Supreme Court held today that this term is more like a new conviction than a traditional parole/probation revocation, and it is subject to the requirements of trial by jury and proof beyond a reasonable doubt under the Apprendi line of cases. The case is United States v. Haymond, No. 17-1672.

Cal. Gov. Blocks Cop Killer's Parole

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California's new Governor has taken the criminals' side against the victims on nearly every major criminal justice issue in recent years, so it was a pleasant surprise to learn that he blocked the parole of San Diego cop killer Jesus Cecena. Mark Saunders has this story for KGTV (ABC 10, San Diego).

Cecena was convicted of killing SDPD officer Archie Buggs in 1978, after shooting the 30-year-old officer four times during a traffic stop in Skyline before killing him with a final shot at point-blank range, according to the DA's office.
So why wasn't he sentenced to death? He was 17 at the time, and California law has precluded the death penalty for under-18 murderers throughout the modern era (i.e., post-Furman). Life without parole was available, though, so at least we can rest easy he will never be released, right?

No, the California Legislature provided for going back and resentencing those old LWOP cases, and Cecena's sentence was reduced to seven-to-life, making the 57-year-old eligible for Youthful Offender Parole. Really. And the Parole Board (or whatever that oft-renamed body is called this week) granted it.

SCOTUS Takes Up Two Criminal Cases

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The U.S. Supreme Court released a short orders list from its conference today, presumably so the newly taken up cases can be briefed as soon as possible to get them on the oral argument calendar. There are two criminal cases.

Supervised released in the federal criminal system gets more scrutiny in Mont v. United States, No. 17-8995. I will quote the Solicitor General's version of the Question Presented because the petitioner's borders on incomprehensible:
"Whether a period of supervised release for one offense is tolled under 18 U.S.C. 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant's term of imprisonment for another offense."

Flowers v. Mississippi, No. 17-9572 is back again after a "grant, vacate, and remand" order two years ago. The order directed the Mississippi Supreme Court to look at Flowers's claim of racial discrimination in jury selection again after considering a then-new SCOTUS precedent. The petitioner's Questions Presented page is another case study in how not to do it and will doubtless be skewered by Bill Bilderback at next year's capital litigation conference. The Court wrote its own QP, limiting review to: "Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U. S. 79 (1986), in this case."

Expect Monday's orders list to be all certiorari denials, no grants.
In an earlier time, convicted defendants were regularly sentenced to long prison terms with eligibility for parole well before their time was up. Parole came with conditions (like, e.g., don't go back, Jack, and do it again). Parole could be revoked for violation of the conditions, and the violators could be sent back to prison. Because he was going back to serve out some portion of his original sentence for the original crime, the violation did not have to be found by a jury or proved beyond a reasonable doubt.

Congress abolished parole in the federal system, and many sentences now have periods of "supervised release" tacked on as authorized by statute. For persons convicted of possession of child pornography (18 U.S.C. § 2252), the term can be anywhere from five years to life under 18 U.S.C. § 3583(k). Revocation is mandatory upon a new violation, and the minimum new term is five years.

Is this mode of proceeding constitutional under the cases of Apprendi v. New Jersey, Blakely v. Washington, and subsequent cases?

The Tenth Circuit declared the statute unconstitutional in the case of Andre Hammond, a viewer of child pornography who is probably doing it again but who is covering his tracks well enough that a violation was not proved beyond a reasonable doubt. He had deleted his browsing history the day before the probation officers seized his smart phone. I wouldn't be surprised if he deleted it every day.

The Solicitor General petitioned for the Supreme Court to review the Tenth Circuit's decision. On Friday, the Supreme Court took the case up: United States v. Hammond, No. 17-1672.

This is an area where the Supreme Court does not divide on the usual ideological lines. Throughout the Apprendi line of cases, the late Justice Scalia was leading the charge, believing that use of judge-found "sentencing factors" often violated the constitutional right to jury trial as originally understood. That put him on the defense side. Policy wonk Justice Breyer was the leading defender of the mid-80s sentencing reforms, which put him on the prosecution side in these cases.

Watch for oral argument in a few months and a decision before the end of the term in late June or early July.

And Another 1000

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Every bill in Congress should have two names -- one attached by its supporters and one by its opponents.  H.R. 5682, passed by the House earlier this summer, is titled the FIRST STEP Act, but I would call it the Faux Pas Act.

The drive to put ever more criminals and more dangerous ones on the streets gathers steam, funded by Soros money on the left and Koch money on the libertarian side, leaving relatively few defenders of the strong and sensible policies that have been a major factor in the tremendous drop in crime since the peak in the early 1990s.  Senator Tom Cotton of Arkansas is one of the few, and he has this op-ed in the WSJ with the above headline.

While the House bill has some flaws, the Senate can fix them on a bipartisan basis. But under no circumstances should Congress cut mandatory minimum sentences for serious crimes or give judges more discretion to reduce those sentences. That foolish approach is not criminal-justice reform--it's a jailbreak that would endanger communities and undercut President Trump's campaign promise to restore law and order.
"Some flaws" is an understatement.  Here is a letter I sent Senator Cotton in July, explaining the flaws in more detail.

But wait, there's more.  Paul Mirengoff has this post at Powerline warning that an even-worse version is gaining momentum in the Senate.  I understand that version has not yet been formally introduced.  Let's hope that the misguided Senators see what they are doing before they take the whole country down California's downward path.

A Second Chance

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Carrie Teegardin reports for the Atlanta Journal-Constitution:

Fulton County Superior Court Judge Doris Downs decided last year to give Jayden Myrick ... a chance to turn his life around.

Myrick had been arrested at the age of 14 for his role in an armed robbery and agreed to a negotiated plea of 15 years, to serve seven years in adult prison, according to the Fulton County District Attorney's Office.

But after two-and-a-half years in juvenile detention, the judge gave him a break. She put Myrick on probation and placed him in a special program whose director confidently claimed her program could keep tabs on Myrick and reform him, just as it had many other violent youths, according to a transcript of the hearing.

Sounds wonderful.  What could go wrong?

Defining "Violent"

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Syndicated columnist Thomas Elias has this column on California's grievously wrong definition of "violent."

There isn't a woman alive who was ever raped while either intoxicated or unconscious who doesn't consider the entire experience violent.

But that's not how these crimes are defined legally in California. The same for human trafficking of a child, abducting a minor for prostitution, drive-by shootings at inhabited homes or cars, felony domestic violence, solicitation to commit murder, among others.
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But a series of bills aiming to expand the list of crimes defined as violent died in legislative financial committees. Too expensive, was the verdict. That was the reason given when the Assembly Appropriations Committee just about one year ago killed a bipartisan measure aiming to classify all rapes and all human trafficking as violent.

An initiative to address the problem is presently awaiting signature verification.  Whether it will make it in time for the 2018 ballot is in doubt.  An initiative should never have been necessary.  California's legislators have a lot to answer for.
Paul Mirengoff at Powerline has this post on the recent BJS recidivism study (discussed in this post) and its implications for the so-called "prison reform" legislation pending in Congress:

The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways.
I will have more to say on the bill later.  On a first read, though, it appears to have been written by people with a unicorns-and-rainbows view of prisoners and the value of "programs."

Santa Monica Violent Crime Up 50%

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Niki Cervantes reports for the Santa Monica Lookout:

Violent crime in Santa Monica jumped almost 50 percent in 2017 over the previous year, reaching its highest level in two decades, according to police and Federal Bureau of Investigation (FBI) statistics.

Data released by the City showed a total of 705 violent crimes in Santa Monica, or 230 more incidents than the 475 reported in 2016 -- a 48 percent increase.

Behind the big jump in violent crimes was a rocketing number of aggravated assaults, the City's data showed. Those crimes increased 67 percent, from 244 incidents in 2016 to 407 reported occurrences last year.

Last year also marked the third year in a row of increases in violent crime, which also includes robbery (up 28 percent from 2016, or 241 incidents), rape (up from 40 in 2016 to 57 in 2017) and homicide (one incident in 2016 and two in 2017).

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As with law enforcement throughout California, Santa Monica police blame much the rise in crime on two statewide measures approved by voters over the past four years.

Sticking With The False Narrative

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Marshall Project's False Narrative:  In February of 2017, repeat felon and gang member Michael Mejia, released from prison a year earlier and a few days after release from jail for another crime, murdered his cousin and stole his car, got in an accident and murdered a responding officer.  At the time of Mejia's arrest, law enforcement officials and victims groups pointed to California sentencing reforms (AB109 and Proposition 47) as the reason Mejia remained on the streets long enough to commit the murders.  A recent LA Times article by Abbie VanSickle and Richard Winton cites a review the paper conducted with the Soros-funded Marshall Project which "found a far more complex chain of events that allowed Mejia to remain free despite his record of criminal behavior."  The main findings reported in the article are:  1) Mejia's probation officer used excessive short jail stints to correct his criminal behavior. 2) The county was too slow in referring Mejia to drug treatment and when they finally did, he didn't show up.  3) The county waited too long to get tougher on Mejia for repeated new crimes and the prosecutor failed to have the probation officer participate in the plea bargain for his last offense.
 

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