Recently in Sentencing Category

The US Supreme Court today decided, 5-4, that an amendment to the Federal Sentencing Guidelines that increases the guideline range for a crime cannot be applied to a crime committed prior to the amendment.  Such application would violate the Ex Post Facto Clause of Article I, Section 9.  (The same holding would apply to states under the parallel Article I, Section 10 clause.)  The case is Peugh v. United States, No. 12-62.

The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.

Justice Kennedy did not join part III C of Justice Sotomayor's opinion, making that part a plurality opinion.  That part concludes, "But, contrary to the dissent's view, see post, at 11-13, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of 'fundamental justice.' "

What makes this case close is that the Sentencing Guidelines were transformed from mandatory to advisory in the Booker case.  Justice Thomas notes in the dissent (joined by Chief Justice Roberts and Justices Scalia and Alito):

First, the Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant's sentence. Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines' persuasive force, not any legal effect. The Guidelines help district judges to impose sentences that comply with §3553(a). The risk of an increased sentence is, in essence, the risk of a more accurate sentence--i.e., a sentence more in line with the statutory scheme's penological goals. Guideline changes that help district courts achieve such pre-existing statutory sentencing goals do not create a risk of an increased sentence cognizable under the Ex Post Facto Clause. We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge's discretion.

Nearly lost in the hubbub over the DNA decision, the FBI on Monday released its preliminary full-year crime statistics for 2012. (The first-half stats were released in January.)  The national data show an uptick in violent crimes (1.2%) and a downtick in property crimes (-0.8%).

Naturally, I was curious to see how California fared relative to the nation as a whole in the first full year of realignment.  Not good.  The FBI strangely does not give state totals in this report, but it gives numbers for cities over 100,000 population, which covers about half of the population of the state.  So I totaled these city numbers for 2012 and compared them with 2011.  Crime rates are generally higher in urban areas, of course, but we are dealing with year-to-year differences here, so that factor cancels out.

Unlike the mixed bag in the national numbers, California city crime is up in every category.  Not only that, but California city crime increased more than the national figure in every category.  Violent crime is up 2.9% compared to 1.2% nationally, but when we focus on the most violent crimes, we see murder up 10.5% v. 1.5% nationally and rape up 6.4% v. a 0.3% drop nationally.

For property crime the difference is even greater, just what you would expect in a state that has decided to coddle its property offenders.  Overall, California cities had a 9.7% increase v. a 0.8% drop nationally.

Auto theft is particularly telling, as it is not a "serious" offense (although it is very serious to the victims), and thus the entire category comes under the realignment law.  California cities had a staggering 15% increase in auto theft, while the nation as a whole had only a 1.3% increase.  I noted the same effect in the first-half data on this blog here.

The evidence continues to mount, confirming what persons of sense knew from the beginning.  Realignment is a disaster.

Technically, the California Legislature has not actually legalized theft.  It has, however, reduced the consequences to the point that, for some people, it might as well be legal.

Ben Boychuk has this article in the City Journal on the brazen theft of his expensive new laptop from beneath his fingers at a Starbucks in Fontana.

It isn't easy looking at a photo lineup. But one mug shot was unmistakable. I paused for a long moment, and I must have had a strange look because the officer asked if I recognized someone. "Yes," I said. "That's the driver." Of all the forlorn faces staring up at me, his was the only one smiling.

"He was probably smiling because he knew he got one over on you with your computer," the officer said.

"I guess so. But why would he be smiling now, when he's under arrest?"

Former Congressman Jesse Jackson, Jr., pleaded guilty to siphoning off about three quarters of a million bucks from his campaign contributions in order to fund personal luxuries like super expensive wrist watches.  He faces prison time, but of course his lawyers and his friends want no such thing.

"Not only is he highly intelligent, he is charming and entertaining," Fudge wrote. "When things got tough or extremely difficult on the House floor, we could count on Jesse to bring levity to an otherwise daunting situation with a bad joke or a one-man skit. Jesse was the highlight of our karaoke nights and always made everyone feel like an integral part of, and not apart from, various activities. He made us realize that we could still have fun, while addressing important national issues."

Today's News Scan notes yet another case of a major crime of violence, in this case murder, attributable to California's misguided "realignment" program.  The comments of the police chief are worth quoting in full.

"This is yet another glowing example of the failure of California's prison realignment. Dangerous prisoners that belong in state prison continue to be released early, time and time again, to return to our communities and endanger our families and friends," said Fontana Police Chief Rod Jones.

"Had Mulder remained incarcerated, on either recent occasion, for his full sentence, this woman would still be alive and this entire incident would not have occurred. I see this situation only continuing to get worse as California continues to reach the federally mandated levels of the prison population this year. This is going to result in approximately 9,000 more dangerous prisoners soon being released into our communities. I fear the worst is yet to come. "

Meanwhile, this weekend the Sacramento Bee had this editorial denouncing "scare tactics."  Publicizing real cases of real people really killed, raped, or kidnapped because of this law is "scare tactics"?  Well, sometimes people should be scared.  If are out hiking and see a rattlesnake, it is far better to be afraid of it and avoid it than to walk blithely by and be bitten.

And then there is this bit of chutzpah:  "A one-year uptick in crime is a reason for counties to make adjustments, not to generate uproar and premature calls to reverse policy."

Wow.  A supporter of an ill-conceived plan that was cobbled together and rammed through the legislature before the public even knew any major change was being considered has the audacity to complain about prematurity? 

In my last post, I argued that incarceration has been effective over the last generation in helping reduce crime, and thus in making America a safer and more peaceful place.  The present attack on "incarceration nation," I asserted, is the product largely of wishful thinking about how successful the alternatives to incarceration would be.  This was easy to demonstrate:  The crime rate in the Sixties and Seventies era of supposed "rehabilitation" skyrocketed, while in the last 20 years of sharply increased incarceration, it has plummeted, as these figures illustrate.

In the 1960s, America made a terrible mistake.  We believed too easily in experts who supposedly had the answers for corrections.  They knew how to "fix" criminals who were, after all, sick and not evil.  When the fixes were actually subjected to scientific scrutiny to determine which of them worked, the stunning answer was that none of them did.  In the meantime, lax sentencing contributed to the horrific rise in crime, a rise that was brought back down only after we got tough.

Fast-forward 50 years, and those who do not remember this history are working to condemn the nation to repeat it, over the vehement objection of those who do remember.  One of the programs touted to rehabilitate criminals so we won't need to lock so many up is halfway houses.  Or maybe not.  Sam Dolnick has this story in the NYT:

The federal government and states across the country have spent billions of dollars in recent years on sprawling, privately run halfway houses, which are supposed to save money and rehabilitate inmates more effectively than prisons do.

But now, a groundbreaking study by officials in Pennsylvania is casting serious doubt on the halfway-house model, concluding that inmates who spent time in these facilities were more likely to return to crime than inmates who were released directly to the street.

The findings startled the administration of Gov. Tom Corbett, which responded last month by drastically overhauling state contracts with the companies that run the 38 private halfway houses in Pennsylvania. The system costs more than $110 million annually.

Pennsylvania's corrections secretary, John E. Wetzel, who oversaw the study, called the system "an abject failure."

Thanks to Michael Santella for the link.

If Lindsay Lohan didn't exist as an emblem of the unseriousness of criminal law in California, I'd have to invent her.  I mean, willy-nilly releasing criminals under what is, with intentional obscurity, called "realignment," is one thing, but Ms. Rehab is something else.

Lindsay Lohan agreed to spend 90 days in a "locked in" drug rehab facility as part of a plea deal to settle criminal charges against her Monday.

The actress entered pleas of no contest on two misdemeanor charges relating to a traffic accident last summer, and she did not challenge the finding that she violated her shoplifting probation with those convictions.

She's spent 250 days in five rehab facilities since January 2007, including one long court-ordered stint after a failed drug test.

The actress has appeared in court at least 20 times before four Los Angeles judges who have now found her in violation of probation six times and sentenced her to a total of nine months in jail.

Lohan has spent about two weeks behind bars in six trips to the Los Angeles County jail, served 35 days under house arrest and worked about 67 days of community service at the county morgue.

Prof. Cecilia Klingele of Wisconsin Law School responded to my critical assessment of her SSRN piece (an assessment I discussed in my earlier entry) with this comment on Sentencing Law and Policy:

A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal; and for those who have served their sentences and are transitioning back to their communities. When community supervision is used, of course it should be thoughtful, well-resourced, and carefully executed. My point is that it is often used in ways and for people who would be better punished in differently, be it through jail time, fines, or unconditional discharge. If anything in the paper misleads on that point (or any other), I welcome suggestions for revision and clarification.

Hat tip to Doug Berman at Sentencing Law & Policy for pulling the curtain back on the actual agenda of the "incarceration nation" crowd.  This is the group, generally flourishing in academia, the media and (of course) the defense bar, that has been telling us for years that prison is vastly overused in this country, and that we would be just as safe, not to mention more frugal and more humane, to use community supervision instead.  In order to sell this idea, these folks have assured us that community supervision would consist of stringent and carefully monitored oversight of offenders.

To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

The California Supreme Court today upheld the retroactive application of parole changes in Proposition 9 of 2008, Marsy's Law.  The decision is In re Vicks, S194129.

The law in this area is largely set by two US Supreme Court decisions, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000).  (CJLF filed an amicus brief in Morales.)

Vicks is a poster boy for the kind of criminal whose release victims should not have to go back and oppose more than once in a great while, if ever.  He committed a string of violent offenses including kidnapping, armed robbery, and gang rape.  He received well-deserved sentences of life with parole and 37+ years, consecutive.  His minimum parole eligibility date was 2010 for 1983 crimes.

California's law of parole was once so criminal-friendly as to require preposterous annual parole hearings, even for multiple murderers.  This has been tightened up since, once by the law at issue in Morales and again in Marsy's Law.  Under the Morales and Garner precedents, a change in parole consideration intervals can apply retroactively if it does not add too much risk that a prisoner will be denied parole at a time when he would otherwise have been granted it.

Marsy's Law sets a presumptive interval of 15 years, but it allows some discretion for setting shorter intervals and for reconsideration upon receipt of new information or a change in circumstances.  The court has to make some pretty generous assumptions about how this discretion will be used to get under the "significant risk" bar.  The facial attack has been rejected, and Marsy's Law has been upheld for now, but we are not out of the woods.

Marc Fisher has this article in the WaPo regarding the dramatic decline in crime since the peak of the 1980s and the puzzlement and debate over the reasons.

It has become de rigueur in such discussions to briefly acknowledge that the tough sentencing reforms of the 1980s and 1990s are a substantial part of the reason but then immediately say something to detract from the import of that conclusion:  "Most studies agree that increases in incarceration explain part of the decline in violent crime, though Solberg and many criminologists say the warehousing of young men convicted of nonviolent crimes causes as many social problems as it solves."  But the people quoted in the story who actually live in a cleaned-up area don't seem to think so.

The result [of housing policies] is a very different population, said Joyce Robinson-Paul, a 32-year resident and the advisory neighborhood commissioner for the area. "The new neighbors are very quiet," she said. But "the real crime problem didn't leave until many of the dealers were arrested and went to jail."

In California, where we have elected a Governor and Legislature who cannot remember history and are determined to repeat it, we are seeing the trend in reverse.  In the FBI numbers for first-half 2012 versus first-half 2011 (a clean before-and-after on the realignment that took effect in October 2011), we see crime increases in California while national figures are flat.

Jennie Rodriguez-Moore reports for the Stockton Record:

A 39-year-old man was arraigned Thursday for the rape, murder and robbery of his own grandmother.

Jerome DeAvila, a registered sex offender, was arrested Tuesday following the discovery of his 76-year-old grandmother's body in the backyard of her southeast Stockton home.

The victim, identified as Racheal Russell, was found by a neighbor inside a wheelbarrow after DeAvila's uncle had gone to check on her.

*                                                *                                             *

DeAvila was an AB109 inmate, said Deputy Dave Konecny of the San Joaquin County Sheriff's Office. The law shifted responsibility of "non-violent, non-sexual and non-serious" felony offenders from state prisons to county corrections in October 2011.

Konecny said DeAvila had been placed on a parole hold for his failure to register. The charge is a misdemeanor charge.

He said DeAvila was released on a court cap, a mandate to reduce jail population when it reaches capacity.

Realignment was sold on the misleading representation that it did not apply to violent, sexual, or "serious" felons.  But legislation has indirect effects beyond its direct application.  By shifting prisoner population to jails that were already overcrowded in many counties, realignment caused release of many inmates who should have been in county, including violent sex criminals.

People with sense have known the whole time that realignment would increase crime and that the predictions to the contrary by "experts" were political-correctness-driven hooey.  Mrs. Russell's horrible death is grisly confirmation of that.

The main reason to keep the death penalty is that it's the only fitting punishment for some grotesque crimes. Another reason is illustrated by this story from the AP.  It's about a woman, now 38, who, at 16, lured a man she didn't know to an abandoned house, where he was knifed to death in order to get his wallet.  

The woman, Barbara Hernandez, is  -- one would think from the story's woozy opening paragraphs  --  Joan of Arc's first cousin.  This is how the article (and it's presented as an article, not an op-ed) begins:

More than 21 years after she went to prison, Barbara Hernandez enters the cinderblock visitation chamber at the Women's Huron Valley Correctional Facility in the turquoise blouse with applique flowers she keeps for special occasions. Her makeup is carefully applied but cannot hide the age lines that spread, thin but unmistakable, from the corners of her eyes.

"Thank you for coming," the 38-year-old inmate says softly. Her eyes, chestnut and brooding, are offset by a gentle smile. She holds out a hand in welcome.  

Are we getting the picture?

And in that moment it is up to the visitor to begin weighing the choice the gesture offers: Is this the hand of a criminal who lured a man she'd never met to a brutal death and must be locked away forever? Or does it belong to a long-ago girl, who left home in rural Michigan at 14 only to end up in an abandoned house outside Detroit with a boyfriend who pimped her, and who now deserves a second chance?

Anyone wanna take a crack at that toughie?  Yikes.  And, yes, this is what passes for journalism.

This sort of story needs to be understood less for its propaganda value as an NACDL adjunct, and more  as a tactic and an illustration of a broader, and very worrisome, Movement:  The Movement to dumb down sentencing across the board. Among its main tools are carefully molded sentiment, manipulation, and concealment. After the break, I describe specifically how it works.

I noted in an earlier post that, after Chicago murders spiked to more than 500 in 2012, the police chief has now recommended stricter gun control, including a mandatory minimum sentence of three years for anyone carrying an illegal gun.  This has sparked renewed interest in the subject of mandatory minimums generally.