Recently in Sentencing Category

Kent noted two weeks ago an article showing that the conclusions of the academic "experts"called criminologists tend to be skewed by their leftist tendencies.  One could hardly imagine a better example than the "report" noted this morning here at Sentencing Law and Polcy. The title of the entry is, "Jeff Sessions's evidence-free crime strategy." It's by John Jay College Professor David Kennedy.

I won't try to gussy it up:  Jeff Sessions should be flattered to be criticized by an article so thoroughly truth-free as this

"Smart on Crime's" Best Example Explodes

"Smart on Crime" is the name given a well-intentioned libertarian organization promoting, most prominently, reducing prison populations by shorter sentences and early release.  Those targeted to benefit would be  --  heard this one before?  -- "low-level, non-violent" criminals. 

The Number One example of Smart on Crime's success has been Texas.  The Lone Star state has been displayed relentlessly as a "deep red" jurisdiction that's made huge strides in criminal justice reform. As always, it was promised that such reform would "keep us just as safe."

Smart on Crime has not been shy about claiming credit for Texas's continuing low crime rate while these "carefully crafted programs" have done their intended work. Never once have I seen the phrase "correlation does not mean causation" used in discussing the relationship between maintaining low crime in Texas and reform's implementation. 

I have a strong feeling, however, that, in light of Texas' just-released and disastrous UCR violent crime statistics for 2016, that phrase is about to make a big comeback. 

Is the ABA a Shill for the Defense Bar?

Read this and decide for yourself.  It starts off (emphasis added):

The ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department.

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case. The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

"Sentencing by mandatory minimums is the antithesis of rational sentencing policy," the report says. Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

The belief that Congress ought to be able to set a rock bottom minimum for serious offenses  --  an idea taking root in the same uncontroversial notion that it can set a binding-on-judges maximum  -- evidently never occurs to the ABA.  The organization understandably cites no precedent in two centuries of case law for its proposal that sentencing courts should have 100% discretion 100% of the time, and Congress can go sit in the corner.

Hat tip to SL&P.

They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.

Sentencing Reform, Meet Reality

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The "sentencing reform" movement is mis-named.  It's actually a movement for widespread reduction of sentences for felons, and aims to achieve this objective in significant measure through one particular mechanism  --  scaling back or eliminating mandatory minimums.

The reform movement has some adherents among Republicans (principally libertarians and some evangelicals, who regularly get trotted out as a supposedly "bi-partisan" front), but is overwhelmingly an idea supported by liberal Democrats, e.g., Pat Leahy, Eric Holder, Loretta Lynch, and Sally Yates.

Of late, however, one of the most reliably liberal and Democratic cities in the country has discovered the virtue of mandatory minimum sentencing.  Baltimore is plagued by rampant murder (perhaps the Freddie Gray rioters were given too much "space to destroy"), so Baltimore's leaders, who are almost all African American, have decided to seek mandatory minimum sentencing for gun-wielding hoodlums:

Baltimore leaders on Friday proposed changing city law to require a mandatory one-year sentence for illegal gun possession in much of the city -- within 100 yards of a school, park, church, public building or other public place of assembly.

The bill would prevent any part of the one-year sentence from being suspended, and preclude those with such convictions from receiving parole.

Mayor Catherine Pugh said she'd like to do more to restrict guns, but "this is what we can do locally" without changing state law.

Pugh acknowledged that there is a church or a school "on nearly every corner" in the city, and said "as it relates to this legislation, that's a good thing."

Police Commissioner Kevin Davis praised the bill as a much-needed change to help the city address its soaring violence. Baltimore is on pace to surpass 300 homicides for the third year in a row. Before 2015, that mark hadn't been reached since the 1990s.

Liberal academics almost all fall in line with The Received Wisdom of sentencing "reform."  Then again, liberal academics don't have to live in crime racked neighborhoods  --  a fate foisted off on Lesser People.

When Early Release Gets a Pass

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Generally, early release from prison is a bad idea.  The system is already laced with so much leniency that more is seldom justified.  The eye-opening Washington Post series, "Second Chance City" gives a glimpse of what leniency actually does:  It promotes crime and assures more crime victims.  Some of them will wind up beaten, raped or dead, or all three.

America is not over-incarcerated.  It is, if anything, under-incarcerated, as its astounding recidivism rates and burgeoning murder rate since 2014 show.

Still, I do not wish to be a hard-hearted man.  Even for a lifelong thug, a man so bad even his son testified against him and now has to be hidden in the federal witness protection program, there can be a case for being released before completing all eight years of his sentence.

The New York Daily News has the story.
A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

She has an opinion piece in today's Washington Post.  I may go through more of it later; for now, I just want to look at the first substantive paragraph, which is regrettably representative of the deceit running through the entire piece.  Ms. Yates begins her analysis with this:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Where to start?
Kent recently noted the numerous and flagrant fabrications by an organization supporting a version of California "sentencing reform."  In the News Scan entry just before his, CJLF's staff discussed the legal settlement Rolling Stone magazine had been forced to cough up as a result of its wonderfully detailed fabrication of a rape at the University of Virginia. The made-up rapists were made-up white males.

That same day, I read a short introduction to a new book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."  Its first paragraph asserts:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.

A better example of mendacity displacing argument would be hard to conceive.
Today's News Scan notes a bill in the California Legislature to repeal what amounts to a mandatory minimum for use of a gun to commit a crime.  Last month when this bill was heard in the Senate Public Safety Committee, Michele Hanisee and Eric Siddall wrote this post for the L.A. Association of Deputy District Attorneys about the testimony in support of the bill.

Turns out the "facts" of the "poster child" case are fabricated.  Imagine that.

The Hard Realities of Hard Time

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In the City Journal, Professor Barry Latzer reviews Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff.

[It] is probably the best book on so-called mass incarceration to date. A professor of law at Fordham, Pfaff doesn't cherry-pick data to support some a priori theory; staying empirically grounded, he grapples directly with the data--an approach that makes his argument for reducing imprisonment a very tough sell. If violent crime and other serious offenses are the primary reasons for incarceration, then why should we reduce imprisonment?

The author's main point is that the usual explanations for the rise in imprisonment--the "standard story," as he calls it--are not only wrong but also counterproductive to de-incarceration efforts. The standard story has three components: the war on drugs, long prison sentences, and the growth of private prisons. Each of the three, Pfaff demonstrates, is a secondary contributor at best.
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The Washington Post today carries the story of a local man (the former mayor of Fairfax City) who got a sentence of zero for distributing one the most dangerous drugs out there, methamphetamine.

This is not a young person, not a minority, not poor, not uneducated  --  and it's not pot and not simple possession. This is a grown man with a lot of advantages who is basically getting a walk (he did get time served, a little less than three months, plus "community service" (an especially sick joke since he was already a public servant at the time of his arrest)).

He was also, according to the story, unapologetic, and instead portrayed himself as the "victim" of addiction.  I was unable to find, however, any evidence of this in the news account beyond his self-serving claims  --  not that it would excuse either him or the clueless judge even if it were true.

Our country is suffering from crisis-level overdose deaths from hard drugs, of which meth is one of the worst.  As much as the Stanford rape abomination,,  this case proves that judges need the discipline and limits of mandatory minimum sentencing.

Questions Asked Now, But Ignored Then

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Four senators closely identified with the "sentencing reform" movement have written the Attorney General, questioning his recent decision ordinarily to require federal prosecutors to charge defendants with the most serious readily provable offense.The letter is reproduced here, in the press release of one of its signatories, Sen. Mike Lee (R-UT).

I might have a more detailed response to this letter in a bit, but for right now, I have some questions of my own.

1.  Why should prosecutors, whose main duty is to enforce the laws as Congress wrote them, charge the defendant with anything other than what he actually did? Isn't honesty the paramount value we seek in public servants?

2.  Why do pro-"reform" senators want the executive branch to, in effect, legislate the "reform" agenda for them through massaged charging policies?  (Hint:  Because they can't get it through a wised-up Congress, so they want a work-around.  Whether the Constitution provides for executive branch "work-arounds" of Congress is not among the questions in which they seem interested).

3.  Why is it proper for prosecutors intentionally to withhold highly relevant information from the indictment (such as the amount of drugs the defendant is peddling)?  Don't we value prosecutors who are fully candid with the court from the getgo?

4.  Why is it wrong to have to explain in writing the reasons for seeking exceptions in favor of leniency?  Isn't more reflection, accountability and transparency what we want from prosecutors?

5.  Why wasn't this letter written to Attorney General Holder, who used an identical charging policy for three-quarters of his tenure heading the Justice Department?
The reason the federal judicial branch is not politically accountable is that it is placed by the Constitution outside politics.  Every one of the federal district court judges I've encountered over 40 years in practice understands this.  No matter what their political beliefs, they have conducted themselves with the circumspection and restraint their power assumes, and requires.

As is clear by now, I have never encountered US District Judge Mark Bennett of Iowa, formerly  --  and, so it would seem, presently  --  a powerhouse in the ACLU.

Judge Bennett recently gave a long speech to (at least) a CNN audience on how Congress is a bunch of callous ciphers.  He intended to make the case against Congressionally-enacted mandatory minimum sentences.  Instead, by both the substance of his remarks and his indiscipline in making them, he showed why they're needed.

Why Sentencing Reform Tanked

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The estimable Doug Berman at Sentencing Law and Policy has this entry about what is to him, and others who sought the mass sentencing reductions they call "sentencing reform," bad news.

The news is that their proposals are still on the ocean floor.

The reason for this fact is, however, different from the one put forward in the article Doug cites.
Nicole Hong reports for the WSJ:

A federal appeals court Wednesday affirmed the conviction and life sentence of Ross Ulbricht, the mastermind behind Silk Road, an online drug bazaar that was once described by the government as the most sophisticated criminal marketplace on the internet.

In a 139-page ruling, a three-judge panel of the Second U.S. Circuit Court of Appeals in Manhattan upheld a lower court's decision to sentence Mr. Ulbricht, now 33 years old, to life in prison. A federal jury found him guilty in 2015 of seven criminal charges related to Silk Road, including conspiracies to sell drugs and launder money.

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