Recently in Sentencing Category

This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

Rehab for This Non-Violent Offense?

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Sentencing "reformers" have finally admitted explicitly that their largesse would extend to violent as well as non-violent offenders.  Still, and for obvious PR reasons, they continue to push the line that "reform" (i.e., early release or no incarceration to begin with) is intended principally for "low-level, non-violent" offenders.  Their argument is that (1) we simply can't afford the present level of incarceration, (2) we're overly punitive in any event, certainly compared to Western Europe, and (3) we can use the money saved to focus on "truly dangerous" criminals.

Today brought news of a "non-violent" offense that very likely cost individual victims no more than $50 or $100 each.  Certainly that's a "low-level" sort of thing for which "reformers" would be scandalized that Puritanical nags (like me) would even contemplate prison.  But I am contemplating it indeed, even though to date only civil charges have been filed.  To boot, I think a sentence of ten or twenty years would be just fine.

The WSJ has the story.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.

Judge Alcee Hastings, Living in Sackcloth

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In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

But Judge Hastings is a superb politician, and got himself elected to Congress in 1992.  He's still there  --  but as he tells us, just getting by.

I think it was a couple of years ago that a staffer for an influential United States Senator told me face-to-face that the country needed sentencing "reform" because there simply is not enough money in DOJ's budget to afford incarceration at the present levels.

There is, however, enough money for this.  Eric Holder outdoes Narcissus by a country mile.

It's an embarrassment.  There's no other way to put it.  I can't say I "know" Michael Mukasey exactly, but it's beyond comprehension that Judge Mukasey would have allowed, much less participated in, a display like this.

The cost argument for the Smarter Sentencing Act was always so much tripe (since this Administration, like past ones, simply borrows to finance things it actually cares about), but putting tax dollars into gushing self-congratulation drives home the point like nothing else.
There is one person we often don't hear from in death penalty cases:  the killer.

The Fifth Amendment of course shields the killer, and every defendant, from having to take the stand in either the guilt or penalty phases of his trial.  So there is no means of forcing him to say anything; that is as the Framers intended.

Still, wouldn't it improve both the system as a whole and the prospects for justice in the individual case in we could hear from the most important person in the courtroom?  The one whose silence is at the center of the case?

I tend to think so.  Thus I make the following suggestion should the jury return a recommendation of death for Dzhokhar Tsarnaev.  

A Waste of Time and Money on a Killer

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Roughly four weeks ago, the New York Times had this gushing article about the then-upcoming re-sentencing for Adolfo Davis.  In 1990, at age 14, Davis, a Chicago native, was knee-deep in a double murder.  He was tried as an adult and sentenced to the then-mandatory LWOP. Then the Supreme Court came along in Miller v. Alabama to hold, 5-4, that mandatory LWOP for a juvenile violates the Eighth Amendment. 

The defense bar was all aflutter.  Miller was to be the beginning of the end for finality in sentencing, and would open the door to vastly expanded proportionality review, not to mention full throttle for the "his-brain-wasn't-developed" arguments in behalf of all manner of violent criminals in their fifties forties thirties whatever. 

All that might yet happen.  But, I noticed in the Chicago Tribune yesterday on my way back from the Seventh Circuit Judicial Conference in Milwaukee, it didn't work out too well for Mr. Davis.
Paul Mirengoff has an insightful post discussing President Obama's view that long prison sentences are partly to blame for problems in the inner city because they are depriving young African Americans of a father in the home.  Paul argues:

Is it valid to argue, in effect, that a criminal shouldn't be incarcerated because he's the father of five or six (or any) kids? Not unless criminal law is to be stood on its head.

Criminal law is founded on the concepts of individual justice and personal responsibility. The criminal's guilt and sentence are based on his behavior and his individual history, not on social concerns (or "social justice" to use the popular oxymoron).

Social considerations enter the equation at the level of determining what behavior is criminal. But this determination has never to my knowledge been based on the ability of a particular segment of society to avoid committing a type of crime.

Moreover, social concerns don't control sentencing. If they did, given the extremely high rates of recidivism, the result would be much longer sentences as a means of protecting society from crime. 



The President had some remarks today about the Baltimore anti-police riots  -- riots that have turned into a festival of destruction, looting and arson.  The Washington Post reports (emphasis added):

President Obama made an impassioned call Tuesday for Americans to do "some soul searching" in the wake of this week's rioting in Baltimore, arguing the U.S. has faced "a slow-rolling crisis" over race and economic opportunity in urban areas....

Obama sharply condemned the rioters for damaging private property and taking items from local stores: "They're not protesting. They're not making a statement. They're stealing."

But he also directed his criticism toward Americans--including the news media and some politicians--for failing to address the chronic problems of men, women and children who live in poverty and find their opportunities limited because of poor schools or long stints in prison.

To start with, it doesn't matter what the schools are like if (a) teachers fake test scores to evade accountability (a la' Atlanta), and (b) the students drop out in the ninth grade because party time with drugs is more fun than math and reading.

But the President laid his biggest egg with his crack about "long stints in prison."

Another Minor Crime

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A couple of days ago, I blogged about what those backing sentencing "reform" would call a minor crime.  It's not the sort that warrants a jail term, in their view, but something more......creative.

I found out about that crime, the theft of a wheelchair, just by listening to the local news.  Today, the local news told the story of another "minor" crime, to wit, a very brief assault (no robbery undertaken or apparently intended).

Here's the piece.  Its 20-second tape of the assault is very much worth watching. The criminal looks to be about 25 to 30.  I would say offhand that he pretty much defines what people mean when they use the word, "thug":

Metro Transit Police said they are looking for a man who is shown in a surveillance video punching another man and knocking him down on an escalator in the rail system.

Police said the man shown in the video allegedly assaulted a 69-year-old man Friday around 1 p.m. at the Eastern Market station.

The man victim told police he was pushed by another man as he got off the train. The two then engaged in a verbal altercation on an escalator at the stop. The victim told authorities that the other man then punched him in the face with a closed fist. 

Neither the wheelchair theft nor this assault is exactly big news, which is precisely why I write about them.  When we turn away from prison as the answer to this sort of "routine" crime, we're inviting more of it.  As in the Sixties and Seventies, more of it is what we'll get. 

The Story of a Minor Crime

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We are told more and more that minor property crimes should not be punished with jail.  That was the principal rationale' for California's passage of the predictably disastrous Prop 47.  We need to be "smarter" about sentencing  -- use our resources better, don'tcha know.

Here is the story of a "minor property crime" I ran across a few days ago just listening to the local news:

LANGLEY PARK, Md. (WUSA9) -- A four-year-old boy's wheelchair was stolen from a building in Langley Park, according to Prince George's County Police.

The theft occurred Sunday night in the lobby of an apartment building on Merrimac drive, police said.

Surveillance video shows the suspect pushing the empty wheelchair through a parking lot.

The family of four-year-old Joshua shared a video of her son. "This family already faces challenges and shouldn't be burdened with the emotional and financial stress of the theft of this wheelchair. The suspect we're looking for has no heart," Captain Ken Humbel said in a statement.



Tsarnaev, Silence, and Remorse

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The prosecution has rested in the penalty phase of the trial of Boston Marathon bomber Dzhokhar Tsarnaev.  If he does not testify in the penalty phase, as I expect he will not, can that silence be used against him as indicating a lack of remorse?  I don't know.

In White v. Woodall, decided one year ago today, the Supreme Court reviewed its precedent in Mitchell v. United States, 526 U.S. 314, 328 (1999):

"The Government retains," we said, "the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege." Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: "Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in ยง3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it." Ibid.
A footnote at that point notes a division in the Courts of Appeals.  No First Circuit cases are noted there or in the certiorari petition.

Woodall did not resolve the question.  It was a state case being reviewed on federal habeas corpus, and the unsettledness of the underlying question was enough to require the federal court to respect the state court's decision under the controlling act of Congress.  CJLF's brief in that case is here.  My post on the case is here.

Prosecutors would be well advised to avoid mentioning the defendant's silence until the issue is resolved.  It isn't worth risking a reversal.  Long-term, though, I think the Griffin no-comment rule should be limited to the extent expressly held in Supreme Court precedent and not extended by a fraction of an inch.  I wouldn't mind seeing it overruled, but I don't think that is a realistic possibility.
Violent, repeat criminals should be put away for a long time, Congress quite reasonably decided in 1984.  But the devil is in the details, and the Armed Career Criminal Act has been an interpretive problem for a long time.  What exactly is a "violent felony or serious drug offense"?  Jess Bravin has this article in the WSJ on today's argument in Johnson v. United States, No. 13-7120.  The transcript is here.
"Sentencing reform" is the deliberately gauzy name given the movement for shorter sentences and earlier release.  Its advocates say it will be focused on "low level, non-violent" offenders, but quietly, and less prominently, acknowledge that it's intended to apply to "all offenders."  

This is one reason I want to add explicit language to one of the main "reform" measures, the Justice Safety Valve Act, before it gets a vote.  I want the public to know exactly what "all offenders" means.

It's also the reason I want to highlight an item from today's News Scan.  The Scan is sometimes easy to pass by quickly, because it contains a number of stories. But this one deserves our immediate attention:

Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15 year sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least seven children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

Bring Up, and Vote Down, an Amended JSVA

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The Justice Safety Valve Act, which would effectively nullify mandatory minimum sentencing in federal law, was so radical that its co-sponsor, Sen. Pat Leahy, would not bring it up last year in his own Committee.  In this, Sen. Leahy showed his typical canny feel for the lay of the land.  Committee chairmen tend not to bring up bills they know are so ideologically lopsided they'll go down in flames. 

Still, Sen. Leahy and Sen. Rand "no vaccinations" Paul have co-sponsored the same bill this year.  If Sen. Leahy were still the Chairman, I have no reason to believe he'd be any more willing to advance it than he was in the past.

Still, there could be value in having a vote on the bill in the SJC  --  having a vote, that is, if the bill were amended to give the public a more transparent look at what it's actually designed to do.

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