Recently in Sentencing Category

In comments to Bill's post on incarceration rates there is discussion of the issue of whether the higher (although shrinking) incarceration rate for African Americans is due to higher offending rates or discriminatory enforcement.  I did a quick search for research on this subject.

Be Careful What You Ask For

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When a defendant has gotten off with less than he or she deserves with a plea bargain, it is not a good idea to have the entire judgment vacated and go back to square one.  From the Ninth Circuit's decision yesterday in Fox v. Johnson, No. 13-56704:

Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Fox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. § 2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.

We refuse Fox's request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.
It's often said that race tells the tale about how you'll be treated by the criminal justice system and, in particular, about how harsh your sentence will be.

If that were true, one would expect to find at least a modest statistical correlation between race and sentencing outcomes.  There was a recent study of that question, noted by Doug Berman in this entry on Sentencing Law and Policy.  The last paragraph, with emphasis by Doug, is this:

A justice system reasonably aspires to be consistent in the application of law across cases and to account for the particulars of a case. Our goal was to create a prediction model of criminal sentence lengths that accounts for non-judicial factors such as weather and sports events among the feature set. The feature weights offer a natural metric to evaluate the importance of these features unrelated to crime relative to case-specific factors. Using a Random Forest, we found several expected crime related features appearing within the top 10% most important features. However, we also found defendant characteristics (unrelated to the crime), sport game outcomes, weather, and location features all predictive of sentence length as well, and these features were, surprisingly, more predictive than the defendant's race. Further investigating this predictive ability would be of interest to those studying the criminal justice system.



When Hurst v. Florida was decided earlier this year, I wrote a post titled Dangerously Sloppy Language in the Hurst v. Florida Opinion.  Sure enough, four of the five justices of the Delaware Supreme Court have now decided that the state's long-established and thoroughly vetted death penalty statute is unconstitutional.  That would be true only if one sloppy piece of obiter dictum wipes out the distinction between the eligibility decision and the selection decision crafted over decades and clearly set forth in numerous U.S. Supreme Court opinions.

The case is Rauf v. State.  See Justice Vaughn's dissent for the correct answers.

Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?  Let's hope so.

Mr. Second Chance

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Those favoring reduced sentences emphasize the moral imperative of giving second chances.  It's "who we are."  We can't judge a person by the worst moment of his life. America has 5% of the world's population but 493% of the world's prisoners. 

Heard this before?

Here's something you won't hear from the groups that specialize in promoting softer sentencing: We're already soft, right here in the nation's capital. We've been soft for years. We know what it produces  --  violent crime.

Who are the victims, the ones you also won't hear about from those groups?

It's not the lobbyists and ideologues hanging out at their Georgetown and Bethesda parties.  It's overwhelmingly the African American working class, consigned to neighborhoods the lobbyists wouldn't be caught dead in (or would only be caught dead in, I'm not sure which).

How do we know this?  Not from Fox News.  Not from Breitbart.  From the Washington Post.  The opening paragraphs from its superb and shocking article, the second of a continuing series, follow.

Battling It Out on Sentencing Reform

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In my view, the battle over federal sentencing "reform" for this session of Congress has ended in victory for those of us wanting to preserve the gains the county has made in suppressing crime.

But since almost nothing gets permanently settled in this town, my adversaries will be back.  One of the best of them is Mark Holden, General Counsel of Koch Industries.  His op-ed in the Salt Lake Tribune (lauding, among others, Sen. Mike Lee) is here.

My response was printed last Friday in the Deseret News, and can be found here.

Mark and I have more areas of agreement than disagreement, however, and I look forward to working with him and Koch Industries for significant mens rea reform, to insure that ordinary businessmen and landowners do not get sent to prison for behavior a normal person would not know is wrong, much less criminal.
William Horobin and Inti Landauro report for the WSJ:

The man who killed 84 people in Nice on Bastille Day appeared to be planning the attack since last year and had the help of several people, France's top antiterror prosecutor said Thursday.

Investigative magistrates on Thursday were interrogating five people suspected of providing support to 31-year-old Mohamed Lahouaiej Bouhlel, said Paris Prosecutor François Molins, who laid out a timeline suggesting the attacker and his suspected accomplices had embraced Islamic extremism as early as the Charlie Hebdo attack in January of last year.

The details disclosed by Mr. Molins threaten to fuel public anger at French President François Hollande and his ministers, who have spent days defending their handling of the terror attack.

The new evidence appears to contradict claims made by top French officials immediately after the rampage that Lahouaiej Bouhlel was radicalized in a matter of weeks, leaving security services little chance of stopping him when he plowed through throngs of revelers on Bastille Day with a 21-ton truck.

Instead, Mr. Molins suggested Lahouaiej Bouhlel may have conducted surveillance on his target a year before he acted and communicated more than a thousand times with suspected accomplices.
Accomplices who share the specific intent are just as culpable as the triggerman.  Presumably some of them will be caught.  What will France do then?   Will they do like Norway with Anders Breivik and sentence them to less than four months in prison per life taken?

Are you really sure you don't want capital punishment, mes amis?

The Sentencing Reform Movement, Distilled

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Atlantic magazine features an article in which David Frum interviews Steve Teles, a liberal but thoughtful professor of political science at Johns Hopkins.  The article encapsulates Teles's new book (with co-author David Dagan) Prison Break, in which Prof. Teles describes "why conservatives have turned against mass incarceration."

It's not mass incarceration (zero point seven percent of the population is imprisoned), and conservatives haven't turned against it (although some prominent and/or libertarian-leaning and/or Beltway-centered conservatives do support sentencing "reform"). Still,the article is worth your time for its delicious insights about how the sentencing reform movement is organized and financed.  But the most revealing paragraph, I thought, is this one:

The openness of conservatives to rethinking criminal justice is, to a significant degree, a function of the declining salience of the issue. Voters since the late 1990s simply haven't cared about it as much, as the great crime decline started to register. Voters will still tell you in polls that they think that our criminal laws aren't severe enough, but they also don't care about it as much. And that lack of strong concern creates space for politicians to move without fear of reprisal, and to be more entrepreneurial in their framing of the issue.

That has a bit of academic lingo, so let me try to distill it:  "Now that policies of increased incarceration have helped us succeed in reducing crime, we can relax and go back to failure."

Trump Makes a Sound Choice

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Donald Trump has some problems from my point of view, but deserves credit for his choice of Indiana Gov. Mike Pence as his running mate.

Apparently the two finalists were Pence and Newt Gingrich.  The latter has been a ringleader in the sentencing reduction (usually called sentencing "reform") movement. Pence,  by contrast, knows the value of mandatory minimums and  --  so the Indiana Lawyer reports  --  signed a bill four months ago to make some of them even tougher:

Gov. Mike Pence toughened sentences for drug dealers Monday, signing legislation that would mandate repeat offenders serve at least 10 years if their crime involves methamphetamine or heroin.

The measure, House Enrolled Act 1235, was included in a bill-signing ceremony the governor held this morning at Hope Academy in Indianapolis, a high school for students recovering from drug and alcohol addiction.

"...I believe that any strategy to address drug abuse must start with enforcement. We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."

It will be a long day in December before we hear that from Hillary.  In addition, any candidate who gets this kind of headline from a liberal publication has to have a lot going for him:  "Gov. Mike Pence Makes Certain Indiana Stays Stupid on Crime."


Gender in Risk Assessment

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The Wisconsin Supreme Court held yesterday that the use of risk assessment measures in sentencing decisions does not violate due process as long as certain precautions are undertaken.  The case involves the use of COMPAS, a common measure used in many states to help guide sentencing decisions. 

There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism.   As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed.    The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.  

Q: Is America Overincarcerated?

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A:  Absolutely not.  The people who get sent to prison earn their way there, and keeping them segregated from civil society for longer terms has contributed significantly to the enormous (but now jeopardized) drop in crime over the last generation.

The Manhattan Institute spells it out with data as effectively as I have ever seen.  Its  tract begins:

It is not easy to land in an American prison. Most convicted felons never reach prison, and those who do are typically repeat offenders guilty of the most serious violent and property crimes. The system sends very few people to prison for simple drug possession. Drug-related convictions do not disproportionately harm the black community. To the contrary, if all drug offenders were released tomorrow, there would be no change in the black share of prisoners.

We do know, however, that putting the most dangerous criminals behind bars reduces victimization for crime-plagued communities. As the incarceration rate for violent felons has increased, crime rates have plunged, saving countless lives and improving public safety--especially in minority neighborhoods. California, which is experimenting with "deincarceration," is already seeing years of progress on public safety reversed in a matter of months.
The Yolo County D.A.'s Office recently launched a website that is designed to inform the public about "non-violent second strikers" who have been granted early release from state prison.

Yolo County District Attorney Jeff Reisig stated that "Most citizens have no idea that serious criminals are being released from prison early under these new state programs.  Many of these individuals have very violent criminal histories and continue to pose a danger to our communities.  Our new website link is designed to inform the public and improve the transparency of the state's early release decisions."

A press release about California's early release problem and the new website is here.

Big thumbs up to District Attorney Reisig and the Yolo County D.A.'s Office!

Accountability

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Peter Holley reports for the Washington Post that "Day-care worker who raped toddlers on video actually a 'charming young lady,' lawyer says"...Really?  A charming young lady?  She videotaped herself sexually assaulting multiple babies and toddlers, then sent the footage to her convicted Tier II Sex Offender boyfriend.  Her boyfriend was on probation for pandering obscenity involving a minor in 2011.  Heather Koon pleaded guilty to four counts of rape, kidnapping, pandering obscenity involving a minor, plus other crimes involving illegal use of a minor in nudity-oriented material.  However, she pleaded not guilty to specifications labeling her a sexual violent predator.  That will be determined at a future hearing.  If so designated, she will receive a mandatory life sentence without parole.

Her attorney said:  "It's very unusual to have a female charged as a sexual predator - almost unheard of...Psychologists tend to think she's more along the lines of a battered woman.  She was being influenced by her boyfriend."

She met a guy, who happened to be a convicted sex offender on probation for offenses involving a minor.  Knowing this, she still chose to date him.  As a day-care worker working for a licensed day-care facility, she was trusted by parents to take care of their young children, not prey on them or sexually exploit them.  She made the choice to sexually assault those children at the day care facility.  She made the choice to videotape the acts.  And she made the choice to send the footage to another sex offender. She is not a "battered woman".  She is a woman who made very wrong choices.  I'm sure she is "charming", but so was Ted Bundy.  She raped children.  She involved herself with a convicted sex offender.  Like her boyfriend, she should also be held responsible for her bad choices.

Victory

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Backers of mass sentencing reduction for hard drug traffickers and other federal felons have, for any practical purpose, conceded defeat.

RealClearPolitics reports:

Sen. Dick Durbin of Illinois, the second-ranking Democrat in the chamber and an author of the justice reform bill, said Republicans had offered him "little to no hope" that the legislation would move forward. He called it a "missed opportunity."

Texas Sen. John Cornyn, the Republican whip and a lead sponsor of the measure, said he'd hoped the House would move more quickly and provide momentum in the Senate, but "apparently we ran out of time."


With all respect to Sen. Cornyn, the main problem was not time.  The problem was that the bill was a bad idea from the start.  Backers refused to disclose what the total cost of the (all-but-certain) recidivist crime would be  --  that is, how many more Wendell Callahan child murder episodes we should expect.  They refused to budge on mens rea reform. They refused to acknowledge the tens of thousands of felons who will already be getting early release courtesy of retroactive sentencing guidelines. They refused to understand when the ground shifted, failing to grasp that months of increases in violent crime and heroin overdose deaths have shaken the enabling complacency of last year.

 

Who are the heroes in the fight to preserve our safety?  The honor roll begins with Sen. Jeff Sessions, whose valor was a beacon from the start.  It includes Sens. Tom Cotton  --  a brilliant, strong, young voice  --  David Perdue, Orrin Hatch, David Vitter, and Ted Cruz.  Behind them are incredible women and men whose diligence has been a lesson and a model for me.


Congratulations and gratitude to every one. 

All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  

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