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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.  
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

What is "violent" crime?

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Here is a good example of an article that I largely agree with for its main point, even though I come from an opposite viewpoint on the underlying policy question.   The title above is the first sentence of Benjamin Levin's article in Slate, while the actual headline and subhead is "less pithy," as Doug Berman points out.  "It's time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system. -- The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment."

As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.

Burglary is generally classified as a "property" crime rather than a violent one.  That is where you will find the numbers tallied in the FBI's Uniform Crime Reports.  Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence.  The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss.  Many victims make an explicit analogy to sexual assault in terms of their reaction.

Repeat Criminal Convicted, Again

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In posts here and here, I discussed a Washington Post story detailing how repeated "second chances," all borne from the false promises of rehabilitation and redemption that underlie the sentencing reform movement, resulted in a brutal rape.  At the time of my entries, the rape had not been proved in court, and the defense lawyer indignantly and thunderously denied her client's involvement.

A jury has now found that defense counsel's story was so much baloney.  That by itself is hardly worth a new entry; made-up stories are the inventory of criminal defense.

What's worth a new entry is a reminder of how utterly preventable this rape was  --  if our system suffered less from willful and ideologically driven blindness about the criminal instincts of the defendants it's dealing with. 
Yesterday the John and Ken Show, the leading talk radio show in the L.A. area, had this segment on Gov. Jerry Brown's Jailbreak Initiative with yours truly.
I have previously argued that Judge Aaron Persky, who imposed a six-month jail sentence on the man who grossly violated an inebriated woman, should be recalled.

I advanced this position notwithstanding the opinion of the defendant's father that all his son did was "20 minutes of action"  --  a phrase that will live in infamy if I have anything to say about it, not because it's appalling, but because it's revealing.  In 40 years of practicing law, I have never seen the defense attitude toward victims put more honestly or more succinctly. 

The court's lenient sentence, and what should become of Judge Persky, is the talk of the legal blogosphere, see, e.g., Doug Berman's entry here, and is today's lead topic in the New York Times "Room for Debate."  The NYT asked three legal scholars to chime in, and me too.  The debate presents as diverse and thoughtful a discussion as I have seen.

I have criticized the NYT more than once, and will do so again, but I thank it for seeking a conservative viewpoint and allowing me to speak my piece.
Last winter, California Governor Jerry Brown wanted to put on the ballot a new initiative to facilitate large-scale releases of felons from prison.  He had a problem, though, in that it was too late in the initiative cycle to begin an initiative from scratch and get it on the November 2016 ballot.

Gov. Brown's solution was to strike a deal with proponents of an unrelated juvenile justice initiative that had already gone through the early stages of the process.  Can he do that?  The bill allowing amendment of pending initiatives is only two years old, and there are unanswered questions.  Today the California Supreme Court answered one of the questions and cleared the way for the Jailbreak Initiative to be put on the ballot this fall.

The statute at issue, California Elections Code ยง 9002(b), requires that the amendments be "reasonably germane" to the original measure.  Does that phrase stretch far enough to take an initiative that is entirely about juvenile justice and graft on a measure that largely dismantles the determinate sentencing reforms of 40 years ago, which apply only to convictions in adult court?

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Time to bring out the elephant in the living room again.  As described by Wikipedia:

"'Elephant in the room' or 'Elephant in the living room' is an English metaphorical idiom for an obvious truth that is going unaddressed. The idiomatic expression also applies to an obvious problem or risk no one wants to discuss.

"It is based on the idea/thought that an elephant in a room would be impossible to overlook."


Lisa Marie Pane and Don Babwin have this story for Associated Press.

CHICAGO -- Violent crimes - from homicides and rapes to robberies - have been on the rise in many major U.S. cities, yet experts can't point to a single reason why and the jump isn't enough to suggest there's a trend.

Still, it is stumping law enforcement officials, who are seeking a way to combat the problem.

"It's being reported on at local levels, but in my view, it's not getting the attention at the national level it deserves," FBI Director James Comey said recently. "I don't know what the answer is, but holy cow, do we have a problem."

You have to get down to the 15th paragraph before the Ferguson Effect is even mentioned, and it is immediately followed by a dismissive comment by the lacking-a-better-explanation expert.  The ongoing efforts to dismantle the highly successful tough-on-crime movement of the past several decades -- ignoring history in order to repeat it -- is not mentioned at all.

The anti-punishment and anti-police crowds (overlapping but not equal sets) have been on a roll for several years now.  When the results that persons of sense warned would follow do follow, the likely causal connection must be ignored or dismissed.

A Requiem for Sentencing Reform

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Mass sentencing reduction had a chance in Congress for only as long as our country's galloping murder and heroin spikes could be shoved behind the media curtain, and before evidence surfaced of how grisly the human toll of early release would be.

When Wendell Callahan was given early release courtesy of a less ambitious 2010 version of sentencing reform and then, four months ago. sliced up two little girls and their mother, the current legislation suffered what may have been its mortal blow. Sentencing reformers had no answer.  Mostly the response was to refuse to discuss it.  The best a flummoxed Senate staffer could squeak out was, hey, look, we can't catch everything.  No wonder he and his boss refused to be quoted for attribution.

In addition, the shocking acceleration in murder and heroin overdose deaths is now at the point where even the pro-criminal lobby cannot ignore it; the best they can do is profess head-scratching befuddlement at how it could have happened. (It never occurs to them  --  or, more likely, it's precisely because it does occur to them  -- that this is the outcropping of their police-are-Nazis campaign).

Thus today  --  and as usual refusing to admit what they're doing  --  the SRCA's backers admitted defeat.
I wrote earlier today about the surge in violent crime across America and its roots in the "Ferguson effect," i.e., the intimidation of proactive policing.  Paul Mirengoff follows up with observations from this morning's American Enterprise Institute forum 

The importance of proactive policing, which is what the Ferguson effect deters, is sufficiently obvious that even liberals understand it. Today at an AEI conference on sentencing reform, Steven Teles, a leading proponent of softer sentencing, expressed his concern that the sentencing reform movement, which has carried the day in some states, will be set back if the crime rate continues to rise and/or if those released pursuant to the reforms commit horrific crimes.

Teles therefore stressed the importance of coupling softer (he calls it "smarter") sentencing with measures to prevent crime, including proactive policing. In other words, sentencing reform, an important agenda item for the left (and for some conservatives), might not be sustainable without the kind of policing the left castigates -- and thereby deters.

But the same mindless accusations of racism that the softer sentencing movement relies on also undergird the virulent attacks on the police that produce the Ferguson effect. Thus, we're quite unlikely to get both a soft sentencing regime and policing that will help society cope with the consequences of having vastly more criminals on the street.


Just so.  The cultural rot and grievance narratives that have produced the push for dumbed down sentencing are certain also to produce continued shrunken policing. Our budding crime wave will stop only when the ideas that have spawned it are exposed and defeated.   

I was fortunate to have the opportunity to see Sen. Tom Cotton's remarks today at the Hudson Institute on what is called sentencing "reform," and on policing.  

I have seldom seen a member of Congress speak with such knowledge and specific data as Sen. Cotton.  

One of the many points he conveyed is that some of his colleagues have simply become complacent about the gains the country has made against crime, and accept as the state-of-nature the low crime we have now.

It is not the state of nature, and if we turn away from the work we did to get here, soon enough we'll find ourselves back in the time when New York City had six murders a day. In one major city after another, we're already headed in that direction.

Will we wake up?  Sen Cotton seems optimistic. His remarks are here.


Senator Sessions Sounds the Alarm

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Sen. Jeff Sessions has been one of the leaders in the opposition to proposals for mass sentencing reduction for felony-level criminals.  As he noted in remarks on the Senate floor this week:

"According to the F.B.I. statistics released just this year, the number of violent crimes committed across the country was up in the first half of 2015 compared with the same period of 2014. The number of murders, rapes, and assaults and robberies were all up over the first six months of 2015. There was a 6.2 percent increase in murders, [and] violent crime across America rose 5.3 percent in large cities... What I'm seeing is, in my judgment, that this is a long-term trend. I think we're going to continue to see this increase. I wish it weren't so, but I'm afraid it is...

"When you have 20, 30, 40 percent increases in crime, you're talking about doubling the crime rate, the murder rate in America in two or three years, after we spent 20 years bringing it down by half. We've got to be sure what we are doing here, colleagues, is smart and we're not signing death warrants for thousands of American innocent citizens."

The tape of his remarks is here.
The effort to engineer mass sentencing reduction took a major hit when Sen. Marco Rubio announced his opposition.  As the Washington Examiner discloses:

Marco Rubio [has become] a firm opponent of the bipartisan sentencing reform legislation pending in the Senate, following a review of the bill and multiple conversations with Republican proponents of the package.

"I just have too many concerns about the spike in violent crime in this country and what impact that law would have on it," Rubio told the Washington Examiner. "I just can't support it...There are people who are supporting this proposal who I have a lot of respect for, and so I took the time to review it," Rubio said. "I think, unfortunately, if you apply it to some of the cases I've asked prosecutors to look at, it could result in the release of dangerous people who, maybe, pled down to a lower charge but ultimately are very dangerous."

I thought it noteworthy, and a credit to Sen. Rubio, that he asked prosecutors independently to look at the bill.  Many senators just rely on white papers from interest groups and staff work, which can range from brilliant to appalling.

Sen. Rubio's Presidential campaign foundered, but he is still viewed as an influential voice among Republicans.  This is not a year where one wants to have a lot of confidence making political predictions, but I think Rubio's opposition is very bad news for sentencing reform's future. 

Lest readers think there's going to be accountability from the Leniency Brigade that enabled violent rapist Antown Durrell Pitt  --  and now touts identical thinking in behalf of "sentencing reform"  --  the rest of the Post story is required reading:

Pitt's case is among at least 3,600 under the Youth Act since 2007 [legislation centered on rehabilitation and "second chances"] that have not been scrubbed from court records, according to Post research. Of those, 1,900 were felonies, including more than 700 for violent crimes.

CSOSA [Court Services and Offender Supervision Agency] spokesman Leonard A. Sipes Jr. said the agency followed its policies and procedures in the Pitt case.

"Mr. Pitt was assessed, closely supervised, referred for appropriate services and placed on GPS," Sipes said.

So if he's a rapist, hey, look, that's how the cookie crumbles.  

A more belligerent statement of government indifference to its most basic function is difficult to imagine.  

And these are the same people who'll be doing "community supervision" if and when Barack Obama and George Soros, et. al, succeed in selling Congress on the SRCA. 

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