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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. 

Shoplifting and Proposition 47

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Making it as a small business has always been rough, and it is particularly so in the retail sector in the Age of Amazon.  Small retailers are an important element of our economy as a source of personal service you can't get elsewhere and as places where people starting out can get their first jobs, but they are endangered.

Don Thompson of AP reports how a misguided ballot measure in California has made it all the more difficult for this embattled group of entrepreneurs.  

Perry Lutz says his struggle to survive as a small businessman became a lot harder after California voters reduced theft penalties 1½ years ago.

About a half-dozen times this year, shoplifters have stolen expensive drones or another of the remote-controlled toys he sells in HobbyTown USA, a small shop in Rocklin, northeast of Sacramento. "It's just pretty much open season," Lutz said. "They'll pick the $800 unit and just grab it and run out the door."

Anything below $950 keeps the crime a misdemeanor -- and likely means the thieves face no pursuit and no punishment, say retailers and law enforcement officials. Large retailers including Safeway, Target, Rite Aid and CVS pharmacies say shoplifting increased at least 15 percent, and in some cases, doubled since voters approved Proposition 47 and ended the possibility of charging shoplifting as a felony with the potential for a prison sentence.
If you want to know how the false promises of sentencing reform will actually work, today's lead story in the Washington Post is must reading.

In the print edition, the headline is:  "How a violent offender slipped through the DC justice system."  (The electronically available story has a slightly different headline, but is the same story).  

The sub-head is:  "Second Chance City  --  Lenient sentencing and lax enforcement can give many chances despite repeated criminal behavior."

It's the story of how a criminal justice system built on the supposedly humane premises of "sentencing reform" invited a hoodlum to escalate the behavior it had known about for years. The problem was not lack of knowledge; there was knowledge aplenty. The problem was the sentencing system's snickering indifference to the next victim.  

Nor is this a single episode, any more than the Wendell Callahan sentencing reform scandal is.  Indeed, the Post notes that this is "the first installment in a series" that will examine hundreds if not thousands of cases.  
A:  It's not the death penalty.

The notion that a prison term, whatever its length, is proportionate justice for crimes like this is absurd  --  not that absurdity ever stopped the pro-criminal lobby.

The case dates back to October 2013, when prosecutors said several of the defendants plotted to kill a member believed to be cooperating with police.
...gang members killed Nelson Omar Quintanilla Trujillo, who was suspected of alerting police to the failed murder plot, prosecutors said. After luring Trujillo into Holmes Run Park in Fairfax County, they stabbed him to death, dismembered him and buried him in the woods. Several months later, they stabbed and decapitated Gerson Adoni Martinez Aguilar, an MS-13 recruit who was accused of stealing gang money and having sex with an incarcerated member's girlfriend. They buried him in the same park.
The third murder took place in June 2014, when Chavez and two other gang members shot and killed Julio Urrutia in Alexandria, mistaking him for a rival gang member, according to the prosecutors.

Three murders, stabbing, dismemberment, decapitation  --  hey, look, these are merely "justice involved" youth in need of counseling.

The Tea Party Patriots

Last night, I had the opportunity to talk about proposed sentencing reform legislation in a webinar broadcast by the Tea Party Patriots. (Next month, I'll do so with a politically quite different group, the American Constitution Society National Convention).

The Patriots asked if I would post my remarks, and I am happy to do so.  I'll start out by saying here what I said in the webinar: There are some good people supporting the bill, like Michael Mukasey and Sen. Mike Lee, but also some good ones opposing it, like Sens. Jeff Sessions, Tom Cotton and David Perdue.  Sen. Ted Cruz likewise opposes bill, although he voted for a somewhat similar bill in the last Congress.  And Sen. Orin Hatch opposes the bill at least until it is re-written to include mens rea reform  --  a dim prospect given the Administration's adamant opposition. 

What's different is that, while no extreme leftist supports preserving our present, successful system  --  a system that has helped massively reduce crime  --  many support going back to what President Reagan called the failed policies of the past: Feckless faith in untethered judicial discretion, and a misguided belief in the efficacy of rehabilitation. Among those supporting a return to the failed ideas (and, as night follows day, the failed results) of the past are George Soros, the ACLU, the SEIU, and of course the entire Obama Administration.

Conservatives in the Tea Party might want to think twice before joining forces with that group.
Have tough sentencing laws harmed black Americans?  Well, without them, an estimated 129,000 blacks would be dead today, says Heather Mac Donald of the Manhattan Institute.  Speaking last week on 'The O'Reilly Factor,' Mac Donald discussed violent crime and incarceration, where she answered the charge of the media and the liberal left that sentencing laws are racist when, in fact, tough sentencing laws have resulted in historically low crime rates that have primarily benefited law-abiding blacks in inner cities.  Watch the segment here.

A Second Chance to Do What?

Sentencing "reform" advocates insist that we should go lighter on sentencing in the name of the distinctly American virtue of "giving people a second chance."

The phrase itself reveals the confusion posing as thought that lies behind this movement.  A person has a "second chance" whether his sentence is 78 months or 96 months.  He has a "second chance" whether it's 16 years or 18 years.  The question in either case is not whether he'll get a "second chance" under sentencing reform he would otherwise miss; the question is what he does with it, reform or not.

This story gives part of the answer.  When I read it, I asked the same question I frequently do:  When early release goes wrong, as it so often does, who pays the price?  The sentencing reform crowd at their posh, self-congratulatory, "we-are-so-humane" parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?

A convicted murderer in Michigan, who was paroled early for good behavior after serving 19 years in jail, reportedly killed again less than one year after his release.

Malcolm B. Benson, 50, was serving a 20- to 40-year prison sentence as part of a plea deal he made in 1995, MLive reports. He was initially charged with first-degree murder but the plea deal reduced the charge to second-degree murder. He was also found guilty of felony use of a firearm, which added an additional two years to his sentence.

Benson was paroled on Jan. 13, 2015, after spending just over 19 years of his minimum 22-year sentence in prison.

Like Wendell Callahan's victims, Benson's victim would be alive today if he had been required to serve even the minimum of his term.

The U.S. Supreme Court took up once again the issue of the mental element of crime, known in legal Latin as mens reaShaw v. United States, No. 15-5991, is a case from the Ninth Circuit.  The summary of the Ninth's opinion is:

The panel affirmed a conviction for a scheme to defraud a financial institution, in violation of 18 U.S.C. § 1344(1), in a case in which the defendant used PayPal to convince banks that he was a particular bank customer and thus had authority to transfer money out of that customer's bank accounts and into a PayPal account in the defendant's control.

The panel held that for a violation of § 1344(1), the government need not prove that the defendant intended the bank to be the principal financial victim of the fraud, and that the district court therefore correctly refused jury instructions that included such a requirement.
The Question Presented, as phrased by counsel for Shaw, is:

Whether subsection (1)'s "scheme to defraud a financial institution" requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner Lawrence Shaw argued here.
The sentencing appeal case is Manrique v. United States, No. 15-7250.  The unpublished opinion of the Eleventh Circuit begins:

Why Is the SRCA Sinking in the Ooze?

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The Senate's bill for mass reduction of federal felony sentences (called sentencing "reform" to keep it opaque) passed out of the Judiciary Committee months ago by a lopsided 15-5 vote.  But it's been downhill ever since.

Why?  Several reasons, I think.

1.  Two of the most fearsome crimes, murder and heroin trafficking, are going through the roof from coast to coast.
2.  The Sentencing Commission disclosed that nearly half of federal offenders recidivate, most in their first or second years out.
3. The Wendell Callahan sentencing reduction/child murder scandal has displayed the potentially grotesque costs of early release.
4.  It has finally dawned on lawmakers that those who'll pay the price of more crime are minorities and the poor.
5.  The proposal for retroactive reductions, meaning a boatload of additional costly litigation, is unpopular in the House.

And there is one more reason, highlighted by today's story in the Washington Examiner:  Democrats are refusing to go along with the one element of true criminal justice reform upon which the huge majority of sensible people would agree  --  that no one should be held criminally liable unless he knew or had some fair reason to know that what he was doing was wrong.

Recidivism, with a Twist

When I discuss America's sky-high recidivism rate (49% for federal offenders and 77% for state offenders), I sometimes encounter the objection that not all criminals return to the crime for which they went to prison.  This is true.  Not infrequently, they branch out.  Hence today's story:

A Grand Rapids man released from prison last summer for a November 1998 murder pleaded guilty Tuesday to a federal cocaine trafficking charge following his arrest in Southeast Grand Rapids with more than a pound of cocaine.

Keith Vonta Hopskin appeared in U.S. District Court in Grand Rapids where he admitted to having at least a pound of cocaine he planned to distribute....

Hopskin told police he had been receiving several ounces of cocaine about two times a month since July, court records show. He was released from prison July 5 on a second-degree murder conviction.

The 38-year-old, who has a prior federal drug conviction, told investigators he paid $10,500 for the cocaine and was able to sell three ounces before police stepped in.

Now just to head off the coming furrowed brows, this is not an argument that we should send people to prison forever; the first principle of sentencing remains just punishment.  It is, however, an argument against the delusion that, when we release criminals, we can expect them to become productive members of society.  It is not impossible that that will happen, but the decided likelihood is, instead, that the Hopskin story happens.  We need to bear this in mind when we told how much society will "benefit" from shorter sentences.

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