Recently in Sentencing Category

Would We Be Safer if Fewer Were Jailed?

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The NYT Room for Debate page has a collection of six short articles under the heading above.  The subhead is, "Can the use of jails be reformed to reduce the number of inmates without increasing society's risks?"  The question presented was specifically on county jails, not state prisons.  There is quite a stink in the Big Apple over conditions at Rikers Island.

Before clicking on the link, care to guess how many of the six answer the main question "no"?  Or who wrote it?  (Oops, that singular pronoun in the second question sorta gave away the first.)

California v. National Crime Rates

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Here is an update on California versus overall United States crime rates.  The table below shows the rates per 100,000 population for the FBI's violent crime index and property crime index for 2011, nine months of which predates the Realignment program, and 2013, the most recent year with full data available.  The data are from the downloaded files on the FBI's Crime in the United States reports for the respective years.



The nation as a whole had a 6% drop in property crime over the two-year period, while California had a 3% increase, a difference of 9%.
I want to follow up on my post yesterday, "An Amazing Fantasy," to show how the New York Times, one of the most prominent cheerleaders for lower criminal sentences, attempts to advance its cause.  Let me cut to the chase.  Its principal means are condescension and deceit.  In this, it is all too representative of the movement for which it speaks.

I will begin by analyzing yesterday's editorial one piece at a time.  As you will see, there is barely a sentence in it that's not condescending or deceptive or both.

An Amazing Fantasy

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And no, this is not about that fantasy.

It's about the New York Times's latest editorial pushing softer treatment for criminals (a/k/a "sentencing reform").  There are a number of howlers in the piece, but I want to start with this one:

Mr. Grassley [Chairman of the Senate Judiciary Committee], for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of [federal] sentences. In a speech from the Senate floor this month, he called the bills "lenient and, frankly, dangerous," and he raised the specter of high-level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful. Mandatory minimums have, in fact, been used to punish many lower-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked. States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.


The Times's claim about the "persistent fantasy" that increased incarceration produces less crime is stupid, dishonest and false.

How Dumb Do They Think We Are?

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Newsflash:  Incapacitating people who commit crime has no effect on the amount of crime.

Do you believe that?

A far left advocacy group, the Brennan Center, wants you to.  The press release from their latest propaganda (heralded, as ever, as a "study") states:

Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.

Convincing the public that there is little or no relationship between (1) increased incarceration of people who commit crime and (2) enormous crime reduction over the last quarter century is critical to the efforts of the pro-criminal lobby to sell miniaturized sentences (which they understandably call by the opaque name "sentencing reform").  The lobby knows by now  --  in part because of its humiliating failure in Congress  to pass the Smarter Sentencing Act  --  that the public simply is not going to buy slashing sentences as long as it understands that a crook who's in prison is not ransacking your house while you're at work, or selling heroin and similar goodies to your teenager.  Hence the effort to convince us that incarcerating criminals has nothing or next to nothing to do with crime reduction  -- arguably the most important domestic policy success of the last fifty years.

Related Newsflash:  The centuries-long link between crime and punishment just disappeared.

These people are a hoot.

UPDATE:  The Heritage Foundation, which takes the same robust pro-"reform" position as the Brennan Center but is a great deal more honest, recently took the view, through its distinguished Fellow, John G. Malcolm, that increased incarceration could be credited with between 25 and 35 percent of the last generation's crime reduction.  See Mr. Malcolm's remarks starting at 7:35 of this tape.  Somebody's telling a whooper, and it's not John Malcolm.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

Counting on Complacency

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Slate has up a new article titled, "Why Public Apathy Isn't All Bad."  The gist of it is that the public's apathy toward criminal justice issues has paved the way for quiet criminal justice "reform."  "Reform" is used in the article to mean the same thing it always does in this context, to wit, "slashing sentences for criminals."  If someone other than criminals are the most direct and immediate beneficiaries of this "reform," no one has told me who else it might be.

The article gets its mileage out of using the word "apathy" where "complacency" would be more precise.  The public has indeed become more complacent about crime.  This has happened for one perfectly obvious reason: there's so much less of it.  And there is so much less because of  --  ready now?  --  exactly the successful measures (longer sentences, more prisons, more police, more targeting of police resources) the people pushing the "reforms" opposed tooth and nail.

The Slate article is a useful iteration of the anthem actually at the heart of the sentencing "reform" movement:  "Since the country has achieved so much success with more incarceration and police, it's time to march back to failure."

(HT to SL&P).

Miller Retroactivity Case Is Moot

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The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.
I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.

The Underpolicing of Black America

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Jill Leovy has this essay in the WSJ:

In predominantly African-American neighborhoods of U.S. cities, far too many killers have gotten away with far too many crimes for far too long, fueling a disastrous murder epidemic. Solving these murders and other serious crimes of violence in black communities should be a top goal for law enforcement--and it deserves to take priority over much more widely discussed issues such as racial profiling and the excessive use of force by police in black neighborhoods, from Ferguson to Staten Island.
*                                                *                                            *

But instead of checking this wave of urban violence, America threw up its hands. Prison terms per unit of crime in the U.S. hit rock bottom in the 1960s and '70s, making the U.S. one of the world's most lenient countries, as William J. Stuntz of Harvard Law School and others have shown. Reformers focused on the rights of defendants, remaining blind to the ravages of under-enforcement.

In the 1980s, a get-tough backlash hit, ushering in the current era of mass incarceration and long sentences. But unsolved homicides still piled up in black neighborhoods. Even as convicts grew old in prison, detectives remained overwhelmed by exploding street violence.

For the last eight years, and until just a few days ago, Sen. Patrick Leahy of Vermont was Chairman of the Senate Judiciary Committee, an extremely powerful position.  In this piece from the Marshall Project, Sen. Leahy tells us what the President should say tonight about criminal justice reform:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure "our crime policy is not only tough, but also smart."  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion - nearly a third of the Justice Department's budget - goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

I have made my position clear on mandatory minimums  --  they are a needed restraint on foolish and ideological judges. Congress was wise to pass them and wise to keep them.

Thus I wish to note here only that Sen. Leahy, for all his present indignation, did not so much as bring up for a vote, in the years he easily could have, legislation (the Justice Safety Valve Act) he co-sponsored, which would have done exactly what he says the political branches have been so remiss for failing to do.

P.S.  Sen. Leahy to the contrary, the biggest issue facing our justice system today is that we have almost 10,000,000 serious crimes a year, not counting trafficking in hard drugs.  That is well over four times the number of inmates.

(Hat tip to Doug Berman at SL&P).
The White Collar Crime Prof Blog has this entry, from the Ninth Circuit of all things:

The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."

A Safer Country, Credibly Reported by the NYT

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I have not been shy about criticizing editorial stands in the New York Times, most recently its decision to label as "self-pitying" the NYPD's attitude of disgust with the dalliance between Mayor de Blasio and vitriolic enemies of the police, including but hardly limited to Al Sharpton.  The Times used the adjective "self-pitying" to describe the NYPD before the second murdered officer, Wenjian Liu, was even buried.  At that time and under those circumstances, I considered, and still consider, applying the label "self-pitying" to Liu's brothers on the force somewhere between callous and vile.

But credit must be given where due.  Yesterday, Erik Eckholm published a piece in that self-same NY Times noting that, with crime down so much over the last generation, some prominent people in both parties have started to think about reducing prison costs. Not surprisingly, the piece gives most of its attention to those who favor incarceration and sentencing reforms.  Still, when Mr. Eckholm spoke with me in preparing the story, I found him fair and patient, and he correctly quotes me in the article as saying, "When people are incarcerated, they're not out on the street to ransack your home or sell drugs to your high school kid."  I thought that was an apt quotation, summarizing the intuitive reason most people understand that more incarceration means less crime  -- something that has been reliably true for at least the last 50 years.

One quite useful item in the article is a sidebar graph showing the staggering crime decreases since the peak year, 1991.  It was, of course, the early Nineties when the determinate (and tougher) federal sentencing system of the Reagan era  --  copied in many states  --  started to kick in.  More criminals stayed in jail longer.

For those who want to believe that there's only an ineffably mysterious relationship between the amount of crime we get on the street and the number of criminals we take off the street  --  hey, go for it.  There is nothing I'll be able to do to change your mind.

The Writing Not on the Wall

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There has been a good deal of speculation that the new Congress will be more hospitable to sentencing "reform"  --  i.e. lower sentences for federal felons  --  than the last one, in which the Justice Safety Valve Act (effectively abolishing mandatory minimum sentences) never even got a committee vote, and the Smarter Sentencing Act (slashing mandatory minimum drug sentences) passed out of the Senate Judiciary Committee but then sank out of sight.

Part of the optimism takes root in the fact that three prominent Senate Republicans  --  Rand Paul. Ted Cruz and Mike Lee  -- voted with all ten Democrats then on the Committee in favor of the SSA.  The thinking from SSA advocates is that these libertarian-leaning members of the newly strengthened Republican presence will now lead the Party to a "more enlightened" view.

I thus thought the Heritage Foundation's recent announcement of its "2015 Conservative Policy Summit" contained a telling omission. Heritage vocally supported (and, so far as I know, still supports) the SSA, and its gathering will be headlined by all three Republican Senators (plus newly elected Sen. Tom Cotton of Arkansas) who supported sentencing "reform" in the last Congress. Yet the Summit's agenda contains no mention of this topic among the ten listed.

To me, this is the handwriting not on the wall.  I was already reasonably sure that the SSA  --  essentially a Democratic creation despite its support by a sliver of the Republican membership in Congress  --  was even deader this time around than it was last time, despite its supposedly "unstoppable momentum." The fact that the pro-SSA Heritage Foundation lined up every one of the Republican senators on the SJC who supported this bill, and still did not put it on a ten-item agenda, is an omission that speaks volumes.

The French Reap What Lenient Sentencing Sows

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One of the suspects in the Jihadist massacre today in Paris is 34 year-old Cherif Kouachi.  An ABC News report notes this about him:

Kouachi, along with six others, was sentenced in May 2008 to 3 years in prison for terrorism in Paris. All seven men were accused of sending about a dozen young Frenchmen to join Abu Musab al-Zarqawi, the leader of Al Qaeda in Iraq, after funneling them through radical religious establishments in Syria and Egypt.

It appears, however, that Kouachi served only 18 months of his sentence  --  not that three years was long enough even if he'd served every day of it.

Sentencing "reform" advocates unceasingly assure us that only "low level, non-violent" offenders will be released.  Even assuming they (1) had and (2) were willing to share with the public, the nuts-and-bolts specifics of what that gauzy phrase actually means, we have no assurance that its execution will live up to its promise. We have, to the contrary, a mountain of evidence that the government is incompetent to determine who is safe to release and who isn't.  For several years, California has provided a good deal of this evidence all by itself; the foolhardiness of its early release decisions has been documented again and again in C&C's News Scan. Now, in a horrifying display, the Paris massacre brings home this same lesson.

"Reform" advocates tell us that the government has made a generation's worth of horrendous mistakes in deciding who should be incarcerated and for how long.  In the next breath, they tell us that the same government will suddenly be seeing and wise in deciding who should be released and how early.

Today's bloody violence should give us a clue about whether they're right.  It should also give us a clue about who will pay the price if they're aren't.

A Sentencing Story Too Good To Pass Up

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Ed Whelan of NRO does a piece titled "This Day in Liberal Judicial Activism." Today's squib is sadly hilarious at a number of levels.  It's an easy guess that it comes to us from the Ninth Circuit:

In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines' rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is "a powerful indictment of the criminal justice system" and that the problems of alcohol abuse and crime on Indian reservations "cry out for treatment, not simply more prison time." Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend. In the end, the panel's spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court's January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

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