Recently in Sentencing Category

Rafael Mangual of the Manhattan Institute has this article in the City Journal:

Last November, a deranged 26-year-old man, Devin Patrick Kelley, opened fire on worshipers inside a church in Sutherland, Texas, killing 26. High-casualty mass shootings are tragic in human terms but anomalous statistically, at least in terms of the portion of total U.S. homicides that they represent. The vast majority of murders, which take place disproportionately in America's low-income and minority neighborhoods, don't get nearly the same attention. The Texas church shooting does have an important point of commonality with the majority of American murders, however: its perpetrator had a troubling criminal record. The deincarceration movement, which would return thousands of convicts to American streets, presents a threat to public safety. Repeat offenders already commit a substantial portion of the nation's violent crime--according to one study, 53 percent of killers have at least one prior felony conviction. They will be walking the streets in greater numbers if deincarceration advocates have their way.
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Should Judges Have Sentencing Rules?

Judges are given considerable leeway in sentencing.  No serious person thinks this is a bad idea.  The question subject to debate, at least in academia, is whether their judgment and outlook are so uniformly to be trusted that the legislature should be disabled from establishing any mandatory sentencing limits.

The following story provides the answer all by itself.  Its headline is, "Judge Cuts Pedophile's Prison Term Claiming 3-Yr-Old 'Asked' To Be Raped":

A California judge has caused outrage after slashing 15 years off the prison sentence of a pedophile convicted of raping a 3-year-old child.

Orange County Superior Court Judge M. Marc Kelly cut the child rapist's prison term down to ten years from 25 years claiming that "he didn't mean to harm" the 3-year-old girl that he raped.

He also backed the claim from child rapist Kevin Rojano that the young girl initiated the act of sodomy. Rojano said in his own defense that "she asked me to do it."

When can sentencing laws enacted by the people by initiative be changed by the legislature?  The answer varies by state.

Noelle Crombie reports for the Oregonian:

A three-judge panel of Clackamas County Circuit Court judges unanimously concluded Wednesday that a controversial state law reducing sentences for some property crimes is unconstitutional, the latest development in a political conflict erupting over the statute.

The judges, Susie Norby, Michael Wetzel and Thomas Rastetter, concluded that the law, which the Legislature passed last year, needed a two-thirds majority instead of a simple majority because it revised Measure 57. The voter-approved measure cracked down on repeat property offenders with longer prison sentences.
Annie Sweeney reports for the Chicago Tribune:

On Tuesday, Bauer was fatally shot in the Loop by a four-time felon who had drawn the suspicion of tactical teams in the busy downtown area, police said. Officers tried to stop the man a few blocks from the Thompson Center, but he took off running, according to radio traffic of the incident.

Bauer encountered him at the Thompson Center, where a physical struggle resulted at a stairwell outside the government building, Police Department spokesman Anthony Guglielmi said. Bauer was found by other officers. The suspect was taken into custody.

Though the suspect had a lengthy record of interaction with police, he had not been arrested by Chicago police since 2014, and each of his felony arrests resulted in prison sentences, according to public records.

We do not yet have information on what those priors were, but if they all resulted in prison sentences, it seems likely that a well-written and regularly enforced Three Strikes law would have kept this person off the street and Commander Bauer would still be alive.

Leniency Legislation Is Back

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Paul Mirengoff has this post with the above title at Powerline.

Two years ago at this time, a bipartisan coalition of Senators was pushing legislation that would have slashed mandatory minimum sentences for many federal drug crimes. Such a bill had cleared the Senate Judiciary Committee. However, Majority Leader Mitch McConnell wisely declined to bring it up for a vote in the Senate because his caucus was divided on the merits.

Now, Team Leniency is trying again. The same bill that died two years ago is before the Judiciary Committee.

It will breeze through that body. Three of the legislation's main opponents two years ago -- Jeff Sessions, David Perdue and David Vitter -- are no longer on the committee (Sessions and Vitter are no longer in the Senate). Sens. Orrin Hatch and Ted Cruz remain and are likely to oppose the bill again, and Sen. Ben Sasse, a new member of the committee, might join them. But the committee will approve the leniency legislation, most likely with only three dissenters.

What happens then? I hope McConnell will make the same calculation he made two years ago under similar circumstances. However, Team Leniency, which includes the Majority Whip (Sen. Cornyn) and the Judiciary Committee chairman (Sen. Grassley), will push hard for a vote.
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The State of the Union and Crime

The Manhattan Institute asked several of its scholars for the "top takeaways" from the President's State of the Union address.  Here is Heather Mac Donald's note:

The president called for reforming prisons to help inmates get a second chance at life after their release. That is a wiser approach to criminal justice reform than attacking "mass incarceration," a duplicitous term that ignores two crucial facts: first, that every prisoner is charged and sentenced individually through the due process of the law, and second, that the only criminals who end up in prison either have very long records or have committed very serious crimes. Incarceration played a crucial role in the twenty year crime drop from the early 1990s through the mid-2010s. But while the incarceration build-up was both procedurally fair and necessary, more can be done to try to help ex-cons become productive citizens. The main focus should be on having every prisoner work at a paying job while incarcerated that will give him usable skills on the outside. Universal work for inmates is costly and logistically difficult, especially with high-security prisoners; unions have fought prison labor to avoid competition. But it is a challenge worth taking on to try to break the cycle of recidivism.
I agree that in terms of in-prison programs, employment should be number one.  The long-standing fears that prison production will cost some law-abiding Americans their jobs should not be taken lightly, but surely in today's global economy segments can be identified where substantially all of the market is imported. 

The fact that the President did not include a call for large-scale reductions in sentencing was also quite encouraging.  His emphasis on the MS-13 gang was warranted, but domestic gangs cause great harm as well.  Helping the areas most afflicted by gangs will require domestic efforts as well as immigration enforcement.  Later, while discussing the drug problem, the President said, "We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge."  That does not sound like he is buying the line that drug dealer are harmless "non-violent offenders."

Helping the most afflicted areas will also require cooperation between state and federal authorities; the mindless "resistance" attitude of some local officials is killing their own people and needs to stop.

Prison Reform vs. Sentencing Reform

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The liberal/libertarian contingent is all atwitter (so to speak) that President Trump might give a boost to prison reform in his State of the Union address.  See, e.g., this post from Sentencing Law and Policy, largely quoting an article in the National Review.

If they're right about what the President will say, more power to them, and him.  Conditions in federal prison are good, but this cannot uniformly be said for the states.  Same with health care and vocational training.  

Prisoners are our fellow human beings.  In the great majority of cases, they earned their way to incarceration.  But almost all will return to civil society one day, and for their sake  --  and more importantly for ours  --  they should be given every reasonable chance to lead a safe and productive life.

The reason our liberal/libertarian friends have mostly (if implicitly) given up on "sentencing reform" is, I suspect, that they understand that the President knows this actually means "mass sentencing reduction for drug dealers," a program he is wisely not about to embrace (and that, over the last couple of years, has, at the federal level, sunk from moribund to deceased anyway).

UPDATE:  Prison reform, though welcome in my view, can still fail if its advocates forget the old saw, "When you get greedy, you get burned."  I see from the follow-up story that some advocates want quietly to tack on a sentence reduction proposal, one that would water down mandatory minimums for criminals with more extensive or serious records.  They apparently view this as a clever idea to give the decarceration movement some life.  What it actually amounts to is a poison pill.  But I don't do their legislative strategy for them.

Resentencing for D.C. Sniper Jr.?

When the U.S. Supreme Court struck down capital punishment for 17-year-old murderers, it assured the country that the penalty of life in prison without possibility of parole would remain available.  It did not take too long for the high court to default on that promise, casting doubt on existing sentences of LWOP and making it much too difficult to impose new LWOP sentences for crimes that really warrant death.

To say that a life sentence is constantly subject to reexamination is effectively sentencing the victims' families to life of opposing the reduction, constantly having to reopen the old wounds.  It is cruel in the extreme.

If there is one murderer in the whole country who was 17 at the time of crime and who definitely does not deserve reconsideration, it is Lee Boyd Malvo, the triggerman in the horrible D.C. Sniper shootings that terrorized the capital region in 2002.  Incredibly, a federal court has ruled that he is entitled to resentencing.
Larry Nasser, the one-time physician for the USA Women's Gymnastic Team, spent years sexually abusing young girls.  He had at least 150 victims.  He recently got 40 to 175 years in prison, all of it earned.

The judge's behavior at Nassar's sentencing, however, was another reminder of why jurists should be bound by rules and not by taste.  My friend Paul Mirengoff at Powerline explains it with his typical surgical clarity:

[T]the judge, Rosemary Aquilina, meted out the sentence in a disturbing, over-the-top performance. She couldn't stop talking about herself. We heard about her family, her dogs, her ethnic background (Maltese and German, in case you were wondering), her military service, her soccer coaching. We heard boasting: "I'm not vulnerable, not to you," "I am well trained," "I know exactly what to do," "I've done my homework, I always do," "I look at myself as Lady Justice." On the other hand, "I'm not special" and "I'm not nice." And "I don't have many friends."

The judge couldn't stop saying "I." To an excessive degree, this was about her. "It is my honor and privilege to sentence you," she declared

Judge Aquilina signaled her virtue by assuring us she believes in rehabilitation. She found, however, that Nasser is beyond rehabilitation.

Jerry Brown and the State of the State

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California Governor Jerry Brown delivered his last State of State address yesterday, and not surprisingly it includes some curious statements about crime.

To give you a sense of the magnitude of the problem, here are some of the facts:

  • In 1970, California imprisoned 125 persons per 100,000. That number now stands at 331.
  • The corrections budget then was about 3 percent of the General Fund. Now it's 8.9 percent -- about $12 billion.
  • Yet, last year, the number of reported felonies was actually lower than it was in 1970.
"Yet"?  What's with the "yet"?  Getting tough on crime had the purpose of bringing down crime rates, and it was a major factor in that reduction.  Would you say "we built a number of dams for flood control, yet we now have fewer destructive floods than we did before"?

Where does he get the "number of reported felonies" figure?  That number is not tallied in the official Crime in California publication of the Criminal Justice Statistics Center.  The number of California index crimes is down somewhat, but that is not the same as felonies.  The number of violent index crimes in 2016 was close to double what it was in 1970.

One reason that reported felonies may be down is that Proposition 47 redefined a great many felonies to be misdemeanors.  Yes, that is one sure way to reduce the number of felonies without making any reduction in the number of crimes, and probably increasing them.

Then there is this humdinger:
After crunching the numbers on yesterday's Preliminary Semiannual Uniform Crime Report from the FBI, I found pretty much the same thing I have been finding for the last several years.  In California, where "let 'em all loose" mania is more severe than in the country as a whole, crime trends are less favorable than in the country as a whole.  This should not surprise anyone.


For cities over 100,000 population which reported for both first half 2016 and first half 2017, California cities had a 0.41% increase in violent crimes while U.S. cities outside California had a 1.16% drop.  In property crimes, California cities had a 1.07% increase while non-California cities had a 1.09% drop.

These differences are less stark than I found two years ago, but the effects are cumulative.  California's leaders continue to pursue their delusion that criminals are actually nice people who can be let out without consequence, and regular folks pay the price.

Recidivism Algorithm

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Julia Dressel and Hany Farid have this research article in Science Advances.  Here is the abstract:

Algorithms for predicting recidivism are commonly used to assess a criminal defendant's likelihood of committing a crime. These predictions are used in pretrial, parole, and sentencing decisions. Proponents of these systems argue that big data and advanced machine learning make these analyses more accurate and less biased than humans. We show, however, that the widely used commercial risk assessment software COMPAS is no more accurate or fair than predictions made by people with little or no criminal justice expertise. We further show that a simple linear predictor provided with only two features is nearly equivalent to COMPAS with its 137 features.
Along with questions of whether they are really any better, I believe that government should not be making decisions about people's lives using proprietary algorithms whose makers refuse to disclose the inner workings.

The article is Julia Dressel and Hany Farid, The accuracy, fairness, and limits of predicting recidivism, Science Advances  17 Jan 2018: Vol. 4, no. 1, eaao5580; DOI: 10.1126/sciadv.aao5580
Few politicians have been as disappointing, following a promising start, as now-departed New Jersey Governor Chris Christie.  Now we learn that on his way out the door, Gov. Christie signed a particularly bone-headed piece of legislation.  Corinne Ramey reports for the WSJ:

Changes to criminal-justice laws in New Jersey now require an analysis of their impact on racial and ethnic minorities, making the state among only a handful in the nation to do so.

A bill mandating the analyses, which outgoing Republican Gov. Chris Christie signed Monday, requires the state's Office of Legislative Services to prepare so-called racial-impact statements for policy changes that affect pretrial detention, sentencing and parole.

To justify such legislation, the soft-on-crime crowd trotted out its favorite warhorse, the Fallacy of the Irrelevant Denominator.

New Jersey has the largest disparity between white and black incarceration rates in the country, according to the Sentencing Project, a nonprofit that advocates reducing the prison population.

The state's prison population is 61% black, 22% white and 16% Hispanic, data show. The state's general population is 14% black, 69% white and 18% Hispanic, according to census data.

What is the relevance of the general population figures?  Most of the general population, across all racial and ethnic groups, consists of law-abiding people.  Prison is for felons, not law-abiding people.  The relevant first-order comparison would be prison population versus felons.  If the ethnic distribution of prisoners is out of line with the distribution of people committing the kinds of crimes for which prison sentences are regularly imposed, that would at least raise a suspicion that something might be amiss and warrant further investigation.  Comparing prison population with general population, though, indicates absolutely nothing.

Jason Campbell reports for the Manteca Bulletin:

Proposition 47 was supposed to be a crucial component in relieving the overpopulation of California's jails and prisons and a vehicle for saving millions in costs associated with incarcerating nonviolent, non-serious criminals.

But opponents of the ballot initiative have said it has led to a sharp rise in the number of property crimes throughout the state, and tied the hands of the law enforcement community in providing a deterrent against the sort of quality-of-life crimes that impact everyday citizens.

And it doesn't look like the law is going to change anytime soon.

Earlier this week the California Assembly Committee on Public Safety failed to pass a bill proposed by Elk Grove Democrat Jim Cooper that would have addressed many of the concerns that have arisen since the implementation of Proposition 47.
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Manteca City Councilman Gary Singh said that he sees the impact of Proposition 47 not just on the City of Manteca as a whole, but in his business on a nearly daily basis. As the owner of a liquor store not far from Highway 99, Singh said that while people used to come in and try and hide what it was that they were stealing, they do so now in the open knowing that even if they get caught by the police not much is going to come their way in terms of repercussions.

Murder, Race and Saving Black Lives

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We don't yet know what murder statistics will be for 2017 (they were awful in 2015 and 2016, the largest two year spike in decades).  There is evidence that murders are down in NYC, Chicago, and Washington, DC.  They are up in Baltimore, St. Louis and the densely populated Northern Virginia suburbs.

A friend just sent me the statistics for St. Louis.  They're a wake-up call, and not just because of a third straight annual increase.  They demand attention because the racial breakdown of murder victims veritably shouts at us about what we need to do if we claim to believe that black lives matter.

It's easy to summarize.  We need to suppress the murder rate.

And how do we do that?  This too is easy to summarize, because we spent an entire generation (1991-2014) massively suppressing it.  We did it with more police, more aggressive policing, more overall police-citizen encounters, restraining naive sentencing, and increasing incarceration for violent and drug trafficking offenders.

It's not a matter of what is vaguely called "community trust."  A big majority already trusts the police  --  considerably more than trust the Supreme Court, schools, churches or the medical system.  It's a matter of maintaining the existing trust of everyday citizens  --  and increasing fear of the police in hoodlums and would-be hoodlums.

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