Recently in Sentencing Category

Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later.  But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street.  He'll do this via executive clemency.

The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach.  Those questions are now answered.  There will be no effective limit whatever.

Nullification through "discretionary" non-enforcement of law is of debatable legality, but the clemency power is not.  It exists, and belongs to the President alone.

There was a glimmer of hope until last night that the President would be restrained in exercising this power, and would pay at least some heed to the idea that hard drug trafficking harms America.  That is over with.  When a President openly and aggressively sympathetic to lawbreakers is willing to use a power that may be there or may not, there is no question left about his willingness to use a power that actually is there.

We saw last night what Obama will do now that he has no political accountability left. But what we saw is only the beginning.

FedSoc Convention Videos

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Bill previously posted a link to the Criminal Law Practice Group's panel at the National Lawyer's Convention of the Federalist Society.  Another panel relevant to the topic of this blog was the Civil Rights Practice Group's panel on sexual assault on campus.  The speakers and video links for both panels follow the break.

The full schedule with links to all the videos is here.

A number of people have asked me to post the script of my remarks at the Federalist Society's National Convention last week.  I am happy to do so below:


Two facts about crime and sentencing dwarf everything else we have learned over the past 50 years:  When we have more prison we have less crime, and when we have less prison, we have more crime.


At its National Convention just concluded, the Federalist Society sponsored a panel discussion among conservatives on sentencing reform.  It was an excellent group featuring John Malcolm of the Heritage Foundation and Marc Levin from Right on Crime, and  --  expressing a more skeptical view  --  Judge and former Attorney General Michael Mukasey, and yours truly.  The moderator was Judge Bill Pryor of the Eleventh Circuit.

It was pretty much a packed room.  Among the audience members was none other than C&C's leading light, Kent Scheidegger.

I'm grateful to the Federalist Society for sponsoring this important give-and-take and for being included among such experts.

A tape of the event is here.  (For those interested, I start at about the 35:00 minute mark).
The FBI has finally come out with the 2013 statistics for Crime in the United States, almost two months later than last year.  The good news is that crime is down from 2012 about 5% in crimes per 100,000 population nationwide on both the violent (-5.1%) and property (-4.8%) scales.

Last month, we noted the good news that California crime was down, but we were interested in seeing the national figures for comparison to sort out national trends from possible effects of California's sentencing "realignment."  Last year's post making that comparison is here.

We look at property crime as the primary indicator, as persons convicted of violent crimes, either for the present offense or as priors, are not eligible to be shunted off to county jail under realignment.  Many property crime convicts are, and given that the jails are overcrowded in most counties they either get released early or they push out other inmates for early release, likely other property crime convicts.

California's overall property crime rate is down less than the national average, -3.8% versus -4.8%.  Auto theft is the category tracked by the FBI that is most likely to be affected by realignment, because all auto thefts in 2013 (pre-Prop. 47) were realignment-eligible felonies, while other categories are mixed eligible/ineligible or felony/misdemeanor.  Consistent with the realignment-effect hypothesis, California's improvement in auto theft lagged considerably behind the nation, -2.8% versus -4.0%.

Comparing 2010, the last full year before realignment, with 2013, property crime has dropped 7.2% in the nation while rising slightly, 0.8%, in California.  Auto theft is down 7.3% nationally but up 5.3% in California.

Academia Unhinged, Once Again

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One of the reasons I enjoy teaching is that allows me to look at the strange and wily land that exists inside the academic bubble.  To say it's disconnected from the real world doesn't even begin to catch it.

Today I noticed, on SL&P, an entry titled, "We should stop putting women in jail. For anything."

The essay, by a professor at the University of Illinois at Chicago, makes exactly the case stated in its title.  But the extent to which it goes to paint criminals as victims is remarkable even by the bizarre standards of academic life.  Sample:

What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons?

Ummm.....well......to punish them for crimes they committed?  To deter them? How about this juicy case?  Ripe for a stiff term of community service?

Plus, you gotta love phrases like, "the negative environment of prisons."

I took after Prof. Margareth Etienne for her Twilight Zone argument that the SCOTUS denied cert in the acquitted conduct case because it wanted a murkier case to announce a broader rule  --  notwithstanding the there's nothing like a majority for the narrower rule.  But this one might have Prof. Etienne beat.

P.S.  Someone should remind this professor that there might be an Equal Protection problem if men can get imprisoned but, categorically, women can't.

Where Is Sentencing Reform Today?

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Yesterday, sentencing reform (that's the gauzy phrase that means letting criminals out earlier) was six feet under.  The reckless, judges-run-wild JSVA was so radical it hadn't even received a vote in SJC; and the SSA, which got a favorable Committee vote (13-5) under the leadership of Chariman Leahy headed straight downhill thereafter. Majority Leader Reid said he would bring it to the floor, but never did.

This was back in the first part of the year.

With last night's results, and Republicans likely to have at least 54 seats in the new Senate, sentencing "reform" and similar measures are extra dead.  Majority Leader-designate McConnell has never said a word in favor of dumbed-down sentencing, and Chairman-in-Waiting Chuck Grassley brilliantly led the opposition to the SSA and the JSVA (and successfully sponsored three new mandatory minimums).  The old House never acted on either bill, and the new House is less favorably inclined toward them than the old one.

But the basics are not in the leadership.  The basics are that the American public rightly has no desire to cash in the success stern sentencing has given us. Crime was not an issue in last night's Congressional elections, but they produced a majority of the majority in each house even more skeptical about the what-me-worry approach to sentencing than had been there before. 

To Live and Lie in L.A.

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How much jail time do you get for perjury and fraud in California today?  71 minutes.  Laura Rosenhall reports in the SacBee:

Former state Sen. Rod Wright turned himself in to Los Angeles County jail authorities Friday night to begin a 90-day sentence for his perjury and fraud conviction, but was released before ever seeing the inside of a cell.

Wright, a Democrat, turned himself in around 9:30 p.m. and was released at 10:41 p.m. after being processed and booked, said Nicole Nishida, a spokeswoman for the Los Angeles County Sheriff's Department.

She said he did not get any special treatment for being a politician.

Proposition 47

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California's wine country is not exactly conservative territory, to put it mildly.  Napa County went 2-1 for Obama over Romney.  But the St. Helena Star has a scathing editorial on the "defining criminality down" initiative, Proposition 47:

Carrying a stolen handgun. Possession of a date-rape drug. Carrying stolen credit cards. Financial elder abuse.

If these sound like minor, misdemeanor-level offenses to you, then you'll be interested in voting for Proposition 47.

But if they strike you as being the serious felonies that they are, then vote no on Prop. 47.

In an Orwellian touch, supporters -- who include billionaire liberal financier George Soros -- have dubbed the atrociously written proposition the "Safe Neighborhoods and Schools Act," based on the notion that the money saved by not incarcerating so-called "non-serious" criminals will be used for positive social programs.

The problem, as Napa County District Attorney Gary Lieberstein cogently explained to the Star's editorial board, is the proposition's definition of "non-serious." It's hard to imagine a rational person who would consider the drug and property crimes mentioned above to be "non-serious," but that's exactly how they would be treated if Prop. 47 passes.
However, the Field Poll indicates it is highly likely to pass.

FedSoc Event on Prop. 47

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The Federalist Society has a debate Monday evening in San Francisco on the "defining criminality down" ballot measure, Proposition 47.  SF Public Defender Jeff Adachi will speak for the measure, and San Mateo DA Steve Wagstaffe will speak against it.  Announcement is here.

Earth to Academia Re: Jones Certiorari Denial

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The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.
If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

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Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

Should We Ever Have LWOP for Juveniles?

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Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.

No on Proposition 47

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Proposition 47 on California's ballot would reduce a potload of felonies to misdemeanors.  The District Attorney of San Francisco is a sponsor.  On the other side of the Bay, Alameda County District Attorney Nancy O'Malley is against it.  She has this op-ed in the SF Chron:

Vote NO on Proposition 47. It is a Trojan horse. Under the guise of protecting schools and neighborhoods, Prop. 47 turns certain crimes into misdemeanors and exposes Californians to significant harm. For instance, Prop. 47 makes possession of date-rape drugs into a misdemeanor at a time when we're combatting sexual assault on college campuses. Too many people fall prey to identity theft. By reducing the crime of identity theft to a misdemeanor, Prop. 47 carries neither consequence to the thief nor relief to the victims, who are forever haunted by the aftermath of the crime.

All communities struggle with gun violence. Stolen guns are often used to commit violent offenses, shootings and murders. Too many children and innocent bystanders have died from gunfire. Stealing a firearm, under Prop. 47, would be only a misdemeanor. That reduction does nothing to ensure safe neighborhoods or create safe schools.

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