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Bring Up, and Vote Down, an Amended JSVA

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The Justice Safety Valve Act, which would effectively nullify mandatory minimum sentencing in federal law, was so radical that its co-sponsor, Sen. Pat Leahy, would not bring it up last year in his own Committee.  In this, Sen. Leahy showed his typical canny feel for the lay of the land.  Committee chairmen tend not to bring up bills they know are so ideologically lopsided they'll go down in flames. 

Still, Sen. Leahy and Sen. Rand "no vaccinations" Paul have co-sponsored the same bill this year.  If Sen. Leahy were still the Chairman, I have no reason to believe he'd be any more willing to advance it than he was in the past.

Still, there could be value in having a vote on the bill in the SJC  --  having a vote, that is, if the bill were amended to give the public a more transparent look at what it's actually designed to do.

Should the Senate Vote on the JSVA?

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The question has been raised whether it would not improve the accountability and transparency of the legislative process for the Senate, or at least the Senate Judiciary Committee, to bring the Justice Safety Valve Act (JSVA) to a vote.

It's a fair enough question.


The JSVA's substantive provisions are, in full, as follows:

Authority to impose a sentence below a statutory minimum.

Section 3553 of title 18, United States Code, is amended by adding at the end the following:

"(g) Authority To impose a sentence below a statutory minimum To prevent an unjust sentence.--

"(1) GENERAL RULE.--Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).

"(2) COURT TO GIVE PARTIES NOTICE.--Before imposing a sentence under paragraph (1), the court shall give the parties reasonable notice of the court's intent to do so and an opportunity to respond.

"(3) STATEMENT IN WRITING OF FACTORS.--The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.

"(4) APPEAL RIGHTS NOT LIMITED.--This subsection does not limit any right to appeal that would otherwise exist in its absence.".


I think the idea of having a vote, to increase accountability and transparency, is not without merit.  Indeed, I think what we need here is much more transparency. 


Sentencing "reform" advocates are endlessly frustrated that they make so little headway in Congress.  Unwilling to consider the possibility that their problem is that going softer on heroin and meth dealers just isn't an idea the majority of lawmakers (or the public) supports, a Boogeyman  --  a single, obdurate roadblock  -- must be found.

Today's Boogeyman (and a popular choice for the title) is Sen. Chuck Grassley of Iowa, Chairman of the Senate Judiciary Committee.  Hence this from a leading sentencing "reform" site:

[E]ven if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure-- at least until 2017, and perhaps after that if the GOP retains control of the Senate -- that federal reform bills do not even get a committee hearing, let alone a committee vote.   Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars. Frustratingly, that is how our democracy now functions.

Ah, yes, the frustration of democracy.  Only there's this little catch........

Jack Weinstein, Move Over

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Judge Jack Weinstein of the Eastern District of New York made a name for himself with his 400-page memorandum purporting to justify an illegal 30 month sentence for a distributor of child pornography.  The Second Circuit was not buying it and unanimously reversed.  Not one to take correction by the higher court lying down, Weinstein issued a Holier-Than-Thou memorandum the next day setting the appellate judges straight (while grudgingly setting the case for re-sentencing).  I discussed the case here, here and here.

The case got so much attention from me because it illustrates why we have, and need, stern mandatory minimum sentencing.  Judges spent at least the 20 years after 1960 showing why they cannot be trusted with unlimited discretion.

The lesson was expensive (to crime victims) but simple:  They'll use it to benefit criminals; criminals will take the goodies; and crime will skyrocket, as it did before we came to our senses in the 1980's.

Today, a Weinstein wannabe in Southern California made the news with an even more graphic lesson.  This time, however, the victim could at least speak for herself. At least I think she could.  I mean, a person has learned to talk by the time she's three, right?


The question posed by the title of this entry is basic, but seems to have sparked a good deal of controversy lately.  

I was a litigating lawyer for the federal government for seven years at Main Justice and another eighteen at the US Attorney's Office for the Eastern District of Virginia. My experience tells me that, broadly speaking, there are six factors that account for the defendant's sentence.
"Evidence-based" sentencing is one of the catch-phrases of the sentencing reform movement.  I have never been able to figure out exactly what it means (my experience as an AUSA was that evidence has always been considered at sentencing), but I think it means that sentencing should be based on facts.

OK, good, if that's what it actually means.  That idea was, as Kent has pointed out (cf. his comment on this thread), one of the main selling points of Prop 47 in California.  Prop 47 reduced sentencing for a number of drug and property offenses by re-classifying them as misdemeanors.  The theory, or so we were told, was that judges would be given more leeway to impose "flexible," evidence-based sentences, and that this would help reduce crime.

Now that, in the wake of Prop 47, property crime (and violent crime) has exploded in the Golden State, however, the refrain is that it's, ummm, too early to pay attention to the evidence so attesting.


And no, I am not making this up.  Read it for yourself.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

We hear again and again that "over-incarceration" or "incarceration nation" is the subject of considerable public angst, and that there is a "growing, bi-partisan consensus" (see, e.g., here) that we should scale back the prison population ("prison population" being the euphemism for "adjudicated criminals whose offenses are serious enough to earn them a prison term").

Is that proposition true?  Is the public up in arms in any sense about "over-incarceration"?

No, it is not true.  Indeed, the subject barely makes the radar screen, according to this quite informative Washington Post article.  Subjects of more concern to the public are:  Education, budget, healthcare, taxes, transportation, infrastructure, marijuana, energy, jobs, pensions, crime, and ethics.  Only after that is prison (which managed to get mentioned as the third-ranking concern in a total of six states), followed by labor, environment, elections, housing, immigration, civil rights, the economy, guns, privacy and a scattering of others.

So called "over-incarceration" may well be an obsession with the academic left, dead-end liberals and, naturally, criminals, but the public that pays the bill (1) is all but indifferent, and (2) guess what!  --  cares more about crime.

One of the leading backers of sentencing reform (i.e., widespread sentence reduction) is Prof. Doug Berman of the Moritz College of Law at the Ohio State University.  His blog, "Sentencing Law and Policy," is widely read, and he frequently appears at academic panels.  A Princeton and Harvard Law graduate, he has been called as an expert witness before Congress.

I therefore think it worth a separate entry to note what Doug acknowledges about the ultimate plans of many of those supporting sentencing reform.  As I have seen it  --  and I've seen it again and again  --  their mantra is that reform is designed for the "low-level, non-violent" offender.  Indeed, this is the principal refrain of the movement. 

"Low-level, non-violent."  Rinse and repeat.

Doug now acknowledges that, in the eyes of many reformers, there's a more ambitious agenda than we usually hear about  -- that lower sentences are to be handed out to violent criminals as well.  

His comment is the third on my earlier entry, "The Mask Slips."  He begins:

I do not think there is much doubt, Bill, that many persons concerned about mass incarceration want to lower sentences for violent criminals. I will be the first to say that I do not think anyone should get LWOP sentences. Also, arguably Weldon Angelos and Chris Williams were both "violent criminals" and I wanted both of them to get less than effective LWOP sentences.

You are right that some advocates will say they are only concerned with reducing sentences for the most sympathetic of defendants, but that is largely because you and fans of toughness do not want to even do that...

Readers are invited, it they care to, to examine the full exchange.  

I sometimes get frustrated with Doug, but I have nothing but admiration for his candor.



I'm preparing for a few debates and panels on sentencing reform when I return to the mainland next week.  In surveying the territory, I see three major questions that could use more definitive answers than they have now.  Indeed, I don't know how an informed debate is possible without pretty clear answers.

1.  How much of the huge drop in crime over the last 25 years is because of the increased use of incarceration?  The recent Brennan Center study, and the earlier but more neutral Levitt study, give wildly different answers.  

2.  What is the electorate's view of the current state of crime and punishment in America?  Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

3.  Most people in the sentencing reform movement think we should start imposing shorter sentences and releasing thousands of inmates already serving their terms. Does the public think the sentencing system has made consistently sound, or unsound, decisions about who should go to jail and for how long? Does the public think, if we change the system, that roughly the same people will make consistently sound, or unsound, decisions about who is safe to release?

A Smear Job by a Sitting Federal Judge

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Are you in favor of the system of stern federal sentencing that has helped reduce crime to levels not seen since the Baby Boomers were in grade school?

If so, you're not merely mistaken, misguided or misinformed.  You're in bed with lynching.

That is the level of "argument"  --  indeed, that is exactly the argument  --  put forth in a new article by a sitting US District Judge, Mark Bennett of Iowa.  The article, available here, is titled, "A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges."

Never one to appeal to emotion or fiction, Judge Bennett starts his hatchet job on those who disagree with him with this:

The 2014 Best Picture Oscar winner, 12 Years a Slave, is based on the 1853 autobiography by Solomon Northup.1 Northrup, a black freeman in New York, was kidnapped and sold into Southern slavery.2 There is an eternally haunting, prolonged, and grueling scene in the movie where Northup has a noose around his neck and strains for breath by tiptoeing on the ground to keep from being lynched.3 Other slaves on the plantation are paralyzed by fear and ignore him. Like a ballerina en pointe, Northup spends long hours in this slow motion lynching dance until he is rescued by his owner.

This article is supposed to be about modern federal sentencing, mind you.

Of course, a number of paragraphs later, Bennett inserts the obligatory if limp disclaimer, a disclaimer embarrassing for its blase' insincerity:

This Article does not suggest that incarcerating almost exclusively black men for unprecedented lengthy terms of incarceration, for crack cocaine offenses they illegally committed, is the equivalent of lynching innocent blacks. It does, however, suggest both actions have strong racial overtones; both share a lack of public outcry; both share tacit public complicity; both share governmental complicity; both share devastating effects on families, children, and neighborhoods; and both have been accomplished largely at the hands of those unknown--at least to the general public.
 



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.

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