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Mass Early Release Is Just the First Step

Most of the time when we're urged to reduce prison sentences, we're earnestly told that a good chunk of the money we'd supposedly save will be "invested" in more careful and active supervised release.  Probation, which is both cheaper and more humane than incarceration  --  so the argument goes  --  will be expanded to help insure we maintain public safety.

Did you think that's actually what sentencing "reformers" are planning?

Think again.  A sample:

This Data Brief demonstrates for the first time that America suffers from "mass probation" in addition to "mass incarceration." Although probation has often been thought of as an "alternative" to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision...

[S]tates should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for "early termination" of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good.

The plan is not to end "mass incarceration."  The plan is to end punishment.  For years, these people have been telling us that the criminal is the victim, and the problem is not crime, but Amerika's callousness and cruelty.  It's time for us to understand they mean what they say.
Q:  Who's willing to admit that early release from prison creates a danger to the public?

A:  One of the fellows who got out early.

Thus this story from News9 in Oklahoma:  


The two suspects in Monday's double shooting in Garvin County were arraigned Tuesday.  

21-year-old Trevor Noland and 18-year-old Roger Arles both face charges.

According to police, Noland and Arles stole a pickup from three of their friends, and shot two of them in the head....

Just 12 days ago, Noland was released from prison after serving just half of a three year sentence for illegally possessing a gun. 

Garvin County Sheriff Larry Rhodes said Noland wouldn't have had the opportunity to shoot anyone if he had served out his full sentence.

But wait.  It gets better.


What Happened to John Cornyn?

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The title of this post is taken from today's Powerline entry by my friend Paul Mirengoff.  It also coincides with a question I was asked just two hours ago on another thread.

Sen. Cornyn is the senior senator from Texas.  Quite oddly, it seems to me, he has reversed years of his prior enthusiastic and well-reasoned argument against mass (and retroactive) sentencing reductions.  Instead, he has aligned himself with President Obama, George Soros, Al Sharpton and the SEIU in support of the the current Senate sentencing reform proposal.

The short answer is:  I don't know what happened to Sen. Cornyn, but it's certainly a question worth exploring.
Those backing sentencing "reform" tell us that, for the last 25 years, the government (broadly speaking) has made thousands of mistakes in deciding whom to imprison and for how long  --  but now we can trust the same government to decide whom to release and how early.

Does that sound right to you?  

The Wendell Callahan triple murder case should disabuse us of this notion, as well as illustrate its high and irreversible costs. But the Callahan matter is not alone. Note, for example, this story in the Denver Post:  "Parolee Arrested in Homeless Murder Was Touted as Model of Success."   

A parolee recently charged in the death of another homeless man was touted by a state parole administrator as a model of success in a meeting with legislators just 16 days before the fatal stabbing.

Calvin Johnson, 44, who allegedly called himself "Calvin/Elijah the prophet/crazy killer" in a text after the slaying, faces one count of first-degree murder in the New Year's Day death of Teodoro Leon III.

The sentencing reform bill presently treading water in the Senate would restore a version of parole, albeit by a different name. Are the federal authorities that much better than those in Colorado in figuring out whom to release early?  Were they with Wendell Callahan? 

The national media have been quite subdued in reporting the murders of three African Americans in Columbus, Ohio by Wendell Callahan.  Years before, Callahan, a man with a violent past, had been sentenced to federal prison for trafficking crack cocaine. He was released four years early because of a sentencing "reform" bill Congress passed in 2010.  But for the early release, his three victims  --  a mother and two daughters, aged 10 and 7  --  would be alive today.  See my post here.

Put another way, this was preventable murder.  And prevention was easy.  All we had to do was keep a violent man trafficking hard drugs in prison for his original sentence.

Preventable murder is about as odious a thing as one can imagine.  You would think the usual cadres of criminal justice protesters would be up in arms.  Where's Black Lives Matter, now that three black lives have been thrown away courtesy of a law that was passed as the remedy for supposed injustice?  I haven't heard a peep. Maybe some black lives matter more than others.

Fortunately, Debra Saunders of SFGate is paying attention.
Every now and again, a single case crystalizes an argument so powerfully that there's not much left to say.  Recently, I wrote about one such case, the triple murder (of a mother and her two daughters, aged 10 and 7) by a crack dealer with a violent history who was out on early release because of Congress's 2010 version of "sentencing reform."  Had he remained in jail for his original sentence, the mother and the two kids would be alive today.

We all know that errors in sentencing are inevitable, because errors in human judgment are inevitable.  Accordingly, we know that some inmates will be incarcerated too long, and others, not long enough.  

The only adult question, then, is this:  Who should bear the risks and costs of inevitable error  --  the criminal, who made his own choice and assumed his own risks, or the future victim, who never had a chance?

The question answers itself.

So does the question posed by Judge Jack Weinstein's most recent adventure in judicial defiance:  Does a felony-level child pornographer deserve a prison sentence of zero?
Yesterday I was on KPCC's Air Talk with Larry Mantle.  The program page with audio is here. The topic of discussion was Gov. Brown's initiative to make every convicted felon eligible for parole at the completion of the base term for the present offense, effectively giving the parole board the power to wipe out all sentence enhancements imposed for prior convictions, no matter how many or how violent.

As usual, the other guest was someone who disagreed with me, and as usual Mr. Mantle was quite evenhanded in moderating.

The most interesting moment occurred during a call-in.  The caller frankly admitted that she had gone to prison for manufacturing drugs for sale, and after getting out she returned to the drug trade.  Even so, she insisted it was totally unfair that she got a sentence enhancement for the prior.  I was quite taken aback.  Judge for yourself whether I had a good answer.
CalNonCalCrimeChanges2014_2015.gifAs noted previously on this blog, the FBI recently announced the Preliminary Semiannual Uniform Crime Report covering the first half of 2015 for cities over 100,000.  I have totaled the crime counts for violent and property crimes for 2014 and 2015 and computed the percent changes for California cities versus cities in other states.  Click on the graph for a larger view.

California has (1) court orders overriding state law to release prisoners because of overcrowded conditions caused by the Legislature's failure to build enough prison space, (2) the "realignment" program moving prisoners from state prison to overcrowded county jails where they are either released or push out prisoners who would otherwise be in jail, and (3) Proposition 47, which reduced many felonies to misdemeanors.  Between these measures, the state has seriously softened its approach to crime and put many criminals on the street who would otherwise be in custody.  Although other states are taking more modest measures to reduce prison populations, nowhere else do we see this headlong rush to push criminals out the gates.  One would expect, then, that California would have much worse results than other states, and that is exactly what we see.

What is Governor Brown's plan?  Push even more criminals onto the streets. 

If a person is convicted of burglary of a home, has prior convictions for rape and murder, and had a gun in his waistband when he broke into the home, how long should we keep him in prison?

Under California sentencing law, the violent priors and the gun use result in major sentence enhancements that extend the term far beyond that for burglary alone.  Yet Governor Jerry Brown has proposed an initiative that would make this career criminal eligible for parole after he has served his term for the burglary alone, which could be 2, 4, or 6 years.  (Penal Code ยง461(a).)  That is insane.

John Myers has this story in the LA Times.  It quotes me on a version of the above example, although the quote is a bit truncated.

Is it an answer to say we can trust the parole board not to let him out too early?  No, our experience from an earlier era when the parole board had nearly unlimited power demonstrates that we cannot.  That was why we needed to pass the tougher laws in the first place.
Yesterday, Mike Rushford wrote a post detailing the dismal experiences California has had implementing its version of dumbed-down sentencing and early release called "realignment."  Realignment was signed by Gov. Brown roughly five years ago, in April 2011, in response to years of problems with prison overcrowding.

As Mike noted, the results have ranged from disappointing to dreadful.  One promise of realignment has been kept, true:  The state has about 30,000 fewer prison inmates.  But the main promise to the electorate  --  cost savings  --  has been shredded.  As Mike pointed out, the state is spending two billion more per year now on incarceration than when the reforms were adopted.  That would be T-W-O  B-I-L-L-I-O-N.

The other main promise was that Californians would be just as safe.  Crime wouldn't increase; if anything, it would decrease, as the state adopted a more humane attitude and spent more on social services (which it has certainly done to the point of non-trivial bankruptcy concerns).

What has become of that critical promise?
There has been quite a bit of discussion on this blog about legislation (S2123) before Congress that would reduce federal sentences for so-called non-violent drug offenders, including some with gun allegations, and allow early release for thousands of offenders convicted under previous law.  The Sentencing Reform and Corrections Act is supported by several of the same anti-incarceration advocates who supported California's "Public Safety Realignment Act" (adopted in 2011),  "The Three Strikes Reform Act" (Proposition 36 passed in 2012), and "The Safe Neighborhoods and Schools Act" (Proposition 47 passed in 2014).  Together, those measures reclassified most property and drug crimes as low-level, non-violent offenses, restricted the sentences of criminals convicted of those crimes to county jail, eliminated the third strike 25-to-life sentence for habitual criminals whose third conviction was not a violent felony, and allowed for the early release of thousands of criminals sentenced under previous law. 

S2123, while not as extensive as the California reforms, would do many of the same things.   
I blogged here, here and here about the murder this month of two children and their mother by a man, Wendell Callahan, who should and would have been in federal prison but for the early release he was given under a 2010 version of sentencing "reform."  Callahan was a hard drug dealer (crack cocaine) who had his sentence twice reduced.  He was said at the time to be no threat to public safety. This was simply false.  At best, those who took this position were forecasting a future they could not know. At worst, they were lying (having plenty of reason to know, from Callahan's violent past, that he was a threat).  In either event, two little girls and their mother wound up paying the ultimate price for their mendacity.

This horrible story illustrates what sentencing "reform" is actually going to cost if Congress is foolish enough to go ahead with a version of it even more sweeping and reckless than the 2010 edition.  Perhaps not surprisingly, the mainstream media has buried the Columbus early release massacre story, apparently taking the view that some black lives matter more than others.

We should thus be thankful that Sen. Tom Cotton (R-AR) has taken up the cause. Apparently, his advocacy is gaining new adherents to the opposition of the Establishment's sentencing reform bill, the SRCA.  In particular, I thought these paragraphs from today's Politico were telling and very encouraging:

[S]entencing changes are triggering the biggest -- and most vivid -- rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, in which a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch....

Cotton isn't alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate.

Until sentencing "reformers" are willing to come clean about specifically how much violence the country should tolerate from the thousands of felons they aim to release early, Congress should refuse to move on this bill.  It's bad enough to buy a pig in a poke, but worse still once you already know the pig can kill you.
The U.S. Supreme Court today made Miller v. Alabama fully retroactive to all cases, no matter how old.  States that had mandatory life-without-parole for 17-year-old murderers must now either hold new sentencing hearings or make them eligible for parole, the Court said in Montgomery v. Louisiana.  It characterized the Miller rule as a "substantive" rule for retroactivity purposes.  Families of victims of juvenile murderers who adamantly oppose release therefore receive life sentences of appearing at parole hearings and reliving their tragedies. That result is disappointing but not unexpected.  CJLF's brief is here.

Also, the Court said that it had jurisdiction to review a state collateral review decision for retroactivity.  In essence, the federal rule of Teague v. Lane provides a floor (Montgomery) but not a ceiling (Danforth v. Minnesota) on retroactivity in state collateral review proceedings.  I don't have a problem with that part and didn't brief the point.  This is one more reason for states to adopt Teague for their own systems.  No point giving convicts the "head I win, tails we take it over" that results from dual standards.
Among those who favor lowering sentences for heroin traffickers, the surge in overdose deaths is a problem.  They understand that the public is unlikely to want to water-down the penalties for the people helping to produce the surge.  Thus it has become a popular refrain that the major driver of the problem is not smack pushers but, instead, opioid addiction driven by "Big Pharma" and unethical pain doctors.

The difficulty, as is often the case with sentencing reform advocates, is that the refrain is made up, as Brian Blake at the Hudson Institute explains:

A new, peer-reviewed article in the New England Journal of Medicine contradicts the White House claim that the huge increase in heroin overdose deaths--440 percent in the past seven years--is directly related to prescription pain killers and changes in prescribing policies aimed at making them harder to obtain and abuse.

The article, authored by some of the federal government's leading addiction researchers at the National Institute on Drug Abuse, the Food and Drug Administration, and the Centers for Disease Control and Prevention, surveys dozens of recent, peer-reviewed studies on heroin use, initiation patterns, overdose deaths, and the effects of policy changes in prescribing opioids. Ultimately, they find "there is no consistent evidence of an association between the implementation of policies related to prescription opioids and increases in the rates of heroin use or deaths." Instead, the authors conclude that "heroin market forces, including increased accessibility, reduced price, and high purity of heroin appear to be major drivers of the recent increases in rates of heroin use."

The Right Kind of Sentencing Reform

Does the country need sentencing "reform" that would release drug traffickers early, on the false promise that they are "non-violent"?  Wendell Callahan, the knife-wielding cocaine dealer given not one but two sentencing "reform" breaks, has already shown us the answer.

Does the country need sentencing reform in which people who don't know, and have no sensible reason to know, that they have broken the law, are no longer sent to prison?

Senator Orin Hatch and House Judiciary Chairman Bob Goodlatte think so, and I agree.  They make their case here; I made mine in the Harvard Journal of Law and Public Policy, here.

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