Recently in Sentencing Category

I've often said that Heather Mac Donald is the best in the business for analyzing policy about police practices and sentencing.  She proves it again in her May 25 piece from the Wall Street Journal.  I'll give a three paragraph teaser:

No one who gets caught smoking a joint is going to be implicated by Mr. Sessions's order [requiring prosecutors ordinarily to charge the most serious readily provable offense]. The number of federal convictions for simple possession is negligible: only 198 in 2015. Most of those were plea-bargained down from trafficking charges, usually of marijuana. Last year the median weight of marijuana possessed by those convicted of simple possession was 48.5 pounds. To trigger a mandatory penalty for marijuana trafficking, a dealer would need to be caught with more than 2,200 pounds of cannabis.

[T]he idea that Mr. Sessions's memo will exacerbate racial disparities in prison does not stand up to the facts. Drug enforcement is not the cause of those disparities. In 2014, 37.4% of state and federal prisoners were black. If all drug prisoners--who are virtually all dealers--had been released, the share of black prisoners would have dropped to 37.2%. What truly causes racial disparities in incarceration is racial disparities in violent crime.

Likewise, it is America's higher violent-crime rates overall, not drug enforcement, that cause the country's higher incarceration rates compared with other Western industrialized countries. The U.S. homicide rate is seven times the average of 21 Western developed nations plus Japan; the U.S. gun homicide rate is 19.5 times that average. Americans ages 15 to 24 kill with guns at nearly 43 times the rate of their counterparts in those same industrialized nations.

No one doubts that the increased use of mandatory minimum sentencing laws has contributed, likely significantly, to the big increase in the prison population from 1990-2010 (it has dropped since then).

The next question crucial to our sentencing debate, then, is how much has increased incarceration contributed to the astonishing drop in crime over those 20 years (and astonishing is the right word, see this table showing that crime rates fell by nearly half).

Obviously, if increased incarceration accounts for only a small part of the falloff in crime, then the case for easing off on the use of prison becomes stronger. Conversely, if more prison has been a big driver of plummeting crime, the country justifiably will be more hesitant to go back to the softer policies that brought us the crime explosion in the quarter century before 1990.

This central question has been studied.  How much does increased incarceration contribute to the drop in crime?  What do the data say?
The Washington Post has printed on its editorial page a few of my remarks commending the charging policy Attorney General Sessions issued last week for federal prosecutors.  I appreciate the Post's  willingness to air a competing point of view.  

The piece was written as an op-ed, but was considerably shortened when the Post published it, and omits some of the points I believe merit attention

The piece as originally submitted argues:

Contrary to the Post's May 13 editorial ("It's time for federal sentencing reform"), Attorney General Sessions made the right call in restoring a long-honored standard for bringing criminal charges against those who profit from the ignorance and misery that fuels drug trafficking.

The California Court of Appeal for the Fifth District (Fresno) yesterday decided People v. Marquez, F070609.
Sarah Le has this article with the above title in the Epoch Times:

Crime has been going up in California, and some members of law enforcement and their support organizations are blaming a series of changes to California's criminal justice system in recent years.

Violent crime in California increased 10 percent and property crime increased 8.1 percent from 2014 to 2015, according to the California Office of the Attorney General. In Los Angeles, violent crime increased three years in a row, rising 69.5 percent since 2013, according to the Los Angeles Police Department (LAPD).

"Our city has experienced a steady crime increase in almost all categories," said LAPD Sergeant Jerretta Sandoz, vice president of the Los Angeles Police Protective League, in a press release.

*       *       *
Michael Rushford, president of the nonprofit Criminal Justice Legal Foundation, said: "If you have a fire and you pour more gas on it, you get more fire. The gas in this case is the release of criminals into the communities and changes in laws that reduce the consequences for new crimes."

"Now we're leaving habitual felons in the counties, and they're evolving into violent criminals," he said.

They'll Say Anything, Part Ten Zillion

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The Brennan Center is a far left organization that occasionally tells us the truth, as it did in revealing the extent of the murder spike over the last two years:  "With violence at historic lows, modest increases in the murder rate may appear large in percentage terms. Similarly, murder rates in the 30 largest cities increased by 13.2 percent in 2015 and an estimated 14 percent in 2016."

Oh, OK. That would be that, in our 30 largest cities, murder has increased by more than a quarter in the last two years  --  the biggest spike over the shortest time in American history.

But the Brennan Center is undeterred.

Legal Academia and the Time Machine

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This post notes the findings of drug legalizer Jacob Sullum and UC Irvine criminologist Mona Lynch.  The main point argued is that the Sessions charging memo will have less effect than had been thought at first.  This is because drug pushers theoretically eligible to avoid a mandatory minimum under the more lenient, Eric Holder regimen often were never going to get one anyway, either because they qualified under the long pre-existing statutory Safety Valve, or because they assisted the government.  I believe this conclusion is correct.

The point I want to make stems from the following paragraph discussing Prof. Lynch's view that the impact may indeed be limited, and may

...only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era.

The words "older era" struck a chord.  As the post notes four paragraphs earlier, the "older era" was the period before the date Eric Holder issued his charging policy.  That would be August 2013  --  three years and nine months ago.

I grew up in day of hula hoops and the Beatles.  To say that 2013 marks the "older era" truly warms the cockles of my cold, old, law-and-order heart.  

Repealing the Meaning of Language

Sen. Rand Paul, a libertarian, has re-introduced legislation called the Justice Safety Valve Act.  His CNN commentary on it is here, although it's a bit fuzzy on whose "safety" is being protected.  (Admittedly, it would do a good deal to promote the interests of drug dealers; how it would promote the safety of this benighted class is less clear).

I want to focus on one paragraph in Sen. Paul's statement:

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

Translation:  We're keeping mandatory minimums, just making them non-mandatory.

Is there anyone out there dumb enough to fall for this stuff?
Some of the opposition to the charging policy restored by Jeff Sessions  --  which requires career federal prosecutors ordinarily to charge the most serious readily provable offense  --  has argued that these prosecutors will rebel at the loss of their "discretion," and will balk at following the policy in practice.

Of course, that is an empirical question, so I asked someone who would know. Specifically, I asked Larry Leiser, an AUSA for more than 20 years and President of the National Association of Assistant United States Attorneys. The question I posed to him in an email this afternoon was whether the great majority of AUSA's support Sessions' decision that federal prosecutors should charge the most serious readily provable offense, including offenses that would involve a mandatory minimum sentence if the defendant is convicted.

He gave a one word answer.  "Yes."

Full disclosure:  Larry has been a friend of mine for years, and I knew full well what his answer would be, as would anyone who understands that prosecutors do not spend their time trying to figure out ways to cut breaks to smack pushers.

Fabio For Governor?

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Stuart Varney has this interview with actor Fabio Lanzoni.

He also spoke out against California Governor Jerry Brown's Proposition 57, which modifies the state's prison system.

"He is releasing tens of thousands of criminals back in the streets and also he lowered the crime into misdemeanor," he said, and added that "cops are very demoralized."

"You saw it happen to Europe, the politicians in Europe--they neuter the law enforcement and now they have to be shot before they can even return the fire... you don't want this movie coming to a theater near you," he said.
Hmmm.  Should we elect him governor in 2018?  California's record with actor-governors is mixed, but they have been better than some of the non-actors.
Two well-known physicians were brutally murdered in Boston Friday night.  The killer should not have been on the streets.  He had a record, and a felony conviction on  -- ready now?  --  September 30, 2016.  That would be a little more than seven months ago. Nor was that his first serious crime.  Still, in the land of second chances, and what with our scandalously racist criminal justice system, we need to emphasize redemption, right? See, e.g., this self-righteous piece in the Atlantic, published, in a masterpiece of bad timing, 48 hours before the Boston murders:

The notion were hear all around is that dumbed-down sentencing is our mission in order to become a better people.  What it's actually going to do is make us a deader people. The prison population has been falling recently and, my goodness, we are now in the third year of our spike in violent crime, murder in particular.

The intentionally deceitful myth that we can be "just as safe" with many fewer criminals in prison has a price.  When the price is paid by little black children, like the ones Wendell Callahan sliced to death after he got early release, no one cares (although they occasionally pretend to).  They won't care about this atrocity either, although they might make a similar pretense. It's not that they're racists, although they know full well that murder disproportionately harms the black community.  It's that their ideology of criminal-as-victim trumps even their ideology, heard relentlessly in other contexts, of America-as-cesspool.
This entry notes that there has been a large increase in the imposition of life sentences over at least the last 25 years, if not before then.  The implication is that the country has gone overboard in its (as ever) punitive nature.

What it fails to note is the reality liberals trumpet in every other context:  The very large decrease in the imposition of death sentences over roughly the same period. Since a life sentence is the typical alternative to the death penalty, this "news" is anything but.  It reflects, if anything, liberals' success in working against capital punishment, a success that has been well documented, in this space and many others.  It amounts to "news" that when one punishment is used less, its alternative is used more?  DOH.

What it also fails to reflect is the huge decrease in the rate of violent crime over roughly the same period.  Could it be that incapacitation works? Ummmmmm...........we'll get to that later.  A lot later.

HT to Sentencing Law and Policy.
Enacting pro-criminal legislation in a time of rising crime is a tough road to hoe. Still, if you're as ideologically dug in as the Brennan Center, mere inconvenient truth about the country's two year-long murder explosion is not going to get in your way.  While the spike is too big to be entirely swept under the rug, the Center makes a yeoman effort at it by, essentially, getting a bigger and more colorful rug and hoping folks will just pay attention to how pretty it is.

I tried to unmask this two-step last year in my post here.  But just this month, the Brennan Center came out with an even more determined effort to put a smiley face on the burgeoning inventory down at the morgue.  Its report is extensive:

The new two-step phrase is that murder "remains near historic lows," without getting into too much detail too soon about why we left behind the actual lows we had achieved at the end of 2014.

Fortunately, Breitbart is on the case.
Sentencing Law and Policy has an entry today about the Sessions era at the Justice Department.  It quotes The Hill magazine, which starts off:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation's top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  "Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed," he said.  "I don't know if he is really going to be able to persuade the department to follow his lead on this."

Where to start?

The Right Kind of Sentencing Reform

Sentencing reform advocates often point out that reform proposals, although a dud at the national level, have been adopted by any number of states, including more conservative states like Texas and Georgia.

In Alabama, certainly a conservative state, the House just approved the kind of sentencing reform I can enthusiastically support.  It was adopted, I might add, by a unanimous vote, including the votes of all the African American legislators. Here's the story:

The Alabama House overwhelmingly approved a bill Tuesday that would create harsher penalties for possessing and dealing heroin and fentanyl.  

In a 100-0 vote, the lower chamber signed off on the legislation, which orders a one-year minimum prison term for possessing heroin or fentanyl -- an opiate cheaper but much more potent than heroin. The two drugs are commonly mixed by dealers because it allows them to stretch out the heroin into more doses....

Rep. Patricia Todd, D-Birmingham, said she recently lost a family member to a heroin and fentanyl overdose. Todd said there should be more education about the dangers of the cheaper and more powerful opiate, especially on college campuses. "I don't think many of us understand how more deadly fentanyl is than heroin," she said.

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