Recently in Sentencing Category

Is it that we've locked up to many criminals, or that we have too much crime?

Congressional backers of slashing mandatory minimum sentences plainly believe the former.  Their main slogan is "incarceration nation," and they claim there's a "bi-partisan consensus" to cut the prison population.

One thing I learned in my days as a litigator is to listen for what you're not hearing. What I never seem to hear, amidst all these claims of consensus, is any polling results among ordinary people.  This makes a suspicious man like me wonder whether backers of so-called "reform" know enough to prefer not to take a poll; with all the George Soros money they've got, they could certainly commission one if they wanted.

I just stumbled across a poll, although it's a year old and asks a slightly different question. It's from Rasmussen, and I'll quote the (very short) story in full (emphasis added):

Americans feel even more strongly that the biggest problem with the criminal justice system is that too many criminals are set free. A new Rasmussen Reports national telephone survey shows that 68% of U.S. adults believe that the bigger problem with law enforcement and the legal system is that too many criminals are released, not that too many innocent people are arrested. Eighteen percent (18%) hold the opposite view and think the bigger problem is that too many innocent people are arrested. Fifteen percent (15%) are undecided.

What backers of the Smarter Sentencing Act mean when they say there's a "consensus" in favor of the bill is now clear:  There's a consensus among cozy interest groups and academic leftists.  Talk to the man on the street, and it's a different story. 

My post yesterday describing White House Counsel Kathryn Ruemmler's remarks about Presidential clemency did not go nearly far enough.  Now that I take a closer look at the AP report, I have to wonder whether something very, very broad is afoot. Specifically, I wonder whether the President is planning to implement the heart of the Smarter Sentencing Act on his own.  It would scarcely be the first time this President by-passed Congress.

Here is what Ms. Ruemmler is reported to have said:

"The president believes that one important purpose [of executive clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in remarks prepared for delivery Tuesday at New York University's law school. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories."  ***

[She also] said the Justice Department plans in the coming weeks to encourage worthy inmates to request commutations, with bar associations offering to help with applications. She said Obama's new budget proposal calls for seven more staffers to be added to the Office of Pardon Attorney to handle applications, saying that the two years the office has taken to resolve petitions in recent years has been "unacceptably long." She said Obama met with U.S. attorneys last month and asked them to personally review petitions to consider "whether granting clemency would be consistent with the values of justice and fairness that are the hallmark of the best traditions of the Department of Justice."

To me, this sounds like a mass commutation is in the works, and I gather I'm not the only one who senses this.

It's by now no surprise to readers that I have been doing what I can to oppose the so-called Smarter Sentencing Act.  I made probably my most comprehensive case against it here.

I'm delighted to see that, since I published that post, another reason why the SSA is unwise and unnecessary has become evident.  

Just this morning, as Sentencing Law and Policy notes, White House Counsel Kathryn Ruemmler announced at a conference at NYU Law School that the power of executive clemency "can serve as a 'fail-safe' for correcting errors that cannot be corrected by other means."  She did this in the course of explaining yet another commutation the President has issued.

Just so.  Ms. Ruemmler's remark, taken together with the unprecedented initiative of Deputy Attorney General James Cole to increase the exercise of this Presidential power, underscores my point that the putative horror stories of low-level defendants' being given long mandatory minimums do not constitute a valid reason to adopt a blunderbuss, across-the-board lowering of such sentences. 

As we now plainly see, the President stands ready to act where the judicial system has gone overboard.  Where the deserving already have a remedy, there is no cause, and considerable danger, in opening the floodgates for the undeserving.
"Incarceration nation" is the slogan of the hour.  In the pages of every liberal paper, you can't go more than a few days without some earnest editorial, or some quasi-editorial masquerading as a "news story," telling us that we have too many people in jail.  All this jailing is expensive, inhumane, and counterproductive.  For these reasons and more, we should curb the use of imprisonment.

Almost always, the people writing this stuff are careful to add something to the effect that, "Of course, there are  some really dangerous people who need to be incarcerated." The reassurance of sanity is pasted in to persuade us that our opponents want the much-heralded "balanced approach."

But one must wonder.  The emotive engine of the anti-incarceration movement is more deeply rooted than its ostensible arguments.  It's the belief that the United States is a Bad Country  --  driven by racism, inequality, privilege, greed and inhuman callousness.  If you don't believe me, go to any Ivy League school and look at what's posted on the bulletin boards as you walk down the hall.  Then look at some of the more "innovative" course offerings in the catalog.  

So is a mere curbing of imprisonment what they actually want?  Hey, look, every now and again, the mask slips.
One of the principal arguments for the Smarter Sentencing Act is that its reduced use of incarceration will help curb the federal debt.

Is that true?

Today, tax day, is a good day to see for yourself.  Take a look at where your tax money actually goes.

Damnation by Loud Praise

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I have written often to try to expose what's really going on with Eric Holder's support for so-called smarter sentencing initiatives.  I could not possibly do more to expose it, however, than Holder himself did two days ago by praising these initiatives at none other than race-huckster Al Sharpton's National Action Network Convention.

I'll say one thing for Mr. Holder:  He didn't try to hide it or put lipstick on it.  His gushing praise for Big Al, in the same speech and in the same venue as his praise for watered-down sentencing for drug dealers, is front and center on the Department of Justice website.  Among other things, Mr. Holder says:

Thank you, Reverend [Al] Sharpton - and thank you all for such a warm welcome.  It's a pleasure to be back home in New York City.  And it's a tremendous honor to join the National Action Network - once again - in helping to open your important Annual Convention....

[W]e have modified the Department's charging policies so that defendants accused of certain nonviolent, low-level federal drug crimes will face sentences appropriate to their individual conduct, rather than stringent mandatory minimums, which will now be reserved for the most serious criminals.  We are increasing our emphasis on innovative diversion programs like community service initiatives that can serve as alternatives to incarceration. 

Translation:  Since incarceration actually works, we're going to cut back on it.

Perspective:  Holder knows that slashing sentences for drug pushers will go over big with the President's political base. 

Eric Holder, His Own Law

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As noted in the last entry, the Sentencing Commission voted today for an across-the-board lowering of drug sentences, given that drugs are no longer a problem the Commission has become partial to the defense bar.

The problem is that Eric Holder jumped the gun, so eager is he to give a break to drug dealers.  He had already ordered federal prosecutors not to object to defense requests for the anticipated reduction.  This is not to mention that the reduction, now adopted, will, if allowed by Congress, not become effective for more than six months.

Holder's over-eagerness did not sit well with Commissioner and Eleventh Circuit Judge Bill Pryor, even though Pryor voted for the reduction.  As reported by NRO:

"I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward," Judge William Pryor, Jr. said at a public hearing in Washington. "That unprecedented instruction disrespected our statutory role, 'as an independent commission in the judicial branch,' to establish sentencing policies and practices under the Sentencing Reform Act of 1984."

Judge Pryor was not the only one to notice Holder's overreach. 

A Tale of Two Days

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Day One, April 9, 2014  --  Sheriffs warn of violence from Mexican cartels deep into interior of U.S.:

Outmanned and outgunned, local law enforcement officers are alarmed by the drug and human trafficking, prostitution, kidnapping and money laundering that Mexican drug cartels are conducting in the U.S. far from the border.

The United States Sentencing Commission voted today at a public meeting to reduce the sentencing guideline levels applicable to most federal drug trafficking offenders...The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types.

Somebody, please, wake me up.  My nightmares didn't used to be this weird.

More Mush from DOJ, cont'd.

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Yesterday, I noted that, contrary to what Eric Holder told Congress, the so-called Smarter Sentencing Act does  not "restore discretion" to judges.  The main thing it does is cut the minimum sentences applicable to dealers in heroin and other extremely dangerous drugs. But the sentences would still be mandatory.

It occurs to me that I omitted to mention another whooper Mr. Holder told  almost in the same breath.  He testified that the SSA "will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers."

One has only to read the text of the proposed Act (Sec. 4 in particular) to see that this stands the truth on its head.  The Act gives the biggest breaks to the most dangerous (and repeat) offenders. Thus, for the relative small fry, the reduction is 3 years, from a mandatory minimum of 5 to a mandatory minimum of 2.  But for the really bad actors, the reduction is 10 years, from 20 to 10, or more than three times as much.

With math like that, perhaps Mr. Holder's next job will be in the Indiana Legislature.

More Mush from DOJ, Plus a Little Fib

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Cutting and pasting from his last 3000 speeches,  Attorney General Holder testified today before the House Judiciary Committee.  He repeated his standard lines in favor of cutting by half the minimum required sentences for drug dealers  --  which, of course, he never actually identifies as "cutting by half the minimum required sentences for drug dealers." Instead, he talks in roundabout language designed to obscure what's actually going on. Thus, he uses the always-a-good-tipoff set of phrases like "evidence-based," "commonsense change," and "tough and smart."

For right now, I want to highlight one thing Holder said that's simply not so.  He stated (prudently tucked into his eighth paragraph) that the Smarter Sentencing Act "would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes."

Well, not really.  The SSA says not one word about judicial discretion, and, as John Malcolm of Heritage has pointed out, actually adds three mandatory minimums to existing law.  To that extent, the SSA reduces such discretion.

It's the Justice Safety Valve Act, sponsored by the even more extreme Pat Leahy and Rand Paul, that would let judges run wild again, as in the bad old days of the crime-ballooning Sixties and Seventies.  The Smarter Sentencing Act "merely" cuts mandatory minimum sentences, but they remain mandatory, and not subject to the the whim ideology temperament frolic discretion of  judges.
When I debated the merits of the proposed Smarter Sentencing Act before the Senate Republican Policy Committee, my opposite number was John Malcolm, formerly Deputy Assistant Attorney General for the Criminal Division.  John has been a friend for years, and I was fortunate to have such an affable and knowledgeable opponent.

One of the claims made in behalf of the SSA is that it's being backed by a number of conservative groups and individuals.  This claim is correct.  John rattled off several of them, including but not limited to Right on Crime, Americans for Tax Reform, Newt Gingrich, David  Keene and George Will.

So I got to thinking:  Are conservatives really the mainstays of this bill?  Find out for yourself.
In debating the Heroin Dealers Bonanza Act Smarter Sentencing Act, I hear one question again and again:   Since some states like Texas and Michigan have reduced their prison populations over the last few years and  have seen the decline in crime continue, why can't the federal prison system do the same?

Here's why.

1.  The increased use of  incarceration has accounted for about a quarter of the decline in crime.  What that means is that about three quarters of the decline is  attributable to other factors (things such  as hiring more police and improved and proliferating private security measures).  When three quarters of the factors responsible for the decrease in crime are still on-going, crime is very likely to continue to decrease.  What reducing the prison  population will do, by putting recidivist criminals back on the street, is slow the rate of the decrease.  And that is, in fact, what's  been happening.  As some large states have been marginally lowering their prison populations, crime has continued to decease, but at a slower rate.

Reasons 2 - 5 follow the break.

Several weeks ago, the so-called Smarter Sentencing Act was passed out of the Senate Judiciary Committee on a 13-5 vote, with all ten Democrats and three Republicans (Lee, Cruz and Flake) voting in favor.  The opposition was led by Ranking Member Chuck Grassley.  I have previously analyzed the law and the politics of the SSA.  If enacted, it would be the most significant generally applicable piece of federal sentencing legislation since the SRA 30 years ago.

Yesterday, I had the opportunity to address the Senate Republican Policy Committee about this bill, arguing that it should be defeated.  My friend John Malcolm of the Heritage Foundation, and chairman of the Federalist Society's Criminal Law Practice Group, took the other side.

My opening statement follows the break.  Please bear in mind that this was a partisan speech to a partisan audience; C&C itself is not partisan, although the views expressed here more often coincide with those of Republicans rather than Democrats.

Trusting the Discretion of Judges

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Should judges be given more leeway in deciding sentences?  In federal law, they already have considerable leeway, although they are constrained to an extent by mandatory minimum sentences.  (They used to be constrained as well by mandatory guidelines, but that ended with the Supreme Court's 2005 decision in Booker).

In considering whether judges should have more of a free rein (or is it reign?), it seems fair enough to take a look at who might wind up doing the judging.

The Smarter Sentencing Act, co-sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT) would substantially reduce the mandatory minimum sentences that must be given defendants convicted of dealing in Schedule  I drugs  --  everything from pot to methamphetamine and  heroin.

Proponents of the Act say that we have gone too far with mandatory minimums, and that they impose excessively harsh terms on low-level, non-violent offenders without permitting the judge to tailor the sentence to individual circumstances. Opponents say that mandatory minimums  have helped bring  down crime, are imposed  only  on serious or repeat offenders, are essential in securing cooperation against higher-ups, and  rein in irrational disparity among judges of various ideologies.

Supporting the SSA will be John Malcolm, a former Assistant US Attorney and Deputy Assistant Attorney General in the George W. Bush Administration.  John is now Director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. Opposing the SSA will be yours truly.

The teleforum begins at 2 pm EDT.  The call-in number is 888-752-3232.  All should feel welcome to join.

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