Recently in Sentencing Category

A person who commits murder at the age of 17 years, 364 days is exempt from the death penalty, regardless of how horrible the crime or how many people he kills.

Should that one day further exempt the murderer from a true life-without-parole sentence, holding out the possibility of parole regardless of the crime?  Should the 17-year-old get a double discount for murder compared to the 18-year-old?  Some people think so.  California State Senator Leland Yee is trying again.  He has put cosmetic changes on his bill, SB9, but it still amounts to a possibility of parole.

Crime Victims Action Alliance has this update, with links to contact Assembly members.

Note: California already exempts under-16s, so people who say this bill is about "children" are using an ambiguous term in an intentionally deceptive way.  [Try standing in front of a class of high school juniors and saying, "Good morning, children."  See what kind of reaction you get.]

The calendar for April arguments in the US Supreme Court is available here.  There are no state criminal cases or state-prisoner habeas cases on the docket.  Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio.  There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

Those instinctively opposed to incarceration as a punishment are increasingly drawn to technocorrections as a sentencing alternative.  Professor Doug Berman is a fan of technocorrections as a way to scale back on imprisonment per se, not to mention its significant costs.  Accordingly, Prof. Berman occasionally publishes a post about the virtues of technocorrections on his always interesting blog, Sentencing Law and Policy.  This is one example.

I have two problems with technocorrections.  One is that it fails to provide the punishing (and therefore deterrent) value of a prison sentence; it was my experience as an AUSA that prison is the only thing defendants really pay attention to.

The second problem with technocorrections is that they are easily defeated, sometimes with disastrous results.  From Fox News:

Some years back, "truth in sentencing" laws were passed in many jurisdictions to ensure that criminals or a defined subset of criminals actually served all or most of the prison time they were sentenced to.  These laws were and remain controversial.  A new report from Arizona supports the crime-reducing impact of that state's TIS law and of such laws in general.  The full report is over 500 pages and will take some time to digest. The Maricopa County* Attorney has this press release.  Bearing in mind that press releases about studies must always be taken with a grain of salt, here is the first paragraph:

Arizona has prevented more than a million crimes since 1994 by incarcerating its most dangerous criminals, according to a major research study released today. Titled Prisoners in Arizona: Truth-in-Sentencing, Time Served and Recidivism, the study concludes that Arizona's Truth-in-Sentencing (TIS) laws, which ensure that convicted criminals serve at least 85% of their sentence, led to a 17.7% drop in reported crime over a fifteen year period after TIS laws were enacted in 1994.

*Phoenix and vicinity, with over half the population of the state.

This morning the Supreme Court appointed Miguel Estrada to argue in support of the judgment below in the crack sentencing cases, Dorsey v. United States and Hill v. United States.  The Court does that when the government repudiates a point decided in its favor by the lower court.  They consider it unseemly to reverse a lower court decision without someone arguing in its favor, but they nearly always do reverse in this situation.  (I'm not aware of any affirmances, but I'll hedge with "nearly.")

Adam Liptak has this story in the NYT on the cases (see update below):

Selling cocaine in crack form used to subject offenders to sentences 100 times as long as those for selling it in powder form. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.

Um, no.  It wasn't the sentences that were 100 times as long.  The controversial "ratio" refers to the amount of cocaine that triggers the longer sentence, as indicated later in the story. (See also this post.)

The usual rule is that new laws do not apply retroactively unless Congress says so, Judge Evans wrote, and here Congress said nothing.

Edward Dorsey pleaded guilty in June 2010 to possessing 5.5 grams of crack cocaine in 2008 with the intent to distribute it. Under the law in effect at the time of his offense and his plea, and thanks to an earlier conviction, he was subject to a mandatory minimum sentence of 10 years. Under the new law, the mandatory sentence would not have come into play for fewer than 28 grams, and Mr. Dorsey would probably have received a sentence of three or four years.

The sentence ratio is thus 3.3 to 2.5, not 100.

Update:  As federalist notes in the comments, the article has subsequently been corrected.

Well, this is sounding like a broken record.*  The juvenile LWOP for murder cases, Jackson v. Hobbs and Miller v. Alabama, have been relisted yet again, for the conference of this Friday, November 4.

Last week, Bill had a post on the book by the late William Stuntz titled "The Collapse of the American Judicial System."  The book had been reviewed by Justice Stevens.

Today, Paul Cassell has a review of the book in the WSJ.  From Cassell's review, the book may be better than one would infer from its unfortunate title.

Perhaps aware that "collapse" in the book's title requires justification, Mr. Stuntz begins by reviewing some statistics. As he shows, in the 1950s, 1960s and early 1970s, amid the largest crime wave in American history, the U.S. prison population declined. Imprisonment rates plummeted to some of the lowest ever seen in the modern Western world. High-crime neighborhoods, as Mr. Stuntz puts it, were "abandoned to their fate."

*                         *                      *

Mr. Stuntz readily acknowledges what many legal scholars do not: America's current lock-'em-up philosophy has dramatically helped to reduce urban crime.... Even so, Mr. Stuntz counts these declines as a pyrrhic victory, given that violence per capita in the U.S. today remains significantly higher than in 1950.

Vermont Senators Patrick Leahy and Bernie Sanders have endorsed the concept that greater penalties for crime have a deterrent effect.  Senator Leahy's press release says (emphasis added):

"Vermonters take pride in the natural products our state produces, and I have been alarmed by the growing number of individuals and businesses claiming to sell Vermont maple syrup when they are in fact selling an inferior product that is not maple syrup at all," said Leahy.  "This is fraud, plain and simple, and it undermines a key part of Vermont's economy.  I know that hardworking syrup producers in Maine, New York and other states have been similarly hurt by this crime.  Our bill will deter this criminal conduct."

A recurring issue in debates over sentencing policy is whether greater penalties deter.  It is a basic principle of human behavior that when you increase the cost of doing something, there is some decrease in the number of people who choose to do it.  (The demand is elastic, in econospeak.)  In most areas of policy, the only dispute is over how large the effect is, not whether there is such an effect.  In criminal sentencing, though, some people will assert there is no deterrent effect at all.  It's good to know Senator Leahy doesn't buy that nonsense.

Oh, and I'm all in favor of punishing people who fraudulently mislabel food.  But why should mislabeling syrup be a greater offense than mislabeling any other food?  I can't think of a good reason.

The two cases challenging life-without-parole sentences for juvenile murderers, previously noted here, will apparently be relisted yet again.  They were on the conference list for last Friday but conspicuously absent from Monday's orders list, meaning no action was taken.  The two cases have been considered by the US Supreme Court in four conferences now, beginning last May.

What's going on here?  Often when a case is relisted multiple times, a summary reversal is in the offing.  The Court has decided to reverse the lower court without taking merits briefing or holding oral argument, and the multiple conferences are needed to approve the per curiam opinion ("by the Court," with no Justice identified as the individual author).

But that cannot be happening here.  Summary reversals are for cases where the lower court is clearly wrong based on established law.  (Ninth and Sixth Circuit habeas cases evading Congress's mandates in the Antiterrorism and Effective Death Penalty Act are particularly fertile sources of summary reversals.)  In these cases, though, the relevant Supreme Court precedents are Roper v. Simmons, expressly limited to capital punishment, and Graham v. Florida, expressly limited to nonhomicides.  By no stretch of the imagination could the state court decisions be said to be clearly wrong on established law.

The question before the Court is a simple yes or no.  Take the cases up or leave the judgments undisturbed.  Why does that require five conferences?  Stayed tuned.

Update:  A possible reason for the multiple relists (suggested by Cully Stimson at Heritage Foundation) is that there is an opinion dissenting from denial of certiorari (or possible "respecting" denial), joined by more than one Justice, and they are working out the language.  Checking the cases from last term where certiorari was denied with a dissenting or "respecting" opinion, I see that multiple relists were common in these cases, so this is a good hypothesis.

The "Incarceration Nation" movement continues to insist we have too many people behind bars.  And, indeed, we have quite a lot  --  about 2.34 million.  What "Incarceraton Nation" won't say so loudly is that imprisonment massively reduces crime, from murder to burglary and everything in between.  The statistics over twenty years are stunning, as I set forth here.  During the age of burgeoning imprisonment (roughly the last 20 years), crime in this country has dropped by between 40 and 50 percent.  That makes it probably the most successful social program of all time.

When criminals are released, they don't disappear.  They do something, and Incarceration Nation is a mite quiet about that too.  The reason is that the recidivism rate is two-thirds.  In other words, most people released from jail don't go straight.  Instead, they go straight back to crime.

Today's news brings a jarring illustration.  It seems that two very ill-tempered women McDonald's customers jumped over the counter and  started a fight with the cashier.  For obvious  reasons, they shouldn't have done that  --  and for one not so obvious reason:  The cashier, a  man, was on parole from a manslaughter conviction, and proceeded to beat the women senseless with a metal pipe.

The Incarceration Nation crowd beats the drum for a "second chance."  Let me suggest that it would be prudent to pause for a moment to ask, a second chance to do what?

Yesterday, I had the opportunity to testify before the Crime and Terrorism Subcommittee of the House Judiciary Committee.  The subject was  "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."

The central issue, as I see it, is whether we are going to continue to have luck-of-the-draw sentencing in federal court, or whether we are ready to restore the worthy goals of the Sentencing Reform Act of 1984 as Congress wrote it.  That would mean a return to mandatory, rather than advisory, guidelines.

My written testimony is here, (you have to scroll down a couple of inches to where it starts).  It largely tracks two articles I wrote for the Federal Sentencing Reporter and for Engage magazine, a publication of the Federalist Society.  The five-minute summary I gave orally yesterday follows the break.

More and more people have come to realize that what we are doing now isn't working, and invites random, and sometimes discriminatory, sentencing.  Change of some sort is coming.  In my view, the looming battle will involve whether we restore the law-oriented system we had, or whether the criminal defense bar and its allies in Congress and on the Sentencing Commission will succeed in creating a half-baked system of "presumptive" guidelines.  This will be advertised as more forceful than advisory guidelines but not as "rigid" as the mandatory version.  What it will really be  --  and what it's intended to be  --  is the advisory guidelines pig wearing lipstick. 

The heading above is the topic of a hearing in the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security.  Witnesses include US Sentencing Commission Chair Patti Saris and our own Bill Otis.

Update:  Video of the hearing is now available.  Same link.

Don Thompson reports for AP:

Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.

Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent.

Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church. Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.

"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law.

...its final step being that murdering a helpless person gets no prison time whatever.

You might think I'm exaggerating.  I wish I were.  A Canadian court concluded that, because we are obliged to "grieve for the mother"  --  who remains quite alive for party time  --  she gets no jail, not a day, for offing her kid.  Those onerous demands of motherhood, dontcha know.

Here's the story.  This was not an abortion, nor is this blog about abortion.  It also was not, for aught the story reveals, an instance of post-partum depression, even assuming that being depressed is an excuse for killing a person who can't fight back.  It was that she didn't want her son, so she killed him.  The sentence, if you want to call it that, was three years' probation.

This is the true, hideous face of what our adversaries call "compassion."

Hat tip to federalist. 

You really have to love the New York Times editorial page.

Yesterday, the Times editorialized against what it views as the promiscuous use of life without parole.  It notes that:

...use of the sentence has gone far beyond death penalty cases, even as violent crime rates have declined....In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting.

The editorial ends with this:

A fair-minded society should revisit life sentences and decide whether an offender deserves to remain in prison or be released on parole. And a fair-minded society should not sentence anyone to life without parole except as an alternative to the death penalty.

Can you spot the razzle-dazzle?