Recently in Sentencing Category

Battling It Out on Sentencing Reform

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In my view, the battle over federal sentencing "reform" for this session of Congress has ended in victory for those of us wanting to preserve the gains the county has made in suppressing crime.

But since almost nothing gets permanently settled in this town, my adversaries will be back.  One of the best of them is Mark Holden, General Counsel of Koch Industries.  His op-ed in the Salt Lake Tribune (lauding, among others, Sen. Mike Lee) is here.

My response was printed last Friday in the Deseret News, and can be found here.

Mark and I have more areas of agreement than disagreement, however, and I look forward to working with him and Koch Industries for significant mens rea reform, to insure that ordinary businessmen and landowners do not get sent to prison for behavior a normal person would not know is wrong, much less criminal.
William Horobin and Inti Landauro report for the WSJ:

The man who killed 84 people in Nice on Bastille Day appeared to be planning the attack since last year and had the help of several people, France's top antiterror prosecutor said Thursday.

Investigative magistrates on Thursday were interrogating five people suspected of providing support to 31-year-old Mohamed Lahouaiej Bouhlel, said Paris Prosecutor Fran├žois Molins, who laid out a timeline suggesting the attacker and his suspected accomplices had embraced Islamic extremism as early as the Charlie Hebdo attack in January of last year.

The details disclosed by Mr. Molins threaten to fuel public anger at French President Fran├žois Hollande and his ministers, who have spent days defending their handling of the terror attack.

The new evidence appears to contradict claims made by top French officials immediately after the rampage that Lahouaiej Bouhlel was radicalized in a matter of weeks, leaving security services little chance of stopping him when he plowed through throngs of revelers on Bastille Day with a 21-ton truck.

Instead, Mr. Molins suggested Lahouaiej Bouhlel may have conducted surveillance on his target a year before he acted and communicated more than a thousand times with suspected accomplices.
Accomplices who share the specific intent are just as culpable as the triggerman.  Presumably some of them will be caught.  What will France do then?   Will they do like Norway with Anders Breivik and sentence them to less than four months in prison per life taken?

Are you really sure you don't want capital punishment, mes amis?

The Sentencing Reform Movement, Distilled

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Atlantic magazine features an article in which David Frum interviews Steve Teles, a liberal but thoughtful professor of political science at Johns Hopkins.  The article encapsulates Teles's new book (with co-author David Dagan) Prison Break, in which Prof. Teles describes "why conservatives have turned against mass incarceration."

It's not mass incarceration (zero point seven percent of the population is imprisoned), and conservatives haven't turned against it (although some prominent and/or libertarian-leaning and/or Beltway-centered conservatives do support sentencing "reform"). Still,the article is worth your time for its delicious insights about how the sentencing reform movement is organized and financed.  But the most revealing paragraph, I thought, is this one:

The openness of conservatives to rethinking criminal justice is, to a significant degree, a function of the declining salience of the issue. Voters since the late 1990s simply haven't cared about it as much, as the great crime decline started to register. Voters will still tell you in polls that they think that our criminal laws aren't severe enough, but they also don't care about it as much. And that lack of strong concern creates space for politicians to move without fear of reprisal, and to be more entrepreneurial in their framing of the issue.

That has a bit of academic lingo, so let me try to distill it:  "Now that policies of increased incarceration have helped us succeed in reducing crime, we can relax and go back to failure."

Trump Makes a Sound Choice

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Donald Trump has some problems from my point of view, but deserves credit for his choice of Indiana Gov. Mike Pence as his running mate.

Apparently the two finalists were Pence and Newt Gingrich.  The latter has been a ringleader in the sentencing reduction (usually called sentencing "reform") movement. Pence,  by contrast, knows the value of mandatory minimums and  --  so the Indiana Lawyer reports  --  signed a bill four months ago to make some of them even tougher:

Gov. Mike Pence toughened sentences for drug dealers Monday, signing legislation that would mandate repeat offenders serve at least 10 years if their crime involves methamphetamine or heroin.

The measure, House Enrolled Act 1235, was included in a bill-signing ceremony the governor held this morning at Hope Academy in Indianapolis, a high school for students recovering from drug and alcohol addiction.

"...I believe that any strategy to address drug abuse must start with enforcement. We need to make it clear that Indiana will not tolerate the actions of criminals, and I'm pleased to sign into law HEA 1235 to increase penalties on drug dealers."

It will be a long day in December before we hear that from Hillary.  In addition, any candidate who gets this kind of headline from a liberal publication has to have a lot going for him:  "Gov. Mike Pence Makes Certain Indiana Stays Stupid on Crime."

Gender in Risk Assessment

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The Wisconsin Supreme Court held yesterday that the use of risk assessment measures in sentencing decisions does not violate due process as long as certain precautions are undertaken.  The case involves the use of COMPAS, a common measure used in many states to help guide sentencing decisions. 

There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism.   As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed.    The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.  

Q: Is America Overincarcerated?

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A:  Absolutely not.  The people who get sent to prison earn their way there, and keeping them segregated from civil society for longer terms has contributed significantly to the enormous (but now jeopardized) drop in crime over the last generation.

The Manhattan Institute spells it out with data as effectively as I have ever seen.  Its  tract begins:

It is not easy to land in an American prison. Most convicted felons never reach prison, and those who do are typically repeat offenders guilty of the most serious violent and property crimes. The system sends very few people to prison for simple drug possession. Drug-related convictions do not disproportionately harm the black community. To the contrary, if all drug offenders were released tomorrow, there would be no change in the black share of prisoners.

We do know, however, that putting the most dangerous criminals behind bars reduces victimization for crime-plagued communities. As the incarceration rate for violent felons has increased, crime rates have plunged, saving countless lives and improving public safety--especially in minority neighborhoods. California, which is experimenting with "deincarceration," is already seeing years of progress on public safety reversed in a matter of months.
The Yolo County D.A.'s Office recently launched a website that is designed to inform the public about "non-violent second strikers" who have been granted early release from state prison.

Yolo County District Attorney Jeff Reisig stated that "Most citizens have no idea that serious criminals are being released from prison early under these new state programs.  Many of these individuals have very violent criminal histories and continue to pose a danger to our communities.  Our new website link is designed to inform the public and improve the transparency of the state's early release decisions."

A press release about California's early release problem and the new website is here.

Big thumbs up to District Attorney Reisig and the Yolo County D.A.'s Office!


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Peter Holley reports for the Washington Post that "Day-care worker who raped toddlers on video actually a 'charming young lady,' lawyer says"...Really?  A charming young lady?  She videotaped herself sexually assaulting multiple babies and toddlers, then sent the footage to her convicted Tier II Sex Offender boyfriend.  Her boyfriend was on probation for pandering obscenity involving a minor in 2011.  Heather Koon pleaded guilty to four counts of rape, kidnapping, pandering obscenity involving a minor, plus other crimes involving illegal use of a minor in nudity-oriented material.  However, she pleaded not guilty to specifications labeling her a sexual violent predator.  That will be determined at a future hearing.  If so designated, she will receive a mandatory life sentence without parole.

Her attorney said:  "It's very unusual to have a female charged as a sexual predator - almost unheard of...Psychologists tend to think she's more along the lines of a battered woman.  She was being influenced by her boyfriend."

She met a guy, who happened to be a convicted sex offender on probation for offenses involving a minor.  Knowing this, she still chose to date him.  As a day-care worker working for a licensed day-care facility, she was trusted by parents to take care of their young children, not prey on them or sexually exploit them.  She made the choice to sexually assault those children at the day care facility.  She made the choice to videotape the acts.  And she made the choice to send the footage to another sex offender. She is not a "battered woman".  She is a woman who made very wrong choices.  I'm sure she is "charming", but so was Ted Bundy.  She raped children.  She involved herself with a convicted sex offender.  Like her boyfriend, she should also be held responsible for her bad choices.


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Backers of mass sentencing reduction for hard drug traffickers and other federal felons have, for any practical purpose, conceded defeat.

RealClearPolitics reports:

Sen. Dick Durbin of Illinois, the second-ranking Democrat in the chamber and an author of the justice reform bill, said Republicans had offered him "little to no hope" that the legislation would move forward. He called it a "missed opportunity."

Texas Sen. John Cornyn, the Republican whip and a lead sponsor of the measure, said he'd hoped the House would move more quickly and provide momentum in the Senate, but "apparently we ran out of time."

With all respect to Sen. Cornyn, the main problem was not time.  The problem was that the bill was a bad idea from the start.  Backers refused to disclose what the total cost of the (all-but-certain) recidivist crime would be  --  that is, how many more Wendell Callahan child murder episodes we should expect.  They refused to budge on mens rea reform. They refused to acknowledge the tens of thousands of felons who will already be getting early release courtesy of retroactive sentencing guidelines. They refused to understand when the ground shifted, failing to grasp that months of increases in violent crime and heroin overdose deaths have shaken the enabling complacency of last year.


Who are the heroes in the fight to preserve our safety?  The honor roll begins with Sen. Jeff Sessions, whose valor was a beacon from the start.  It includes Sens. Tom Cotton  --  a brilliant, strong, young voice  --  David Perdue, Orrin Hatch, David Vitter, and Ted Cruz.  Behind them are incredible women and men whose diligence has been a lesson and a model for me.

Congratulations and gratitude to every one. 

All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
Hat tip to Prof. Doug Berman for posting this entry, noting and linking a Reuters news story.  It seems that the scandalous Stanford rape "sentence" has awoken the very liberal California state legislature to the need for  --  ready now?  --  mandatory minimum sentencing.

I don't know whether it's more unfortunate or more revealing that it takes a politically incorrect crime to jar these people into action.  My own view (for the last few decades) has been that judges, like other people, operate better with rules than without.

There are numerous crimes so degrading, damaging and/or vicious that no combination of mitigating factors warrants a degree of leniency that would shock a normal person.  That is where the legislature needs to step up.  Giving judges a considerable degree of discretion in the great run of cases  --  which we should  -- does not require or even suggest giving them 100% discretion 100% of the time.

What is "violent" crime?

Here is a good example of an article that I largely agree with for its main point, even though I come from an opposite viewpoint on the underlying policy question.   The title above is the first sentence of Benjamin Levin's article in Slate, while the actual headline and subhead is "less pithy," as Doug Berman points out.  "It's time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system. -- The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment."

As with many other terms, "violent" and "non-violent" are easy enough to distinguish in their core territories (e.g. murder v. tax evasion), but there is a gray zone.

Burglary is generally classified as a "property" crime rather than a violent one.  That is where you will find the numbers tallied in the FBI's Uniform Crime Reports.  Yet in terms of its effects on victims, burglary of a home is a crime of psychological violence.  The emotional reaction to having one's inner sanctum invaded is often far worse than any tangible property loss.  Many victims make an explicit analogy to sexual assault in terms of their reaction.

Repeat Criminal Convicted, Again

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In posts here and here, I discussed a Washington Post story detailing how repeated "second chances," all borne from the false promises of rehabilitation and redemption that underlie the sentencing reform movement, resulted in a brutal rape.  At the time of my entries, the rape had not been proved in court, and the defense lawyer indignantly and thunderously denied her client's involvement.

A jury has now found that defense counsel's story was so much baloney.  That by itself is hardly worth a new entry; made-up stories are the inventory of criminal defense.

What's worth a new entry is a reminder of how utterly preventable this rape was  --  if our system suffered less from willful and ideologically driven blindness about the criminal instincts of the defendants it's dealing with. 
Yesterday the John and Ken Show, the leading talk radio show in the L.A. area, had this segment on Gov. Jerry Brown's Jailbreak Initiative with yours truly.
I have previously argued that Judge Aaron Persky, who imposed a six-month jail sentence on the man who grossly violated an inebriated woman, should be recalled.

I advanced this position notwithstanding the opinion of the defendant's father that all his son did was "20 minutes of action"  --  a phrase that will live in infamy if I have anything to say about it, not because it's appalling, but because it's revealing.  In 40 years of practicing law, I have never seen the defense attitude toward victims put more honestly or more succinctly. 

The court's lenient sentence, and what should become of Judge Persky, is the talk of the legal blogosphere, see, e.g., Doug Berman's entry here, and is today's lead topic in the New York Times "Room for Debate."  The NYT asked three legal scholars to chime in, and me too.  The debate presents as diverse and thoughtful a discussion as I have seen.

I have criticized the NYT more than once, and will do so again, but I thank it for seeking a conservative viewpoint and allowing me to speak my piece.

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