Recently in Sentencing Category

The Tea Party Patriots

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Last night, I had the opportunity to talk about proposed sentencing reform legislation in a webinar broadcast by the Tea Party Patriots. (Next month, I'll do so with a politically quite different group, the American Constitution Society National Convention).

The Patriots asked if I would post my remarks, and I am happy to do so.  I'll start out by saying here what I said in the webinar: There are some good people supporting the bill, like Michael Mukasey and Sen. Mike Lee, but also some good ones opposing it, like Sens. Jeff Sessions, Tom Cotton and David Perdue.  Sen. Ted Cruz likewise opposes bill, although he voted for a somewhat similar bill in the last Congress.  And Sen. Orin Hatch opposes the bill at least until it is re-written to include mens rea reform  --  a dim prospect given the Administration's adamant opposition. 

What's different is that, while no extreme leftist supports preserving our present, successful system  --  a system that has helped massively reduce crime  --  many support going back to what President Reagan called the failed policies of the past: Feckless faith in untethered judicial discretion, and a misguided belief in the efficacy of rehabilitation. Among those supporting a return to the failed ideas (and, as night follows day, the failed results) of the past are George Soros, the ACLU, the SEIU, and of course the entire Obama Administration.

Conservatives in the Tea Party might want to think twice before joining forces with that group.
Have tough sentencing laws harmed black Americans?  Well, without them, an estimated 129,000 blacks would be dead today, says Heather Mac Donald of the Manhattan Institute.  Speaking last week on 'The O'Reilly Factor,' Mac Donald discussed violent crime and incarceration, where she answered the charge of the media and the liberal left that sentencing laws are racist when, in fact, tough sentencing laws have resulted in historically low crime rates that have primarily benefited law-abiding blacks in inner cities.  Watch the segment here.

A Second Chance to Do What?

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Sentencing "reform" advocates insist that we should go lighter on sentencing in the name of the distinctly American virtue of "giving people a second chance."

The phrase itself reveals the confusion posing as thought that lies behind this movement.  A person has a "second chance" whether his sentence is 78 months or 96 months.  He has a "second chance" whether it's 16 years or 18 years.  The question in either case is not whether he'll get a "second chance" under sentencing reform he would otherwise miss; the question is what he does with it, reform or not.

This story gives part of the answer.  When I read it, I asked the same question I frequently do:  When early release goes wrong, as it so often does, who pays the price?  The sentencing reform crowd at their posh, self-congratulatory, "we-are-so-humane" parties in Manhattan and Hollywood, or the next unsuspecting victim they helped set up?

A convicted murderer in Michigan, who was paroled early for good behavior after serving 19 years in jail, reportedly killed again less than one year after his release.

Malcolm B. Benson, 50, was serving a 20- to 40-year prison sentence as part of a plea deal he made in 1995, MLive reports. He was initially charged with first-degree murder but the plea deal reduced the charge to second-degree murder. He was also found guilty of felony use of a firearm, which added an additional two years to his sentence.

Benson was paroled on Jan. 13, 2015, after spending just over 19 years of his minimum 22-year sentence in prison.

Like Wendell Callahan's victims, Benson's victim would be alive today if he had been required to serve even the minimum of his term.


The U.S. Supreme Court took up once again the issue of the mental element of crime, known in legal Latin as mens reaShaw v. United States, No. 15-5991, is a case from the Ninth Circuit.  The summary of the Ninth's opinion is:

The panel affirmed a conviction for a scheme to defraud a financial institution, in violation of 18 U.S.C. § 1344(1), in a case in which the defendant used PayPal to convince banks that he was a particular bank customer and thus had authority to transfer money out of that customer's bank accounts and into a PayPal account in the defendant's control.

The panel held that for a violation of § 1344(1), the government need not prove that the defendant intended the bank to be the principal financial victim of the fraud, and that the district court therefore correctly refused jury instructions that included such a requirement.
The Question Presented, as phrased by counsel for Shaw, is:

Whether subsection (1)'s "scheme to defraud a financial institution" requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner Lawrence Shaw argued here.
The sentencing appeal case is Manrique v. United States, No. 15-7250.  The unpublished opinion of the Eleventh Circuit begins:

Why Is the SRCA Sinking in the Ooze?

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The Senate's bill for mass reduction of federal felony sentences (called sentencing "reform" to keep it opaque) passed out of the Judiciary Committee months ago by a lopsided 15-5 vote.  But it's been downhill ever since.

Why?  Several reasons, I think.

1.  Two of the most fearsome crimes, murder and heroin trafficking, are going through the roof from coast to coast.
2.  The Sentencing Commission disclosed that nearly half of federal offenders recidivate, most in their first or second years out.
3. The Wendell Callahan sentencing reduction/child murder scandal has displayed the potentially grotesque costs of early release.
4.  It has finally dawned on lawmakers that those who'll pay the price of more crime are minorities and the poor.
5.  The proposal for retroactive reductions, meaning a boatload of additional costly litigation, is unpopular in the House.

And there is one more reason, highlighted by today's story in the Washington Examiner:  Democrats are refusing to go along with the one element of true criminal justice reform upon which the huge majority of sensible people would agree  --  that no one should be held criminally liable unless he knew or had some fair reason to know that what he was doing was wrong.

Recidivism, with a Twist

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When I discuss America's sky-high recidivism rate (49% for federal offenders and 77% for state offenders), I sometimes encounter the objection that not all criminals return to the crime for which they went to prison.  This is true.  Not infrequently, they branch out.  Hence today's story:

A Grand Rapids man released from prison last summer for a November 1998 murder pleaded guilty Tuesday to a federal cocaine trafficking charge following his arrest in Southeast Grand Rapids with more than a pound of cocaine.

Keith Vonta Hopskin appeared in U.S. District Court in Grand Rapids where he admitted to having at least a pound of cocaine he planned to distribute....

Hopskin told police he had been receiving several ounces of cocaine about two times a month since July, court records show. He was released from prison July 5 on a second-degree murder conviction.

The 38-year-old, who has a prior federal drug conviction, told investigators he paid $10,500 for the cocaine and was able to sell three ounces before police stepped in.

Now just to head off the coming furrowed brows, this is not an argument that we should send people to prison forever; the first principle of sentencing remains just punishment.  It is, however, an argument against the delusion that, when we release criminals, we can expect them to become productive members of society.  It is not impossible that that will happen, but the decided likelihood is, instead, that the Hopskin story happens.  We need to bear this in mind when we told how much society will "benefit" from shorter sentences.

Was Prince Killed By Illegal Drugs?

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The iconic and eclectic musician Prince (his given first name was indeed "Prince") died yesterday.  There are already strong indications he was killed by heroin or some illegally obtained opioid.  The NY Daily News reports:

Prince received drug overdose treatment six days before his death during his plane's emergency landing in rural Illinois, according to a report.

Medical examiners are investigating the cause of the 57-year-old legendary musician's Thursday death at his Minnesota estate. But doctors in Moline, Ill., only 48 minutes from his home, gave Prince a so-called "save shot" during the emergency stop last Friday, TMZ reported.

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The "save shots" usually help combat opiates, such as heroin and narcotic painkillers, in the bloodstream. Doctors and paramedics have used the injectable medication, called naloxone, for years, according to WebMD.


As this tragic incident certainly seems to illustrate, "save" shots are not the answer as long as the next patch of drugs is available.  We cannot play just defense against heroin and similar drugs; it just doesn't work.  We have to play offense.

Question:  Do we go on offense against illegal drugs by enacting softer sentences for their dealers, as the SRCA would allow?  Answer:  You don't need an answer.  It answers itself.  



Prop 47 is "broken at every level"

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The City Attorney for Los Angeles is Mike Feuer.  The office he holds is non-partisan, but Feuer himself is an active, liberal Democrat, and a leader, with Cyrus Vance of Manhattan, of a group of prosecutors opposing what they call "gun violence."

The LA Downtown News reports on what Mr. Feuer has to say about Prop 47 eighteen months after it became effective:

When California voters approved Proposition 47 in November 2014, it marked a new era of crime and punishment in the state.

It also led to a system that, so far, has utterly failed, City Attorney Mike Feuer told a Downtown Los Angeles audience yesterday.

In the effort to reduce the state prison population, Prop. 47 downgraded a half dozen non-violent felonies, such as certain kinds of drug possession and petty theft, to misdemeanors, meaning offenders receive shorter sentences.

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"Almost no one has gotten anything close to meaningful drug rehabilitation, and we've prosecuted thousands of these cases," Feuer said Monday at a luncheon at the Downtown Palm hosted by the Los Angeles Current Affairs Forum. "The system is broken at every level."

The academics who pushed Prop 47 with a boatload of deceit about what it would do are still in denial, making it all the more refreshing to hear one official, and a quite liberal one, tell the truth.

America's Under-Incarceration Problem

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The pro-criminal narrative being pushed by such luminaries as Al Sharpton, George Soros and Sen. Mike Lee lectures us that America has too many people in prison for too long.

Paul Mirengoff at Powerline begs to differ:  In more than a few cases, we don't have them in for long enough.

I've argued that America has an under-incarceration problem. Criminals whose records clearly show they should be in jail have, instead, been released and are on the streets committing violent crimes, including some very bloody, high-profile ones.

Here's another example. Samuel Harviley, paroled from prison less than three months ago, is being held without bond for shooting an off-duty Chicago police officer outside his home earlier this week. In withholding bond, the local judge said that Harviley "poses an extreme danger to the rest of us out in public."

Indeed, he does. And he did three months ago when he was released early from jail.

Harviley was paroled from state prison on New Year's Eve after serving four years of a nine-year sentence for a 2011 carjacking, an inherently dangerous crime. A nine year sentence is meaningless if it can be completed in four. Harviley's early release always posed a danger to the community. Now, it has resulted in the shooting of a police officer.

But hey, look, as the anonymous Republican Senate aide said, we can't get everything right.  Boys will be boys!  If police officers get shot, there's really nothing to see, folks.  Move along.
Gary Fields has this strange article in the WSJ:

Hillary Clinton and Bernie Sanders, embroiled in a contentious New York primary, have been calling for changes to a criminal-justice system they say unfairly targets minorities. But both supported the landmark 1994 law that critics say helped foster the system they now attack.
Until relatively recently, there was general agreement that getting tough did contribute to the crime drop, and the debate was over how much.   A book edited by Alfred Blumstein, pretty much the guru of the other side, concluded that tough sentencing accounted for "only" a quarter of the drop.  One quarter because of a single factor is huge, and considering the source I think we can take that as a lower bound of the range of possibilities.

More recently, though, the propagandists of the other side have succeeded in shifting the conversation so much that many people blithely assume that tough sentencing did not work.  This article does briefly cite Newt Gingrich making a mild defense of the law, but overall it reflects the attitude that the get-tough approach was a terrible mistake.  It was not.  The online comments are largely from the perspective that the article is short on.  I hope the reporter reads them.

As for the candidates, they should stand up and proudly say that they did the right thing supporting tough-on-crime policies in the 90s and that we must not forget and repeat the mistakes of the preceding decades.  I won't hold my breath, though.

Is Sentencing Reform Working in the States?

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We often hear that Congress should enact sentencing "reform" because it has been shown to work in the states. The example most frequently given is Texas, which is said to be enjoying lower crime even as it thins out its prison population.

I am not sufficiently familiar with the Lone Star State to say whether crime is in fact decreasing; I will assume for purposes of this post that it has been, at least in the years for which statistics are presently available.  The problem is that this would hardly prove that sentencing reform helps bring down crime.

As I've often noted, numerous factors have helped suppress crime  -- for example, more police and more pro-active policing.  Increased use of incarceration accounts for roughly a quarter of the crime decrease over the past generation.  Thus, as long as a state persists with its other crime-suppressing measures, crime is likely to continue to decrease, but at a slower rate as sentencing "reformed" inmates hit the streets earlier.  That is what has been happening in Texas.

But if the pro-criminal effects of massively reduced sentences become too strong, it's possible that, at some point, they will overwhelm the other three-quarters of the factors helping to bring down crime.

Those urging complacency on account of the Texas experience thus might want to pay particular attention to this alarming story from the state's largest city.
It's no news to readers of this blog that sentencing reform will create costs its backers prefer to conceal.  The most prominent recent example is the Wendell Callahan case.  Callahan, a crack cocaine dealer, was given retroactive benefit of a sentencing reductions bill Congress passed in 2010.  He went on to commit triple murder. This is notwithstanding that we were loudly promised then  --  as we are now  --  that the release of such inmates would be limited to "low level, non-violent" offenders.

This is simply false.  Some of the leading thinkers in the "reform" movement have openly acknowledged that, to achieve any significant reduction in the prison population, sentence reduction cannot be limited to merely the non-violent offender. Thus their actual commitment to today's limiting promise is suspect from the getgo; their ideology all but requires them to bend the rules on the definition of "non-violent."

Even on the tenuous assumption that "reformers" are sincere in their promise, however, they can't and won't deliver on it.  They know  --  indeed, in closely related contexts, they insist  --  that the system is rife with error.  As they quite correctly maintain, error is inevitable in every human enterprise.  Mistakes are going to be made. Callahan was not the first example and he won't be the last.  When asked specifically how many similar grotesque mistakes we can expect (or should tolerate), however, "reformers" simply refuse to answer.

In other words, they expect us to buy their package without ever telling us either exactly what's inside or what it's going to cost. 

Does that sound like a good deal to you?

It doesn't to the New York Times, which has twisted itself into a pretzel to keep the Callahan case covered up.

The New SRCA, Even Worse Than the Old One

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A friend of mine familiar with the changes proposed for the original draft of the SRCA (changes that will be rolled out today) tells me that, not only does the new version fail to address the Wendell Callahan problem (now known as the "Wullie Horton" problem), it creates an even bigger one, called the "Scarface" problem.

Wonderful!  No wonder this patchwork disaster is sliding into the ooze.

My friend notes:

International maritime drug smugglers are now evidently also a species of "low-level, non-violent drug offender;" Query: if you are smuggling gigantic amounts of drugs in a boat, in what sense are you "low-level"? - a fact that has thus far gone totally unnoticed (or willfully ignored) by everyone talking about the "new and improved bill." 

A more detailed analysis follows the break.

The Blase' Racism of Sentencing Reform

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An unnamed Republican Senate aide is quoted as follows in responding to the Wendell Callahan sentencing reform scandal, in which two little African American girls and their mother were knifed to death by a federal inmate given early release under a 2010 sentencing reform law:

You're never going to eliminate the Willie Horton type of situation, the political ads aside, of somebody coming out [of prison] and committing a crime. It's the nature of the human being. You're never going to have 100 percent certainty, that's never going to happen. But it would be a shame to just not ever do any sentencing reform, any criminal justice reform, because of that.

It is difficult to tell which is worse in that remark  --  its dismissive racism or its blunderbuss stupidity.
The President, the Attorney General, and a great deal of the political establishment in Washington vocally back legislation to provide mass, and retroactive, sentencing reduction for federal felons.  Drug traffickers lead the list of intended beneficiaries. The establishment politicians call their proposed reductions sentencing "reform," in a somewhat half-hearted attempt to disguise what they're actually up to.  

It's simply beyond sensible argument that such "reform" would mean more crime faster, the federal recidivism rate being at about 50%.  "Reformers" like to fuzz over this fact, but the numbers don't lie.  "Reformers" think that paying the price in increased crime (which they either deny, minimize or garble) is worth it because America has just gone overboard with incarceration, or should adopt a medical model of crime, or is a racist pigsty, or some mix of the three.  Some also believe, or say they believe, that prison costs too much, although none has yet taken my bet the the DOJ budget will increase whether this legislation passes or not.  At some level, they know that "reform" will not save the taxpayers a single dime; the money will just get spent on different DOJ projects.

Career Assistant US Attorneys  --  the non-political, line prosecutors who have to deal with reality rather than indulge Al Sharpton's ideological fantasies  --  are sounding the alarm.  It take guts to do so.  No one wants to be on the outs with the boss, particularly when the boss is the Attorney General.

No AUSA has been more outspoken, or more courageous, than the head of the National Association of Assistant US Attorneys, Steve Cook.  Although I have never met Steve, I am proud to have corresponded with him and to have benefited often from his knowledge.

Congressional Quarterly (link regrettably unavailable) has taken grudging note of Steve's courage and impact.  I reproduce its April 4 article about him after the break.

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