Recently in Sentencing Category

When Early Release Gets a Pass

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Generally, early release from prison is a bad idea.  The system is already laced with so much leniency that more is seldom justified.  The eye-opening Washington Post series, "Second Chance City" gives a glimpse of what leniency actually does:  It promotes crime and assures more crime victims.  Some of them will wind up beaten, raped or dead, or all three.

America is not over-incarcerated.  It is, if anything, under-incarcerated, as its astounding recidivism rates and burgeoning murder rate since 2014 show.

Still, I do not wish to be a hard-hearted man.  Even for a lifelong thug, a man so bad even his son testified against him and now has to be hidden in the federal witness protection program, there can be a case for being released before completing all eight years of his sentence.

The New York Daily News has the story.
A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

She has an opinion piece in today's Washington Post.  I may go through more of it later; for now, I just want to look at the first substantive paragraph, which is regrettably representative of the deceit running through the entire piece.  Ms. Yates begins her analysis with this:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Where to start?
Kent recently noted the numerous and flagrant fabrications by an organization supporting a version of California "sentencing reform."  In the News Scan entry just before his, CJLF's staff discussed the legal settlement Rolling Stone magazine had been forced to cough up as a result of its wonderfully detailed fabrication of a rape at the University of Virginia. The made-up rapists were made-up white males.

That same day, I read a short introduction to a new book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."  Its first paragraph asserts:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.

A better example of mendacity displacing argument would be hard to conceive.
Today's News Scan notes a bill in the California Legislature to repeal what amounts to a mandatory minimum for use of a gun to commit a crime.  Last month when this bill was heard in the Senate Public Safety Committee, Michele Hanisee and Eric Siddall wrote this post for the L.A. Association of Deputy District Attorneys about the testimony in support of the bill.

Turns out the "facts" of the "poster child" case are fabricated.  Imagine that.

The Hard Realities of Hard Time

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In the City Journal, Professor Barry Latzer reviews Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff.

[It] is probably the best book on so-called mass incarceration to date. A professor of law at Fordham, Pfaff doesn't cherry-pick data to support some a priori theory; staying empirically grounded, he grapples directly with the data--an approach that makes his argument for reducing imprisonment a very tough sell. If violent crime and other serious offenses are the primary reasons for incarceration, then why should we reduce imprisonment?

The author's main point is that the usual explanations for the rise in imprisonment--the "standard story," as he calls it--are not only wrong but also counterproductive to de-incarceration efforts. The standard story has three components: the war on drugs, long prison sentences, and the growth of private prisons. Each of the three, Pfaff demonstrates, is a secondary contributor at best.
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The Washington Post today carries the story of a local man (the former mayor of Fairfax City) who got a sentence of zero for distributing one the most dangerous drugs out there, methamphetamine.

This is not a young person, not a minority, not poor, not uneducated  --  and it's not pot and not simple possession. This is a grown man with a lot of advantages who is basically getting a walk (he did get time served, a little less than three months, plus "community service" (an especially sick joke since he was already a public servant at the time of his arrest)).

He was also, according to the story, unapologetic, and instead portrayed himself as the "victim" of addiction.  I was unable to find, however, any evidence of this in the news account beyond his self-serving claims  --  not that it would excuse either him or the clueless judge even if it were true.

Our country is suffering from crisis-level overdose deaths from hard drugs, of which meth is one of the worst.  As much as the Stanford rape abomination,,  this case proves that judges need the discipline and limits of mandatory minimum sentencing.

Questions Asked Now, But Ignored Then

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Four senators closely identified with the "sentencing reform" movement have written the Attorney General, questioning his recent decision ordinarily to require federal prosecutors to charge defendants with the most serious readily provable offense.The letter is reproduced here, in the press release of one of its signatories, Sen. Mike Lee (R-UT).

I might have a more detailed response to this letter in a bit, but for right now, I have some questions of my own.

1.  Why should prosecutors, whose main duty is to enforce the laws as Congress wrote them, charge the defendant with anything other than what he actually did? Isn't honesty the paramount value we seek in public servants?

2.  Why do pro-"reform" senators want the executive branch to, in effect, legislate the "reform" agenda for them through massaged charging policies?  (Hint:  Because they can't get it through a wised-up Congress, so they want a work-around.  Whether the Constitution provides for executive branch "work-arounds" of Congress is not among the questions in which they seem interested).

3.  Why is it proper for prosecutors intentionally to withhold highly relevant information from the indictment (such as the amount of drugs the defendant is peddling)?  Don't we value prosecutors who are fully candid with the court from the getgo?

4.  Why is it wrong to have to explain in writing the reasons for seeking exceptions in favor of leniency?  Isn't more reflection, accountability and transparency what we want from prosecutors?

5.  Why wasn't this letter written to Attorney General Holder, who used an identical charging policy for three-quarters of his tenure heading the Justice Department?
The reason the federal judicial branch is not politically accountable is that it is placed by the Constitution outside politics.  Every one of the federal district court judges I've encountered over 40 years in practice understands this.  No matter what their political beliefs, they have conducted themselves with the circumspection and restraint their power assumes, and requires.

As is clear by now, I have never encountered US District Judge Mark Bennett of Iowa, formerly  --  and, so it would seem, presently  --  a powerhouse in the ACLU.

Judge Bennett recently gave a long speech to (at least) a CNN audience on how Congress is a bunch of callous ciphers.  He intended to make the case against Congressionally-enacted mandatory minimum sentences.  Instead, by both the substance of his remarks and his indiscipline in making them, he showed why they're needed.

Why Sentencing Reform Tanked

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The estimable Doug Berman at Sentencing Law and Policy has this entry about what is to him, and others who sought the mass sentencing reductions they call "sentencing reform," bad news.

The news is that their proposals are still on the ocean floor.

The reason for this fact is, however, different from the one put forward in the article Doug cites.
Nicole Hong reports for the WSJ:

A federal appeals court Wednesday affirmed the conviction and life sentence of Ross Ulbricht, the mastermind behind Silk Road, an online drug bazaar that was once described by the government as the most sophisticated criminal marketplace on the internet.

In a 139-page ruling, a three-judge panel of the Second U.S. Circuit Court of Appeals in Manhattan upheld a lower court's decision to sentence Mr. Ulbricht, now 33 years old, to life in prison. A federal jury found him guilty in 2015 of seven criminal charges related to Silk Road, including conspiracies to sell drugs and launder money.

A Change in the Weather

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For years, advocates of sentencing "reform"  --  the misleading name given proposals for mass sentencing reduction and expanded judicial license  --  have been playing offense. They've played it unsuccessfully but enthusiastically, as they saw their proposals (the Justice Safety Valve Act, the Smarter Sentencing Act, and the Sentencing Reform and Corrections Act) meet an ignominious fate, failing even to reach the floor of either chamber notwithstanding their backing by some prominent Republicans, including, notably, Senate Deputy Majority Leader John Cornyn of Texas.

They have continued to pretend that sentencing "reform" is on the upswing  --  until, that is, reality popped up.  Seeing the startling rise in violent crime, now in its 30th month, and the election of Donald Trump on a "Make America Safe Again" platform, some in Congress have now taken a different path, as noted in this article, "GOP pushes new minimum sentencing laws."  The bill's primary sponsor is none other than Sen. Cornyn.

We welcome Sen. Cornyn to the side of this debate that favors protecting the safety of normal people to the granting of favors to, in large part, drug pushers who made their own choices.

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.

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