Recently in Sentencing Category

Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the federal Savings Statute, 1 USC 109, to find that the Crack Pushers Bonanza Bill Fair Sentencing Act applied retroactively for the benefit of those convicted on or after the day it was signed into law, regardless of its effective date.

What happens when we make lighter drug sentencing retroactive?  Easy  --  the druggie gets out earlier.  And what happens then? Easy again  --  he gets back in business.  Why would he do anything else when he sees that we've lost our nerve?

The Sentencing Commission, in its rush to give breaks to drug dealers, has danced and pranced around their actual recidivism rate.  In fact, although the Commission understandably seems a bit reluctant to say so out loud, the drug recidivism rate is a staggering 77%.

With that in mind, I bring you today's news in the form of a press release from the United States Attorney's Office for the Central District of Illinois, home of our friend, Mr. "We Know He'll Go Straight From Now On" Edward Dorsey (emphasis added):

The NPR Broadcast and Sentencing Reform

I want to thank NPR once more for giving me the chance to chime in about why "sentencing reform" (translation: meat-axe lowering of sentences) is a bad idea.  

As the show was presented this morning (transcript here), my principal adversaries turned out to be Judge John Gleeson of the EDNY, and Prof. (and Sentencing Commissioner) Rachel Barkow of NYU Law School.

Each made an important point, and both are dead wrong.
I am informed that NPR, on its "Morning Edition" tomorrow, December 16, will air a program about sentencing reform and, in particular, the politics surrounding that issue.  NPR was gracious enough to solicit my views, which are decidedly in the minority when stacked up against academics and Inside-the-Beltway interest groups. 

The show will be at 6 a.m., and then again at 8 a.m., EST.  It will also be available thereafter at

I've said a bit  --  actually, a whole lot  --  about this subject, see, e.g., here, so I won't belabor readers with any long preview.  I will say one thing for now, however: While I might be a lonely voice among the well-financed pro-inmate groups, I sincerely doubt that I'm lonely at all among the public.  

Consider what the answer would be if the public were asked this:  "Which comes closer to your view of the major problem with our criminal justice system  --  that we have too many people in prison for too long, or that we still have too much crime?"

Then consider one more thing.  Do you think there's a reason those self-same interest groups never commission a poll asking that question?

In Miller v. Alabama, the Supreme Court announced a new constitutional rule that murderers who are 17 years, 364 days old or less at the time of the crime cannot be sentenced to life without parole under a mandatory sentencing system, but they can receive such a sentence if the judge has discretion to consider mitigating circumstances and decides that LWOP is warranted.

Does that decision apply retroactively to require new sentencing proceedings for the under-18 murderers sentenced under mandatory statutes and whose convictions were affirmed in final judgments before the Miller decision?  The Supreme Court of Louisiana said no last year in State v. Tate, 130 So.3d 829.  Applying Teague v. Lane, 489 U.S. 288 (1989), the court said this is a procedural change, not a substantive one, and it does not qualify as a "watershed" ruling on the scale of Gideon v. Wainwright.

Last June, that court applied the Tate precedent to summarily reverse a grant of collateral relief to George Toca.  Today the U.S. Supreme Court took up Toca's case.  Unsatisfied with the way Toca's lawyer wrote the question presented, the Court rewrote them as:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case?
2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

Should I Feel Lonely?

Not to worry  --  this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and  --  most important for journalists  -- curious.  

Each asked me the same question:  Whether, as an opponent of sentencing reform, I feel lonely?

I told them I don't.
Whether President Obama has the authority to allow the effective nullification of our immigration statutes through executive order is an interesting subject, about which I may have more to say later.  But the immediate implication is clear: Obama, toward the end of his term and perhaps before, is going to put thousands of dangerous hard drug dealers back on the street.  He'll do this via executive clemency.

The clemency program has already been announced by DOJ, but until last night, there were realistic questions about how far it would reach.  Those questions are now answered.  There will be no effective limit whatever.

Nullification through "discretionary" non-enforcement of law is of debatable legality, but the clemency power is not.  It exists, and belongs to the President alone.

There was a glimmer of hope until last night that the President would be restrained in exercising this power, and would pay at least some heed to the idea that hard drug trafficking harms America.  That is over with.  When a President openly and aggressively sympathetic to lawbreakers is willing to use a power that may be there or may not, there is no question left about his willingness to use a power that actually is there.

We saw last night what Obama will do now that he has no political accountability left. But what we saw is only the beginning.

FedSoc Convention Videos

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Bill previously posted a link to the Criminal Law Practice Group's panel at the National Lawyer's Convention of the Federalist Society.  Another panel relevant to the topic of this blog was the Civil Rights Practice Group's panel on sexual assault on campus.  The speakers and video links for both panels follow the break.

The full schedule with links to all the videos is here.

A number of people have asked me to post the script of my remarks at the Federalist Society's National Convention last week.  I am happy to do so below:

Two facts about crime and sentencing dwarf everything else we have learned over the past 50 years:  When we have more prison we have less crime, and when we have less prison, we have more crime.

At its National Convention just concluded, the Federalist Society sponsored a panel discussion among conservatives on sentencing reform.  It was an excellent group featuring John Malcolm of the Heritage Foundation and Marc Levin from Right on Crime, and  --  expressing a more skeptical view  --  Judge and former Attorney General Michael Mukasey, and yours truly.  The moderator was Judge Bill Pryor of the Eleventh Circuit.

It was pretty much a packed room.  Among the audience members was none other than C&C's leading light, Kent Scheidegger.

I'm grateful to the Federalist Society for sponsoring this important give-and-take and for being included among such experts.

A tape of the event is here.  (For those interested, I start at about the 35:00 minute mark).
The FBI has finally come out with the 2013 statistics for Crime in the United States, almost two months later than last year.  The good news is that crime is down from 2012 about 5% in crimes per 100,000 population nationwide on both the violent (-5.1%) and property (-4.8%) scales.

Last month, we noted the good news that California crime was down, but we were interested in seeing the national figures for comparison to sort out national trends from possible effects of California's sentencing "realignment."  Last year's post making that comparison is here.

We look at property crime as the primary indicator, as persons convicted of violent crimes, either for the present offense or as priors, are not eligible to be shunted off to county jail under realignment.  Many property crime convicts are, and given that the jails are overcrowded in most counties they either get released early or they push out other inmates for early release, likely other property crime convicts.

California's overall property crime rate is down less than the national average, -3.8% versus -4.8%.  Auto theft is the category tracked by the FBI that is most likely to be affected by realignment, because all auto thefts in 2013 (pre-Prop. 47) were realignment-eligible felonies, while other categories are mixed eligible/ineligible or felony/misdemeanor.  Consistent with the realignment-effect hypothesis, California's improvement in auto theft lagged considerably behind the nation, -2.8% versus -4.0%.

Comparing 2010, the last full year before realignment, with 2013, property crime has dropped 7.2% in the nation while rising slightly, 0.8%, in California.  Auto theft is down 7.3% nationally but up 5.3% in California.

Academia Unhinged, Once Again

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One of the reasons I enjoy teaching is that allows me to look at the strange and wily land that exists inside the academic bubble.  To say it's disconnected from the real world doesn't even begin to catch it.

Today I noticed, on SL&P, an entry titled, "We should stop putting women in jail. For anything."

The essay, by a professor at the University of Illinois at Chicago, makes exactly the case stated in its title.  But the extent to which it goes to paint criminals as victims is remarkable even by the bizarre standards of academic life.  Sample:

What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons? punish them for crimes they committed?  To deter them? How about this juicy case?  Ripe for a stiff term of community service?

Plus, you gotta love phrases like, "the negative environment of prisons."

I took after Prof. Margareth Etienne for her Twilight Zone argument that the SCOTUS denied cert in the acquitted conduct case because it wanted a murkier case to announce a broader rule  --  notwithstanding the there's nothing like a majority for the narrower rule.  But this one might have Prof. Etienne beat.

P.S.  Someone should remind this professor that there might be an Equal Protection problem if men can get imprisoned but, categorically, women can't.

Where Is Sentencing Reform Today?

Yesterday, sentencing reform (that's the gauzy phrase that means letting criminals out earlier) was six feet under.  The reckless, judges-run-wild JSVA was so radical it hadn't even received a vote in SJC; and the SSA, which got a favorable Committee vote (13-5) under the leadership of Chariman Leahy headed straight downhill thereafter. Majority Leader Reid said he would bring it to the floor, but never did.

This was back in the first part of the year.

With last night's results, and Republicans likely to have at least 54 seats in the new Senate, sentencing "reform" and similar measures are extra dead.  Majority Leader-designate McConnell has never said a word in favor of dumbed-down sentencing, and Chairman-in-Waiting Chuck Grassley brilliantly led the opposition to the SSA and the JSVA (and successfully sponsored three new mandatory minimums).  The old House never acted on either bill, and the new House is less favorably inclined toward them than the old one.

But the basics are not in the leadership.  The basics are that the American public rightly has no desire to cash in the success stern sentencing has given us. Crime was not an issue in last night's Congressional elections, but they produced a majority of the majority in each house even more skeptical about the what-me-worry approach to sentencing than had been there before. 

To Live and Lie in L.A.

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How much jail time do you get for perjury and fraud in California today?  71 minutes.  Laura Rosenhall reports in the SacBee:

Former state Sen. Rod Wright turned himself in to Los Angeles County jail authorities Friday night to begin a 90-day sentence for his perjury and fraud conviction, but was released before ever seeing the inside of a cell.

Wright, a Democrat, turned himself in around 9:30 p.m. and was released at 10:41 p.m. after being processed and booked, said Nicole Nishida, a spokeswoman for the Los Angeles County Sheriff's Department.

She said he did not get any special treatment for being a politician.

Proposition 47

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California's wine country is not exactly conservative territory, to put it mildly.  Napa County went 2-1 for Obama over Romney.  But the St. Helena Star has a scathing editorial on the "defining criminality down" initiative, Proposition 47:

Carrying a stolen handgun. Possession of a date-rape drug. Carrying stolen credit cards. Financial elder abuse.

If these sound like minor, misdemeanor-level offenses to you, then you'll be interested in voting for Proposition 47.

But if they strike you as being the serious felonies that they are, then vote no on Prop. 47.

In an Orwellian touch, supporters -- who include billionaire liberal financier George Soros -- have dubbed the atrociously written proposition the "Safe Neighborhoods and Schools Act," based on the notion that the money saved by not incarcerating so-called "non-serious" criminals will be used for positive social programs.

The problem, as Napa County District Attorney Gary Lieberstein cogently explained to the Star's editorial board, is the proposition's definition of "non-serious." It's hard to imagine a rational person who would consider the drug and property crimes mentioned above to be "non-serious," but that's exactly how they would be treated if Prop. 47 passes.
However, the Field Poll indicates it is highly likely to pass.

FedSoc Event on Prop. 47

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The Federalist Society has a debate Monday evening in San Francisco on the "defining criminality down" ballot measure, Proposition 47.  SF Public Defender Jeff Adachi will speak for the measure, and San Mateo DA Steve Wagstaffe will speak against it.  Announcement is here.

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