Recently in Sentencing Category

The Victims of "Smart Sentencing"

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Over most of the past decade liberal groups, which originally opposed and have for years sought to eliminate the so-called  "harsh" habitual criminal sentencing policies adopted in the 80s and 90s, have launched collaborative efforts with libertarians and some Republicans to encourage alternative sentencing.  "Right on Crime","Smart on Crime" and "Smart Sentencing" advocates have been successful at changing policies in many parts of the country to reduce sentences for criminals categorized as non-violent, and placing them instead in community programs to help them become law-abiding members of society, with the promise of saving millions in state and federal prison costs.  At a time when crime rates are relatively low, and our European betters and Hollywood movie stars are constantly scolding America as the incarceration nation, the allure of an America where bright, dedicated government employees guide minor offenders off the criminal path is difficult for many to resist. 
I had high hopes for Eric Holder when he was appointed Attorney General.  He had at one point been a career prosecutor, and by the mid-nineties had become the Clinton-appointed US Attorney for the District of Columbia.  He also seemed to me, from the very few interactions I had with him, to be a level-headed man with a wicked sense of humor.

He still has the sense of humor, but has become far too political as Attorney General. Among other things, he plays to the Democratic Party's constituencies pretty shamelessly, see, e.g., my post here, and did so again last Friday in his obsequious speech to those who are ostensibly (though not actually) his "adversaries" in the criminal defense bar.  A day or two later, he gave a much shorter, and perfunctory, video talk to the prosecutors whose work he's busy scuttling.

'Twas not ever thus.

About That "Unstoppable Momentum"....

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Renowned sentencing expert (and long time buddy) Prof. Doug Berman put up a post about a year ago with this title:  "Could Momentum for Sentencing Reform Now Be Unstoppable in the Federal System?"  The gist of it was that, what with Eric Holder on board, the very enlightened coalition of libertarian-leaning Republicans like Rand Paul, and liberal Democrats, would enact significant sentencing reform legislation.  ("Sentencing reform," for those unfamiliar, means only one thing, to wit, putting felons back on the street faster than they get there now).

Doug quoted a gushing article by Juan Williams in The Hill newspaper that said, among other things:

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.

So where are we now with that which is unstoppable?

Sentencing by the Numbers

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Devlin Barrett reports at WSJ Law Blog:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

"By basing sentencing decisions on static factors and immutable characteristics--like the defendant's education level, socioeconomic background, or neighborhood--they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society," Mr. Holder told the defense lawyers. Criminal sentences, he said, "should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
I have disagreed with and criticized Mr. Holder at times, sometimes strongly, but he's right on this.  The sentence for a criminal offense should depend on the crime the defendant chose to commit and the crimes he has chosen to commit in the past.  That is justice.

See also today's News Scan and the story linked there.

John Gleeson, Defense Lawyer in a Robe

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A long time ago, in a galaxy far, far away, judges were neutral.  Parities made their arguments as best they could, and the judge, not taking one side or the other, decided the case under the law.

Then there's the Eastern District of New York, otherwise known as Brooklyn, and its twin pro-criminal zealots, Jack Weinstein and, of late, John Gleeson.  Gleeson is young enough to know better, and I'm sure he does.  The problem is he doesn't care.

Recently he accused federal prosecutors of being extortionists because they do what the Supreme Court explicitly authorized them  to do, to wit, offer sentencing inducements in order to settle cases by plea bargains, Bordenkircher v. Hayes. (His screed neglected  to point out that the defense bar demands, and for all practical purposes lives off, exactly such plea offers).  His most recent stunt, however, takes pro-criminal huckstering to a new level.  I'll just let the New York Times article describe it (emphasis added):

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.

But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

Does anyone see something amiss in that sentence?




Too Much Safety

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Justice William J. Brennan had a way with words.  One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp, why the majority was afraid of "too much justice."

Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.

Prison Holiday

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The US Sentencing Commission voted to support more and earlier heroin (and meth and PCP et al.) trafficking.  It did so by deciding to make its already ill-advised all-comers-welcome reduction of the guidelines for drug sentencing fully retroactive. Here's the USSC press release.

Today I'll be flying back to the mainland from Hawaii, so I can't go into the detail this story deserves.  I'll say only two things.  First, the Commission's press release is astonishingly (and I have to believe intentionally) deceptive.  It states:

The Commission studied offenders released early after a similar 2007 amendment to the guidelines reducing sentences for crack offenders and found that those offenders were no more likely to re-offend than offenders who had served their original sentences.

How slick is that!  The newly retroactive guidelines apply to all drugs, not just the drug (crack cocaine) dealt with in the 2007 amendment.  And the recidivism rate for all drugs is 77%  --  an enormous figure, and more than twice the number the USSC had been trumpeting previously.  In other words, slightly more than three-quarters of drug offenders return to crime.  I guess it's no surprise that the actual drug recidivism rate is cleverly, if very conspicuously, invisible in the Commission's press release.

Second, one of the stated grounds for slimming down the federal criminal justice system has been its budget.  But re-litigating between 40,000 and 50,000 sentences will have gigantic costs.  How gigantic?  Well, we don't know, because the whole cost-of-re-litigation issue is swept under the rug by the Commission  -- the same Commission that undertook the guidelines reductions in the first place largely, it claimed, because of  -- you guessed it  --  its grave concern that costs are getting out of hand.
About six weeks ago, I testified before the House Task Force on Over-Criminalization.  The focus of the hearing was on mandatory minimum sentencing in federal law and, more generally, on whether federal drug sentences are "too long."  

I closed my remarks by asking Congress to wait for the results of a couple of recent developments (the AG's effective abandonment of mandatory minimums for many drug crimes, and the USSC's two-level guidelines reduction for drug offenses).  For those who believe in "evidence-based" sentencing, it would seem natural to want to see some, well, evidence:  Maybe these new measures would work out, and maybe not.  Time would tell.

I can't say that Congress took my advice exactly, but the Smarter Sentencing Act, which would lighten if not cripple drug sentencing, has stalled in Congress over the summer.  And sure enough, evidence from the new norm of lighter sentencing has started to come in, reported by, of all things, the NYT.

The story, and the evidence, is underneath this headline:  "Second Thoughts for Lighter Sentences for Drug Smugglers".

My goodness.

Hold Your Horses

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The Federal Judicial Conference got it mostly wrong, but got the bottom line right, in assessing the need for "sentencing reform."  That phrase has a more common sense translation meaning, "let felons out earlier than present law would provide and hope for the best."

The Conference Report, out today, noted that:

...policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

"Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts," said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee." 

**************************

"The Conference most recently supported, with certain conditions including delayed implementation, retroactivity for the Sentencing Commission's recent amendments to the Drug Quantity Table. Implementing this policy on a retroactive basis will result in many inmates being released from prison and into the custody of probation officers, who work for the Judicial Branch.  Without delayed implementation for the Judiciary to seek necessary resources and prepare for this influx of offenders into the probation system, public safety could be compromised."

Very roughly translated, what this means is that we should stand back, take a deep breath, and examine, with patience instead of haste, what the measures already in train (such as lowered present guidelines and DOJ's cutting back on mandatory minimum charges) produce.  Will there be big cost savings?  Or will there be, as there has been in California, significantly more crime?  The Conferences's explicit warning that public safety may be compromised by moving too quickly is a particularly welcome reminder, and should weigh heavily with policy makers.

Early Releases: More Cost, More Crime

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The major promise behind proposed federal legislation to lower mandatory minimum sentences is that it will reduce prison costs while preserving the low crime rate we have achieved over the last 20 years.

That of course is an empirical question.  Many in favor of these proposals, in particular ones like the Smarter Sentencing Act, point to the experience of such states as Ohio and Texas to show that the promise has been kept.

They seem to be much more quiet about the state that has more early releases than the rest of the states combined  --  California.  The second item in today's News Scan shows why:  As the early release program in the Golden State has taken hold over the the last three years, prison costs are up by a whopping two billion dollars and the crime rate is, unlike the majority of the rest of the states, also up.

So what should Congress do with the Smarter Sentencing Act?  I gave the answer in my testimony before the Over-Criminalization Task Force of the House Judiciary Committee last month.

Impenetrable at Stanford Law

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Not to knock my alma mater, but Stanford Law School is home to a lecturer in law, Michael S. Romano, who seems oblivious to the preeminent realities about crime and sentencing staring him in the face.

This article from the National Journal  --  the eight trillionth about supposed overwhelming Republican zeal to join forces with the criminal defense bar  -- contains the following paragraph:

What's changed the political equation on crime [in the last three decades]? The most important factor is the decline in the crime rate. After surging through the 1980s as the crack epidemic crested, the violent crime rate has fallen almost every year since 1993 and now stands at only about half of what it was then, according to FBI figures. (A separate Bureau of Justice Statistics crime survey shows the violent-crime rate ticking back up over the past two years but still down about two-thirds from its 1993 level.) "We have an incredible opportunity for change because crime is down," says Michael S. Romano, a lecturer at Stanford University Law School.

Is this what passes for critical thought at Stanford nowadays?

 
I've had the good fortune to get to know, if only slightly, a couple of Commissioners on the US Sentencing Commission.  They're good people and thoughtful lawyers, to say the least.  But this does not stop me from noting that the Commission has not sufficiently confronted  --  and indeed, it seems to me, has danced around  -- the crucial issue of criminal recidivism.

One of the principal purposes  --  and, over the last generation, one of the major successes  --  of sentencing is the incapacitation of criminals.  When they're in jail, they're not ransacking your house in order to get money for their next fix, assaulting your college-age daughter on a meth-fueled high, or selling PCP to your teenage son.

It's therefore crucial, in deciding whether and to what extent to reduce sentences, to be entirely forthcoming and candid about what impact those reductions will have. Specifically, we need to be clear about whether the reductions will produce more crime.

On this critical front, the Commission has fallen short.  It simply must take recidivism more seriously, and it must do so before deciding whether massively to expand, through retroactivity, the reach of its recent scattershot lowering of drug sentences.
In the jumble of faux-refined "analysis" the Justice Department presented to the Sentencing Commission in speaking up for the interests of criminals broad retroactive application of more lenient drug guidelines, it buried the main question: What do drug traffickers do after their release?

The Department itself told us, ever so quietly, back in April:  They go right back in business.  Here's the BJS report, which begins:

An estimated two-thirds (68 percent) of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of release from prison, and three-quarters (77 percent) were arrested within five years, the Bureau of Justice Statistics (BJS) announced today.

More than a third (37 percent) of prisoners who were arrested within five years of release were arrested within the first six months after release, with more than half (57 percent) arrested by the end of the first year.

As to drug offenders specifically, you have to read down to the seventh paragraph, which states (emphasis added):

Recidivism rates varied with the attributes of the inmate. Prisoners released after serving time for a property offense were the most likely to recidivate. Within five years of release, 82 percent of property offenders were arrested for a new crime, compared to 77 percent of drug offenders, 74 percent of public order offenders and 71 percent of violent offenders.

Let's be clear then, about what moving up the release dates of drug traffickers by retroactive application of more lenient guidelines is going to do.  It's going to produce more drug trafficking, earlier.  It's as simple as that.


Mr. Retroactivity

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Remember Edward Dorsey?  He was the defendant in Dorsey v. United States, in which the Supreme Court, 5-4, walked past the Savings Statute, 1 USC 109, to find that the 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.

That degree of retroactivity, bad as it was, pales by comparison to the essentially time-unlimited retroactivity the Justice Department endorsed today for lighter drug penalties across the board.

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

Now as I was saying about Mr. Dorsey......
It has long since been clear that the Justice Department is working, not for ordinary citizens who have benefited from the crime reduction we've enjoyed with longer sentences, but for the drug pushers who'd prefer that we go back to the disastrous, crime-ridden ways of the Sixties and Seventies.

Today the pushers got another (but hardly unexpected) boost when DOJ recommended large scale retroactive application of the newly reduced drug guidelines.  

One of the theories for lower sentences is that they are needed to reduce DOJ's very tight budget.  Today's move pokes a hole in that line, what with the significantly increased litigation costs certain to come about as tens of thousands of gleeful drug traffickers file motions and demand hearings to reduce their fully lawful sentences.

The Department's statement follows the break.

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