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The Underpolicing of Black America

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Jill Leovy has this essay in the WSJ:

In predominantly African-American neighborhoods of U.S. cities, far too many killers have gotten away with far too many crimes for far too long, fueling a disastrous murder epidemic. Solving these murders and other serious crimes of violence in black communities should be a top goal for law enforcement--and it deserves to take priority over much more widely discussed issues such as racial profiling and the excessive use of force by police in black neighborhoods, from Ferguson to Staten Island.
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But instead of checking this wave of urban violence, America threw up its hands. Prison terms per unit of crime in the U.S. hit rock bottom in the 1960s and '70s, making the U.S. one of the world's most lenient countries, as William J. Stuntz of Harvard Law School and others have shown. Reformers focused on the rights of defendants, remaining blind to the ravages of under-enforcement.

In the 1980s, a get-tough backlash hit, ushering in the current era of mass incarceration and long sentences. But unsolved homicides still piled up in black neighborhoods. Even as convicts grew old in prison, detectives remained overwhelmed by exploding street violence.

For the last eight years, and until just a few days ago, Sen. Patrick Leahy of Vermont was Chairman of the Senate Judiciary Committee, an extremely powerful position.  In this piece from the Marshall Project, Sen. Leahy tells us what the President should say tonight about criminal justice reform:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure "our crime policy is not only tough, but also smart."  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion - nearly a third of the Justice Department's budget - goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

I have made my position clear on mandatory minimums  --  they are a needed restraint on foolish and ideological judges. Congress was wise to pass them and wise to keep them.

Thus I wish to note here only that Sen. Leahy, for all his present indignation, did not so much as bring up for a vote, in the years he easily could have, legislation (the Justice Safety Valve Act) he co-sponsored, which would have done exactly what he says the political branches have been so remiss for failing to do.

P.S.  Sen. Leahy to the contrary, the biggest issue facing our justice system today is that we have almost 10,000,000 serious crimes a year, not counting trafficking in hard drugs.  That is well over four times the number of inmates.

(Hat tip to Doug Berman at SL&P).
The White Collar Crime Prof Blog has this entry, from the Ninth Circuit of all things:

The case is United States v. Dibe. Claudio Dibe pled guilty, without a plea agreement, to wire fraud and received a below Guidelines sentence. He complained on appeal that his sentence would have been lower if the sentencing court had considered his counsel's ineffective assistance in failing to adequately explain the benefits of the government's initial plea offer. The Ninth Circuit held that ineffective assistance of counsel cannot be considered as a mitigating under 18 U.S.C. Section 3553(a). Distinguishing the U.S. Supreme Court's opinion in Pepper v. United States, 131 S.Ct. 1229 (2011), the Ninth Circuit noted that counsel's alleged ineffective assistance "has nothing to do with [Dibe's] own conduct."

A Safer Country, Credibly Reported by the NYT

I have not been shy about criticizing editorial stands in the New York Times, most recently its decision to label as "self-pitying" the NYPD's attitude of disgust with the dalliance between Mayor de Blasio and vitriolic enemies of the police, including but hardly limited to Al Sharpton.  The Times used the adjective "self-pitying" to describe the NYPD before the second murdered officer, Wenjian Liu, was even buried.  At that time and under those circumstances, I considered, and still consider, applying the label "self-pitying" to Liu's brothers on the force somewhere between callous and vile.

But credit must be given where due.  Yesterday, Erik Eckholm published a piece in that self-same NY Times noting that, with crime down so much over the last generation, some prominent people in both parties have started to think about reducing prison costs. Not surprisingly, the piece gives most of its attention to those who favor incarceration and sentencing reforms.  Still, when Mr. Eckholm spoke with me in preparing the story, I found him fair and patient, and he correctly quotes me in the article as saying, "When people are incarcerated, they're not out on the street to ransack your home or sell drugs to your high school kid."  I thought that was an apt quotation, summarizing the intuitive reason most people understand that more incarceration means less crime  -- something that has been reliably true for at least the last 50 years.

One quite useful item in the article is a sidebar graph showing the staggering crime decreases since the peak year, 1991.  It was, of course, the early Nineties when the determinate (and tougher) federal sentencing system of the Reagan era  --  copied in many states  --  started to kick in.  More criminals stayed in jail longer.

For those who want to believe that there's only an ineffably mysterious relationship between the amount of crime we get on the street and the number of criminals we take off the street  --  hey, go for it.  There is nothing I'll be able to do to change your mind.

The Writing Not on the Wall

There has been a good deal of speculation that the new Congress will be more hospitable to sentencing "reform"  --  i.e. lower sentences for federal felons  --  than the last one, in which the Justice Safety Valve Act (effectively abolishing mandatory minimum sentences) never even got a committee vote, and the Smarter Sentencing Act (slashing mandatory minimum drug sentences) passed out of the Senate Judiciary Committee but then sank out of sight.

Part of the optimism takes root in the fact that three prominent Senate Republicans  --  Rand Paul. Ted Cruz and Mike Lee  -- voted with all ten Democrats then on the Committee in favor of the SSA.  The thinking from SSA advocates is that these libertarian-leaning members of the newly strengthened Republican presence will now lead the Party to a "more enlightened" view.

I thus thought the Heritage Foundation's recent announcement of its "2015 Conservative Policy Summit" contained a telling omission. Heritage vocally supported (and, so far as I know, still supports) the SSA, and its gathering will be headlined by all three Republican Senators (plus newly elected Sen. Tom Cotton of Arkansas) who supported sentencing "reform" in the last Congress. Yet the Summit's agenda contains no mention of this topic among the ten listed.

To me, this is the handwriting not on the wall.  I was already reasonably sure that the SSA  --  essentially a Democratic creation despite its support by a sliver of the Republican membership in Congress  --  was even deader this time around than it was last time, despite its supposedly "unstoppable momentum." The fact that the pro-SSA Heritage Foundation lined up every one of the Republican senators on the SJC who supported this bill, and still did not put it on a ten-item agenda, is an omission that speaks volumes.

The French Reap What Lenient Sentencing Sows

One of the suspects in the Jihadist massacre today in Paris is 34 year-old Cherif Kouachi.  An ABC News report notes this about him:

Kouachi, along with six others, was sentenced in May 2008 to 3 years in prison for terrorism in Paris. All seven men were accused of sending about a dozen young Frenchmen to join Abu Musab al-Zarqawi, the leader of Al Qaeda in Iraq, after funneling them through radical religious establishments in Syria and Egypt.

It appears, however, that Kouachi served only 18 months of his sentence  --  not that three years was long enough even if he'd served every day of it.

Sentencing "reform" advocates unceasingly assure us that only "low level, non-violent" offenders will be released.  Even assuming they (1) had and (2) were willing to share with the public, the nuts-and-bolts specifics of what that gauzy phrase actually means, we have no assurance that its execution will live up to its promise. We have, to the contrary, a mountain of evidence that the government is incompetent to determine who is safe to release and who isn't.  For several years, California has provided a good deal of this evidence all by itself; the foolhardiness of its early release decisions has been documented again and again in C&C's News Scan. Now, in a horrifying display, the Paris massacre brings home this same lesson.

"Reform" advocates tell us that the government has made a generation's worth of horrendous mistakes in deciding who should be incarcerated and for how long.  In the next breath, they tell us that the same government will suddenly be seeing and wise in deciding who should be released and how early.

Today's bloody violence should give us a clue about whether they're right.  It should also give us a clue about who will pay the price if they're aren't.

A Sentencing Story Too Good To Pass Up

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Ed Whelan of NRO does a piece titled "This Day in Liberal Judicial Activism." Today's squib is sadly hilarious at a number of levels.  It's an easy guess that it comes to us from the Ninth Circuit:

In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines' rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is "a powerful indictment of the criminal justice system" and that the problems of alcohol abuse and crime on Indian reservations "cry out for treatment, not simply more prison time." Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend. In the end, the panel's spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court's January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

Dude, Where's My Car? (Update)


Nearly two years ago, we noted a disturbing statistic from half-year preliminary crime data from the FBI.  Here is an update from later and more complete data.

Of the categories of crime tracked by the standard statistics, auto theft is the category most likely to have been affected by California's prison realignment program.  Auto theft was always a felony.  Before realignment, it was therefore a crime for which a state prison sentence was always a possibility, although the judge had discretion to give a lesser sentence.  After realignment, auto theft is a crime for which a person can never go to state prison.  Not for the 97th offense.
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.

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