Recently in Sentencing Category

A:  In a word, no.  Not close.

I want to follow up on Kent's post about the Gallup poll on sentencing, focusing specifically on drugs. My reason is that the sentencing reform proposals in Congress concentrate mainly on lowering drug sentences. This has also been the focus of the (liberal majority) Sentencing Commission in recent years. 

One of the things I often hear when I debate sentencing "reform" is that lowering sentences is the politically astute thing for Republicans to do.

That is simply false.
As noted in a CJLF press release last month, the FBI's Uniform Crime Reports (UCR) reported a 3% increase in violent crime in 2015 over 2014.  Today, the Bureau of Justice Statistics reported that its National Crime Victimization Survey (NCVS) showed no statistically significant change.  The lesson here is in the limitations of statistics.
Justin McCarthy has this article for Gallup. 

Q:  In general, do you think the criminal justice system in this country is too tough, not tough enough or about right in its handling of crime?

A: 45% not tough enough, 35% about right, 14% too tough, 6% duh.

Gallup headlines the fact that "not tough enough" has dropped substantially over the years, but most of that drop has gone to the Goldilocks answer of "about right."  Despite all the wailing and gnashing of teeth we have heard from academia and the press over the last decade or so, only 1 American in 7 thinks the system is too tough.

The other half of the split sample was asked specifically about drugs, with a quite different result:

No on 57 Press Conference

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This morning I attended a press conference by the opposition to California Proposition 57, Gov. Brown's Jailbreak Initiative.  The campaign website is here.

Mass Sentencing Reduction Reportedly Still Dead

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The New York Times carries this story:

A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year, consensus legislation that showed lawmakers could still rise above politics.

Then the election, Donald J. Trump's demand for "law and order" and a series of other political calculations got in the way.

Senate Republicans divided on the wisdom of reducing federal mandatory minimum sentences. Other Republicans, unhappy that President Obama was reducing hundreds of federal prison sentences on his own, did not want to give him a legacy victory. A surge in crime in some urban areas gave opponents of the legislation a new argument.

Now, the Senate authors of the legislation say it is effectively dead.

"I do believe it is over," said Senator Richard J. Durbin of Illinois, the No .2 Democrat in the Senate, who put considerable effort into difficult negotiations with Republicans to strike a compromise. "We missed an opportunity."

I agree with Senator Durbin that the Senate missed an opportunity  --  an opportunity to multiply the Wendell Callahan scandal and endanger the country.

Q: When Do You Know You Can Stop Reading?

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A:  When the article's abstract starts with this:

Criminal justice debt has aggressively metastasized throughout the criminal system.  A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections.  As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system's users, primarily poor or indigent, who often cannot pay their burden.

Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into "punishment." Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury.

An author who actually thinks there is a "Sixth Amendment right to have all punishment imposed by a jury" is so completely ignorant that, if you continue reading, you're just going to kill your brain cells.

(You also gotta love "the system's users," i.e., convicted criminals who skate with a fine but won't pay even that).

Credit to this entry on SL&P.

While Barack Obama, surrounded with the world's best security detail, opens the prison gates to hundreds of dealers in hard drugs  --  dozens with firearms convictions as well  -- citizens living in less secure circumstances suffer.

Does his Administration care?

His US Attorney for the District of Columbia managed to yawn out this statement:

Unfortunately, no system is perfect, and in those isolated instances in which problems are identified, we work with our law enforcement partners to address them moving forward.

Excuse my Latin, but that is unadulterated horse manure.  He might as well have said, "What, me worry?"

The liberal police chief in DC recently resigned, in significant part because she had seen enough mindless leniency. 

The problem is not over-incarceration, despite the insistence of the pro-criminal crowd currently running DOJ.  The problem, which they would see under their noses if they cared enough to look, is the opposite.
Earlier this summer, the lenient sentence given to Stanford student Brock Turner for a sexual assault on an unconscious young woman sparked national outrage.  Friday, he was released from jail after serving only half of that.  Paul Elias has this story for AP, with extensive background on the case.

What lessons should we draw from this double outrage?

First, the excessively lenient sentence demonstrates why we cannot vest too much discretion to judges to grant leniency.  In other words, it demonstrates--conclusively, in my mind--that we will always need "mandatory minimums" in some form for some crimes.

Second, Turner's release in 3 months when sentenced to 6 demonstrates that we need to be very careful with "credits" against sentences and award them only when they serve an important function.

Third, given the number of people guilty of serious crimes who are now sentenced to county jail in California, it is imperative that we build enough jail capacity to hold them for every single day for which they are sentenced, reduced only by those judiciously awarded credits.

Notes on the Jailbreak Initiative

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Some notes on California Proposition 57, Governor Jerry Brown's Jailbreak Initiative:

Michele Hanisee has this post, titled Proposition 57 Unmasked, on the blog of the (LA) Association of Deputy District Attorneys.  The ADDA also has this detailed analysis.

At the blog of the Association for Los Angeles Deputy Sheriffs, George Hofstetter has a post titled Proposition 57 promises to increase the Proposition 47 crime wave.
In comments to Bill's post on incarceration rates there is discussion of the issue of whether the higher (although shrinking) incarceration rate for African Americans is due to higher offending rates or discriminatory enforcement.  I did a quick search for research on this subject.

Be Careful What You Ask For

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When a defendant has gotten off with less than he or she deserves with a plea bargain, it is not a good idea to have the entire judgment vacated and go back to square one.  From the Ninth Circuit's decision yesterday in Fox v. Johnson, No. 13-56704:

Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Fox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. ยง 2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.

We refuse Fox's request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.
It's often said that race tells the tale about how you'll be treated by the criminal justice system and, in particular, about how harsh your sentence will be.

If that were true, one would expect to find at least a modest statistical correlation between race and sentencing outcomes.  There was a recent study of that question, noted by Doug Berman in this entry on Sentencing Law and Policy.  The last paragraph, with emphasis by Doug, is this:

A justice system reasonably aspires to be consistent in the application of law across cases and to account for the particulars of a case. Our goal was to create a prediction model of criminal sentence lengths that accounts for non-judicial factors such as weather and sports events among the feature set. The feature weights offer a natural metric to evaluate the importance of these features unrelated to crime relative to case-specific factors. Using a Random Forest, we found several expected crime related features appearing within the top 10% most important features. However, we also found defendant characteristics (unrelated to the crime), sport game outcomes, weather, and location features all predictive of sentence length as well, and these features were, surprisingly, more predictive than the defendant's race. Further investigating this predictive ability would be of interest to those studying the criminal justice system.

When Hurst v. Florida was decided earlier this year, I wrote a post titled Dangerously Sloppy Language in the Hurst v. Florida Opinion.  Sure enough, four of the five justices of the Delaware Supreme Court have now decided that the state's long-established and thoroughly vetted death penalty statute is unconstitutional.  That would be true only if one sloppy piece of obiter dictum wipes out the distinction between the eligibility decision and the selection decision crafted over decades and clearly set forth in numerous U.S. Supreme Court opinions.

The case is Rauf v. State.  See Justice Vaughn's dissent for the correct answers.

Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?  Let's hope so.

Mr. Second Chance

Those favoring reduced sentences emphasize the moral imperative of giving second chances.  It's "who we are."  We can't judge a person by the worst moment of his life. America has 5% of the world's population but 493% of the world's prisoners. 

Heard this before?

Here's something you won't hear from the groups that specialize in promoting softer sentencing: We're already soft, right here in the nation's capital. We've been soft for years. We know what it produces  --  violent crime.

Who are the victims, the ones you also won't hear about from those groups?

It's not the lobbyists and ideologues hanging out at their Georgetown and Bethesda parties.  It's overwhelmingly the African American working class, consigned to neighborhoods the lobbyists wouldn't be caught dead in (or would only be caught dead in, I'm not sure which).

How do we know this?  Not from Fox News.  Not from Breitbart.  From the Washington Post.  The opening paragraphs from its superb and shocking article, the second of a continuing series, follow.

Battling It Out on Sentencing Reform

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In my view, the battle over federal sentencing "reform" for this session of Congress has ended in victory for those of us wanting to preserve the gains the county has made in suppressing crime.

But since almost nothing gets permanently settled in this town, my adversaries will be back.  One of the best of them is Mark Holden, General Counsel of Koch Industries.  His op-ed in the Salt Lake Tribune (lauding, among others, Sen. Mike Lee) is here.

My response was printed last Friday in the Deseret News, and can be found here.

Mark and I have more areas of agreement than disagreement, however, and I look forward to working with him and Koch Industries for significant mens rea reform, to insure that ordinary businessmen and landowners do not get sent to prison for behavior a normal person would not know is wrong, much less criminal.

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