Recently in Sentencing Category

The Left Goes Bonkers, Part II

In my original "The Left Goes Bonkers," I described the theory that the Just Compensation Clause entitles criminals to whitewash their record and fabricate their resumes' by just making stuff up (or composing "from whole cloth," as the theorist candidly acknowledged).

I had no idea that, instead of merely whitewashing one's prior stint in prison, the Left would come up with the idea of whitewashing  --  or more correctly, eliminating altogether  --  prison itself.

And no, I am not making this up.  The idea is advanced by Prof. Allegra McLeod of (gulp) Georgetown University Law Center.  If Prof. McLeod has missed a single liberal shibboleth, I haven't been able to think of it.  Below is one paragraph from the abstract of her piece (courtesy of SL&P):

[T]his Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and "greening" urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

I am seldom left speechless, but this time...................

Today the Supreme Court, 6-2-1, declared that the "residual clause" of the Armed Career Criminal Act is unconstitutional.

The ACCA has a "three strikes" provision for violent felony priors, defined as a crime punished by over a year in prison that :

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
What the heck does that last part mean?  That's the problem.  Criminal laws need to be more clear than that, the majority says.  The rest of the law remains in force.

The case is Johnson v. United States, No. 13-7120.  Justices Kennedy and Thomas concur in the judgment overturning Johnson's sentence by applying rather than invalidating the statute.  That is, they believe the statute is constitutional but that possessing a short-barreled shotgun is not a violent felony under the statute.  Justice Alito dissents.

No Glossip today.  From a press coverage viewpoint, that's just as well, as the decision in a civil case will suck all the oxygen out of the room.  The Court has informed the press that Monday is the last day of the term, so we will definitely have a decision then.

A Reminder on Mandatory Minimums

My hat is off to the criminal defense bar and its allied interests on their relentlessness in attacking mandatory minimum sentencing.  There was yet another article straight from their agenda on the front page of the Sunday Washington Post.  It was an unvarnished puff piece about Judge Mark Bennett of Iowa.  

Judge Bennett is one of the most bluntly ideological judges I have ever run across. He has compared those who back our present, successful sentencing system to the engineers of the Holocaust and to slave holders. I have discussed his views here and here.

Because the opposition to mandatory minimum sentencing makes up in outrage and persistence what it lacks in candor and common sense, I want to put up some brief reminders  --  by no means an exhaustive list  --  about why we should keep the present system.
I learned of this today:

An Ad Hoc Committee to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act (CJA) has begun accepting public comments at the following address: It also is anticipated that in the course of its work the committee will hold public hearings.

The CJA was enacted to create a system for providing defense services to financially eligible federal criminal defendants. It became effective fifty years ago this year. Judicial Conference policy supports a periodic, comprehensive, and impartial review of the CJA program.

My own view is that those who undertake CJA defense are, on the whole, quite good, and earn all they get if not more.  I also think, however, that if we can afford more for the defense of criminals, we can afford more to keep them, after conviction, incarcerated and away from the public.

The constant refrain that "we just don't have the money for prison" is tripe. The BOP budget, like every aspect of the federal government's budget, is less a description of fiscal reality than of political priorities.  If this Administration wanted to shift its priorities toward keeping the crime rate low (rather than, for example, funding its gargantuan clemency initiative), it could easily do so.  And should.

Mass Incarceration, or Not Enough?

Academia, the defense bar, and others in the pro-crime lobby ceaselessly and loudly tell us that the amount of incarceration in this country is too high.  They show much less interest in talking about the amount of crime.  When they can be dragooned to say something about it, it's generally to mumble that, yes, well, crime has been falling, and yes, that's kind of a good thing, but (ready now?) taking people who commit crime off the street has almost nothing to do with the fact that we have less crime.

Yes, really, they say that

This day, and for the past several weeks, Baltimore has been teaching the opposite lesson, and the deadly tuition for it is being paid by the very people liberals claim to want to help.  As Rich Lowry writes in Politico:

The Baltimore Sun ran a headline (since changed) that had the air of a conundrum, although it isn't very puzzling, "With arrests down in Baltimore, mayor 'examining' increase in killings." According to the paper, arrests have dropped by about half in May. The predictable result is that violent crime is spiking.

The implication is clear: More people need to be arrested in Baltimore, not fewer. And more need to be jailed. If black lives truly matter, Baltimore needs more and better policing and incarceration to impose order on communities where a lawless few spread mayhem and death.

This is what happens:

WASHINGTON (WUSA9) -- New, horrifying details are surfacing about what happened inside the Savopoulos mansion near Vice President Joe Biden's house before the murders.

A law enforcement source tell WUSA9's Bruce Leshan that detectives now believe the killers tortured the 10-year-old boy, Phillip Savopoulos, in the effort to get money out of his father.

Police believe the killers were in the house for about 10 hours, and that they successfully forced the Savopoulos family to get them tens of thousands of dollars. Someone may have actually had to go out and get the cash while the rest of the family and their housekeeper were held hostage.

The prime suspect in this grotesque crime is one Daron Dylan Wint.

Was Wint a stranger to the criminal justice system?  Not exactly.

Rehab for This Non-Violent Offense?

| No Comments
Sentencing "reformers" have finally admitted explicitly that their largesse would extend to violent as well as non-violent offenders.  Still, and for obvious PR reasons, they continue to push the line that "reform" (i.e., early release or no incarceration to begin with) is intended principally for "low-level, non-violent" offenders.  Their argument is that (1) we simply can't afford the present level of incarceration, (2) we're overly punitive in any event, certainly compared to Western Europe, and (3) we can use the money saved to focus on "truly dangerous" criminals.

Today brought news of a "non-violent" offense that very likely cost individual victims no more than $50 or $100 each.  Certainly that's a "low-level" sort of thing for which "reformers" would be scandalized that Puritanical nags (like me) would even contemplate prison.  But I am contemplating it indeed, even though to date only civil charges have been filed.  To boot, I think a sentence of ten or twenty years would be just fine.

The WSJ has the story.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.

Judge Alcee Hastings, Living in Sackcloth

In his ten years (1979-1989) as a federal District Judge, Alcee Hastings did "sentencing reform" the old-fashioned way:  He accepted bribes for lower sentences. This is the story in a nutshell:

In 1981, Hastings was charged with accepting a $150,000 bribe in exchange for a lenient sentence and a return of seized assets for 21 counts of racketeering by Frank and Thomas Romano, and of perjury in his testimony about the case. In 1983, he was acquitted by a jury after his alleged co-conspirator, William Borders, refused to testify in court (resulting in a jail sentence for Borders).

In 1988, the Democratic-controlled U.S. House of Representatives took up the case, and Hastings was impeached for bribery and perjury by a vote of 413-3. He was then convicted in 1989 by the United States Senate (also controlled by the Democrats), becoming the sixth federal judge in the history of the United States to be removed from office by the Senate.

But Judge Hastings is a superb politician, and got himself elected to Congress in 1992.  He's still there  --  but as he tells us, just getting by.

I think it was a couple of years ago that a staffer for an influential United States Senator told me face-to-face that the country needed sentencing "reform" because there simply is not enough money in DOJ's budget to afford incarceration at the present levels.

There is, however, enough money for this.  Eric Holder outdoes Narcissus by a country mile.

It's an embarrassment.  There's no other way to put it.  I can't say I "know" Michael Mukasey exactly, but it's beyond comprehension that Judge Mukasey would have allowed, much less participated in, a display like this.

The cost argument for the Smarter Sentencing Act was always so much tripe (since this Administration, like past ones, simply borrows to finance things it actually cares about), but putting tax dollars into gushing self-congratulation drives home the point like nothing else.
There is one person we often don't hear from in death penalty cases:  the killer.

The Fifth Amendment of course shields the killer, and every defendant, from having to take the stand in either the guilt or penalty phases of his trial.  So there is no means of forcing him to say anything; that is as the Framers intended.

Still, wouldn't it improve both the system as a whole and the prospects for justice in the individual case in we could hear from the most important person in the courtroom?  The one whose silence is at the center of the case?

I tend to think so.  Thus I make the following suggestion should the jury return a recommendation of death for Dzhokhar Tsarnaev.  

A Waste of Time and Money on a Killer

| No Comments
Roughly four weeks ago, the New York Times had this gushing article about the then-upcoming re-sentencing for Adolfo Davis.  In 1990, at age 14, Davis, a Chicago native, was knee-deep in a double murder.  He was tried as an adult and sentenced to the then-mandatory LWOP. Then the Supreme Court came along in Miller v. Alabama to hold, 5-4, that mandatory LWOP for a juvenile violates the Eighth Amendment. 

The defense bar was all aflutter.  Miller was to be the beginning of the end for finality in sentencing, and would open the door to vastly expanded proportionality review, not to mention full throttle for the "his-brain-wasn't-developed" arguments in behalf of all manner of violent criminals in their fifties forties thirties whatever. 

All that might yet happen.  But, I noticed in the Chicago Tribune yesterday on my way back from the Seventh Circuit Judicial Conference in Milwaukee, it didn't work out too well for Mr. Davis.
Paul Mirengoff has an insightful post discussing President Obama's view that long prison sentences are partly to blame for problems in the inner city because they are depriving young African Americans of a father in the home.  Paul argues:

Is it valid to argue, in effect, that a criminal shouldn't be incarcerated because he's the father of five or six (or any) kids? Not unless criminal law is to be stood on its head.

Criminal law is founded on the concepts of individual justice and personal responsibility. The criminal's guilt and sentence are based on his behavior and his individual history, not on social concerns (or "social justice" to use the popular oxymoron).

Social considerations enter the equation at the level of determining what behavior is criminal. But this determination has never to my knowledge been based on the ability of a particular segment of society to avoid committing a type of crime.

Moreover, social concerns don't control sentencing. If they did, given the extremely high rates of recidivism, the result would be much longer sentences as a means of protecting society from crime. 

The President had some remarks today about the Baltimore anti-police riots  -- riots that have turned into a festival of destruction, looting and arson.  The Washington Post reports (emphasis added):

President Obama made an impassioned call Tuesday for Americans to do "some soul searching" in the wake of this week's rioting in Baltimore, arguing the U.S. has faced "a slow-rolling crisis" over race and economic opportunity in urban areas....

Obama sharply condemned the rioters for damaging private property and taking items from local stores: "They're not protesting. They're not making a statement. They're stealing."

But he also directed his criticism toward Americans--including the news media and some politicians--for failing to address the chronic problems of men, women and children who live in poverty and find their opportunities limited because of poor schools or long stints in prison.

To start with, it doesn't matter what the schools are like if (a) teachers fake test scores to evade accountability (a la' Atlanta), and (b) the students drop out in the ninth grade because party time with drugs is more fun than math and reading.

But the President laid his biggest egg with his crack about "long stints in prison."

Another Minor Crime

A couple of days ago, I blogged about what those backing sentencing "reform" would call a minor crime.  It's not the sort that warrants a jail term, in their view, but something more......creative.

I found out about that crime, the theft of a wheelchair, just by listening to the local news.  Today, the local news told the story of another "minor" crime, to wit, a very brief assault (no robbery undertaken or apparently intended).

Here's the piece.  Its 20-second tape of the assault is very much worth watching. The criminal looks to be about 25 to 30.  I would say offhand that he pretty much defines what people mean when they use the word, "thug":

Metro Transit Police said they are looking for a man who is shown in a surveillance video punching another man and knocking him down on an escalator in the rail system.

Police said the man shown in the video allegedly assaulted a 69-year-old man Friday around 1 p.m. at the Eastern Market station.

The man victim told police he was pushed by another man as he got off the train. The two then engaged in a verbal altercation on an escalator at the stop. The victim told authorities that the other man then punched him in the face with a closed fist. 

Neither the wheelchair theft nor this assault is exactly big news, which is precisely why I write about them.  When we turn away from prison as the answer to this sort of "routine" crime, we're inviting more of it.  As in the Sixties and Seventies, more of it is what we'll get. 

Monthly Archives