Recently in Sentencing Category

A Lesson from Bowe Bergdahl

There is much to be said about the disgrace of a "sentence" that was handed out today to willing deserter Bowe Bergdahl, but for now I want to make just one point.

Almost all reports state that Bergdahl could have received from a life sentence to no prison time at all, which is what he got.  In a country devoted to the rule of law, that simply cannot be allowed.  There is a place for judicial discretion at sentencing, and the degree of discretion can reasonably be debated.  But allowing for a sentence with no limits whatever  --  from life to zero  --  carries discretion to an absurd extreme.

Sentences should have fixed minimums and maximums.  The size of the range between the two can be great or small, and the overall harshness of the sentence will rightly vary with the seriousness of the crime.  But to have no established boundaries is literally lawless.  We saw the ugly results of such lawlessness this afternoon.  There should be no repeating it, not in military and not in civilian court.
Michele Hanisee has this post for the L.A. Association of Deputy District Attorneys with the above title.

As Governor Brown enters his final years in office, legislation he has proposed, signed and vetoed in the past year make it crystal clear he wants convicted criminals to serve as little time as possible. Three changes in the criminal justice system illustrate his beliefs.
The post discusses Proposition 57, which we have discussed on this blog, SB 620, watering down the punishment for criminals who use a gun, and the Governor's veto of AB 1408, a bill that would have somewhat mitigated the harm caused by the ill-advised Realignment bill of several years ago, AB 109.

Governor Brown has in the past claimed that he seeks to make the criminal justice "more human, more just, and more cost-effective."  It appears the Governor is eagerly pursuing the "cost-effective" portion of his statement by reducing punishment for crime in every way possible. But it will be victims who pay the price.

Cal. Cops Speak Out on Gun Legislation

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The Police Officers Research Association of California has this press release on Gov. Brown's signing of SB 620, noted in yesterday's News Scan:

PORAC has opposed the bill from the beginning, and for two serious reasons:

• The current statutes relating to firearm enhancements already allow a judge to use discretion in sentencing. Each enhancement section has various levels of sentencing durations to be used by the judge on a case-by-case basis.
• PORAC continues to have concerns over the passage of Proposition 57 and the early release of prisoners who have not only committed serious crimes against the public, but have usually left a trail of victims behind. The firearm enhancement sections of the Penal Code oftentimes may be the only penalty keeping a convicted criminal from being eligible for early parole under Proposition 57. By allowing a judge to eliminate, or not impose, the firearm enhancement, the likelihood of dangerous criminals on the street increases.
This measure is unfair to victims and dangerous for our communities.
Wildfires have long been a huge problem in California.  They destroy forests, they destroy homes and businesses, and they kill people.  Some fires occur naturally.  Some are caused accidentally by people, who may or may not have been negligent.  And some are set on purpose.  Arson is therefore a major crime.

Pablo Lopez reports for the Fresno Bee:

A 70-year-old Squaw Valley man who told authorities he lit a string of wildland fires in east Fresno County for "no reason" was sentenced Wednesday to 18 years in prison.

Michael Wayne Hamilton Sr. was initially charged with 30 counts of arson for setting fires over a three year period that started in May 2012 and ended with his arrest in May 2015. But in a plea agreement in August this year, he pleaded no contest to 10 felony arson charges.

Eighteen years is a long sentence for a 70-year-old, right?  He is unlikely to see the outside of the prison wall again, right?

Read more here:

Short List from the Long Conference

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Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.
How do changes in sentencing among the various states correlate with changes in their crime rates?  I did some quickie calculations on yesterday's crime stats to find out.

Yesterday, as noted earlier, the FBI released Crime in the United States -- 2016.  This is the official compilation of crimes known to the police nationwide.  Crimes committed but not reported are another issue.  Table 2 reports crimes both as numbers and rate for the states and regions for 2015, 2016, and the percent change.  I extracted the percent change numbers for the states, though the FBI's spreadsheet format didn't make it easy.

The Bureau of Justice Statistics annually reports Prisoners in the United States.  The latest such report, for 2015, gives us the change in the number of prisoners from 2014-2015.  So, with a one-year lag, how do state-by-state prisoner changes correlate with crime changes?

My quickie spreadsheet calculation shows a coefficient of correlation between violent crime rate and prisoner change of -0.27.  For property crime it is -0.31.  If we use numbers of crimes instead of rates, the correlations are a tad stronger.

A negative correlation means that the two variables tend to move in opposite directions.  As number of prisoners goes down, crimes tend to go up.  That is just what persons of sense would expect.

This is not proof, of course.  Correlation is not causation, as we have noted here many times.  I haven't yet done the further analysis required to state the magic "p factor" required by respectable publications to even report a correlation.  Compare this post.  I will do that when I get back to the office and have better tools.  There is also the usual caveat about relying too much on one year's data, and a few others could be thrown in.  Even so, these correlations are strong enough that I thought readers would find them interesting.
Kent noted two weeks ago an article showing that the conclusions of the academic "experts"called criminologists tend to be skewed by their leftist tendencies.  One could hardly imagine a better example than the "report" noted this morning here at Sentencing Law and Polcy. The title of the entry is, "Jeff Sessions's evidence-free crime strategy." It's by John Jay College Professor David Kennedy.

I won't try to gussy it up:  Jeff Sessions should be flattered to be criticized by an article so thoroughly truth-free as this

"Smart on Crime's" Best Example Explodes

"Smart on Crime" is the name given a well-intentioned libertarian organization promoting, most prominently, reducing prison populations by shorter sentences and early release.  Those targeted to benefit would be  --  heard this one before?  -- "low-level, non-violent" criminals. 

The Number One example of Smart on Crime's success has been Texas.  The Lone Star state has been displayed relentlessly as a "deep red" jurisdiction that's made huge strides in criminal justice reform. As always, it was promised that such reform would "keep us just as safe."

Smart on Crime has not been shy about claiming credit for Texas's continuing low crime rate while these "carefully crafted programs" have done their intended work. Never once have I seen the phrase "correlation does not mean causation" used in discussing the relationship between maintaining low crime in Texas and reform's implementation. 

I have a strong feeling, however, that, in light of Texas' just-released and disastrous UCR violent crime statistics for 2016, that phrase is about to make a big comeback. 

Is the ABA a Shill for the Defense Bar?

Read this and decide for yourself.  It starts off (emphasis added):

The ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department.

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case. The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

"Sentencing by mandatory minimums is the antithesis of rational sentencing policy," the report says. Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

The belief that Congress ought to be able to set a rock bottom minimum for serious offenses  --  an idea taking root in the same uncontroversial notion that it can set a binding-on-judges maximum  -- evidently never occurs to the ABA.  The organization understandably cites no precedent in two centuries of case law for its proposal that sentencing courts should have 100% discretion 100% of the time, and Congress can go sit in the corner.

Hat tip to SL&P.

They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.

Sentencing Reform, Meet Reality

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The "sentencing reform" movement is mis-named.  It's actually a movement for widespread reduction of sentences for felons, and aims to achieve this objective in significant measure through one particular mechanism  --  scaling back or eliminating mandatory minimums.

The reform movement has some adherents among Republicans (principally libertarians and some evangelicals, who regularly get trotted out as a supposedly "bi-partisan" front), but is overwhelmingly an idea supported by liberal Democrats, e.g., Pat Leahy, Eric Holder, Loretta Lynch, and Sally Yates.

Of late, however, one of the most reliably liberal and Democratic cities in the country has discovered the virtue of mandatory minimum sentencing.  Baltimore is plagued by rampant murder (perhaps the Freddie Gray rioters were given too much "space to destroy"), so Baltimore's leaders, who are almost all African American, have decided to seek mandatory minimum sentencing for gun-wielding hoodlums:

Baltimore leaders on Friday proposed changing city law to require a mandatory one-year sentence for illegal gun possession in much of the city -- within 100 yards of a school, park, church, public building or other public place of assembly.

The bill would prevent any part of the one-year sentence from being suspended, and preclude those with such convictions from receiving parole.

Mayor Catherine Pugh said she'd like to do more to restrict guns, but "this is what we can do locally" without changing state law.

Pugh acknowledged that there is a church or a school "on nearly every corner" in the city, and said "as it relates to this legislation, that's a good thing."

Police Commissioner Kevin Davis praised the bill as a much-needed change to help the city address its soaring violence. Baltimore is on pace to surpass 300 homicides for the third year in a row. Before 2015, that mark hadn't been reached since the 1990s.

Liberal academics almost all fall in line with The Received Wisdom of sentencing "reform."  Then again, liberal academics don't have to live in crime racked neighborhoods  --  a fate foisted off on Lesser People.

When Early Release Gets a Pass

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Generally, early release from prison is a bad idea.  The system is already laced with so much leniency that more is seldom justified.  The eye-opening Washington Post series, "Second Chance City" gives a glimpse of what leniency actually does:  It promotes crime and assures more crime victims.  Some of them will wind up beaten, raped or dead, or all three.

America is not over-incarcerated.  It is, if anything, under-incarcerated, as its astounding recidivism rates and burgeoning murder rate since 2014 show.

Still, I do not wish to be a hard-hearted man.  Even for a lifelong thug, a man so bad even his son testified against him and now has to be hidden in the federal witness protection program, there can be a case for being released before completing all eight years of his sentence.

The New York Daily News has the story.
A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

She has an opinion piece in today's Washington Post.  I may go through more of it later; for now, I just want to look at the first substantive paragraph, which is regrettably representative of the deceit running through the entire piece.  Ms. Yates begins her analysis with this:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Where to start?
Kent recently noted the numerous and flagrant fabrications by an organization supporting a version of California "sentencing reform."  In the News Scan entry just before his, CJLF's staff discussed the legal settlement Rolling Stone magazine had been forced to cough up as a result of its wonderfully detailed fabrication of a rape at the University of Virginia. The made-up rapists were made-up white males.

That same day, I read a short introduction to a new book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."  Its first paragraph asserts:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.

A better example of mendacity displacing argument would be hard to conceive.
Today's News Scan notes a bill in the California Legislature to repeal what amounts to a mandatory minimum for use of a gun to commit a crime.  Last month when this bill was heard in the Senate Public Safety Committee, Michele Hanisee and Eric Siddall wrote this post for the L.A. Association of Deputy District Attorneys about the testimony in support of the bill.

Turns out the "facts" of the "poster child" case are fabricated.  Imagine that.

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