Recently in Sentencing Category

"Evidence-based" sentencing is one of the catch-phrases of the sentencing reform movement.  I have never been able to figure out exactly what it means (my experience as an AUSA was that evidence has always been considered at sentencing), but I think it means that sentencing should be based on facts.

OK, good, if that's what it actually means.  That idea was, as Kent has pointed out (cf. his comment on this thread), one of the main selling points of Prop 47 in California.  Prop 47 reduced sentencing for a number of drug and property offenses simply by re-classifying them as misdemeanors.  The theory, or so we were told, was that judges would be given more leeway to impose "flexible" sentences, and that this would help reduce crime.

Now that, in the wake of Prop 47, property crime (and violent crime) has exploded in the Golden State, however, the refrain is that it's, ummm, too early to pay attention to the evidence.

And no, I am not making this up.  Read it for yourself.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

We hear again and again that "over-incarceration" or "incarceration nation" is the subject of considerable public angst, and that there is a "growing, bi-partisan consensus" (see, e.g., here) that we should scale back the prison population ("prison population" being the euphemism for "adjudicated criminals whose offenses are serious enough to earn them a prison term").

Is that proposition true?  Is the public up in arms in any sense about "over-incarceration"?

No, it is not true.  Indeed, the subject barely makes the radar screen, according to this quite informative Washington Post article.  Subjects of more concern to the public are:  Education, budget, healthcare, taxes, transportation, infrastructure, marijuana, energy, jobs, pensions, crime, and ethics.  Only after that is prison (which managed to get mentioned as the third-ranking concern in a total of six states), followed by labor, environment, elections, housing, immigration, civil rights, the economy, guns, privacy and a scattering of others.

So called "over-incarceration" may well be an obsession with the academic left, dead-end liberals and, naturally, criminals, but the public that pays the bill (1) is all but indifferent, and (2) guess what!  --  cares more about crime.

One of the leading backers of sentencing reform (i.e., widespread sentence reduction) is Prof. Doug Berman of the Moritz College of Law at the Ohio State University.  His blog, "Sentencing Law and Policy," is widely read, and he frequently appears at academic panels.  A Princeton and Harvard Law graduate, he has been called as an expert witness before Congress.

I therefore think it worth a separate entry to note what Doug acknowledges about the ultimate plans of many of those supporting sentencing reform.  As I have seen it  --  and I've seen it again and again  --  their mantra is that reform is designed for the "low-level, non-violent" offender.  Indeed, this is the principal refrain of the movement. 

"Low-level, non-violent."  Rinse and repeat.

Doug now acknowledges that, in the eyes of many reformers, there's a more ambitious agenda than we usually hear about  -- that lower sentences are to be handed out to violent criminals as well.  

His comment is the third on my earlier entry, "The Mask Slips."  He begins:

I do not think there is much doubt, Bill, that many persons concerned about mass incarceration want to lower sentences for violent criminals. I will be the first to say that I do not think anyone should get LWOP sentences. Also, arguably Weldon Angelos and Chris Williams were both "violent criminals" and I wanted both of them to get less than effective LWOP sentences.

You are right that some advocates will say they are only concerned with reducing sentences for the most sympathetic of defendants, but that is largely because you and fans of toughness do not want to even do that...

Readers are invited, it they care to, to examine the full exchange.  

I sometimes get frustrated with Doug, but I have nothing but admiration for his candor.



I'm preparing for a few debates and panels on sentencing reform when I return to the mainland next week.  In surveying the territory, I see three major questions that could use more definitive answers than they have now.  Indeed, I don't know how an informed debate is possible without pretty clear answers.

1.  How much of the huge drop in crime over the last 25 years is because of the increased use of incarceration?  The recent Brennan Center study, and the earlier but more neutral Levitt study, give wildly different answers.  

2.  What is the electorate's view of the current state of crime and punishment in America?  Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

3.  Most people in the sentencing reform movement think we should start imposing shorter sentences and releasing thousands of inmates already serving their terms. Does the public think the sentencing system has made consistently sound, or unsound, decisions about who should go to jail and for how long? Does the public think, if we change the system, that roughly the same people will make consistently sound, or unsound, decisions about who is safe to release?

A Smear Job by a Sitting Federal Judge

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Are you in favor of the system of stern federal sentencing that has helped reduce crime to levels not seen since the Baby Boomers were in grade school?

If so, you're not merely mistaken, misguided or misinformed.  You're in bed with lynching.

That is the level of "argument"  --  indeed, that is exactly the argument  --  put forth in a new article by a sitting US District Judge, Mark Bennett of Iowa.  The article, available here, is titled, "A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges."

Never one to appeal to emotion or fiction, Judge Bennett starts his hatchet job on those who disagree with him with this:

The 2014 Best Picture Oscar winner, 12 Years a Slave, is based on the 1853 autobiography by Solomon Northup.1 Northrup, a black freeman in New York, was kidnapped and sold into Southern slavery.2 There is an eternally haunting, prolonged, and grueling scene in the movie where Northup has a noose around his neck and strains for breath by tiptoeing on the ground to keep from being lynched.3 Other slaves on the plantation are paralyzed by fear and ignore him. Like a ballerina en pointe, Northup spends long hours in this slow motion lynching dance until he is rescued by his owner.

This article is supposed to be about modern federal sentencing, mind you.

Of course, a number of paragraphs later, Bennett inserts the obligatory if limp disclaimer, a disclaimer embarrassing for its blase' insincerity:

This Article does not suggest that incarcerating almost exclusively black men for unprecedented lengthy terms of incarceration, for crack cocaine offenses they illegally committed, is the equivalent of lynching innocent blacks. It does, however, suggest both actions have strong racial overtones; both share a lack of public outcry; both share tacit public complicity; both share governmental complicity; both share devastating effects on families, children, and neighborhoods; and both have been accomplished largely at the hands of those unknown--at least to the general public.
 



Would We Be Safer if Fewer Were Jailed?

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The NYT Room for Debate page has a collection of six short articles under the heading above.  The subhead is, "Can the use of jails be reformed to reduce the number of inmates without increasing society's risks?"  The question presented was specifically on county jails, not state prisons.  There is quite a stink in the Big Apple over conditions at Rikers Island.

Before clicking on the link, care to guess how many of the six answer the main question "no"?  Or who wrote it?  (Oops, that singular pronoun in the second question sorta gave away the first.)

California v. National Crime Rates

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Here is an update on California versus overall United States crime rates.  The table below shows the rates per 100,000 population for the FBI's violent crime index and property crime index for 2011, nine months of which predates the Realignment program, and 2013, the most recent year with full data available.  The data are from the downloaded files on the FBI's Crime in the United States reports for the respective years.



The nation as a whole had a 6% drop in property crime over the two-year period, while California had a 3% increase, a difference of 9%.
I want to follow up on my post yesterday, "An Amazing Fantasy," to show how the New York Times, one of the most prominent cheerleaders for lower criminal sentences, attempts to advance its cause.  Let me cut to the chase.  Its principal means are condescension and deceit.  In this, it is all too representative of the movement for which it speaks.

I will begin by analyzing yesterday's editorial one piece at a time.  As you will see, there is barely a sentence in it that's not condescending or deceptive or both.

An Amazing Fantasy

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And no, this is not about that fantasy.

It's about the New York Times's latest editorial pushing softer treatment for criminals (a/k/a "sentencing reform").  There are a number of howlers in the piece, but I want to start with this one:

Mr. Grassley [Chairman of the Senate Judiciary Committee], for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of [federal] sentences. In a speech from the Senate floor this month, he called the bills "lenient and, frankly, dangerous," and he raised the specter of high-level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful. Mandatory minimums have, in fact, been used to punish many lower-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked. States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.


The Times's claim about the "persistent fantasy" that increased incarceration produces less crime is stupid, dishonest and false.

How Dumb Do They Think We Are?

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Newsflash:  Incapacitating people who commit crime has no effect on the amount of crime.

Do you believe that?

A far left advocacy group, the Brennan Center, wants you to.  The press release from their latest propaganda (heralded, as ever, as a "study") states:

Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.

Convincing the public that there is little or no relationship between (1) increased incarceration of people who commit crime and (2) enormous crime reduction over the last quarter century is critical to the efforts of the pro-criminal lobby to sell miniaturized sentences (which they understandably call by the opaque name "sentencing reform").  The lobby knows by now  --  in part because of its humiliating failure in Congress  to pass the Smarter Sentencing Act  --  that the public simply is not going to buy slashing sentences as long as it understands that a crook who's in prison is not ransacking your house while you're at work, or selling heroin and similar goodies to your teenager.  Hence the effort to convince us that incarcerating criminals has nothing or next to nothing to do with crime reduction  -- arguably the most important domestic policy success of the last fifty years.

Related Newsflash:  The centuries-long link between crime and punishment just disappeared.

These people are a hoot.

UPDATE:  The Heritage Foundation, which takes the same robust pro-"reform" position as the Brennan Center but is a great deal more honest, recently took the view, through its distinguished Fellow, John G. Malcolm, that increased incarceration could be credited with between 25 and 35 percent of the last generation's crime reduction.  See Mr. Malcolm's remarks starting at 7:35 of this tape.  Somebody's telling a whooper, and it's not John Malcolm.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

Counting on Complacency

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Slate has up a new article titled, "Why Public Apathy Isn't All Bad."  The gist of it is that the public's apathy toward criminal justice issues has paved the way for quiet criminal justice "reform."  "Reform" is used in the article to mean the same thing it always does in this context, to wit, "slashing sentences for criminals."  If someone other than criminals are the most direct and immediate beneficiaries of this "reform," no one has told me who else it might be.

The article gets its mileage out of using the word "apathy" where "complacency" would be more precise.  The public has indeed become more complacent about crime.  This has happened for one perfectly obvious reason: there's so much less of it.  And there is so much less because of  --  ready now?  --  exactly the successful measures (longer sentences, more prisons, more police, more targeting of police resources) the people pushing the "reforms" opposed tooth and nail.

The Slate article is a useful iteration of the anthem actually at the heart of the sentencing "reform" movement:  "Since the country has achieved so much success with more incarceration and police, it's time to march back to failure."

(HT to SL&P).

Miller Retroactivity Case Is Moot

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The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.
I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.

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.
*                                                *                                            *

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.

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