Professor Joseph Bessette of Claremont McKenna College has this article in The Public Discourse reviewing Rachel Barkow's book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Bessette notes that Barkow's prescriptions are largely anti-democratic, seeking to take sentencing law decisions away from the people and assign them to "experts." However, the current system is not, on the whole, sentencing criminals to more than they deserve.
Recently in Sentencing Category
Once again, we see a tragic demonstration that leniency to the evil is cruelty to the innocent. Usman Khan stabbed five people, killing two of them, on London Bridge last week. Jason Collie reports for the Evening Standard that Khan had been convicted of terrorism offenses in 2012. He "originally received an indeterminate sentence for public protection but this was quashed at the Court of Appeal in April 2013 and he was given a determinate 16-year jail term." "He was released from prison in December 2018 on licence ...."
Continue reading London Bridge Terrorist Was Previously Convicted And Released Early.
The U.S. Supreme Court issued a short orders list after its Friday conference today. The Court took up three criminal cases for full briefing and argument.
United States v. Briggs, No. 19-108 and United States v. Collins, No. 19-184 are military cases involving the statute of limitations for rape under the Uniform Code of Military Justice.
Walker v. United States, No. 19-373, asks whether a Texas conviction for robbery can be a "violent felony" under the Armed Career Criminal Act when, at the time of Walker's prior conviction, that crime could be committed by theft plus reckless (not necessarily intentional) injury to another person.
A longer orders list with cases turned down and procedural orders will be released Monday.
The podcast of my post-argument teleforum on the D.C. Sniper case, Mathena v. Malvo, is now available on the FedSoc website. Audio of the argument is available at the Oyez Project.
Here are some initial impressions after reading the transcript in the D.C. Sniper case of Mathena v. Malvo, argued today in the U.S. Supreme Court. (See yesterday's post for background and links.)
The Court is in a difficult situation because of the Montgomery opinion's dishonest misrepresentation of what Miller actually held. To make Miller retroactive under the Teague rule, Montgomery had to pound a round (procedural) peg into a square (substantive) hole. I don't think they want to publicly admit that the Court did that only a few years ago, but the difficulties are becoming apparent.
I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing. I would be surprised if she has a majority for that. I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery. I doubt they have a majority for that. Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.
Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing. The Fourth Circuit assumed that was correct. They could send the case back to reconsider that point.
With this many splits among the Justices, there is no predicting the outcome.
I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing. I would be surprised if she has a majority for that. I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery. I doubt they have a majority for that. Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.
Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing. The Fourth Circuit assumed that was correct. They could send the case back to reconsider that point.
With this many splits among the Justices, there is no predicting the outcome.
Amy Howe's report of the argument is here.
Tomorrow the U.S. Supreme Court will hear the case of the younger of the D.C. Sniper pair, Lee Boyd Malvo. The case is Mathena v. Malvo, No. 18-217.CJLF's amicus brief in the case is here. Our press release is here.
In 2012, the U.S. Supreme Court decided in Miller v. Alabama that life in prison without possibility of parole could not be a mandatory sentence for murderers under 18 at the time of the crime. The decision effectively extended to juvenile LWOP the long-standing rule for capital cases for adults. See Woodson v. North Carolina (1976); Sumner v. Shuman (1987).
The bigger problem is the 2016 decision in Montgomery v. Louisiana. The core holding of that case is that Miller applies retroactively to cases on collateral review. In the course of reaching that result, however, there is a lot of expansive language regarding what must be considered before deciding that a 17-year-old should never be released for, e.g., gunning down 12 people, chosen at random, in cold blood. For the Supreme Court to vastly expand a rule in the process of deciding it is retroactive would be remarkable, to say the least. It would be especially strange to impose new requirements in states that have discretionary juvenile LWOP in a case that is about mandatory juvenile LWOP.
The Court's docket, with links to the documents in the case, is here. Amy Howe has this preview at Howe on the Court. Update: Kevin Daley has this article at the Daily Caller.
Update 2 (10/16): The transcript of oral argument is now available.
In writing my review of John Pfaff's anti-incarceration book Locked In, I was particularly struck by his argument that the absence of the incarcerated, criminal parent from the household was bad for the children and therefore an unaccounted-for cost to society.
This seemed to me to be a bad case of "Can't See the Trees for the Forest Syndrome," i.e., the fallacy of finding a fact that is true for the average of a group and assuming it is true for every member of the group.
Continue reading A Study on Criminal Parents and Their Children.
As previously noted on the blog, I wrote a review of Locked In by John Pfaff for the Federalist Society Review. I have recently been reminded of a previous review of the same book at Law & Liberty by Barry Latzer, whose invaluable work I have noted several times on this blog.
John F. Pfaff's Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform is probably the best book on so-called mass incarceration to date. Its great strength is that it is empirically grounded. Pfaff, a professor of law at Fordham, doesn't cherry-pick data to support some a priori theory, he grapples with the hard realities that the data present. As he well understands, this makes his argument for reducing imprisonment a very tough sell.
After all, if violent crime and other serious offenses are the primary reasons for incarceration then why should we reduce imprisonment? And if we still wish to disincarcerate, despite the compelling reasons for all the lockups, then how might this be achieved? Unfortunately, Pfaff's answers to these questions are the least persuasive portions of his book.
That is consistent with my view of the book.
The U.S. Supreme Court announced its December oral argument calendar Friday. Several criminal and related cases are on the docket.
NY State Rifle & Pistol v. City of New York, No. 18-280 leads off on Monday, December 2, and will get the most press if it is not canceled. Subsequent changes in state and local law gun control laws provide substantial grounds to believe the case is moot.
McKinney v. Arizona, No. 18-1109 closes out the session on Wednesday, December 11. The case involves the Arizona practice of the Supreme Court reweighing the aggravating and mitigating circumstances itself rather than sending the case back to the trial court for a new sentencing hearing. Current Arizona law for new trials requires the jury to do the weighing as well as find the aggravating circumstance that makes the case eligible for the death penalty. The murderer and his friends have filed copious briefing to the effect that the state court must apply current law with only scant attention to whether current federal law (the only law SCOTUS has jurisdiction to review) requires the jury to do the weighing at all. In Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002), the question decided was unambiguously limited to the finding of the aggravating circumstance, not the weighing.
Continue reading SCOTUS December Arguments.
Theodore Dalrymple has this article in the City Journal, contending that popular view that the nation's criminal justice system is unduly and harshly punitive is wrong. The twist is that the nation in question is Britain, not the United States.
Among other points, Dalrymple notes, as I have many times on this blog, that the popular metric of "incarceration rate" as a measure of "harshness" is wrong. I call this the Fallacy of the Irrelevant Denominator. The correct denominator is not the general population but a measure of crime. Getting the right measure is the tricky part.
Continue reading Unduly and Harshly Punitive?.
Many parts of the country are now in a headlong rush to spring as many criminals as their advocates think they can get away with. The proposals are becoming so extreme that they are raising alarms in places that don't often challenge the "progressive" agenda. The Sunday WaPo has this editorial:
Residents of the District of Columbia deserve protection from the most violent criminals and to be confident those offenders receive prison sentences commensurate with the gravity of their crimes. A bill pending in the D.C. Council would undermine that expectation and subject residents to unwarranted risks from convicted murderers, rapists and child sex abusers.
The legislation would directly benefit the most serious and violent criminals -- specifically, those who killed, raped or committed sexual abuse before reaching age 25 -- by making them eligible for release, or a reduced sentence, while still in their 30s.
It's important to be clear about the implication of the pending legislation, sponsored by D.C. Council member Charles Allen (D-Ward 6): Under the bill, if the gunmen who massacred innocent people in El Paso and Dayton, Ohio, this month had instead committed their crimes in the District -- and had both survived -- one would be eligible for release or reduced sentence at age 36, at a judge's discretion; the other at age 39.
Here is a follow-up on my "poster boy" post of last week. Eugene Volokh has reprinted the post at his eponymous Conspiracy and added some additional investigation.
A reporter at NJ.com told Eugene that he just reported Senator Booker's statement. However, the first three paragraphs of the story simply report the supposed facts of Underwood's case with no quote marks and no mention of Senator Booker.
If the same reporter had received a press release from Senator Cotton, would he copy the facts stated there into his story with no checking, no quote marks, and no attribution? I seriously doubt it. That is a good example of the confirmation bias referred to in the original post.
Sadie Gurman has this article in the WSJ on a wave of prisoner releases today as a result of the First Step Act.
Federal sentencing law has long been more severe than most state laws, and some adjustments are in order. I was in favor of bringing down then-Senator Biden's absurd 100/1 crack/powder ratio for cocaine, for example.
Whether the First Step Act is successfully implemented to separate those who actually deserve earlier release from those who need to be kept locked up remains to be seen. The dismal drafting of the bill certainly is no guarantee. See this post and this letter.
With Bill Barr at the helm, we at least have a shot that this won't turn out to be a massive jailbreak. Of course, administrative implementation can be reversed by a subsequent administration, but the policies established at the threshold do have a tendency to get baked in, so there is some hope.
Ann Coulter has this post on her website. She can be over the top at times, so I did some checking before posting on it myself. Ms. Coulter writes:
Over the weekend, NBC News investigative reporter Leigh Ann Caldwell appeared on MSNBC's "Kasie DC" to tell the story of Bill Underwood, loving parent and prison mentor, who has already spent nearly 30 years in prison for a nonviolent drug crime.Ms. Caldwell reported:
"William Underwood, now 65 years old, was sentenced to life in prison without parole for a nonviolent drug-related crime. It was his first felony, but in the middle of the tough-on-crime era, the judge showed no leniency. With no hope of ever walking free again, Underwood has made the best of his time in prison, mentoring others and staying devoted to his children and grandchildren, as (his daughter) Ebony fights for his release."
The segment is here. That is indeed what Ms. Caldwell says. Is it true? Does she care if it's true?
Continue reading A Poster Boy for the Long-Sentenced, Non-Violent Drug Offender?.
In most American jurisdictions, there are provisions by which a person who could be incarcerated for an offense can be released but subject to supervision under conditions. If he violates the conditions, he can be sent to jail or prison with a more expedited procedure and lower burden of proof than would be required for a new criminal conviction. These arrangements include probation, parole, and, in the federal system, "supervised release."
In most cases, the time that the conditions-violator spends behind bars is time he could have spent there for the original offense. However, in 18 U.S.C. §3583(k), Congress provided that violators found to have committed certain new offenses, including possession of child pornography, must receive an additional prison term of five years, not limited by the term for the original offense.
Not surprisingly, the Supreme Court held today that this term is more like a new conviction than a traditional parole/probation revocation, and it is subject to the requirements of trial by jury and proof beyond a reasonable doubt under the Apprendi line of cases. The case is United States v. Haymond, No. 17-1672.
Continue reading An Odd "Supervised Release" Law Bites the Apprendi Dust.
