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Proposition 47

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California's wine country is not exactly conservative territory, to put it mildly.  Napa County went 2-1 for Obama over Romney.  But the St. Helena Star has a scathing editorial on the "defining criminality down" initiative, Proposition 47:

Carrying a stolen handgun. Possession of a date-rape drug. Carrying stolen credit cards. Financial elder abuse.

If these sound like minor, misdemeanor-level offenses to you, then you'll be interested in voting for Proposition 47.

But if they strike you as being the serious felonies that they are, then vote no on Prop. 47.

In an Orwellian touch, supporters -- who include billionaire liberal financier George Soros -- have dubbed the atrociously written proposition the "Safe Neighborhoods and Schools Act," based on the notion that the money saved by not incarcerating so-called "non-serious" criminals will be used for positive social programs.

The problem, as Napa County District Attorney Gary Lieberstein cogently explained to the Star's editorial board, is the proposition's definition of "non-serious." It's hard to imagine a rational person who would consider the drug and property crimes mentioned above to be "non-serious," but that's exactly how they would be treated if Prop. 47 passes.
However, the Field Poll indicates it is highly likely to pass.

FedSoc Event on Prop. 47

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The Federalist Society has a debate Monday evening in San Francisco on the "defining criminality down" ballot measure, Proposition 47.  SF Public Defender Jeff Adachi will speak for the measure, and San Mateo DA Steve Wagstaffe will speak against it.  Announcement is here.

Earth to Academia Re: Jones Certiorari Denial

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The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.
If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

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Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

Should We Ever Have LWOP for Juveniles?

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Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.

No on Proposition 47

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Proposition 47 on California's ballot would reduce a potload of felonies to misdemeanors.  The District Attorney of San Francisco is a sponsor.  On the other side of the Bay, Alameda County District Attorney Nancy O'Malley is against it.  She has this op-ed in the SF Chron:

Vote NO on Proposition 47. It is a Trojan horse. Under the guise of protecting schools and neighborhoods, Prop. 47 turns certain crimes into misdemeanors and exposes Californians to significant harm. For instance, Prop. 47 makes possession of date-rape drugs into a misdemeanor at a time when we're combatting sexual assault on college campuses. Too many people fall prey to identity theft. By reducing the crime of identity theft to a misdemeanor, Prop. 47 carries neither consequence to the thief nor relief to the victims, who are forever haunted by the aftermath of the crime.

All communities struggle with gun violence. Stolen guns are often used to commit violent offenses, shootings and murders. Too many children and innocent bystanders have died from gunfire. Stealing a firearm, under Prop. 47, would be only a misdemeanor. That reduction does nothing to ensure safe neighborhoods or create safe schools.

Catch and Release

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Federal Judge Richard Kopf at Hercules and the Umpire has this post with a funny cartoon and a serious point.  Down in the comments, he concedes that the point is poorly worded in the original post and substitutes this wording:

My point is really two fold: (1) most of the folks I see should go to prison and most reasonable observers would agree; (2) in the few "close" cases where a judge must decide between prison and probation, I am not good at making that decision personally and [18 U.S.C.] section 3553(a) is not much help.
One of the strongest arguments for continuing to hang tough on imprisonment, and refusing to become unnerved by the racially-charged hectoring of the "Incarceration Nation" crowd, is easy to summarize:  Prison works.  When we have more prison, we have less crime. When we have less prison, we have more crime. It's not a whole lot more complex than that.

This was confirmed once again by statistics posted today on Sentencing Law and Policy, run by my friendly (if defense-leaning) adversary, Doug Berman.  Prof. Berman notes that newly released BJS statistics show that we had a modest decline in crime in 2013.  This is the first time in the last three years that crime went down; it went up in 2011 and 2012.

OK, quick now, what else happened in 2013?  Right you are:  For the first time in the last three years, going back to 2010, the prison population went up.

What an amazing coincidence!!!  But just how amazing is a story that needs to be told, lest we fall for the "smart" sentencing line.
Sen. Chuck Grassley, along with Sen. Jeff Sessions, has been taking the lead in exposing the truth about the now-quite-dead Smarter Sentencing Act.  Today, he put a hole in one of the main arguments for it  --  that it will save a bunch of money.

Of course, we can always save money, in the short run, by cutting the prison population and thus incarceration costs.  In this sense, the more we cut, the more we'll save.  Think of the boatload we would save if we just let 90% of them loose!

The problem with this argument, as with most borne of the blinkered ideology that sees felons as victims who'd massively contribute to society if we'd just shovel social services at them, is that it sees only one side of the ledger while ignoring or trivializing the other.  Senator Grassley put some reality (and honesty) into the debate by his announcement today citing none other than the CBO.  It turns out that a goodly chunk of the money we'd save on one end would be paid out through the other.  Imagine that. 

"Smart Sentencing" Heads For the Gutter

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I was astounded to find on Sentencing Law and Policy this title, "'A Holocaust in Slow Motion:  America's Mass Incarceration and the Role of Discretion.'"  The article is introduced on the blog thusly:

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don't lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels.


Yes, well, we all know what other kind of incarceration was "fundamentally unrelated to actual crimes"  --  concentration camps!

The title is not merely "provocative," as it's being soft-peddled.  It's appalling and disgusting, and it's no mere coincidence that it comes in the immediate aftermath of two gruesome beheadings by the new Nazis, ISIS.  The stomach-turning slur against the thousands of people  --  judges, lawyers, ordinary citizens and crime victims  -- who believe incarceration in our country has helped reduce crime is mind-boggling.

The Victims of "Smart Sentencing"

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Over most of the past decade liberal groups, which originally opposed and have for years sought to eliminate the so-called  "harsh" habitual criminal sentencing policies adopted in the 80s and 90s, have launched collaborative efforts with libertarians and some Republicans to encourage alternative sentencing.  "Right on Crime","Smart on Crime" and "Smart Sentencing" advocates have been successful at changing policies in many parts of the country to reduce sentences for criminals categorized as non-violent, and placing them instead in community programs to help them become law-abiding members of society, with the promise of saving millions in state and federal prison costs.  At a time when crime rates are relatively low, and our European betters and Hollywood movie stars are constantly scolding America as the incarceration nation, the allure of an America where bright, dedicated government employees guide minor offenders off the criminal path is difficult for many to resist. 
I had high hopes for Eric Holder when he was appointed Attorney General.  He had at one point been a career prosecutor, and by the mid-nineties had become the Clinton-appointed US Attorney for the District of Columbia.  He also seemed to me, from the very few interactions I had with him, to be a level-headed man with a wicked sense of humor.

He still has the sense of humor, but has become far too political as Attorney General. Among other things, he plays to the Democratic Party's constituencies pretty shamelessly, see, e.g., my post here, and did so again last Friday in his obsequious speech to those who are ostensibly (though not actually) his "adversaries" in the criminal defense bar.  A day or two later, he gave a much shorter, and perfunctory, video talk to the prosecutors whose work he's busy scuttling.

'Twas not ever thus.

About That "Unstoppable Momentum"....

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Renowned sentencing expert (and long time buddy) Prof. Doug Berman put up a post about a year ago with this title:  "Could Momentum for Sentencing Reform Now Be Unstoppable in the Federal System?"  The gist of it was that, what with Eric Holder on board, the very enlightened coalition of libertarian-leaning Republicans like Rand Paul, and liberal Democrats, would enact significant sentencing reform legislation.  ("Sentencing reform," for those unfamiliar, means only one thing, to wit, putting felons back on the street faster than they get there now).

Doug quoted a gushing article by Juan Williams in The Hill newspaper that said, among other things:

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.

So where are we now with that which is unstoppable?

Sentencing by the Numbers

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Devlin Barrett reports at WSJ Law Blog:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

"By basing sentencing decisions on static factors and immutable characteristics--like the defendant's education level, socioeconomic background, or neighborhood--they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society," Mr. Holder told the defense lawyers. Criminal sentences, he said, "should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
I have disagreed with and criticized Mr. Holder at times, sometimes strongly, but he's right on this.  The sentence for a criminal offense should depend on the crime the defendant chose to commit and the crimes he has chosen to commit in the past.  That is justice.

See also today's News Scan and the story linked there.

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