Recently in Sentencing Category

In a post a few days ago, I noted what was advertised as a scholarly article arguing that "data-driven" analysis, assessed through the lens of law and economics, tells us that we can and should abolish prison.  I had my doubts, as did everyone who commented on the entry.

Still, legal academics, for all their zaniness, keep on keepin' on.

Today's specimen, featured (as was its predecessor) in SL&P, tells us that we can virtually abolish prison through technology.  Ankle bracelets, movement monitors, and a nifty gadget called a "conducted energy device" (which appears to be a euphemism for an electronic shock belt) would "achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection."

Where to start?
A:  Because it comes up with stuff like this, which, to give you the spoiler, recommends that the prison population be reduced, not by 25% or 50% or 75%, but by 100%.  Yes, we should abolish prison, and come up with......uh, something.

This "analysis" stems from  --  have you heard this before?  --  a "data driven" approach, specifically that taken by the law and economics side of the house, much in vogue at the University of Chicago.  Law and economics is insightful in many ways, and I teach components of it in my course at Georgetown Law.  At some point, however, a sense of modesty must be allowed to intrude.

One of the author's concluding paragraphs leads off with this sentence:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.

Just so.  The usual name for these "alternative nonmonetary sanctions" is "jail."

Since 2011, California has gone further than other states in the rapid dismantling of its tough-on-crime policies, so we have been keeping track of California crime rates as compared with the nation as a whole.  Here are graphs showing 2011 to 2015 with data from the FBI's Uniform Crime Reports.*

The "realignment" bill, AB109, took effect in October 2011, and one would not expect much effect in the first couple of months.  So we can consider 2011 to be a base year.  California shows a jump in violent crime the following year while the rate for the country as a whole was essentially flat.  California had a sharp jump in property crime for 2012, while the national rate was declining.
As has been reported on this blog and in many other places, crime across the cities of this country has been on a tear the last two years the likes of which we have not seen for decades.  After a generation of keeping our nerve and getting tough under Bill Clinton and George Bush, we decided that the real problem is thuggish police and overcrowded prisons.  So we started down the road of policing consent decrees and retroactively lowered sentences.

Liking the results?

But wait, it gets worse.  Lots worse.
Today's News Scan reveals too briefly the central, and dispositive, flaw in the product sentencing reformers are selling. Lower sentences, combined with early release and the (typically false if not absurd) promise of close community supervision, is a prescription for death.  

I'm not going to gussy it up or attempt any of the word blizzards we see from the sentencing reform crowd.  These people simply aren't honest about the deadly cost their programs will impose on normal people.  They weren't honest in the Wendell Callahan case (a triple murder that sprung from a 2010 version of federal sentencing "reform"), and they've been at least equally dishonest in describing California's disastrous version, initially "realignment," and more recently the even more thoroughly botched Prop 47.

How much murder should the country accept, and how much will it get, if it buys into the sprawling early release programs sentencing reformers want to sell us?  Until we get honest and specific answers to these questions, our stance must continue to be a loud NO.  You wouldn't buy a car without knowing how much money it's going to cost. Why would you buy sentencing "reform" without knowing how much murder it's going to bring?
A:  To the morgue.

And what are the ideas behind sentencing reform?  We know them pretty well by now:  That we should be readier to give second chances, that youthful offenders in particular need understanding, that we must resist the impulse to incarcerate, that racial bias pervades the system, and that opportunities for education and community involvement are better than warehousing people.

See if you can spot any of those ideas in this story, described in more detail after the break.  Then see if you can figure out why the jurisdiction involved is one of the most dangerous and miserable cities in America.

Multiple Punishments for One Act

The California Supreme Court today decided People v. Corpening, S228258, involving the problem of a single act violating more than one statute:

A defendant may not be punished more than once for a single physical act that violates multiple provisions of the Penal Code. The charging document in this case identified the same forceful taking of a vehicle as the physical act completing the actus reus for both robbery and carjacking. Where the same physical act accomplishes the actus reus requirement for more than one crime, that single act cannot give rise to multiple punishment. Because that is precisely what happened here, Corpening's one-year robbery sentence must be stayed.

When the Mask Drops

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When pro-criminal groups thought (or fooled themselves into thinking) that they had a chance for federal sentencing "reform," what they said they envisioned was sentencing reduction for "low level, non-violent" offenders.  If you've read that phrase once, you've read it a million times.  

Now that these groups understand they have no chance at such "reform" for the foreseeable future, they let us in on what the plan actually was.  The stuff about "low level, non-violent" offenders was a head fake.  Here's the actual story, courtesy of the New York Times and the Brennan Center:

The [Center's] report also recommends a reduction in sentences for major crimes that account for a majority of the prison population -- aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.)  If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.

Under a saner system, the report says, nearly 40 percent of the country's inmate population could be released from prison without jeopardizing public safety. 

As crime rises in may parts of the country, particularly in urban centers and states invested heavily in alternative sentencing, the call to end so called "mass incarceration" is still a high priority for the left as evidenced by this OpEd in the Sacramento Bee by Foon Rhee.  The author praises the outgoing President's embrace of sentencing reform and California's aggressive alternative sentencing policies, but he fears that that the incoming President will reverse this trend.  He suggests that on top of the tens of thousands of criminals already released early under these policies another 364,000 state and federal non-violent and drug offenders can be released without threatening public safety. 

The next day, a story buried in the same paper reported that drug overdose deaths have increased by 33% over the last five years, according to the CDC. A more thorough story on this issue was written by Michael Casey of CNS news.  A 2015 report by the Urban Institute found that 99% of drug offenders in federal prison were convicted of trafficking.  Anyone familiar with criminal trials understands that virtually all of the dealers got a plea bargain. 

In California, as a result of Proposition 47, which converted felony drug possession to a misdemeanor, drug arrests are down dramatically.  Under the state's Realignment law, most drug dealers do not go to prison anymore and users, if police even bother to arrest them, are cited and punished with a few hours in a local jail as reported in the Desert Sun. 

There has been much debate on this blog regarding whether drug dealers should be considered violent criminals.   Assessing the hundreds of thousands of lives destroyed by the illegal drugs they sell, I would say yes.  Mr. Rhee and others who think like him would likely disagree, as I am sure that they would be quick to deny any connection between the mass release of federal and state drug dealers and the increase in overdose deaths. 
Santa Clara County Judge Aaron Persky paid careful attention to defense submissions in the Stanford rape case this past spring, including, famously, the one arguing that the defendant, varsity swimmer Brock Turner, should not be forced to pay a steep price for merely "20 minutes of action."

Normal people would have a hard time understanding that "20 minutes of action" is defense lingo for dragging a mostly inebriated young woman behind a dumpster, pulling her pants down, and having some good, 'ole college fun before been spotted and chased down by two shocked bystanders.  But normal people don't swoon over sexual predators, either.

Even liberals had to pretend to be shocked by the six month "sentence" Persky gave Turner (in reality, just three months actually served).  A petition of complaint was filed before the Commission on Judicial Performance, which today cleared the Judge. Its conclusions are here.

Blowing Smoke on Sentencing Reform

The pro-defendant Marshall Project has published a piece setting forth four reasons that mass sentencing reduction for drug traffickers  --  more often palmed off as sentencing "reform"  --  might do better in this Congress than the last one.

What the piece actually establishes is that a certain weed is more popular at the Marshall Project than I had thought.
An implicit assumption in the outcry for releasing "nonviolent offenders" is that criminals specialize, and a person in prison for, say, burglary, is no more likely to commit a violent crime than regular law-abiding people are.  Last month, California voters approved an initiative for releasing supposedly "nonviolent" criminals by a landslide even while they rejected an initiative to repeal the death penalty by a greater margin than they did four years ago.  That indicates the extent to which the "nonviolent offender" myth has taken hold.

But it's a bunch of hooey.  Today the U.S. Bureau of Justice Statistics released supplemental data on Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010.

How many prisoners released in 2005 were rearrested by 2010, and for what crimes?

For those committed for violent offenses, 33.1% were rearrested for another violent offense.  For those whose most serious commitment offense was classified as a property offense, 28.5% were rearrested for a violent offense.

Is that a big difference?  No, it is a small, bordering on trivial, difference.  The premise that "nonviolent offenders" can be released without placing law-abiding people at increased risk of violent victimization is just plain wrong.
I wrote a few days ago about the hundreds of victims of murder, rape and robbery whose victimizers were set loose early because of the sentencing "reform" statute followed in the District of Columbia.  That statute, the Youth Rehabilitation Act, was born of exactly and precisely the thinking that continues to push sentencing "reform" in Congress:  That we must avoid the collateral consequences of giving young adults a felony record, that we're too punitive, that the system is racially biased, and that everyone deserves a second chance. 

The problem is that these "youthful offenders" overwhelmingly do not get rehabilitated, having no particular interest in the matter.  And why should they? The system itself rushes to tell them that their predation just isn't that serious.  To whatever minor extent it is, however, the problem is not with them.  It's with us. The difficulty lies not with their behavior, but with the fact that the electorate (particularly Trump voters) are simpleminded trailer park trash, prosecutors are extortionists, and cops are Nazis.

Where this sort of thinking leads is the subject of another excellent article in today's Washington Post, "The crimes against them were terrifying, but the judicial system made it worse."  (Link not presently available, but you can Google the title).

Avoid Mandatory Minimums, This Is What You Get

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The Washington Post published a story today that should bring shame to the cheerleaders for "leniency" for "young offenders" in order to give them a "second chance."  

I've been asking for years, "A second chance to do what?" The Post, a liberal paper that supports sentencing "reform," has the admirable and astonishing honesty finally to answer that question (emphasis added):

Hundreds of criminals sentenced by D.C. judges under crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation's capital....

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes. The criminals have often repaid that leniency by escalating their crimes of violence upon release.

Are the people who support avoiding, diluting (or, in some cases, outright repealing) mandatory minimums listening?  Let me ask that another way:  Can they take time off from their catered Bethesda and Georgetown parties to give a hoot about the mostly African American population they leave behind in DC to fend for themselves?

LifeZette, a new on-line magazine, is a breath of fresh air in Washington, DC. Instead of the weary, threadbare cliches from the liberal Establishment that have been driving the conversation inside the Beltway for decades, it presents a frankly conservative perspective.  

I was grateful to be able to contribute mine this morning, "Trump Can Reverse the Deadly Spike in Violent Crime."

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