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August 11, 2013

New York Times column spotlights extreme application of ACCA in US v. Young

A few weeks ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term in the Armed Career Criminal Act.  I am now pleased to see Nicholas Kristof giving this case some attention via this new op-ed column headlined "Help Thy Neighbor and Go Straight to Prison."   Here are excerpts of a piece about a case that I hope gets lots and lots of attention as it makes its way up to the Sixth Circuit:

If you want to understand all that is wrong with America’s criminal justice system, take a look at the nightmare experienced by Edward Young.

Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around.  Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn.

Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings.  He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them. “He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”

Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods.  The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence.

The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.

In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison.  It didn’t matter that the local authorities eventually dismissed the burglary charges.

So the federal government, at a time when it is cutting education spending, is preparing to spend $415,000 over the next 15 years to imprison a man for innocently possessing seven shotgun shells while trying to help a widow in the neighborhood.  And, under the law, there is no early release: Young will spend the full 15 years in prison.

This case captures what is wrong with our “justice” system: We have invested in mass incarceration in ways that are crushingly expensive, break up families and are often simply cruel. With less than 5 percent of the world’s population, the United States has almost one-quarter of the world’s prisoners.

This hasn’t always been the case, but it is the result of policies such as mandatory minimum sentences since the 1970s.  In 1978, the United States had 307,000 inmates in state and federal prisons. That soared to a peak of more than 1.6 million in 2009. Since then, the number of inmates has declined for three consecutive years to 1.57 million in 2012.  The number of juveniles detained has also begun to drop since peaking in 2000, although the U.S. still detains children at a rate five times that of the next highest country.

In short, there’s some hope that this American experiment in mass incarceration has been recognized as a failure and will be gradually unwound.  Among the leaders in moving away from the old policies are blue states and red states alike, including New York and Texas. But America still has twice as many prisoners today as under President Ronald Reagan.

Almost everyone seems to acknowledge that locking up vast numbers of nonviolent offenders is a waste of money. California devotes $179,400 to keep a juvenile in detention for a year, and spends less than $10,000 per student in its schools. Granted, mass incarceration may have been one factor in reduced crime in the last couple of decades; there’s mixed evidence. But, if so, the economic and social cost has been enormous — including the breakup of families and the increased risk that children of those families will become criminals a generation later....

When almost 1 percent of Americans are imprisoned (and a far higher percentage of men of color in low-income neighborhoods), our criminal justice system becomes a cause of family breakdown and contributes to the delinquency of a generation of children.  And mass incarceration interacts with other government policies, such as the way the drug war is implemented, to have a disproportionate effect on African-Americans.  Black men use marijuana at roughly the same rate as white men but are more than three times as likely to be arrested over it.

Young is particularly close to his children, ages 6 to 16.  After back problems and rheumatoid arthritis left him disabled, he was a stay-at-home dad while his wife worked in a doctor’s office.  When the judge announced the sentence, the children all burst into tears.  “I can’t believe my kids lose their daddy for the next 15 years,” his wife, Stacy, told me.  “He never tried to get a firearm in the 16 years I was with him. It’s crazy. He’s getting a longer sentence than people who’ve killed or raped.”...

I asked Killian, the United States attorney, why on earth he would want to send a man to prison for 15 years for innocently possessing seven shotgun shells. “The case raised serious public safety concerns,” Killian said.  Oh.

The classic caricature of justice run amok is Inspector Javert in Victor Hugo’s novel “Les Misérables,” pursuing Jean Valjean for stealing bread for hungry children.  In that case, Valjean knew that he was breaking the law; Edward Young had no idea.

Some day, Americans will look back and wonder at how we as a society could be much more willing to invest in prisons than in schools. They will be astonished that we sent a man to federal prison for 15 years for trying to help a widow.

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"I asked Killian, the United States attorney, why on earth he would want to send a man to prison for 15 years for innocently possessing seven shotgun shells. “The case raised serious public safety concerns,” Killian said."

Quite right say various commentators on this blog.

Posted by: onlooker 14 | Aug 11, 2013 2:44:23 PM

Good piece, though someone needs to tell Kristof about good time credit.

Posted by: Todd | Aug 11, 2013 3:07:05 PM

This helps explain why you might want a safety valve that extends beyond simply drug offenses and instead differentiates between violent and non-violent offenses. This guy admitted guilt, cooperated with law enforcement (consented to search of his house right away), and didn't engage in violence. Surely 15 years is excessive. Not to mention the obvious: WHY IS THIS A FEDERAL CASE?

Posted by: Thinkaboutit | Aug 11, 2013 3:20:23 PM

In my opinion 15 years is not at all excessive under the described circumstances of a repeat offender who failed to learn any productive lessons on his first trip through the criminal justice system. I would say execution is a far more appropriate outcome than any term of years.

People who give up on the rules of society should simply have society give up on them.

Posted by: Soronel Haetir | Aug 11, 2013 3:50:12 PM

The President is free to commute the sentence any 'ole time. If he doesn't, take it up with him. I did not vote for this bunch.

I guess the other thing I would say is that this piece perpetuates the fiction that the American criminal justice system is a failure.

When crime has fallen 50% in two decades, you can say many things about the criminal justice system, but that it has "failed" is not one of them.

I'm still waiting for the NYT to write a story about the tens of thousands of people who did NOT become crime victims because we woke up after the crime wave of the Sixties and Seventies. Could anyone tell me when I can expect to see that story?

Posted by: Bill Otis | Aug 11, 2013 3:53:14 PM

Bill,

To me, the essential weakness with your repeated incantations about crime reduction, is that they fail to consider diminishing returns to punishment scale. Assuming a link between increased incarceration and reduced crime rates, that, of course, does not mean there are not many, many cases in which reducing prison terms substantially would have little or no effect of on crime rates (or even a salutory effect, if the lesser punishment reduces redicivism or problems with the next generation). It could well be that longer terms for the worst of the worst say 10% is responsible for most of the decreases in crime rates that are attributable to more incarceration, and we could cut our prison populations substantially, save a lot of money, avoid a lot of draconian punishments on the particular facts, and still see substantially lower crime rates. What if you and others who regularly denegrate concerns like those expressed in this column, joined reformers in looking for ways effectively to address overly-harsh punishment in particular circumstances, to the benefit and all. Not sure why you and the other hardliners on here don't seem to have more interest in this sort of nuanced, economically and empirically-driven approach. To take this case, do you really believe say 3-5 years, if that, wouldn't be enough? Seems to me there is a lot of potential for common ground here, and that would be a lot more constructive than the continued flaming back and forth, which seems to asssume the issue is black and white. What say you to that? Thanks.

Alan

Posted by: Alan | Aug 11, 2013 4:42:50 PM

Alan --

"To me, the essential weakness with your repeated incantations about crime reduction..."

They will be repeated as long as the NYT and its allies pretend that increases in imprisonment have little or nothing to do with decreases in crime. When you get that fiction to stop, my response to it will stop.

"...is that they fail to consider diminishing returns to punishment scale."

First things first. When the Left openly admits that imprisonment does indeed help reduce crime, THEN we can talk about diminishing returns to scale. For the moment, I would just add that diminishing returns are still returns.

"Assuming a link between increased incarceration and reduced crime rates, that, of course, does not mean there are not many, many cases in which reducing prison terms substantially would have little or no effect of on crime rates..."

You don't specify what you mean by "many, many cases." Eight hundred? Ten thousand? A hundred thousand? I'd like to have a much better idea of how many criminals you'd like to release.

In addition, while crime reduction is an important goal of prison, it is not the most important goal. Just punishment is, but you don't mention that.

"...(or even a salutory effect, if the lesser punishment reduces redicivism or problems with the next generation)."

What reduces recidivism is a change of heart and mind by the criminal. And if lesser punishment reduces recidivism, why do we have so much less crime now that we have, not lesser punishment, but greater?

"It could well be that longer terms for the worst of the worst say 10% is responsible for most of the decreases in crime rates that are attributable to more incarceration..."

Sounds like speculation. Do you have any documentation for that?

"...and we could cut our prison populations substantially, save a lot of money, avoid a lot of draconian punishments on the particular facts, and still see substantially lower crime rates."

Still speculation. The demonstrated fact over the last 40 years is that when you have less prison, you have more crime, and when you have more prison, you have less crime.

"What if you and others who regularly denegrate concerns like those expressed in this column, joined reformers in looking for ways effectively to address overly-harsh punishment in particular circumstances, to the benefit and all."

The Constitution already provides a way "to address overly-harsh punishment," and has for over 200 years. The power of executive clemency is designed to be used in exceptional cases like this one. As I said, take it up with the President.

I would add only that hyping one outlier case is a cheap and deceptive form of argument. Conservatives shouldn't do it and neither should liberals.

"Not sure why you and the other hardliners on here don't seem to have more interest in this sort of nuanced, economically and empirically-driven approach."

Because it's a head fake. The Left is going to start with what is advertised as a "nuanced, economically and empirically-driven approach" and, once you've got it, demand more and more shrinkage of any effort to combat crime.

I have seen exactly this in a strongly related context, i.e., the fight against the death penalty. Liberals say they want to replace the DP with ironclad LWOP, but they don't. They want to get rid of the death penalty and then FEROCIOUSLY ATTACK life without parole, as being inhumane, a slow-motion DP, barbaric, and all the rest of their buzz words.

The nub here is the underlying ideology, which I strongly suspect you share. The ideology is that criminals aren't bad, they're just victims -- victims of society's racism, callousness, etc. Since they're victims, they deserve little if any punishment. The way to get to little if any punishment is incrementalism. So they'll start with the low-hanging fruit, like this case, but they're not about to stop. They fully intend to continue until the prison population is zero.

And why not? If, as in the liberal dream, those society denominates as criminals are actually blameless, the prison population SHOULD be zero.

Posted by: Bill Otis | Aug 11, 2013 5:32:38 PM

well Soronel in this case i think the man and his family have every legal and moral right to use whatever means necessary to escape a patently illegal imprisonment and escape this screwed up country even if it means lethal violance.

The state brought it on itself. especially a typical govt fucktard like this!

"I asked Killian, the United States attorney, why on earth he would want to send a man to prison for 15 years for innocently possessing seven shotgun shells. “The case raised serious public safety concerns,” Killian said. Oh."

Sorry but the respons should not have been "Oh" a better one would have been

"Sorry you govt fucktard but your reponse just proves again what a total wash our current govt is and that is is govt fuckups like yourself that prove that every time you open your mouth!"

Posted by: rodsmith | Aug 11, 2013 9:28:47 PM

rodsmith --

You crack me up.

Killian is indeed a tinhorn tyrant, see http://www.crimeandconsequences.com/crimblog/2013/06/its-official-first-amendment-g.html

When he's not trying to get a very long sentence for a defendant who sure seems to deserve less, he's trying to intimidate those with the audacity to think that the First Amendment protects criticizing Jihad.

Nice appointment there, Mr. President.

Posted by: Bill Otis | Aug 11, 2013 11:28:43 PM

Again, a lot of extremist-based argument that only results in extreme results, one way or the other, which the end result is no good for society as a whole.

"Zero-tolerance" laws, no matter whether they are expulsions from school for elemntary school kids pointing fingers and saying "Bang Bang!", or the possession of shell casings triggering a mandatory minimum sentence, are not conducive to justice as a whole. I think the problem here is that he was justifiably suspected of a crime that fit his prior M.O. with evidence of which he was involved. The police found stolen items, and the degree in which they found them indicated they may have had a case.

So once the shells were found, the had an ironclad sentence that went beyond that of any non-violent burglary, in which they could enlist the help of the federal system. To this end, they didn't even bother investigating his involvement in burglary, resulting in the dropping of the burglary charges.

In short, both the offender erred in showing recidivist tendencies with regard to burglary, while the government erred in unethically, though legally, convicting and incarcerating the offender to a hard 15 in federal. While I agree that recidivists should, in general, be treated more harshly, the method in which they should be treated should be not be as ethically underhanded as the original crime.

This is not being "soft" on crime, but being constitutionally hard and true.

Personally, I'm angry that he had a family and, ostensibly, continued his thieving ways, and that aspect of his life will not be addressed until he's out of prison, and at that time, his family will most likely be gone, along with any reasonable hope of recovery.

Posted by: Eric Knight | Aug 12, 2013 1:31:28 AM

Glad to see that someone up there is listening:'

From CNN:

"Holder plans to announce [to the ABA] that he's instructing federal prosecutors not to charge garden-variety drug dealers with crimes that lead to lengthy mandatory minimum sentences.

"Certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins," the attorney general plans to say.

Holder is also expected to announce that he's expanding efforts to reduce federal prison populations by releasing elderly prisoners sooner, by allowing local U.S. Attorneys not to prosecute some kinds of cases in federal court and by diverting "low-level offenders" to programs that keep them out of hardcore federal prisons.

The initiative is aimed at building on growing bipartisan momentum at the state level—and to a lesser intent in Congress—to retreat from some of the harshest anti-crime measures adopted in the 1990s. As fear of violent crime has dropped precipitously in recent years, critics of lengthy federal sentences are trying to capitalize on the intensifying pressure on the federal budget to persuade Republicans and conservative Democrats to consider measures that might have been attacked a couple of decades ago as soft on crime.

Such efforts at the state level have caused prison populations there to start dropping, but the federal prisoner count has continued to grow to more than 219,000."

Posted by: Michael R. Levine | Aug 12, 2013 6:26:43 AM

Eric Knight: You nailed it.

So once the shells were found, the had an ironclad sentence that went beyond that of any non-violent burglary, in which they could enlist the help of the federal system. To this end, they didn't even bother investigating his involvement in burglary, resulting in the dropping of the burglary charges.

In short, both the offender erred in showing recidivist tendencies with regard to burglary, while the government erred in unethically, though legally, convicting and incarcerating the offender to a hard 15 in federal. While I agree that recidivists should, in general, be treated more harshly, the method in which they should be treated should be not be as ethically underhanded as the original crime.

Young should have been savvy enough to ditch the shells. He also apparently had some items that may or may not have been stolen.

The AUSA overcharged it tremendously...It really never should have been a federal case anyway..My beef is that the feds use the max power and punishment on nearly all cases.. They go to great lengths to get the maximum sentence on each case.. Thats why we have to take the power away from the AUSA, they pretty much determine what the sentence is based on the charges and what put in the PSR they grant numerous enhancements....

Few judges have the savvy to use the grey matter that they were born with and any (guts) to vary away from the low end of the guidelines...Yes there are serveral judges that do, and I commend them...There will never be any reform, until the guidelines are amended
to not get the max sentence...Reform is a total smoke screen and its not going to happen any time in the next 5-10 yrs..Too many butts need kissing so people keep there job.. Lets face it, the justice system is a huge buisiness..And politicians will do ANYTHING to keep their cush jobs. Including Holder who is greasing the pan for his next job...

Posted by: MidWest Guy | Aug 12, 2013 11:11:08 AM

LOL yes i saw that one bill i do visit your other blog just never commented there.

Posted by: rodsmith | Aug 12, 2013 12:25:12 PM

Eric:

As usual, you nailed it!

What the blind do not see is the general disrespect that these types of cases bring to the Justice System.

Posted by: albeed | Aug 12, 2013 3:02:38 PM


i'm with you albeed. Everyone of these retarded idiotic and illegal decisions just brings that back of the camel one step closer to going BOOM!

At that point the streets will run with blood when the masses finaly get fedup! It's happened over and over and over and over and over and over in history.

You would think that the "arab summer" the middle east just went though would be a hit!

This country is not perfect. It's also not immume from it happening here!


Posted by: rodsmith | Aug 12, 2013 9:34:09 PM

This story is very similar to the case of DANE ALLEN YIRKOVSKY. https://bulk.resource.org/courts.gov/c/F3/259/259.F3d.704.00-3442.html

The Eighth Cir. affirmed the 15-year mandatory sentence. In a footnote, it commented: "In our view Yirkovsky's sentence of fifteen years is an extreme penalty under the facts as presented to this court. However, as we state above, our hands are tied in this matter by the mandatory minimum sentence which Congress established in 18 U.S.C. § 924(e)."

Vera Bergelson, Rutgers-Newark

Posted by: Vera Bergelson | Aug 14, 2013 7:18:35 PM

well vera maybe it's time the courts informed our fuckup congress that untill you can do your own damn jog. IE. pass a balanced budget. Hell ANY budget each year. NOTHING else you do will be considered legal since last time we looked that is your PRIMARY job! Fail it and your noting but a waste of time and money and nothing else you do each year will be considered legal and will just have to be redon the NEXT year IF you then manage to pass a budget!

Besides which last time i looked we answer the the United States Supreme Court not congrerss.

Posted by: rodsmith | Aug 15, 2013 11:35:54 AM

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