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January 1, 2017

Any astute thoughts about the sentencing year that was or the year that will be?

A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics.  That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:

1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record.  The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.

2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.

As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.

January 1, 2017 at 04:06 PM | Permalink


My district's councilman, Bill Farmer, on Lexington, Kentucky, was just sworn into office at a local tavern (the Chevy Chase Inn) by a Senior U.S. District Judge, Joe Hood. After Bill took the oath, Judge Hood "sentenced" him to serve two years in office!

Posted by: Jim Gormley | Jan 1, 2017 4:15:56 PM

The decarceration movement will continue. It will have liberal and conservative supporters among the lawyer profession. Each side will use its own pretextual justifications. The left will hold the vicious black thug as a victim of racism. This plan is exemplified by collaborator to the white lawyer establishment overlord, and pro-criminal advocate, Michelle Alexander, author of the New Jim Crow. She is a colleague to Prof. Berman. The right wing lawyer will falsely claim smaller government, and saving money on prisons. Both will really be promoting more lawyer employment and rent seeking.

The result is already evident. The murder of minorities has increased. The increase is great enough that it may become an effective, efficient and rapid alternative to the defunct death penalty. One problem is that the death penalty will also apply to little girls skipping rope in front of their homes, as the vicious clients of the lawyer drive by.

One response will be to hire more police, and it goes without saying, far more lawyers. This will cancel the savings from closing prison beds. So the growth of government will still be promoted by that back door. It will transfer tax money from rural prisons to urban police and lawyer institutions.

Coincidentally, the agents of the prosecution, the police, have also been fettered by the Ferguson Effect and by Draconian federal, Obama DOJ, consent decrees. Other departments see that, and will fall in line without prosecution or litigation. So, the growth in their numbers will be a sham exhibition of false piety by the lawyer. The greater number of police will consume the tax savings of decarceration, as will the greater employment of lawyers on both sides. These fettered officials will lean back, and watch minority victims get murdered by the client of the lawyer profession. The black crime victims lose. The white tax payers lose. This is a perfect arrangement for the lawyer profession.

The murder solution rate is now 60% in the country. It is 30% in Chicago. It is 0% in Honduras. Each has a murder rate an order of magnitude greater than the last. Each is more procedure saturated and overlawyered than the last. Each is also more decarcerated than the last, of course.

At some point, the public will understand this game. The latter is not a prediction for 2017. It is a prediction for 2027.

Posted by: David Behar | Jan 1, 2017 9:03:42 PM

In 2017, lawyer profession propaganda will claim that crime is decreasing after destroying the validity of the methodology of Crime Victimization Household Survey.

They will not be updating it to count the millions of identity theft and computer hackings by its clients, the criminals. The average loss is $5000 per incident.

Then millions of future voters for the party of the lawyer, the Democratic Party, will enter the country illegally, at the invitation and under the protection of the President, a Harvard Law graduate. Those crimes will not be counted. Nor will their unlawful drain on public funding and services, nor will their taking jobs from minority and young people.

Crime is soaring, and it is out of control. The lawyer profession will continue to cover up that fact.

Posted by: David Behar | Jan 2, 2017 3:49:11 AM

The GOP maybe (should be) mindful of the damage Trump and his nominees threaten to a raft of traditional Republican policies, and the general world order in the coming years and could (should) therefore be cautious in permitting the appointment of anyone quite so obviously in the mold of Scalia. The appointment of a forward looking moderate to the Supreme Court is badly needed to counter the extremism threatened by Trump, otherwise the principle of accountability and check envisaged by the Founders will be lost .... to the detriment of all for years, maybe decades to come.

Posted by: peter | Jan 2, 2017 4:53:08 AM

Given my personal beliefs, low expectations regarding replacement of Scalia by Trump is best. The leading options leave something to be desired including a somewhat tiresome "St. Scalia advocate" vibe in one or more. I would aim for a moderate conservative, who'd I'll oppose in various cases, but respectfully disagree with generally even there. And, in some cases, they would be on my side, since there is overlap.

Finally, they would be good at judicial craft and avoid some of the negatives and tirades of Scalia, the unsavory side of his personality, even if it sometimes amused RBG. Such a side pops up in various cases -- Brennan, e.g., allowed his ire at conservative results to lead to sarcasm and so forth. This would include being able to fully engage, not basically talk past the other side. Again, this isn't just a conservative flaw at times.

I would again wish for a libertarian option outside of the NY/NJ appellate federal courts realm but fear only half of that will come into fruition.

Posted by: Joe | Jan 2, 2017 2:17:37 PM

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