A Second Chance……………To Do What? Part I
Hey everyone! It’s “Second Chance Month.” President Biden has said so himself (see this piece at SL&P). The President is a bit short on specifics, but assures us that, “During Second Chance Month, we lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”
“Mistakes,” got that? Fleecing grandma out of her life savings, selling smack to an addicted 16 year-old, raping a first grader — look people, don’t be so judgmental. They’re just “mistakes.”
I’ll be saying more in future posts about the Happy Face, if fact-free, yammering about second chances. For now, I just want to focus on the one question that cries out to be asked but never is: A second chance to do what?
Today’s Washington Post, of all things, provides a glimpse of the answer.
Here’s the headline of the story: “Man charged in Prince George’s triple slaying previously went to prison for D.C. homicide in 2000, records show.”
Oooooops. Looks like the ex-offender’s “meaningful contributions” weren’t exactly what Mr. Biden and his fatuous crew at DOJ keep lecturing us about.
Sayyid Malik Hayat, the man charged this week with murder in the killings of three people in a Prince George’s County fire station parking lot, previously served time in prison for fatally stabbing a takeout delivery driver when he was a teenager, court records show.
Hayat, who is being held without bond at the county jail on the new charges, was arrested and indicted in the summer of 2000 after he stabbed 41-year-old Hong Guang Gao in the chest in Northeast Washington, according to court records and news reports at the time.
I don’t know why he’s being held without bond. Haven’t these characters heard of bail reform? Where are our progressive prosecutors now that we need them?
Hayat was 17 years old at the time of the fatal stabbing and was charged as an adult with murder, according to news reports at the time. But court records show he eventually pleaded guilty to manslaughter while armed and was sentenced to 10 to 30 years in prison…It’s unclear how much of his sentence he served, but the last time he was released from prison was June 2020, according to federal records.
So he was sentenced to a term which, if fully served, would not have elapsed for another nine years. But he was released pretty much in mid-sentence, after which it took him less than a year to kill again, except this time three people instead of one.
Although these murders took place less than ten miles from the White House, President Biden has been silent about the outcroppings of Mr. Hayat’s “second chance,” and about what “second chances” he’s planning for Hyatt’s victim’s.
Joe Biden and his criminal justice reform pals need to ask, and to take seriously, the question, “Second chance to do what?” Since they’re not about to, I will use this space to ask it, and to set forth what the data tell us about the answer.
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I look forward to your next “data” part of this discussion, Bill, though I hope you might engage with some of the latest interesting recidivism studies and data like those out of Houston and Boston suggesting diversion/nonprosecution for first offenders (ie a “second chance”) may significantly reduce recidivism:
https://ccresourcecenter.org/2021/02/23/study-texas-diversion-provides-dramatic-benefits-for-people-facing-their-first-felony/#more-36296
https://sentencing.typepad.com/sentencing_law_and_policy/2021/03/new-empirical-study-finds-nonprosecution-of-a-nonviolent-misdemeanor-offense-leads-to-large-reductio.html
I will also be interested to hear if you think persons involved in the Capitol riots on Jan 6 ought or ought not get second chances.
Doug — The principal example of the costs of early release set forth in this post is the case of a fellow who served about half his sentence for his first homicide and then, less than a year after that release, murdered three other people. This is in contrast to Biden’s telling us about the “meaningful contributions” of those who, through leniency, get a “second chance.”
Question: Was it worth their lives to give the past and future killer early release? I think that question can be answered yes or no, after which you are welcome to provide any discussion or explanation you wish. Was it worth it?
If it was not worth it, what restrictions on early release would you propose so that the public can be assured that nothing like this will happen again? Or is it OK if it happens again? And again? And again? Any limit at all we should put on “second chances”?
As to you question: Cherry-picking this city or that is an easy, but unenlightening, game. My post of a few days ago explained how these don’t-arrest-but-instead-divert programs are manipulated to produce slick and superficially appealing statistics that are used, dishonestly, to mask a cesspool of crime. https://www.crimeandconsequences.blog/?p=3356. The city discussed in that post is Baltimore. Baltimore’s corrupt and far left State’s Attorney would have us believe that her non-prosecution policies are producing a safe city. The truth is the Baltimore is one of the least safe cities in the country, and the State’s Attorney is a breathtaking liar. (N.B. See how it’s possible for me to criticize prosecutors? Can you criticize defense counsel when they’re dishonest? Should I be looking forward to that?).
As to the Capitol rioters (who you keep bringing up for no reason other than politics): They should be charged with the most serious readily provable offense (remember that standard?) and, when convicted and sentenced, should serve the full sentence, every last day. Do you disagree?
Bill, a few points:
1. I do not think supporting a “second chance” — which Prez George Bush championed in one State of the Union address (2004) and which Prez Donald Trump referenced in another (2019) — is the same as calling for “early release” or “leniency.” Indeed, Prez Biden’s proclamation speaks of a second chance “[a]fter incarcerated individuals serve their time” and suggests “rethinking … how prepared [prisoners] are to reenter society once they have served their time.” Sayyid Malik Hayat obviously was not “committed to rejoining society and making meaningful contributions,” and I think we would all agree that we should be trying to only afford second chances only to those likely to use it well — as the FIRST STEP Act and many state Clean Slate laws aspire to do. That is one reason I asked you about the Capitol rioters, though you did not answer. I want to hear if you think these types of offenders ought, or ought not, get second chances “once they have served their time.” That is what I read the proclamation to be fundamentally about, especialy since it makes no mention of “early release” or “leniency.”
2. I tend to be a fan of risk assessment tools and evidence-based approaches to advancing public safety. That said, I share your fear that lots of prosecutors often pursue policies that are not evidence-based but then assert that these policies somehow promote public safety. For example, I have seen zero evidence that prison terms (or even arrests) for non-violent drug offenders meaningfully advance public safety, and yet so many such offenses are subject to prosecution. I am always glad to see you call out prosecutors for policies that lack a sound evidentiary base — which is why I am eager to hear your views about the academic research from Houston and Boston. These seems to be valid studies done by serious academics that suggest prosecutors could and should advance public safety by embracing well-crafted diversion/nonprosecution for certain first offenders. Notably, these studies seem also to highlight a point Kent flags — that we get a safety benefit only from diversion/nonprosecution for certain FIRST offenders, and so ought to be prepared to be tougher on the folks shown not to merit a “third, fourth, fifth, six, seventh, and eighth chance.”
3. Speaking of the Capitol rioters, I would still like to know if you think their defense counsel were dishonest for entering not guilty pleas. I do like calling out the dishonest — e.g., many claiming the 2020 election was fraudulent — but I do not think that label fairly applies to a defense attorney who merely helps enter an initial not guilty plea for a client at the start if a prosecution. That seemed to be what you suggested was dishonest in another post, and I still want to understand if you would apply the same label to the work of lawyers defending the Capitol rioters. (And if you want to talk about their sentences, I would love to hear what sentence you think either the “less culpable” or the “most culpable” rioters ought to get. Politico ran an article last week headlined “”Many Capitol rioters unlikely to serve jail time.” Does that reality trouble you? I am sincerely interested in your vision of what would be a fitting sentence for their crimes.)
As you know from our years of debates, I like engaging. And I’m happy to do so here. What I want to avoid, however, is answering questions you pose while mine go floating off into the back-of-the-thread past. So let me try again:
Was it worth the lives of his three most recent murder victims to give Hayat early release? I think that question can be answered yes or no, after which you are welcome to provide any discussion or explanation you wish.
Was it worth it?
If it was not worth it, what restrictions on early release would you propose so that the public can be ASSURED that nothing like this will happen again? Or is it OK if it happens again if “experts” told us that Hayat’s recidivism was “unlikey”? Who bears the risks and costs when the experts are wrong? Who should bear them? Any limit at all we should put on “second chances”? Why not third chances, as some of the authors in posts you’ve published have argued?
It was not “worth” three lives to give Hayat early release from prison. Much more can and should be done to reduce all risks of recidivism, but that risk will never go down to zero. The US already relies heavily on incarceration and long prison terms more than other western nation, and yet our violent crime rates and recidivism rates seem still stubbornly high. Some “experts” have claimed that our heavy reliance on incarceration and long prison terms makes us more safe, but there are lots of victims and families who are now vocally complaining about having disproportionately borne the risks and costs of mass incarceration — and they are electing DAs and other officials who pledge to change the calculation, though time will tell if new prosecutorial philosophies will continue to get democratic support in various regions.
Some “experts” argue that mass confiscation of guns might be the only way to ASSURE a shooting like this case will not happen again. I view repeal of the Second Amendment and mass confiscation of guns is politically unrealistic in the US. But I do think the homicide data from other nations with fewer firearms support the claim that mass confiscation of guns could dramatically lower the risk of these kinds of mass shootings. Would you support a gun-control approach to trying to reduce the risks of these kinds of tragic killings? If we really want to try to ASSURE no deadly recidivist shootings, I suspect gun control might need to be part of the package of reforms to be considered.
But, again, the Biden proclamation — and promotion of “second chances” by many other presidents and officials and advocates on both sides of the aisle — is not fundamentally about “early release” or mass shootings. And that is why I am eager to focus on folks like all those involved in the Capitol riot. They were involved in a deadly criminal event, and no “experts” or anyone else can really ASSURE that nothing like this will happen again. (Moreover, many prominent officials have been quite “dishonest” about this historical crime, and yet you have been notably silent about this corrosive and dangerous dishonesty from leading political figures. That persistent dishonesty about this crime, as I see it, hurts our nation and its democratic institutions a whole lot more than a defense attorney doing her job ethically after her client gets indicted.)
In hindsight, it is easy to say three lives lost were not “worth” any early release. The hard and persistent questions about balancing risks and bearing costs are forward looking, and that is why I am eager to know, eg, if you (a) are troubled that many involved in the deadly Capitol riot were released on bail, and (b) are urging federal prosecutors to demand the maximum possible prison terms for everyone involved in criminal activity on Jan 6 in DC. And, given the real focus of “second chance” advocacy, I would also wonder if you would be eager for the convicted rioters to be thereafter (c) denied “employment, occupational licenses, access to credit, public benefits, or the right to vote.” Barriers to successful reentry, not “early release,” seems to be the focal point of the proclamation, and I sincerely think the Capitol rioters serve as a high-profile (though diverse) set of criminals to discuss in this context.
In Los Angeles, it’s third, fourth, fifth, six, seventh, and eighth chance month every month. The DA is doing all he can to prevent recidivists from being sentenced more severely than first offenders. He has the chutzpah to claim the science and the data support that policy as better for public safety. They do not.
CJLF’s new research associate starts Monday. We will have more of a role in providing and explaining data from now on.
Doug —
Thanks for your long and thoughtful reply. Let me take it from the top.
“It was not ‘worth’ three lives to give Hayat early release from prison. Much more can and should be done to reduce all risks of recidivism, but that risk will never go down to zero.”
It’s not a question of going down to zero. It’s a question of going down to, say, 20%, which we are nowhere near. As long as recidivism remains as high as it is, early release programs must be much more stringent, and those running them should be held to account when their errors create grievous harm, as in this case. But instead, the stupid and callous people who made this possible will go on their merry way.
“Some ‘experts’ have claimed that our heavy reliance on incarceration and long prison terms makes us more safe…”
Since the get tough era (roughly 1990-2015) coincided with a historic reduction in crime, and the stay soft era (roughly 1965-1990) coincided with a historic explosion of crime, sign me up with those experts. To think that 50 years’ experience is all JUST coincidence is preposterous.
“…but there are lots of victims and families who are now vocally complaining about having disproportionately borne the risks and costs of mass incarceration — and they are electing DAs and other officials who pledge to change the calculation, though time will tell if new prosecutorial philosophies will continue to get democratic support in various regions.”
There are a few dissenters, as there always are, but overwhelmingly, victims’ families support getting and staying tough. And the costs of such degree of incarceration as there is (that being one-half of one percent of the population — hardly “mass”) are roughly the top quarter of earners, the people who pay 90% of the country’s tax burden. The top quarter is conservative on criminal justice issues.
“Progressive” DAs have been elected in a very small minority off jurisdictions, virtually all of them one-party, left-wing strongholds that have then gone on to host a crime surge. The great majority of jurisdictions retain normal prosecutors — the kind who tend to favor peaceful, law-abiding citizens rather than child rapists and the rest of the so-called “marginalized.”
Does it ever occur to the “reform” crowd that the people most in need of changing their thinking and behavior are criminals and not the rest of us?
That’s a genuine question.
“Some ‘experts’ argue that mass confiscation of guns might be the only way to ASSURE a shooting like this case will not happen again. I view repeal of the Second Amendment and mass confiscation of guns is politically unrealistic in the US. But I do think the homicide data from other nations with fewer firearms support the claim that mass confiscation of guns could dramatically lower the risk of these kinds of mass shootings. Would you support a gun-control approach to trying to reduce the risks of these kinds of tragic killings?”
No. There are several reasons. The main one is that the problem is not the gun but the person using it. The massive majority of guns are owned and used legally, so what needs controlling is not the gun but the shooter. The second reason is the gun confiscation won’t work — not because it’s unconstitutional (although that too), but because criminals will hide their guns and not turn them in. That’s one of the things it means to be criminal; you cheat. The third reason is that law-abiding people have a natural (not to mention a common law and constitutional) right to defend themselves. As the old and unrefuted saying goes, “If guns are outlawed, only outlaws will have guns.”
The argument about other nations is transparent baloney. Other nations have different cultures, law, legal history , technological capacity, demographics, economic systems, and police efficacy and integrity — you name it. Anyone who blithely uses international comparisons is no “expert.” Instead, he’s probably a ninth grader who childishly thinks his semester paper is really brilliant.
“But, again, the Biden proclamation — and promotion of “second chances” by many other presidents and officials and advocates on both sides of the aisle — is not fundamentally about “early release” or mass shootings.”
Actually, shorter sentences and early release from present sentences is virtually the ONLY thing all this “second chance”talk is about. It obviously can’t be literal, since virtually all criminals are released (the great majority after serving very little time, as Kent recently showed), so they already get a “second chance.” Since that is the present state of play — and Biden knows it — his pitch is, shrewdly, putting an appealing face on early release. He’s well aware that “second chance” has a niftier ring than “early release with a high chance of going right back to crime.” So the ugly if massive fact of recidivism gets shoved behind the curtain — which is, among other drawbacks, dishonest.
“And that is why I am eager to focus on folks like all those involved in the Capitol riot. They were involved in a deadly criminal event, and no “experts” or anyone else can really ASSURE that nothing like this will happen again.”
Well, someone actually CAN assure that it won’t happen again: Each rioter. If each one understands the error of his ways and is genuinely ashamed and remorseful, then it won’t happen again.
Still, you have a point. Egged on the the soft-and-softer crowd, criminals are increasingly insistent and belligerent that it was all someone else’s fault. So since we’d be foolish to count on a change of heart, what we should do is this: Charge them with the most serious readily provable offense, refuse any plea bargain, then require them to serve every single day of their within-guidelines sentence.
That’s what I urge for the rioters. Will you join me?
Of course, in the main, that’s what I urge for other criminals as well, since I’m of the view that law must eschew politics and have the same sober and demanding stance for all defendants. Will you join me there too?
“(Moreover, many prominent officials have been quite “dishonest” about this historical crime, and yet you have been notably silent about this corrosive and dangerous dishonesty from leading political figures. That persistent dishonesty about this crime, as I see it, hurts our nation and its democratic institutions a whole lot more than a defense attorney doing her job ethically after her client gets indicted.)”
Because I have the privilege to be a guest blogger here, I try to confine myself to legal and criminal law topics, for however much I think the culture of deceit is dreadfully corrosive and deserves its own treatment. I occasionally stray, as I did in this long post here: http://www.crimeandconsequences.com/crimblog/2010/01/the-honest-services-argument-a.html, but I try to be disciplined.
If I were to go down the path you reasonably suggest, however, I might begin with our leader, President Biden, who just got a whopping four Pinocchios from his main cheerleader, the Washington Post (https://www.washingtonpost.com/politics/2021/03/30/biden-falsely-claims-new-georgia-law-ends-voting-hours-early/) or his mentor, President Obama, who got Lie of the Year from Politifact, https://www.washingtonpost.com/politics/2021/03/30/biden-falsely-claims-new-georgia-law-ends-voting-hours-early/
“In hindsight, it is easy to say three lives lost were not “worth” any early release.”
It’s easy because it’s true. And it shouldn’t be dismissed or belittled. While I am writing, it won’t be.
“The hard and persistent questions about balancing risks and bearing costs are forward looking…”
Absolutely correct. That’s why it’s so dishonest and reprehensible that criminal justice reformers endlessly to sing the praises of quickly releasing thugs from “cages” to rejoin the “families” so many of them don’t have/don’t support, and “contribute to the community” they’ve spend most of their lives making worse. Instead of the criminals-are-wonderful propaganda and slogans, let us indeed talk about the risks and costs these hooligans create, and will create again, and again, and how to balance them against the possibility that SOME early releases might be safe and deserved.
That balancing will be the subject of a future post.
Too much here to engage it all in this forum, Bll — perhaps you can get your Federalist Society friends to arrange a discussion of “second chances” so we might unpack this idea at lengthy. But I must note what seems like partisan bias when you flag Democrat comments about the GA voting changes without discussing the GOP “big lie” that drove those changes or, more to the point, GOP lies about who was involved in the Jan 6 riots. I was trying to stay on a criminal topic — lamenting that you give a pass to Trump and other GOP voices who have been indisputably “dishonest” about the Jan 6 crimes, but then attack defense attorneys for entering a client’s desired plea in another case. (You still have not addressed whether you consider the defense attorneys for the rioters “dishonest” for entering “not guilty” pleas in those cases. I remain eager to learn if something other than political partisanship may account for how you call out “dishonesty.”)
Meanwhile, we agree that “early release programs must be much more stringent, and those running them should be held to account when their errors create grievous harm, as in this case.” I also agree that it is up to individuals, not government, to reform their ways, which is why I think it important that the latest research out of Houston and Boston suggests diversion/nonprosecution for first offenders may significantly reduce recidivism. For low-level offenders, keeping government out of the way may be most effective and efficient way to reduce crime. (Notable that you mark the “tough” era starting in 1990, when increaed arrests and incarcerations and all sort of “tough” reforms started in the 1970s; of course, crime kep rising dramatically through the early 1990, perhaps because bringing more lower-level folks into the system actually contributed to increased crime for decades. Also notable you credit Prez Obama with get tough years, but not Prez Reagan; not sure a 9th grader could get away with this kind of revisionist history.) More to the point, for the last 50 years, as recidivism has always been way over 20%, the “tough crowd” seemingly has not made any effort to hold any prosecutors or prison officials “to account” for terrible recidivism records.
Back to the Capitol rioters, Bill, I want to be clear on what you are advocating before I can join your advocacy: (1) are you calling for DOJ to accept no plea deal offers, so that each and every charged individual has to plea (or go to trial) on every charged offense; and (2) are you calling for all convicted rioters (i) to get the TOP of the calculated guideline range (but not the statutory maximum), and (ii) to NOT be eligible for any good-time/earned-time credit and NOT be able to serve any of their time in a halfway house or home confinement?
You conclude here by saying “SOME early releases might be safe and deserved,” and I am seeking to understand whether any (or some or all?) of the Capitol rioters might be in the group. (I would also like to know how bail release might fit into this equation since it seems a good number of the Capital rioters are currently free on bail after their defense attorneys entered (“dishonest”?) not guilty pleas. If you think it “dishonest” for an obviously guilty person to plead not guilty, I wonder if you think it especially problematic and risky for an obviously guilty person to be free on bail based on such a “dishonest” plea.)
Doug —
A few points. (I often fear that, this far down a thread, you and I are the only ones in the room. Probably a good idea for the Moritz College of Law FedSoc chapter to host a criminal justice reform event, as you suggest).
— “…GOP lies about who was involved in the Jan 6 riots.”
I personally don’t know and therefore haven’t said who was involved. I also don’t give a hoot. If you knowingly break the law, then you face the music. I don’t care if you’re some BLM whiner or some QAnon crackpot. The point is that you’re a citizen and must conform your behavior to law. (Hey, I know how prosecutorial that sounds, but at least this one time I have the libs with me because they hate Trump. I guess I should be glad for the companionship, for once).
— “You still have not addressed whether you consider the defense attorneys for the rioters “dishonest” for entering “not guilty” pleas in those cases. I remain eager to learn if something other than political partisanship may account for how you call out “dishonesty.”
Defense attorneys, like other adults, are correctly branded as dishonest if they say things they know or have strong reason to believe are false. When you say a person is not guilty when you know otherwise, you’re a crook (just as when you say a person is guilty when you know otherwise, you are also a crook).
N.B. A defense lawyer is not a crook when he says, “My client has asked me to enter his plea of not guilty.” But he is a crook when, ten minutes later, he holds a news conference on the courthouse steps where he proclaims his thuggy client, not merely wholly innocent, but a hero of American patriotism (or whatever it is these people are saying now).
I do not regard the criminal justice system as a “game” with “moves,” and I expect truthfulness and candor from ALL its participants from the opening plea to the final collateral attack. Yes, I know that puts me in the minority. But I’m used to that — most law profs agree with Carol Steiker and think I’m retrograde at best. Fine! As my father said, “Thank God for your enemies.”
“Meanwhile, we agree that “early release programs must be much more stringent, and those running them should be held to account when their errors create grievous harm, as in this case.”
THIS IS MOST EXCELLENT. The only problem is that, as we both know, no one is going to be held to account, just as no one was held to account in the even more horrible Wendell Callahan early release-followed-by-triple-murder. Just walking past this kind of “murder-but-what-the-heck” is a national disgrace. Or it should be.
— “For low-level offenders, keeping government out of the way may be most effective and efficient way to reduce crime.”
Ah yes, the ubiquitous “low level” stuff. Is there any other kind? So let anyone steal anything and everything up to $1000 — which is certain to ruin any small merchant still trying to make it in the inner city — but for goodness sake let’s “keep government out of the way.”
Oh, OK. Q: What’s going to happen next? A; Merchants will take the law into their own hands , of just leave, further eroding inner city life. Liberalism is so wonderful!
— “Notable that you mark the “tough” era starting in 1990, when increased arrests and incarcerations and all sort of “tough” reforms started in the 1970s; of course, crime kept rising dramatically through the early 1990, perhaps because bringing more lower-level folks into the system actually contributed to increased crime for decades. Also notable you credit Prez Obama with get tough years, but not Prez Reagan; not sure a 9th grader could get away with this kind of revisionist history.”
Here’s the news: Just as law is downstream from culture, changes in behavior are downstream from changes in law. Thus while Reagan deserves great credit for pushing the SRA and other tough measures in the mid- to late-Eighties, their effect did not show up until the early Nineties (which is why crime statistics started to head down after 1991). And Obama was the beneficiary of the Reagan-Bush-Clinton-Bush get tough policies for several years of his administration, until his own go-soft policies eventually showed up in the (upsurging) crime statistics in 2015 and 2016.
— “More to the point, for the last 50 years, as recidivism has always been way over 20%, the “tough crowd” seemingly has not made any effort to hold any prosecutors or prison officials “to account” for terrible recidivism records.”
How odd that you should write this sentence exactly seven lines after correctly saying the opposite at the beginning of your paragraph, to wit: “I also agree that it is up to individuals, not government, to reform their ways…”
OK, enough for now. More later.
To continue as promised:
“Back to the Capitol rioters, Bill, I want to be clear on what you are advocating before I can join your advocacy: (1) are you calling for DOJ to accept no plea deal offers, so that each and every charged individual has to plea (or go to trial) on every charged offense; and (2) are you calling for all convicted rioters (i) to get the TOP of the calculated guideline range (but not the statutory maximum), and (ii) to NOT be eligible for any good-time/earned-time credit and NOT be able to serve any of their time in a halfway house or home confinement?”
I agree with those who say plea bargains are overused, and would like to see more trials. Here would be a good place to start, but Merrick Garland will decide that, not me. On this score, I will trust his judgment.
I don’t know why you think I’m suggesting the top of the guideline range for everyone. I said within the range, which is what I mean, neither more nor less (which of course will differentiate me from your pals in the defense bar, who’ll routinely demand downward departures)(so will you be with me or with them?).
As to where they serve their time, I would apply pre-existing practices in that jurisdiction for the same or similar offenses. In other words, unlike the NeverTrump crowd that wants as close to a lynching as it can get; and unlike the AlwaysTrump crowd that wants no punishment at all, I want existing law to be followed without political prejudice in either direction. You will recognize this as my long-time stance, to wit, that we should prefer law to taste precisely to avoid the prejudices of the moment.
“You conclude here by saying “SOME early releases might be safe and deserved,” and I am seeking to understand whether any (or some or all?) of the Capitol rioters might be in the group.”
Don’t know. There are dozens of them. I would want specifics on any given case before saying one way or the other on that case.
“(I would also like to know how bail release might fit into this equation since it seems a good number of the Capital rioters are currently free on bail after their defense attorneys entered (“dishonest”?) not guilty pleas. If you think it “dishonest” for an obviously guilty person to plead not guilty, I wonder if you think it especially problematic and risky for an obviously guilty person to be free on bail based on such a “dishonest” plea.)”
Depends on exactly what he’s guilty OF (there were numerous degrees of planning, involvement and trespass involved in the riot), his criminal history, and his genuine attitude (not the phony regret defense lawyers coax them to choke out). Also, once again, depends on the standard practice in that jurisdiction in similar circumstances.
**********************************************************
Now to return to the central point of this post: The mindless drumbeat for early release so that we can expedite the offender’s “second chance” has become more like a religion — indeed, more like voodoo — that a genuine policy prescription. Absolutely no criminal should be given early release until we ask seriously what he’s going to do with it. And because the criminal made his own choice, while his victim was denied a choice, any doubt about the answer to that question must be resolved in favor of respect for the next victim’s right to live in peace and safety rather than the criminal’s “right” to demand a skimpy sentence.
If you disagree, what standard would you employ when confronted with doubt about what the offender will do once released? Just take a chance? “She’ll get over it”? Doubt about this question is inescapable. Whose interests are paramount in resolving it?
Bill, I am quite confident that our debate is far more robust than our readership. But I am grateful for the fulsome replies, and I just want to make a few (final?) points:
1. I think it quite harmful and problematic to equate “second chance” advocacy with a “mindless drumbeat for early release.” All sorts of quality research supports the idea that reducing barriers to reentry can reduce recidivism, and you have yourself spoken in support of improved prison programming and the need more broadly to seek to reduce recidivism. Rather than snipping about “early release” and sowing division, I think it would be far more productive to look for (evidence-based) consensus about what forms of “second-chance” reforms could make us all safer. (That said, I understand your concerns about calls to reduce our reliance on incarceration — and debates over incarceration rates are always justified — but I still find it troublesome to try to reduce “second chance” advocacy to only a variation on prison abolition talk. And my first comment in this threat was an attempt to encourage you to engage with some of the latest encouraging research/data on these fronts. If you are truly interested in data, you ought to substantively engage with that research rather than just wave it off.)
2. You seem to scoff at the notion that there are “low level” offenders, but then rightly recognize that the degree of culpability of the Capital rioters vary. Would you think some of those rioters — e.g., the ones only guilty of trespass and not involved directly in any planning, violence or property destruction — could be fairly considered “low level” offenders? Critically, I believe the guideline range for these “low level” trespassers/rioters with no criminal history will be 0-6 months imprisonment, and it sounds like you would be troubled by “no punishment at all” for even these folks. Does that mean you think there ought to be, at least, a sentence of 3 to 6 months imprisonment for these “low level” trespassers/rioters? How exactly is a judge supposed to assess the “genuine attitude” of these particular criminals? Or, to parrot your question, “what standard would you employ when confronted with doubt about what the offender will do once released?”
3. To put a finer point on it, don’t the questions you ask arguably justify a maximum prison sentence for every criminal, at least in cases that involve clear victim(s)? We agree that we can never eliminate “any doubt” about the risk of recidivism, and since you call for doubt to always “be resolved in favor of respect for the next victim’s right to live in peace and safety,” I would like to better understand what you think could reasonably justify a prosecutor seeking anything less than the maximum possible sentence, and/or a judge imposing anything less than the maximum possible sentence, on criminals like the Capitol rioters. I surmise that the “specifics on any given case” should matter, but what “specifics” do you consider valid consideration for a judge other than, say, criminal history?