Writings and observations

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Duff McKee has been writing column-length pieces from time to time over the years, mainly in Facebook, and now he has agreed to become a regular contributor here. This is a recent post from Facebook about Kate’s law; new pieces will be coming soon. – rs

What a week! The House announced a move to improve the criminal justice system by reducing draconian sentencing in one area, and the Senate announced a move to reverse the course and return to the unreasonable sentencing in another.

On the positive side, the House Judiciary Committee announced agreement upon a major overhaul of the drug sentencing laws, reducing prison terms in many areas and increasing the emphasis on rehabilitation. This begins to mirror extensive efforts by the states, including Idaho, to reexamine and overhaul their criminal justice systems. Significant savings in cost are being realized as prison populations are reduced. To the liberals, this is a matter of social justice. To the conservatives, it is a matter of simple economics. The product is a bi-partisan effort and the results are projected to be considerable.

On the negative side, the Senate announced it was going to take up a bill next week that will dramatically increase the prison sentence for anyone illegally entering the country after having been once deported, or having been convicted of a serious felony. New prison sentences are to be imposed for violations, starting out at five years mandatory for first offense, no exceptions.

This comes in response to the senseless murder of Kate Steinle, allegedly by an illegal immigrant. When a national furor resulted, Bill O’Reilly seized the initiative and promoted the enactment of new federal sentencing provisions, which he has termed “Kate’s Law.” This has been vigorously lobbied, mostly by Fox News, and has been taken up by the Conservative wing of the Republican party, most prominently by Senator Cruz but including others. It does not seem to matter that the immigration status of the assailant was and is wholly immaterial to any of the facts or circumstances of the murder. Nor does it appear to matter that the new provisions are completely unnecessary, redundant and inconsistent with existing law, and counter to the efforts that are being taken elsewhere to overhaul the criminal justice system.

The only justification offered for the mandatory prison sentences are that knowledge of the severity of the sentence to be imposed will deter others. Deterrence has been studied to death over the last decade as state after state has taken up the issue of sentencing reform. With detailed statistics going back almost 50 years, the studies are overwhelming in demonstrating that in the usual case, the actor gives no thought to consequences at all. Changing the mix of what might be considered will not alter this condition. In the few cases where deterrence might hold some influence, studies indicate that it is the certainty, not severity, of punishment that impresses. There are no credible studies supporting the conclusion that adding knowledge of the severity of punishment makes any significant difference.

In the general case, immigration offenses do not warrant mandatory prison sentences. There is no violence involved, the offense does not involve moral turpitude, and the direct impact of the offense does not extend beyond the individual and perhaps the immediate family. Protection of society is not a consideration. An immigration offense is “malum prohibitum,” meaning it is a public offense only because a statute declares it such, not because of any intrinsic evil in the conduct cited. For all these reasons, in the absence of aggravating circumstances, misdemeanor range sentences are adequate and appropriate to recognize the seriousness of the offense and impress the consequences of punishment upon the actor.

Illegal reentry is already a federal crime with punishment provided of a fine and incarceration for up to 20 years for extreme cases. The ordinary case, without aggravating circumstances, calls for sentences of 2 years or less. The precise sentence depends upon statutory conditions pled and sentencing guidelines found after conviction. There were approximately 16,500 prosecutions under this law in 2014, with the average length of sentence imposed being 17 months, including time served.

The U.S. Sentencing Commission estimates that increasing the minimum sentence to a mandatory five years in all cases will add approximately 60,000 inmates to federal prisons over the next 5 years, at a cost to the penal system of approximately $2 billion per year. According to one Congressional source, this will completely erase the savings expected from the overhaul of drug sentencing.

Unless reason and common sense prevails when this measure comes up for a vote, what the left hand may have provided in terms of a bipartisan proposal for reform and costs saved in the area of drug reform, will be taken away by the right hand under the guise of immigration control and in retribution for Kate’s unseemly murder.

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McKee

Vice President Joe Biden has steadily refused to set a firm date by which he would announce his decision about whether he will run for president. He alluded early on a decision sometime in the summer, but that ship has sailed. He could keep on delaying, but if he does want to run, he’s about to hit a series of walls: Filing deadlines in some of the early states, not to mention participation in the primary debates, the first of which comes Tuesday night. Its organizers say that if Biden announces as late as Tuesday afternoon, they would give him space on the stage that evening. But this is pushing it to the edge. As an NBC report put it (in one very long sentence – deep breath please), “what is unsustainable is continued inaction, because it won’t be helping his party (if the Democratic nominee needs to raise $1 billion to compete in the general election in this Super PAC Era, Biden still hasn’t raised a cent); it won’t be helping Hillary Clinton (see the latest CBS poll, which shows her leading Bernie Sanders by 24 points without Biden, but by a smaller amount – 19 points – with him included in the contest); and despite experiencing his highest poll numbers during this limbo period, it won’t be helping Biden himself, either (if you want to compete in the early states, build an organization to win, and simply meet the upcoming filing deadlines, you’ve got to jump in ASAP).” – rs

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First Take