Sunday, August 11, 2013

The Question Was Not, "Is He Going to Prison...."

The question was instead, "For how long".

Nicholas Kristof makes a cogent argument against mandatory minimum sentences - particularly the really big ones that don't allow for much (if any) judicial discretion - but his depiction of the case casts an unfortunate shadow over his argument. Under investigation for burglary, a man was found to have seven shotgun shells and, even though burglary charges were dropped, is looking at a fifteen year minimum sentence in federal prison.
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.”
Kristof links to one of his sources,
But in late September 2011, he went off track. He stole tools, tires and weightlifting equipment from vehicles and a business warehouse. He even had his son with him on one trip, which added a separate charge.

A video camera recorded the burglaries.
Kristof may be correct that for most of his marriage, on the whole the man was a good father, but when you take your child along on a burglary you take yourself out of the running for father of the year.

The state charges appear to have been dismissed not because the state couldn't prove them, but because it's a waste of resources to prosecute somebody for burglary when his state court sentence won't be as long as the federal sentence he's already received. But for the federal conviction, given the strength of the described prosecution case, it's a safe bet that the man would have spent a number of years in state prison. Having taken a quick look at that state's statutes, his sentence in state court appears likely to have been significantly less than his federal sentence, but (without any argument in favor of the laws) it's also fair to note that under other states' burglary laws and habitual offender laws he would have been looking at a sentence at least as long, and potentially longer.

Kristof is correct to point out that long sentences resulting from "mandatory minimums" and habitual offender laws often do represent a very poor use of money and resources, it's difficult to believe he couldn't find a better case to illustrate his point. This is important, because criminal law is one of the fields in which the saying, "Bad facts make bad law" tends to hold particularly true. When you omit important facts to make a defendant seem more sympathetic, you don't just risk a negative reaction when people learn the full facts, you risk worsening an already hostile climate for reform efforts. As Kristof notes, mass incarceration has correlated with a reduction in crime - and while I don't want to read too much into that correlation, as I think the causative element is weak, it is fair to say that a small number of criminals are responsible for a disproportionately large portion of the crime in any given community, and some of them only stop committing crime while they are incapacitated by incarceration.

I don't like this argument, either:
Conservatives often argue that there is a link between family breakdown and cycles of poverty. They’re right: Boys are more likely to get into trouble without a dad at home, and we have a major problem with the irresponsibility of young men who conceive babies but don’t raise them.
Juvenile crime is associated with factors such as domestic violence, alcoholism and drug use in the household, antisocial behavior by a parent, and marital discord. In some households, removing the father will significantly reduce the risk of the children's following in his footsteps. The case Kristof cites involves a father who was not only committing burglaries, but who took one of his children along when committing one of his crimes. The particular argument Kristof makes, that putting fathers in prison leads to their kids being more likely to engage in crime, misses the very important influence that fathers have through their actions. Sometimes it's the father's presence, limited though it may have been, that put the child on the wrong path. As for the men who aren't in prison "who conceive babies but don’t raise them", that's an editorial for another day.
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.
For the shotgun shells, I can accept that argument. For the burglaries that led to the discovery of the shells, not so much.

I do hope that the man's sentence is shortened, because I don't think that there's much to gain in terms of rehabilitation, just retribution or deterrence in a 15-year sentence. Might the long sentence prevent him from committing more crimes? Certainly, and the man has a record that makes the possibility of additional burglaries a valid concern, but you have to look at costs and benefits, and the law of diminishing returns. This case is not unique - we've been hearing about the results of "three strikes"-type laws since they were first enacted, and some states have rolled back a number of mandatory minimums (sometimes not enough, but it's a start) or revisited the way habitual offenders are sentenced.


  1. Thanks for thoughtful commentary.

  2. "Might the long sentence prevent him from committing more crimes? Certainly, and the man has a record that makes the possibility of additional burglaries a valid concern, but you have to look at costs and benefits, and the law of diminishing returns."

    So if the cost benefit analysis says that it is cheaper to let him commit crimes than it is to put him in prison we just let him keep committing crimes?

    This seems to me to be a good argument for "alternative sentencing" . . . where is the next Australia (Georgia) when you need it. ; )


    1. In this particular individual's case, nobody has argued that he should not go to prison for burglary. (Those seemingly arguing that he should not go to prison are glossing over the burglaries.) The question is whether the fifteen year sentence is appropriate, and that analysis needs to contemplate cost - because we simply cannot afford the long-term preventive detention of every criminal who might become a recidivist - which is to say, every criminal. In raw cost, the sentence we're discussing will cost the taxpayer about $400,000.

      The burglaries committed by this person would be Class C misdemeanors under the Tennessee Code, meaning that they could trigger a sentence of three to fifteen years in prison. That is to say, leaving aside for the moment the possibility of habitualization, the mandatory minimum sentence for the shells is the statutory maximum sentence for a non-aggravated burglary. Had the defendant not been charged federally, odds are the state would have entered into a plea bargain with him that would have resulted in a minimum sentence that was substantially less than fifteen years. It seems possible that a state court would have hit a decent balance, whereas the federal court had no choice but to impose a sentence that makes no attempt to strike a balance.

      The lines aren't easy to draw. The hope would have been that the last round of prosecutions and incarcerations would have been enough to prevent recidivism. But I do think it's safe to say that there is a point well short of fifteen years at which time any deterrent or rehabilitative effect is maxed out, and that there is also a point at which the effects of long-term incarceration can become counter-productive to the reintegration of a defendant back into civil society.

    2. Correction: Class C felonies.

  3. This is being presented in a dishonest fashion. This man pled guilty to the charges because the burglary charges would have resulted in almost twice the prison sentence. There was surveilance tapes that showed him commiting the crime and that he had taken his son along with him. The burglary charges were dropped as part of the plea deal. Of course the bleeding hearts at the NY Times omit all that and the fact that he had a rap sheet that included 22 felonies. Poor guy, what a victim he is.

    1. If you are asserting that Kristof should have looked for a better example, and should have been more candid about the facts, you're agreeing with what I wrote.

      If you have a source on the state sentence, please share it. The burglary offense he was accused of committing would appear to carry a three to fifteen year sentence, but given that there were multiple offenses and that he had a prior record it's possible that consecutive sentencing or a habitual offender provision would have kicked up his sentence substantially. There could be no direct plea bargain on the state charges, as the "shotgun shell" charge was in federal court - different court, different prosecutor, different sovereign (federal vs. state), but there could have been a discussion with the state prosecutor resulting in an agreement that the state charges would be dismissed following the federal plea.

      If the state prosecutor believed that a sentence greater than fifteen years were appropriate, he could have proceeded with state charges. I still question both why a federal prosecutor felt the need to step in on a case that would have been adequately handled in state court, burdening the federal taxpayer with the cost of the prosecution and incarceration.

      If the sentence could have been even greater had the prosecutor not stepped in, the notion that he was protecting society from this man loses what little credibility it had in the first place. The fact that federal law has expanded to the point that pretty much any crime can be charged federally does not mean either that it's an appropriate expansion of federal power or that the power should be exercised in cases that are being adequately addressed at the state level.