March 4, 2008
Research on capital punishment's impact on plea deals
Though the article itself is not available for free, this new posting on SSRN spotlights an issue that I have long thought critical to really understanding the death penalty's true impact on modern criminal justice systems. The article by Ilyana Kuziemko, which comes from a recent issue of the American Law and Economics Review, is titled "Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment." Here is the abstract:
This article investigates whether the death penalty encourages defendants charged with potentially capital crimes to plead guilty in exchange for lesser sentences. I exploit a natural experiment in New York State: the 1995 reinstatement of capital punishment, coupled with the public refusal of some prosecutors to pursue death sentences (N.Y. Penal Law § 125.25 [McKinney 1975]). Using individual-level data on all felony arrests in the state between 1985 and 1998, I find the death penalty leads defendants to accept plea bargains with harsher terms, but does not increase defendants' overall propensity to plead guilty. A differences-in-differences analysis of a national cross-section of homicide defendants confirms these results.
Some related posts:
Some of the newspaper coverage of now effective crack retroactivity
Though the USSC's official website still doesn't have any official notice that its new crack guidelines are now officially retroactive (background here), the traditional print media has lots of crack coverage. Here are just a few links:
- From the AP here, "Drug Sentencing Guidelines Take Effect"
- From the Richmond Times Dispatch here, "Crack offenders released early"
- From USA Today here, "Bill Clinton admits 'regret' on crack cocaine sentencing"
- From the Washington Times here, "Inmate releases begin under new guidelines"
March 4, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
March 3, 2008
Still more concerns about juve LWOP
One of the most clear impacts of the Supreme Court's decision to make juveniles ineligible for the death penalty has been greater public policy and public attention given to juveniles sentenced to very long prison terms. The latest example of this attention comes in the form of this new Washington Post article, headlined "Illinois Weighs Second Chances: Some See Juvenile Sentencing Laws As Overly Harsh." Here is a snippet:
Illinois's mandatory life sentence law, with its tough provision for people whose role in a crime may have been small, was passed in the late 1970s at a time of concern over rising youth crime rates. Now, however, it is now being challenged.
A coalition of human rights groups, defense lawyers and lawmakers is backing legislation to do away with mandatory life sentences for juveniles and to reconsider the cases of those who were sentenced as juveniles and are serving now....
In Illinois as in other states, the combination of mandatory transfers to adult court and mandatory life sentences for certain crimes means a teenager could end up with a life sentence for serving as an unarmed, perhaps unwitting, accomplice -- a lookout or driver -- during a murder. State Rep. Robert Molaro (D-Chicago) has introduced legislation that would end life sentences without parole for juveniles. Colorado banned such sentences in 2006, and similar legislation has been introduced in Nebraska, Florida, Michigan and California.
Israel is the only other country that sentences juveniles to life without parole. It has seven in detention, compared with more than 2,300 in the United States, according to a report by a coalition led by Northwestern University Law School's Children and Family Justice Center and the John Howard Association.
Some recent related posts on juve life sentences:
Justices take another long break without resolving Baze
Lawyers and judges in state and lower federal courts in regions with active capital punishment systems are accustomed to speedy appellate litigation in which complicated death penalty issues must be resolved sometimes in a matter of days or hours because of a looming execution date. I suspect some of these lawyers and judges will join me in being disappointed and concerned with how long the Supreme Court is taking with the Baze lethal injection case.
We are now approaching six months since the Justices took up the Baze case in September, and it has been nearly two full months since the Court heard oral arguments in Baze. In my view, neither the legal or factual issues in Baze are that complicated. Moreover, the Justices have had the benefit of two recent ruling in this area (Hill and Nelson), and also the benefit of lots of lower court and amici input.
If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly. Expedited action in this setting seems especially important if, as some suggest (here and here), that the SCOTUS moratorium on executions may be costing hundred or even thousands of innocent American lives because of diminished deterrence.
Joyfully, I do not think recent homicide data supports a claim that the SCOTUS moratorium on executions is costing lives. Nevertheless, I do think it is troublesome that the Justices have kept the modern death penalty in suspended animation as the Justices take their sweet time deciding an issue critically important to the future status of the American system of capital punishment. Perhaps Congress could and should pass a law preventing the Justices from going on any kind of book tour when important death penalty cases are pending.
This kvetchy post is primarily the result of the fact that, according to this post at SCOTUSblog, the Justices this morning resolved two complicated cases that were both argued after Baze. In addition, it appears that the Court now goes on hiatus for a few weeks, so that March 18 may be the next chance for an opinion in Baze (and I am not holding my breath we will see a ruling then). Maybe it is time to tweak Justice Jackson's famous quip about the Supreme Court to read: "We are not slow because we are infallible, but we are slow only because we are final."
Conrad Black gets a peek inside the American criminal justice system and does not like what he sees
Writing for New York Sun, Conrad Black has this remarkable op-ed entitled "My Faith in American Justice." Here are snippets:
It is a terrible thing to be falsely accused, and wrongly convicted, even of a fraction of the original charges, and unjustly incarcerated. For persisting in seeking the recognition of my innocence of these charges, I have been portrayed as defiant, or at least in denial. I defy and deny unjust charges, not the practical difficulties I have faced for the last four years and am facing now.
I would qualify in political terms as a reasonable member of the law-and-order section of the public. And as a conscientious and religious matter, I believe in the confession and repentance of misconduct, as well as in the punishment of crimes. If I had committed any of the offenses charged, I would have pleaded guilty and asked for a sentence that would enable me to atone for my crime and assuage my guilt and shame....
There was no evidence to support two of the remaining convictions, and the only evidence, from the chief cooperating witness, was exculpatory. For the third count, the evidence was an uncorroborated allegation of a non-incriminating telephone conversation, which did not, in fact, take place....
Some of the jurors, in post-trial comments, by e-mail and on television, where there can be no question of a journalist misunderstanding what was said, confirmed that there remained a reasonable doubt, but that a compromise was reached on acquittals and convictions, contrary to the judge's instruction. One of the jurors stated that it should have been a civil case....
This is the criminalization of what was and remains a civil factional corporate dispute. My faith in the United States has inspired me to persevere, despite what I believe has been the prosecution's insufficient respect for the Fifth, Sixth, and Eighth Amendment guarantees of due process, of the grand jury as an assurance against capricious prosecution, of no seizure of assets without just compensation, of speedy justice, access to counsel, and reasonable bail.
I have been besieged by various agencies of the U.S. government for over four years, and I know of only one higher bond in U.S. history than the $38 million I have been posting.
Thoreau wrote: "Under a government which imprisons unjustly, the true place for a just man is also in prison." These charges and the actions leading up to them have been unjust. Most of them have already been found to be unjust. I cherish my liberty as all people do, but I am unafraid. I have faith in American justice.
I admire Lord Black for retaining faith in the American justice system despite his travails and his apparent belief in his innocence. Candidly, I think his faith is badly misplaced. I would be quite surprised if a Seventh Circuit panel ends up reversing his convictions. And, even if it does, I would expect the Justice Department to seek en banc and/or cert review of any reversal.
Moreover, a reversal most likely could just result a new trial, not an exoneration. And, perhaps most critically, since Lord Black must report to federal prison today, he may end up serving most of his sentence before any of these legal particulars ever get resolved.
New lower USSC crack guidelines now officially retroactive
There has already been a lot of local and national action concerning the retroactive application of the lower US Sentencing Commission crack guidelines. But today (Monday, March 3, 2008) is the official effective date for the retroactive application of the new guidelines.
Though I suspect we will see lots and lots of news stories about the implementation of these new guidelines in the days and weeks ahead, I already see interesting local pieces from North Carolina and Florida on this issue. Also FAMM has this helpful press advisory. As I have suggested before, I think we can and should expect some crack March Madness as a host of complicated legal issues surrounding crack retroactivity get hashed out in lower courts.
Here is a recap of some of the most important/enduring posts I have covering crack retroactivity issues at the national and local levels:
- A retroactive litmus test on leading Democratic candidates
- Cracked history: How Hillary Clinton really "played the race card" and Sean Wilentz failed to notice
- House hearing on crack sentencing disparity
- Latest FSR issue covers crack sentencing
- More coverage of crack retroactivity realities
- Another story about the local implementation of the new crack guidelines
- The crack retroactivity story in my backyard
UPDATE: CNN.com has this new piece headlined "Some crack convicts could soon be set free." Disappointingly, I do not see anything new on the USSC's official website yet. Perhaps the USSC hopes everyone will get all the important details they need concerning what's happening on crack retroactivity from the media and bloggers.
March 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack
A fascinating new blog to watch
Fans of the thoughtful criminal justice writings of Professor Bill Stuntz will want to check out his new blog, Less Than The Least (which is co-authored by David Skeel). Here is the blog's notable introduction:
We are both law professors and evangelical Protestants — a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.
I always learn so much from Stuntz's articles, though I find most of them a bit too long. I am very excited to see him now working in a short-form medium. And this post connecting dots between Michelle Obama and mass incarceration highlights why I am sure I will be linking frequently to this new endeavor:
The last generation, the generation that saw the rise of legally protected civil rights for African Americans, also saw the rise of mass imprisonment of African Americans. Today, of every 100,000 white men, 471 sleep in prison beds — a record-high number, many times the comparable figure elsewhere in the Western world. Among black men, the analogous number is 3,145. (For the numbers, click here). Mass imprisonment is the defining fact of life in many black neighborhoods in the United States. It would hardly surprise if that fact shaped the attitudes black men and women have toward a country that imprisons so many of their fathers and sons, brothers and friends.
I’m a middle-aged white guy and a Republican to boot; I have no special insight here. But would it really be that surprising if a large fraction of black professionals look at our legal and political systems with a jaundiced eye, given the truly mind-boggling levels of black incarceration we’ve seen over the last twenty years? Something tells me there are an awful lot of people who, when they read or heard Michelle Obama’s words, thought: she read my mind.
"Are Liberals Responsible For Mass Incarceration?"
The title of my post here comes from this intriguing post by SHG over at the great blog Simple Justice: A New York Criminal Defense Blog. At that blog, SHG indicates that he "look(s) forward to lively and thoughtful discussion," and we engaged in just such a discussion when SHG took issue with my support here for a Kentucky forfeiture bill.
SHG kindly let me have the last word in our debate over asset forfeiture as an alternative punishment, in part because he rightly realized that I "took this discussion to a much deeper place." That, in turn, prompted SHG's long post with the title above. The full post should be read for context, but here's how it concludes:
What I found so jarring by Doug's position is that we share a concern for the over-incarceration, over-criminalization of American society. We similarly share a concern about the disparate impact of criminal law on minorities. There is much we agree on. Yet, it never occurred to me that beneath these areas of agreement, Doug harbored such a smoldering hatred of liberals. Indeed, but for a few odd choices, one might well have concluded that Doug was quite the liberal himself. And everybody is entitled to make some unexpected choices from time to time.
But Doug has come out clearly as a liberal-blaming conservative, and challenges us libs with being small-minded, unimaginative, brainwashed and beaten. I'm not buying, and I'm frankly shocked by the depth of Doug's hatred of liberals and the nature and scope of his attack.
Just because we agree on the problem does not mean that we have to accept any potential "solution" that comes along. By disagreeing with Doug's acceptance of asset forfeiture as a Utopian ideal, I am not prepared to accept being pigeonholed. Mass incarceration is a very real problem. Asset forfeiture is a very bad solution. We need to solve the problem, and Doug is right that we all need to open our minds to alternatives that fall outside the realm of the usual answers....
But in our zeal to find alternatives, seizing upon solutions that are worse than the problem is not progress. Legislatures tend to do that a lot, coming up with a brand new idea that ultimately proves to exacerbate the problem rather than fix it....
Doug has, in effect, accused me of liberal myopia because I do not accept his view that any alternative to mass incarceration is a good one. Since Doug's views don't reflect mainstream conservatism, it would be unfair to make any accusations against conservatives based upon Doug's comments. But I have one to levy directly at my accuser: Professor Douglas Berman, you are just a liberal in sheep's clothing who is grasping at straws to find a cure to the societal nightmare of over-incarceration. Stop fighting it and come over to the side of truth and justice. We will forgive you this one mistake.
Because he has addressed me directly, I want to clarify a few points:
1. I do not have a "smoldering hatred of liberals," but I do have a smoldering concern that Americans who vocally and aggressively oppose the death penalty, and shaming punishments, and property punishments, and other non-incarceration responses to crime fail to realize (while being eager to deny) that they bear at least some partial responsibility for contributing to the various social and political realities that have produced modern mass incarceration in the United States.
2. I am genuinely worry that most Americans (and not just "libs" as SGH describes himself) have become "small-minded, unimaginative, brainwashed and beaten" by a Kafkaesque US criminal justice system. I am not sure how else I can otherwise explain, e.g., why federal defendants are still regularly punished for acquitted conduct even four years after Blakely or why New Jersey gets hailed after eliminating a (dormant) death penalty for murderers while nobody pays attention to its extreme and racially skewed drug offense imprisonment realities.
3. I am proud to say that I am neither a "liberal in sheep's clothing" nor a sheep in liberal's clothing. Especially since working on this blog, I have concluded that political labels (as well as some clothing) tend to restrict critical thinking rather than inspire reasoned dialogue. And once I stopped worried about labels, I discovered that many so-called "conservatives" advocate ideas that have great sentencing reform potential — ideas ranging from support for faith-based prisons and reentry programs to a stated concern for doing away with any "tired philosophy [like the war on drugs] that trusts in government more than people."
4. I readily admit that I am "grasping at straws to find a cure to the societal nightmare of over-incarceration." I do so because so many others who focus on criminal justice systems — and especially those who proudly assert that they are on "the side of truth and justice" — have for decades been unable (or unwilling) to pursue effectively cures for over-incarceration (perhaps because they are so darn busy trying to end capital punishment or trying to prevent crime victims from having rights or trying to ensure accused terrorists at GTMO have habeas rights or trying to prevent the recognition of an individual right to keep arms).
In short, SHG, I am not sure — nor do I really care about — which "side" I am on in these debates. But I am sure that, as a believer in America's founding principles of liberty and freedom, I am deeply ashamed to be a citizen in the only country in world history that locks more than 1% of its adult population in small cages with iron bars. I am also ashamed that very few on any "side" of the political fence are complaining about the failure of our nation's leaders to address these critical issues.
March 2, 2008
Potent state sentencing op-ed from Arizona
This morning's Arizona Daily Star has this notable op-ed headlined "Sentencing laws are senseless." Here are snippets:
Gov. Janet Napolitano's 2008-2009 proposed budget includes almost $1 billion for the annual expense of maintaining our adult and juvenile prison system. The state is also receiving bids for the construction of facilities to create 3,000 additional prison beds to ease prison overcrowding. The standard construction cost is $110,000 and up per bed.
In the last 10 years the incarceration rate in the United States has far outpaced the rest of the world. We lock up people at five to eight times the rate of any other industrialized country. Arizona ranks with Mississippi, Louisiana and Texas as having one of the highest incarceration rates in the United States, including particularly high rates of incarceration for women and minorities....
If these mind-boggling amounts of money were buying us public safety, or even helping to support a more ordered society, they might be acceptable. The facts show otherwise:
- 49 percent of new prison admissions are for parole or probation violations.
- 55 percent of Arizona prisoners are serving time for non-violent offenses — DUI, drugs, theft, etc.
- Only 18 percent are in prison for offenses involving victim injuries. Many are serving time for automobile accidents criminalized by allegations of negligent or reckless behavior, frequently alcohol-related.
At the present time, Arizona has more than 2,000 inmates over 50 years old who will remain in custody well into their geriatric years, and many for life. These prisoners, well beyond their lawbreaking years, require special medical attention, expenses that must be borne by the taxpayers....
It's time the public and the politicians get the facts on how expensive and unfair our criminal-justice system is and submit all of it to the light of public examination.