Sentencing Law and Policy

Chief Justice John Roberts defends costs of federal judiciary in year-end report

Proof I am a true law geek comes from the peculiar joy I get around this time each year from blogging about the traditional "Year-End Report on the Federal Judiciary" authored the Chief Justice of the United States.  This Wall Street Journal piece has a summary of this year's report, which is available at this link and starts with a great tale about the USS Constitution and the War of 1812.  Here is an overview based in the WSJ summary:

Chief Justice John Roberts, acknowledging the "fiscal cliff," avoided again lobbying for a judicial pay raise in his annual report on the U.S. court system but sought to defend the courts against future cutbacks....

This year, the chief justice explicitly acknowledged "the much publicized 'fiscal cliff'" consuming the executive and legislative branches, as well as "the longer term problem of a truly extravagant and burgeoning national debt." Rather than seek a bigger slice of the pie, the chief justice, who serves as administrative head of the federal judiciary in addition to presiding over the Supreme Court, argued that the judicial system already offers Americans good value and doesn't deserve to be cut.

This year's report also includes the usual accounting of caseloads in the federal courts, including these notable criminal justice caseload statistics:

Filings in the regional courts of appeals rose four percent to 57,501. Growth occurred in all types of appeals except civil appeals, which decreased one percent. Criminal appeals climbed 12 percent.

Filings for criminal defendants (including those transferred from other districts), which had reached an all-time high in 2011, dropped nine percent this year to 94,121. Excluding transfers, reductions occurred in the number of defendants charged with nearly every major offense, including drug crimes. Filings for defendants charged with immigration violations decreased 10 percent. The southwestern border districts once again accounted for 74 percent of the nation’s total immigration defendant filings.

Growth was reported for defendants accused of firearms offenses.  Filings for defendants prosecuted for regulatory offenses also increased.

Is Florida becoming, in place of Texas, the new capital for capital punishment in the US?

The question in the title of this post is prompted by this recent local article, which is headlined "Report: Florida leads nation in new death penalty case."  Here are excerpts:

As capital punishment declines in use and support nationwide, Florida leads the country in the number of death sentences handed down this year, according to a report by a group that advocates against the death penalty.

Florida judges sentenced 21 killers to death in 2012, followed by California with death sentences for 14 murderers, Texas with 9 and Pennsylvania with seven, according to the Death Penalty Information Center.  The four states accounted for 65 percent of the death sentences handed out in the United States....

Hillsborough State Attorney Mark Ober said seeking capital punishment is a scrupulous process. "We understand the consequences of these decisions," Ober said....

Florida Attorney General Pam Bondi, in a written statement to The Tampa Tribune, defended the state's use of the death penalty.  "As attorney general and a former prosecutor, I firmly believe the death penalty is the appropriate sentence for those convicted of the most heinous murders," Bondi said.  "Thanks to Florida's dedicated prosecutors, the most atrocious murderers are on death row, where they belong, for violently taking innocent lives."...

Ober's office, like most state attorney's offices in Florida, has a committee that measures cases against specific legal criteria in determining whether a death sentence should be pursued in court.

But in West Palm Beach, State Attorney Peter Antonacci, appointed to the post in March, seeks the death penalty in all first-degree murder cases, according to a report in the Palm Beach Post. The process has doubled the number of death penalty cases there and outraged defense attorneys.

Florida executed three killers this year, well behind Texas, which led the nation in that category with 15 executions.  Florida has the second highest population of death-row inmates, with 406, behind California's death row with 724 inmates, according to the report.  Texas has 308 inmates on death row, the report says.

According to information from the Florida Department of Corrections, the average stay on death row is 13.22 years prior to execution, with a little more than 14 years between the date of offense and execution. The average age of executed inmates is 44.4 years old.

With so many more death sentences now being handed out in Florida as compared to Texas, and with a death row in Florida now 25% bigger than in Texas, Florida perhaps should now be viewed as an even tougher state than Texas when it comes to application of capital punishment. That said, Texas remains far ahead of all other states in total and yearly numbers of executions, which is perhaps a more critical metric for assessing a state's affinity for and pursuit of the death penalty for certain murders.

DPIC reports slight uptick in number of death sentences imposed in 2012

The Death Penalty Information Center released its year-end report on death penalty developments today, and the full eight-page report is available at this link.  This press release from DPIC about the report echoes its theme of the death penalty in decline by making these points at the outset:

Only nine states carried out executions this year, equaling the fewest number of states to do so in 20 years, according to a new report released today by the Death Penalty Information Center (DPIC).  More than half of the states (29) either have no death penalty or have not carried out an execution in five years. The number of executions in 2012 (43) was 56 percent less than the peak in 1999 and equal to last year’s total.

The number of new death sentences in 2012 was the second lowest since the death penalty was reinstated in 1976.  Seventy-eight people were sentenced to death in 2012, representing a 75 percent decline since 1996 when there were 315 sentences.

Many death penalty states with histories of high use had no new death sentences or no executions in 2012. North Carolina, South Carolina, and Virginia (which is second to Texas in total executions since 1976) had no death sentences and no executions.  No executions were carried out in Alabama, Georgia, Louisiana, or Missouri.

“Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states.  It is very likely that more states will take up the question of death penalty repeal in the years ahead.”

Especially as compared to death penalty's modern heyday in the United States (which roughly corresponds to the half-decade following the oklahoma City bombing and President Bill Clinton's second term in office), this basic narrative of the capital punishment in decline is accurate.  But as my post headline and the graphic above notes, the very latest developments suggest a flattening out of the declining trend. 

Despite the controversy over the Troy Davis execution and the initiative repeal effort in California this year, there was still apparently a slight uptick in the total number of death sentences imposed throughout the United States.  And, as the data from DPIC here reveal, the 43 executions in 2012 is right around the average number of yearly executions throughout the United States over the past half-decade.  Thus, assuming recent capital past is prologue, we can and should reasonably predict on average six or seven death sentences and three or four executions every month in the United States for the foreseeable future.

On a related front, I wonder if anyone has any good data on the number of LWOP sentences imposed in 2012 or before.  I have long worried that a small reduction in death sentences imposed within a jurisdiction might sometimes result in disproportionately large increase in the number of LWOP sentences in that jurisdiction.  I do not have rigorous data to back up my concerns here, and I would be grateful for any information anyone may have about relationships between death sentencing trends and imprisonment trends in 2012 or before. 

BJS releases official accounting of "Prisoners in 2011" in the United States

As reported in this official press release, the US Justice Department’s Bureau of Justice Statistics this morning released its official accounting of the total population of prisons as of the end of 2011.  Here are a few data highlights via the press release:

Twenty-six state departments of corrections reported decreases in their prison population during 2011, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. California reported the largest decline (down 15,493), while New Jersey, New York, Michigan, Florida, and Texas each had population decreases of more than 1,000 prisoners in 2011.

Among states that had increases in their prison populations, Tennessee and Kentucky both added more than 1,000 inmates in 2011. During 2011, the total U.S. prison population declined for the second consecutive year, to under 1.6 million inmates or 15,023 fewer inmates than in 2010.  This represents a 0.9 percent decrease in the total prison population.

The overall decline in 2011 was due to the decrease in state prisoners, down 21,614 prisoners or 1.5 percent from 2010.  The reduction in California’s prison population under the Public Safety Realignment policy accounted for 72 percent of the total decrease in state prisoners.  The federal prison population offset the decline in the states with an increase of 6,591 prisoners (up 3.1 percent) from 2010 to 2011.

As in 2010, prison releases in 2011 (688,384) exceeded prison admissions (668,800). Admissions to federal prisons increased 12 percent (up 6,513 inmates) in 2011 while state prison admissions decreased 6.4 percent (down 41,511 inmates) from 2010.  The number of admissions to state prisons (608,166) fell to its lowest level since 2001.  Sixty-three percent (26,340 admissions) of the decrease in state prison admissions between 2010 and 2011 was due to fewer parole violators being reincarcerated.

In 2011 the U.S. imprisonment rate dropped to 492 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents.  The national imprisonment rate for males (932 per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (65 per 100,000 female U.S. residents)....

In 2010 (the most recent data available) 53 percent of sentenced state prisoners were serving time for a violent offense, 18 percent for property offenses, 17 percent for drug crimes and 10 percent for public order offenses, such as weapons, drunk driving, commercialized vice and court offenses.

An estimated 188,200 sentenced state prisoners (14 percent) were serving time for murder or manslaughter in 2010, while 160,800 offenders were incarcerated for rape and other sexual assaults.  Between 2000 and 2010, the estimated number of state prisoners sentenced for any violent offense increased by 99,400 inmates, or 16 percent (from 625,600 prisoners in 2000 to 725,000 in 2010).

Inmates sentenced for drug offenses comprised 48 percent (94,600 inmates) of the sentenced federal prison population in 2011, while 7.6 percent of federal prisoners were held for violent offenses.  An estimated 11 percent (22,100 inmates) were serving time in federal prison for immigration offenses.

Because imprisonment, especially at the margins, always seems to me to be a very expensive way to try to reduce crime, I am pleased to see that the prison population in the US went down a bit in 2011.  But, significantly, it seems most of the national prison population decrease can be attributed to the Plata litigation and subsequent realignment in California.  Absent significant prison population reductions in other states in 2012, it is possible that the national prison population in the land of the free could tick back up soon (thanks, in large part, to the seemingly ever-growing federal prison population).

The full 34-page BJS report "Prisoners in 2011," which has lots and lots of interesting data, is available at this link.  Among other interesting information, this new report reveals that, as of the end of 2011, the five largest prison systems in population terms are, in order, the feds, Texas, California, Florida and Georgia.

Reviewing the death penalty's recent past, present and future in Ohio

Today's Columbus Dispatch has this year-end review of the adminstration of the death penalty in the state of Ohio.  The piece is headlined "State to execute 12 over 2 years: Ohio carried out three executions this year, among 43 nationally," and here are excerpts:

Ohio dropped behind other states in the number of executions this year, but the pace is expected to quicken, with 12 lethal injections scheduled in the next two years.

In addition, four new death sentences were handed down in Ohio this year, including the first one in Franklin County since 2003, according to Ohio Attorney General Mike DeWine’s office.  Execution dates have not been set in those cases, including that of Caron E. Montgomery, 37, of Columbus, sentenced to death by a three-judge panel for the Thanksgiving Day 2010 stabbing deaths of his former girlfriend, Tia Hendricks; the couple’s 2-year-old son, Tyron Hendricks; and her 10-year-old daughter, Tahlia Hendricks....

Ohio carried out three of the nation’s 43 executions this year, the same number nationally as in 2011, according to figures compiled by the Death Penalty Information Center.... Ohio had other executions scheduled this year, but they were canceled because of a court fight over lethal-injection procedures and clemency commutations granted by Gov. John Kasich.

As usual, Texas led the nation with 15 executions this year, followed by Arizona, Oklahoma and Mississippi with six apiece.  Ohio was next with three, along with Florida. South Dakota had two executions, and Delaware and Idaho, one each.  Alabama and Georgia, which are usually among the top states on the executions list, had none in 2012.

Ohio executed five men in 2011, third nationally behind Texas and Alabama, and eight in 2010, second to Texas....

The Ohio Supreme Court has scheduled six executions next year, including Ronald Post of Lorain, set to be lethally injected on Jan. 16, barring intervention by the court or a grant of gubernatorial clemency.  The Ohio Parole Board recommended last week that Kasich grant clemency in Post’s case; the governor has not decided.

If Post is executed, he would be the 50th person in Ohio put to death since capital punishment resumed in 1999. There have been 1,320 executions in the U.S. since the death penalty was reinstated in 1976; most were by lethal chemical injections. The last electrocution execution was in 2010.... There are six executions slated in 2014 and one in January 2015.

Does the last decade add support for "more guns, less crime" claims?

The question in the title of this post is prompted by this new USA Today story, which is headlined "Federal gun checks surge as violent crime ebbs."  Here is how the piece starts:

The number of federally required background checks of prospective gun purchasers has nearly doubled in the past decade — a time when violent crime has been in long decline in many places across the USA, according to FBI records.

The bureau's National Instant Check System (NICS) does not track actual firearms sales — multiple guns can be included in one purchase.  But the steady rise in background checks — from 8.5 million in 2002 to 16.8 million in 2012 — tracks other indicators that signal escalating gun sales.

Advocates on both sides of the gun-rights debate disagree over what is driving the trend. Gun-rights groups attribute the steady increase to the growing popularity of hunting and other gun-recreation uses, the impact of state laws allowing citizens to carry concealed handguns and concerns that the Obama administration will push for laws restricting weapons purchases.

Gun-control advocates, led by the Brady Campaign to Prevent Gun Violence, say existing gun owners are responsible for most new purchases (about 20% of gun owners possess 65% of the nation's guns, according to a 2006 Harvard study).  Brady Campaign President Dan Gross said concerns about new gun-control laws are part of a "marketing ploy" to keep firearms moving.

No gun-control legislation was passed in President Obama's first term and no major proposal was offered during the 2012 presidential election campaign.  Still, there is an "expectation" that new gun-control proposals will surface in Obama's second term, said National Rifle Association Executive Vice President Wayne LaPierre.  "People expect a siege on the Second Amendment (right to bear arms).''

Larry Keane, senior vice president of the National Shooting Sports Foundation, said gun-related recreation — from hunting to target shooting on the range — is growing, too.  From 2006 through 2011, spending on hunting equipment grew by nearly 30%, according to a national survey published in August by the U.S. Fish and Wildlife Service.

Keane said the overall firearms industry has thrived despite the sputtering economy and the decline in violent crime. "Personal safety still is a big reason people purchase firearms," Keane said.  "The economic downturn, I think, raised fears that crime would eventually go back up."

New report on the state of capital punishment in Texas at year end

This new piece in the Texas Tribune, headlined "Death Row Population at Its Lowest Since 1989," reports on a few of the highlights from a new report concerning the administration of capital punishment in Texas.  Here is how the piece starts:

The population on Texas' death row is at its lowest in more than 20 years, and the number of new death sentences, though slightly up in 2012, continues a downward trend even in the nation's busiest death penalty state, according to a report released Wednesday by the Texas Coalition to Abolish the Death Penalty.

As they have nationally, death sentences in Texas have declined over the last decade. The state has seen a 75 percent drop in death sentences since 2002. And according to the coalition, the Texas death row population, at 289, is at its lowest point since 1989. According to the coalition's report, juries in the state issued nine new death sentences in 2012, a slight increase from the number issued in each of the two previous years.

But the distribution of new death sentences is uneven, the coalition reported.  For the third time in five years, there were no new death sentences out of Harris County, which once sent more people to death row than any other Texas county.  Meanwhile, the Dallas-Fort Worth area accounted for four of the new death sentences in 2012, and Dallas County alone contributed nearly 20 percent of death sentences in the last five years, according to the report.  Dallas County also led the state in executions: Five of the 15 Texans executed in 2012 were from there.

The full 16-page new report by the Texas Coalition to Abolish the Death Penalty is available at this link. The report is titled "Texas Death Penalty Developments in 2012: The Year in Review."

Latest BJS data report 2011 decline in US prison and overall correction populations

According the latest, greatest official numbers from the Bureau of Justice Statistics, the total population subject to criminal justice control in the US declined (again) in 2011. This press release from BJS sets out the basics:

About 6.98 million people were under some form of adult correctional supervision in the U.S. at yearend 2011, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. This was the equivalent of about one in 34 U.S. adults (or about 2.9 percent of the adult population) in prison or jail or on probation or parole, the lowest rate of adults under correctional supervision observed since 2000.

The adult correctional population declined by 1.4 percent or 98,900 offenders during 2011. This was the third consecutive year of decline in the number of offenders under the supervision of adult correctional authorities....

At yearend 2011, about 4,814,200 offenders were supervised in the community on probation or parole, and 2,239,800 were incarcerated in state or federal prisons or local jails. About one in 50 adults was under community supervision while about one in 107 adults was in prison or jail.

While both the community supervision population (down 1.5 percent) and the incarcerated population (down 1.3 percent) decreased during 2011, the majority of the decline (83 percent) in the total number of adults under correctional supervision during the year was due to a drop in the probation population. The probation population declined two percent or by 81,800 offenders during 2011, falling below four million for the first time since 2002.

For the third consecutive year, the number of offenders discharged from probation supervision (about 2.2 million offenders) exceeded the number who entered probation (about 2.1 million) during 2011, contributing to the decrease in the probation population....

An increase in the parole population partially offset declines in all other components of the adult correctional population. The parole population increased 1.6 percent or by 13,300 offenders during 2011. The state parole population increased 1.1 percent and the federal parole population grew 5.1 percent during the year....

The failure rate of parolees (defined as the percentage of parolees who were returned to jail or prison out of all parolees who could have been incarcerated at any point during the year) decreased for the fifth consecutive year. During 2011, about 12 percent of parolees at risk of reincarceration were incarcerated at some time during the year, down from about 15 percent during 2006.

All these data and so much more can be found in these two official new reports from BJS: Correctional Populations in the United States, 2011; and Probation and Parole in the United States, 2011

"The Micro and Macro Causes of Prison Growth"

The title of this post is the title of this very interesting paper on prison growth now on SSRN and authored by the always astute John Pfaff.  Here is the abstract:

This paper explores both "who" has driven up US prison populations in recent years and "why" this growth has occurred.  At least since the early 1990s, the "who" appears to primarily be prosecutors.  Crime and arrests have fallen, and the percent of felony cases resulting in admissions and time served once admitted have been flat.  But the probability that an arrest results in a felony charge has gone up significantly.  (Limitations in data prevent us from examining the role of filing decisions before 1994.)

As for the "why," this paper provides some evidence that, at least since the crime drop began, increases in prison spending appear to track increases in state budgets fairly closely, suggesting that increased fiscal capacity is an important causal factor.  It also looks at the politics-of-crime theories and explains that all previous efforts are unsatisfactory because they have focused on state and federal actors.  Prosecutors, who are driving prison growth, are county officials, and it is unclear that state- and national-level political theories explain more-local outcomes.

TRAC documents "striking judge-to-judge differences" in federal criminal caseloads

This new release from the Transactional Records Access Clearinghouse (TRAC) reports on new research that "has found wide variations in the criminal caseloads of individual federal district court judges, in some instances even among the judges serving in the same courthouse."  I doubt many federal practitioners will be surprised by this story, though some of the data is truly "striking":

TRAC's latest judge-by-judge analysis — using newly updated sentencing records on over 400,000 defendants — followed the criminal caseloads of 909 federal district court judges for the past 70 months.... Among the 909 district court judges whose records were examined, however, about half had not actively served during the entire 70-month study period. Thus, in the interest of better comparability, this report focuses on the 430 judges who had actively served for the entire 70 months....

[E]ven when the analysis was limited to the active judges who had served for the entire study period, the data disclosed surprising workload variations.  In ninety separate courthouses there were two or more active judges, allowing for a comparison of the variation in caseloads within the courthouse.  Among these ninety, there were four courthouses where the criminal caseload for one or more of the judges serving in them was twice the caseload of their colleague(s)....

There was also enormous variation in the volume of criminal cases a judge was required to handle that depended upon the courthouse at which the judge served.  While on average active judges sentenced 615 defendants during the study period, this average caseload level varied from a low of 147 criminal defendants in the District of Columbia federal court to a high of 7,020 in the Las Cruces, New Mexico district courthouse.

New Vera Institute report looks at performance funding for criminal justice reform

As detailed in this helpful post by Alison Shames, headlined "Performance Incentive Funding Focus of New Vera Report," the Vera Institute of Justice has just released a terrific new research report on a notable new structure for developing criminal justice reform and helping to ensure a cost-effective criminal justice system.  Here is an explanation of the report (along with a link to the full report and an executive summary and additional resources):

The idea that our tax dollars should be directed towards programs that deliver positive outcomes to the community is neither novel nor radical — but there are some interesting and innovative “pay for success” strategies for achieving this.  Social impact bonds, which are being piloted in the United Kingdom, New York City, and Massachusetts, are perhaps among the best known of these.  In the field of criminal justice, performance incentive funding (PIF) is another promising approach being tried in the United States.

PIF programs encourage local jurisdictions to supervise more offenders in the community and achieve better outcomes, namely lower recidivism and fewer prison commitments. They are premised on the idea that if the supervision agency or locality succeeds in sending fewer low-level offenders to prison — thereby causing the state to incur fewer costs—some portion of the state savings should be shared with the agency or locality.  By delivering fewer prison commitments, agencies or localities receive a financial reward, which is reinvested into evidence-based supervision programs.

A new report from Vera’s Center on Sentencing and Corrections — Performance Incentive Funding: Aligning Fiscal and Operational Responsibility to Produce More Safety at Less Cost — details how PIF programs can lead to better offender outcomes while reducing overall corrections costs.  It presents the findings of a summit held in September 2011, which was convened by Vera, the Pew Center on the States, and Metropolis Strategies, to discuss the key challenges and tasks that states must address to develop and implement a PIF program.

Achieving positive outcomes, such as reduced recidivism and revocations and safer and stronger communities, is a goal that tax payers, policymakers, and criminal justice professionals can all agree on.  By emphasizing the use of evidence-based practices, reporting on outcomes, and paying for success, PIF programs can help states reduce their corrections costs, strengthen their community supervision programs, and build safer neighborhoods.

"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"

The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:

Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws.  The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes.  Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates.  The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.

This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature.  We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages.  We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges.  We address the problem of disentangling trends using a rigorous method called regression discontinuity design.  We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker.  Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.

Record-high government-sponsored departure rate in latest quarter of post-Booker data

Late yesterday, I got this e-mail alert via the US Sentencing Commission:

The United States Sentencing Commission's Preliminary Quarterly Data Report for the third quarter of fiscal year 2012 is now available on the Commission's website [at this link]. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first three quarters of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Only late today did I finally get a chance to look through these new numbers and the only big story within is what I highlighted via the title of this post coming from Table 4 of this big quarterly data report: during the third quarter of FY 2012 (which runs from April 1 to June 30), the rate of government-sponsored departures hit a record high of 28.7%. For some statistical context, the average rate of government-sponsored departures post-Gall has generally been under 26% (although the last six quarters all show rates above that modern historical average).

Interestingly, though the rate of non-government-sponsored below-guideline sentences has actaully declined each of the last three quarter, the rate of within-guideline sentencing hit a modern record low of 53.1% in the third quarter of FY 2012 because of the record-high rate of government-sponsored departures during this period. 

The first sensible explanation I can devise for this latest data is that they reflect the impact of the Justice Department's decision way back in January (reported here and here) to authorize so-called "fast-track" departures in all districts, not just in a select few pre-authorized fast-track districts. I suspect that this decision may have led not only to an uptick in government-sponsored fast-track departures, but perhaps also some other types of "government-sponsored" departures in plea agreements for those who might not quite fit the standard fast-track criteria.

Don't some horror movies start with an execution on Halloween?

The silly question in the title of this post is prompted by the fact that two states had executions go forward over the last few spooky days: as reported here by the AP, "Donnie Lee Roberts, convicted in his girlfriend's 2003 slaying in Texas, was executed Wednesday for fatally shooting the woman and taking items from her home to sell or trade to support his drug habit"; as reported here by Reuters, a "man convicted of the 1990 rape and murder of a 9-year-old girl was put to death on Tuesday night in a South Dakota execution witnessed by the victim's parents, who drove 1,400 miles from their New York home to watch him die."

I believe that there have now been 36 executions throughout the United States in 2012, and DPIC indicates here that eight more serious execution dates are on the scheduled for the next two months.  If all these executions go forward, there could be a slight uptick (from 43 to 44) in the number of executions this year compared to 2011.

"Prosecutorial Discretion, Hidden Costs, and the Death Penalty: The Case of Los Angeles County"

The title of this post is the title of this notable new paper with interesting data and an interesting perspective on the operation of the death penalty in California. The paper is authored by Nicholas Petersen and Mona Lynch, and here is the abstract:

This article analyzes the processing of homicide cases in Los Angeles County from 1996 to 2008 to measure the time-costs of pursuing cases capitally and to examine how prosecutorial discretion in homicide charging is exercised in this jurisdiction.

To answer these questions, we explore two related outcomes: (1) the odds of a “death-notice” filing and (2) time-to-resolution.  According to Model 1, death-eligible cases with multiple special circumstances are significantly more likely to be prosecuted capitally than those with only one special circumstance. In light of the limited financial information regarding capital punishment at the county level, Models 2-4 utilize Cox Proportional Hazard regression to investigate the time-costs associated with death-eligibility. Estimates indicate that capital cases take significantly longer to reach resolution than noncapital cases.  Furthermore, the filing of special circumstances increases survival time in noncapital cases. In addition to highlighting the time-costs of trying cases capitally, these findings reveal those associated with the prosecution of special circumstance cases, even when the death penalty is not ultimately sought.

By examining capital costs at the county level, this analysis contributes to the ongoing policy reform debate in California that aims to address the state’s “dysfunctional” death penalty system.

NACDL launches extraordinary new resource: on-line state-by-state "Restoration of Rights Database"

As detailed in this news release, the National Association of Criminal Defense Lawyers (NACDL) has rolled out a amazing new on-line resource. I will let part of the text of the release explain:

NACDL is pleased to offer as both a resource for its members and as a service to the general public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  NACDL today launches this new section of its online Resource Center to house NACDL member and former U.S. Pardon Attorney (1990-97) Margaret Colgate Love’s comprehensive work on this topic in a user-friendly format.  It promises to be an indispensable guide for defense lawyers as well as members of the public affected by the collateral consequences of a conviction and those re-entering society or the workforce after a conviction.

As a result of the twin crises of overcriminalization and mass imprisonment in the United States, the population that can be served by this tremendous new resource is, sadly, enormous.... [because] is reported that some 65 million people, or one in four Americans, have an arrest or conviction record.

This new resource offers free assistance to those tens of millions of people and their lawyers, offering an interactive map with individual profiles summarizing the law and practice in each U.S. jurisdiction and the federal system regarding relief from the collateral consequences of conviction, including obtaining a pardon, expungement and the restoration of civil rights.  Click on a jurisdiction and you will get a short summary and a full profile detailing that jurisdiction’s law relating to both the loss and restoration of civil rights and firearms privileges and discussing any provisions on non-discrimination in employment and licensing.  These materials will be an enormous aid to lawyers in minimizing the collateral consequences suffered by clients and in restoring their rights and privileges.

In addition to the jurisdictional profiles, there is a set of charts covering all 50 states plus territories and the federal system, that provide a side by side comparison that makes it possible to see national patterns in restoration laws and policies....

A team of pro bono attorneys at the firm of Crowell & Moring LLP, led by partner Harry P. Cohen, provided significant assistance with this project, as did a number of law students from the Washington College of Law at American University and the University of Toledo School of law. Detailed acknowledgements are provided on the project’s home page, which is now live and publicly available at www.nacdl.org/rightsrestoration.

I have now already spent more than an hour clicking around these NACDL pages to discover a stunning amount of valuable and user-friendly materials assembled via this project.  Kudos to everyone involved in this important and productive endeavor.

Is the great US crime decline now finally over?: BJS reports crime up in 2011

As reported in this AP article, the "number of violent crimes rose by 18% in the U.S. last year while property crimes went up by 11%, the government reported Wednesday."  Here is more on this notable crime data news:

It was the first year-to-year increase for violent crime since 1993, marking the end of a long string of declines.  Violent crime fell by 65% since 1993, from 16.8 million to 5.8 million last year.

According to the U.S. Bureau of Justice Statistics' annual national crime victimization survey, the size of the percentage increases in both violent crime and property crime for last year was driven in large part by the historically low levels seen in 2010.

The increase in violent crime was the result of an upward swing in assaults, which rose 22%, from four million in 2010 to five million last year.  But the incidence of rape, sexual assault and robbery remained largely unchanged, as did serious violent crime involving weapons or injury.

"While it's cause for concern, I would caution against forecasting future crime trends based on a one-year fluctuation," said Chris Melde, an assistant professor at Michigan State University's school of criminal justice.  "You can have percentage changes that seem quite large, but unless you put them in a longer-term perspective you can sometimes misinterpret the overall seriousness of the problem," Mr. Melde added.

The increases in violent crime experienced by whites, Hispanics, younger people and men accounted for the majority of the increase in violent crime.

In the latest survey, property crime was up for the first time in a decade, from 15.4 million in 2010 to 17 million last year.  Household burglaries rose 14%, from 3.2 million to 3.6 million.  The number of thefts jumped by 10%, from 11.6 million to 12.8 million.

The victimization figures are based on surveys by the Census Bureau of a large sample of people in order to gather data from those who are victims of crime.  They are considered the government's most comprehensive crime statistics because they count both crimes that never are reported to the police as well as those reported.

Last May, the Federal Bureau of Investigation's preliminary crime report for 2011, which counts only crimes reported to police, concluded that crime dropped again last year, down 4% for violent crime and 3.7% for property crime.  The declines slowed in the second half of last year, a sign to academic experts that the many years of lowering crime levels might be nearing an end.  Historically, less than half of all crimes, including violent crimes, are reported to police.

The full BJS report, excitingly titled "Criminal Victimization, 2011, is available at this link.  Because there are so many different ways to interpret ad spin this BJS data, I am not even going to try.  But I welcome commenters to go at it.

Some related posts on the great modern crime decline: 

• Still more (and still puzzling) crime rate declines reported by FBI
• Effective Washington Post commentary talks up great (and still puzzling) crime decline
• Amazingly great new FBI data: crime down yet again in start of 2011!
• Still more great news and data on the latest crime rates in the United States
• Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
• Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
• Some speculations about the great crime decline in Florida
• Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010

"The Skeptic's Guide to Information Sharing at Sentencing"

The title of this post is the title of this notable new article by ProfessorRyan Scott, which is now available via SSRN. Here is the abstract:

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges.  Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases.  According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from three fundamental weaknesses as an alternative to other structured sentencing reforms. First, there are information collection challenges.  To succeed, the model requires sentencing information that is written, comprehensive, and representative.  Due to acute time constraints, however, courts cannot routinely generate that kind of information.  Second, there are information dissemination challenges.  Sharing sentencing information raises concerns about the privacy of offenders and victims.  Also, the volume and complexity of sentencing decisions create practical difficulties in making relevant information accessible to sentencing judges.  Third, the model’s voluntariness is an important drawback.  The information sharing model rests on the heroic assumption that judges will respond to information about previous sentences by dutifully following the decisions of their colleagues.  That is unrealistic.  Judges just as easily can disregard the information, ignore it, or even move in the opposite direction.

Despite those grounds for skepticism, information sharing can play a valuable role as a supplement to other sentencing reforms.  In particular, information sharing would benefit from a system of sentencing guidelines, whether mandatory or advisory, and from open access to the information on the part of defense counsel and prosecutors.

How might we define, assess and analyze judicial sentencing wisdom?

The question in the title of this post is prompted by this intriguing looking new paper I came across on SSRN, titled "Judicial Wisdom: An Introductory Empirical Account and Research Agenda." The paper is by Jeremy Blumenthal and Daria Bakina, and here is the abstract:

We present the first empirical analysis of “judicial wisdom”: what it means to be a “wise judge.”  We surveyed 40 federal judges; half listed characteristics of a “wise” judge and, to compare, half listed characteristics of an “excellent” judge.  The factor models of judicial wisdom and of judicial excellence demonstrate the two concepts’ distinct nature. Judicial wisdom seems comprised of three traditional wisdom factors and one factor specific to the judicial role.  We discuss the substantive models of judicial “wisdom” and “excellence,” and legal and policy implications, including the possibility of teaching judicial wisdom.  We also raise directions for future research.

Report from Council of State Governments indicates reduced recidivism in many states

I always enjoy reporting good crime and punishment news; I am thus pleased to highlight this press release from The Council of State Governments Justice Center’s National Reentry Resource Center  discussing findings that "a number of states [are] reporting significant reductions in recidivism."  The press release provides a summary of this policy brief, including these highlights:

The states profiled in the report show significant declines in their three-­year recidivism rates based on data tracking individuals released from prison in 2005 and 2007. Texas and Ohio reported reductions of 11 percent, while the Kansas rate fell by 15 percent and Michigan’s rate dropped by 18 percent.  Incorporating data through 2010 (and in some cases, through 2011), the report provides the most recent multi-state information available on recidivism....

US Senator Rob Portman (R, OH), a co-author of the Second Chance Act, applauded the states, including Ohio, for their accomplishments.  “Second Chance Act programs, in collaboration with faith-based and community organizations and local reentry coalitions, have a proven record of helping inmates turn their lives around, and I applaud their continued good efforts to reduce recidivism.  Encouraging people released from prison to become productive members of society not only strengthens communities, but also reduces the burden on taxpayers who shoulder the costs associated with incarceration.”

The brief, “States Report ReducAons in Recidivism,” highlights strategies that leaders in several states credit with helping drive down recidivism:

• In Ohio, state policymakers standardized the use of a validated risk assessment instrument to focus limited treatment and supervision resources on those individuals assessed at the highest risk for reoffending.

• In Kansas, state leaders awarded performance-based grants to community corrections agencies, partnered with local communities where recidivism rates were highest to improve post-release supervision, and enhanced housing and workforce development services to beaer meet the needs of people coming out of prison.

• Michigan officials invested heavily in the state’s Prisoner Reentry Program, prioritizing funding for housing, employment, and other transition support services in order to provide the most effective community-based programming for released individuals.