Sunday, March 04, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...
Thursday, January 26, 2012
"The Price of Prisons: What Incarceration Costs Taxpayers"
The title of this post is the title of this important new (and relatively brief) report from the Vera Institute of Justice, which aspires to provide a complete picture of state prison costs to taxpayers. Here is the text of the e-mail blast I received about the report:
A newly released study by a team of Vera researchers calculates—for the first time—the full cost of prisons to taxpayers, including costs outside states’ corrections budgets. The Price of Prisons: What Incarceration Costs Taxpayers—published today—shows that in 40 participating states the aggregate cost of prisons in FY2010 was $38.8 billion, $5.4 billion more than their corrections budgets reflected.
Individually, states’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut. Detailed fact sheets for each of the 40 participating states are available [at this link].
The Price of Prisons is a joint product of Vera’s Center on Sentencing and Corrections and its Cost-Benefit Analysis Unit, and was conducted in partnership with the Public Safety Performance Project of the Pew Center on the States.
Sunday, January 08, 2012
Interesting new data on operation of death penalty in Connecticut
Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State. First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:
This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination. My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut. The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.
Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony. Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.
Second, from the start and end of the NYT editorial:
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....
Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study. But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional. A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.
Thursday, December 15, 2011
Latest official BJS numbers show historic modern decrease in prison population
Proving once again the aphorism that what goes up (and up and up and up) must eventually come down, this new press release reports on a notable new development concerning modern prison populations:
The Bureau of Justice Statistics (BJS) reported today that the number of offenders under adult correctional supervision in the U.S. declined 1.3 percent in 2010, the second consecutive year of decline since BJS began reporting on this population in 1980. At yearend 2010, about 7.1 million people, or 1 in 33 adults, were under the supervision of adult correctional authorities in the U.S.
In addition, the total U.S. prison population fell to 1.6 million at yearend 2010, a decline of 0.6 percent during the year, the first decline in the total prison population in nearly four decades. This decline was due to a decrease of 10,881 in the number of state prisoners, which fell to just under 1.4 million persons and was the largest yearly decrease since 1977. The federal prison population grew by 0.8 percent (1,653 prisoners) to reach 209,771, the smallest percentage increase since 1980....
During 2010, prison releases (708,677) exceeded prison admissions (703,798). The decrease in commitments into state prison, especially the 3.3 percent decrease in the number committed from the courts on a new sentence, was responsible for the decline in the state prison population. The time that offenders entering state prison could expect to serve on a commitment, about 2 years, remained relatively stable between 2009 and 2010, which indicates that the decline in the state prison population during the year was the result of a decrease in admissions.
Half of state departments of corrections reported decreases in their prison population during 2010. California (down 6,213) and Georgia (down 4,207) reported the largest decreases, followed by New York (down 2,031) and Michigan (down 1,365). Illinois (up 3,257) reported the largest increase, followed by Texas (up 2,400) and Arkansas (up 996).
In 2010, the U.S. imprisonment rate dropped to 497 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 (938 per 100,000 male U.S. residents) was about 14 times the imprisonment rate for females (67 per 100,000 female U.S. residents).
Among offender age groups, about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.
All of these interesting data and lots and lots more appear this pair of new documents:
I cannot overstate how excited I am to learn that, at the same time that US crime rates continue to hit record modern lows, we are also seeing a decrease in the number of persons incarcerated throughout the country. And I hope and trust that all readers, no matter what their perspective on sentencing law and policy, will also see this news as cause for celebration.
DPIC year-end report indicates record-low number of US death sentences in 2011
The Death Penalty Information Center has just released its always notable year-end report for 2011, which can be accessed here. The report carries this lengthy sub-title: "Illinois Abolition, Oregon Moratorium, and Troy Davis Execution Highlight Growing Concerns About Death Penalty; Executions Decline, Death Sentences Fall Well Below 100." As the title to this post reveals, I think the most notable and important part of the 2011 story is the significant decline in death sentences as discussed in these passages from the report:
Death sentences continued their sharp decline since the 1990s. The number of new death sentences imposed in 2011 stands at 78, a decline of about 75% since 1996, when 315 inmates were sentenced to death. This is the lowest number of death sentences in any year since the death penalty was reinstated in 1976. Texas, which had 48 new death sentences in 1999, had only 8 this year.
California, the state with the largest death row, saw its death sentences drop by more than half this year -- 10 compared with 29 in 2010 (at least 2 other cases resulted in a jury verdict of death, but the judge has not imposed the sentence). Many death penalty states, such as Maryland, South Carolina, Missouri and Indiana had no new death sentences in 2011. The South and West combined for 87% of the death sentences, while the Midwest and Northeast had 12%.
The annual number of death sentences began declining after 1998. In the 1990s there were close to 300 death sentences annually. Since then, the number has dropped steadily, as the risks of executing the innocent grew more apparent and life without parole sentences became more common. In every region of the country, death sentences have declined, which eventually will affect the number of executions.
Couple points of follow-up to detail some of my thoughts about this part of the story:
1. Though innocence concerns and an LWOP alternative definitely help explain why the national death sentences have declined "about 75% since 1996," these factors do not alone strike me as a sufficient explanation for the big dip in death sentences from 2010 (with 112 death sentences nationwide) to 2011 (with only 78 death sentences). As reflected in this effective Wall Street Journal article about this DPIC report, I suspect the high costs of prosecuting capital cases is prompting fewer prosecutors to seek death sentences and/or more prosecutors being willing to accept plea deals that take death off the table after a capital indictment.
2. I seriously doubt that a decline of the national number of death sentences, unless and until the number gets into teens, "will affect the number of executions" anytime soon. There are still well over 3000 murderers on death row right now, which means the US could have more than five decades of executions at the now-common pace of around 50 executions (and 10 death sentence reversals) each year even if there were zero new death sentences over the next half-century. In addition, there are reasons to believe that many of the newer death sentences in recent years are "better" (i.e., less likely to be reversed) because prosecutors, jurors and judges are not seeking or imposing death sentences in more questionable cases.
3. Speaking of execution rates and death sentences, the latest DPIC data highlight that the yearly execution numbers lately are principally a function of how quickly and how often Texas, Ohio, Alabama, Georgia, Florida and a few other serious death penalty states get murderers from death row to the execution chamber. These five states alone already have nearly 1200 murderers condemned to die, which means these five states alone could sustain a pace of, say, thirty executions per year until the year 2050 without the imposition of any new executions over that time. And if California with its more than 700 condemned murderers were ever to get seriously back into the execution business (which I very much doubt)....
Monday, December 05, 2011
US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Fourth Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 5, 2011)
As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.
These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)
Monday, October 31, 2011
The US Sentencing Commission new mega-report on mandatory minimums now available
I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System." This official press release provides the basics on this important report:
Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.
Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.
Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):
- More than 27 percent of offenders included in the pool were convicted of an offense carrying a mandatory minimum penalty.
- More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
- Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
- Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for “safety valve” relief, or both.
- Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
- Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.
The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link. Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.
October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, October 07, 2011
Eighth Circuit panel unanimously affirms dismissal of challenges to Arkansas execution protocol
Earlier today, an Eighth Circuit panel handed down an opinion in Williams v. Hobbs, No. 10-1573 (8th Cir. Oct. 7, 2011) (available here), which rejects various claims by death row prisoners in Arkansas concerning the state's execution plans. Here is how the opinion starts:
Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.
Wednesday, September 07, 2011
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Friday, August 05, 2011
"On the Chopping Block: State Prison Closings"
The title of this post is the title of this timely new little report from The Sentencing Project. The report spotlights that at least 13 states have closed or are considering closing correctional facilities this year, and includes a detailed chart on state prison closings. The report begins this way:
As a result of recent policy changes and pressures brought on by the fiscal crisis, state lawmakers are closing prisons after 40 years of record prison expansion. Declining prison populations in a number of states have resulted in excess prison capacity. During 2010, the Bureau of Justice Statistics reported the first decline in the overall state prison population since 1977 and found 24 states had reduced prison populations during 2009. In 2011 at least thirteen states have closed prison institutions or are contemplating doing so, potentially reducing prison capacity by over 13,900 beds. Since 2002, Michigan has led the nation in this regard. The state has closed 21 facilities, including prison camps, as a result of sentencing and parole reforms. Overall, the state has reduced capacity by over 12,000 beds for a total cost savings of $339 million.
Other states, including New Jersey and Kansas, have also closed prisons in recent years amid changes in sentencing policy and parole decision making that have resulted in a decline in state prison populations. Maryland also reduced prison capacity when it closed the Maryland House of Corrections in 2007 by transferring 850 prisoners to other prisons.
Wednesday, August 03, 2011
Split Sixth Circuit reverses federal death sentence on interesting grounds
A long and quite interesting Sixth Circuit opinion handed down today in US v. Gabrion, No. 02-1386 (6th Cir. Aug. 3, 2011) (available here), covers a lot of issues relating to the federal death penalty in the course of affirming a conviction and revering the death sentence. This start to the partial dissent by Chief Judge Batchelder provides an effective summary of the majority ruling and the enduring points of disagreement within the panel:
I would affirm the district court in its entirety — both conviction and sentence. Therefore, I concur generally in the portions of the majority’s decision that affirm the judgment of the district court without necessarily joining the majority’s reasoning or discussion. I agree that we need not reach the issue contained in Section XIV but I do not join in the associated dicta. I respectfully dissent from those portions of the majority’s decision that reverse the district court, specifically Sections II and III.
In Section II, the majority conducts a de novoreview of Gabrion’s claim that the district court misinterpreted or misapplied certain provisions of the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591—3598. By reading the word “any” in § 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a mitigating factor”) as unqualified and unlimited, the majority holds that these provisions mandate that a capital defendant may offer to the jury any “mitigating” evidence or argument, i.e., any evidence or argument that could conceivably make a juror question the appropriateness of the death penalty. Reading “any” as unlimited necessarily requires the inclusion within these two provisions of Michigan’s policy against the death penalty. The majority therefore concludes that the district court erred by excluding reference to Michigan law.
In Section III, the majority considers Gabrion’s claim that the district court violated his constitutional right to due process by misinstructing the jury on the burden of proof in the weighing of aggravating and mitigating factors, and again conducts a de novo review. The district court instructed the jury that it need only find that the aggravating factors “sufficiently outweigh” the mitigating factors, which is language quoted directly from the statute. See § 3593(e). The majority finds the statutory language unacceptably vague, and therefore constitutionally infirm, and holds that a sentencing court must instruct the penalty-phase jury that it may impose the death penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
I must respectfully disagree with both of these holdings. I would hold that a reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case. Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury. I would affirm the district court.
Shouldn't we be surprised Baze settled so little about lethal injection protocols?
The question in the title of this post is prompted by some new headlines and stories out of Florida and Tennessee reports on-going lethal injection litigation: from Florida here we have "Judge hearing challenge to Fla. execution drug"; from Tennessee here we have "Tennessee Executions on Hold." Moreover, as regular readers know, both the federal government and Ohio are in the midst of a de facto execution moratoria as they seek to shore up their lethal injection protocol and practices (background here and here). And California, the state with the largest death row, seems no closer to resuming executions today than it did five years ago.
I am not at all surprised that attorneys for murderers on death row continue to press vigorously any and all plausible constitutional challenges to lethal injection protocols a full three years after the Supreme Court seemingly important Baze ruling which approved Kentucky's execution protocol. But I am quite surprised that these constitutional challenges continue to be having so much traction in lower courts and continue to hinder the ability of so many states to resume executions.
In short, though I knew the Baze ruling wouldn't resolve or shut down most lethal injection litigation, I expected that this litigation would be a much smaller part of the national death penalty story over time. And yet, the opposite almost seems to be the case (though this may be more a product of recent practical challenges in getting key lethal injection drugs rather than litigation realities).
Do readers share my surprise on this front? Was I just wrong to suspect the 2008 Supreme Court ruling in Baze could and would be a significant turning point in this uniquely modern death penalty story? Are there some important broader lessons — concerning the administration of the death penalty in the United States or concerning the limits of SCOTUS jurisprudence — to be drawn from these realities?
Thursday, July 21, 2011
"Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes"
The title of this post is the title of this notable empirical paper by Thomas Cohen from the U.S. Bureau of Justice Statistics, which is available now via SSRN. Here is the abstract:
The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients?
These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders. This article concludes by discussing the policy implications of these findings and possible avenues for future research.
Tuesday, July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, July 18, 2011
New research shows positive outcomes from drug court programs
Via an email from the folks at the Center for Court Innovation, I have learned of important new research finding that drug courts are often successful at reducing substance abuse and crime. Here is an excerpt from the email describing this new research:
Researchers at the Urban Institute, the Center for Court Innovation, and RTI International have recently completed perhaps the most ambitious study of drug courts to date. Funded by the National Institute of Justice, the five-year multi-site study compared participants in 23 drug courts in seven states to similar defendants who went through conventional case processing. The results offer vivid evidence that drug courts are effective at reducing both substance abuse and crime.
Among other findings, the study documented that drug court participants were one-third less likely to report using drugs 18 months after their enrollment in the program. And they were responsible for less than half as many criminal acts as the comparison group after 18 months. Largely because of these reductions in criminal behavior, drug courts ended up saving an estimated $5,680 per participant — cost savings that closely resemble those found in previous studies in California and Washington State.
In examining why drug courts have succeeded, the evaluation focused in particular on the role of the judge and the value of procedural fairness. The fact that drug court participants generally had more favorable perceptions of the judge than the comparison group was among the most important factors explaining why drug courts reduced drug use and crime.
Wednesday, June 22, 2011
Justice Department creates great new evidence-based criminal justice resource
I am extremely pleased to see (thanks to this item at The Crime Report) that The U.S. Justice Department has created an important new website, Crime Solutions.gov, to enable all of us to better assess the effectiveness of state and local criminal justice programming. Here is more background vie The Crime Report:
The site, unveiled yesterday at the National Institute of Justice’s annual crime research conference near Washington, D.C., was billed by federal officials as a “single, credible, online resource to inform practitioners and policymakers about what works in criminal justice, juvenile justice, and crime victim services.”
Laurie Robinson, Assistant Attorney General for Justice Programs, started the project when she returned to government service in 2009. A team of experts from her office and the Maryland-based private firm Development Services Group (DSG) assembled the database by reviewing academic studies that have reviewed hundreds of anticrime programs under accepted scientific standards.
Each program was classified in one of three categories: effective, promising, or no effects. Officials emphasized that the CrimeSolutions.gov site is a work in progress, with new evaluations added almost daily. In the last week before the NIJ conference, the number listed jumped from 125 to 145.
The programs are divided into eight categories. As of yesterday, crime and crime prevention had the most evaluations (24) while drugs and substance abuse had the fewest (8). Other categories are corrections and prisoner reentry, courts, forensics and technology, juvenile justice, law enforcement, and victims and victimization.
Many programs didn’t make the cut, either because they were judged ineffective or there wasn’t enough evidence to make a judgment. Phelan Wyrick, an assistant to Robinson, said good but unproved programs would not have to make the list to qualify for federal funding. “We must continue to support innovation,” he told the NIJ conference.
CrimeSolutions.gov is intended to be a central, reliable, and credible resource to help practitioners and policymakers understand what works in justice-related programs and practices. Its purpose is to assist in practical decision making and program implementation by gathering information on specific justice-related programs and reviewing the existing evaluation research against standard criteria.
It is important to note the CrimeSolutions.gov Web site does not constitute an endorsement of particular programs, nor does it conduct original research. The programs reported upon favorably are being recognized for their accomplishments in support of the mission of the Office of Justice Programs (OJP). Furthermore, it is not intended to replace or supersede informed judgment and/or innovation. CrimeSolutions.gov recognizes that rigorous evaluation evidence is one of several factors to consider in justice programming, policy, and funding decisions. OJP also recognizes the importance of encouraging and supporting innovative approaches that may not yet have extensive evidence of effectiveness.
Wednesday, June 01, 2011
Interesting new federal sentencing data to mine from USSC
I am pleased to see that the US Sentencing Commission has now already posted another round of fresh new sentencing data on its website. The USSC's latest data report, which can be accessed here, is described this way:
Second Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Interestingly, the latest quarter of data reveal an apparent nadir in the percent of within-guideline sentences (53.5%) driven by a record high percent of government-sponsored below-guideline sentences (27.2%). The latest data also show that in the first half of FY11, only just over one-third of all child porn sentences are within-guidelines (36.8%) while over 60% involve government-sponsored (18.6%) or judge-initiated (42.8%) below-guideline sentences. This further reinforces my view that, generally speaking, in a mine-run case a below-guideline sentence rather than a within-guideline sentence complies with the 3553(a)(6) statutory instruction to sentencing judges to avoid unwarranted disparities.
Thursday, May 26, 2011
Interesting Brookings report on US crime rates in various regions
As detailed in this press release, the Brookings Institution has released an interesting report about declining crime rates in the US. Here are the particulars:
The new report, City and Suburban Crime Trends in Metropolitan America, finds that factors like immigration, ethnicity, and poverty, when combined, do not play the roles in encouraging crime many might believe they do.
“Many people know the rates of violent and property crimes have declined significantly in recent years,” said Steven Raphael, Professor of Public Policy at the University of California, Berkeley and one of the report authors. “What may come as a surprise is that some of the social characteristics we have associated with crime in the past are not associated with criminal behavior as they were once upon a time. Crime rates have dropped everywhere, but they have declined the most in the nation’s inner cities that are often poorer, more urbanized, and more minority than their suburban counterparts.” ...
Among the report’s key findings:
- Rates of violent crime and property crime declined significantly between 1990 and 2008 in the country’s 100 largest metropolitan areas, with the largest decreases occurring in cities. Violent crime rates dropped by almost 30 percent in cities, while property crime fell by 46 percent. Though city crime rates remain considerably above those in suburbs, smaller decreases in suburban violent and property crime rates over this time period (7 percent and 37 percent, respectively) narrowed the gap.
- The gap between city and suburban violent crime rates declined in nearly two-thirds of metro areas. In 90 of the 100 largest metro areas, the gap between city and suburban property crime rates narrowed from 1990 to 2008. In most metro areas, city and suburban crime rates rose or fell together.
- Among suburban communities, older high-density suburbs registered the largest declines in crime rates. All types of suburban communities saw property crime rates fall over this time period. Cities and high-density suburbs also saw violent crime rates decline, but low-density exurban communities experienced slight increases that are not explained by their changing demographics.
- As crime rates fell and communities diversified, relationships between crime and community demographic characteristics weakened significantly. The association between crime and community characteristics — like the proportion of the population that is black, Hispanic, poor, or foreign-born — diminished considerably.
The full report from the Brookings folks is available at this link.
Monday, April 25, 2011
Latest USSC federal sentencing data shows uptick in within-guideline sentences
I am pleased an intrigued to see that the US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2011. (Published April 19, 2011)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases. Most notably, these latest numbers reveal a slight uptick in the total number of within-guideline sentences apparently as a result of a slight downtick in the number of judge-initiated below-guideline sentence.
Saturday, April 16, 2011
The distinctive whiteness of federal child porn offenders
As noted in this post, part of my plans for this weekend (besides watching lots of NBA playoff games) is trying to mine some interesting stories from the just-release FY2010 federal sentencing data now available here on the US Sentencing Commission's website. And the first datum that jumped out at me from the tables I started perusing concerns the race of offenders in each primary offense category as set forth in this table.
Specifically, if one looks closely at only those offenses in which 1000 or more cases were sentenced in FY 2010, one sees that in all but one notable instance, the percentage of offenders who were white is below 50%. For drug trafficking offenses, for example, only 26% of sentenced offenders were white; for firearm offenses, only 29% of sentenced offenders were white; for fraud offenses, only 47% of sentenced offenders were white. But for child pornography offenses, a full 89% of sentenced offenders in FY 2010 were white. (I have sometimes joked that, for federal sentencing purposes, kiddie porn is kind of like the white guys' crack, and this data highlights this (useful?) analogy is true in at least on notable way.)
One could (and perhaps should) put lots of spin on these racial demographic realities of federal offense sentencing. For this post, however, I just want to note the outlier reality of child porn offenses and see what others (particularly federal sentencing practitioners) might want to say about it.