Tuesday, January 6, 2015
Notable discussions of children as mass incarceration’s "collateral damage"
The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces." Here is an excerpt:
A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....
A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.
Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.
Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....
Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....
John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”
I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders. And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:
Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”
Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.
Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.
Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.
In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.
January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack (0)
Former Virginia Gov McDonnell gets (way-below-guideline) sentence of two years in prison
As reported here by the Washington Post, a "federal judge sentenced former Virginia governor Robert F. McDonnell to two years in prison Tuesday — a term far lower than what prosecutors had sought and one that means the popular politician will be free before his 63rd birthday." Here is more:
U.S. District Judge James R. Spencer said he was moved by the outpouring of support for McDonnell, though he could not ignore the jury’s verdict. “A price must be paid,” Spencer said. “Unlike Pontius Pilate, I can’t wash my hands of it all. A meaningful sentence must be imposed.”
The penalty is a win for defense attorneys, who had asked that the former governor be sentenced to mere community service even as prosecutors initially advocated for a prison term stretching longer than a decade. The U.S. probation office had determined that federal sentencing guidelines called for a term of incarceration between 10 years and a month and 12 years and seven months.
Spencer ordered the former governor to report to prison on Feb. 9. Though McDonnell (R) will certainly appeal his conviction, the sentence brings to a close a stunning narrative of politics, greed and family drama that reached a climax in September when McDonnell, 60, and his wife, Maureen, were convicted of public corruption. A jury found unanimously that the couple used the governor’s office to help a wealthy dietary supplement company executive advance his business interests, and in exchange, the businessman gave the McDonnells $177,000 in loans, gifts and luxury goods.
GOP apparently eager to have Eric Holder as AG for at least one more month
The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee." In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January at the earliest.
I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years. But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.
So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer.
January 6, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
Monday, January 5, 2015
"Any broad criminal justice reforms ... will fail without first fixing the indigent defense crisis."
The title of this post is one notable point stressed by David Carroll in this Marshall Project commentary titled "Gideon’s Despair: Four things the next attorney general needs to know about America’s indigent defense crisis." Here is how it is explained:
America’s deficient indigent defense services produce a myriad of seemingly disconnected problems throughout the greater criminal justice system. Why do convicted persons have difficulty re-entering society upon release from prison? They do so, in part, because their public advocates are prevented from continuing to fight on their behalf for better conditions of confinement, and treatment and reentry programs after they are incarcerated. Why is the United States one of the few countries in the world that still relies on bail? The answer is that many states and counties do not appoint counsel until after bail hearings (and often not until after arraignment or indictment). Without an impetus for change, the bail system continues unabated.
Point to almost any criminal justice issue — wrongful convictions, over-incarceration, non-violent offenders serving life sentences, etc. — and the root problem will be a lack of true advocacy on the part of people of insufficient means charged with or convicted of crime. Just as a doctor treating only the visible symptoms of an underlying ailment may fail the patient, the focus of any number of well-meaning advocacy groups to address the countless issues plaguing criminal justice without concurrently reforming indigent defense services will result in half-measures and unsustainable policies. Your own criminal justice goals therefore are dependent on you continuing, and indeed redoubling, Mr. Holder’s past efforts.
Extraordinary review of messiness of Prez Obama's clemency push
Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities. The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:
President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.
In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward. But when Obama announced his annual commutations last month, only eight were given. That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.
The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:
With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.
“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”
“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....
[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....
Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.
“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said. “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...
One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations. “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project. “You have that dynamic in play, and I’m not sure that’s a good thing.”
The Clemency Project groups insist their involvement hasn’t silenced them.
Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.
Previewing (and predicting) federal sentencing prospects for former Virginia Gov McDonnell
The Washington Post has this lengthy article, headlined "What to expect at former Virginia governor Robert McDonnell’s sentencing," providing an effective preview of a high-profile white-collar sentencing taking place in federal court tomorrow. Here are highlights:
As a federal judge on Tuesday sets the punishment for former Virginia governor Robert F. McDonnell, he will consider legal issues as well as sweeping personal questions. U.S. District Judge James R. Spencer will look first to guidelines that call for McDonnell to receive as much as 12 years and seven months for trading the influence of his office to a smooth-talking businessman in exchange for sweetheart loans, lavish vacations and high-end merchandise.
But the judge is not bound by those recommendations. And his ultimate decision rests, in part, on intangible considerations: How serious was McDonnell’s public corruption? What penalty might deter others in the former governor’s shoes? What weight should be given to the good the former governor has done?...
rosecutors want McDonnell to spend at least 10 years and a month in prison. The former governor’s attorneys believe a sentence of community service — and no time behind bars — would be sufficient.
Both sides will make their best pitches to the judge in person beginning at 10 a.m. McDonnell may offer a personal plea, as may some of his supporters. Spencer has been given more than 440 letters that friends, family members and others wrote on the governor’s behalf, urging leniency and extolling the virtues of the onetime Republican rising star. Spencer also has reviewed filings from prosecutors, who have accused McDonnell of feeling no remorse and still seeking to blame others....
The starting point for determining the former governor’s punishment is this: The U.S. probation office — the federal agency tasked with calculating a range of appropriate penalties according to the federal sentencing guidelines — has recommended that McDonnell face between 10 years and a month to 12 years and seven months in prison. There is no parole in the federal system, and if McDonnell were to be incarcerated, he would be able to reduce his time behind bars with good behavior by only 54 days a year, at most.
Spencer is not bound by the probation office’s recommendation — it is merely a technical calculation of how the office believes federal sentencing guidelines should be applied in the case — but experts say he typically heeds its advice....
After Spencer determines the guideline range, he will weigh entirely different factors as he fashions what he considers an appropriate punishment. Among those that prosecutors and defense attorneys highlighted in McDonnell’s case: the nature and circumstances of his offenses, McDonnell’s personal history and characteristics, and the need to deter others from ending up in similar straits....
A former prosecutor and Judge Advocate General’s Corps officer, Spencer was appointed to the court by President Ronald Reagan in 1986. Known as a no-nonsense and efficient jurist, he took senior status on the bench last year, meaning he is now semi-retired. Jacob Frenkel, a former federal prosecutor who now does white collar criminal defense work, said Spencer probably will not impose a decade-long sentence, but defense attorneys’ bid for only probation is something of a “Hail Mary.”
I share the view that it is unlikely McDonnell will get either probation as he wishes or the 10 years in prison sought by the feds. As a betting man, I would put the over-under line at around three years. The nature of the crime and the defendant leads me to think the sentencing judges will be likely to impose a substantial prion term, but still something less (perhaps much less) than half a decade.
Prior related posts:
- Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
- Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation
- Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate
UPDATE: I just discovered that Randall Eliason at his Sidebars Legal Blog has this lengthy post about the McDonnell sentencing which provides much more detailed review of the interesting guideline calculation issues that are in dispute in the case.
Former District Judge Paul Cassell at center of two big new victim-rights stories
Long-time readers of this blog are surely familiar with the name Paul Cassell, perhaps primarily for his notable sentencing rulings back when he was a federal district judge concerning mandatory minimums and the impact of Blakely on the federal sentencing guidelines. Long-time criminal justice academics are familiar with his long-ago scholarly work on Miranda and related police-practices jurisprudence and modern victim-rights advocates know Paul as one of the leading modern (court-focused) advocates for the interests of crime victims.
With all that background (and the disclaimer that I have worked with Paul on various issues over the last decade and greatly respect his talents, energies and perspectives), I am now fascinating to see Paul Cassell's name at the forefront of two big new victim-rights stories. Here are links and the start of articles about these stories:
From the Washington Times here, "Loretta Lynch questioned over secret deal depriving fraud victims of $40M":
More than a year before President Obama nominated federal prosecutor Loretta Lynch to be attorney general, a former federal judge quietly called on Congress to investigate her U.S. attorney’s office for trampling on victims’ rights.
Paul Cassell, a law professor at the University of Utah, said Ms. Lynch’s office, the U.S. Attorney for the Eastern District of New York, never told victims in a major stock fraud case that a culprit had been sentenced — denying them a chance to seek restitution of some $40 million in losses. Mr. Cassell, in written remarks to a House Judiciary Committee panel in 2013, said if prosecutors were using secretive sentencing procedures to reward criminals for cooperating with them, it could violate the Crime Victims Restitution Act.
From the Salt Lake Tribune here, "Utah law professor claims British prince, well-known attorney had sex with teen ‘sex slave’":
University of Utah law professor Paul Cassell has come under fire for filing a motion in a victims’ right suit that claims a client was forced as a girl to be a "sex slave" who allegedly was made available to a well-known attorney and a member of the British royal family.
The motion filed Friday in a federal court in Florida alleges that a woman identified as Jane Doe #3 was sexually exploited beginning at age 15 by billionaire financier Jeffrey Epstein, who also loaned her for sex to politically connected and powerful people — including Harvard Law School professor emeritus Alan Dershowitz and Prince Andrew, a son of Queen Elizabeth II.
Both men have denied the allegations, and Dershowitz is threatening to initiate disbarment proceedings against Cassell and Bradley Edwards, a Florida attorney who also represents Jane Doe #3, according to The Wall Street Journal.
For lawyers and politicians, the story about criticisms of the Attorney-General-nominee is much more important and consequential. But the teen sex slave story is sure to get a whole lot more attention — and that story could, I think, end up making it difficult for Paul Cassell to be called to testify or otherwise be a visible voice in AG-nominee Lynch's upcoming confirmation hearings.
"Is Obama Finally Ready To Dial Back The War On Drugs?"
The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:
Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term. Safely reelected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective. As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years. Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:
Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting statelicensed growers and retailers. Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...
Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.
Sentencing Reform. Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums. Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....
Clemency. After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions. Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations. Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....
A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division. A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration. The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.
If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence. He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress. And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....
If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization. Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.
This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.
On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.
On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.
January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack (0)
Gearing up (finally) for start of capital trial of Boston Marathon bomber
Nearly two years after the vile (alleged?) crimes and challenging capture of Dzhokhar Tsarnaev, a very high-profile federal capital trial gets started today. This lengthy Boston Globe story, headlined "Marathon bombing trial to start today with jury selection: Long 1st phase for Marathon bombing trial; testimony may begin next month," provides a helpful preview. Here are excerpts:
Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.
The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer....
For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.
The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.... The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.
The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.
Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.
Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.
Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.
But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.
Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.
The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.
The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements. In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.
Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
Sunday, January 4, 2015
Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs
This weekend brought two similar stories from two heartland states struggling with similar persistent prison problems. Here are links to the stories with their headlines and highlights:
From Indiana here, "Despite code changes, state's prisons will grow":
Amid other demands the Legislature will be juggling starting this month is a request from the Indiana Department of Correction for money to build and operate new prison cells. Without those cell units, department officials told legislators recently, the state will run out of beds for male inmates in about two years....
One reason is that the criminal code revisions, in addition to sending more prisoners back to the county, tightened the credit-for-time-served formula for other types of prisoners, keeping them in state prisons longer. It's not yet clear exactly how much more pressure that will put on the prison system, but DOC officials believe they would have had to increase capacity soon anyway. Indiana's prison population numbered 6,281 in 1980. At the end of 2013, it was 29,377. That's more than 4½ times as many prisoners.
From Ohio here, "Emergency early release of prisoners is considered":
As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners.
In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.” The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds....
As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.
The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.
Mohr’s budget letter said the state is at a “significant decision point for criminal justice policy. Do we invest in people or in bricks and mortar? To build and operate one prison for two decades would cost Ohioans one billion dollars.”
New projections have the population hitting 50,794 by July 1, and rising to 52,844 by 2023. Ohio’s all-time high was 51,273 on Nov. 10, 2008. The prison population is increasing despite an overall drop in the crime rate and the fact that Franklin and the other five largest counties are sending fewer people to state prisons. The other 82 counties are making up for it....
State lawmakers have in recent years passed a host of laws adding offenses or increasing prison time for existing ones. Reform efforts to rein in the growth have helped, but the slow creep in prison population continues.
As outlined in law, Mohr would submit a declaration of an overcrowding emergency to the Ohio Correctional Institution Inspection Committee, a legislative watchdog agency, which would forward a recommendation to Gov. John Kasich. The governor could then declare an official emergency, clearing the way for early release of qualifying nonviolent offenders. That would exclude inmates serving sentences for murder, voluntary manslaughter, felonious assault, kidnapping, rape, aggravated arson and aggravated robbery.
"Switzerland has too many criminals and too few prisons"
The title of this post is from the first sentence of this recent AP article headlined "Switzerland mulls plan to export prisoners." Here is more about a notable European nation having a problem all to common in the US:
Now the Justice Ministry is reportedly considering a proposal to export convicts to neighboring France and Germany. Swiss prisons chief Thomas Freytag told public broadcaster SRF in a program aired late Friday that the country's correctional facilities are at more than 100 percent capacity.
Prisons in the French-speaking cantons (states) of western Switzerland are said to be particularly overcrowded. It's unclear when the Justice Ministry would decide on the plan, and whether France or Germany would be prepared to let Swiss inmates do their time there.
Left out of this brief story is the basic fact that Switzerland, at recent count, has less than 7,000 prisoners in the whole country and an incarceration rate that is only about 1/8th of the incarceration rate in the United States. For comparison, consider that the US state of Virginia has a state-wide population that is a little lower than Switzerland's, but it has more than 30,000 prisoners (and that count excludes a few thousand federal prisoners coming from Virginia).
Saturday, January 3, 2015
More great news about declining homicide rates as we close book on 2014
As reported in this Washington Post piece, headlined "In major cities, murder rates drop precipitously," the end of 2014 has apparently brought a continuation of wonderful news about modern homicide trends. Here are the basics:
In 1990, at the height of a decade-long crime wave that swept the nation, 2,245 people were murdered in New York City. In 2014, police investigated just 328 homicides in the five boroughs — a precipitous drop of 85 percent that’s being duplicated in major cities across the country. Preliminary figures suggest 2014 will continue a decade-long trend of falling crime rates, especially in major cities once plagued by violent crime.
Criminologists say the decrease is linked to several factors, some of which are the product of smart policing, others completely out of authorities’ control. But they also say the lack of a consensus on what’s gone right has them convinced that crime rates could spike once again. “I don’t think anyone has a perfect handle on why violence has declined,” said Harold Pollack, the co-director of the University of Chicago Crime Lab. “So everyone is a bit nervous that things could turn around.”
But the numbers are encouraging: Chicago recorded an all-time high of 504 killings in 2012, but just two years later homicides were down to 392, and the overall crime rate has declined to its lowest rate since 1972. Charlotte, N.C., recorded 42 killings last year, the lowest number since Mecklenburg County began keeping records in 1977.
Philadelphia’s murder rate has declined from 322 in 2012 to 245 this year. Just 19 slayings were recorded in San Jose, the nation’s 11th-largest city, down from 24 the year before. Even crime-plagued Detroit, which has one of the highest murder rates in the country, is improving: The 304 homicides recorded this year are down from 333 in 2013, the lowest rate since 2010 and the second-lowest number since 1967....
Mid-year statistics in Dallas showed the city on pace to record just half the murders of its peak in 2004. Camden, N.J., has seen the number drop by more than 50 percent since 2012. Murders in Columbus, Ohio, hit a six-year low....
[T]he trend lines are clear: The number of violent crimes has declined since 2006, according to the FBI’s Uniform Crime Reporting Program. The number of violent crimes committed per 100,000 people has been dropping even longer, from a high of 758 in 1991 to 367.9 in 2013. The rate hasn’t topped 500 per 100,000 people since 2001....
Not every major city is basking in the glow of lower crime rates. A rash of shootings between Dec. 23 and the end of the year brought the number of murders in Washington, D.C., to 105 in 2014, the second consecutive year of triple-digit murders, after the nation’s capital hit a half-century low in 2012.
The number of homicides in Los Angeles reached 254 last year, up four from 2013 and the first increase in 12 years.... Indianapolis, Austin, Pittsburgh, El Paso and Memphis all saw rates rise.
I have removed from this article a brief discussion of explanations that some folks give for these encouraging homicide numbers, in part because none of the standard (or not-so-standard) accounts for the factors impacting violent crime rates seem to be especially effective in explaining recent trends (save, maybe, the lead-crime-link data). For example, these data would seem to undercut some empirical claims that executions are critical for deterring murders given that homicide rates keep falling in states and regions that have recently abolished the death penalty de jure or de facto. Also, all this good 2014 homicide news could be a joyful by-product of the especially cold winters and/or not-so-hot summer experienced in many locales in 2014.
Whatever help causally account for all this good news, I hope we can and will (by design or by accident) continue doing whatever seem to be working. But I fear there are too many diverse and intersecting variables in play to have too much confidence in any specific public policies accounting for all the modern criminal justice good data news.
Some recent and older related posts:
- Huzzah, Huzzah... all crime goes down again in 2013 according to new FBI data
- Notable new AG Holder comments on reducing crime rates and incarceration levels
- After numerous local, state and federal reforms, crime hits new record lows in biggest US city
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?
- "Research on [lead]’s effects on the brain bolsters the hypothesis that childhood exposure is linked to criminal acts"
"How did a law to regulate heroin traffic turn into the costly, futile War on Drugs?"
The title of this post is the subtitle of this lengthy Politico magazine feature carrying the headline "A Hundred Years’ Failure." These titles highlight the basic themes of an article that reviews lots of interesting parts of the modern drug war's back-story, giving special emphasis to opiates and heroin along the way. Here are a few excerpts from a piece that merits a read in full:
Twenty-five years ago, the stated goal of the United States’ anti-narcotic efforts according to the Department of Justice was to “disrupt, destroy and dismantle drug trafficking enterprises.” That same year, the U.S. government pumped almost $8 billion into anti-drug efforts, including $600 million in prison construction alone. It was just a typical fiscal year during the height of the drug war. But two and a half decades later, despite this dizzying spending, we don’t need a drug czar to tell us—even though one of them has—the war on drugs, by its own measures, has been a century-long failure.
A hundred years ago this month, the U.S. government started this fight to rid us of the scourge of opiates. Today, not only have we failed to control drug demand, an entirely new breed of opiate epidemic has flourished in the face of the most draconian drug laws in the world. Aided by aggressive Big Pharma marketing and enthusiastic “pain specialists,” opiate abuse has simply taken on a new shape, moving from urban enclaves and overrunning pockets of New England and the South, from rural Vermont to the suburbs of Dallas, that have little history of widespread drug abuse. Heroin today is cheaper and purer than it was 50 years ago. That’s to say nothing of the 700 percent increase in incarceration of American citizens in the past four decades, the distribution of nearly $450 million worth of military equipment that is used by local and state law enforcement agencies (that “militarization of the police” you’ve been reading so much about lately), and the creation of a wasteful, labyrinthine bureaucracy dedicated to what has proven a perhaps impossible goal: The eradication of drugs....At the beginning of the 20th century, everyone’s medicine cabinet contained opium in some form. Patent medicines mixed alcohol and opium, and women used them for menstrual cramps, coughs and other minor symptoms, as well as for infants’ teething pains. Aging Civil War veterans self-injected morphine to soothe old wounds, and physicians dosed patients liberally with opium pills and morphine. Opium smokers, usually Chinese, but also habitués of the urban underworld and the occasional slumming college student, were the most common recreational users....
During the Progressive Era, a culture war was raging over sexuality, alcohol and modern life—as seen in efforts to censure pornography and eliminate “red light” districts—and prohibition offered the best hope of legislating moral certainty. While alcohol prohibition had the largest domestic constituency, drug prohibition fit with foreign policy interests. Years of lobbying by religious groups in both the United States and Britain, who were appalled at opium smoking in China and places to which the Chinese emigrated, culminated in the 1912 Hague Convention, where a dozen countries agreed to regulate the international narcotics traffic and signatories promised to limit opiate use in their own countries....
After a century of aggressive policing, mandatory minimums and enforcement that disproportionately targeted the most marginalized of American citizens, the failure of the war on drugs is ultimately a cautionary tale about pursuing an agenda at any cost—financial or human. From the founding of a vast bureaucratic infrastructure to support the new war, to the hundreds of millions of dollars spent on military police equipment, to the $50 billion spent annually on incarceration, the story of fighting addiction in America has brought out its mirror image: An irrational dependence, despite all logic to the contrary, on a steady flow of government cash and brute enforcement.
We should have just said no.
Friday, January 2, 2015
"Policing Public Order Without the Criminal Law"
The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:
Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.
Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions. Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.
In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot. Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means. To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.
January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)
Victims often left behind as states get tough on sex trafficking
This new AP article, headlined "Funding sometimes lags for sex-trafficking victims," highlights that legislators are often much better at slamming criminals than at supporting crime victims. Here are excerpts:
As awareness of America's sex-trafficking industry increases, state after state has enacted new laws to combat it. But while a few have backed those get-tough laws with significant funding to support trafficking victims, many have not.
In Michigan, for example, a cluster of legislators beamed with pride as Gov. Rick Snyder recently signed a package of 21 anti-trafficking bills. For a state ranked by advocacy groups as woefully behind in addressing the problem, the package was touted as a huge step forward, making Michigan, in Snyder's words, "one of the leading states in fighting this tragic crime." Yet the bills contained virtually no new funding, even though a high-powered state commission had reported a serious lack of support services and specialized housing for victims.
"For all the hoopla, it's blatantly not true that we're now at the forefront," said professor Bridgette Carr, a member of the commission and director of the Human Trafficking Clinic at the University of Michigan Law School. "For many of these victims, there's often no place to go."...
Without such services, advocates say, many victims are less useful as witnesses against their traffickers and more vulnerable to being forced or lured back to the sordid underworld that exploited them. "We are seeing some states stepping up, but the majority don't have anything specific in their budgets," said Britanny Vanderhoof, policy counsel for the Polaris Project. "There's an idea that once someone is rescued, they're fine," Vanderhoof said. "There's a disconnect with the level of trauma the victims have suffered and the incredible need for services at every level."
Arizona was among the latest states to board the bandwagon, enacting a bill in April that toughens sentences for traffickers of children and stipulates that being a trafficking victim is a defense in prostitution cases. As in Michigan, however, Arizona's bill did not include funding for victim services....
In Oklahoma, several experts met with a legislative panel in September to discuss the growth of sex trafficking, including a boom in the child sex trade linked to the convergence of major trucking routes near Oklahoma City. The legislators "were very receptive, and very shocked," said Kirsten Havig, a professor of social work at the University of Oklahoma-Tulsa who was among the speakers.
Yet Havig said the legislators, who have voted to punish traffickers more severely, balked at suggestions that the state spend more on victim services. "The second I start talking about resource allocation, it's, 'We can't do that,'" she said. For now, Havig said, Oklahoma lacks a residential facility suited to care for young sex-trafficking victims and has sent some youths to a facility in Houston. She hopes more state funding might come eventually if advocates can document how many victims need help, "but it's going to be a long haul."...
The Michigan commission's report noted that some states have appropriated significant funds for victim services. It cited a $2.8 million allocation in Minnesota, which is widely considered the national leader in the field.... Florida is another that state that has stepped up with significant funding for victim services — $3 million in the 2014-15 budget.
Yet Florida and Minnesota, with their seven-figure allocations, are exceptions; many states have invested little or nothing from their general funds for victim services. Several states have created funds to be financed with fines and forfeitures from traffickers, but advocacy groups say this method can be an unreliable.
Thursday, January 1, 2015
Chief Justice promises fully electronic SCOTUS by 2016 in his 2014 year-end report
As reported here by Lyle Denniston at SCOTUSbog, the US Supreme Court "is moving toward a full and free-access system for all documents filed in cases before the Justices — a system expected to be working 'as soon as 2016,' Chief Justice John G. Roberts, Jr., revealed in his annual year-end report on the federal judiciary." Here is a bit more about this exciting news:
The Court already receives some of its filings electronically, but the present arrangements do not include “all filings at the Court,” in the language the Chief Justice used to describe what will be available by 2016. That, he said, will include “petitions and responses to petitions, merits briefs, and all other types of motions and applications.” Public access to all of these materials will be available on the Court’s website without cost, he stressed.
The Chief Justice’s annual report was dominated by a theme of technological advances and their impact on the operation of the courts. He acknowledged that, because of special concerns about security and other operating limitations for the courts, the judiciary has not been moving as rapidly as some other sectors of society in modernizing its information systems. “The courts will often choose to be late to the harvest of American ingenuity,” he commented.
When the new system is in place and operating, according to Roberts, filings will still be made in paper form, but there will be a requirement for electronic versions when filed by any party that is represented by an attorney. Those, like prison inmates, who are too poor to afford lawyers and filing fees and thus are allowed to file papers making their own pleas without cost, will not be required to make electronic submissions. The Court staff will scan those so-called “pauper” filings and upload them to the Court’s system so that those, too, will be available for public access....
The year-end report also discussed the progress of the lower federal courts in adopting and improving the electronic case-filing system that has been in place since 2001. More than one billion documents can now be retrieved from that system, the Chief Justice noted. A “next generation” improvement in that system is now being developed within the judiciary, he added.
The full year-end report from the Chief Justice of the United States can be accessed at this link. It starts with this amusing paragraph:
On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”
Kudos to the Supreme Court for being committed to having all its materials on-line for free access to all and to the Chief Justice for effectively explaining the work being done to make this commitment a reality.
Wednesday, December 31, 2014
Some (incomplete) year-in-review highlights from Marijuana Law, Policy & Reform
It seems fair to call 2014 the most interesting and dynamic year in modern history for reform and debate over marijuana laws and policies. It would be impossible to completely summarize the "year in pot" in one post, but linking here to some seasonal highlights from Marijuana Law, Policy & Reform perhaps provides at least a flavor of what has transpired on the cannabis front:
- Can President Obama single-handedly legalize marijuana?
- More politicians backing marijuana reform
- "Super Bowl Attracts a Marijuana Message"
- Could marijuana reforms end up making our roadways much safer?
- Federal government issues new guidance to financial industry on how it should deal with the marijuana industry
- Banks suggest recent federal banking guidance changes nothing (and they’re probably right)
- Attention 2016 Prez candidates: new poll says 87% in Ohio support use of medical marijuana
- Which poses the bigger threat: Big Marijuana or Little Marijuana?
- New Jersey State Municipal Prosecutors Association endorses marijuana legalization
- Holder is "cautiously optimistic" about legalization in Colorado and Washington
- How might (rare?) tragedies linked to legal marijuana use impact reform developments?
- Justice Stevens says marijuana should be legal
- "Legalizing marijuana has been good for Colorado, voters in the state say 52 - 38 percent"
- Minnesota about to become 22nd state to legalize medical marijuana
- "Why Republicans are slowly embracing marijuana"
- New York pols work out deal to legalize only smoke-free medical marijuana
- Bill Clinton on medical marijuana: "I think we should leave it to the states"
- Former Florida Gov Jeb Bush conflicted about states' rights and federal pot prohibition
- "White House Says Marijuana Policy Is States' Rights Issue"
- Marijuana legalization campaigns for 2016 in Arizona and California start heating up
- New York Times now advocating: "Repeal Prohibition, Again"
- "Leading Anti-Marijuana Academics Are Paid by Painkiller Drug Companies"
- "Is Hillary Clinton ready for marijuana's 2016 push?"
- Former NM Gov and GOP Prez candidate Gary Johnson urges marijuana research to respond to Ebola
- Dynamic Colorado debate over suggestion of near complete ban on marijuana edibles
- Oregon voters create a third state to fully legalize recreational marijuana
- Analyzing how Alaska made 2014 a clean sweep for marijuana legalization initiatives
- Highlighting that "fight against legal marijuana is about big money, not public health"
- Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
And, last but not least, for some posts focused on reviewing the year that was, check out:
- Effective review of "The Year in Pot" via NBC News
- Reviewing a year of recreational marijuana sales in Colorado
Big 2014 data (and big 2015 plans?) from US Sentencing Commission
The United States Sentencing Commission has closed out 2014 with a release of lots of notable new sentencing data and notice of an notable meeting to kick off 2015. Here are the data basics/links and the meeting notice via the USSC website:
Final Crack Retroactivity Data Report: This report is the final data report concerning motions for retroactive application of Amendment 750, incorporating the provisions of the Fair Sentencing Act of 2010 into the guidelines.
Notice of Public Meeting: January 9, 2015: The Commission will hold a public meeting to vote on publishing proposed guideline amendments. A presentation will also be given on economic crime.
There are lots of notable stories to be found in these data (and to be anticipated with the USSC's noticed meeting). But most notable, I think, is the quarterly report showing that for all of Fiscal Year 2014 only 46.3% of sentences were imposed within the calculared guideline range and in the final quarter of FY2014 only 43.6% of sentences were within-guideline sentences. in other words, throughout 2014, a non-guideline sentence became more the norm in federal sentencing than a within-guideline sentence.
Critically, these data are surely skewed significantly by the decision by the US Sentencing Commission in January 2014 to lower drug guideline sentences across the board by two levels (combined with the Justice Department's willingness to allow sentencing judges to give effect to the lowered guidelines before they took effect officially on November 1, 2014). Now that the lowered guidelines are officially in place, we might expect to see more within-guideline sentence imposed in FY 2015. But, if the US Sentencing Commission announces in its early 2015 another significant amendment to reduce certain guideline ranges, this pattern could repeat.
In other words, happy data new year from (and to) my favorite judicial branch agency.
Outgoing Maryland Gov commutes final four state death sentences to life
As reported in this CNN article, "Outgoing Maryland Gov. Martin O'Malley took the state's last four inmates off death row Wednesday, commuting their sentences to life in prison without parole in one of his final acts in office." Here is more:
The move comes as the Democrat considers a run for president — a long-shot bid that many Democrats only expect to gain steam if Hillary Clinton opts not to run.
O'Malley's office announced the move in a release Wednesday morning, noting that the state's legislature had abolished the death penalty with a law that took effect in May 2013 and that the state's courts and attorney general have questioned whether the state has legal authority to carry out death sentences that were already imposed.
"In the final analysis, there is one truth that stands between and before all of us," O'Malley said in a statement. "That truth is this — few of us would ever wish for our children or grandchildren to kill another human being or to take part in the killing of another human being. The legislature has expressed this truth by abolishing the death penalty in Maryland."
The four inmates whose sentences were commuted are Vernon Lee Evans Jr. and Anthony Grandison Sr., who were convicted of the 1983 contract killing of two witnesses scheduled to testify in a federal drug trial; Heath William Burch, convicted of killing an elderly neighbor couple in 1995; and Jody Lee Miles, convicted of robbing and shooting a theater manager in 1997.
O'Malley said in the statement that he'd met with the families of the victims of the four convicted killers whose sentences he commuted, and said they would suffer through "the additional torment of an un-ending legal process."
"In my judgment, leaving these death sentences in place does not serve the public good of the people of Maryland — present or future," O'Malley said.
Prior relates posts:
- Can and should out-going Maryland Gov commute death sentences to ensure LWOP after state's capital repeal?
"Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations"
The title of this post is the title of this notable new article discussing notable new capital jury deliberation research authored by Mona Lynch and Craig Haney and available via SSRN. Here is the abstract:
This article explores the role of emotion in the capital penalty-phase jury deliberations process. It is based on the qualitative analysis of data from ninety video-recorded four to seven person simulated jury deliberations that examined the influence of race on death sentencing outcomes. The analysis explores when and how emotions are expressed, integrated into the jury’s sentencing process, and deployed in penalty-phase decision making.
The findings offer critical new insights into the role that emotion plays in influencing these legal judgments by revealing how jurors strategically and explicitly employ emotion in the course of deliberation, both to support their own positions and neutralize or rebut the opposing positions of others. The findings also shed light on the various ways that white male capital jurors utilize a panoply of powerful emotion-based tactics to sway others to their position in a manner that often contributes to racially biased outcomes.