Sentencing Law and Policy

"What Explains Persistent Racial Disproportionality in Minnesota’s Prison and Jail Populations?"

The question in the headline of this post is the title of this important new article by Professor Richard Frase. Here is the abstract:

Racial disparity in prison and jail populations, measured by the ratio of black to white per capita incarceration rates, varies substantially from state to state.  To understand these variations, researchers must examine disparity at earlier stages of the criminal process and also racial differences in socioeconomic status that help explain disparity in cases entering the system. Researchers must adjust disparity ratios to correct for limitations in available data and in studies of prior incarceration rates.  Minnesota has one of the highest black/white incarceration ratios. Disparities at the earliest measurable stages of Minnesota’s criminal process — arrest and felony conviction — are as great as the disparity in total custody (prison plus jail) populations.  Disparities are substantially greater in prison sentences imposed and prison populations than at arrest and conviction.  The primary reason is the heavy weight sentencing guidelines give to offenders’ prior conviction records.  Highly disparate arrest rates appear to reflect unusually high rates of socioeconomic disparity between black and white residents.

Noting significant biases in pot policies and practices

CNN has this notable new commentary headlined "Pot acceptable?  Not for young and nonwhite," which is authored by Stephen Gutwillig of the Drug Policy Alliance. Here are extended excerpts from an important piece:

This year is a watershed year in pot politics.  The Obama administration recently announced it would defer to state medical marijuana laws and stop federal prosecutions of patients and providers who comply with them.  In California, the tanking economy inspired Gov. Arnold Schwarzenegger to call for debating marijuana taxation and regulation, a bill was introduced in Sacramento to do just that, and four separate ballot initiatives are circulating to allow voters the chance to decide the issue for themselves.

Schwarzenegger's position was echoed by New York Gov. David Paterson and by Arizona Attorney General Terry Goddard, who suggested legalizing pot could cripple Mexican and U.S. gangs.  The unprecedented momentum to question marijuana prohibition is being fueled by a widely remarked-upon phenomenon — the cultural mainstreaming of marijuana.

From Showtime's established hit "Weeds" to the "Is Pot Already Legal?" cover of Fortune magazine in September, marijuana is commanding attention and an odd kind of respect for its sheer popularity and massive revenues.  Marie Claire magazine and the "Today Show" profiled "stiletto stoners," stressed-out women professionals who unwind with a doobie instead of a cosmo.  And in a recent style feature, the Los Angeles Times gushed that "cannabis culture is coming out of the closet," citing its ubiquity across the spectrum of pop culture and high-end design....

Pot is indeed flourishing in the mainstream as never before, but the sometimes giddy discussion overlooks a sinister parallel phenomenon: More people are being arrested for pot crimes than ever; they are increasingly young and disproportionately nonwhite.

In 2008, the police arrested 847,864 people nationwide for marijuana violations, according to the 2008 FBI Uniform Crime Report.  Pot arrests represent fully half of all drug arrests reported in the United States.  The overwhelming majority — a whopping 89 percent — were charged with possession only.  Most striking, the marijuana arrest rate in the United States has nearly tripled since 1991.

More people are being arrested for pot crimes than ever; they are ... young and disproportionately nonwhite. Examples from both coasts illustrate this.  In California, according to the Center on Juvenile and Criminal Justice, crime arrest rates have generally plummeted statewide from 1990 to 2008 by an average of 40 percent.  Drug possession arrests for everything but marijuana collectively fell by nearly 30 percent.  But during that same 18-year period, arrests for marijuana possession in California skyrocketed 127 percent.  In 2008, more Californians were arrested for pot offenses than any year since decriminalization took effect 34 years ago.

Similarly, New York state decriminalized simple marijuana possession in the 1970s.  But under Mayors Rudolph Giuliani and Michael Bloomberg, New York City has become one of the marijuana arrest capitals of the world — 40,300 arrests last year. In the years between 1997 and 2008, the NYPD made 12 times as many pot possession arrests as in the previous 12 years, according to a study by the New York Civil Liberties Union.

How can the notion that marijuana is "here to stay" coexist with these rates of marijuana arrests?  Apparently because the people caught in the crossfire aren't considered part of the mainstream.  In California, African-Americans are three times as likely as whites to be arrested for a pot crime...  In New York City, blacks and Latinos — who represent about half the city's population — accounted for 86 percent of everyone charged with pot possession in 2008....

Widespread discussion of everyday marijuana consumption is helping turn the tide against decades of failed marijuana prohibition.  However, too much of that conversation is ignoring the people most impacted by our punitive policies.  We must end pot prohibition and stop the massive number of arrests and biased enforcement that are at its core.

Some recent related posts:

• "Attorney General Announces Formal Medical Marijuana Guidelines"
• California moving on various fronts toward possible legalization of marijuana
• "U.S. Support for Legalizing Marijuana Reaches New High"
•  A potent pitch for decriminalizing marijuana
• "Medical Marijuana Muddle"
• Republican governor signals openness to legalizing marijuana
• "Marijuana Nation: The New War Over Weed"
• More calls for an end to the drug war and legalization of marijuana
• New poll has majority saying alcohol is more dangerous than marijuana

"Why Care About Mass Incarceration?"

The title of this post is the title of this new book review available via SSRN by James Forman.  Here is the abstract:

The United States incarcerates more of its citizens than any other nation in the world.  Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result.  Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers.  His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest.  This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population.  Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

Senator Durbin responds to Washington Post editorial opposing crack/powder parity

The Washington Post has printed this letter from US Senator Dick Durbin, which responds to the Post's editorial (discussed here) that criticized Durbin's proposed legislation to eliminate the sentencing disparity between crack and powder cocaine.  Here are excerpts:

The editorial wrongly argued that crack is more addictive and associated with more violence than powder cocaine. It is that flawed logic that justified the original sentencing disparity.

Countless studies have shown that there's little difference in the physiological impact of crack and powder cocaine. The American Medical Association reports that "the physiological and psychoactive effects of cocaine are similar" regardless of whether the form is crack or powder.

Furthermore, the U.S. Sentencing Commission report you cited actually found that 10 percent of crack offenders were involved in violence -- not 25 percent, as the editorial asserted, using a different definition of "violence" -- while 6 percent of powder offenders were involved in violence. That 4-percentage-point difference hardly justifies a disparity in mandatory minimum sentences.

The editorial also failed to note that my bill would significantly increase penalties for violent and large-scale drug traffickers, refocusing limited federal resources on the worst offenders.

"Can Our Shameful Prisons Be Reformed?"

The title of this post is the headline of this new commentary by Professor David Cole in the newest issue of the New York Review of Books.  The review discusses three new works on American penal policies: Race, Incarceration, and American Values by Glenn Loury; Let's Get Free: A Hip-Hop Theory of Justice by Paul Butler; and Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony Thompson.  Here is a snippet from the piece:

Three recent books by scholars who happen to be black men eloquently attest to these broader effects of the racial disparities in our criminal justice system.  For Loury, "mass incarceration has now become a principal vehicle for the reproduction of racial hierarchy in our society."  For George Washington University law professor Paul Butler, author of Let's Get Free: A Hip-Hop Theory of Justice, "the two million Americans in prison represent the most urgent challenge to democratic values since the civil rights era."  And for New York University law professor Anthony Thompson, author of Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics, it is critical that we examine "the pervasive interplay of race, power, and politics that infuse and confuse our attitudes about crime."...

as citizens we all have a stake in the fairness and legitimacy of our criminal justice system for both moral and pragmatic reasons.  The character of our nation is determined in significant part by how we treat the criminally accused. It is no accident that the Bill of Rights concentrates primarily on protecting the rights of those suspected of crime.  These amendments were deemed necessary precisely because political majorities are likely to seek shortcuts on fairness when crime is alleged, even though fairness is fundamental to the integrity of the criminal justice system.

As a pragmatic matter, the legitimacy of the criminal justice system is essential because it encourages law-abiding behavior. If people believe in the basic legitimacy of a leader or regime or procedure, they are far more likely to abide by the rules.  If, on the other hand, a system is seen as corrupt, unfair, or unjust, those subjected to it will be less inclined to respect it.  A legal system that relegates the majority of our most disadvantaged populations to incarceration, and does next to nothing to help them avoid prison or to reintegrate into society upon release, invites disrespect — and crime. 

House hearing Thursday on "Racial Disparities in the Criminal Justice System"

As detailed in this official hearing page, the House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security will be holding a hearing on Thursday, October 29 to examine "Racial Disparities in the Criminal Justice System."   Here are the scheduled witnesses:

• Steve Cohen, U.S. House of Representatives
• James Reams, President-Elect National District Attorneys Association
• Barry Krisberg, President National Council on Crime and Delinquency
• Mark Mauer, Executive Director The Sentencing Project
• Wayne McKenzie, Director Program on Prosecution and Racial Justice

I am hopeful (but not optimistic) that the links to the witnesses' testimony will eventually work on this official hearing page.

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

New Senate bill introduced to eliminate crack/powder federal sentencing disparity

As detailed in this new Washington Post article, which is headlined "Senate Bill Would Eliminate Cocaine Sentencing Disparity," Senator Richard Durbin is championing a new bill to eliminate the crack/powder sentencing disparity in federal law. Here are some of the basics:

The Senate's second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence. Activists say that disparity disproportionately impacts African Americans.

"The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations," Majority Whip Richard J. Durbin (D-Ill.) said in a statement. "It's time for us to act."

Durbin's bill would also increase the volume of crack cocaine required to trigger a mandatory prison term, as well as stiffen penalties for large-scale drug traffickers and violent criminals.  The Fair Sentencing Act is co-sponsored by Democrats including Judiciary Committee Chairman Patrick J. Leahy (Vt.), Russell Feingold (Wis.), Benjamin L. Cardin (Md.) and Sheldon Whitehouse (R.I.)....

Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin's bill does, lowering the sentence for crack.  But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of federal inmates are imprisoned for drug offenses. The U.S. Sentencing Commission has estimated that wiping away the sentencing disparity could save more than $510 million over 15 years, lawmakers said....

A companion bill in the House has passed the House Judiciary Committee and awaits action in the House Energy and Commerce Committee.  The idea won support from President Obama and Vice President Biden on the campaign trail, and Attorney General Eric H. Holder Jr. has also been supportive, but the administration has yet to announce a formal position on the bills before Congress.

I am pleased to hear this news, but I will not start getting too excited about this bill unless and until some some Republican Senators get behind it or until at least the White House and the Attorney General start expressing support.  In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.

Should domestic violence offenders have to register like sex offenders?

The question in this post is prompted by this interesting story out of New York.  The piece is headlined, "NY Lawmaker Pushes For Domestic Violence Registry: Domestic Abuse Offenders Would Have To Sign Up Similar To What's Required Of Sex Offenders."  Here are some details:

A Long Island woman is recounting the terror she and her daughter endured at the hands of her ex-husband. This as efforts are underway to create an online registry of domestic violence offenders, just like sex offenders. The Suffolk County woman and her daughter, who have asked to remain unidentified, are in hiding from her ex-husband, who police say was previously arrested for domestic violence and weapons possession.

"My ex-husband he would go into rage. He put a knife to my throat, he spit on me, he choked me, many times in front of my daughter; he would lock us in the closet, also the psychological abuse," she told CBS 2. "Currently my ex-husband is online, on every single dating site. Women are looking at his profile. He indicates he is a physician. He indicates how much money he makes."

As easily as one finds an online date, there could be a way to find out if that prospective mate has a violent history. Suffolk County Legislator DuWayne Gregory (D-Amityville) wants to create an online registry of the county's domestic violence offenders. "They'll be outed, and the community and the world will know this is the thing they do behind closed doors," said Gregory.

Gregory compares his Suffolk County legislation to the sex offender registry. It would include an offender's name, address, and photograph, creating a shame-factor for abusers. "It's going to save lives and keep people out of danger. That"s why we are pushing it 100 percent," he said.

CBS 2 spoke with several coalitions against domestic violence who called the bill "well-intentioned," but concerned it could backfire. "The primary concern is about the victim's confidentiality," said Ruth Reynolds of the Suffolk Co. Victims Information Bureau and Family Violence Center....

Still, the victim we spoke with, for one, urges lawmakers to adopt the measure. "This is why I speak out, because there should be a registry to indicate their offenses," she said.

The full Legislature will not act on the bill before November because the sponsor, Legislator Gregory, wants to add a provision that would leave it up to a judge to decide how long each domestic violence predator would be named on the registry.

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements.  (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.) 

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct.  (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.)  I wonder if any public policy or law reform groups are working on model criminal registry legislation.  A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

Do women make better sentencing Judges?

The question in the title of this post is inspired by this recent piece at Slate, which is titled "Do Women Make Better Judges? Asked and answered — with data."  The essay is from a group of law professors (who explain their empirical work more fully in this long paper available via SSRN titled "Judging Women" ), and here is the essay's final assessment based on empirical measures of productivity, influence, and independence:

[O]ur basic point is this: The fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men.  In fact, the evidence suggests that they are at least as good as male judges, perhaps better.

Though it would be very hard to empirically measure how male and female judges "perform" at sentencing, I suspect some readers may have instincts and/or anecdotes to support or assail the notion that women are perhaps better sentencing judges than men. 

So, dear readers, please share your insights and reactions to the question in the title of this post.

Seeking First Amendment and feminist perspectives on an escort's sentence

This new federal sentencing story out of California, which is headlined "Stanford Law School grad turned call girl sentenced to home detention," has so many interesting and comment-worthy dimensions.  First, the basics:

A Stanford Law School graduate was sentenced Monday on a federal tax conviction related to running a high-priced call girl service, punishment that includes restrictions on her ability to keep advertising as an escort while she's on probation.

During a hearing in San Jose federal court, U.S. District Judge James Ware concluded he needed to impose those restrictions on Cristina Warthen after federal prosecutors disclosed she's continued to advertise herself on the Internet as a high-priced escort, even as she awaited sentencing on federal tax evasion charges related to her days as an upscale prostitute named "Brazil."

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts.  She got her law degree from Stanford in May 2001, but quickly began to run a steamy Web site with offers to jet off for liaisons with clients in cities around the country, including New York, Chicago and Washington, D.C. She eventually pleaded guilty to failing to pay taxes on more than $133,000 she earned as a prostitute in 2003.

Under a plea deal with the government, Warthen was sentenced Monday to one year of home detention with an electronic monitoring device and three years of probation.  She also has to pay the government a total of about $243,000, less than the original $313,000 set out in her original plea arrangement.

Federal prosecutors agreed to the lower amount when Warthen demonstrated she could not pay it after her recent divorce from David Warthen, the co-founder of the online search engine Ask Jeeves, now known as Ask.com.  Court papers show the once-wealthy Web entrepreneur's finances were decimated by last year's stock market collapse, and he could not provide more money to his now-ex-wife, who says she's unemployed.

But Ware was dismayed to learn from federal prosecutors and probation officials that Warthen has continued to advertise her escort services as she has awaited sentencing. Assistant U.S. Attorney David Callaway told the judge Warthen has posted ads on the Internet offering "companionship" for $2,000 a night. "We all know that's a wink and nod and what she really is advertising is high end prostitution," Callaway said in court.

Warthen, who has been temporarily living in Seattle with her mother, has placed an escort ad on the Web. The image of her face is blurred in photographs on the Web ad, which boasts of a graduate degree from an "Ivy League university." Brian Getz, Warthen's attorney, objected to the government's request, saying she is a "law abiding citizen" who has a free speech right to advertise escort services as long as she's not breaking prostitution laws.  But Ware, noting that her sentence is already "lenient," was unmoved.

Now, a few First Amendment and feminist musings.  Because I am not a First Amendment scholar, I am not even sure of the basic doctrines that surround government prohibitions on forms of advertising/speech that might a form of illegal solicitation.  But I wonder if this kind of prohibition on internet advertising of guns or viagra would have been imposed on a male defendant who pleaded guilty to evading taxes for prior illegal sales of guns or prescription drugs.

"Judge: Teen too pregnant for jail; She can give birth first, then go, judge says"

The title of this post is the headline of this interesting local article from Michigan. Here are the details:

A 19-year-old Pontiac woman was to be sentenced to prison Wednesday for her role in a crash that killed her pregnant friend. Instead, she will get a nine-week reprieve because she is now pregnant and due to deliver in five weeks. The sentencing judge said he did not want the child born behind bars.

Alexis D. Wilson stood before Oakland County Circuit Judge Edward Sosnick. Sosnick told her she would have to report for sentencing Nov. 25. Her baby is due Nov. 1.

Wilson, who is unemployed, faces 43 to 86 months in prison for the July 6, 2008, death of Tamia Williams, 17. Blood tests, taken at the scene but completed almost six months later, showed traces of marijuana in Wilson.

She pleaded no contest earlier this year to driving while intoxicated causing death, manslaughter with a motor vehicle and operating a motor vehicle while intoxicated, causing a miscarriage.

Her attorney, Cyril Hall, said there was no evidence marijuana was a cause. "There is no evidence whatsoever that this accident was the result of intoxication," he said. "It's like drinking 30 days ago, then you get stopped today and arrested for drunk driving."

However, under Michigan law, drivers who have marijuana in their bloodstream at the time of an accident are guilty of a crime.

Data bleg on gender, crime, victims and punishment

For various reasons, I have been thinking a lot lately about the gender realities in crime and punishment, and I am starting a new scholarly project that call for citing some historical and modern data relating to gender, crime, victims and punishment.  Thus, I thought it useful and wise to make this data bleg:

Can folks cite/link for me — either in the comments below or via e-mail — the best-known and/or most accurate and reliable historical and modern data breaking down with particularity gender dynamics surrounding criminal offending and crime victims? 

I would also be interesting in gendered data concerning sentencing and punishment for various crimes in various eras.  Thanks!

Confronting the gendered realities of extreme sex crimes

Most serious observers of the criminal justice system surely recognize how dramatically "gendered" much criminal offending tends to be — i.e., the vast majority of serious criminal offenders are men, and many female offenders get involved in crimes because of, or through, their relationship to men.  Nevertheless, these gendered realities are not often broadly discussed or debated.  But, as this new Sacremento Bee article highlights, the high-profile Garrido case is prompting new discussions of these matters.  The piece is headlined "Women's role in sex crimes resurfaces as issue," and here is how it starts:

Charlene Williams of Sacramento lured six teenage girls and four young adults to their deaths as her husband demanded the perfect "sex slave."

Michelle Lyn Michaud, also of Sacramento, customized curling irons to help her boyfriend torture and murder a 22-year-old student abducted from a Pleasanton street.

In Utah, Wanda Eileen Barzee was accused of helping her husband kidnap 14-year old Elizabeth Smart at knifepoint from her Salt Lake City bedroom so that he could secure another "wife."

Now along comes Nancy Garrido of the Bay Area. Like the others, Garrido is accused of teaming up with a male partner — in Garrido's case, her husband of nearly three decades — and allegedly committing unthinkable crimes against other women and children.

"Race, Death and Disproportionality"

The title of this post is the title of this new piece I noticed on SSRN from Scott Howe.  Here is the abstract:

Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment.  In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment.  Yet, this kind of evidence has influenced many of the Justices’ views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment.  My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.'  Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.

My project proceeds in five parts.  Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation — a mandate that only a person who deserves the death penalty should receive that sanction.  Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it.  Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process.  Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur.  Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves.  Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced.  In fact, Part V contends that, despite the Court’s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court — and will continue to influence it — to confine the use of the death penalty.

Will NC's new Racial Justice Act effectively kill the state's death penalty?

This interesting local article from North Carolina, which is headlined "New death penalty law concerns Pitt attorney," prompts the question of this post.  The piece provides one local prosecutor's perspective on the likely impact of North Carolina's new Racial Justice Act, and here are excerpts from the start and end of the article:

Pitt County's chief prosecutor said an adopted law is an attempt to stop death penalty prosecutions without doing away with the punishment. The Racial Justice Act, signed into law Aug. 11 by Gov. Beverly Perdue, seeks to prevent death sentences “sought or obtained on the basis of race.” It allows defendants to introduce statistical evidence that shows race was a significant factor in the decision to seek or impose a death sentence.

Pitt County District Attorney Clark Everett lobbied against the legislation earlier this year. The state already has sufficient safeguards in place to prevent or remedy racially motivated death penalty prosecutions, he said.

While proving racial bias is placed on the defendant, Everett said prosecutors will have to develop evidence to refute the claim. It will become a battle of statisticians, one claiming bias and another saying none exists. “This should be titled the Statisticians Relief Act of 2009 because it is going to make a lot of them a lot of money,” Everett said. “It's going to be a battle of statisticians, and it's going to cost the state millions.”

The decision to pursue a death penalty prosecution isn't made lightly, Everett said. Prosecutors must have evidence to support claims that aggravating circumstances were present when a murder occurred. These circumstances and evidence are unique to each case and can't be made to fit statistical models. “The goal should be the punishment fits the crime, not some statistical predictions,” Everett said. “Murders aren't committed following a statistical model.”

The Racial Justice Act is an attempt to end the death penalty without voting to end the punishment, Everett said.  “They are killing it with a thousand cuts,” Everett said.  The General Assembly should hold a simple yes or no vote on whether the death penalty should be abolished in the state, he said....

Everett said the Racial Justice Act won't prevent him from pursuing a death penalty case if the evidence supports seeking that punishment but it adds another layer of bureaucracy to the decision-making process.  “It makes it difficult to explain to survivors the process and what punishment they can expect in the near future,” he said. “It adds another layer of litigation and costs, and that's something I have to consider.  It doesn't appear at this time we have a workable death penalty in this state,” Everett said....

No executions have been carried out in North Carolina since August 2006 when the N.C. Medical Board barred doctors from being present for lethal injections.  The state sued the medical board and in May the state Supreme Court ruled in the state's favor.  However, executions won't resume until North Carolina's Council of State reviews the state's protocols for execution.  The council's review is currently facing a legal challenge.  

As this excerpt reveals, this article is rich with insight and irony.  First, it appears that lethal injection challenges more than this new Racial Justice Act has the North Carolina death penalty struggling to stay legally relevant.  Thus, whatever the NC Racial Justice Act might mean practically, the efficacy of lethal injection litigation blocking executions right now explains why the 167 persons on the state's death row seem unlikely to face their imposed punishment anytime soon.

Second, this local article highlights all the interesting practical dynamics that surround a capital Racial Justice Act.  As the prosecutor notes, the Act is not going to prevent him from seeking a death sentence in a specific case, though he is going to "have to consider" how the Act presents "another layer of litigation and costs."  This may be the real virtue (or vice?) of this sort of Act: local prosecutors will be thinking twice about racial issues concerning offenders and victims impacting decisions to pursue the punishment of death.

Finally, as is true for all capital punishment reforms, this new Racial Justice Act is likely to result in lots of (unpredictable?) litigation.  In the end, how state courts interpret and apply the new Act will determine if it has a major or minor impact on the operation of the death penalty in North Carolina.

Some recent related posts:

• Robust legislative debate over NC Racial Justice Act
• NC Racial Justice Act going to governor's desk
• NC Gov signs new racial justice act concerning capital prosecutions

NC Racial Justice Act going to governor's desk

This local story, headlined "Racial Justice Act passes, now goes to Perdue," provides the latest news on a notable death penalty bill that may be on the verge of becoming law in North Carolina:

The General Assembly has approved a landmark bill that will allow death-row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied. 

Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate's death sentence and convert it to a sentence of life in prison.  Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.

The bill is seen by its supporters as a long-overdue solution to a history of discrimination that they say permeates the criminal-justice system and the system of capital punishment.  Opponents, including prosecutors and victims' groups, say that the bill substitutes statistical data and historical trends for the particular facts of a case. It will, they say, set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.

The bill, which supporters named the N.C. Racial Justice Act, has been the subject of intense debate and legislative wrangling for months.  Last night, the N.C. Senate voted 25-18 to adopt a version of the bill that had been approved by the N.C. House last month.  In both chambers, Republicans opposed the bill, and most Democrats supported it.

The Senate's vote sends the bill to Perdue, a Democrat.  A spokesman for Perdue said that she will closely review the bill but is likely to sign it.  If she does, North Carolina will become just the second state — after Kentucky — to enact a law allowing challenges to the death penalty on the basis of statistical disparities from previous cases.

As I have noted in the past, it is not clear what (if any) impact Kentucky's law on this issue has impacted the operation of that state's capital punishment system.  Thus, I am hesitant to assert that the enactment of the N.C. Racial Justice Act will have a profound practical impact.  And this legislative development is still symbolically interesting and important even if it does not end up having a profound effect on death penalty practices in North Carolina.

Famed researchers write in support of NC Racial Justice Act

Thanks to this post at DPIC, I see that renowned researchers David Baldus and George Woodworth have penned an op-ed supporting North Carolina's proposed Racial Justice Act. Here is how the piece starts:

The various attacks on the proposed North Carolina Racial Justice Act, a bill that would allow capital defendants to present claims of racial bias to the court, are, at best, based on a lack of understanding, and at worst, emotional and misleading arguments used in an effort to obscure the issues.

Some critics claim that the use of statistics to show racial bias in death penalty cases is inappropriate, but these critics offer no alternatives. Statistical analysis provides the only way to understand the role of racial bias in a system. Rigorous statistical analyses, grounded in actual information about the crimes and the charging and sentencing decisions relating to them, facilitate a nuanced understanding of the real role of race. The only alternative is willful blindness.

Closing the door to this kind of analysis closes the door to an informed debate. It is for this reason that statistical analyses are used routinely and properly in housing and employment discrimination cases.

Some critics claim that there is no evidence of racial discrimination in the death penalty system. The enormity of this canard is breathtaking. Supreme Court Justice Antonin Scalia has said that racial discrimination in capital punishment is "real, acknowledged in the decisions" of the Supreme Court, and "ineradicable."

Recommended reading on race and criminal justice after the "beer summit"

In the wake of the so-called "beer summit"  — which probably has gotten so much attention because everyone is tired of thinking hard about hard issues like health care reform — here is a piece from SSRN that everyone should check out.  The piece by Ian Haney-Lopez is titled "Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama," and here is the abstract:

What does the 2008 election of Barack Obama to the United States presidency portend for race in America?  This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society.  The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement.  If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime.

The Essay then reconsiders mass imprisonment from the perspective of “racial stratification,” a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races.  A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on “post-racial racism.”

Potent op-ed notes what is missing from the Gates-gate debate

Writing in today's New York Times, Glenn Loury has this potent op-ed putting the brouhaha surrounding the Gates incident in a broader context.  Here are excerpts:

[T]his much-publicized incident is emblematic of precisely nothing at all. Rather, the Gates arrest is a made-for-cable-TV tempest in a teapot. It is the rough equivalent of a black man being thrown out of a restaurant after having berated an indifferent maître d’ for showing him to a table by the kitchen door, all the while declaring what everybody is supposed to know: this is what happens to a black man in America.

Certainly, the contretemps shed no relevant light on the plight of the millions of black men on society’s margins who bear the brunt of police scrutiny and government-sanctioned coercion. I find laughable, and sad, Professor Gates’s declaration that he now plans to make a documentary film about racial profiling. Is that as far as his scholarship on the intersection of race and policing in America extends? Where has this eminent scholar of African-American affairs been these last 30 years, during which a historically unprecedented, politically popular, extraordinarily punitive and hugely racially disparate mobilization of resources for the policing, imprisonment and post-release supervision of those caught up in the criminal justice system has unfolded?

Moreover, it is a shame that it takes an incident like this to induce a (black!) president to address these issues forthrightly. President Obama spoke to the N.A.A.C.P. this month, reaffirming the standard racial narrative while lecturing the black community on the need for better family values. But he barely uttered a word about the ways in which public policies — policies over which he might exert no small influence — have resulted in the hyper-incarceration of poor black men.

UPDATE:  Here's more of Loury's potent observations:

It is depressing in the extreme that the president, when it came time for him to expend political capital on the issue of race and the police, did so on behalf of his “friend” rather than stressing policy reforms that might keep the poorly educated, infrequently employed, troubled but still human young black men in America out of prison. This is to say that, if Mr. Obama were going to lose some working-class white votes to the charge of “elitism,” I’d much rather it have been on countering the proliferation of “three strikes” laws, or ratcheting down the federal penalties for low-level drug trafficking, or inveighing against the racial disproportion in the administration of the death penalty....

I hope that something of lasting value might come from the uproar surrounding the Gates arrest. But my firm conviction is that change will not come about from the moral posturing of politicians or from more intense “sensitivity training” for police officers. Nor will it come from the president having a beer with Professor Gates and Sergeant Crowley, as Mr. Obama suggested in his follow-up meeting with the press on Friday.

Rather, along with Senator James Webb, Democrat of Virginia, I believe we should be pursuing far-reaching reforms in our criminal justice system. We should invest more in helping the troubled people — our fellow citizens — caught in the law enforcement web to find a constructive role in society, and less in punishing them for punishment’s sake. We need to change the ways in which we deal with juvenile offenders, so that a foolish act in childhood doesn’t put them on the road to lifetimes in prison. We should seriously consider that many of our sentences are too long — “three strikes” laws may be good politics, but they are an irrational abomination as policy. We should definitely consider decriminalizing most drug use. We need to reinvent parole.

And, most important, we should weigh more heavily the negative and self-defeating effects that our policy of mass incarceration is having on the communities where large numbers of young black and Hispanic men live.