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October 22, 2009

"Were hundreds of criminals given the wrong sentences because lawyers messed up a basic work sheet?"

The title of this post is the sub-heading of this remarkable new Slate piece by Ray Fisman to which a helpful reader pointed me.  Here is the start of today's must-read piece:

In early 2005, Emily Owens was halfway through her Ph.D. thesis in economics at the University of Maryland.  Her topic: the deterrence effect of long prison sentences.  She had just received data from the Maryland State Commission on Criminal Sentencing Policy on tens of thousands of cases that had appeared in the state's courts over the previous years, cases she hoped would help her close out her dissertation.  But as she started working through the numbers, she came across thousands of inconsistencies and errors in the sentencing recommendations provided to judges by the commission.  The errors ultimately translated into extra months and years of prison time for unlucky convicts and light sentences for lucky ones.  What might have been a run of the mill economic analysis of crime and punishment turned into a shocking account of human error.

The particulars of this story are best understood by reading the full Slate piece.  But this concluding paragraph to the piece will likely resonate for lots of folks outside of the Old Line State:

One lesson from the case of Maryland's work sheet errors is that multiple levels of evaluation helped to undo some of the damage (though you might not see it that way if you spent an extra couple of months in the slammer because your attorney can't do arithmetic).  It's a crucial insight given that states around the country have limited or abolished the discretion of parole boards as a result of Truth in Sentencing laws.  More generally, crime and punishment in America remains rife with prejudice and inconsistencies.  The poor and uneducated are convicted at rates disproportionate to their crimes; jurists and judges alike are biased and sometimes outright irrational.  Keeping some checks and balances in place — like the moderating effects of parole boards — might help to keep the justice system a little more just.

October 22, 2009 at 02:46 PM | Permalink


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Unfortunately, this is profoundly unshocking to me. The first case I ever had (in a student clinic) involved a guy being held on supposed consecutive sentences, which he swore up and down were actually concurrent sentences. Nobody had been listening to him, but we (being dumb students who didn't know any better), went and pulled the audio tape of the sentencing (which controlled under state law). Sure enough, the judge had quite clearly sentenced him to concurrent sentences, but the clerk had made an ambiguous notation that ended up being interpreted as "consecutive." The error was corrected and the client was released on a habeas petition---albeit after several months of unauthorized imprisonment. I don't think he ever pursued a civil remedy. I have no idea how many other people served their entire nonexistent sentences pursuant to similar errors that were not fortuitously stumbled upon by law students.

This is just one anecdote, but in my subsequent practice I have come across similar examples of inconsistent record-keeping and difficult-to-trace mistakes by clerks and corrections personnel. In other words, my admittedly limited view from the ground seems to confirm that many court and DOC beaurocracies are susceptible to these kind of scrivener's errors and miscalculations, with insufficient checks and balances (starting with zealous, competent counsel) to guard against them.

As I said, this is in many ways unsurprising since criminal justice policy over the last 40 years has been a story of unlimited appetite for "solving" our social problems with criminal prosecution and incarceration, combined with a decidedly limited tolerance for funding the requisite defense services, administrative support, and prison systems. Something has to give, and as usual it is the rights of the accused/convicted.

Posted by: Observer | Oct 22, 2009 3:29:26 PM

I have said many times that criminal sentencing has gotten so complicated that almost nobody is doing it right.

Posted by: bruce cunningham | Oct 22, 2009 3:46:55 PM

While I certainly think it's embarrassing that these mistakes were not caught I did find this reassuring. "Owens and her co-authors also looked at how the impact of errors differed according to the crime committed and the demographics of the offender. Errors had no greater an effect, for example, on black criminals relative to white ones. So justice may have been random, but at least it was blind."

I also thought it interesting that judges gave more weight to lower recommendations than tougher ones. Maybe this is why it's seen as a "liberal" state.

Posted by: Daniel | Oct 22, 2009 4:07:35 PM

I can't tell from the story what was going on with defense counsel. Did they: 1) not bother to double-check the math in the commission's work; 2) try to check the math but make the same mistake (perhaps because something about the structure of the rules made particular types of mistake easy to make and hard to catch?); or 3) catch the mistake but not manage to convince the court they were right and the commission was wrong? #1 and maybe #2 (depending on just how competent you needed to be to avoid error) suggest Strickland issues.

On the other hand it sounds like the prosecutors weren't doing that great a job catching errors in the other direction.

Posted by: J.W.B. | Oct 22, 2009 4:30:00 PM

I don't know anything about Maryland's sentencing scheme, but here in California sentencing is so complex that judges and attorneys routinely make errors, some of which are caught on appeal and some of which aren't. The prisons have their own set of analysts who review the sentences and send erroneous sentences back for correction. It happens a lot.

Posted by: CalCrimLwyr | Oct 22, 2009 4:42:19 PM

"...an extra couple of months in the slammer because your attorney can't do arithmetic..."

Maybe we should add a math section to the bar exam. That would substantially reduce the number of lawyers. I expect Supremacy Claus would be in favor of that.

Posted by: Kent Scheidegger | Oct 22, 2009 5:22:12 PM

This is an issue that cries out for another anti-lawyer screed from Supremecy Claus.

Posted by: mjs | Oct 22, 2009 6:57:27 PM



Did you really need to encourage him?

Posted by: Daniel | Oct 22, 2009 8:43:09 PM

The law student enters school with an IQ of 300. He exits law school mentally retarded. Why? He must be made a dumbass to accept, believe and tolerate the idiotic supernatural central doctrines of the law. Not even retarded people believe minds can be read, the future forecast, and twelve strangers off the street can detect the truth using their gut feelings, after excluding those with knowledge. Retarded people have more common sense than appellate judges.

No math above the fourth grade is possible for the lawyer. Why? That is the level needed to count money, and to solve money word problems.

That being said, the Supremacy has tried setting sentences using guideline math. He has never ever been able to get the right answer. Even after knowing the correct choice, and its detailed explanation, he still could not get it. Why? The lawyer has made these guidelines so complex and inscrutable, one must hire a specialist such as Prof. Berman. I am going to bet even Prof. Berman gets some wrong.

That being said, wrong calculation resulting in false imprisonment should be a negligence tort per se. It should be per se because the wrong sentence violates the law. The judge should carry professional liability insurance, to make whole the victims of their carelessness.

Posted by: Supremacy Claus | Oct 22, 2009 8:52:50 PM

If mistakes are common, then the mistakes are caused by the guideline writers. They have committed statute drafting malpractice, and their employer failed to properly supervise them, to test the guidelines for at least usability. The guideline maker has a duty to avoid causing harm. It would help to have the victims of this drafting carelessness sue the guideline makers.

I have praised these guidelines when they were mandatory because they increased incapacitation. That is the effect that decrease crime victimization by 40%, with the greatest benefit going to black crime victims.

Posted by: Supremacy Claus | Oct 23, 2009 12:41:40 AM

Years ago I was at a seminar on the federal sentencing guidelines. All of the attendees were experienced federal criminal defense attorneys. We each completed a sentencing hypothetical that involved "grouping" rules. Nearly everyone came up with a different sentencing range. The guidelines are not as complicated as the tax code, but one day they probably will be.
Another time I was assigned to appeal a sentence of 30 years imposed pursuant to a guilty plea. However 2 informations of prior conviction had been filed making the sentence mandatory life. When I called the trial attorney to find out what happened, he said that the mandatory life had provision had "fallen through the cracks." No one at the sentencing hearing prompted the judge to impose it.
We are fallible. We make mistakes.

Posted by: Bryan Gates | Oct 23, 2009 10:13:21 AM

Mr. Gates: Math mistakes represent straightforward legal malpractice.

Posted by: Supremacy Claus | Oct 23, 2009 3:01:32 PM

I was sentenced wrong by a judge in MN and ended up serving 300 days to much before I got my appeal back. I should of only done 12 months 1 day, instead of 25 months. Is there any way I can get any money from the year of my life that has been takin from me because the judge made a mistake?

Thanks William Heins

Posted by: william heins | Nov 1, 2009 5:10:09 PM

I would like to know what someone would do if they were sentenced 16 years ago for possession of crack cocaine and just now are finding out that the offense level used at the trial was incorrect for the amount of drugs that the defendant had in his possession. Is there any type of motion to file? thanks

Posted by: Cheryl Williams | Jul 16, 2011 11:18:06 AM

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