The comparison of the two judicial systems stems from the fact that both are designed to avoid trials on baseless charges. Beyond the similarity of this broad rationale for each process, however, little is in common between the two. An Article 32 investigation results in a non-binding recommendation, is limited to the charges on the charge sheet, and provides that the accused and counsel may be present. Conversely, a grand jury session’s indictment is final, allows any charges to be found, and neither the accused nor his or her counsel is allowed at the session.

First, in an Article 32 investigation, an assigned officer, after reading a report on the crime, hearing both sides argue, and listening to witnesses, determines whether reasonable grounds exist to believe the accused committed the offense charged. This determination is then given to a higher-ranking officer in the form of a recommendation. That officer then also reviews the material and decides if the case should actually go to trial.

On the other hand, once a government prosecutor has an indictment from the grand jury, it is final, and the government may move forward. The Article 32 investigation is thus favorable because it adds a layer in the form of a second set of reviewing eyes before the case is sent to trial.

Second, during an Article 32 investigation only the specific charges of which an individual has been accused are addressed, compared to a grand jury that can indict for anything it believes there is evidence, including things that come up during witness questioning. In an Article 32 investigation, the accused faces a limited set of charges, as opposed to a grand jury, where the accused faces indictment on any crimes the jury finds may have been committed by him or her, whether they are the reason for the session or come up during testimony. This comparison again greatly favors the accused in the military system.

The third, and key, difference between an Article 32 investigation and a grand jury session is that an Article 32 investigation allows the accused and his or her counsel to be present while the grand jury session does not. Along with the benefit of seeing and hearing the government prosecutor’s case, the accused has the benefit of being able to call his or her own witnesses, give evidence, and cross-examine witnesses. This provides the accused with an opportunity to go more in depth about learning the government’s case, hear and question witness testimony (which provides grounds to impeach the testimony at trial if the testimony changes), and make a case for him or herself to prove innocence or provide mitigating evidence.

The accused in civilian court, at a grand jury session, has none of these rights. The ability to be present at a hearing on the merits of the evidence is greatly beneficial to the accused. Sol Wachtler, a former Chief Judge of the New York Court of Appeals, famously said that a grand jury would “indict a ham sandwich” if that was what a prosecutor wanted. Joshua A. Dressler & George C. Thomas III, Criminal Procedure Prosecuting Crime 840 (4th ed. 2010). Wachtler’s quote illustrates the ease with which a prosecutor can obtain an indictment with no accused or counsel present, and in so doing demonstrates the benefit to having the accused at the session. Because the accused has another opportunity to get his or her case dismissed, and because it can be used as a discovery tool, an Article 32 investigation is much more beneficial to the accused than a Grand Jury session.

In light of the dignity to be afforded accused individuals and in light of accuracy concerns, the Article 32 investigation is simply better. By adding another level of review before going to trial, and allowing the accused to defend him or herself before the case is brought to trial, not only does the accused have an extra chance to avoid the stigma attached to being brought to trial (whether guilty or innocent), but there is also a greater chance of accuracy at this early stage. An individual’s dignity should be worth the effort.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. To be sure, such reasoning held meaningful sway with the Supreme Court until 1937, when a majority of the Court, after a game of chicken with FDR, relented and began recognizing greater congressional power to legislate under the Interstate Commerce Clause. Among other things, Congress could regulate activities that, in the national aggregate, substantially affected interstate commerce, regardless of whether a given activity was interstate or intrastate and regardless of Congress’ actual motives or purposes. Under this approach, not only were various New Deal statutes upheld, but so were subsequent statutes in the 1960s and 1970s concerning such matters as civil rights and environmental protection.

Over the past two decades, however, the Court has again shown a willingness to henpeck Congress regarding its commerce-based legislation. The turning point occurred in a 1995 case, United States v. Lopez, in which the Court by a 5-4 vote struck down a federal statute criminalizing gun possession within 1000 feet of a school. Five years later, in United States v. Morrison, the Court again by a 5-4 vote struck down a federal statute creating a cause of action, and authorizing civil liability, for gender-motivated violence.

Both of these statutes, said the Court, governed conduct that was not commercial in nature, and neither statute was part of a larger federal scheme of commercial regulation. Nor did either law require proof that a defendant’s conduct actually bore a relationship to interstate commerce. The Court also noted that the statutes touched on one or more areas, such as criminal law, traditionally within the legal domain of the states. Given these factors, the Court in both cases concluded that Congress had exceeded its interstate commerce authority.

In light of these recent decisions, the defendants’ arguments can hardly be characterized as frivolous, much less bird-brained. Like all litigants, however, they should be wary of counting their legal chickens before they’ve hatched. As it turns out, most statutes challenged since Lopez have not suffered the same fate as those at issue in Lopez and Morrison. Lower courts have generally been reluctant to apply the Lopez factors too strictly, and the Supreme Court itself—with the exception of Morrison—has only made suggestions of potential unconstitutionality with regard to other statutes, otherwise upholding every law it has reviewed under the Interstate Commerce Clause. In the 2005 case of Gonzales v. Raich, for example, the Court (by a different majority) upheld an application of the federal Controlled Substances Act to the intrastate cultivation and possession of marijuana used for medical purposes pursuant to a state law. Congress, meanwhile, seems to have taken at least somewhat seriously the admonitions of Lopez and Morrison and appears less likely today to enact statutes possessing the flaws of the statutes struck down in those cases.

The relevant provision of the Animal Welfare Act, 7 U.S.C. § 2156, covers a range of conduct related to “an animal fighting venture.” (This provision, among others, resulted in NFL quarterback Michael Vick’s 2007 federal conviction for financing and participating in dogfighting operations, which partly took place in South Carolina.)  Taken together, § 2156’s subsections make it criminal “to knowingly sponsor or exhibit an animal in an animal fighting venture,” § 2156(a)(1); “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture,” § 2156(b); “to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture,” § 2156(c); or “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture,” § 2156(e). A violation of any of these subsections can lead to a fine, to imprisonment up to five years, or to both (see § 2156(j) and 18 U.S.C. § 49). The term “animal fighting venture,” though expressly excluding hunting, is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment,” § 2156(g)(1).

Applying the Lopez and Morrison factors to § 2156, it is apparent that some of its prohibitions are clearly constitutional. Those that target inherently commercial activities such as buying and selling, and especially those that also expressly link the activity to interstate commerce or to a channel or instrumentality of interstate commerce, seem well within the judicially defined scope of Congress commerce power. Conversely, those that target activities that are not inherently commercial—for example, exhibiting or possessing—potentially stand on a weaker footing, but they do explicitly require proof that the animal or object be knowingly destined for use in an animal fighting venture that (by statutory definition) is “in or affecting interstate or foreign commerce . . . .” To be sure, the federal prosecution introduced evidence of out-of-staters that traveled to the event; of out-of-state items—including feed and a host of resources used for the fighting—that were shipped to individuals at, or seized from the scene of, the event giving rise to the convictions; and of the deposit of event proceeds into a bank account, from which funds were drawn by checks that were then processed out-of-state.

In past Supreme Court cases, most notably Katzenbach v. McClung from 1964, it has been held that Congress’ commerce power can reach a business that receives from out-of-state a portion of the goods that it then sells to customers, even if the customers are generally from in-state. Moreover, the size or amount of the actual portion of goods (or its monetary value) is generally not relevant insofar as Congress may aggregate all like activities when tallying or gauging the overall effect on interstate commerce. Nor does it matter whether or not one can plausibly characterize an activity as local rather than national or interstate. As the Court remarked in the 1942 decision of Wickard v. Filburn, “even if . . . [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”

These are older, pre-Lopez precedents, it is true, but neither Lopez nor Morrison expressly overruled any prior decisions, and the Raich decision approvingly invoked both McClung and Wickard, drawing particular support from the latter. Indeed, in response to the challengers’ heavy reliance on the Court’s more recent cases of Lopez and Morrison, the Raich majority stated that “[i]n their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases” and that “even in the narrow prism of [their] creation, they read those cases far too broadly.”

This could very well be the same response that the Court of Appeals, without much brooding over precedent, will give to most if not all of the appellants in their challenges to the Animal Welfare Act. It may be that the appeals court will find that one or even a few of them have reasonable arguments against the application of the statute, though probably not arguments of sufficient strength to prevail. Insofar as they all contributed to or operated a commercial operation—the interstate effects of which, if aggregated with similar operations nationwide, can plausibly be deemed substantial—the likelihood of an affirmance with regard to their convictions under the Animal Welfare Act would seem to be high. Should such an affirmance occur, one might venture to say that, in the end, the chickens will have indeed come home to roost.

First of all, it is unlikely that the John Doe investigation will remain focused solely on the existence of campaign activity during employee working hours. According to press reports, the investigation is proceeding in the direction of investigating possible destruction of evidence and obstruction of justice. As I tell the students in my Corporate Criminal Liability class, a cover up will cause a defendant more trouble than the underlying crime.

I once represented a corporate client in a government contracting investigation, with dozens of individuals hauled before the grand jury. Eventually, there were multiple guilty pleas and criminal fines that amounted to tens of millions of dollars. However, the only two individuals who ended up doing jail time were two minor players in the scheme who had decided to shred documents after receiving a subpoena. The U.S. Attorney in that case refused to offer them any deal that did not include jail time as a component. In my experience, prosecutors take a very hard line on the destruction of evidence.

Therefore, it appears that one future focus of the John Doe investigation will be to investigate whether anyone took steps to try to hide the traces of the secret wifi network for emails that was apparently run out of the County Executive’s Office. In particular, the investigation will examine whether evidence relating to the wifi network and the emails sent over that network were destroyed after the initial subpoenas were served.

In regards to the felony charges in the criminal complaint, it does appear that in this instance felony charges are warranted for doing campaign work on taxpayer-funded time. In particular, the felony charges are warranted given the extensive amount of campaign activity reflected in the evidence collected thus far, and also given the allegation that the individual involved had received immunity previously for roughly the same offense. In other words, the charges in the complaint fit the seriousness of the facts.

What we see here is a classic situation in white collar crime. The response of some observers to the criminal complaint is to assert that, when it comes to illegal campaign activity, “everyone does it.” First of all, this is hardly a legal defense to the crime. Moreover, it is entirely beside the point to speculate whether some isolated instances might be identified where a democratic staffer has also transgressed the literal language of the statute involved. I freely concede that prosecuting every act that fits the technical definition of doing campaign work on the taxpayer dime would be absurd. Prosecutorial discretion is important in these types of cases, and this discretion is a crucial component of the process.

In general, one would expect a prosecutor to charge felonies where there are substantial violations of the law and where there is evidence of culpability. In contrast, one would expect that a prosecutor would not charge (or else would bring only misdemeanor charges) where the facts suggest relatively minor infractions of the statute.

Thus far, in regards to the illegal campaign activity being investigated, the D.A. has granted immunity to minor players in exchange for their cooperation, and has brought misdemeanor charges against one individual who mostly seems to have been misguided and acting on her own.

The only felony charges relating to illegal campaigning have been filed against someone who was involved in something similar as part of the Caucus Scandal investigation, and thus was most likely aware of the illegality of her conduct in 2010. The criminal complaint also alleges that she engaged in a substantial amount of prohibited campaigning during work hours and that she did so in concert with others. It seems that multiple persons may have violated the same underlying criminal provision, but that one individual currently faces much more serious charges.

Is this fair? For decades, academics have complained about the enormous power that such charging discretion places in the hands of prosecutors, and the potential for differential treatment based upon partisan allegiances. Fortunately, in the time that I have lived in Wisconsin, Milwaukee has been blessed with scrupulously fair prosecutors in Chisholm, McCann and, at the federal level, Steve Biskupic.

In any event, the role of prosecutorial discretion in the charging of white collar crimes is an integral and accepted part of our criminal justice system, and is likely to remain so for the foreseeable future despite its critics. This is because white collar crimes are often “malum prohibitum” crimes, meaning that the underlying conduct may not appear immoral to some members of the public and yet it is nonetheless a crime to engage in such conduct.

A prosecutor should exercise discretion when filing charges in such cases: A person who has knowledge of (or is recklessly indifferent to) the existence of a malum prohibitum offense, and who chooses to violate the law anyway, is morally culpable as a result of that choice and should be prosecuted. A person who is not on notice of the existence of the malum prohibitum offense is less morally culpable, and any charges that are brought for an unknowing violation should reflect this fact (although society at large has a countervailing interest in some minimal punishment in order to preserve the principle that “ignorance of the law is no defense”).

In general, a prosecutor’s charging decisions will reflect these principles. If they do not (i.e., the case of an “overzealous prosecutor”) then oftentimes judges in white collar cases will respond by attempting to construe the statutory language in a way that will not permit convictions where the underlying conduct is “innocent” from a moral point of view. Consider Justice Thomas’ opinion for the Supreme Court in Staples v. United States, or the Supreme Court’s Liparota v. United States decision.

Mr. Chisholm is proceeding cautiously and appropriately in this John Doe investigation because he knows that his decisions are being closely watched by the public. In his charging decisions thus far, he has been the complete opposite of “overzealous.” Perhaps that is why the only real criticism that he has received about this investigation to date is that that he is being very slow and very careful. At the end of the day, if that remains the only criticism of this investigation, the D.A.’s office will have done a very good job indeed.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. Because the D.C. Circuit’s decision gave rise to a circuit split, the Supreme Court granted certiorari to resolve the conflict, and will thus decide one of the most important Fourth Amendment cases since 1983. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. The Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. The Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.

Here are the (quite critical) conclusions of the Sentencing Project:

Results vary somewhat, but when inconsistencies and research errors are adjusted the savings associated with investing in private prisons appear dubious. Even minimal savings are far from guaranteed, and many studies claiming otherwise have been criticized for their methodology. The available data belies the oft-claimed economic benefits of private contracting, and points to the practice being an unreliable approach toward financial stability.

Even if private prisons can manage to hold down costs, this success often comes at the detriment of services provided. Nationwide, public funds for prisons are already limited, leaving little excess spending that can be cut. Therefore, private prisons must make cuts in important high-cost areas such as staff, training, and programming to create savings.  The pressure that companies feel to maintain low overhead costs combined with less direct oversight are likely what led researchers at the University of Utah to conclude that, “quality of services is not improved” in private prisons.

Finally, private prison companies’ dependence on ensuring a large prison population to maintain profits provides inappropriate incentives to lobby government officials for policies that will place more people in prison. This is evidenced by the creation and coordination of model legislation through conservative lobbying groups, as well as in the political contributions and lobbying efforts of individual companies. This effort to increase reliance on incarceration comes at a time where America’s rate of imprisonment is the highest in the world and when the prison population is far beyond the point of diminishing returns in terms of public safety.

The available evidence does not point to any substantial benefits to privatizing prisons. Although there are instances where private prisons result in small savings, the structure and demands of for-profit prisons appear to produce a negative overall impact on services. In order to reconcile this information with the continued claims that private prisons are superior, one must assume that these contentions are couched more in ideology than in facts.

With that backdrop in mind, here’s what happened in Minneci v. Pollard.  The inmate plaintiff, Pollard, alleged that he was injured in a fall and that the injury was mishandled by prison medical staff and other prison employees in ways that amounted to “deliberate indifference” in violation of the Eighth Amendment.  He sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits such lawsuits against federal agents for violations of constitutional rights.  However, the Supreme Court has generally taken a restrictive approach to Bivens actions since about 1980, including its decision in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), which ruled out Bivens actions against the corporations that run private prisons.

Malesko did not necessarily foreclose Pollard’s claim because Pollard was suing individual employees, not the corporation as a whole.  In the end, however, eight justices saw no reason to recognize the distinction, with only Justice Ginsburg deciding to the contrary.

For the majority, the key to the case was that the defendants could have been sued under state tort law; in their view, it seems that Bivens only provides a stop-gap remedy for constitutional violations that lie beyond the reach of tort law.  This does seem consistent with the thrust of recent Bivens jurisprudence.

But it is important to note that the Court does not insist that plaintiffs must necessarily fare as well under state law as under Bivens:

We note, as Pollard points out, that state tort law may sometimes prove less generous than would a Bivens action, say, by capping damages, see Cal. Civ. Code Ann. §3333.2(b) (West 1997), or by forbidding recovery for emotional suffering unconnected with physical harm, see 629 F. 3d, at 864, or by imposing procedural obstacles, say, initially requiring the use of expert administrative panels in medical malpractice cases, see, e.g., Me. Rev. Stat. Ann., Tit. 24, §2853, (Supp. 2010); Mass. Gen. Laws, ch. 231, §60B (West 2010). But we cannot find in this fact sufficient basis to determine state law inadequate.

. . . .

Rather, in principle, the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations.  (10-11)

This begs the question, of course, of just how robust a state-law remedy must be in order to count as “roughly similar.”  The Court did leave itself a little wiggle room in this regard to handle different sorts of Eighth Amendment claims against private defendants differently in the future:

[W]e concede that we cannot prove a negative or be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as we have described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises. (11-12)

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

Before conviction, it is imperative for both sides to have adequate time to prepare for trial so as to ensure that trial results are as reliable as possible.  After conviction, it is fair to assume (to some extent) the defendant’s guilt, and to give relatively greater weight to the system’s interests in efficiency and finality.

Still, the one-year statute of limitations, introduced into federal habeas law in 1996, seems unnecessary and unfair, especially in cases (like Gonzalez) that do not involve the death penalty.  While capital defendant do indeed have incentives to drag out the process, other habeas petitioners, cooling their heels in prison based on convictions they believe are unjustified, will have every reason to move as swiftly as they can.  It is important to realize, though, that habeas petitioners have no right to counsel, and the vast majority are forced to do what Gonzalez did: figure out how to draft and file a habeas petition on their own, with all of the challenges posed by incarceration (limited legal research capabilities, periodic lockdowns, inability to communicate with potentially helpful witnesses on the outside, etc.).

What’s more, that one-year statute of limitations — such a seemingly bright line — presents many complications in practice.  In particular, when the SOL is put alongside two other aspects of habeas law, the exhaustion requirement and the restrictions on successive petitions, there are many traps for the unwary.  I can attest that my post-conviction remedies students — most working with the benefit of two and a half years of legal education — find it plenty difficult to understand the interaction of these three rules, including the many glosses that have been put on them over the years by the Supreme Court.

Bearing in mind all of the other habeas rules that exist to prevent “abuse of the writ,” the one-year SOL ought to be repealed.

Of course, the Supreme Court did not have that option in Gonzalez.  But the Court could have construed the SOL more generously than it did, so as to give pro se inmates like Gonzalez a fairer shot at having their constitutional claims addressed on the merits.

Here’s what happened.  Convicted of murder in 2006, Gonzalez took his case to the Texas Court of Appeals and lost.  He did not seek further review in the Texas Court of Criminal Appeals, the state’s highest court for criminal appeals, and the time for doing so expired on August 11, 2006.  The Court of Appeals then issued its mandate, formally terminating the appellate process, on September 26, 2006.  Gonzalez then unsuccessfully pursued state habeas relief, which indisputably tolled the federal SOL.

Gonzalez filed his federal habeas petition on January 24, 2008.  If the SOL had begun to run on the date the mandate issued (9/26/06), Gonzalez’s petition would have been timely; however, the Supreme Court ruled the SOL actually began to run about six weeks earlier, when Gonzalez’s time to appeal to the Court of Criminal Appeals expired (8/11/06).  Using that date, Gonzalez missed his federal deadline by about five weeks.

According to the statute, the clock begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”  Gonzalez argued that “the conclusion of direct review” occurs when the mandate issues, and that he should get the benefit of that later date.  This is at least a facially plausible interpretation.  The Court decided, however, that the “conclusion of direct review” prong is not available to petitioners who fail to seek direct review all the way up to the United States Supreme Court.  This, too, is a plausible interpretation.  How to choose between them?

Citing “administrability” concerns, the Court worried that Gonzalez’s approach — in effect, deferring to each state’s own rules about when direct review is concluded — would impose on federal courts the burden of making “state-by-state determinations.”  (Mem. Op. at 17-18.)  But most habeas decisions are not appealed beyond the district court level, and each district court would only have to figure out the law of one state.  And even at the level of the circuit courts, there would only be a handful or so of states to keep track of.  Only the Supreme Court would potentially have to worry about the divergent laws of 50 different states, and habeas cases presenting SOL issues in the Supreme Court are quite rare.  Do the administrability concerns really outweigh the danger that a meritorious habeas claim will be dismissed because a pro se petitioner has failed to understand that he cannot rely on what state law says about when state proceedings are finished?

The concerns are heightened in states like Texas that preclude state habeas review until after the mandate issues.  As Gonzalez pointed out, the operation of state and federal rules in his case effectively shortened his federal SOL by six weeks.  He could not file his federal petition until he exhausted his speedy trial claim in state habeas, but he had to sit around for six weeks after his federal clock began to run before be could initiate the state habeas process.

True, even taking those six weeks out, he had more than ten months left on his federal clock, which may seem like plenty of time to draft and file a federal petition.  But, again, consider the general challenges facing a pro se inmate, as well as the particular complications of dealing with the state habeas litigation and sorting out how the two rounds of state post-conviction proceedings will interact with federal rules relating to the statute of limitations, exhaustion, procedural default, and deference to state-court decisions on the merits.  A difference of six weeks may be much more significant than first appears to be the case — as indeed it was for Rafael Gonzalez.

Cross posted at Life Sentences.

The numbers tell a remarkable story.  Here are some of the parts of that story that stand out for me:  

First, imprisonment rates in all three states were much lower in 1950 than they are today.  Of the three, Minnesota’s imprisonment rate grew the least between 1950 and 2010, and its rate nearly tripled.  Wisconsin, with the most dramatic increase, saw its imprisonment rate more than sextuple.

Second, the increases from 1950 to 2010 did not follow a smooth path.  Rather, 1975 was a radical breaking point in all three states.  Between 1950 and 1975, imprisonment rates fell quite markedly in Indiana (down 39.4%) and Minnesota (33.3%).  True, Wisconsin’s rate increased in that same time period, but by only 10.7% — a very modest increase over a twenty-five-year period, at least relative to what was about to happen.

Then, in the late 1970′s, everything changed.  In the seven five-year intervals between 1975 and 2010, the three states were routinely experiencing imprisonment-rate increases of 20% or more.  Before 1975, the single largest burst of imprisonment had been Indiana’s 12.9% increase between 1955 and 1960, which was swiftly followed by a 21.7% decrease in the early 1960′s.  By contrast, the largest burst after 1975 was Wisconsin’s whopping 77% increase between 1995 and 2000 — which was followed by yet another (albeit far more modest) increase between 2000 and 2005.

Before 1975, states were up some years and down others.  Since 1975, the trend has been pretty much exclusively in one direction: up.

Overall, since 1975,  Indiana is up 530%; Minnesota, 323%; and Wisconsin, 496%.

Third, while Indiana and Minnesota have retained the same position relative to one another through the whole time period, Wisconsin has shifted from being least harsh of the three to most harsh to now being in the middle.  In 1950, Wisconsin had the lowest imprisonment rate, but swiftly lost this distinction to Minnesota.  The change was not so much because of a big jump in Wisconsin, but because Wisconsin’s rate remained relatively flat while Minnesota and Indiana were experiencing dramatic decreases.   Then, Wisconsin’s imprisonment rate surpassed even Indiana’s due to that extraordinary 77% increase in the late 1990′s.  Since 2000, however, Wisconsin has moved back to second place as its imprisonment rate has returned to the sort of stability we saw in the 1950-1975 time period.  Minnesota and Indiana, by contrast, have remained more in growth mode since 2000.

So why is Wisconsin out of sync with its sister Midwestern states: modest growth in imprisonment from 1950 to 1975, while the other states were experiencing substantial drops; the most dramatic rate of growth of the three between 1975 and 2000; and then a leveling off since 2000, as the other states have continued to grow?

On the other hand, there is another way in which Indiana and Minnesota look very different from one another: volatility.  Although Indiana and Minnesota have consistently moved in the same direction, Indiana tends to move to a much greater degree, whether up or down.  Thus, the average percentage change over the thirteen five-year periods in Indiana has been 23%, while Minnesota’s average is only 16%.  I wonder if this says something about a greater overall stability in the legal or political systems in Minnesota than in Indiana — on the face of it, Minnesota’s systems seem better able to absorb whatever external pressures there are for abrupt change in the criminal-justice system.  From a planning and administration standpoint, Indiana’s volatility would seem quite problematic relative to Minnesota’s stability.

The Wisconsin volatility story is truly odd: Wisconsin was actually the most volatile of the three states between 1975 and 2000, but has otherwise been the most stable.  What happened between 1975 and 2000 that so badly undermined whatever shock absorbers we have that normally keep the criminal-justice system on an even keel?  (Pardon the mixed metaphor.)  And was there anything about the Truth in Sentencing law that helped finally to right the ship in 2000?

Finally, let’s consider the origin of the Minnesota-Wisconsin disparity.  In 1955, the two states had the same imprisonment rate.  This suggests that the current wide disparity is not an inevitable product of deep-seated differences in state culture, but results from contingent policy choices and/or some other set of  social forces that have operated differently in the two states over a limited time period.

Here are the disparity figures:

For the most part, the story is one of a slow, steady increase in the Wisconsin-Minnesota divide.  For this reason, it seems unlikely that any one particular policy choice (e.g., Minnesota’s adoption of a widely admired sentencing guidelines system in the 1980′s) deserves the credit or the blame for a lion’s share of the present-day disparity.

Two particular periods of time seem particularly interesting to me and worthy of further investigation.  One is the 1950′s, when Wisconsin’s imprisonment rate jumped nearly 20% as Minnesota’s was falling.  This was the time period that set the two states on a long-term path to disparity.

The other is the 1990′s, when the two states initially experienced about equal rates of growth, but then Wisconsin’s exploded while Minnesota’s dropped.  As a result, the disparity between the two states jumped more dramatically between 1995 and 2000 than in any other five-year period.  It is hard not to have the sense that something went horribly wrong in Wisconsin’s criminal-justice system in the late 1990′s — something that Minnesota, which had seemed to be on the same track as Wisconsin in the early 1990′s, managed to avoid.

The next post in this series will take the crime and race data back to 1950.

Cross posted at Life Sentences.

The number that struck me the most was $2,792 — what BJS reported as the average cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be a rather small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

It understates the costs because it reflects a crude calculation: BJS merely divided the total budget of prosecutors’ offices by the number of felony cases.  However, prosecutors do much more than simply prosecute felonies.  For instance, BJS’s 2001 survey revealed that most prosecutors’ offices also handle misdemeanors, traffic violations, juvenile matters, and civil litigation on behalf of government agencies.  Close to half also do child-support collection.  If we took into account all of these other prosecutorial activities, the amount spent per felony prosecution would presumably be much less than $2,792.

Moreover, the $2,792 average also reflects all manner of overhead expenses.  To get a real sense of the scale of prosecutorial effort per case, it might be more illuminating to factor out some or all of the overhead (although this is probably much easier said than done).

Finally, the $2,792 figure reflects just the costs in jurisdictions of one million or more.  Costs probably tend to be higher in big cities than in other jurisdictions, which means that the overall national average is likely quite a bit less than the $2,792.  As I calculate it ($5.8 billion in total prosecution budgets divided by 2.9 million felony cases), the overall average would be $2,000.

But these numbers also significantly understate the societal expense in screening and adjudicating felony cases, for they omit the money spent on police, courts, and defense representation.

Still, it may not be entirely inaccurate to say that the prosecutor’s decisions are the most important ones for the criminal-justice system to get right.  Indeed, the charging decision is arguably the single most important decision in the entire process, based both on its immediate impact on a defendant’s life (stigma, risk of pretrial detention, costs of defense, etc.) and on the high rate of conviction of charged defendants (the new BJS survey indicates that 2.9 million felony cases in 2007 resulted in 2.2 million convictions).  The prosecutor’s decisions with respect to plea-bargaining and (in some jurisdictions) sentencing recommendations are also momentous.

Bottom line: the $2,792 figure misses a lot, but it does point to a mass-production, rough-justice quality to much felony prosecution and raises the question of whether spending more money on prosecutors would in some sense produce better outcomes.

(Of course, part of the problem with posing this question is that it is not immediately clear how one ought to measure the quality of outcomes in criminal matters, apart from avoiding wrongful convictions.)

In any event, the BJS report also gives us some insight into why felony prosecutions are cheap.

For one thing, survey respondents indicated that only three percent of all felony cases were resolved by way of a jury verdict.  This highlights how completely (cheap) plea bargains have replaced (expensive) jury trials as the dominant method of case resolution.  Again, one might pause here to question what (if anything) has been lost quality-wise by dispensing with jury trials in our criminal-justice system.

ƒƒThe BJS report also indicates that prosecutor salaries are not especially high:

The average annual salary for assistant prosecutors ranged from $33,460 for entry-level assistant prosecutors in part-time offices to $108,434 for assistant prosecutors with 6 or more years of experience in offices serving jurisdictions of 1 million or more residents.

Granted, $108,434 probably looks attractive to many legal professionals in the current legal market, but bear in mind that this is where experienced big-city prosecutors are maxing out.  Also, I wonder if this is one area in which the 2007 data are particularly out-of-date — my sense is that the last four years have hardly been kind to prosecutorial paychecks.

Cross posted at Prawfs.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Prawfs and Life Sentences.

The data, set forth in the table below, seem to support the latter hypothesis, with the current rate of imprisonment almost exactly matching that of 2000, the first full year after TIS took effect. Indeed, since 1999, the state’s imprisonment rate has been remarkably stable. The single largest annual change since 1999 was a 5.8% drop in 2005. This makes for quite a contrast with the volatile 1992-1999 time period, when annual increases averaged 12%.

The picture becomes even more interesting if we focus on Wisconsin’s imprisonment rate relative to that of peer states Indiana and Minnesota.

Since TIS, Wisconsin’s imprisonment rate has dropped markedly in comparison with those of the peer states. In 1999, Wisconsin had an imprisonment rate 21% higher than Indiana’s, while the current rate is only 84% of the Hoosier State’s. Likewise, in 1999, Wisconsin’s imprisonment rate was more than triple Minnesota’s, but is now only a little more than twice that of its neighbor to the west.

Wisconsin’s strong improvement in imprisonment rate relative to its peer states does not seem merely a function of more significant gains in reducing violent crime. Although Wisconsin has reduced its violent crime rate most years (eight out of eleven) since 1999, Indiana has been no less consistently successful on this front, and Minnesota only a little less so (six years out of eleven). Indeed, Wisconsin’s rate of violent crime in 2010 was actually slightly higher than it was in 1999 (248.7 versus 245.8), while Minnesota’s (236.0 versus 274.0) and Indiana’s (314.5 versus 374.6) were much lower.

If not crime rate, what else might explain Wisconsin’s greater success in holding the line on imprisonment for the past decade than Indiana or Minnesota? Has TIS itself played a role? It is hard not to think so in light of the abrupt break that occurred in 2000 in what had been an established pattern of large annual increases in Wisconsin’s imprisonment rate.

It is not immediately clear why TIS would have put the brakes on a rapidly expanding prison population. One possibility is that sentencing judges in the tough-on-crime 1990’s were overestimating, and overcompensating for, the lenience of the parole board. Perhaps the parole board itself was something of a moving target, tightening up its standards in the ‘90’s in ways that were not understood by sentencing judges. If so, then the dramatic growth of the state’s prison population may have been in part due to a communication and coordination problem between the judiciary and the parole board. By taking the parole board out of the equation for new crimes, TIS may have mitigated a dysfunctional institutional dynamic.

Cross posted at Life Sentences Blog.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

The cases both involve fourteen-year-old murderers sentenced to life without parole.  In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder.  The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants.  Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:

He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.

Jackson v. Norris,  2011 Ark. 49 (Danielson, J., dissenting).  If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, that holding might have some interesting implications for Tison.  Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.

Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions.  I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.

This is in part because the way the Court performs the objective analysis has changed, and in part because several states have modified their laws since 1987.  You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where theTison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it.  Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.

As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:

First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence.  Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis.  (1406-07)

On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework.  I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.”  (1408)  Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed.  (1404)

I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.

In this post, I’ll explore another possible way of accounting for differences in the three states’ incarceration rates, the racial threat hypothesis.  The basic idea is this: a larger racial minority population causes the majority to feel more threatened by the minority and consequently to prefer to stronger social control measures.

Here are the relevant numbers from Indiana, Wisconsin, and Minnesota:

As you can see, the incarceration-rate order tracks the order based on the size of the each state’s black population.

Interestingly, the pattern does not hold if you focus on the size of the white population.  The three states are almost indistinguishable in how white they are, and the order of “whiteness” does not follow the incarceration-rate order: Wisconsin is number one (86.2% white), followed by Minnesota (85.3%) and Indiana (84.3%).  We might hypothesize, then, that there is something about having a relatively large percentage of a particular minority group that tends to push incarceration rates higher.

A similar pattern is evident nationally.  Consider the top ten states by imprisonment rate (from highest to lowest):

Thus, among the top ten imprisoning states, eight are also among the top ten in the number of blacks or Hispanics relative to whites.  A ninth, Arkansas, is only a little outside the top ten in proportion of blacks.  The tenth, Oklahoma, seems to deviate from the pattern, but is still in the top half of both the black and Hispanic scales.

Now consider the bottom ten imprisoning states (from lowest to highest imprisonment rate):

Note that not one of the bottom ten for imprisonment is among the top ten based on the proportion of either blacks or Hispanics.

A possible explanation for these patterns comes from scholars who write about the “racial threat” phenomenon.  I’ll crib a little bit from a fascinating new article by Christian Breunig and Rose Ernst, “Race, Inequality, and the Prioritization of Corrections Spending in the American States,” 1 Race & Justice 233 (2011):

“Racial threat,” in the most simplified terms, describes a group of theories positing a relationship between the sizes of the Black population in one area to the extent of social control measures aimed at that population.  Broadly speaking, this theory posits that the presence of a racialized “other” in a population increases fear and/or hostility among White Americans toward this other group which, in turn, provokes support for social control policies.  Social control policies include but are not limited to social service policies such as “welfare,” as well as a host of criminal justice policies.  For example, Pamela Irving Jackson’s work in the area of policing has found a connection “between minority group size, competition for sociopolitical dominance, and the level of policing resources.”  (235)

In order to test the racial threat hypothesis, Breunig and Ernst have studied data from all fifty states over a fifteen-year time period and attempted to control for many different variables.  Their focus was on corrections spending, not imprisonment rates per se (my focus), but one would expect a correlation between the two.  More specifically, their dependent variable was what they call the “corrections priority index” (CPI), which is simply the percentage of state spending that goes to corrections.

Surprisingly, Breunig and Ernst found that CPI does not seem to be determined by any of the obvious political factors, such as which party is in power or whether the population is more liberal or conservative:

An intriguing aspect of our analysis is that we did not discover any evidence that institutional and political factors, including partisanship, divided government, referendum, and citizen ideology, influence the prioritization of corrections spending.  (243)

If not those factors, then what?

On the whole, our analysis suggests that structural factors, specifically racial threat and inequality, are the dominant forces in determining the prioritization of corrections spending. . . . We also find that the number of people incarcerated in state prisons as well as murder rates are statistically significant but have only small effect.  (243)

Breunig and Ernst more precisely quantified the racial effect as follows: “[A] 1% increase in the percentage of the African American population in a state leads to at least a 0.2% increase in the CPI.”  (244)

One potential response to this research is that race per se may not matter since we know that race is closely correlated in this country with poverty.  In other words, one might wonder if the “racial threat” theory should be recast as a “poverty threat” theory.

However, Breunig and Ernst also considered the effect of economic inequality on the CPI, and found that the racial variable had a distinct effect.  At all levels of inequality, increasing the black percentage of the population also increased the CPI.  Breunig and Ernst did find that inquality mattered, but only in states with relatively low black populations.  They suggest that “racial cleavages” are the primary social division that politicians exploit, but that class cleavages become salient in their own right in states in which there is little racial threat (238).

Putting all of this together, we might hypothesize that one explanation for Indiana’s high imprisonment rate (relative to Wisconsin’s and Minnesota’s) is that Indiana has a much larger black population, which triggers racial threat dynamics and a more powerful demand in the political system for social control.

But, if that’s right, how do we account for the fact that Indiana has much lower racial disparities in its prison population than its two neighbors to the north?  If Indiana’s whites feel more threatened by blacks, shouldn’t that translate into more vicious racial disparities?

Not necessarily.  This is all quite speculative, but let me suggest three possible reasons why strong racial threat dynamics might not necessarily produce high racial disparities.  First, the political demand for more aggressive social control must be mediated through a legal system that may be more committed to racial equality norms than the population at large.  Second, a relatively large black population probably means not only stronger racial threat effects, but also a greater voice for blacks in a state’s political and legal systems.  Blacks may not be able to (and indeed may not wish to) blunt the state’s demand for penal severity, but may be able to exercise some influence in minimizing the extent to which the demand is met through racially discriminatory policies and practices.  Finally, racial threat dynamics may serve to undermine social trust generally across a state’s population, leading to relatively higher white crime rates.

To be clear, I don’t think anything in my analysis here demonstrates that racial threat dynamics play an important role in explaining the relative imprisonment rates of Indiana, Wisconsin, and Minnesota.  But, to my mind, the racial threat hypothesis remains an intriguing possibility that may warrant further research.

The next post in the series will examine how imprisonment rates in the three states have changed over the past twenty years.

Cross posted at Life Sentences and Prawfs.

As detailed in the table that appears after the jump, Indiana’s imprisonment rate (about 460 per 100,000) easily outstrips Wisconsin’s (387) and dwarfs Minnesota’s (178). Perhaps even more surprisingly, Indiana’s probation population also exceeds Minnesota’s. My Minnesota-Wisconsin comparison suggested that Wisconsin imprisons many defendants who would get probation in Minnesota, leading to a much smaller probation population in the former than the latter. But Indiana seems to incarcerate the same way that Wisconsin does, without any accompanying reduction in the probation numbers.

For that reason, Indiana’s total supervised population of 167,872 is the largest of the three states (although Minnesota, with the smallest overall population of three, still has a somewhat larger per capita supervised population, thanks to its enormous per capita probation number).

Indiana also leads the way in crime.

Among the three states, Indiana has highest rate of violent crime, property crime, and homicide. Higher crime rates may in some sense help to account for Indiana’s higher incarceration and supervision numbers. For instance, to use a rough measure of the crime-incarceration link, Indiana had 1.5 prisoners in 2010 for each violent crime committed that year. This is about the same as Wisconsin’s 1.6. It is thus plausible to suppose that Wisconsin’s prison population would match Indiana’s if Wisconsin had the same number of violent crimes as the Hoosier state.

On the other hand, Minnesota only had about 0.8 prisoners per violent crime, suggesting that the differences between Indiana and Minnesota are not merely the result of different crime rates.

In any event, it is probably too simplistic to assume a one-way relationship between crime and imprisonment. Imprisonment itself may be crimogenic. The sorts of life experiences and collateral consequences that flow from incarceration may increase the recidivsm risks of many offenders. Additionally, some criminologists argue that mass incarceration can have negative cultural effects in some communities; for instance, incarceration may become a source of pride, rather than social stigma, for young men.

For these reasons, it may be as accurate to say that Wisconsin’s lower imprisonment rate leads to its lower crime rate, as it is to say that Wisconsin’s lower crime rate leads to its lower imprisonment rate. There is probably a certain amount of truth to both propositions.

Thus, Indiana and Wisconsin should both consider whether there are lessons that can be learned from Minnesota. With a violent crime rate only a little lower than Wisconsin’s, our Gopher nieghbors have half the rate of imprisonment. Could our imprisonment rate be cut in half without any appreciable increase in our crime rate?

One potential benefit would be a decrease in corrections costs. Our per capita corrections costs are twice Minnesota’s. Adding Indiana to the mix, however, creates a puzzle: Indiana’s per capita corrections costs are closer to Minnesota’s than Wisconsin’s. Indeed, in absolute terms, even though Indiana’s prison and probation populations are both larger than Wisconsin’s, Indiana’s corrections budget is $500 million less. This large and unexpected disparity, which might be worth exploring in more detail in a later post, might perhaps be due to different ways of counting the money. Or, on the other hand, it may reflect real policy differences in the amount of money spent per offender. If the latter, is Indiana too stingy, Wisconsin too generous, or both?

Let’s now take a look at how Indiana does with racial disparities. Interestingly, Indiana fares much better in this regard than either of its northern neighbors. Although it has the highest white incarceration rate of the three states, its black incarceration rate is actually much lower than Wisconsin’s. As a result, the ratio of its black to white incarceration rates is easily the lowest at 5.5, as compared to Minnesota’s 9.1 and Wisconsin’s 10.6. If Wisconsin could bring its black incarceration rate down to Indiana’s, the result would be a reduction in the incarcerated population of more than 6,000.

In the next post in this series, I will consider how the “racial threat” hypothesis applies to the three states.

All of the data discussed in this post, and then some, are set forth in the table below. Note that I used an estimate for Indiana’s 2005 prison population. Because this number seems not to be available, I averaged Indiana’s 2004 and 2006 prison populations in order to estimate the 2005 population.

In this post, I cover racial disparity data in the two states.  As summarized in a helpful new article by Michael Rocque (“Racial Disparities in the Criminal Justice System and Perceptions of Legitimacy: A Theoretical Linkage,” 1 Race & Justice 292 (2011)), a substantial body of research documents wide racial disparities in the American criminal justice system.  Consistent with the national data, and despite longstanding reputations for progressive politics, both Minnesota and Wisconsin exhibit troublingly large disparities in white and black incarceration rates.

The numbers are set forth in a table at the end of this post.  In both states, the black incarceration rate is several times that of the white incarceration rate.  However, Wisconsin’s disparity ratio (10.6) is somewhat worse than Minnesota’s (9.1).

Although the difference between the numbers may not seem large at first blush, it does translate into a meaningful difference in the overall prison population.  For instance, if Wisconsin were able to bring its disparity ratio down to Minnesota’s 9.1 by lowering its black incarceration rate, that would mean a reduction in the state prison population of more than 2,200 individuals, which is about ten percent of the total.  Among other things, this would help to close the wide gap in corrections expenditures between Wisconsin and Minnesota.

Surprisingly, the two states have almost exactly the same disparity ratio in their probation populations: 4.2 for Minnesota and 4.3 for Wisconsin.  Because probation is a much more common disposition than imprisonment in both states (overwhelmingly so in Minnesota), the probation numbers suggest that disparities in Wisconsin and Minnesota are similar in the early stages of the criminal process (arrest, charging, conviction), but that Wisconsin’s disparities accelerate more rapidly than Minnesota’s in the latter stages (sentencing and revocation of community supervision).

In any event, at whatever stage of the process they arise, it is not clear what one should make of racial disparities.  A great deal of research has been done to try to determine whether the disparities are warranted (i.e., due to a greater crime-proneness among blacks or a tendency to commit more serious crimes) or unwarranted (i.e., due to conscious or unconscious racial bias in the design or implementation of criminal laws).  Reviewing this research, Rocque concludes:

It is fair to say that most recent studies conclude that racial disparities in the CJS [criminal justice system] reflect both differential behavior and treatment.  Even those studies suggesting that discrimination exists in the CJS grant that much of the racial disparities found can be explained by “legitimate” factors.  (299)

I reached a similar conclusion in a recent article discussing racial disparities in drug enforcement.

As Rocque also points out, however, it is too simplistic to think of racial disparity in either/or terms: either caused by black criminal conduct or white official bias, as if these were wholly distinct social phenomena.  More likely, there are powerful synergistic relationships between disparate treatment, perceptions of bias, loss of trust of the police in black communities, crime, and actual bias.  Rocque provides a complicated diagram with causation arrows pointing back and forth among these phenomena (303).  The basic idea is that racial disparities can feed on themselves to the point that the warranted/unwarranted distinction loses much of its significance.  If this sort of a feedback effect is indeed playing itself out in Wisconsin and Minnesota, the result may be elevated levels of both crime and incarceration in black communities.  (As I discussed in this post, research on procedural justice suggests ways to break the feedback loop.)

In the next post in this series, I will add data from the third state, Indiana, to the mix.

Cross posted at Life Sentences.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates. Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation. Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light. In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime. If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Cross posted at Life Sentences.

In this initial post, though, I will focus just on the basics of the Wisconsin-Minnesota comparison.

So, here’s the essential story (as detailed in the chart that appears after the jump): Wisconsin incarcerates many more people than Minnesota, while Minnesota puts many more individuals on probation.  The two states have about equal levels of crime, and Minnesota actually has a larger percentage of its population under supervision (that is, either incarcerated or on probation or parole release).  However, because incarceration is so much more expensive than community supervision, Minnesota’s corrections budget is much smaller than Wisconsin’s (about $99 per resident, versus Wisconsin’s $234 per resident).  Given the similarity of the two states’ crime rates, it appears that Minnesota’s probation-based strategy is delivering more bang for the buck than Wisconsin’s.

Wisconsin’s prison population (and imprisonment rate) is more than twice Minnesota’s.  The jail population of the two states reflects a similar disparity, as does the parole/extended supervision population.  The probation population, though, is almost exactly the reverse, with Minnesota having more than twice as many defendants on probation.  In fact, Minnesota’s probation numbers are so high that the state’s total supervised population actually exceeds Wisconsin’s.  (I’m using 2005 data for much of this because that is most recent year for which we were able to find jail statistics.)

Here’s the key number: 30 percent of Wisconsin’s supervised population is incarcerated, as compared to only 11 percent of Minnesota’s.  On their face, anyway, these numbers seem to indicate a fundamentally different approach to sentencing in the two states.

To be sure, the difference might be illusory if the states actually had important differences in the severity of the crimes they sentenced.  Although the overall crime rates might be about the same, perhaps Wisconsin’s offenders commit more serious offenses, which could certainly justify a heavier reliance on incarceration.

Wisconsin does indeed have a higher rate of violent crime, but the difference is small — nowhere near the wide disparity in incarceration rates.  The homicide rate is more markedly different than the overall violent crime rate, but again the disparity falls well short of the incarceration disparity.

I’m not quite sure what to make of the final two rows in the chart below.  The first indicates that Minnesota actually incarcerates more people in juvenile detention facilities than Wisconsin.  Does that mean that Minnesota’s juvenile system is harsher than Wisconsin’s?  That Wisconsin is more prone to prosecute juveniles as adults?  That juvenile crime rates are higher in Minnesota?

The second number is much more striking: there are many more admissions to drug and alcohol treatment facilities in Minnesota than Wisconsin.  It’s not clear what relationship, if any, these numbers have to incarceration rates.  It may be, though, that the high treatment rate in Minnesota is a partial cause and/or an effect of the high probation rate, given the linkages between probation and treatment.

The next post in this series will consider racial disparities in Wisconsin and Minnesota.

Cross posted at Life Sentences.

As hoped, crime has indeed gone down considerably since 2007: violent crime is down 24%, and property crime is down 21%. Whether and to what extent the increased-stops strategy has caused the crime drop is uncertain — the MPD has also made some other significant changes in the past four years, and, in any event, crime has been dropping nationwide — but the causal claim strikes me as at least facially plausible. Providing some additional support is a month-by-month breakdown of auto theft and robbery data: in general, in months when stops have lagged, auto thefts and robberies have gone up; in months when stops have increased, auto thefts and robberies have dropped.

But safety has a cost.

Citizens are being stopped by the police tens of thousands more times now per year than they were in 2007. The great majority of these stops do not result in an arrest, suggesting that most who suffer the inconvenience and embarassment of a stop are not guilty in any substantial way. Moreover, because of the racial demographics of the high-crime neighborhoods in which stops are concentrated, African-Americans bear a greatly disproportionate share of the inconvenience and embarrassment relative to their share of the general population.

There is some risk that such racial disparities may prove counterproductive to the goal of enhancing police legitimacy and decreasing crime in the targeted neighborhoods. (See, for instance, this post, which discusses concerns about the potential impact of racial profiling on police effectiveness.)

Yet, as far as I can tell, there has yet to be any significant backlash against the disparities or the underlying strategic choices.

This brings me to what may be the most surprising aspect of the MPD data: despite the huge increase in the number of coercive police-citizen contacts, the number of citizen complaints is down by more than 44%.

What gives?

The cynical hypothesis would be that the MPD is doing something to discourage or impede complaints. However, I’m not aware of any evidence of this, and, in fact, I understand that steps have been taken in recent years to facilitate complaint-filing.

Another possbility is better training and supervision of the officers in the street. As noted above, improving police-community relations has been a major priority of the current MPD leadership, and some of that must be filtering down the ranks, which could result in greater restraint and more respectful treatment during stops.

Still another possibility is that the innocent people targeted for stops are actually willing to accept the inconvenience in view of the benefits of the MPD’s strategy. As the MPD data demonstrate, African-Americans are disproportionately victimized by crime in the city, and African-Americans are disproportionately identified as suspects. African-Americans might thus see the increased number of stops in their neighborhoods as a rational and even reassuring response to the high rates of victimization they experience. In turn, this positive perspective on the strategy might lead to greater tolerance of tactics that might otherwise lead to complaints.

One final possibility that I find particularly fascinating is framing effects. The numbers are not included in the data I linked to above, but I have seen elsewhere that the number of tickets written by the MPD has stayed relatively constant, even as the number of traffic stops has increased so dramatically. Most stopped motorists get off with a warning. For many, this must profoundly color their emotional response to the stop (I know it would for me). Instead of “I’m so irritated with this cop who interrupted my day because I was going a few miles per hour over the limit,” the dominant feeling is “I’m so relieved that this nice cop gave me a break.” Whatever else is going on, routinely showing lenience to stopped motorists must surely contribute in some measure to public acceptance of the increased-stops strategy. It must also help to defuse some of the anger that might otherwise lead to complaints.

Disclaimer: I serve as a member of the Milwaukee Fire and Police Commission, which is a civilian oversight agency for the MPD. However, I did not have any role in the development of the increased-stops strategy.

A lengthy video of MPD Chief Ed Flynn explaining the strategy and responding to racial disparity concerns is here.

Cross posted at Prawfs.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

It requires some effort to appreciate a difference between the standards, but the formulations do indeed suggest two distinct ways of performing the analysis.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That is because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.

Cross posted at Life Sentences.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults.  This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision.  (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”)  The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010.  Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation?  The report provides no definitive answers, but some clues are apparent.

For instance, the probation drop is not a uniform national phenomenon:

Declines in California, Florida, Minnesota, Texas, and Maryland accounted for 54% of the total decrease among states whose probation population declined during 2010. California (down 18,854 probationers) and Florida (down 11,228) accounted for almost a third of the decrease.

Why are these states leading the way in reducing probation populations?  Five possibilities suggest themselves: (1) crime rates are down, (2) fewer crimes are resulting in arrest and conviction, (3) fewer convicted criminals are being sentenced to probation (which might result from greater lenience or greater harshness), (4) probation terms are shorter, or (5) more probationers are being revoked and incarcerated.

An examination of the crime data in the Big Five states for probation reductions lends support to the first hypothesis.  According to the FBI’s uniform crime data, each of the Big Five experienced drops in both violent and property crime in 2010.  In fact, of the Big Five, two (Florida and Texas) experienced drops in crime rate that far exceeded the decline in the probation population, which suggests that the probation decline in those states may be entirely driven by reduced crime.  The California and Maryland probation drops are also probably largely driven by crime reductions, although other factors also seem to be at play.  California’s reduction in violent crime slightly exceeded the drop in its probation population, but its property crime reduction was much less.  Maryland had large drops in both violent and property crime, but neither reduction matched the whopping 7.2 percent decline in the state’s probation population.

Minnesota is the big mystery among the Big Five.  The state led the nation with a 7.8 percent drop in its probation population, but its reductions in violent and property crime were only 2.8 and 2.0 percent, respectively.  This suggests that the probation decline results mainly from decisions being made in the criminal-justice system, rather than from crime-rate reductions.

Also mysterious to me are the large increases in the probation populations in Alabama, Pennsylvania, Georgia, and Arizona.  Crime rates declined in all four states in 2010; indeed, the reductions far outstripped the overall national crime-rate decline in two of them (Alabama and Arizona).  Perhaps these states are systematically diverting more offenders from prison as a cost-cutting measure in these fiscally challenging times.

On a national level, it appears that reduced length of stay on probation may also be contributing to the population reduction, with a drop of about 1.4 percent in mean length of stay between 2008 (22.0 months) and 2010 (21.7 months).  The incarceration rate for probationers has remained steady at nine percent during that time, so reduced length of stay does not seem a consequence of higher revocation rates.  More generally, there has been a trend toward more positive outcomes for probationers: between 2006 and 2009, the percentage of probationers who completed their terms and were discharged increased from 58 percent to 65 percent.  Of course, this may result from reduced supervision instead of improved performance.

Interestingly, the reduced rovocation rate for probationers mirrors a similar trend for parolees: the rate of parolees who exited supervision and returned to incarceration dropped between 2009 (24 per 100 parolees) and 2010 (22 per 100), continuing a trend that has been observed since 2006 (26 per 100).

This reduction in the rate of parole revocations does indeed likely result, at least in part, from reduced supervision:

While most of the characteristics of the parole population remained unchanged, some changes were observed during 2010. Active supervision requires parolees to report regularly to a parole authority in person, by mail, or by telephone. This type of supervision decreased as a percentage of all parolees, from 85% in 2009 to 82% in 2010. A corresponding increase in the percentage of parolees on inactive status, excluded from regular reporting but still on parole, was observed between 2009 (4%) and 2010 (7%).

Cross posted at Life Sentences Blog.

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.  

First, the court strongly embraced self-motivated rehabilitation as a sentencing factor.  Here’s some of the language:

The Supreme Court recently reiterated “the principle that ‘the punishment should fit the offender and not merely the crime.’” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), quoting Williams v. New York, 337 U.S. 241, 247 (1949). “Highly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Pepper, 131 S. Ct. at 1235, quoting Williams, 337 U.S. at 247. This aim is codified in 18 U.S.C. § 3553(a), which requires that any sentence imposed be “sufficient, but not greater than necessary” to serve the sentencing goals of punishment, deterrence, protection of the public, and rehabilitation, and which requires the court to consider “the history and characteristics of the defendant.” Adequate consideration of a defendant’s evidence of rehabilitation fits squarely within these parameters. Demonstrated self-motivated rehabilitation is direct and relevant evidence of “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; [and to] provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).

The power of evidence of self-rehabilitation was evident inGall, where the Supreme Court noted that it was reasonable for the district court to attach “great weight” to a defendant’s decision to change his life and withdraw from a drug distribution conspiracy: “Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant’s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.” 552 U.S. at 57. Such self-motivated rehabilitation “lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id. at 59.  (12-13)

It’s interesting to see such reliance on the Supreme Court’s recent decision in Pepper.  As I discussed here, Pepper strikes me as a potentially significant break from the Court’s recent federal sentencing jurisprudence.  If lower courts were to read Pepper for all it’s worth, we might start to see a real shift in federal sentencing practices.

Also notable in Robertson is the fact that the defendants’ arguments were not entirely passed over in silence, as they were in Cunningham.  Whereas some Cunningham-type cases involve district judges who literally say nothing to indicate that they have even heard a defendant’s argument, the judge in Robertson expressly indicated some awareness of the facts emphasized by Mr. and Mrs. Robertson:

Concerning the Robertsons’ criminal histories, the court acknowledged that Henry had not committed any crimes since 2002 and that Elizabeth lacked any criminal history. But other than noting, without further detail or explanation, that Elizabeth had provided “excellent service . . . as a professional in the medical field,” it is not apparent that the sentencing court considered the Robertson’s unusually strong evidence of self-motivated rehabilitation over the past ten years. Because the court’s silence makes it impossible to discern that it appropriately balanced the Robertsons’ rehabilitated lives and characters against the seriousness of their offense for purposes of 18 U.S.C. § 3553(a), we find this minimal treatment to be insufficient.

. . . The probation office and the government agreed that it would be appropriate to treat Henry’s criminal history as overstated due to the passage of time, yet the district court’s only acknowledgement of this argument was its comment that Henry was not “youthful or immature” when he committed the reckless driving offense in 2002.  (15-16)

I think it unfortunate that the Cunningham rule is sometimes treated as satisfied when there is mere acknowledgement of a defendant’s argument, as opposed to substantive responsiveness.  I’m glad to see Robertson suggesting a more rigorous approach to Cunningham.

In this regard, I thought it interesting that the Seventh Circuit made nothing of the fact that “the district judge agreed to modify Elizabeth’s date to report to prison to allow her to continue to work as a nurse long enough to become eligible for retirement benefits.”  (15 n.3)  This contrasts with the Sixth Circuit’s opinion in United States v. Liou, 491 F.3d 334 (6th Cir. 2007), in which the district judge’s decision to give the defendant a more favorable report date was held to constitute an adequate response to the defendant’s argument for a below-guidelines sentence.

An interesting question about Robertson is why the Seventh Circuit formally treated the district judge’s error as merely procedural, remanding for a resentencing at which the original sentence could be reimposed.  It is seems clear enough that the panel felt the district judge erred substantively, not just procedurally, in imposing multiyear prison sentences on two defendants who led exemplary lives for a decade after their crimes were committed.  For instance, it’s hard not to read this view between the lines of the final words of the Seventh Circuit’s opinion: “the [district] court should carefully weigh and explain its consideration of the Robertsons’ evidence of self-motivated rehabilitation.”  (17)  Why not end the possibility of misunderstanding or mischief at the district court level and forthrightly hold that a guidelines sentence would be substantively unreasonable in this case?

Appellate courts have been loathe to hold guidelines sentences substantively unreasonable.  (As a side note, it is actually a debatable question whether the Robertsons’ sentences can be fairly characterized as guidelines sentences, since their guidelines ranges were calculated using a newer and harsher version of the guidelines than existed at the time they committed their crimes.)  This reluctance doubtlessly owes much to the presumption of reasonableness that may be accorded guidelines sentences under Rita v. United States, 127 S. Ct. 2456 (2007), and to the underlying premise of Rita that the guidelines embody the research and expertise of the Sentencing Commission.  Appellate courts should recognize, however, that is does no violence to the logic of Rita to hold guidelines sentences substantively unreasonable in unusual circumstances that the Commission did not contemplate in crafting the guidelines.  To start holding more guidelines sentences substantively unreasonable — where there are sound, principled grounds for doing so — would in effect start to build the common law of sentencing for which many scholars have been advocating for a very long time.  Such a common law holds out the hope for greater transparency, consistency, and proportionality in federal sentencing.

But are there persuasive grounds for holding the Robertsons’ sentences substantively unreasonable?  But my lights, this is a complex and uncertain question.  The underlying principle would be that defendants who have led productive, crime-free lives for many years before being charged present almost no recidivism risk, rendering multiyear prison terms a needless burden on the both the defendants and our overcrowded federal prison system.

However, as someone who believes that punishment should be based more on the severity of the crime than the risk of the criminal, this principle leaves me a little cold.

On the other hand, as I’ve been exploring in some of my recent writing, I also think that retributive approaches to punishment may be compatible with crediting defendants for acts that have a penitential character.  I don’t know, though, whether anything the Robinsons did could fairly be characterized as penitential.

Aside from the questions relating to self-motivated rehabilitation, Robinson also raised a couple of other interesting questions.  First, the Seventh Circuit adhered to its precedent in holding that the Ex Post Facto Clause is not violated when defendants are sentenced under a harsher version of the guidelines adopted after their crimes were completed.  Several other circuits take a contrary view, which may make the question ripe for Supreme Court consideration.

Second, the Seventh Circuit noted, but felt it did not have to resolve, continuing uncertainty over whether the aggravating role enhancement of U.S.S.G. § 3B1.1 requires that the defendant have exerted control over other participants in a criminal activity.

Cross posted at Life Sentences.

The two cases are Miller v. Alabama (opinion below: 63 So. 3d 676 (Ala. Crim. App. 2010)) and Jackson v. Hobbs (2011 Ark. 49).  The question granted in each case is the same, and they are to be argued together.  It appears that the defendants are presenting a categorical challenge to the constitutionality of “LWOP” as applied to fourteen-year-olds.

In Graham, the Court used the categorical approach to Eighth Amendment analysis for the first time outside the death-penalty context, so we know that the Court is open to the idea of protecting particular classes of offenders from LWOP.  But the Court also heavily emphasized the homicide-nonhomicide distinction — are the justices prepared to reject or blur that bright line so soon after drawing it?

In the defendants’ favor is their very young age.  There are precious few fourteen-year-olds who are convicted as adults of homicide, so the Court could carve out the very young from the Graham distinction without affecting many cases.  But that will just invite a fresh set of challenges from fifteen-year-olds, and then sixteen-year-olds, and then seventeen-year-olds.  Any line drawn based on chronological age is bound to be somewhat arbitrary, and the Court may not want to head down a path that will eventually require such a line to be drawn.

There may also be distinctions to be drawn based on the type of homicide crime.  In this regard, Miller seems differently situated than Jackson (which may explain why the Court took both cases for argument on the merits).  Both were convicted of capital murder, but Jackson on a more technical, felony-murder theory; he was a minor accomplice in an armed robbery that went bad.  Miller, however, was more directly responsible for his murder and even made a statement indicating an intent to kill.  It might be possible in the juvenile LWOP context to draw a protective rule for relatively low-culpability accomplices, much as the Court has already done for adults in the death-penalty setting.

There are a lot of different directions the Court might go in these two cases.  However they turn out, the one thing for certain is that Justice Kennedy will be in the majority.

Cross posted at Life Sentences Blog.

• Overarching Themes
• Fourth Amendment: Kentucky v. King
• Fourth Amendment: Davis v. United States
• Miranda: J.D.B. v. North Carolina
• Right to Counsel: Turner v. Rogers
• Ineffective Assistance: Pinholster and Moore
• Confrontation Clause: Bullcoming and Bryant
• Other Cases
• Last Term by the Numbers

But down the road and even now in places other than eastern Wisconsin? Cutbacks in federal spending could and sometimes are translating into decisions not to prosecute cases, Santelle said. 

Speaking Tuesday at an “On the Issues” session at Eckstein Hall, Santelle told Mike Gousha, the Law School’s distinguished fellow in law and public policy, that the staff he oversees in offices in Milwaukee and Green Bay, has been reduced from about 80 several years ago to about 70 now. More cuts may lie ahead, he said.

But so far, the reduction has been accomplished without affecting decisions on who to prosecute, Santelle said. That hasn’t been true in offices of US Attorneys in some places around the country, where decisions on matters such as “smaller” drug cases or white collar financial crimes are being shaped by whether the office has adequate resources. He said a $1 million bank fraud in some instances may be below the threshold a prosecutor has set for bringing a case to court, given practical limits on how much can get done.

Santelle said the annual budget of his office is about $8 million – and prosecutions generate about 10 times that each year in penalties, fines, or repayment to the government for improper spending. Santelle said that while politicians understand that the US Attorney’s Office is actually a money-maker for the government, it is hard to expect prosecutors will be spared from across the board cuts.

Santelle’s hour-long session before about 75 people touched on a wide-range of issues, from the high priority put on national security work, even in eastern Wisconsin, where there have, fortunately, been no terrorism episodes, to the positive sides of a legal career in federal service. Santelle has worked for the Justice Department since1985 and has been US Attorney for eastern Wisconsin since 2010.

Santelle was appointed by President Barack Obama, a Democrat, and, in an era of strong political partisanship, he agreed that there have been more matters brought to his office by political activists on either side of the spectrum who think people on the other side have done something wrong. But he had no hesitation in labeling the way prosecutors do their work as “apolitical.” He said he had never been involved in something such as a decision on a prosecution where partisan politics was a factor in how to proceed.

He said, though, that changes in the presidency can have an effect on priorities of the Justice Department, such as how much attention is given to enforcement of environmental regulations. 

Santelle said that a tighter supply of cocaine was driving up prices on the street. For prosecutors, that means more crimes being committed where the drugs involved are pills or other controlled substances. Gousha asked him his thoughts on public opinion polls that show wide support for decriminalizing marijuana use. Santelle said he should be counted on the side of those who oppose that. Marijuana is, in his view, not just a recreational drug. He said marijuana that is being sold today is often far more potent than what was available a generation ago and has more serious effects on users.

Overall, Santelle said, the level of cooperation among law enforcement officials has improved significantly from the past, when different federal agencies kept information from each other and there was limited cooperation between federal and local prosecutors or officers. He said there is generally good communication between law enforcement representatives working in the Milwaukee area, and he talks frequently to people such as Milwaukee County District Attorney John Chisholm. “You benefit tremendously from the fact that law enforcement talks to each other,” Santelle said.

The session with Santelle can be viewed by clicking here.

On the whole, police should regard the report as good news. Here are some of the basic findings.

Nearly 17 percent of the population had face-to-face contact with the police in 2008. This is down from 21 percent in 2002. The most common reason for contact with police in 2008 was being a driver in a traffic stop (44 percent of contacts). Despite the overall drop in police contacts since 2002, the number of drivers stopped actually increased by five percent over the 2002-2008 period. (Query whether this reflects a more widespread adoption of the Milwaukee Police Department’s recent strategy of deliberately increasing this sort of police-citizen contact.)

What has really driven the overall drop is a huge decrease in the number of people reporting crimes to the police or otherwise requesting police assistance. Presumably, this is a reflection of declining national crime rates, although (a less positive interpretation for the police) it may also partially reflect less confidence in the police to respond effectively to calls for help.

Here’s the really good news, though. First, nearly 90 percent of those who had police contacts felt that police acted properly. Second, an even slightly higher percentage felt that police acted respectfully. Third, nearly 85 percent of drivers who were stopped thought that police had a legitimate reason for the stop. Finally, fewer than two percent of those with police contacts reported that police used or threatened the use of force against them.

Despite the good news, police ought to take note of some racial disparities in the responses.  The disparities are not dramatic, but they are consistent. For instance, while 92.7 percent of white respondents said they were treated respectfully by the police, the corresponding number for blacks was 87.4 percent. (6) Likewise, 90.8 percent of whites said that police acted properly, but only 84.2 percent of blacks. (6) Moreover, in some categories, Hispanics had even more negative views. For instance, among those who were investigated by the police, only 62.3 percent of Hispanics said the police acted properly, as against 69.6 percent of blacks and 82.3 percent of whites. (6)

As to traffic stops, 86.3 percent of whites said they were stopped for a legitimate reason, but only 73.8 percent of blacks gave the same answer. (8) Moreover, black drivers were three times as likely as white drivers to be searched during a traffic stop. (1) Black and white drivers were actually about equally likely to be stopped, but, once stopped, it appears that blacks were much more likely to experience a significant intrusion by police. The data thus provide a nice reminder that looking only at numbers of stops misses important differences in the character of different stops.

As to force, 1.2 percent of whites reported a threat or use of force by the police, as against 3.4 percent of blacks.

Although not broken down by race, I also found some of the other search-related information interesting. According to the survey respondents, traffic-stop searches were rarely successful; only 8.4 percent of searches actually produced incriminating evidence. (11) Additionally, most drivers who were searched did not think that police had a legitimate reason for the search. Depending on the type of search, perceptions of legitimacy ranged from 20.7 percent to 36.1 percent. (10) Data of this nature should perhaps play some role in the Fourth Amendment reasonability analysis for stop-related searches.

Cross posted at Life Sentences.