Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.

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.

Continue ReadingIntent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

A Tale of Three States, Part 4: The Racial Threat Hypothesis

In the previous post in this series, I highlighted a wide gap in the incarceration rates of Indiana and Minnesota, with Wisconsin in the middle.  The ordering of the three states from highest incarceration rate to lowest corresponds with the ordering from highest rate of violent crime to lowest.  However, for reasons I explained in the previous post, I don’t think  we ought to end our analysis with the simple assertion that high crime drives high incarceration.  For one thing, there is Minnesota: with a crime rate only a little lower than Wisconsin’s, Minnesota has an incarceration rate that is much lower.  There must be other factors at play besides just the crime rate to account for Minnesota’s incarceration rate.  For another, to focus on the crime-incarceration connection begs the question of what drives the very different crime rates of the three states.

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:

IN

  WI

  MN

Black Population (2010)

591,397

359,148

274,412

Blacks as Percentage of Total Population (2010)

9.1%

6.3%

5.2%

Imprisonment Rate (2010, per 100,000)

459.9

387.2

177.8

 

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

Continue ReadingA Tale of Three States, Part 4: The Racial Threat Hypothesis

A Tale of Three States, Part 3: Harsh Hoosiers

In the first post in this series, I explored the large gap between the incarceration rates of Minnesota and Wisconsin. In the second, I discussed racial disparities in the incarcerated populations of the two states. The disparities in both states are wide, although Wisconsin’s are somewhat larger. In this entry, I add a third state, Indiana, to the statistical comparisons. As another medium-sized midwestern state, one might expect that Indiana would have criminal-justice numbers that are similar to Minnesota’s and Wisconsin’s. Indiana’s numbers, however, point to a criminal-justice sustem that is much larger and harsher than those of its northern neighbors.

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.

Continue ReadingA Tale of Three States, Part 3: Harsh Hoosiers