{"id":18409,"date":"2012-09-07T20:41:22","date_gmt":"2012-09-08T01:41:22","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18409"},"modified":"2012-09-09T12:26:31","modified_gmt":"2012-09-09T17:26:31","slug":"federal-criminal-cases-1928-1930-surprisingly-similar-to-today-but-also-very-different","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/09\/federal-criminal-cases-1928-1930-surprisingly-similar-to-today-but-also-very-different\/","title":{"rendered":"Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different"},"content":{"rendered":"

\"\"<\/a>In anticipation of the\u00a0conference here next month on the Wickersham Commission<\/a>, I\u2019ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.\u00a0 One that holds some interesting surprises is the \u201cProgress Report on the Study of the Federal Courts.\u201d\u00a0 The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.<\/p>\n

One thing that strikes me as remarkable is the almost complete absence of trials \u2014 the system was dominated then, as now, by guilty pleas. \u00a0Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970\u2032s. \u00a0In that decade, guilty plea rates hovered between 77% and 82%. \u00a0After 1981, the rate climbed steadily, reaching\u00a0more than 96% of adjudicated cases in 2009.\u00a0<\/a>\u00a0But this, apparently, is not a new phenomenon.\u00a0\u00a0Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial. \u00a0That\u2019s right, only nine trials in three years, or 1.5 criminal trials per judge per year. \u00a0(Eight of these trials, by the way, took less than one full day to try.) \u00a0The guilty plea rate in adjudicated cases was over 98%.<\/p>\n

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%. \u00a0(See Ron Wright\u2019s helpful data compilation\u00a0here<\/a>.) \u00a0So, Connecticut seems not to have been terribly atypical.<\/p>\n

The Connecticut data are, in fact, quite reminiscent of a modern\u201cfast-track\u201d plea-bargaining system.<\/a>\u00a0\u00a0<\/p>\n

 <\/p>\n

The fast-track similarities\u00a0don\u2019t end\u00a0with the high rate of guilty pleas.\u00a0 Out of the 740 cases, there were only 46 motions to quash or to suppress evidence.\u00a0 And a\u00a0majority of the cases finished the day the indictment or information was filed, and 85% in less than two months.\u00a0 The indications are of a system that essentially dispenses with formal judicial process \u2014 much as we see today, especially in the Mexican border districts, in which fast-track procedures were first developed in order to handle crushing immigration caseloads.<\/p>\n

Of course, federal courts in the 1920\u2032s faced their own crushing caseload problem: Prohibition.\u00a0\u00a0In 1919, when the National Prohibition (Volstead) Act was adopted, fewer than 21,000 defendants were convicted of federal crimes.\u00a0 By 1932, the number had risen to more than 82,000.\u00a0 This is only a little less than the\u00a087,000 convictions in federal court in 2009 \u2014 a shocking fact, when one considers that the U.S. population has more than doubled in the interim.<\/p>\n

The conventional story about federalization of criminal law tends to look to the late 1960\u2032s or early 1970\u2032s as a pivotal period, with the federal government both assuming\u00a0a much higher level of responsibility for basic street crime and greatly expanding the reach of criminally enforceable business regulations.\u00a0 But it is clear that Prohibition was no less a time of extraordinary federalization than our contemporary era.\u00a0 (After the repeal of Prohibition, by the way, annual federal convictions immediately dropped below 42,000 and stayed there \u2014 often even below 30,000 \u2014 until 1987.)<\/p>\n

It seems likely that the extraordinary increase in federal caseloads in the 1920\u2032s contributed to the lack of formal process indicated in the Connecticut data.\u00a0 Circumstances forced the lawyers and judges to figure out how to handle cases in a highly efficient manner, and somehow\u00a0they managed to do so. (Note, too, that national caseloads and guilty plea rates began to subside in tandem when the Volstead Act was repealed, lending further support to the apparent linkage between the two.)<\/p>\n

The Connecticut data reported by the Wickersham Commission, which are purely numerical, do not make clear what greased the wheels of justice.\u00a0 One possibility, as the report suggests, is that prosecutors and\/or judges were giving defendants such huge breaks for prompt guilty pleas that defendants could not say no (see, e.g.,\u00a0today\u2019s fast-track inducements).\u00a0 It would be interesting to know, then, how sentencing patterns varied between plea cases and trial cases.\u00a0 However, as the report also notes, there were so few trials in Connecticut between 1928 and 1930 that no conclusions can be drawn from the outcomes in those cases.<\/p>\n

In any event, I have thus far tried to highlight some unexpected similarities between then and now.\u00a0 There are, however, also some profound differences.\u00a0 Case composition is one.\u00a0 Today, the federal docket is dominated by drugs, immigration, fraud, and guns, which account for more than 86% of federal felony cases.\u00a0 By contrast, 78% of the cases in the Connecticut study were Volstead Act violations.\u00a0 Yes, there were drug cases in the 1920\u2032s, but they amounted to only 6% of the Connecticut docket.\u00a0 Other crime categories (postal offenses, counterfeiting, etc.) barely registered at all in the data.\u00a0 There were no immigration or gun prosecutions at all.<\/p>\n

Sentencing, too, gives us a dramatic contrast between the eras.\u00a0 A fine and suspended sentence was the single most common disposition in the Connecticut study, amounting to nearly 40% of the sentences imposed.\u00a0 Less than 22% of the sentences involved imprisonment.\u00a0\u00a0Among the imprisonment cases, the most common sentence length was less than one month.\u00a0 In all, more than 70% of the sentences of imprisonment were for six months are less.\u00a0 The single longest sentence was for 60 months.<\/p>\n

In 2009, by contrast, 78% of federal sentences were to prison, and the average term was 56 months.\u00a0 This is an extraordinary turnaround.\u00a0 The ratio of prison to nonprison sentences has been almost exactly reversed (78% non-prison in the old days, 78% prison today), and what is now the\u00a0average<\/em>\u00a0sentence length was only a shade below the\u00a0very longest\u00a0<\/em>in the Connecticut study.<\/p>\n

To be sure, the mild sentences in Connecticut must to some considerable extent reflect the peculiarities of the caseload.\u00a0 The crushing number of Volstead Act cases likely led to quite generous sentencing benefits for the overwhelming majority of\u00a0defendants who pled guilty.\u00a0 Additionally, public support for the Act was not strong \u2014 repeal was not far in the future \u2014 which may have also contributed to lenience at sentencing.\u00a0 Finally, it is striking that a great majority of the liquor cases were for simple possession.<\/p>\n

Yet, even outside the Volstead Act cases, the sentences were hardly draconian.\u00a0 The longest drug sentence, for instance, was 18 months.\u00a0 Average sentence today for drug felonies?\u00a0 82 months.<\/p>\n

Cross posted at Life Sentences.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In anticipation of the\u00a0conference here next month on the Wickersham Commission, I\u2019ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.\u00a0 One that holds some interesting surprises is the \u201cProgress Report on the Study of the Federal Courts.\u201d\u00a0 The heart of this report is a fascinating, 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