Earlier this month, in Dean v. United States, the Supreme Court ruled that federal sentencing judges retain some discretion to soften the notoriously draconian sentencing scheme of 18 U.S.C. §924(c). The statute establishes a mandatory prison term when a defendant uses or possesses a firearm in connection with a violent or drug trafficking crime. Unlike most minimums, though, this one must be imposed to run consecutively with any other sentences imposed at the same time. Thus, for instance, a defendant convicted of both a robbery and possession of a firearm during the robbery must get at least five years on top of whatever sentence is ordered for the robbery.
But what if a judge—in light of all of the facts of the case and the circumstances of the defendant—decides that five years is a sufficient punishment for the crime? Could the judge impose a sentence of just one day on the robbery count, so that the total sentence does not exceed what is necessary? In other words, in sentencing for the robbery count, can the judge take into consideration what she will have to impose for the §924(c) count?
Yes, said the Supreme Court in Dean. Continue reading “A Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed”
Hey, Making a Murderer fans, Marquette alumnus (and prolific author) Michael Cicchini has a provocative new book out on the Steven Avery case: Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer. I look forward to reading it. I expect more of Cicchini’s customarily trenchant criticism of the criminal justice system.
Juvenile courts were invented at the end of the nineteenth century and spread rapidly across the U.S. Proponents argued that juvenile offenders were more readily rehabilitated than adults, and should be handled through a different court system that focused on treatment and spared offenders the permanent stigma of a criminal conviction. By the 1990s, though, attitudes toward juvenile offenders had grown more pessimistic and punitive. Although juvenile courts were not eliminated, most states adopted reforms that either reduced the maximum age for juvenile court jurisdiction or facilitated the transfer of some juveniles to adult court.
More recently, the pendulum of public opinion has begun to swing back in favor of juvenile courts. Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire, and South Carolina have all expanded the jurisdiction of their juvenile courts. There has also been a push in Wisconsin to raise the age of majority and keep some seventeen-year olds in juvenile court. A few states are even considering raising the age of majority to twenty-one.
Two intriguing new articles explore some of the social consequences of channeling more young offenders into juvenile court. Continue reading “Juvenile Court or Adult? New Research on the Consequences of the Decision”
My new book, The Failure of Sentencing Reform, is now out. (Publisher webpage here; Amazon here.) The book is a sort of coming full circle for me. Back in 2002, near the start of my career as a law professor, I wrote a short essay entitled “The New Politics of Sentencing,” in which I heralded bipartisan sentencing reforms that had recently been adopted in a handful of states. The reforms focused particularly on reversing excessive drug imprisonment and resulted in large part from the fiscal pressures created by mass incarceration. “Faced with crushing budget deficits,” I predicted, “states will no doubt continue to look to corrections as a source of cost-savings.”
Fifteen years later, my prediction has been confirmed: nearly all of the states have now adopted reforms that roll back mandatory minimums, permit earlier release from prison, or promote alternatives to incarceration. Yet, the national prison population stands today essentially where it was in 2002. This is the failure I explore in the book. In particular, I highlight two fundamental flaws with reform efforts to date: (1) an excessive emphasis on moving non-violent drug offenders out of prison, even though this population had not been a major driver of mass incarceration; and (2) an excessive reliance on prosecutorial, judicial, and correctional discretion, with little attention to the fiscal and political considerations that push officials to err on the side of incarceration.
Jury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.
Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.
Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails. Continue reading “Supreme Court Permits Some Light Into the Black Box of Jury Deliberations”
To judge by some of the political rhetoric last fall, violent crime must be surging in our nation’s cities. Is that true? The answer may depend on which city you are talking about, and which neighborhood within that city.
Consider the contrast between Chicago and New York. The Windy City had about 762 homicides in 2016, while the Big Apple had just 334. The difference is shocking, especially when you consider that New York has three times Chicago’s population.
To some extent, the contrasting figures from 2016 reflect longstanding trends. Although murders did spike in Chicago last year, New York has been doing better than Chicago on this score for a long time. The two cities had essentially identical per capita homicide rates in the late 1980s, but New York’s fell much faster and further than Chicago’s in the 1990s. New York has maintained a wide advantage ever since.
Still, the dramatic widening of that advantage in 2016 should be of great concern to Chicagoans. The chart below indicates the trends in recent years, based on FBI data. Note that the two cities moved in sync from 2013 through 2015: homicides down the first year, basically unchanged the next, and then up a little in 2015. However, in 2016, even as Chicago’s homicides shot up, New York’s dropped back down to where they had been in 2013 and 2014.
One should not get the sense, however, that one faces a dramatically elevated risk of violence throughout the Windy City. Continue reading “Chicago, New York Heading in Opposite Directions on Crime; Where Does Milwaukee Stand?”
Tomorrow, Jan. 17, I’ll be at Boswell Books in Milwaukee at 7:00 p.m. for an event to mark the release of my new book, Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. All are welcome. More information is here. Thanks to the American Constitution Society for cosponsoring the event.
Ringing in the new year, the U.S. Bureau of Justice Statistics recently released its data on prisoners in the United States in 2015. After rising consistently for about four decades, the U.S. prison population (state and federal combined) peaked at a little over 1.6 million in 2009. Since then, the population has declined steadily, but very slowly. For 2015, the total was a little over 1.5 million, or about 35,000 less than 2014. The continued reductions are encouraging, but must be kept in perspective: the population remains many times above its historic norms. The current rate of 458 prisoners per 100,000 U.S. residents is over four times greater than the long-term rate of about 100 per 100,000 from before the imprisonment boom. We are still very much in the era of mass incarceration.
The Wisconsin numbers continue to be lower than the national norms, but are moving in the opposite direction. At yearend 2015, Wisconsin’s prison population numbered 22,975, up 1.7 percent from 2014. This amounts to 377 prisoners per 100,000. By comparison, Minnesota’s rate was just 196 per 100,000.
Here are a few additional observations:
Continue reading “U.S. Prison Population Continues Slow Decline; Wisconsin’s Inches Up”
Sixty years in prison may seem like a long time for a crime not involving homicide, but such was the term Nathan Brown received in the Northern District of New York for producing and possessing child pornography. Brown’s sentence was premised, in part, on the psychological harm done to three children whom Brown photographed in sexually graphic ways. However, the record only provided clear support for harm to two of the children; the third was apparently photographed while sleeping and had no recollection of the incident afterwards. Last June, a panel of the Second Circuit initially ruled (2-1) that Brown should be resentenced so as to ensure that his punishment did not result from an erroneous understanding of the facts. However, the same panel of the Second Circuit reversed itself earlier this month, affirming Brown’s sentence as originally imposed.
The panel’s switch resulted from a change of heart by Judge Robert Sack, who ultimately concluded that the long sentence was reasonable and a resentencing not likely to lead to a different outcome. Although backing away from the panel’s initial holding, Sack apparently remained troubled by aspects of the district judge’s “rhetorical overkill” at Brown’s sentencing. Sack elaborated on his concerns in a thoughtful concurring opinion. Highlighting what seems an important challenge in the sentencing of certain types of cases involving highly disturbing offenses, Sack’s opinion merits quoting at length: Continue reading “Sentencing and Disgust”
It is widely known that many offenders find themselves in trouble with the law again within a few years of their release from prison, but do the recidivism data reflect specialization among criminals? The question has implications for sentencing, among other things. Judges appropriately take risk of reoffense into account when setting prison terms, but, in assessing these risks, it is important to know not only whether a defendant is likely to commit another crime, but also what crimes the defendant is most likely to commit. We may want to keep our likely future murderers and rapists behind bars as long as possible, but we probably feel quite differently about potential future shoplifters and disorderly drunks.
The U.S. Bureau of Justice Statistics is an excellent resource for national recidivism trends. As discussed in this earlier post, the BJS’s most recent major report in this area appeared in 2014. Earlier this week, the BJS issued supplemental tables that speak to the specialization question.
In brief, the evidence points to a modest degree of specialization, varying considerably by offense type.
Consider sexual assault, for instance. Continue reading “Recidivism and Criminal Specialization”