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.
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?”
Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.
The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.
Burrage nicely illustrates the tension. Continue reading “SCOTUS End-of-Term Roundup: Causation Cases”
Among the eleven biggest Midwestern cities, Chicago has experienced the largest drop in homicide rates over the past quarter-century, while Cincinnati has experienced the largest increase. The other nine cities are scattered between the biggest loser and the biggest gainer, reflecting a range of markedly different urban experiences with lethal violence since the mid-1980s.
This rather messy graph indicates the annual number of homicides (murder and other nonnegligent manslaughter) per 100,000 residents for each of the eleven Midwestern jurisdictions with a population of more than 250,000:
Other than Detroit’s position as the region’s perennial homicide champ, it is hard to discern any patterns in the mass of lines.
The following table provides a clearer picture of each city’s trajectory. Continue reading “Violence in the Heartland, Part IV: The Biggest Losers (and Gainers)”
I’m looking forward to the upcoming conference here, “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community.” The conference was inspired by a fascinating empirical study comparing the long-run experiences of family members of homicide victims in Texas, which has the death penalty, and Minnesota, which does not. Authored by Marilyn Peterson Armour and Mark S. Umbreit and forthcoming in the Marquette Law Review, the article concludes that the Minnesota family members achieved a higher level of physical, psychological, and behavioral health.
The conference kicks off with a keynote address by Armour herself at 4:30 on February 21. The following day will include several panels providing a diverse set of first-hand perspectives on the impact of homicide, capital punishment, and the criminal process on family members, lawyers, judges, and many others. Additional information about the conference is available here.
As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles. In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses. Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide. These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.
Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero. I think Caballero got things right, as far as it went, but the case left much open for future litigation. Continue reading “California Answers Some of the Graham/Miller Questions, Sort Of”
WBEZ in Chicago did an interesting series earlier this month comparing gun regulation, culture, and violence in the Windy City and Toronto. Although the two cities are the same size, the levels of gun violence are strikingly different, as are the police clearance rates. Here are the numbers:
■Toronto and Chicago both have a little less than 3 million residents. Toronto has 60 murders a year. Chicago has 450.
■There were 179 shooting deaths in all of Canada in 2009. Canada’s population was almost 34 million people. There were 376 shooting deaths in Chicago in 2009. The population of Chicago was less than 3 million.
■According to a Chicago Police Department annual report, in 2009 there were 461 murders and 160 clearances.
■The Chicago police department considers a case cleared when an offender has been arrested, charged and prosecuted or when the police are ready to arrest someone but something outside of the department’s control prevents an arrest from being made. The clearance rate is 34.7%. In Toronto in 2009 the clearance rate was 58.1% but they had fewer murders to solve. They cleared a total of 36 cases.
■The Chicago Police Department has more than 11,000 officers. Toronto has about 5,300.
■In 1992 there were 940 murders in the city. 651 of those murders were committed with firearms. The department cleared 683 cases.
A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.
For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.
In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s interest in maintaining some sort of principled limitations on federal criminal jurisdiction in this interesting case from last term.)
Mandel contested the jurisdictional issues on appeal, but to no avail.
Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes. The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.
Here’s what happened. While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed. Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).
Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense. The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer. There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops. But does the statute really require the defendant to be thinking about federal involvement?
Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide. The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes. Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.
Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds. As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.
As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed: