Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the 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 an awfully 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.

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A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995?  That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick.  The next day, with all twelve jurors again present, Webster was convicted.  Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

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.

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A Tale of Three States, Pt. 5: The Effect of Truth in Sentencing in Wisconsin

Previous posts in this series have examined the latest available incarceration data from Indiana, Minnesota, and Wisconsin.  This post considers historical data.  I’m particularly interested in the impact of a major change in sentencing law that was adopted in Wisconsin in 1998.  Under the “truth in sentencing” law, parole was abolished for crimes committed on or after December 31, 1999.  What impact did this have on the size of the state’s prison population?  Two hypotheses occur to me.  First, if judges continued to impose the same nominal sentences that they had been imposing, one would expect the prison population to grow because offenders would be serving longer real sentences.  Alternatively, judges might have reduced their nominal sentences to account for the loss of parole release options, attempting thereby to achieve the same real sentences as before TIS; such discounting would presumably lead to stability in the imprisonment rate.

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.

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Intent and the Eighth Amendment: New Restrictions on Sentencing Felony-Murderers?

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.

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A Tale of Three States, Pt. 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 key numbers from Indiana, Wisconsin, and Minnesota:




Black Population (2010)




Blacks as Percentage of Total Population (2010)




Imprisonment Rate (2010, per 100,000)




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

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Why Following the Rules Should Get You Out of Prison Early

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.”  Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison.  It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated.  No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

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.

A Tale of Three States, Pt. 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.

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Police Stops Go Up, Citizen Complaints Go Down — What Gives?

The Milwaukee Police Department has just released some new data on traffic and subject stops. There is a fascinating story here on policing strategy. Since 2007, Milwaukee has experiened a dramatic increase in the number of stops: both traffic and subject stops are up close to 250%. This has been part of a deliberate strategy to increase the number of police-citizen contacts, especially in high-crime neighborhoods. (The MPD has also been very active over the past four years in promoting uncoerced police-citizen contacts, too.) The objectives are to gather intelligence, disrupt criminal activity, and enhance community perceptions of safety in public spaces.

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 spiked; in months when stops have spiked, auto thefts and robberies have dropped.

But safety has a cost.

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Why Are Black Suspects More Likely to Give a False Confession Than White Suspects?

That is the question Cynthia Najdowski explores in an interesting new article, “Stereotype Threat in Criminal Interrogations: Why Innocent Black Suspects are at Risk for Confessing Falsely,” 17 Pscyh., Pub. Pol’y & L. 562 (2011).  A growing body of empirical research does indeed suggest that blacks are more likely to give a false confession than whites, but why?

Najdowski’s paper does not present any new empirical research of her own, but she does offer a new hypothesis to explain the racial disparity in confessions.  Prior scholarship has attempted to account for the disparity by reference to (1) “cross-cultural differences in nonverbal communication styles, which would cause Black suspects to appear more deceptive and police investigators to put more pressure on them to confess”; and (2) “status differences in speech patterns,” leading black suspects to “react to false accusations with denials, hostility, and defensiveness, which probably solidifies investigators’s suspicions” and thereby also prompts greater pressure on the suspects to confess.  (563)

To these theories, Najdowski adds a new “stereotype threat” hypothesis.

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