August 12th, 2013
In 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions. But, just two years later, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.
However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.
Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.
We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options. Read the rest of this entry »
August 5th, 2013
The criminal-justice system exists to minimize the extent to which individuals perform certain acts. There are many different tools available for society to discourage disfavored behaviors, some of which involve the use of law and legal institutions. One such law-based tool is the criminal sanction. It is not the only one. There are also various forms of civil and administrative liability, as well as subsidies and other types of incentives—behavior modification mechanisms can include both carrots and sticks. Among the sticks, the criminal sanction is normally regarded as the most forceful tool available, as well as the tool most worrisome for its tendency to produce devastating collateral damage.
It is sometimes said that the criminal-justice system exists to do other things like reinforce or clarify important moral norms; build social cohesion; identify, incapacitate, and treat individuals with dangerously antisocial tendencies; right the moral balance when it has been upset; vindicate (or perhaps more ambitiously bringing healing to) victims; or simply do justice. Each such formulation has a certain amount of truth to it, but each presents considerable danger if it is viewed in isolation as THE overriding purpose of the criminal-justice system.
One important danger is this: in a liberal, democratic society, it is imperative that the equal worth of all individuals be respected, and that there be a wide scope of individual autonomy, particularly in such matters as conscience, private moral choice, lifestyle, and political dissent. Read the rest of this entry »
August 5th, 2013
Pretrial diversion into drug treatment and other rehabilitative programs helps to save many defendants each year from the stigma and other negative consequences of a criminal conviction. Overall, about eight percent of felony defendants in large urban counties are diverted. Is this benefit distributed fairly among different racial and ethnic groups? New research by Traci Schlesinger suggests not.
Schlesinger analyzed data on pretrial diversion in felony cases in urban counties from 1990 to 2006. Even controlling for offense severity and criminal history, Schlesinger found that black defendants were about twenty-eight percent less likely, and Hispanic defendants about thirteen percent less likely, to receive pretrial diversion than non-Hispanic white defendants.
Schlesinger’s article is forthcoming in Race and Justice.
July 26th, 2013
Two-thirds of Wisconsin voters support truth in sentencing, the 1998 law that abolished parole in the state and required prisoners to serve the full term of their sentences. At the same time, a majority of Wisconsin voters (54.5 percent) agreed that once a prisoner serves half of his term, he should be released and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society. These seemingly inconsistent opinions point to complex, mixed feelings about sentencing policy in the state.
The numbers come from the Marquette Law School Poll, which earlier this week released the results of its latest survey of Wisconsin voters regarding politics and public policy. This edition of the poll included a rich array of questions relating to truth in sentencing. (Full disclosure: I collaborated in the design of these questions with Poll Director Charles Franklin and Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department.)
The poll results this year were remarkably consistent with results from a year ago, when some of the same questions were posed. Last July, 63% supported truth in sentencing, while 55% supported release opportunities at the half-way mark. An even more decisive two-thirds majority supported awarding credits toward early release to recognize prisoners’ rehabilitative accomplishments, which also violates truth in sentencing (at least in the particularly hard-line way in which it was adopted in Wisconsin).
Read the rest of this entry »
July 21st, 2013
Chicago’s population is about 4.5 times larger than Milwaukee’s, but, surprisingly, the arrest totals in the two cities have been slowly converging for many years. Here are the numbers reported to the FBI since 1980 (omitting a handful of years in which one city or the other did not report arrests):
To some extent, the convergence may result from underlying crime trends in the two cities.
Read the rest of this entry »
July 13th, 2013
In the first post in this series, I compared black and white arrest rates in Milwaukee over time. In this post, I present arrest data by offense type.
In 2011, the seven leading arrest offenses were disorderly conduct, “other assault” (i.e., not aggravated assault), drug possession, theft, vagrancy, vandalism, and weapons possession. Together, these seven offenses accounted for more than 53 percent of all Milwaukee Police Department arrests. This amounts to almost exactly ten times the number of arrests for the violent “index crimes” — the most serious violent offenses that dominate media coverage of the criminal justice system (homicide, robbery, forcible rape, and aggravated assault). To get a more realistic sense of the day-in-day-out work of the system, it may be helpful to appreciate that for every homicide arrest you see in the news, there are 123 arrests for disorderly conduct and 47 arrests for simple drug possession — nearly all of which fly well below the media radar screen. It is an interesting question to what extent these lower-level arrests contribute to public safety.
These offense distributions do not differ much by race. The first pie chart below indicates the distribution of the Big Seven arrest offenses among blacks; the second provides the distribution among whites. Read the rest of this entry »
July 8th, 2013
Daniel Langleben and Jane Campbell Moriarty have an interesting new article that provides background on the use of brain imaging in criminal investigations, discusses obstacles to the use of the technology in courtrooms, and proposes a path forward. The type of imaging at issue is functional magnetic resonance imaging, or fMRI. Some research suggests that fMRI is indeed able to distinguish lies from honest answers during an interrogation. However, at least two courts have excluded fMRI evidence since 2010.
Langleben and Moriarty agree with these courts that there are some significant gaps in the supporting research, especially in light of the evidentiary rule of Daubert v. Merrell Dow Pharmaceuticals:
The most important piece in the puzzle is Daubert‘s “known error rate” standard. Determining the error rates for fMRI-based lie detection requires validation of the method in settings convincingly approximating the real-life situations in which legally significant deception takes place, in terms of the risk-benefit ratio, relevant demographics, and the prevalence of the behavior in question.
Langleben and Moriarty thus propose an ambitious program of clinical trials. They acknowledge that this would involve hundreds of participants and cost millions of dollars, but they believe the technology is promising enough to warrant the investment.
The article is “Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide,” 19 Psych., Pub. Pol’y, & L. 222 (2013).
June 30th, 2013
Earlier this month, the ACLU released this interesting report on arrests for marijuana possession. The ACLU found a steady increase since 1990 in the number of arrests nationally for possession of pot. By 2010, arrests for this crime had come to account for nearly half of all drug arrests. Moreover, the ACLU also found that racial disparities in marijuana arrests increased right along with the number of arrests, even though surveys indicate that whites and blacks use marijuana at about equal rates.
Neither Wisconsin nor Milwaukee County performed well on the racial disparity front. Statewide, blacks are six times more likely to be arrested for marijuana possession than whites, which is considerably higher than the national average of 3.73. Milwaukee County’s disparity number was also above the national average at 4.7.
Coincidentally, at about the same time the ACLU released its report, the federal government’s Bureau of Justice Statistics unveiled a new on-line, interactive arrest-data tool, which permits detailed searches of arrest data from individual cities dating back to 1980. I thought it would be interesting to examine Milwaukee’s numbers over time. I focused on arrests by the Milwaukee Police Department, which differed from the ACLU’s focus on county-level data. (The MPD is only one of several law enforcement agencies in Milwaukee County, albeit the single largest.)
The first graph below shows the annual number of arrests by the MPD by race. Unfortunately, no data were available for 1986, 1998-2000, or 2004; otherwise, every year from 1980 through 2011 is included. Read the rest of this entry »
June 24th, 2013
Anthony Colangelo has an interesting new article that deals with the extraterritorial reach of American criminal law. Here’s the background:
Physical presence of the accused in the forum’s territory has been used in both U.S. and international law to justify applying forum law to the accused’s prior conduct outside the forum. Presence is fine to establish adjudicative jurisdiction, but it cannot alone justify the exercise of prescriptive jurisdiction. To begin with some recent headline-grabbing examples, a number of cases bubbling up in federal court charge foreign defendants under U.S. narco-terrorism laws for agreeing with undercover U.S. Drug Enforcement Agency agents to run drugs abroad. Some of the agreements charged appear to have no overt U.S. connection, like agreements to transport drugs across Africa into Europe. To meet statutory jurisdiction requirements, the government accordingly has relied in large part on the narco-terrorism statute’s provision creating jurisdiction where, “after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States.” The government has increasingly relied on this type of provision to prosecute foreign defendants for activity abroad unconnected to the United States, including providing material support to terrorism and receiving military training from a foreign terrorist organization. And the courts have been receptive. For their part, defendants have tried to challenge the provision as exceeding jurisdictional limits of international law, a clear loser of an argument given that Congress can override international law by express statutory provision. (83)
Read the rest of this entry »
June 21st, 2013
Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984? The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute. The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology. As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort. A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.
The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540). At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum. The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.
And it turns out that California does have an idiosyncratic burglary definition. Read the rest of this entry »