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”
I now have a publication date for my new book: January 17. The excessively long, but nicely descriptive, title is Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. More information (including how to order a copy) is available through the University of Wisconsin Press. I’ll be doing a release event at Boswell Books in Milwaukee on January 17 at 7:00 p.m.
Somewhat lost in the run-up to Labor Day weekend and wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined.
Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Bill Clinton’s pardon of financier Marc Rich and George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, among other scandals, contributed to a perception that clemency was unfairly used to benefit wealthy, powerful defendants.
Despite these negative perceptions of clemency, the Obama Administration announced in 2014 that it would welcome commutation applications from certain nonviolent federal offenders. In particular, the initiative focuses on offenders who were convicted many years ago of crimes that would result in a shorter sentence today. Federal sentencing law has undergone several important changes in the past decade, especially in relation to the sentencing of crack cocaine offenses. Federal crack sentences were notoriously severe for many years, with greatly disproportionate effects on black defendants. As a result of the recent changes, thousands of federal prisoners are now serving terms that would be shorter if they were imposed for the same offenses today.
In comparison to the secretive, ad hoc decisionmaking of previous presidents, President Obama’s initiative represents an admirably transparent, principled approach to clemency. Continue reading “Obama Clemency Grants Pick Up Steam”
In the Marquette Law School Poll conducted earlier this month, fifty-nine percent of registered Wisconsin voters agreed that marijuana “should be fully legalized and regulated like alcohol.” Only thirty-nine percent disagreed.
Support for legalization in Wisconsin follows the recent decisions to legalize marijuana in Colorado and Washington in 2012, and in Oregon and Alaska in 2014. Nationally, support for legalization has grown steadily since the early 1990s and finally crossed the fifty-percent threshold in 2013.
In the Law School Poll, respondents were asked which arguments for legalization they found most convincing.
Continue reading “Strong Support for Marijuana Legalization in Law School Poll, But Results for Other Drugs Harder to Interpret”
With a wonderful group of Marquette law students, I have been working this year to help about a dozen federal prisoners apply for clemency (sentence reduction) from President Obama. All but one are applying through Clemency Project 2014 as nonviolent offenders. Adam Clausen is the odd man out. He was convicted of a string of robberies in 2000, but is nonetheless a very deserving clemency candidate. Indeed, I know of no more compelling case for a sentence reduction. Adam is doing extraordinary work in prison to help fellow inmates turn their lives around and prepare for reentry. He is a leader and innovator in his institution, helping to design and run programs that are receiving national attention. His request for clemency is being supported by his warden and many other prison officials, which is highly unusual. If released early, he is a sure bet not only to avoid future crime, but also to have a tremendous positive impact on the lives of many others.
In order to give his clemency request an extra boost, his supporters have put a petition on change.org. I have signed on, and I encourage others to do so, too.