Risk Assessment and Racial Disparity

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.”

I’ve heard variations on this argument before, but Harcourt’s new paper adds some interesting historical dimensions to the analysis.  For instance, as a “cautionary tale,” he discusses the turn to risk-based institutionalization in the 1970’s, which resulted in a dramatic increase in racial disparities in mental hospitals.  “[T]he proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978 . . . .”

Harcourt also describes the explicit use of race as a predictor of dangerousness in parole decisions between the 1930’s and 1970’s — a shocking practice to contemporary ears.  Although criminal history may correlate closely with race, it does not seem nearly so pernicious to rely on criminal history as to rely expressly on race.  Nonetheless, I share Harcourt’s sense that progressives are apt to be disappointed by risk-based early release initiatives.  Simply quantifying risk more precisely still leaves unanswered the critical ethical question of why we should want to release anyone who poses any degree of risk, no matter how small.

Cross posted at Marquette Law Faculty Blog.

Intimidation Offense Not a Violent Felony, Seventh Circuit Rules

Under the Armed Career Criminal Act, a felon in possession of a firearm faces a fifteen-year mandatory minimum if he has three previous convictions “for a violent felony or a serious drug offense, or both.”  There has been much ferment over the past couple of years as to what qualifies as a “violent felony” under the ACCA.  Most recently, the Seventh Circuit has ruled, in United States v. Ellis (Nos. 08-2512 & 08-2443), that an Indiana conviction for felony intimidation does not qualify.

“Violent felony” is a defined term in the ACCA, and encompasses any felony that “has as an element the  . . . threatened use of physical force against the person of the other.”  The Indiana statute under which Ellis had been convicted prohibited threats to “unlawfully injure” a law enforcement officer.  Although the phrase “threat to unlawfully injure” probably conjures up the same mental image for most people as the phrase “threat to use physical force against the person of the other,” the Seventh Circuit noted that “injury” is a broader term than “physical injury” and might also encompass emotional or reputational injury.  As a result, Ellis’s offense did not qualify as a violent felony under the ACCA.  (The court declined to consider whether the offense fell within the terms of the so-called “residual clause” in the statute because the government had advanced no argument to that effect.)

Why can I not get the picture of angels dancing on the head of a pin out of my head?

Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel

Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel.  Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction.  Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.

Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice.  In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.

In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.   Continue reading “Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel”

No-Merit Appeal in WI Triggers Procedural Bar to Post-Conviction Claims

In order to prepare for an upcoming talk on the past term in the Wisconsin Supreme Court, I just read State v. Allen, 2010 WI 89 (2010), a new case elaborating on State v. Escalona-Naranjo, 185 Wis. 2d 168 (1994).  I teach E-N in my post-conviction remedies class, and I’ve never found its reasoning persuasive.  The E-N court held that a direct appeal raises a procedural bar to any subsequent attempt to gain post-conviction relief based on issues that could have been, but were not, litigated in the direct appeal.  It seems to me that the court gave too much weight to the state’s interest in avoiding a second round of post-conviction litigation, particularly in light of the woeful underfunding of indigent defense in Wisconsin and the real possibility that important constitutional issues might be missed in the first round.  Moreover, despite the court’s desire to reduce the volume of post-conviction litigation, the E-N procedural bar has actually spawned considerable collateral litigation over the questions of what could have been raised on direct appeal and what constitutes good cause to excuse a procedural default.  Rather than expending so much energy on the resolution of unnecessary procedural questions, I would much rather see the courts reaching the merits of the underlying constitutional claims.

In any event, Allen, the new case, nicely illustrates the sorts of puzzles the courts have to grapple with under E-N.   Continue reading “No-Merit Appeal in WI Triggers Procedural Bar to Post-Conviction Claims”

MO Gives Sentencing Judges Cost Information

As reported in the New York Times here, Missouri has implemented a new information system for sentencing judges that supplies them with the expected cost of various sentencing options.  Missouri is apparently the first state to attempt to provide such information on a systematic basis.  Although some critics charge that putting the information in front of judges will cause judges to give too much weight to costs, it’s hard for me to imagine why that would be so — the money does not come from their pockets.  Surely, cost is a relevant variable in deciding what the best sentence would be in any given case, and I see no more risk that this variable will be given too much weight than any number of other potentially distorting variables, such as criminal history or victim impact statements.

Indeed, I would go one step further than Missouri and require judges to announce the expected cost in open court when they impose a sentence.  This would not only force judges to pay greater attention to the information, but also better inform the public regarding the consequences of existing sentencing policies.

Armstrong and Judicial Incompetence

Today, I reread United States v. Armstrong, 517 U.S. 456 (1996), in preparation for teaching a class on selective prosecution tomorrow.  I remain unpersuaded by the Court’s analysis.  The defendants, who were indicted in federal court for dealing crack, sought discovery from the government in order to determine whether they and other black defendants were selected for federal prosecution (and hence for the harsh federal mandatory minimums for crack offenses) because of their race.  In support of the motion, they submitted affidavits indicating that all or nearly all federal crack defendants in their district were black, while many crack defendants prosecuted in the local state court system were not black.  The district court judge granted the discovery motion, but the Supreme Court later held that the defendants were not entitled to pursue their selective prosecution claim.

The Court’s analysis seems to be driven by a strong presumption against judges second-guessing prosecutorial charging decisions.   Continue reading “Armstrong and Judicial Incompetence”

Sentence Explanation in the Seventh Circuit

I’ve had a couple of posts already about sentence explanations.  When explaining a sentence, a judge can make two different types of missteps: the judge can say too much (as I discuss in this post) or too little (as I discuss in this article).  In preparing for a recent talk, I spent a little time catching up with the Seventh Circuit case law addressing the latter problem.  I’ll summarize here.

In the leading case, United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), the court remanded for resentencing where the lower-court judge had passed over in complete silence the defendant’s main argument for a sentence below the advisory guidelines range.  As discussed in the article linked to above, I believe that Cunningham is in considerable tension with the Supreme Court’s decision in Rita v. United States, 127 S. Ct. 2456 (2007).  The Seventh Circuit nonetheless continues to cite and treat Cunningham as good law.   Continue reading “Sentence Explanation in the Seventh Circuit”

Mississippi Lifers Exonerated in Rape-Murder Case

Phillip Bivens was released yesterday after serving thirty years of a life sentence for a rape-murder in 1979.  As reported by the New York Times, Bivens and a codefendant pled guilty in the case, while a third defendant was convicted by a jury.  New DNA analysis of the rape kit exonerated all three men earlier this year, although only Bivens was still serving time — one codefendant died in prison, and the other had already been released for medical reasons.  Little evidence connected the men to the crime aside from their own incriminating statements, which had apparently been coerced from them. 

DNA exonerations in recent years have done a great deal to highlight the reliability problems with confessions that are uncorroborated by physical evidence.  I wonder, though, to what extent these problems have really sunk in with the lay public.  On their face, confessions seem such extraordinarily compelling evidence — what could be more reliable than a statement so directly and profoundly against personal interest?

The Mississippi case is also interesting as an illustration of reliability problems with guilty pleas, particularly when the death penalty is available.  Bivens entered his false guilty plea in order to avoid facing the death penalty.  My own views about the death penalty are neither strongly for nor strongly against, but I have long thought that the biggest problems with the death penalty are not in the very small number of cases in which it is actually imposed, but in the possibly much larger number of cases in which fear of the death penalty leads to a guilty plea and an undeserved life sentence.

Wisconsin Supreme Court on Extraneous Comments at Sentencing

In reviewing the Wisconsin Supreme Court’s opinion in State v. Harris for a talk I am giving later this fall, I was immediately struck by the similarities with United States v. Figueroa, the Seventh Circuit case I blogged about yesterday.  In both cases, the sentencing judge made numerous “colorful” comments at the sentencing hearing that suggested the judge may have been taking various irrelevant considerations into account.

In Harris, the sentencing judge seemed to be passing judgment on the defendant’s lifestyle.  He made a big deal of Harris’s domestic arrangements, which involved Harris staying home with his daughter while the daughter’s mother worked and attended college.  He also focused on Harris’s marijuana use (Harris’s conviction, though, was for possession with intent to deliver cocaine).  The judge then contrasted Harris’s lifestyle with the more laudable choices made by others: “People Mr. Harris’s age [are] enlisting in the Marines and Army and National Guard, putting their lives at stake while Mr. Harris sits at home, gets high while his baby mama works and goes to school.”  The judge also found it “appalling” that the twenty-one-year-old Harris lacked any employment history.

More generally, comparing Harris and Figueroa, one gets the sense that both judges were viewing the defendants as representives of particular social groups (Mexican immigrants in one case, and dissolute young men supported by their girlfriends in the other), and were using the sentencing hearing as an occasion to express critical judgments on the groups.

Why, then, did Figueroa win and Harris lose?  Continue reading “Wisconsin Supreme Court on Extraneous Comments at Sentencing”

Seventh Circuit Vacates Sentence Based on Judge’s “Inflammatory Remarks” at Sentencing Hearing

Convicted in the Eastern District of Wisconsin of trafficking in cocaine, Jose Figueroa was sentenced to 235 months in prison, which was at the low end of the applicable guidelines range.  The Seventh Circuit, however, vacated and remanded for resentencing in United States v. Figueroa (No. 09-3333) (Wood, J.). The problem was purely procedural:

[The district court’s] extraneous and inflammatory comments during the sentencing hearing . . . cast doubt on the validity of the sentence.  During the heraing, the district court digressed to discuss Figueroa’s native Mexico, the immigration status of Figueroa and his sisters, and the conditions and laws in half a dozen other countries — not to mention unnecessary referencs to Hugo Chavez, Iranian terrorists, and Adolf Hitler’s dog.  We have no way of knowing how, if at all, these irrelevant considerations affected Figueroa’s sentence.  We therefore must remand, to ensure that the district court’s choice of sentence was based only on the criteria that Congress has authorized.