October 17, 2016
Lies, damn lies and federal prison and commutations statistics
As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important. The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics. Once you have that quote in mind, consider some of the data and their sources.
The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016." Here are just some of the data therein that caught my eye:
• A large majority of offenders in the federal prison population are male (93.3%).
• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).
• More than three-quarters (77.9%) of these offenders are United States citizens.
• The majority of offenders pleaded guilty (88.5%).
• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.
• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.
• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.
• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.
The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016." But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates. In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!
Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:
Fiscal Year BOP Population
In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!
As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder).
Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation. (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)
Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined." But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office. So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.
As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class). And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.
March 24, 2015
National and Ohio drunk driving harms data for sentencing exercise
There are lots of sites worth checking out concerning the scourge of drunk driving, and this webpage from The Foundation for Advancing Alcohol Responsibility has lots of helpful links to lots of helpful data. For example,this page has a really nice simple chart highlight that drunk driving death nationally in recent years have been around 10,000 per year, which is about 1/3 less than the yearly average a decade ago. This decline in deaths arguably proves that tougher criminal laws work as this decline correlates with more states adopting .08% BAC as the legal limit AND with more states requiring ignition locks as punishment for DUI offenses.
But "only" 10,000 DUI deaths each year still means that, on average, more than 25 persons are killed by a drunk driver every single day in the US. This website with official Ohio highway stats reveals that Ohio has averaged more than 400 drunk driving deaths per year (meaning more than one per day). As I mentioned in class, these number are only slightly lower than the total number of deaths from intentional homicide: roughly, the US has averaged about 14,000 murders and Ohio has averaged around 500 murders per year in recent years.
Ohio's current penalties for drunk driving (called OVI) are effectively outlined on this webpage, and Senator Madd, the new head of the Judiciary Committee, made reducing drunk driving deaths and injuries a centerpiece of his re-election campaign. He also knows that, as explained on this MADD webpage, roughly "one-third of the drunk driving problem – arrests, crashes, deaths, and injuries – comes from repeat offenders. At any given point we potentially share the roads with 2 million people with three or more drunk driving offenses. Taking away their licenses isn’t enough; 50-75% of them drive anyway."
Senator Madd is eager to work with any and everyone on legislation to make Ohio's roads and all its citizens safer. He sees some potential merit in both the RID and TOUGH bills that have been proposed, but he is eager to get some additional input from fellow legislators about the best ways to move forward on these fronts.
January 15, 2015
Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?
As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases: e.g.,
- 18 US Code § 3553(a)(6) orders federal judges at sentencing to consider "the need to avoid unwarranted sentence disparities" among similar defendants;
- Ohio Revise Code § 2929.11(B) provides that sentences imposed for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders."
Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."
We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency. Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case. Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"? Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions.
Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):
- Ted Kaczynski (killed 3, injured over 20; LWOP)
- Timothy McVeigh (killed 186, injured over 600; death sentence)
- Terry Nichols (conspired with McVeigh; LWOP)
- Eric Rudolph (killed 2, injured over 100; LWOP)
Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence? If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?
Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):
- Illinois Gov Rod Blagojevich (14 years)
- Massachusetts House Speaker Salvatore DiMasi (7 years)
- Louisiana Gov Edwin Edwards (10 years)
- Illinois Gov George Ryan (6.5 years)
- Bridgepost (CT) mayor Joseph Ganim (9 years)
- Alabama Gov Don Siegelman (6.5 years)
- Connecticut Treasurer Paul Sylvester (4.3 years)
Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?
UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.
One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued: e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.
One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty. For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)? Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).
February 17, 2014
Lots of interesting reflections on McClesky a quarter-century later
As I mentioned very briefly in class, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25." Here are links to all the articles in the symposium:
McClesky at 25 OSJCL Symposium Articles:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article. But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.
September 10, 2011
Statistical highlights (and queries) concerning US death penalty history
Though I spent probably too much class time Thursday referencing parts of the history of the death penalty in the United States, I do not think it is possible for students of modern sentencing law and policy to spend too much time reflecting on this history. I encourage all students to read up on the United States' history with the death penalty from various sources, such as the full opinions in Furman or the abolitionist-oriented account provided here by the Death Penalty Information Center or this reader-friendly review of DP history in the US .
One key historical point I sought to stress in class is that, though the US Supreme Court has been very involved in death penalty regulation through interpretations of constitutional law over the past forty years, during the prior 180 years the Supreme Court had relatively little to say on the topic. But this reality of Supreme Court relative lac of involvement in this historical story certainly was not a result of a relative lack of use of the punishment, because according to the ESPY File of all US executions, in the United States there were:
- 13 executions in 1790, the year after the US Constitution was ratified
- 8 executions in 1804, the year after Marbury v. Madison was decided
- 39 executions in 1869 the year after the 14th Amendment was adopted
- more than 100 executions in 1906, the year after the famous "activist" Lochner decision
- more than 1500 executions during the 1930s (roughly 3 each and every week)
Notably, when the US Supreme Court during the Warren Court years started getting much more actively involved in regulating state police and prosecution practices, lower state and federal courts did start more actively reviewing state death sentences. As a result, from 1967 to 1976, the period leading up to and around the McGautha and Furman and Gregg rulings, there were zero executions in the United States.
The Gregg ruling in 1976 is often used to mark and define the start of the "modern" death penalty era in the United States, and the chart from the DPIC reprinted above (and easier to read at this link) details that the US has been averaging more than 50 executions per year over the last two decades, with a recent one-year high of 98 executions in 1999 and a recent one-year low of 37 in 2008.
Lots of legal and non-legal factors have had an impact on these historical data, and one would struggle to come up with any simple explanation for precisely why our nation has had a roller-coaster, up-and-down experience with executions. Nevertheless, in addition to being factually interesting, I think there are various sentencing law and policy lessons to be taken away from this history. I am interested to hear student insights as to these possible historical lessons: do folks think this history suggests it is inevitable that the US will always be a death penalty nation, or that this history shows that the US has and could get along without many or even any executions?
Comments on what lessons we should take away from this history, and on what else is worthy of historical note and discussion here, are highly encouraged. Also, I encourage thoughts about whether the total number of death sentences or capital prosecutions (rather than just actual executions) would be important data in this historical story.
August 24, 2011
Racial and gender disparities in death sentencing and federal kiddie porn prosecutions
Issues of race and gender arise throughout the criminal justice system and their impact on sentencing outcomes is often a subject of great debate and controversy. In addition to encouraging you to consider the linkages between theories of punishment and race/gender issues, over the next few classes we will explore in various ways the relationships between sentencing discretion, disparity and discrimination.
Though there is (too) much to say on all these matters, I thought it useful in this forum to encourage focused consideration of these matter in two distinct contexts: the imposition of the death penalty for murder and the federal prosecution and sentencing of child pornography offenses.
Death Sentencing: As you may know, the death penalty is often criticized for having a racial skew, and pages here and here from the Death Penalty Information Center provide lots of data and reports on this front. One of many statistics on these pages I find notable is that out of roughly 1250 persons executed in the US in the modern era, more than 250 black defendants have been executed for killing white victims, but only 16 white defendants have been executed for killing back victims.
Far less frequently discussed are the apparent gender disparities in the application of the death penalty in the United States, though this page from the Death Penalty Information Center and this report from Professor Victor Streib provides coverage of this issue. The data from these sources reveals that women account for about 10% of all murder arrests, but that women make up less than 2% of death rows (55 / 3,261) and less than 1% of those executed (12 / 1,250+). Indeed, in the last 8 years, nearly 450 men have been executed, while only 2 women have been executed (0.45%).
Federal Child Porn Prosecutions: Federal sentencing for child pornography offense is a hot topic, in part because the number of prosecutions and the length of sentences imposed for these offenses has increased dramatically over the past decade. What is rarely discussed, however, is the disproportionate involvement of white men in these cases, especially relative to the the general federal offender population. The latest federal data from the US Sentencing Commission is in this report which provides a detailed racial and gender breakdown for offenders in each primary federal offense category (Tables 23 and 24 at pp. 44 and 45 of the pdf).
Roughly speaking, when immigration offenses are excluded (because 90% involve hispanic offenders), the general population of federal defendants sentenced is about 1/3 white, 1/3 black and 1/3 hispanic. But for child porn offenses, the sentenced defendants are almost 90% white and only 3% black and 6% hispanic. Similarly, the general population of federal defendants sentenced is about 85% male and 15% female. But for child porn offenses, the sentenced defendants are over 99% male and less than 1% female.
Do you find these data surprising? disturbing? What additional information would you like to have in order to make a judgment concerning these data?