Sentencing Class @ OSU Moritz College of Law

A final (too brief) foray into what metrics and data matter for assessing a sentencing system

After our first few weeks of class discussing theories of punishment, you likely recall that we never reached any kind of firm conclusive resolution as to what goals a sentencing system must or should pursue.  For that reason (and others), it should not be a surprise that there is no firm conclusive view of what metrics or data matter most for judging a sentencing system or the criminal justice system more generally.  But this is not for lack of possible options, and here I will list some broad categories and sub-categories for you to consider as possible data points of greatest interest or concern for a sentencing system:

CRIME

• Overall crime rates and/or total crimes (per year or over an extended period)
• Violent crime rates and/or total violent crimes
• Murder rates and/or total murders

ARRESTS

• Overall total arrests (per year or over an extended period)
• Arrest rates relative to crime rates
• Arrests for certain crimes

CONVICTIONS

• Total convictions, felonies and misdemeanors (per year or over an extended period)
• Conviction rates relative to crime rates or arrest rates
• Conviction rates for certain crimes

SENTENCES IMPOSED

• Total sentences for many types of punishments (death, prison, jail, probation, fine)
• Prison/jail sentences for more any crimes
• More severe sentence of death, life or more than, say, 20 years in prison

PRISON, JAIL, SUPERVISION POPULATIONS

• Total persons in prison, jail. supervision at one snapshot in time
• Total persons in prison, jail. supervision over a year or longer
• Total persons in prison, jail. supervision for certain crimes

RECIDIVISM RATES

• Persons arrested within one year (or 5 or 10 years)  after arrest
• Persons sentenced for a new crime within one year (or 5 or 10 years) after release from custody
• Persons convicted of a new serious crime within one year (or 5 or 10 years) after prior CJ contact

CRIMINAL RECORDS AND COLLATERAL CONSEQUENCES

• All persons ever subject to arrest/conviction
• All persons who see or secure record relief from a prior conviction
• All persons receiving longer sentences due to criminal past

FINANCIAL/SOCIAL COSTS

• Total expenditures by governments on entire criminal justice system
• Total expenditures by governments on prisons and jails
• Social/human costs (and benefits) from interactions with criminal justice system

I could go on and on, but I am sure you get the idea and that you can now reflect a bit on how many different possible sentencing "outputs" could  be a focal point for data collection, review and analysis.  This is the broad topic I am eager for us to cover in our last few classes, and I especially want to highlight that this long list of possibilities does not begin to engages various social justice issues — e.g., should we focus on "output" numbers in any or all of these categories particularly for people of color?  for women?  for juveniles?  for persons with mental illness?  for veterans?

We can perhaps start the discussion here in the comments, but know I will be asking you in our final classes to share your views on these issues through this particular question: What two of three metrics or data points should the incoming Biden Administration give special and sustained attention to in the coming months and years?

Some timely data and discussion about race as we consider McClesky (and also about execution methods)

Though I provided in this post a working draft of a proposed "Ohio Racial and Gender Justice Act" (which I hope to discuss in class on Thursday), I now realize it makes sense to also provide here some recent data and discussion on how race seems to impact our capital justice systems.  

From the Death Penalty Information Center: "Executions by Race and Race of Victim" and a huge new report titled "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty."  An excerpt:

Throughout the modern era of capital punishment, people of color have been overrepresented on death row.  In 1980, 45.6% of death row prisoners were people of color, and this percentage has increased every decade. By 2019, this percentage had risen to 57.8%.  Currently, white and African-American prisoners each comprise 42% of those on death row and Latinx prisoners make up 13%, with 3% of death row comprised of other races/ethnicities.   These figures can be contrasted with the racial and ethnic makeup of the population as a whole. Approximately 60.4% of the population is white.

The opposite trend is apparent in the racial composition of the victims of those who have been executed in the modern era. Seventy-five percent of murder victims in cases resulting in an execution have been white, even though only half of murder victims are white.  In cases with victims of a single race, 295 African-American defendants have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder of African-American victims.

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies).

From NPR here is a brand new piece, titled "How A Perpetrator's Race And Age Factor Into Who Is Executed," speaks to these issues in the federal system with the scheduled upcoming execution of Christopher Vialva, a black man who killed white victims.  An excerpt:

REPORTER: Vialva is not claiming he's innocent. Instead, his case resembles most of those that end in the death house in Indiana. Like Vialva, who was 19 when he killed the Bagleys, 1 in 4 of the men on federal death row committed their crimes before they reached the age of 21. And of the 57 people on the row, more than half are people of color. Sam Spital is director of litigation at the NAACP Legal Defense Fund.

SAM SPITAL: There have been over 500 cases between 1988 and now where the attorney general of the United States authorized federal prosecutors to seek death. And in over two-thirds of those cases, the defendant was either Black or Latinx. And in only about a quarter of the cases was the defendant white.

REPORTER: Spital says the race of the victim also matters a lot.  Defendants who kill white people are 17 times more likely to be executed.  He says those disparities exist in both the state system and the federal system.

And what about Ohio? Helpfully, we have this fairly recent study from Frank Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions."  An excerpt:

Between 1976 and 2014, the state of Ohio executed 53 men.  Here are a few key findings of this research:

• Sixty-five percent of all executions carried out in Ohio between 1976 and 2014 were for crimes involving White victims despite the fact that 43% of all homicide victims are White.
• Only 27% of all homicide victims are female, but 52% of all executions carried out in Ohio were for homicides involving female victims.
• Homicides involving White female victims are six times more likely to result in an execution than homicides in involving Black male victims.

And speaking of NPR and Ohio, NPR has also recently had two big pieces about lethal injection execution methods that have important coverage of Ohio (and discusses the work of a notable former member of this class). I highly recommend these pieces if you are interested in the debate over execution methods or Ohio's history with executions:

"Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection"

"Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment"

Some Buckeye death penalty whos and history

As I mentioned in class, we can only briefly touch on so many interesting big and little issues relating to the death penalty in class that I would eagerly give more time and attention in this forum.  Absent suggestions, I will share (and enhance) items from my inbox of interest.  Today, this involves this great new article from The Appeal: Political Report headlined "Cincinnati Is An Epicenter For The Death Penalty. Its Prosecutor Race Could End That In November." 

Though the piece covers lots of ground, the subheadline of the piece highlights its main focus: In Hamilton County, Joe Deters has sent more people to death row than any other prosecutor in Ohio. His challenger, Fanon Rucker, promises to stop that practice."  I highly recommend this lengthy article because it provides lots of background (and links) on the current state of the debate over capital punishment in the Buckeye State while also noting/quoting a wide array of interesting "whos" involved in this debate.  Here is just one of a number of notable passages:

“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions.  Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election.  But she says advocates are gearing up to push through a repeal bill in the next legislative session.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty.  A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole.  And the next thing you know we won’t have life without parole either.”

Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.”  She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.

Rucker told the Political Report he would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty.  “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.

I am not sure I entirely understand this last quote from Rucker, but earlier in this article he more directly explains his support its abolition: "'I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,' Rucker told The Appeal: Political Report."  (I am not sure which Supreme Court Rucker is referencing here, but maybe he is thinking about this Ohio Supreme Court 2014 Task Force report to which I had the honor of contributing.)

Interestingly, I noticed on this Issues page of "Fanon Rucker for Prosecutor" that there is no mention of the death penalty.  There is this promise: "Our office will aggressively pursue and put a significant amount of financial resources to the prosecution of those who physically harm children, the elderly and loved ones."  But apparently Rucker will not (ever?) consider pursuing a capital prosecution to that end.

Meanwhile for a broader and more comprehensive look at the modern death penalty in the Buckeye state, I also highly recommend the latest version of the Ohio Attorney General's annual report on the death penalty, the 2019 Capital Crimes Annual Report.  This document (which is nearly 400 pages long) gets updated on April 1 each year, and it provides information and a procedural history on each and every case that has resulted in a death sentence in Ohio since 1981.  This webpage provides this statistical summary:

According to the report, from 1981 through 2019, a total of 143 death sentences remained active including those currently pending in state and federal courts.  In 2019, six individuals received a total of seven death sentences and were added to death row. 

Since 1981, Ohio has issued a total of 340 death sentences.  A total of 56 death row inmates have been executed under Ohio’s current law since 1981.  Over the same period, a total of 21 death row inmates have received a commutation of their death sentence to a sentence less than the death penalty.

Last but not least, the Fall 2019 issue of the Ohio State Journal of Criminal Law included a bunch of original article authored by notable folks about the death penalty in the Buckeye State and elsewhere.  Of particular note and interest is this short piece by former Ohio Supreme Court Justice Paul Pfeifer titled "Ohio's Modern Death Penalty — From Architect to Opponent."  Here is its first sentence, and a line from near the end of the piece that reminded me of some language in McGautha:

Ohio's death penalty statute has, in practice, resulted in a "death lottery" that should be abandoned....

It is unevenly applied by prosecutors, juries, judges, and the Supreme Court — not out of malice or malfeasance, but because measurement and calibration are impossible.

Some data on mandatory minimums in the federal sentencing system ... UPDATED with new report with disconcerting (new and old) data

I reviewed a lot of SCOTUS jurisprudence (too) quickly in class today, and I will be eager to talk about all the who, why and how in cases like Blakely and Booker and others as folks see fit.  But, especially because of their enduring importance in modern debates about sentencing policy and practice, I also want to make sure we get to talk about mandatory minimums.  To get the conversation started, here are some general data about mandatory minimum penalties in the federal sentence from this Quick Facts document by the US Sentencing Commission (USSC):

26.1% of all cases carried a mandatory minimum penalty. 

Of all cases carrying a mandatory minimum penalty:
-- 72.7% were drug trafficking;
-- 5.4% were firearms;
-- 4.8% were child pornography;
-- 4.6% were fraud;
-- 4.4% were sexual abuse.

44.3% of offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:
-- 21.8% received relief through the safety valve provision;
-- 15.9% provided the government with substantial assistance;
-- 6.6% received relief through both.

The average sentence length was:
-- 141 months for those subject to the mandatory minimum;
-- 61 months for those receiving relief;
-- 24 months for offenders who were not convicted of an offense carrying a mandatory minimum.

I mentioned in class how federal prosecutors can impact the application of mandatory minimums through their charging authority, and the child pornography statutes provide an especially interesting example of how this can work. In this 2012 Report to Congress, the USSC noted:

The Commission’s review of over 2,000 non-production cases has demonstrated that the underlying offense conduct in the typical case in which an offender was prosecuted for possession [with no mandatory minimum] was indistinguishable from the offense conduct in the typical case in which an offender was prosecuted for receipt [with a five-year mandatory minimum].  Yet the Commission’s analysis of §2G2.2 cases from fiscal year 2010 revealed significant unwarranted sentencing disparities among similarly situated offenders based in large part on whether they were charged with possession or receipt.  For these reasons, the Commission recommends that Congress align the statutory penalties for receipt and possession.  There is a spectrum of views on the Commission, however, as to whether these offenses should be subject to a statutory mandatory minimum penalty and, if so, what any mandatory minimum penalty should be.  Nevertheless, the Commission unanimously believes that, if Congress chooses to align the penalties for possession with the penalties for receipt and maintain a statutory mandatory minimum penalty, that statutory minimum should be less than five years.

And here are the latest USSC data in this arena from this Quick Facts document:

The average sentence for offenders convicted of receiving child pornography was 96 months:
-- 90.5% of offenders sentenced for receiving child pornography were convicted of an offense carrying a five-year mandatory minimum penalty; their average sentence was 87 months.
-- 9.5% had a prior sexual abuse or child pornography conviction and were subject to a 15-year mandatory minimum penalty; their average sentence was 185 months.

The average sentence for offenders convicted of possessing child pornography was 68 months:
-- 80.1% of offenders were convicted of an offense not carrying a mandatory minimum penalty; their average sentence was 53 months.
-- 19.9% had a prior sexual abuse or child pornography conviction and were subject to a 10-year mandatory minimum penalty; their average sentence was 129 months

Other areas of particular import and interest in the application of mandatory minimums in the federal system arise in the drug and firearm settings.  Here are USSC Quick Facts on firearm and on drugs and some notable data points:

The average sentence for all felon in possession of a firearm offenders was 64 months.
-- The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months.
-- The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.

The average sentence for drug trafficking offenders was 77 months, but varied by drug type.
-- 96.4% were sentenced to prison.
-- 65.6% were convicted of an offense carrying a mandatory minimum penalty; 57.6% of those offenders were relieved of that penalty.

The prestigious Council on Criminal Justice released this big report last month on the federal criminal justice system with 15 recommendations, and its second recommendation reads as follows: "Congress should eliminate mandatory minimum sentencing laws for all drug crimes and consider eliminating non-drug mandatory minimums while refraining from enacting any new mandatory minimums pending study."

UPDATE on September 9:  I just got an email spotlighting this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  It is a very long report covering lots of ground and data, but it includes this helpful summary of one key finding and other research quite relevant to our discussions (I have left in footnote numbers, but you will need to click through to see sources):

Taken together, the analysis above indicates that cases involving offenses that carry mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.  Defendants of color are more likely to face charges that carry mandatory incarceration time, and these more serious and high-risk sentencing possibilities translate into plea deals that are more likely to involve incarceration and longer sentences.  Further, existing mandatory minimums are rarely applied in cases involving charges commonly faced by White defendants, such a subsequent OUI offenses.

Our findings are consistent with other studies that find that Black and Latinx people are disproportionately impacted by more severe charging decisions.80  A study of the federal system found that racial disparities in how prosecutors charge people with offenses carrying mandatory minimum sentences were a major driver of sentencing length disparities.81  Similarly, a study of racial disparities in the Delaware criminal system attributed the significant racial disparities in incarceration sentence lengths primarily to differences in charge types and the seriousness of charges.82  In addition, numerous studies have found racial and ethnic disparities in prosecutor decisions to seek sentencing enhancements, such as decisions to designate people as “habitual offenders”83 and decisions to pursue charges that require mandatory minimum sentences.84  For example, a study of the exercise of prosecutorial discretion to bring charges carrying mandatory minimum sentences in Pennsylvania found that Latinx people in the criminal system were nearly twice as likely to receive a mandatory sentence as White people in the criminal system.85  Another study found that federal prosecutors charged cocaine weight amounts that “bunched” just above the threshold to trigger a mandatory minimum sentence more often for Black and Latinx defendants than for White defendants.86   After the Supreme Court required prosecutors to meet a stronger evidentiary threshold for drug amounts, the practice of bunching declined, indicating that prosecutors were previously claiming drug amounts that could not withstand scrutiny.87

An interesting slice of data thanks to South Dakota being on meth

I trust some of you have seen the (widely lampooned) new anti-drug campaign in South Dakota under the banner “Meth: We’re On It.”  Beyond thinking about how these campaigns get developed, I was really intrigued by this New Republic article that highlighted some data about drug crimes and punishments in South Dakota.  The piece is headlined "Locking People Up: South Dakota’s On It: South Dakota's viral meth prevention campaign masks a punitive, racist reality."  Here are the excerpts that struck me as blogworthy in the wake of our recent discussions (links from the original):

South Dakota has a penchant for putting people in jail.  Specifically, South Dakota jails drug offenders, and particularly Native citizens, at rates that boggle the mind.  And it’s the state’s lock-em-up approach to what is, at its core, a public health and economic crisis that shows not just the absurdity, but also the disingenuousness, of this new campaign.

South Dakota arrests juveniles at a rate double the national average and 25 percent higher than the next closest state’s; of those arrested children, one in five is sent away on drug-related charges.  In fact, half of all arrests in the state are for drugs, compared to 29 percent nationally.

Looking at the incarcerated population, 64 percent of the women in South Dakota prisons are there for drug arrests; 28 percent of men are locked up for the same reason.  Both of those rates are at least double the national average.  The soaring rates of drug arrests — up 148 percent from 2010, with over 3,000 meth-specific arrests in 2018 — unsurprisingly coincide with the state citizenry’s soaring rate of drug use and substance abuse.  In the first six months of 2019 alone, the Drug Enforcement Administration seized 78 pounds of meth in South Dakota; it grabbed just 66 pounds in all of 2018.

Within these already alarming statistics exists another trend: Natives make up 8.7 percent of the South Dakota population but account for half of all arrests in the entire state. On the whole, Native citizens are thrown in jail at a rate 10 times that of white South Dakotans.  State officials recently estimated that if one were to add the reservation crime stats to those kept by the state — tribal law enforcement is handled by a combination of the Native nation’s own police force and federal law enforcement — South Dakota’s crime rate would double.

The essential question is why the state’s response has been to throw people, and overwhelmingly Native people, in prison rather than carve out the funds for prevention and rehabilitation.

All of the above trends continue despite the fact that, in 2013, the state legislature passed legislation aimed at addressing prison overcrowding by, theoretically, reducing penalties for nonviolent offenders.  However, the South Dakota ACLU found in August that, six years out from the legislative updates, the overall prison population was just barely smaller than it would have been without the bills: a difference of 281 people.

Background on race and death sentencing for our discussion of McClesky and Racial Justice Act

Next week, we will start the final part of our death penalty discussions by exploring the issue of race in the application of the death penalty.  I (too briefly) mentioned in class some data on race and the death penalty, and I thought I would link to some resources related to this issue to get a running start to our discussion of why this kind of data has not prompted much of a constitutional or policy response:

From the ACLU: "Race and the Death Penalty" (somewhat dated)

From the Death Penalty Information Center: "Executions by Race and Race of Victim" (up-to-date)

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies)

Recent news article following announcement of federal execution dates: "Death Penalty Makes a Comeback in US as Racial Disparities Persist."  An excerpt:

The most telling statistic when talking about discrimination in capital punishment is the race of the victim and how the courts’ attitudes change when the victim is white versus when the victim is a person of color, said Robert Dunham, the executive director of the Death Penalty Information Center.

Race of the victim plays a significant role in whether the death penalty is pursued by jurors. In Alabama, fewer than five percent of murders involve a black defendant and a white victim, yet over half of black death row prisoners have been sentenced for killing someone who is white. In Louisiana, the odds that a defendant will receive a death sentence are 97 percent higher if the victim was white

Also, for anyone really engaged by these issues, consider checking out the Fall 2012 issue of the Ohio State Journal of Criminal Law which had a symposium focused on "McClesky at 25."

Some recent data on mandatory minimum penalties in the federal sentencing system

Though I did not get us all the way through our discussion of important mandatory minimum cases like McMillan and Haymond (we will wrap these up next week), I think we covered a lot of useful ground in our extended discussions of mandatory minimum sentencing in class today.  And, as a useful follow-up, everyone is encouraged to take a few minutes to check out at the data assembled by the US Sentencing Commission in this short "Quick Facts" document about mandatory minimum penalties applied in the federal system.  Here are just some of many interesting tidbits from the document:

Of all cases carrying a mandatory minimum penalty:
-- 70.5% were drug trafficking;
-- 5.7% were child pornography;
-- 5.5% were fraud;
-- 5.4% were firearms;
-- 4.4% were sexual abuse.

40.6% of offenders convicted of an offense carrying a mandatory minimum were relieved of the penalty because:
-- 18.9% received relief through the safety valve provision;
-- 16.3% provided the government with substantial assistance;
-- 5.4% received relief through both.

The average sentence length was:
-- 139 months for those subject to the mandatory minimum;
-- 65 months for those receiving relief;
-- 26 months for offenders who were not convicted of an offense carrying a mandatory minimum.

A county-specific look at the death penalty in Ohio ... and wondering if anyone is taking a country-specific look at LWOP

I just noticed this lengthy new article from the Cincinnati Enquirer headlined "Why is a murder trial here so much more likely to end with a death sentence?".  I recommend the piece in full, and here is some of the "who" coverage:  

Hamilton County has sent more people to death row and is responsible for more executions than any county in Ohio since capital punishment returned to the state in 1981. The county has a larger death row population per capita than the home counties of Los Angeles, Miami or San Diego. And it has more people on death row than all but 21 of the more than 3,000 counties in the United States....

“There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of “No Winners Here Tonight,” a book about capital punishment in Ohio. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that,” he said....

No politician in town is more closely identified with the death penalty than Joe Deters, the latest in a long line of Hamilton County prosecutors who have regularly sought capital murder charges.

Deters said he tries to answer the same questions before every murder trial: Is the accused eligible for the death penalty under Ohio law? Does he have the evidence to remove all doubt of innocence? Was the offense so terrible the defendant deserves to die?

If the answer is yes on all counts, he seeks a death sentence. Not because he relishes the thought of an execution, Deters said, but because that’s what the law dictates. “People in really bad cases want the death penalty,” he said. “There are certain cases that are so hideous they are just evil.”...

Victims’ relatives often feel [killers deserve to die], but it’s up to the prosecutor to decide how aggressively to pursue the ultimate punishment. Deters said he has, in some cases, sought the death penalty even when relatives asked him not to, because the law and the facts of the case demanded it.

Robert Dunham, executive director of the Death Penalty Information Center, said the approach of local prosecutors is the single biggest factor in whether a convicted killer ends up on death row. In some places, he said, “the death penalty appears to be part of the culture.”

An Enquirer analysis of data from Dunham’s group found Hamilton County's death row population ranks 22nd out of the 647 counties nationwide that have at least one person on death row. Among U.S. counties with 20 or more inmates on death row, Hamilton County ranks seventh per capita.

What’s happened here over the years is part of a broader trend that has seen death penalty cases become highly concentrated. Less than 1 percent of U.S. counties now account for 40 percent of all death row inmates.

One reason for that disparity is the growing number of states, now 19, that have banned the death penalty. Another is the uneven application of death penalty laws by the prosecutors elected to enforce them. A county with a strong death penalty proponent, such as Deters, might send killers like Tibbetts or Van Hook to death row, while a prosecutor in another county might be content to seek life without parole, or less.

Franklin County, about 100 miles to the north, has a larger population and more homicides than Hamilton County, but less than half as many inmates on death row with 11. Cuyahoga County, also more populous and more violent than Hamilton County, has 21 death row inmates. “The law is prosecuted differently depending on who is the elected prosecutor,” said Welsh-Huggins. “Your chances of going to death row depend on where you committed the crime.”

Geography will continue to matter for years to come in death penalty cases, and not just close to home in Ohio. Death rows in Texas and the Deep South remain crowded places, while those in the Northeast are smaller or nonexistent....

Hamilton County has seen a decline in death sentences, too, as jurors increasingly recommend sentences of life without parole instead of death. The option, which eliminates the risk of a killer one day walking free, has fundamentally changed the calculus of capital trials. "That has impacted death sentences across the country," said Abe Bonowitz, spokesman for Ohioans to Stop Executions. "If you can guarantee the guy is never getting out, why do you have to kill him?"

Sometimes, though, juries and judges still find a reason. Ohio's life without parole law didn't exist when Van Hook was convicted in 1985, but it was on the books when Tibbetts went on trial in 1998. His Hamilton County jury recommended the death penalty anyway.

Deters said that’s fine with him. He said he can't worry about what other prosecutors do or whether Hamilton County is sending more people to death row than other counties. He said the solution for those who do worry about it is simple. “If people don’t want the death penalty, I don’t care,” Deters said. “Pass a law and get rid of it.”

For a lot more information about executions by county, here is a lot of information from the Death Penalty Information Center.  And for a big report on death sentences by counties, here are Part I and Part II of a big recent report titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties.  

As the title of this post highlights, in addition to encouraging you to think about all this county-by-county examination and analysis of the death penalty, I am interested in whether you can help me find any county-by-county analysis of LWOP sentences.   The "Too Broken to Fix" report notes than "in 2015, juries only returned 49 death sentences" and that only 33 counties of 3,143 counties in the US imposed the sentence. Can anyone help me find any estimate of how many total LWOP sentences were imposed in 2015 (or any other calendar year)?  Can anyone help me find any county-by-county accounting of LWOP sentence in Ohio or anywhere else?

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

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

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.

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.

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). 

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.

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.

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?