Sentencing Class @ OSU Moritz College of Law

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

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.

Diving deep into many particulars of modern guideline sentencing (and mandatory minimums) for Rob Anon and others

This final week before Spring Break, we will be diving even deeper into the sentencing of Rob Anon under the modern federal sentencing guidelines.  I continue to welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing, though I also welcome new comments here as I reprint the US Sentencing Commission's latest accounting of the average sentences that modern federal robbery defendants now receive. 

Over the last few years, the US Sentencing Commission has be producing terrific Quick Fact publications (you might call them mini-papers) about various federal sentencing realities. This recent one for "Robbery Offenses" was released in August 2017, and reported that in "fiscal year 2016, there were 1,554 robbery offenders, who accounted for 2.5% of all offenders sentenced under the guidelines."  This two-page document has too much data to capture in this space, but here are particulars that seem particularly notable in light of our Rob Anon exercise:  

The most common Criminal History Category for these offenders was Category I (25.0%). The proportion of these offenders in other Criminal History Categories was as follows:  11.0% of these offenders were in Category II; 20.2% were in Category III; 13.5% were in Category IV;  7.8% were in Category V; and 22.6% were in Category VI.

The median loss for these offenses was $2,846.  92.1% of robbery offenses involved losses of $95,000 or less.  82.5% of robbery offenses involved losses of $20,000 or less.

Sentences for robbery offenders were increased for: 48.7% of offenders for taking the property of a financial institution or post office; 61.2% of offenders for using or brandishing a firearm or dangerous weapon or making a threat of death; 13.0% of offenders because a victim sustained bodily injury; 22.0% of offenders for abducting or physically restraining a victim; 8.5% of offenders for carjacking; 8.2% of offenders for taking a firearm, destructive device, or controlled substance; and 5.1% of offenders for recklessly creating a risk of death or bodily injury in the course of fleeing from a law enforcement officer.

More than one-third (34.1%) of robbery offenders also had convictions under 18 U.S.C. § 924(c).

The average sentence length for robbery offenders was 111 months.  

• The average sentence length for robbery offenders with a conviction under section 924(c) was 180 months. 
• The average sentence length for robbery offenders without a conviction under section 924(c) was 75 months. 

In fiscal year 2016, 46.7% of robbery offenders without a conviction under section 924(c) were sentenced within the guideline range.

• Substantial assistance departures were granted in approximately 11 to 13 percent of robbery cases without section 924(c) convictions in each of the past five years.
  The average reduction for these offenders was 42.6% during the five year time period (which corresponds to an average reduction of 36 months).
• The rate of non-government sponsored below range sentences increased during the past five years for robbery cases without section 924(c) convictions from 22.5% to 24.7%.  The average reduction for these offenders was 32.1% during the five year time period (which corresponds to an average reduction of 24 months).

In fiscal year 2016, 43.0% of robbery offenders with a section 924(c) conviction were sentenced within the guideline range.

• Substantial assistance departures were granted in approximately 19 to 22 percent of robbery cases with section 924(c) convictions in each of the past five years.
  The average reduction for these offenders was 41.7% during the five year time period (which corresponds to an average reduction of 84 months).
• The rate of non-government sponsored below range sentences increased during the past five years for robbery cases with section 924(c) convictions from 18 to
  21 percent. The average reduction for these offenders was 17.3% during the five year time period (which corresponds to an average reduction of 31 months).

UPDATE: It just dawned on me, as I was thinking about how much to talk about the impact of section 924(c) charges and convictions in the federal sentencing process, that I should flag that just last year the Supreme Court finally got around to discussing the interplay of mandatory minimum sentencing provisions and the discretion created by Booker's conversion of the guidelines from mandates to advice.  The Supreme Court's unanimous(!) work in Dean v. United States is worth checking out, in part because it highlights the potential severity of "stacked" 924(c) convictions.

And if you have been wondering, "what the heck is a section 924(c) conviction and why is it so significant," here is a link or two or three to help(?) on that front.

Interesting accounting of federal bank robbery sentencing (and parole) in pre-guidelines era

Starting with Wednesday's class, we will start unpacking the sentencing of Rob Anon under the modern federal sentencing guidelines.  I welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing.  This post, however, is meant to wrap up our pre-guideline sentencing experiences with the help of this interesting 1986 US Government Accounting Office report reviewing the "median sentences imposed and median time served for 609 offenders convicted of armed and unarmed bank robbery who were confined in the Federal Prison System as of June 30, 1983, and on whom release decisions had been made by the Parole Commission."

I think folks find might the whole US GAO report interesting, but I will provide this imperfect summary:

• Those convicted of armed bank robbery received a sentence of, on average, 15 years and served in prison, on average, 6 years
• Those convicted of unarmed bank robbery received a sentence of, on average, 10 years and served in prison, on average, 5 years

Usefully, the short report also notes that the US Parole Commission had "established parole release guidelines as required by law which indicate the customary range of time to be served by offenders before release from prison." These parole guidelines had two parts, "offense severity and parole prognosis": the severity of the offense was "broken down into eight categories" and the parole prognosis score ranging "from 0 to 10."  These Parole Commission guidelines served as a partial template for the work of the original US Sentencing Commission creating the original US Sentencing Guidelines (especially its criminal history categories).

In addition to giving you another perspective on the range of sentencing outcomes for the likes of Rob Anon, this report serves as another reminder of just how practically consequential the abolition of parole was as a feature of the Sentencing Reform Act of 1984.  We will discuss that reality and other parts of the SRA starting Wednesday. 

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.

"Parolable Lifers in Michigan: Paying the price of unchecked discretion"

The title of this post is the title of this February 2014 report by the Citizens Alliance on Prisons and Public Spending concerning the sentencing policies and practices in a state that, as this article notes, "abolished the death penalty on March 1, 1847, making it the first U.S. state and possibly the first in a democratic country in the world to do so."

I thought it useful to spotlight this new report as we begin our transition from capital to non-capital sentencing as a reminder that (1) not all US states and localities are impacted by modern capital punishment debates and doctrines, that (2) all US states and localities are impacted by modern non-capital sentencing debates and doctrines, especially with respect to the impact and import of "unchecked discretion," and that (3) there might be a variety of dynamic and complicated relationships between how states with and without the death penalty approach modern non-capital sentencing debates and doctrines.

On the current state (and possible future) of Ohio's modern capital punishment experiences

One (of many) interesting and valuable components of Ohio's modern death penalty system is the fact that the Ohio General Assembly has, by statute, required the Ohio Attorney General to produce an annual report on capital punishment regarding individuals who have been sentenced to death since Oct. 19, 1981.  The last four such annual reports are all available on-line via this webpage, and I highly encourage students to at least review quickly the most recent of these reports report (which is the 2010 Capital Crimes Report released in April 2011 available at this link).

The latest annual report will not only help you figure out how Ted Kaczynski might fare under Ohio's laws (see pp. 4-7 in the 2010 report), but also highlights the many fora for review of Ohio death sentences (see pp. 8-12 in the 2010 report, where the chart reprinted here appears at the end).  The 2010 report also has an extended discussion of DNA testing procedures and results for those sentenced to death at pp. 15-22.  The report also provides this (now slightly dated) statistics about the application of the modern Ohio death penalty:

Since 1981, Ohio has issued a total of 310 death sentences....

As of [the end of 2010], a total of 41 inmates have been executed under Ohio’s current law....

[And] a total of 14 inmates received a commutation of his death sentence to a sentence less than the death penalty....

[And] a total of 20 inmates died prior to imposition of the death penalty. This includes inmates who died of natural death and suicide....

[And] a total of 8 inmates were found ineligible for the death penalty dueto mental retardation (aka “Atkins” claims)....

[And] a total of 7 death sentences were vacated and remanded to trial courts for re-sentencing, which could result in imposition of the death penalty again ... [and] there was 1 case pending retrial....

[And] 64 death sentences were removed as a result of some form of judicial action beyond the cases already mentioned....

[And] a total of 155 death sentences remained active, including those currently pending in state and federal court [including] seven individuals [who] received a death sentence and were added to death row [in 2010].

As was true following my prior national data dump on executions in this post, I welcome and encourage comments on what lessons we might take away from this Ohio modern death penalty data and history.  Also, I encourage early thoughts about whether these data should suggest a particular agenda for the Ohio Chief Justice's newly form Joint Task Force to Review the Administration of Ohio’s Death Penalty (discussed in this press release and constuting a partnership between the Supreme Court of Ohio and the Ohio State Bar Association “to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.”)

Am I right that conclusive deterrence evidence would "solve" death penalty debate?

I mentioned in class my belief that if we had truly conclusive and indisputable empirical evidence that using the death penalty to sentence/execute guilty murderers indisputably saves innocent lives, then there would be very little political and social debate concerning using the modern death penalty to sentence/execute guilty murderers.  Does anyone want to take issue with this claim?  Specifically, does anyone wish to argue that, even in the face of truly conclusive and indisputable that abolishing the modern death penalty would cost some innocent lives, that we still should get rid of the death penalty?

Critically, as revealed by reports at this pro-death penalty website and responses at this anti-death penalty website, there plainly is not clear empirical evidence that using the death penalty to sentence/execute guilty murderers saves innocent lives.  Thus, one might reasonably accept my contention and still categorically oppose the death penalty given the current (and perhaps inevitable) absence of conclusive empirical evidence.  Still, I want to have a discussion — here on the blog and/or in class — concerning my basic assertion that conclusive empirical evidence here could end what is often cast as a purely moral debate.

UPDATE:  Inspired in part by the many thoughtful and effective responses to my initial inquiry, I am going to sharpen the hypothetical and see if the responses stay the same.  

Let's suppose that we now have truly conclusive and indisputable evidence that the summary execution of Osama Bin Laden served to very significantly reduce the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US), whereas the capture and continued confinement of Khalid Sheikh Mohammed has served to very significantly increase the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US).  

If we did have truly conclusive and indisputable evidence that OBL's quick execution saved many innocent lives in the US and around the world while KSM's capture and likely life imprisonment has cost many innocent lives in the US and around the world, do you think persons with moral opposition to the death penalty would still want all major terrorist suspects handled like KSM rather than like OBL?  (Ignore, for purposes of this hypo, that KSM was waterboarded, though maybe that makes it easier to accept my supposition that how the US has dealt with KSM has cost more lives than how the US dealt with OBL.)

Steve D. gets to the heart of my inquiries here when he states that "only someone who bases their morality on pure utilitarianism would be swayed by such evidence," but he then claims that "most people are not utilitarians."  I have the contrasting belief that everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive.  And I think this is a critical issue to explore at the outset of any death penalty discussions becausemany people on all sides of the DP debate are often (1) quick to assert that nothing is more valuable/important than innocent lives, and (2) eager to claim that they have strong (but not conclusive) empirical evidence to support their DP position(s).

Some local specifics for the application of federal sentencing guidelines

As documented here, the US Sentencing Commission has recently released its "District, State, and Circuit Statistical Packets." In the USSC's words, "Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located)."

Here are the links to local packets:

• 6th Circuit
• Ohio
• Ohio Northern
• Ohio Southern

Students will get extra super bonus class participation points for noting in the comments any special or interesting data they can mine from all these materials