LWOP Sentence For Zapata Murder Upheld On Appeal

The Colorado Court of Appeals has upheld the convictions of a man charged with first-degree murder and other counts in what prosecutors said was the bias-motivated killing of a transgender Greeley woman.

Allen Andrade of Thornton was convicted in 2009 of deliberately beating 18-year-old Angie Zapata to death with a fire extinguisher in 2008 after learning she was biologically male. Defense attorneys argued Andrade had planned to meet Zapata for sex and snapped after learning she was born male.

From here.

Adrande was sentenced to life in prison without possibility of parole. His main appellate arguments, an argument that the jury should have been giving an instruction mitigating his criminal culpability because he was drunk, and seeking to suppress the murder weapon from evidence, were mundane. My post from the day that he was convicted on April 22, 2009, is found here.

Given the fact that Adrande had at least three prior felony convictions in his fourteen years of adult life, and was charged as a habitual offender and was taped making a telelphone call from jail admitting to the killing (albeit arguably with a lower level of intent), made a confession to police (albeit arguably with a lower level of intent), and was arrested in possession of Zapata's stolen car, 32 year old Adrande would have gone to prison for 40 years to life, and also faced the 24 year sentences on other charges that he received, even if the appellate court had reversed the first degree murder conviction. He was convicted of a hate crimes charge, but given his first degree murder and other convictions, any appellate issues he could have raised related to that conviction wouldn't have mattered because they would have constituted harmless error at their worst.

The August 11, 2011 opinion of the Colorado Court of Appeals in case 09CA1310 People v. Allen Ray Andrade, was unpublished. It appears that the case was argued on the basis of the briefs with no oral argument in the case available in the Colorado Court of Appeals online archive of oral arguments.

Andrade could make a discretionary appeal to the Colorado Supreme Court, could make a state level collateral attack on his conviction after that, and could bring a federal habeas corpus petition after that according to strict procedural limitations. But, given the lack of a death sentence, the lack of a right to counsel for collateral attacks, the lack of a credible claim that he was not the one who killed Zapata, his long criminal history, and the weakness of his arguments on direct appeal and the weight of the multiple damning pieces of evidence against him, none of those efforts are likely to be successful. There is a good chance that he won't even bother with further appeals, although he does have nothing else to do for the rest of his life. And, Adrande is extremely unlikely, given the fact that he was not sentenced to death, has a long and serious criminal record, and there is no doubt that he was guilty of some serious crimes this time around, that he will ever receive executive clemency.

American Criminal Justice: Cheap, Final, Harsh and Fast

In practice, it is astoundingly unlikely anywhere in the United States, in the state or the federal system, that someone who is convicted of a crime and not sentenced to death, whose conviction is affirmed on direct appeal, will not have that conviction later overturned or will have that sentence commuted.

I'll also restate a note that I made in a previous post:

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body.

The trial was completed, the jury convicted, and the sentence imposed on April 22, 2009, nine months and one week after the murder was committed, and less than nine months after he was arrested. The direct appeal of right was resolved yesterday, fifteen months and twenty days after he was convicted, and thee years and twenty-seven days after the murder was committed. For all intents and purposes, the criminal justice system is now done with this case and he is the Colorado Department of Corrections' problem until he dies.

The sentence is rarely this long, but the general timeline in this case isn't unusual for a serious violent felony. Not every criminal case is so swift, but a very large share of all criminal convictions do result from arrests very shortly after the crime is committed and are based on convictions after trials where the evidence is overwhelming or guilty pleas, which move cases even faster. The constitutional right to a speedy trial rarely makes headlines, and isn't something most people are even aware of, but it has a pervasive effect on the pace of criminal proceedings in the United States.

Also, while the exact number will probably never be determined, the marginal cost of this criminal justice system of investigating and litigating this case to trial was almost nil, as most of the people involved, the police, DA who prosecuted the case, the judge and court clerks who handled the case, and the defense lawyers in the case, are on the public payroll on a salaried basis, and even if the personnel costs for everyone involved was prorated on an hourly basis, this case probably cost less to investigate and litigate through an appeal than a typical serious automobile accident that results in some injuries but not a death or a six figure contract dispute. All of the investigation and litigation costs combined for all parties were probably less than the costs associated with nine months of pre-conviction incarceration.

Of course, incarcerating this murderer for the rest of his life will cost the people of the State of Colorado something on the order of a million and a half dollars in today's funds after adjusting for inflation, and the State of Colorado probably spent hundreds of thousands of dollars incarcerating him before his most recent conviction on prior felonies and no doubt, for juvenile offenses as well.

If the death penalty had been sought and secured, it probably would have cost the State of Colorado more in additional litigation costs and death penalty implementation than it would save in incarceration costs from his premature death, or at least wouldn't have saved very much. It is also worth recalling that death sentences are overturned much more often than murder convictions. For example, the results in all the cases that produced post-conviction reversals of death sentences that were finally resolved between April 1973 and 2000, 54 cases were retried and produced a death sentence on retrial, 223 led to a murder conviction with a sentence other than the death penalty, and 22 cases ended with a determination that the defendant was not guilty of a capital crime. Thus, more than twelve out of thirteen death penalty sentence reversals ultimately kept a capital murder conviction in place, and some of the one in thirteen cases where a capital murder conviction was itself reserved still left some serious felony conviction in place rather than leading to a finding of outright innocence of any crime (the cases where there is a chance of innocence on all counts due to factors like mistaken identity or police frameups are the ones groups like the Innocence Project prioritize).

Deprived of any hope of release, little meaningful activity to carry out in prison, convicted of a sex related crime, and marked with a long track record of violent offenses, one can expect that Andrade will start his prison career at a very high security level and stay there, and that he will not be a model inmate.

One would like to think that people serving long prison sentences provide some benefit to society while they are there apart from staying out of the lives of law abiding citizens while they are incarcerated, although our system of criminal justice certainly doesn't make that a priority and is perfectly happen to simply waste and right off any contribution that incarcerated people could make for the most part.

For all the twists and turns of the criminal justice system that make headlines and feature in crime fiction, reality is that the vast majority of criminal prosecutions produce convictions for something, that a minority of cases go to trial and a minority of those cases that are appealed are reversed on direct appeal, that it is fairly unusual for even a criminal sentence to be reversed on appeal, and that executive clemency is almost non-existent. Also, the percentage of people who escape from incarceration in a state prison is infinitessimal, and is even smaller in the case of prisoners in the highest security environments who have committed serious violent crimes (a large share of all escapes are walk aways from community corrections facilities, work release programs or minimal security facilities housing the least serious offenders). And, convicting someone of escape once they are rearrested, given the availability of prison records, DNA evidence, fingerprints, photographs and so on, is little more than a formality.

By the time the police make an arrest and a prosecutor files charges the probable future is usually very clear, and the vast majority of the time that there is a conviction it sticks. And, it is done very cheaply.

Pretty much the only way to have a reasonable chance of escaping some punishment for a crime is to not get arrested in the first place, and of course, that usually is what happens.

Why point all of this, which is obvious to those familiar with the system except politicians, for the most part?

First, there has been a lot of criticism that the Warren revolution in constitutional criminal procedure has made it easy to escape punishment from the criminal justice system. The reality is that there isn't much merit to that assertion. People who are arrested for serious crimes are usually convicted of something and usually get long prison terms if they have criminal records and committed really serious crimes, indeed, longer terms than anywhere else in the world pretty much.

Second, there has been a strong conservative movement to cast doubt on the capacity of the criminal justice system to handle terrorism suspects. But, there is extremely little evidence to suggest that it is not an effective way to punish them and there is considerable evidence to show that the due process protections and fairness of the criminal justice system, relative to more draconian approaches proposed to deal with terrorism, is better at preventing incapacitation of one terrorist from causing future terrorist acts inspired by action taken against the first terrorist. The claimed need for deprivations of civil liberties is premised on the incapacity of the civilian criminal courts to secure convictions and impose long sentences for terrorist acts which is simply not supported by experience in these cases.

READ MORE - LWOP Sentence For Zapata Murder Upheld On Appeal

The Trouble With Felony-Murder

Law professor Guyora Binder's recent law review article on felony-murder is guilty of running down a straw man argument. Professor Binder argues that the offense of felony-murder, which is the law in 45 states and allows for a murder conviction by someone who did not intend to kill but was involved in felony that resulted in a death is legitimate in the vast majority of cases since the death does amount to, at least, negligent homicide in an aggravating circumstance. The problematic cases, Binder argues, are those in which the causation requirement is too weak because the death was not foreseeable.

Binder refrains from seriously addressing the capital punishment implications of a mere participant in a felony who had no direct role in causing the death, or the grading of the murder involved, which is a great shame as it is the most central issue in the matter. A mere participant in a felony that gives rise to death is eligible for the death penalty, and is also eligible for life imprisonment without parole. Indeed, felony-murder was invented historically precisely to separate a subclass of murders for which the death penalty would be available from a subclass of murders for which it would not be available, such as impulsive murders not involving pre-meditation or another felony.

While few criminal justice scholars would seriously doubt that it is not unreasonable for involvement in a dangerous felony that causes a death (at least foreseeably) to be punished more severely than involvement in a dangerous felony that does not cause a death in some manner, most would also agree that, as a class, the individuals who are mere participants in group felonies where someone else causes a death, include the largest share of individuals who are the least culpable murder convicts who are eligible for the death penalty or life without parole sentences in current law. Moreover, since no sentence less than life without possibility of parole is often allowed upon a conviction for this offense and the death penalty is often a permitted sanction for it, these are cases where the lack of a potential for judicial mercy in sentencing is highly troubling. For example, it is no coicidence that a large share of all juveniles sentenced to life in prison without parole in Colorado were convicted of being a participant but not actual killer in a felony-murder case where judicial discretion to classify the case as a juvenile one was also absent.

While lack of foreseeability of a death is a problem in some cases, at least as important is the grading of felony-murder as a form of capital murder rather than as mere ordinary non-capital murder for which considerable sentencing discretion to fit the facts and circumstances of the case and the defendant's involvement in its are involved.

Binder's apology for felony-murder statutes make sense in a world where there is a foreseeability requirement and felony-murder is the same grade offense as ordinary murder and conspiracy to commit capital murder, but below the grade of capital murder. But, because of the historical origins of this crime as a grading device that inadvertantly expanded as well as narrowed the scope of the death penalty, this is rarely the case, and it is a pity that Binder's analysis relegates the key issue of death penalty eligibility to a mere footnote and doesn't squarely address life without possibility of parole sentencing without judicial discretion at all.

Binder also fails to address in any meaningful way the extremely restrictive standards for renunciation of felony-murder culpability in most jurisdictions that makes it almost impossible for an uncounseled defendant acting in the heat of the moment to qualify even when genuine renunciation and efforts to undo the crime set in motion are present.

READ MORE - The Trouble With Felony-Murder

Turkey's Invisible Democratic Revolution

Since Attaturk, the Turkish military has served a the defender of a secular constitution in a country that was dominantly Muslim at the expense of majoritarian democracy. But, it appears that this role has now ended for good as the senior military leadership has been purged by the combination of dozens of arrests of senior military officials by civilian law enforcement authorities and the mass resignation of the remaining top military officers. It isn't entirely clear from half the world away to what extent the charges that have led to the arrests of military officers are valid and to what extent they are cover for a political purge.

It also isn't clear what made it possible for the arrests to be successfully carried out this time when in the past civilian authorities have seemed unable to carry out these kinds of arrests, although the generalized influences of the Arab Spring in the region could be a factor.

Turkey's days of military supremacy over civilian rule has ended, bringing it out of the classic newly emerging democracy phase of development. But, it isn't yet clear if the civilians who now have unquestioned supremacy will be able to avoid the temptations to engage in unconstitutional conduct or establish a religion in governmental affairs, which could be worse.

The example is a worthwhile one for American political scientists to examine because a similar strategy of civilian arrests of military leaders is essentially the only recourse in the U.S. Constitution should there ever be a threat of a coup in the United States and a coup is by far the most plausible end of regime scenario for the American system of government.

READ MORE - Turkey's Invisible Democratic Revolution

Too Many And Not Enough Drugs Are A Critical Factor In Insane Violence

Severe mental illness is greatly reduced as a risk factor for violence in people who are taking their meds, and greatly increased as a risk factor for violence in people who self-medicate with illegal drugs.

The severely mentally ill make up only a minor share of violent crime perpetrators (and are often victims themselves), so treatment of the severely mentally ill isn't a major driver of violent crime, but they do, overall, have an elevated risk of committing violent crimes living in a world that deals with several mental illness the way that our society does. Also, they do represent a population for whom there is a fairly clear path to reducing violent crime commission risk. Moreover, some of the most sensational and shocking crimes in our society involve instances where severely mentally ill individuals run amok, even though these crimes are very rare and are difficult to predict or prevent.

[S]everely mentally ill people account for only 3 to 5 percent of violent crimes in the general population. . . . we refer only to severe mental illness—meaning schizophrenia, bipolar disorder or psychotic depression. . . .

In a 2009 meta-analysis, or quantitative review, of 204 studies exploring this connection, psychologist Kevin S. Douglas of Simon Fraser University and his associates found a slightly greater likelihood of aggressive behaviors among those with severe mental illnesses. Yet this connection is much weaker than the public seems to believe it is and does not necessarily mean that these serious disorders cause violence. The causation could be in the reverse direction: engaging in chronic aggression (stemming from some other source) may create stress that triggers the illness in those predisposed to it. Alternatively, a third factor could spawn both a psychiatric condition and violence. . . .

[T]he MacArthur Violence Risk Assessment Study in 1998, sociologist Henry J. Steadman of Policy Research Associates and his colleagues reported that almost a third of severely mentally ill patients with substance abuse problems engaged in one or more violent acts in the year after they left the hospital. For discharged patients who did not abuse drugs, the corresponding figure was only 18 percent. . . .

In its meta-analysis, Douglas’s team also flagged drug abuse as one of several factors that contributed to the connection between mental illness and violence. In addition, it found the link was even stronger for patients who suffered from delusions, hallucinations or disorganized thinking. Thus, a mentally ill person is more at risk of committing an act of aggression when that individual is also abusing a drug and shows particular symptoms. . . .

In the MacArthur study, Steadman’s team found no difference in the prevalence of violence between the severely mentally ill who were on their medications and mentally healthy people, whereas unmedicated patients lashed out at significantly higher rates. . . . improving adherence to treatment may lessen the chances that severely ill people will behave violently.

From Scientific American.

I am not quite as optimist as Hal Arkowitz and Scott O. Lilienfeld, who are the authors of this Scientific American article. For instance, individuals who have been hospitalized for mental health conditions (generally, because someone determines that they pose a risk of bodily harm to themselves or others as a result of one or more prior specific incidents), clearly pose a much greater risk to the public than individuals who have received merely outpatient mental health treatment. An 18% risk of engaging in violent acts is on the same order of magnitude as the risk that a felon about two years out of prison without incident will do so and is fantastically elevated relative to someone who has neither a criminal record nor a record of commitment to an institution for a mental health condition. A 33% risk of engaging in violent acts is on the same order of magnitude as the risk that a felon just release from prison will commit a new crime.

The claim that "severely mentally ill people account for only 3 to 5 percent of violent crimes" also fails to reflect that a much larger percentage of people whom the criminal justice system deems it necessary to incarcerate have moderate to several mental health issues. The number of mentally ill people in jail and prison vastly outnumbers the number of mentally ill people who are in civil institutional settings.

This account also fails to dissect the overall problem of mental health issues adequately. There are multiple very different paths linking mental health issues and crime.

One common path links traits like impulsivity, novelty seeking, and weak anger management capacity with "heat of passion" crimes, often under the influence of alcohol and aggravated by the possession of weapons. These traits do not mitigate guilt in the criminal justice system but often are considered in mitigation of a sentence for a crime.

A second common path links the concept of psychopathic absence of conscience, with pre-meditated crimes like first degree murder, serial rapes and fraud. The violent crimes seem to usually involve a plus factor of impulsivity with pscyhopathy. The white collar crimes and immoral but not illegal business practices tend to fit psychopaths who are at the opposite end of the conscientious to impulsive dimension of personality. Psychopathic traits, rather than being mitigating circumstances, are generally aggravating circumstances in the criminal justice system and closely overlap with circumstances justifying the death penalty.

The third common path is the one focused on in the article - the delusional, and also manic or depressed individual who goes amok, a path where illegal substance abuse greatly elevates the risk and taking prescribed meds

Fourth, a significant share of people who commit serious crimes are not mentally ill, per se, but are developmentally disabled, i.e. they have IQs so low that they are considered mentally retarded. In the extreme, a low IQ can affect guilt in the criminal justice system, but more often it mitigates a sentence and heightens scrutiny of the veracity of the individual's confessions to law enforcement officers, their capacity to carry out the crime, and their vulnerability to being framed or participating ineffectively in the criminal justice system. 

Fifth, a certain share of people who commit serious crimes do so in response to traumatic circumstances, extreme stress, abuse and manipulation, in a form of extended self-defense, in the form of poor judgment in connection with the mental breakdown of a not congenitally mentally ill individual, or in the form of an inability to resist the pressure from a dominant person in their life to commit a crime. Criminal justice responses to these circumstances are all over the map, sometimes producing leniency from one district attorney or judge or jury, while producing draconian responses from another just a few miles away.

READ MORE - Too Many And Not Enough Drugs Are A Critical Factor In Insane Violence

Judge Determined Death Sentences In Alabama

Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 107 times. Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country. Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.

Override is legal in only three states: Alabama, Delaware, and Florida. Florida and Delaware have strict standards for override. No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999. In Delaware and Florida, override often is used to overrule jury death verdicts and impose life -- which rarely happens in Alabama.

From the Equal Justice Initiative via the Sentencing Law and Policy Blog.

The study will, very likely, be the basis of court challenges to and efforts to legislatively change the practice.

READ MORE - Judge Determined Death Sentences In Alabama

Sentencing As A Subnational Federalism Issue

In California, "state prison overcrowding is due in large part to county decisions about how to deal with crime. . . data from 2000-2009 [show that] . . . California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates. . . . incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime.

Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison. . . . [L]ocalities are crucial - and critically underexamined - contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies."

From the abstract to "Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates -- And Why it Should" by W. David Ball.

The notion that criminal justice decisions have budget implications that work like an entitlement program, mandating spending with little regard to the amount appropriated by the state budget for the purpose, is familiar. The notion that local exercises of discretion in the criminal justice system can be as important as the text of the state criminal code in driving incarceration rates is not unfamiliar, if less commonly observed.

But, the notion that disparities in criminal justice discretion are a distributive justice issue between local governments, with excessive incarcerators imposing burdens on other state taxpayers who have no say in those decisions is a conceptual breakthough.

The article linked looks at these issues in California, but they also come up in Colorado, where suburban Denver's Arapahoe County's notorious prosecutor exercises discretion to impose longer and more expensive sentences of similarly situated defendants than prosecutors elsewhere in the state, such as the neighboring urban City and County of Denver. But, I'm not aware of anyone that has done a study looking at the issue from the frame that Ball does in Colorado, even though all or almost all of the relevant data are fairly easily available online in government statistics.

The high sentences sought in Arapahoe County in the criminal justice system impose fiscal burdens on other Colorado taxpayers in a way similar to, but less transparent than the efforts of the exurban Denver area Douglas County school board to unilaterally establish a voucher plan that would give students attending private (mostly religious) schools a partial share of the per student state funding that the district receives (and no local money) if it can succesfully make the case that voucher students count for school funding formula purposes. In other words, both proposals are to a significant extent money grabs at a scarce state general fund by affluent communities led by politicians who have a strong public ideological opposition to taxes and government spending.

Framing sentencing law as a fiscal issue rather than a human rights issue has produced a major withdrawal from war on drugs and tough on crime politics driven long sentences for relatively minor crimes in a variety of conservative leaning political jurisdictions. Perhaps a focus on considering local sentencing discertion in a fiscal frame could elicit further reforms that address abuses of discertion by local political actors in this process, where traditional liberal and academic arguments for sentencing reform have not.

READ MORE - Sentencing As A Subnational Federalism Issue

The Innocence Effect

[S]hadow-of-trial models [of plea bargaining] commonly pay little attention to defendants’ culpability per se. To wit, innocents – who may well face a higher average probability of acquittal at trial – are expected to demand a more lenient sentence in return for their guilty plea. However, if the plea offer is accurately adjusted to defendants’ probability of conviction, innocence in itself plays no role in the defendant's decision. This assumption, which is jointly held by both parties to the plea bargaining debate, is false. . . .

[I]nnocent defendants are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial. . . .

[T]he implications of the innocence effect and its underlying causes for the plea bargaining debate . . . requires both camps to reevaluate their policy prescriptions and offering some new proposals of our own to minimize false convictions, better to protect the innocent, and improve the plea bargaining process. . . .

As a result of the innocence effect, plea bargains probably do not increase the rate of wrongful convictions, as argued by some of the plea bargaining opponents, but also do not promote the interests of innocent defendants as argued by the plea bargaining supporters. . . .

One way to reduce the negative effect of plea bargaining on the sentences of wrongfully convicted defendants is to limit size of the plea discount. The law can instruct judges not to approve a plea bargain if the post plea sentence is significantly lower than the sentence expected after a jury trial conviction. If the prosecution’s ability to offer significant sentence discount in plea bargaining would be limited, defendants requiring considerable discount in exchange for their guilty plea would not bargain. Since the innocent demand, on average, significantly lighter sentences than guilty defendants, the proportion of innocent defendants among those who plead guilty will be smaller. . . . Restriction of the guilty plea discount will minimize the gap between the sentence imposed on those who opt for a trial, including relatively many innocent, and that of those who plead guilty, most of whom are guilty. The innocent defendants who will be convicted in jury trial will still be sentenced for longer terms than the guilty pleaders, yet, the difference will be smaller. . . .

When it comes to sentence bargains, it is not a particularly difficult task. Courts can be instructed to reject plea bargains if the proposed sentence is substantially lower than that imposed in similar circumstances after a trial. Limiting charge bargaining is much harder, but it might still be a possible task. . .

Another alternative to plea bargaining can be bargaining for a simplified criminal process. The law can encourage parties to replace plea bargains with agreement on shorter and simplified process in return for a sentence discount. Parties can agree on a bench trial instead of a jury trial, agree that the defendants will be the first to testify, before the case for the prosecution is presented, or make other stipulations which allow a cheaper trial for the prosecution.

True, in such a simplified process, the risk of mistake might be larger. Yet, innocence defendants in such process can gain a discount for the agreement without pleading guilty – something which they are reluctant to do. Moreover, defendants in such simplified proceedings will maintain the right to contest the case, and, if successful, gain an acquitted, a right they waive in regular plea bargaining. Innocent defendants who may be reluctant to plead guilty, would often prefer a simplifies process in which they are not required to plead guilty, are able to avoid the damaging consequences of prolonged litigation and benefit a lenient sentence in exchange for saving judicial time.

True, the defendant in such a simplified trial might have a smaller chance of acquittal. As a result, it is possible that defendants who would have been acquitted in a full trial may be convicted in a simplified trial. Nevertheless, it can be said in confidence that the advantages of the simplified procedure outweigh its disadvantages.

First, the proposed procedure will promote the interest of the innocent defendants by allowing them to benefit from a real legal process which is aimed at finding the truth while benefiting from a sentence discount. Indeed, the cost of this procedure is higher than that of a guilty plea, but the gap between the two is not so big when it comes to substantially simplified process. Additionally, most of the guilty defendants who plead guilty today will continue to do so even when offered a simplified process is an option because in order to be acquitted in such a procedure, they would have to lie to the judge. In most cases that involve conclusive evidence, defendants will find it psychologically difficult to lie to a judge; mostly due to the fact that it probably will not help their case. As shown above, guilty defendants tend to plead guilty simply because they are guilty.

Therefore most of those who plead guilty will continue to do so even when they can get a similar discount in a simplified process. Furthermore, some of the defendants, who in the absence of an alternative procedure would choose a full trial, would now choose the simplified procedure. As a result, judicial resources will be spared and could be channeled towards the implementation of the simplified process. In light of this, the simplified procedure could advance the interests of the innocent without the need for additional resources.

Second, the procedure may also reduce wrongful convictions. Despite the reluctance of innocent defendants to plead guilty, some of them succumb to the desire to quickly end the proceedings or to the fear of a wrongful jury trial conviction, and thus plead guilty. The simplified procedure could provide these defendants an opportunity to challenge the charges against them. In light of all of this, we believe that the benefits of the proposed procedure, in view of innocent’s reluctance to plead guilty, outweigh its disadvantages. Moreover, even in cases where a person might be mistakenly convicted in a simplified process, the moral gravity of such conviction will be smaller because it will be reached after an honest judicial attempt to find the truth. Studies on procedural fairness even indicate that defendants who are not satisfied with the outcome of the trial tend to accept it if they were given an opportunity to argue their case before an impartial arbiter before the verdict. Simplified procedure might be better in allowing the defendant a saveopportunity to present his story, than the adversarial jury trial.

From here.

The process bargaining elements of the authors proposals are expressly a part of the U.S. military justice system, in which a defendant can sacrifice due process protections in exchange for a lower maximum sentence, if the prosecuting authority files a charge that permits that process to be used.

One procedural tool to limit charge and sentencing bargains would be to allow defendants to make a post-sentencing motion to reduce their sentence to some multiple of the worst case scenario that the defendant would have faced under any plea deal offered by the prosecution prior to trial.

Another reform that might be important is to review particular proposed or currently available criminal procedure protections of criminal defendants to determine which do the most and the least to help innocent defendants.

READ MORE - The Innocence Effect

The Power of Clarity

The web comic Misfile illustrates a point that is a powerful one in litigation and conflict resolution generally: clarity of proof can be extremely powerful.

The scene as set as two of our main characters, both high school girls (actually, it is a bit more complicated than that, but those issues aren't relevant to this post) and neither of whom has any prowess at fighting, head to the parking lot after a late night burger and fry session where they encounter two imposing men with bad intentions who make increasingly less veiled threats until their not very imposing high school friend appears and confronts the men (1, 2, 3, 4, and 5).

Our hero is clever, however, and does have a cell phone, which saves the day as illustrated below in the scene's climax:

Mangaka Chris Hazelton isn't breaking new ground in this twist. I've seen it in popular fiction half a dozen times, but it really does work in real life, and I've seen this general insight used with success in media reports of real life lawsuits, cases that I've actually worked on, and in day to day disputes that threatened to escalate over the years quite a few more times than I have in action movies and police procedurals.

While there are fine points of the law that are resolved in appellate courts, often to address instances when the facts or law are ambiguous, the law can be an extremely powerful and predictable tool when the facts are crystal clear and that law that applies to those particular facts is not ambiguous.

Video recordings and DNA evidence, for example, have led to an surge in cases where police misconduct is identified and punished, where innocent defendants who are convicted are exonerated, and where guilty individuals are identified and convicted of serious crimes. Likewise, as a general rule, the value of private investigators who can develop a clear set of facts in a case, is greatly underestimated.

Clear facts mean that presumptions that protect powerful interests don't work. Clear facts mean that the party with the facts in their favor doesn't have to compromise in settlement negotiations. Clear facts permit litigators to present a smaller number of simpler legal theories rather than hedging their bets due to factual ambiguities with multiple theories.

A great deal of the way that economic transactions are structured can be explained by a desire to create a compact set of completely unambiguous, easily proven facts should there be a need to bring suit as a result of the transaction. For example, when a purchase is financed with credit, the underlying purchase of goods or services for money is typically separated from the promise to pay a third party lender with whom the only material issues are the terms of a promissory note or credit agreement, the amount lent in documented non-cash transaction, and the payments made in documented non-cash transactions. By segregating disputes about the underlying purchase from disputes about the debt, the resulting lawsuits become simpler. Lenders also tend to lend predominantly in low dollar amount transactions that can be litigated with the expedited procedures of limited jurisdiction courts, or in transactions with collateral where the collateral can be seized in at least partial satisfaction of the debt without judicial process or with an expedited and standardized foreclosure process. Moreover, because the judicial process poses such a low barrier to enforcement of an obligation in a situation where the facts are clear, it is often not necessary to resort to that process at all to secure compliance.

Messy aspects of economic transactions can be and are litigated. Business people sometimes extend credit to their customers, linking the credit arrangment and the underlying transaction, and dissatisfied customers sometimes bring suit when the goods and services they receive are unsatisfactory. Some deals are inescapably complex, multi-party arrangements. Accidents happen in ways that are not foreseen and not well documented but serious nonetheless. But, these make up a decided minority of cases that are litigated in the civil courts.

READ MORE - The Power of Clarity

Three Hots, A Cot, Medical Care and Safety

One of the foundational ideas of criminal justice is that the threat of incarceration discourages crime because it is worse to be in prison than to not be in prison. For most Americans, this is an accurate statement. For many young black men in the United States, this is a closer call.

Using data from the U.S. Bureau of Justice Statistics and Census Bureau, I estimate death rates of working-age prisoners and nonprisoners by sex and race. Incarceration was more detrimental to females in comparison to their male counterparts in the period covered by this study. White male prisoners had higher death rates than white males who were not in prison. Black male prisoners, however, consistently exhibited lower death rates than black male nonprisoners did. Additionally, the findings indicate that while the relative difference in mortality levels of white and black males was quite high outside of prison, it essentially disappeared in prison. Notably, removing deaths caused by firearms and motor vehicles in the nonprison population accounted for some of the mortality differential between black prisoners and nonprisoners. The death rates of the other groups analyzed suggest that prison is an unhealthy environment; yet, prison appears to be a healthier place than the typical environment of the nonincarcerated black male population. These findings suggest that firearms and motor vehicle accidents do not sufficiently explain the higher death rates of black males, and they indicate that a lack of basic healthcare may be implicated in the death rates of black males not incarcerated.

From Evelyn J. Patterson, "Incarcerating Death: Mortality in U.S. State Correctional Facilities, 1985–1998," Demography, Volume 47, Number 3, August 2010, E-ISSN: 1533-7790 Print ISSN: 0070-3370, DOI: 10.1353/dem.0.0123.

READ MORE - Three Hots, A Cot, Medical Care and Safety

Denver's Municipal Election Round Two

Ballots must be received in Denver's runoff election on Tuesday. Today is that last day the a mailed in ballot has a reasonable chance of arriving; delivering a ballot to a designed drop off (the instructions in your ballot have locations and hours of operation) is a better bet after today.

The Mayoral Race

The marquee race for mayor is between Chris Romer and Michael Hancock. I made a choice and voted, but honestly, I am as ambivalent as I've ever been in an election. I'm not alone in this; Vincent Carroll at the Denver Post wrote a column saying the same thing.

Polling shows Hancock with the lead, although not an insurmountable one, despite the fact that Romer had the most votes at the end of the first round.  Voting in the Mayor's race once again closely followed ethnic lines in the first round, with predominantly Hispanic neighborhoods favoring Meija, predominantly black neighborhoods voting for Hancock, and white neighborhoods voting for Romer.  Most of the leaders in the Hispanic community have backed Romer in the runoff following the lead of Meija, but many of the runner up white candidates in the Mayoral race have backed Hancock.

Both are Democrats. Neither was my first choice. Both have political experience. Romer has a background as na investment banker who specialized in municipal bonds and focused a fair amount on out of the box solutions to the state's problems, particularly transportation, while in office in the Colorado General Assembly representing parts of the city including Congress Park. Hancock is our outgoing city council President with strong ties to the community. Neither have experience of CEO of an organization in any way resembling the City and County of Denver in either size or character. Romer has stronger ties to big business and has been the preferred candidate of big Denver names in the Republican party, and his father was a decidedly moderate Democrat while he served as Governor of Colorado. Hancock's natural instincts are to consider the impact of policy on the little guy, but he lacks the connection's to the city, state and national power elites that can help make things happen that Romer has at his disposal.

Romer has waffled on his stand on medical marijuana. Hancock has attacked Romer for taking big donations from strip clubs, equivocated on teaching evolution and is lukewarm about the right to choose. It is hard to tell how this will play out as the City develops policies for dealing with legal and illegal vices. Neither man seems to have an unwavering commitment to the sensible cost conscious, treatment oriented criminal justice and corrections administration reforms that Doug Linkhart has quietly but relentless secured in his tenure on the City Council.

Romer has promised to cut down on land use and licensing red tape, a legitimate issue that Hickenlooper also put on his agenda but never managed to pull off. Hancock seems inclined to refocus city attention on neighborhood level projects rather than big ticket centralized projects that most of his predecessors have focused upon.  But Hancock has less of a business orientation, for example, fumbling his handling of a situation involving the regulation of the city's taxi market in a way that seemed to help keep a new competitor out of the market for no legitimate reason. Hancock had personal involvement in developing the city's new zoning code (which is substantively probably worse than the hodgepodge that came before it despite being statutorily much more clean) and may feel a stronger stake in defending it whether or not it makes sense in a particular case out of respect for the process that created it, than Romer who has far less participation in that process.

Hancock's political style is more consultative, and community involvement is a natural instinct for him, but perhaps as a result, has few signature innovations as feathers in his cap despite the power he held in city council and he offered no substantive reforms other than greater community contract when asked by Colorado Public Radio how the city would look different after a year in his administration. Romer is better at avoiding falling into group think with independent ideas, but while this may show leadership, it also isn't unusual for his proposals to face opposition because he hasn't won sufficient support behind the scenes with all of the players involved before announcing them. He poses a greater risk of embarking on big new ideas that fall entirely flat. Neither man has the game changing capacity to walking into a room and suddenly secure seemingly impossible compromises that our state's most effective politicians, like John Hickenlooper and Andrew Romanoff, share (most recently seen in Hickenlooper's successful legislative battle to secure passage of the bill approving the state's regulations, despite a squabble over pay day lending regulation that he got state house Republicans to give up upon).

Both men acknowledge that need to continue and improve upon the efforts of Mayor Hickenlooper and acting mayor Bill Vidal to be more effective in disciplining bad cops and both have promised to remove a key figure in that process who has been roundly criticized - although under Vidal's administration public discipline has been stepped up; but it is hard to tell who would be more effective at securing that result. The fact that Romer was endorsed by the Fraternal Order of Police and that Hancock has closer political ties to communities that have been on the receiving end of police misconduct tend to tip the balance towards Hancock in my mind on this very important issue.

Romer's personal life has been unnotable. Hancock's personal life has been messier, for example, he didn't publicly acknowledge an out of wedlock child born two years before he married his current wife who is the mother of his two younger children until around the time he started contemplating his current run for office (thereby heading of the potential scandal of a child appearing out of the woodwork), but not in any way that obviously impairs his ability to serve the city as Mayor.

I could have probably dug deeper and found out more about the candidates before I voted and relied to some extent on a variety of endorsement cues and gut feelings rather than taking the time to really gather all the information I needed to make an optimal decision in what is a close call when lots and lots of information is available. But, I didn't have the time and both men are competent enough that I have considerable hope for Denver's future no matter who gets elected.

Also, notably, while some people have grumbled about negative campaigning in the Mayoral race, I'm not one of them. Honestly, I wish there had been more of it. A flawed Mayor can do a great deal of damage, while the difference between what a pretty good Mayor and a blandly competent one can do for the city is pretty marginal. (Neither runoff candidate is out of the park excellent this time around.) If a candidate has a serious flaw, or even does something that might provide a hint that there is a real probability that the candidate has a serious flaw even if it doesn't squarely prove that, I really, really want to know that as a voter. Civility has its place in politics, and untruthful negative advertisements do detract from the process, but truthful negative advertisements are vital to helping voters make good decisions.

The Race To Be Clerk and Recorder

I also looked into the runoff Clerk and Recorder's race again before voting in that race between McCarthy, my neighborhood whom I should have known better when I first posted about the race who had a much better campaign than I had given her credit for having, and Debra Johnson, Aurora's city clerk. The really good news is that two other candidates for the office, whom I sounded criticized in a blog post prior to the first round were defeated (in one case by a margin smaller than the number of people who had read that blog post).

Again, I didn't have as much time to scour the scarce information about that race as I would have liked, and despite having personally spoken at some length with McCarthy and heard interviews with Johnson on the radio, I ultimately drew a blank on the issues that mattered most to me: "what agenda does each woman have to make changes in the office on day one?", and "who is more likely to make the right decisions on close election administration decisions?" Neither woman articulated much of an agenda or really answered the question of what problems they would solve when in office. Both seemed to manage to avoid giving answers on election administration questions in the statements I heard from them and the materials I reviewed that shed much light on how they would handle those issues differently from their competitor.

I ultimately voted for McCarthy, because she seems to have more political sense and more of a sense that she is entitled to use the authority of the office to the fullest, despite the fact that Johnson's experience is more directly relevant and that Johnson seems to have some sensible detail oriented ideas for improving the apolitical aspects of the office's operations. But, as in the Mayor's race, I didn't have a strong preference for either candidate and was voting as much as anything on gut feeling at a time when I felt that I didn't have the time or energy to get enough information to be comfortable that I'd chosen the person most likely to have the right instincts in close cases and to be the most effective manager of the office administratively (for managerial competence can frequently be as important as policy preferences and attitudes in this kind of post).  This was a very close decision.

The Big Picture

There are a few second round city council district races as well, but I have completely ignored them for the selfish reason that those are choices that I am not required to make myself.  The key point is that the first round of the race eliminated essentially all of the bad possiblities and have given voters time to take a closer look with more information available at the two candidates that remain in each of those races.

Four days from now, electoral municipal politics in Denver will be over for another four years and we will have a new team of leaders who have the ability to fix our city's problems and to help up realize its possibilities if they rise to that challenge, no matter who wins. Denver has been blessed by more than two decades of really outstanding mayors and strong municipal leadership on city council and in its other elected offices, that has allowed it to weather the financial crisis better than many peer cities, and to have a lot of neighborhoods that are vibrant and growing after starting from a pretty miserable place in the early 1980s, despite the fact that it is effectively landlocked. I sincerely hope that our next crew of municipal leaders, who have very big shoes to fill, will manage to continue this proud tradition.

READ MORE - Denver's Municipal Election Round Two

Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

The Wisconsin Supreme Court had declined to find a life without possibility of parole sentence unconstitutional in the case of a fourteen year old convicted of first degree murder, a ruling relevant to Colorado because it also has young juveniles serving life without possibility of parole sentences.

Colorado Compared

The issues are not strictly parallel to those in Colorado, however.

In the Wisconsin case, the trial court had the authority to impose a lesser sentence and declined to do so based on the particular facts, circumstances and mental capacity of the defendant. The crime of conviction also involved personal involvement of the juvenile in the killing.

In Colorado, a juvenile tried as an adult and convicted of first degree murder was automatically given a life without possibility of parole sentence (the death penalty was unavailable) without regard to the facts, circumstances or mental capacity of the defendant, and the judge had no ability to either mitigate the sentence or to make a determination that the juvenile was not eligible to be tried as an adult (a decision vested solely in prosecuting attorneys under Colorado's direct file law at the time). The only role that a judge and jury had in determining the sentence was to determine if the juvenile committed the crime of first degree murder, which in Colorado, includes criminal liability as a participant in a crime that causes a death even if the juvenile was not actually personally involved in the murder itself.

Given the wide deference that judicial determination of facts relevant to sentencing is given on appeal, it was therefore far harder for the juvenile in Wisconsin to make an "as applied" challenge to the constitutionality of a life without possibility of parole sentence than it would be to do so in Colorado. Notably, in death penalty cases, non-discretionary death penalty sessions that do not allow juries to individually weight aggravating and mitigating circumstances where a conviction authorizes the death penalty are not allowed, and there is at least some case law that seems to say that just as "death is different," that "juvenile life without parole" is different.

Thus, the only part of the Wisconsin precedent that is really directly applicable to Colorado as persuasive authority is its finding that the United States Constitution does not categorically prohibit the imposition of a life without possibility of parole sentence upon a fourteen year old for first degree intentional murder.

Specifically distinguishing young juveniles was something that might have been relevant to the "unusual" part of the cruel and unusual punishment analysis because only a small portion of juveniles sentenced to life without possibility of parole sentences are young juveniles and fewer states permit these sentences to be imposed on them, either directly, or because they are not eligible to be tried as adults for that crime. But, the Wisconsin Supreme Court, a conservative leaning court by most accounts after the more conservative candidate narrowly won its most recent highly contested judicial elections, chose not to find this sufficient grounds to find that Wisconsin's statute was categorically unconstitutional.

The Larger 8th Amendment Legal Context

In  general, states have very wide discretion to set sentences for criminal offenses committed by adults and juvenile offenders.

This decision comes against a fairly well tested backdrop of precedents on the constitutional boundaries on criminal punishment under the 8th Amendment protection against cruel and unusual punishment and some other constitutional provisions with similar effects.

The federal constitutional issues, although not any other issues raised in the Wisconsin case, could be appealed to the U.S. Supreme Court, which has held unconstitutional a Florida statute that imposed a life without parole sentence in cases that do not involve murder or "crimes against the state" (e.g. treason and espionage) as a violation of the Eighth Amendment protection against cruel and unusual punishment as incorporated to apply against the states under the Fourteenth Amendment to the United States Constitution.

The U.S. Supreme Court has prohibited the use of the death penalty for cases that do not involve murder or "crimes against the state" or for juveniles under the age of eighteen or for the mentally retarded.  For example, it held that the death penalty was not permitted for the rape of a child.  It is not entirely clear to me if the death penalty is constitutional in cases where proof of a murder is not required by is strongly presumed under the circumstances (e.g. a kidnapping where the victim has not been released alive but not been established to be dead), something that is permitted on the statute books in some states but has never been tested under currently applicable constitutional law to my knowledge.  No one is currently on death row for such an offense in the United States, but the justification for such laws is similar to the justification for the death penalty in cases involving "crimes against the state" like espionage.

The U.S. Supreme Court has also held, however, that felony-murder convictions as we as murder convictions based upon personally killing someone or soliciting a murder are eligible for the death penalty (although the role of the person involved is something that a sentencing jury may consider when it decides whether or not to impose a death penalty for a first degree murder), and the U.S. Supreme Court has ceased to make a distinction between young juveniles and older juveniles in eligibility for the death penalty, something that it had done under prior law. The certiorari decisions the U.S. Supreme Court made in its juvenile life without possibility of parole case from Florida had seemed to indicate that at least some justices found a distinction between young juvenile and older juveniles to be meaningful, but it ultimately did not reach that question in that round of cases.

Corporal punishment other than the death penalty, and methods of imposing the death penalty, are at least constitutionally suspect in some cases, particularly if it foreseeably results in, a gratuitous and unnecessary infliction of pain. Similarly, rape as a form of legally authorized punishment by the state is probably unconstitutional. There is also a separate part of the law of cruel and unusual punishment that pertains to the conditions of a sentence of incarceration rather than to the length of the sentence. The most actively litigated controversy in this area is the extent to which long term solitary confinement imposed in the discretion of a prison warden is constitutional. To date, no federal constitutional precedents that I am aware of place clear boundaries on this practice, but it is attracting increasing legislative and judicial attention.

I am not familiar with constitutional precedents on a minimum age at which adult criminal punishments are constitutional.  Most states observe some lower bound and exercise discretion to refrain from doing so in a large share of cases where it might have the constitutional authority to do so.  But, there is probably some point at which, for example, a life without possibility of parole sentence imposed for a murder committed by a very young juvenile, perhaps a six year old, would be held to be cruel and unusual.

Furthermore, the constitutionality of a non-discretionary life without parole sentence for an adult convicted of first degree murder, whatever its character, has been upheld in hundreds, if not thousands, of cases. Similarly, no serious challenges have had success challenging life sentences where there is a possibility of parole, or long sentences for a term of years, for either juveniles or adults for anything but the most trivial offenses when committed by non-recidivist offenders. I am not aware of any case law that addresses the question of whether a juvenile's criminal record is relevant to the 8th Amendment constitutionality of a very long sentence for a fairly minor crime committed as an adult, in part, because few states do this in practice. 

Cases under California's three strikes law have established that a life without possibility of parole sentence, even for petty theft, when committed by an adult who has been convicted of two prior serious (but non-violent) adult felonies, is not an unconstitutional violation of the 8th Amendment's protection against cruel and unusual punishment.  Very long sentences, although not life sentences, for minor first time drug possession convictions, have also been upheld as constitutional.  The only practical limitations on criminal sanctions for minor offenses are procedural - a right to a jury trial (in cases where a sentence could be to more than six months of incarceration) and of indigent parties to an attorney (if incarceration can be imposed as part of the sentence) must be available if sentences of a certain severity are a possibility upon a conviction.  As a general rule, an individual can be arrested and detained briefly consistent with the constitution, even for petty offenses for which incarceration is not available as a sentence upon conviction.

I know of no cases that have found that a sentence to prison for a term of years for one or more offenses that is so long that it amounts to a life without possibility of parole sentence is unconstitutional, although it makes logical sentence that this would be the case in some very long juvenile sentences for offenses other than murder or "crimes against the state" (e.g. a sentence of 120 years in prison without possibility of parole until 90 years have elapsed for a rape committed by a seventeen year old defendant).

A few cases have found unconstitutional criminal statutes that impose a longer sentence than the sentence imposed for an unequivocally lesser crime or an identical crime committed by someone with another constitutionally irrelevant difference in status under the equal protection clause of the 14th Amendment, rather than under any sort of proportionality principal of the 8th Amendment. But, those cases has largely involved idiosyncratic fact patterns.  Somewhat meaningful limitations on the size of punitive damage awards in civil cases relative to the amount of compensatory damages awarded have also been imposed as a matter of constitutional law in some circumstances.

Finally, there is a great deal of jurisprudence under the federal criminal code and U.S. Sentencing Guidelines over what sentences within the statutory maximum sentence authorized by a jury are "reasonable" or in contrast, constitute an abuse of discretion by a judge and does not adequately justify a departure from the sentencing guidelines.  These cases have invalidated sentencing decisions that are well within the boundaries of statutory maximum penalties for offenses that have been held to be constitutional, but also sometimes invalidate sentences for being too lenient.  But, these cases are questions of statutory interpretation rather than constitutional limitations on sentencing.

One of the most controversial parts of the U.S. Sentencing Guidelines jurisprudence is the part that has upheld the constitutionality of judicial consideration of acquitted conduct or uncharged conduct in imposing a sentence less than or equal to the statutorily authorized sentence for the crimes of conviction.  So, for example, someone with no prior criminal record convicted of a low level felony larceny count that might ordinarily garner a short sentence of incarceration (perhaps a year in prison) under the U.S. Sentencing Guidelines can constitutionally be given the maximum sentence available for someone with a long criminal record and large dollar value theft under that offense (perhaps twenty years in prison), if the judge believed that the individual also murdered someone, even if the jury acquitted the defendant of that charge.

In principle, the largely unrelated line of cases imposing limits on conduct that can be subject to criminal sanctions at all also imposes constitutional limitations on criminal sentencing, but these limitations are mostly unrelated to the line of cases related to cruel and unusual punishment.  Notably, the U.S. Supreme Court has declined, for example, to prohibit criminal defamation statutes in circumstances where civil liability for defamation would be permitted.

Clemency

Of course, Governors of states that impose juvenile life without possibility of parole sentences, and the President in the case of federal juvenile life without possibility of parole sentences, can commute a life without parole sentence to a lesser sentence or pardon the individual and have them released from incarceration. These decisions are not bound by precedent in any way.

Colorado's Governor Ritter convened a new panel to advise him on juvenile clemency and grant a few instances of clemency based upon its recommendations, but including two juvenile life without possibility of parole sentences in Colorado. The weight of the decision on the other cases currently rests on Governor Hickenlooper's shoulders for the several dozen juveniles serving these sentences in Colorado (no new juvenile life without parole sentences can be imposed in the state; newly sentenced juveniles convicted of first degree murder are eligible for parole after forty years).

READ MORE - Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

A Criminal Justice Catch-22

Ezell Gilbert is now before us asking to be relieved of the consequences of a mistake we made in his direct appeal in 1998. He told us then that the District Court was wrong in sentencing him substantially more harshly based on that court’s decision that carrying a concealed weapon is a crime of violence. We rejected his argument, and affirmed his sentence of more than 24 years. United States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). We did this on a record containing the District Judge’s clear statement that the sentence was longer than he would have imposed, but for the then-mandatory Sentencing Guidelines. Id. at 1372–73. It turns out, of course, that Mr. Gilbert was right and we were wrong. Carrying a concealed weapon is not a crime of violence. We said so, belatedly for Mr. Gilbert, in United States v Archer, 531 F.3d 1347 (11th Cir. 2008).

The effects of our mistake are quite dire for Mr. Gilbert, insofar as his
properly calculated (and advisory) guideline range would today be 130–162
months, or approximately 11 to 13 years. As I write this, I understand that he has already served more than fourteen years in prison. And yet the majority opinion tells Mr. Gilbert that the laws and Constitution of this country offer him no relief.

From the dissenting opinion of Judge Martin from an en banc ruling of the 11th Circuit in an appeal of a U.S. District Court denial of a habeas corpus petition.

The majority opinion by Judge Carnes (at the same link) opens with the following:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced. Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed. . . . The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes. For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.

Gilbert had a prior criminal record as a drug dealer, and the sentencing was conducted on the basis of plea bargain that stipulated that "his statutory sentencing range was ten years to life imprisonment on the crack distribution count and not more than five years on the marijuana distribution count. . . . Gilbert’s base offense level was 32 because his distribution offense involved at least 50 grams but less than 150 grams of crack." His lengthy and serious criminal history produced a sentencing guideline sentence about twice what appears to have been anticipated by either party because one of his prior convictions for unlawfully carrying a concealed weapon was treated as a violent rather than a non-violent offense.

The majority makes much of the fact that Gilbert received many instances of leniency in his prior run ins with the criminal justice system and could have faced a mandatory life in prison sentence if the prosecutors had chosen to take a fairly strong case to trial rather than plea bargaining. Basically, the majority argues rhetorically, although not really legally, that bad people like Gilbert deserved to suffer from judicial mistakes anyway, and gets to benefit from mistakes made in his favor, so judicial mistakes of law aren't worth correcting when they prejudice him.

In contrast, as Gilbert's lawyers see it, the basic problem is that he got a sentence twice as long as the one that he had bargained for (and of course, it bears noting that this long sentence was only made possible by laws imposing hysterically long sentence for dealing crack cocaine in small quantities that the Congress has since disavowed.)

The 11th Circuit is one of the most conservative of the U.S. Court of Appeal Circuits in the United States federal court system. The case eptiomizes the divide between liberals and conservatives over habeas corpus relief. (Note that this was a federal court decision, so the federalism aspects of habeas corpus law are absent from this case.)

It also illustrates the fact that in the federal sentencing guidelines system, slight nuances of interpretation regarding gray areas of the governing law can have profound consequences for criminal defendants. This suggests that there are real problems with the fundamental structure of this criminal sentencing system, which in practice can be quite capricious.

Then again, there is wide bipartisan consensus that far more profound mistakes in fact finding by juries cannot be corrected on any kind of appeal, and these mistakes are probably considerably more common than mistakes on questions of law that are subject to appeal or correction in a collateral attack on a conviction.

Reasonable estimates put the error rate of juries on the question of conviction for a crime, based on comparing the conclusions drawn by juries and judges and other judges with each other based on the same evidence and based on exoneration rates in cases where DNA evidence is available, at 10%-20%. Of course, something on the order of 90%+ of cases are plea bargained, so jury errors make up only about 1%-2% of criminal prosecutions. But, this still probably dwarfs the number of material mistakes made by judges on questions of law that are not corrected on direct appeal. While fixing mistakes that are clearly wrong, even if discovered and accurately addressed only much later, makes the system more accurate, errors in fact finding and poor legislative and quasi-legislative standards for sentencing across the board are a bigger problem in the inaccuracies of the criminal justice system as a whole.

READ MORE - A Criminal Justice Catch-22

Does Law Have Insufficient Visual Drama?

Once upon a time, where you wanted to sell real estate, you handed some soil or twig for the property to the buyer in what was called livery of seizen. Couples kiss, wear traditional costumes, and exchange rings when they marry in front of a crowd. One of the traditional ways to revoke a will (recently litigated in Colorado) is to destroy or deface the physical document (which leads to a number of peculiarities of probate law). Traditionally, wills were read aloud after a death, although that rarely happens these days. Even though it no longer legally matters, it is traditional to seal a contract with a handshake. When sports teams finish a game, win or lose, the players each slap hands saying "good game", emotionally putting an end to disputes over the details that led to the final result. Churches acknowledge affiliations to their faith with dramatic baptisms in the Christian church and a vividly memorable circumcision ceremony for infant Jewish and (at least in traditional societies) adolescent Muslim boys. Basic trainees in the military, men entering monastic orders, and prison inmates have their hair shorn, and are stripped of almost all of their personal possessions.

The current story arc in the webcomic Red String's (set in Japan but written by Gina Biggs of Georgia) features Hanae Niijima, a lesbian whose mother will not accept the fact that she has come out or acknowledge Hanae's true love Fuuko Akimoto. The set up to the scene is in this dialog:

Hanae: Why can't you be happy for me? This is who I am. This is ME.

Mother: It's NOT you. You were my sweet little girl who liked flowers and unicorns; who loved to be dressed up in frilly clothes and have me curl your hair. You were never a tomboy!

Hanae: That's STILL me. You think you have to be boyish to like a girl? That's . . .you can't believe that.

Hanae decides the overcome the conceptual block that seems to be getting in the way of her mother by making a visual statement:

Hanae: Fine. [Grabbing scissors with one hand and her long flowing curly hair with the other.]

Mother: What are you doing?!

Hanae: If its frills and curls keeping you from accepting this then I'll get rid of them. Will that work?

Hanae then hands a long pony tail of crudely cut off hair into the hands of her shocked mother who sits, holding it, staring off into space.

Obviously, I'm not recommending that this become a ritualized part of the process of coming out that is mandated in any way. But, powerful visual dramas can often convey meanings about abstract concepts, particularly emotionally charged ones, that some people have a hard time grasping from mere words.  Hanae's mother might be able to understand from the hair in her lap what she couldn't when her daughter merely spoke to her.

For example, one of the classic problems that one sees in modern family law litigation is that one or both of the people who once were married, or at least a loving couple, can't let go of that relationship. The service of the divorce petition, the signing of the papers, the dryly worded court order ending a marriage and providing for the sharing of the children and property of the marriage, and often a restraining order as well, don't communicate to the former member of that relationship with adequate emotional force that the relationship is really, once and for all, over.  Some people are simply beyond reaching by any means of communications, but a large number of people who go through family law proceedings simply don't really understand at an emotional and subconscious level what has happened until much later, even if they can parrot the court's ruling.

Perhaps if that message could be conveyed with more visual drama in some universally accepted new ritual, more people who move on, and there would be, as a result, less senseless fighting driven by old emotions instead of new practicalities. The demise of fault based divorce has made the process much more antiseptic for all involved in the process, but have we overdone it to the point of failing to really acknowledge in an emotionally valid way that not just the legal construct of the marriage, but also the emotional reality of the relationship that it approximates, has ended. Shouldn't the symbolism and ritual that ends of marriage need to be even more powerful and less subtle than the symbolism and ritual that starts one?

Adoptions tend to be even more understated, for fear of spooking the relinquishing parents, and not surprisingly, the main complaint that gets litigated in adoptions is that of relinquishing parents who claim they were properly appraised of the gravity of their actions.

A classic problem in consumer litigation of all kinds is the not infrequent failure of a debtor or consumer, already overwhelmed by paper and having trouble determining what is most important, to realize that a summons and complaint in a lawsuit is a once and for all speak now or forever hold your peace notice that has profound legal consequences if ignored.  This lack of understanding is one of the driver's of the almost ubiquitous paranoia about ulterior motives and about being cheated by one's betters found among unsophisticated people who have frequently been on the receiving side of litigation.

Perhaps we would do well to imitate the litigation practices of the protocol agents of the advanced civilization in the science fiction book "Jaran" by Kate Elliott, where legal disputes are announced by delivery of a physical baton in person by a courier, and one responds to the allegations at a mandatory in person appearance at the designated place and time, as inefficient as that may be, rather than simply enforcing the duty to appear by entering a default judgment against a party who does not appear (one that is often forgotten until property is seized pursuant to the judgment).

I have no empirically evidence to support the theory that more dramatic visual drama in the legal system would make any difference at all. The modern trend has been to strip away formalities, arcane language, pompous court room surroundings, wax seals, fancy ribbons and the like from legal matters. Instead, modern legal proceedings and legal facilities, favor plain English, the bare minimum of in person appearances, contemporary but understated and inoffensive surroundings suited for efficient, processing of business matters, dispenses with wigs and obtuse morning suits, and use very simple seals and acknowledgements - relying on the ability to confirm orders with third party repositories rather than lack of counterfeitability for reliability. Many documents that used to have to be notarized are now simply signed under penalty of perjury with no third party verification of identity or intent.

For lots of purposes this trend may be a good one. It demystifies the legal system and makes it more accessible to pro se parties. Much of what courts do is as much administrative business as it is emotionally meaningful decision making. For the most part, people prefer an inexpensive, quick, form driven informal probate process to the traditional succession proceedings of courts of equity will all their pomp and circumstance. And, some parts of the court process, like the delivery of jury verdicts finding someone guilty or not guilty, have managed to hold onto some of the drama that gives them emotional power. But, maybe some of the time, particularly in civil matters that don't involve business people and may have consequences for people who do not have the same cultural heritage as the lawyers and judges who are running the system, a higher touch, lower tech approach is in order and would make courts more effective. It is certainly a hunch that would be worth exploring with more systematic research.

READ MORE - Does Law Have Insufficient Visual Drama?

The New American Work Force

[I]n 1954, about 96 percent of American men between the ages of 25 and 54 worked. Today that number is around 80 percent. One-fifth of all men in their prime working ages are not getting up and going to work. According to figures from the Organization for Economic Cooperation and Development, the United States has a smaller share of prime age men in the work force than any other G-7 nation. The number of Americans on the permanent disability rolls, meanwhile, has steadily increased. Ten years ago, 5 million Americans collected a federal disability benefit. Now 8.2 million do.…There are probably more idle men now than at any time since the Great Depression, and this time the problem is mostly structural, not cyclical.

From Tyler Cohen at the Marginal Revolution citing David Brooks at the New York Times.

In parallel with the shift Cohen notes, the percentage of adult women in the work force has almost doubled from about 32% to about 65%.  About one in five American women will never have children, and the vast majority of those who do have children will also work for many years while they have children, sometimes even when the children are infants.  Also, both men and women are entering the work force later because they are more likely to finish high school and attend college, and a much larger number of working age adults are incarcerated now than were in 1954.

Finally, of course, unemployment rates are just under the double digits as we creep out of the recession caused by the financial crisis, and men have taken more of a hit in the current recession than women.  In contrast, 1954 was a point of relatively low unemployment, driven by a manufacturing economy that was serving a world market whose own capacity had not yet recovered from the capital destruction of World War II and the millions of men permanently removed from the work force by that war.

I'm not ready to jump to the "loser men" interpretation  that Cohen, citing David Brooks, does.  An increased number of permanent disability claims is to be expected as a generation of blue collar baby boomers ages.  Total labor force participation relative to the working aged population as a whole is at all time highs, unrivaled anywhere else in the world, and Americans work longer hours that workers in any other country.

The working aged men who are withdrawing from the labor force, in addition to growing ranks of graduate students and inmates and disabled blue collar workers, are mostly early retirees who have played by the rules, worked hard, saved money, raised children, sent them to college and are retiring early because they are prosperous, not because they are lazy.  Many young retirees use their years of early retirement to give back to the community and their families, contributions that were often slighted during the hectic years when they built up their nest eggs.  Early retirement is the American answer to the fact that we have so much less work-life balance, longer work weeks, and less vacation time than our developed world counterparts.  For my druthers, I'd prefer an economy where the average American works fewer hours per year, unemployment is lower, early retirement is rare because most people love their jobs, and men and women balance work and family in more similar ways to each other than we do today.  But, until we reach that day, I am not going to grudge the time that working age men who toiled intensely for a few decades and accrued a nest eggs take to retire early and smell the roses.

My father was anything but an early retiree, but what he spends his time doing in retirement is typical of retirees in reasonably good health of all ages.  He visits grandchildren and stepgrandchildren.  He helps an urban Cincinnati church reimagine itself and develop a plan for raising funds and turning itself around.  He directs a youth choir, commissioned the composition of one hymn and wrote another hymn himself.  He is civically active, writing letters to the editor and op-ed columns relevant to his professional experience.  He participates in a gourmet group and a community choir.  He keeps his home in good repair.  He keeps a watchful eye on the good health and well being of his neighbors and the neighborhood's esprit de corps.  He takes steps to move forward efforts to convert smelly feedlot manure into a renewable energy source.  He set up a volunteer training program for people in his small town and established a lecture series in his old department.  He stays connected to the people he has spent a lifetime building ties to across the nation and the world.  Of necessity, he spends a lot more time than he once did tending to his own good health, and as a consequence of his age, spends more time reading obituaries and attending funerals than he once did.  He spends more time on vacation travel than he once did, but no more than a typical French or German bureaucrat in the prime of his career does.  Just as we strive to find meaningful work in our lives working for pay, and some of us achieve that, we strive to find meaningful leisure in our lives when we are not working for pay and some of us achieve that as well.

What my father does in his retirement is not the same as work, admittedly.  He no longer has to fight pitched bureaucratic battles with the university facilities department over furniture acquisitions for his department.  He longer spends hours grading papers from students in his classes.  He no longer bears primary responsibility for finding internship opportunities for three dozen graduate students a year.  He doesn't have to deal with office politics or admissions decisions.  His days of pouring over long technical reports and attending endless meetings while serving as an advisor to a federal nuclear waste disposal project have come to an end.  But, like most retirees, early and late, he is not an "idle man."  The kind of person who works hard enough to retire early, even more so than the usual retiree, usually is constitutionally incapable of being idle even if they tried.  Early retirement may leave our nation with more really good golfers than we really need, but if one takes it as a given that economic production is a means to an end, rather than an end in and of itself, something economists sometimes forget, this shouldn't be terribly troubling.

One can argue that an economic system that compensates some of our most skilled physicians, executives, lawyers and engineers so well that a large fraction of them withdraw their valuable skills from the monetary economy early is out of kilter.  Surely, my inlaws, who are both medical doctors and both retired early, would have probably done so a little bit later if medical doctors were paid less than they are in our economy and they needs to work longer to be economically self-sufficient.  In that world, they would have spend a few more years treating patients and a little less time playing golf in their golden years.

But, I can hardly fault them. They were cogs in the machine and did what made sense at the time.  The way that the profession was designed when they were actively participating in it, medical doctors had to work exceedingly long hours and carry pagers whereever they went missing children's birthday parties and family time after school, foregoing extended vacations, and generally giving extremely intensely of themselves to serve large numbers of people in medical need with cutting edge skills and technology that provided great benefit to those patients.  They didn't have the option of living more balanced lives while they were working, and that system had built into it the incentive of an early retirement as a reward for that very intense work using skills so scarce that the United States established an immigration visa to secure people with these skills that it was unable to produce in sufficient numbers at home.  If the hope of early retirement hadn't been available in the long run, lots of doctors in their generation would probably have decided that their toil simply wasn't worth it and would have deprived the health care system of their skills far sooner.

The economy at large is experiencing basically the opposite of what most of academia is experiencing.  While old academics are lingering in their tenure track positions long past the traditional retirement age, leaving little room for the ranks of new professors seeking to fill their shoes, in hot parts of the private sector, the millionaire entrepreneurs and executives and physicians of the last long economic boom are making way for their ambitious, young, tech savvy successors.

Indeed, one of the many reasons that upper middle class managerial and professional workers experience low rates of structural unemployment than less skilled workers is that upper middle class workers can afford to retire early and free up jobs for younger workers.  In contrast, many blue collar workers often can't hope to save enough too retire early and continue to fill jobs that reduce the opportunities available for their younger successors.  Still, many middle class, as opposed to upper middle class retirees are workers who have been laid off from long, physically demanding careers as soldiers, as cops, as firemen, and factory workers whose unions, aware that large numbers of them would experience permanent disabilities anyway if they didn't retire early, worked with management to desire jobs that allow for early retirement.

Getting up and going to a paying job is something that people do because they need to support themselves and their families, and because the economy needs certain jobs to get done.  There is no shame in working and no one wants to be unable to support themselves.  But, it is a mistake to assume that getting up and going to a paying job has intrinsic moral value.  There is nothing morally wrong with an early retiree in his early 50s lingering over the newspaper while having breakfast, and spending the rest of his day doing what he thinks is the most valuable use of his time when money is not an object.

Economists tend to think that rational actors want nothing more than more money.  But, most people simply want to have enough money to allow them to be secure in their ability to meet their comfortable but modest economic needs.  Once that goal is accomplished, increasingly sooner for much of the nation's upper middle class in this more prosperous age, earning more money becomes a much lower priority goal.  Sometimes these activities will produce money anyway, but money is no longer the point.

I'm sure that a reporter with a little gumption could find men who don't fit the narrative that I've outlined and fall into the stereotype that David Brooks is trying to conjure. 

I know of several men with good educations and/or professional experience in Denver who spent time as homemaker husbands and/or returned to school for more education, when their own careers hit bumps during bad job markets and their wives had jobs.  Yet, isn't this something that the feminist revolution has been bracing us for, and encourging us to welcome, over the last several decades?  And, at any rate, this remains a statistically minor blip that only accentuates a larger trend of more people seeking graduate educations, blue collar boomers wearing their bodies out, more people spending long years in prison, more people retiring early, and a bad economy driving up unemployment rates.

I'm sure that a not insignificant number of working aged men, particularly men with criminal records or substance abuse problems have simply given up after long, fruitless job hunts, are dependent upon family or friends or lovers, and do little but drink too much and watch television.  In earlier days, when our economy needed lots of unskilled labor for mindless jobs because we hadn't yet mastered automation, people like that would have worked at abundant assembly lines all work and gotten drunk and wasted time after hours and on the weekends.  Now, a lot of that work has been offshored or automated.  There are still unskilled mindless jobs in our economy, but there aren't nearly as many as their used to be, while there are almost as many people chasing after them.

But, for the most part, America's meager safety net doesn't afford men who are not financially secure early retirees the option of leaving the labor force whether they want to or not.  More so than any other developed nation in the world, Americans must work or starve and die.  Leaving the work force is a very expensive luxury purchase for most Americans not to be made lightly, and men and women alike do so in our economy at their peril.

Like any other nation, we have "loser men."  We also have "loser women," "loser children" and "loser seniors."  But, for the most part, those loser men are the men who have no choice but to continue working at unfulfilling, dead end, low paying jobs because they have no other choice and didn't manage to save anything for their futures, not the early retirees who have left the work force entirely.

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Deinstitutionalization Legacy Persists

According to Pete Earley, former Washington Post intelligence journalist and author of "Crazy: A Father's Search Through America's Mental Health Madness" (2006) the United States has made a little dramatic but little noticed change in the way it handles mental health issues from a medical model to a criminal justice orientation:

In 1955, about 560,000 Americans were being treated in state mental hospitals. Based on population growth since then, you would expect more than 930,000 people in such hospitals today. There are only 55,000. Nearly 300,000 are imprisoned. Another half-million are on probation.

The largest public mental-health facility in the U.S.? The Los Angeles County Jail, home to 3,000 mentally ill inmates.

A dramatic shift towards the deinstitutionalization of those with mental health conditions in the 1980s from being the developed nation with the highest institutionalization rate for mental health conditions in the world, to the lowest, afforded some more freedom, but rather than producing a reinvestment of funds previously used for a public sector mental health care into community based programs led to a massive disinvestment in public sector funded mental health care that ended up funnelling many people who had trouble functioning in the absence of that care or family support, into the criminal justice system. Now, it can be hard to find services for anyone but the most affluent, even for bureaucratically savvy middle class families.

The trend is ongoing, with Colorado having seen many of its psychiatric hospital beds taken out of service over the last few years in the face of their high cost, and declining funding support since these programs receive less federal support or budget process protections than programs that have been preserved and often lack of visible constituency.

Earley cites conditions like schizophrenia and bipolar disorder, rather than psychopathy, as driving the trend. Some criminologists, such as Bernard Harcourt, have identified the size of the total institutionalized population as an important driver of crime rates, despite the mystery that the demographics of mental health institutions are very different from those of prisons (particularly in the number of women institutionalized). Early's identification of the large number of people with mental health conditions who are on probation or in jails, rather than prisons also helps to shed light on this demographic mystery; many people who would formerly have been institutionalized in mental health institutions are now in the criminal justice system, but only through probation or jail rather than prison, while many other individuals convicted of crimes are now more likely to be incarcerated in prison than in the past as criminal sentences have grown stiffer.

The brief excerpt in the linked story doesn't shed light on the question of how the United States experience compares to our peers in the developed world. It isn't clear, for example, if Europe and Japan have deinstitutionalized (or never institutionalized) their individuals with mental health conditions to the same extent as the United States, and if so, what the consequences of doing so have been there. The mental health institutionalization rates are indeed higher in Europe compared to a rate of about 25 per 100,000 in the United States (down from a peak in the 1950s of over 600 per 100,000), although they are declining in Europe from past levels:

Among countries in the European Union, the highest rate regarding the number of beds in psychiatric hospitals per 100,000 inhabitants in 2000 was in the Netherlands, which had a rate of 188.5. Other highs were posted in Belgium (161.6), Switzerland (119.9), France (113), and Finland (102.9). The average for the 25 European Union countries in 2000 was 90.1, down from 115.5 in 1993.

Japan's mental health institutionalization rate of 282 per 100,000 is the highest in the world, something particularly notable because the overall prevalence of mental health conditions in Japan is below the developed world average.

It is also worth pointing out that even if the residential mental health institution population were similar now to what it was in 1955, that it would still only be a tiny percentage of the population that receives or needs mental health care. For example, 60% of the population experiences depression, anxiety disorders, alcohol dependence and/or marijuana dependence by age 32. About 11% of adults in Colorado have experienced significant psychological distress (other than substance abuse issues) within the last year. Schizophrenia has a prevalence rate of about 1% in the general population, in contrast, and is about 80% genetic, and the prevalence rate and genetic component of bipolar disorder are on the same order of magnitude, but is more common and less strongly genetic.

The link between mental health issues and criminal justice involvement tends to be a "mental health plus" relationship. In one recent study, for example:

Mental illness alone is not a meaningful predictor of future violent acts, but is very significant when accompanied by a history of violence and substance abuse.

There were 3,089 people deemed to have severe mental illness—schizophrenia, bipolar disorder and major depression—but no history of either violence or substance abuse. They reported very few violent acts, about 50, between interviews.

But when mental illness was combined with a history of violence and a history of substance abuse, as in about 1,600 people, the risk of future violence increased by a factor of 10.

As the same linked post notes, relying on Colorado Department of Corrections date, in Colorado, "Moderate to severe substance abuse is a problem for 82.0% of male and 82.4% of female inmates. Moderate to severe mental health problems exist for 27.8% of male and 34.2% of female inmates."

Mental health problems are also much more likely to lead to serious criminal justice system involvement for individuals who are high school dropouts or have high school diplomas or GEDs but no college degree of any kind.

READ MORE - Deinstitutionalization Legacy Persists