One more thought on methods of execution

Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”

Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.

Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)

In contemporary discussions of the death penalty, some seem to believe that it is especially important that the state kill the prisoner rather than the prisoner kill himself (or die of natural causes--thanks to Doug Berman for this link). When Gary Gilmore was on death row in Utah, he overdosed on drugs that his girlfriend had smuggled into the prison. State officials rushed him to the hospital, pumped his stomach, and only later—once he’d been brought back to health—executed him.

Allen’s book reports that those who introduced hemlock to Athens also moved executions out of the public view and behind prison doors. Not only was no blood spilled, but the public couldn’t witness any bullying that was required to make the prisoner “consent” to poison himself. Hemlock, possibly the first effort to introduce a humane method of execution, appears to have been part of a broader campaign to make punishment more palatable by disguising it and removing it from public scrutiny.

All of this makes me wonder if there aren’t some complicated political side effects to campaigns to ensure humane methods of execution. It’s been argued, and not just by me, that special legal procedures in capital trials might actually entrench support for capital punishment by giving it the appearance of orderliness, predictability, and rationality. Might a new jurisprudence of execution methods do the same thing?

Of course, opponents to the death penalty are usually pursuing many different goals. It’s rational to hope that the death penalty is abolished, and at the same time to try to ensure that as long as capital punishment is legal, it take place in the most humane way possible. But it’s worth noticing that success on one front might undermine progress on the other.

Posted by Alice Ristroph at 06:10 PM | Comments (1) | TrackBack

Crimtorts at Widener Law

Chris Robinette passes along this nice website, highlighting Widener Law School's recent Crimtorts symposium. With guests including Thomas H. Koenig (Northeastern-Anthropology), Michael L. Rustad (Suffolk), Kenneth W. Simons (Boston), Martha Chamallas (Ohio State), Jeffrey O'Connell (Virginia), Byron G. Stier (Southwestern), Frank J. Vandall (Emory), Mark Geistfeld (NYU), Keith N. Hylton (Boston), Anthony J. Sebok (Cardozo), and Catherine M. Sharkey (NYU), it looks like they put together a great event. If you are interested in this area of merging law, and missed it, check out the videos here.

Posted by Dave Hoffman at 09:36 PM | Comments (1) | TrackBack

The Complications of Justification in the Sean Bell Trial

Tomorrow a judge will deliver his verdict in the most watched criminal trial of 2008 in New York City thus far. Three police officers are on trial for manslaughter, assault and reckless endangerment for killing Sean Bell in a botched up undercover operation at a night club in Queens. The crux of the defense strategy is a justification defense. Were the defendants justified in using deadly force in their jobs as law enforcement officers? The prosecutor has the burden to prove beyond a reasonable doubt that there was no such justification in order to secure guilty convictions.

This is a complicated decision for the judge. Fifty bullets were fired from the guns of the police officers that night and the evidence in the trial has described a plethora of different emotions. In their grand jury testimony, the officers expressed how they felt fear, shock, anxiety, and panic when they confronted Mr. Bell and his friends outside the night club and when Mr. Bell drove his car twice into their unmarked police van. They also testified that they believed that at least one of the occupants of Mr. Bell’s car was armed with a gun and thus, were scared for their own lives when they began shooting at Mr. Bell and his friends.

The State’s version of the events is somewhat similar but of course also different. Undermining the emotions expressed in the defense strategy, the prosecutor explained that the police officers were primarily angry and that their anger is what drove them to shoot repeatedly at Mr. Bell and his friends. The implication of this argument is that angry police officers are not in fear for their lives and that anger precludes justification but neither is true. It is entirely possible to be angry while also justified in using deadly force. While fear and shock may be more sympathetic emotions, a justification defense does not require them. As the prosecutor said in his closing argument, the truth about the emotions lies somewhere between the defense case and the State’s case. The formal doctrine of the criminal law though does not mandate any particular emotions; it is only concerned with the reasonable use of deadly force.

Complicating the defense strategy further in the Sean Bell trial are the number of shots fired and the passage of time. Not surprisingly, the police officers recollect that everything happened very fast, and that the shooting was almost over as soon as it began. Their perception of the passage of time is likely related to their emotional states at the time. Yet, as the prosecutors have made clear, the justification defense does not cover all fifty shots en masse, but rather law enforcement agents have an obligation to stop using deadly force as soon as their reasons for doing so dissipate. In other words, each shot has to be justified. In the heat of the moment though it is rather clear that the police officers did not reassess their need to use deadly force after each shot. Indeed, Officer Oliver who shot 31 times admits that he did not reassess until he ran out of ammunition and only reassessed at that moment because he had no other choice but to do so.

So what really happened here? Perhaps the police officers were justified in their initial shots but what about the later shots? A more complicated story emerges. Instead of only the reasonable use of deadly force, it is possible that panic and shock and reflex also played a part. I blogged on this point last year at PrawfsBlawg. Unfortunately, the doctrine and practice of criminal law rejected more nuanced understandings of defendants and more appropriate defense strategies that combine both justification and excuse.

Posted by Elaine Chiu at 02:24 AM | Comments (0) | TrackBack

The Blackstone Ratio at the Supreme Court

My colleague David Feige makes the following observation about the role of the Blackstone Ratio in our criminal justice system:

[In Kansas v. Marsh, Scalia] concluded that "The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent - .027 percent, to be exact". Scalia sleeps well knowing our system works so brilliantly. The problem, of course is that .027 percent is a hoax, and . . . I [am] struck once again that a justice generally considered to be so bright could get something this important so fundamentally wrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.

Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered. . . . As I've previously pointed out, here's why that's a ludicrous methodology.

So how should one "do the math?" Another colleague of mine, Michael Risinger, was recently cited in Justice Stevens' concurrence in Baze v. Rees for his work on the issue.

Risinger explains his methodology (and applies it) in this piece. He states:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

As Justice Stevens has stated, "Abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses."

Posted by Frank Pasquale at 09:37 PM | Comments (0) | TrackBack

Any Explanations for Incarceration Statistics Outliers?

Via Doug Berman and Patrick S. O'Donnell, here are some provocative facts about prisons in the U.S.:

The US incarcerates the largest number of people in the world.

The incarceration rate in the US is four times the world average.

Some individual US states imprison up to six times as many people as do nations of comparable population.

The US has less than 5% of the world’s population but over 23% of the world's incarcerated people.

The NPR program "Justice Talking" recently featured some excellent discussions of the role of the private sector in the US prison system. Critics of privatization included former prisoner Alex Friedmann (who is the vice president of the Private Corrections Institute) and Liane "Buffie" McFadyen, a State Representative from Colorado. Friedmann claimed that cost-cutting at private prisons put prisoners and public safety at risk (by, for example, leading to high turnover of guards). McFadden argued that private prisons "skimmed the cream" by serving only the healthy and "easy" prisoners, and dumping back to the state any mentally ill, violent, or otherwise costly-to-incarcerate offenders. Currently the mix of public and private prisoners is about 95/5, with only a small minority of offenders in private prisons.

As political debate on figures like the ones above heats up, we should pay attention to the role that private firms play in supporting or opposing certain reactions. As usual, Doug Berman is on top of the economics of prison reform. Though Sasha Volokh doubts that prison privatization leads to longer sentences, the US's outlier status should lead to renewed scrutiny of exactly whose interests it serves. If it happens that the real driver is fear-mongering politicians or rural areas "importing constituents," well, that's one more strike against politics. And if it happens that the US really is objectively far more violent and depraved than other nations, we may well have to question the Pollyannas churning out apologias for a culture of violence and economic policies that lead to such widespread hopelessness and feelings of aggrieved humiliation.

Posted by Frank Pasquale at 06:23 PM | Comments (0) | TrackBack

Does the Eighth Amendment Turn on the Size of Your R-Squared?

Check out the dispute between Justice Stevens and Justices Scalia (and Thomas) in Baze v. Rees. Both sides concur in the Court's judgment, but Justice Stevens, arguing that the death penalty fails a CBA, notes:

And Justice Scalia, responding to the deterrence point, writes:

Earlier this semester, I taught a class on the empirics of deterrence (with a focus on the death penalty). It strikes me that Justice Scalia has the better of the argument here, if he is read to say that knowing whether the death penalty deters (or not) sounds like the kind of question that is answerable with data, but probably is not, at least for now. As John Donohue and Justin Wolfers, who Justice Stevens somewhat ironically relied upon, argued:

Further, Supreme Court Justices don't have the training or staff necessary to sort through competing empirical studies and reach a definitive conclusion. (Justice Stevens' weighting of studies notwithstanding). And even were the Court to appoint a "special statistics master," can a constitutional question of this magnitude turn on econometric rabbit-holes?

Posted by Dave Hoffman at 11:37 AM | Comments (3) | TrackBack

Adultery, Divorce & the Criminal Law

It looks like Eliot and Silda may be staying together after all. For a couple who has long been in the public spotlight, having a hot dog together in Central Park was surely a intentional display of a marriage on the mend. Is this surprising? Is this only to be expected? The statistics on adultery in this country vary widely from as low as 20 percent to as high as 75 percent of married people having engaged in adulterous sex. Many of these adulterous acts are discovered by spouses and many marriages undergo the difficult times now being experienced by the former governor and first lady of New York.

As a family law professor, I always ask matrimonial practitioners whether in their experience, divorce can be avoided after one spouse has cheated on the other. Their answers are always the same and sound true to life: some marriages can overcome an act of adultery while some cannot. What seems to matter are the underlying reasons that led the guilty spouse to stray. If the adultery involves emotional or spiritual bonds, it is a much harder road to forgiveness. Selective forgiveness makes sense on the personal level when two people are trying to sort out their marital relationship. Does it make sense on a societal level?

Americans have long been divided on how to deal with adultery as a societal phenomenon. Interestingly, this difference of opinion has led to selective forgiveness on a societal level. For example, David Paterson succeeded Eliot Spitzer and at his first new conference, Governor Paterson revealed that he too had committed a crime in his past: the misdemeanor of adultery. Certainly there were differences on substantive, procedural and political levels between the two men’s marital mistakes. However, as the New York Times noted, it is important to recognize that both patronizing a prostitute and committing adultery are crimes and yet only Eliot Spitzer is vulnerable to criminal prosecution. Admittedly, adultery has rarely been prosecuted in New York but as Sanford Kadish warned long ago, one of the great dangers of overcriminalization is the selective enforcement of our penal laws. Selective enforcement, of course, necessarily entails selective forgiveness.

In addition to the exercise of discretion by law enforcement as they scrutinize the conduct of individuals, it is also clear that entire categories of individuals are held to higher standards of behavior. Politicians, celebrities, and professional athletes are our leaders, role models and public icons and many believe that they should suffer the wrath of the criminal law even for minor crimes of morality that would ordinarily not be prosecuted if committed by us ordinary folks. Ordinary people are privileged as society largely forgives their adulterous acts.

I want to note one final irony that results from the divided opinion on the public policy question of adultery. Although adultery is a misdemeanor in some states including New York, it is a dead criminal law that is hardly ever enforced. Despite the lack of enforcement, if either Michelle Paterson or Silda Spitzer ever sought a divorce from their husbands, it would probably be granted on the grounds of cruel and inhuman treatment. Cruelty is the most popular ground in New York State today even though there are plenty of marriages breaking up over adultery. Why is this the case?

As one practitioner explained to me recently, no decent divorce lawyer in New York would ever allow their client to admit to a criminal misdemeanor as the grounds for their divorce. Instead, he would prudently advise parties to compromise on the use of the legal fiction of cruelty with this argument about the need to avoid self-incrimination. It is ironic that criminalizing adultery has had the opposite public policy effect: instead of condemning and discouraging certain harmful conduct, it ends up providing the excuse for adulterers to cover their behavior and avoid public stigma.

Posted by Elaine Chiu at 07:15 PM | Comments (0) | TrackBack

Thou shalt not commit a neuroscience.*

Yesterday evening, Harvard Law School hosted a panel on the question, “Should Criminal Law Be Reconsidered in Light of Advances in Neuroscience?” Moderated by Oliver Goodenough, the panel featured Joshua Greene, Jerome Kagan, Stephen Morse, and Amanda Pustilnik. Greene is known for his work in “experimental philosophy,” and he and Morse reprised earlier arguments about whether new research on the brain is likely to produce changes in doctrines of criminal responsibility. As I understood Greene, he’s hopeful that one day we’ll realize that retributive approaches to punishment depend on erroneous assumptions about the human brain. When we properly understand humans as mechanical agents whose actions are always externally caused, it will seem silly to punish as a way of “holding criminals responsible,” and happily, the criminal law will become purely consequentialist.

Now, I’m no fan of retributivism. But I’m skeptical that more knowledge of the brain is going to unsettle retributive arguments and the associated attributions of responsibility. (Here, I think I'm in agreement with Jeff Lipshaw's take on experimental philosophy: many moral claims are just not provable or disprovable.) I suspect that whatever we learn about the brain processes of criminals, some persons will look at those brain processes and say, “this criminal deserves to be held responsible; this criminal deserves to be punished.” Put differently, one might say that “responsibility” is a normative judgment, not a fact about the causal mechanisms of the human brain. Whether a defendant “is” responsible depends on whether we (the punishers) decide to hold him responsible. To take an example raised last night, did new facts about the juvenile brain, or about developmentally disabled persons, dictate the outcomes in Roper v. Simmons and Atkins v. Virginia? I don’t think so. It is still the case that some will look at all the empirical information available about Daryl Atkins—IQ tests, medical records, brain scans, whatever—and say he deserves to die, and others will look at the same information, and say he does not. Indeed, Atkins the decision didn’t necessarily save Atkins the defendant: the decision allowed states to choose the process by which defendants would be classified as developmentally disabled or mentally retarded, and the state of Virginia decided this was a jury question. In 2005 a jury decided that Atkins was sufficiently mentally competent to be eligible for death. (Atkins’s reinstated death sentence was commuted to life imprisonment in January 2008 for independent reasons related to prosecutorial misconduct.)

All in all, I think it’s pretty hard to unseat the belief in deserved punishment by introducing new facts. (As I've argued, the evidence suggests that new facts can influence judgments about how much punishment is deserved, but that’s a different issue.) “Wrongdoers deserve to be punished” is a non-falsifiable claim, an article of faith that can be disproved no more than God’s existence.

*With apologies to W.H. Auden.

Image credit: Princeton's Suggestive Contour Gallery. At last night's panel, someone cited research indicating that subjects find academic papers that include pictures of brains to be more persuasive than otherwise identical papers that lack the brain pictures. I hope that works for blog posts.

Posted by Alice Ristroph at 06:14 PM | Comments (2) | TrackBack

Attack of the Home Invaders

Thanks to Dan Solove and the rest of the gang at Concurring Opinions for inviting me to be a guest blogger this month. When you are lucky enough to teach and write in Criminal Law, frequently there are moments when class materials, current events and your own scholarship intersect. This past week I taught the 1985 case of Tennessee v. Garner in Criminal Law and in the local news, there were renewed calls in Connecticut for legislative solutions to respond to a recent pair of violent home invasions. In the first invasion, a pair of convicted felons out on parole terrorized and sexually and physically assaulted a family in the sleepy town of Chesire in July 2007 before finally burning down their family home and killing the wife and two daughters. In the second invasion, a registered sex offender walked into a home where two neighbors were having coffee in New Britain and ended up physically assaulting one of them while stealing the car and killing the other.

Most states would rely on traditional offenses such as intentional homicide, aggravated burglary, robbery and assault to prosecute these episodes. However, some states have begun to define a relatively new crime known as home invasion or home invasion robbery and to attach much stricter sentences and parole policies.

Supporters argue that unlike plain ol’ burglary which has long been regarded as a non-violent crime (see the majority opinion in Tennessee), home invaders are purposely or knowingly violent because they engage in conduct with such high risks of violence. For example, as James T. Hurley explained in the FBI Law Enforcement Bulletin, home invaders target certain vulnerable residents and not residences and then often gain access to residences by using sheer force or scams. They bring with them certain tools like firearms, masks, handcuffs, tape and other bondage equipment in order to quickly get residents under their control. These items are rarely on the list of classic burglar’s tools. Perhaps the biggest distinction lies in the complicated motives of home invaders. “[M]any home invaders enjoy the intimidation, domination, and violence of the offense.”

On a certain level, this new offense sounds an awful lot like the knee-jerk reaction of politicians trying to placate the fears of constituents who are reacting to the sensationalist nature of some unfortunate, but still rare, violent murderous burglaries. As one police lieutenant put it, if prosecutors and judges apply the maximum penalties of classic burglary and assault laws and ordered consecutive sentencing, this new crime is really unnecessary.

Even if both detractions are somewhat true, it is still refreshing to see the criminal law differentiating among the motives that may lead a criminal to invade a victim’s home. The criminal law so rarely engages with motive in a meaningful way. It remains to be seen whether it will successfully do so here.

Posted by Elaine Chiu at 04:22 PM | Comments (0) | TrackBack

Dissent as Law Enforcement Trigger

Commenting on the Giuliani years in New York City, the NYT offers the following anecdote that raises some troubling questions about law enforcement practices:

In August 1997, James Schillaci, a rough-hewn chauffeur from the Bronx, dialed Mayor Giuliani’s radio program on WABC-AM to complain about a red-light sting run by the police near the Bronx Zoo. When the call yielded no results, Mr. Schillaci turned to The Daily News, which then ran a photo of the red light and this front page headline: “GOTCHA!”

That morning, police officers appeared on Mr. Schillaci’s doorstep. What are you going to do, Mr. Schillaci asked, arrest me? He was joking, but the officers were not.

They slapped on handcuffs and took him to court on a 13-year-old traffic warrant. A judge threw out the charge. A police spokeswoman later read Mr. Schillaci’s decades-old criminal rap sheet to a reporter for The Daily News, a move of questionable legality because the state restricts how such information is released. She said, falsely, that he had been convicted of sodomy. Then Mr. Giuliani took up the cudgel. “Mr. Schillaci was posing as an altruistic whistle-blower,” the mayor told reporters at the time. “Maybe he’s dishonest enough to lie about police officers.”

This story offers the "flip-side" of what has been described as "tolerated lawbreaking" in America. Law enforcers may not crack down on, say, every file swapped online. An unpaid ticket does not usually mean a trip to jail. But when it does, should there be some "forbidden criteria" for bringing someone to justice? If so, complaining about government should be near the top of the list. Kudos to the Times for ferreting out this story.

Posted by Frank Pasquale at 05:01 PM | Comments (2) | TrackBack

The Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by Dave Hoffman at 01:00 PM | Comments (2) | TrackBack

The New Hall Monitors

The front page of today's Washington Post reports on a recent explosion in the number of corporate "monitorships," noting a sevenfold increase since 2001. In these cases, the article reports, federal prosecutors direct contracts to private parties, who are given responsibility to oversee sometimes radical reconstructions of companies charged with fraud or other wrongdoing. The often hefty bill, of course, goes to the relevant company.

Much of the analysis in the article speaks to potential corruption/favoritism in the appointment of individuals to fill these lucrative positions. The article notes the appointment of "various former prosecutors and SEC officials with ties to President Bush, his father and other Republican luminaries," before focusing on a particular case out of New Jersey. (Which choice I saw, as a perhaps overly defensive temporary resident, to play on pernicious stereotypes of this fair state...)

I was more interested, however, to think about the nature of the institution of "monitors" more generally. What, I wondered, were potential analogies in our schemes of law and governance? Court-appointed special masters immediately came to mind. Naturally, there's some whiff of our sorely missed independent counsels. Perhaps given my international interests, I somehow thought of the U.N. trusteeship system as well, which in turn brought to mind the various uses of private trustees in the U.S. bankruptcy system.

Wtih full appreciation of the significant variation captured by this litany, what might we say generally about the use of monitorships and similar institutions as mechanisms of regulation? All, of course, involve a certain delegation of monitoring, counseling, and even disciplining functions. But what motivates that delegation? What institutional gains do we understand to follow from such delegation? I assume it's not simply a matter of cost-savings or some general notion of relatively greater efficiency of the private sector. The latter isn't out of the question, of course: Taking the case of monitors by way of example, it's clear, at a minimum, that corporate payments for the privilege of being monitored are more easily made to private monitors than they would be to a public servant or even the agency for whom she acts. And perhaps private monitors are somewhat more likely to be fastidious in their monitoring, given their profit motive (though it's not entirely clear how that motive would play itself out in the particular institutional context of corporate monitorships).

But I wonder whether the operative notions of regulatory "efficacy" behind the use of monitors (and analogous institutions) don't also involve some substantive evaluation of the comparative advantages of public versus private institutions, in varied regulatory settings. The Post thus cites "a shift from lodging criminal indictments against businesses for fear they will collapse and cost employees their jobs. Instead, the government has taken a different path: forcing companies to submit to outside oversight at their own expense as a condition of settling fraud and corruption cases."

Perhaps, this might be understood to suggest, there's some notion of comparative institutional efficacy at work. While public regulators may be quite effective at penalizing behavior, perhaps they are less effective at changing it? To similar effect, perhaps public institutions are good at defining relevant boundaries, but less effective at more nuanced, day-to-day classifications of relevant behavior? Assuming public institutions enjoy a comparative advantage at least at some things, though, greater attention to questions of relative regulatory efficacy would seem to be in order.

Beyond the fascinating question of what institutions such as monitors imply for our understandings of regulatory design, a distinct (and no less fascinating) issue concerns the contracts by which the relevant relationships are established. Assuming a single contract, who are the parties in privity and who is the third-party beneficiary of the contract? At what level of detail are the contracts drafted? And what, perhaps more oddly, what might be the remedies for breach?

Posted by Robert Ahdieh at 10:58 AM | Comments (0) | TrackBack

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Posted by Daniel J. Solove at 02:13 AM | Comments (2) | TrackBack

If It Bleeds, It Leads

In an interesting twist on the old adage of broadcast journalism, "if it bleeds, it leads," CNN.com has quietly modified the news categories on its home page, to replace "Law" with "Crime". When you follow the "Crime" link, you find somewhat greater diversity of coverage, now under the heading of "Crime and Justice".

Perhaps tellingly, though, consider the two teaser headlines on the home page, as I'm typing this post:

"Blood near Marine's likely grave, sheriff reports"

"O.J. Simpson headed to Las Vegas jail cell"

"Crime" is clearly a lot easier a sell than "Law". What might that forebode, though, for the general public's notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering "crime" versus "law"? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn't much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be "the news" - somehow, the idea of "All the News That's Fit to Print" comes to mind - I have to wonder.

Posted by Robert Ahdieh at 08:10 AM | Comments (1) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Tex-ternalities and the China/Europe Spectrum

I've recently come across these three facts about Texas:

1) About 60% of US executions occur in Texas.

2) About 20% of children in Texas do not have health insurance--almost twice the national average.

3) Texas produces more greenhouse gas emissions than California and New York combined.

When I first saw these figures, I thought that Texas may be burdening the US with some "reputational externalities" abroad, manifest in books like Vernon God Little. The judges who awarded it the Booker Prize called it a "coruscating black comedy reflecting our alarm but also our fascination with America."

Some economic theories predict that these externalities will eventually be internalized. For example, there are many stories about a European condo-buying boom in New York; I haven't seen as much on residential real estate purchases by overseas buyers in Texas. According to Anup Malani, “The value of a law [may] be judged [in part] by the extent to which it raises housing prices.” So perhaps more highly valued laws elsewhere in America will push up housing prices, comparatively enriching those property owners.

On the other hand, perhaps Texas's policies are a bid to flatter China by imitation. Pollution in places like Shenzhen is a big problem (and that's just the tip of the iceberg). Executions are common. And China's decisions about health care in the 1980s and 90s might warm many laissez-faire hearts: "From 1978 to 1999, the central government's share of national health care spending fell from 32 percent to 15 percent [and] the central government drastically reduced its ability and commitment to redistribute health care resources from wealthy areas to poor areas."

Looking at world trends, a modern-day Tocqueville might think that the US's future lay in political development of either a Chinese or EU variety. Texas appears to be a red state in more ways than one.

Posted by Frank Pasquale at 08:57 PM | Comments (3) | TrackBack

The Domestic Violence Preliminary Hearing

Like Cinderella's, my adventure ends at midnight when my temporary password vanishes in a shower of electrons. I thank all of the editors for the opportunity to guest-blog here. I want to offer a substantive post on a serious legal topic before I go. I've been spending some time in court lately; I tried a felony jury case with my students in October. I've been in the academy since 1994, so being in court on a regular basis is a novelty. I've seen many domestic violence cases now, and observed first-hand the truth of the conventional wisdom that some victim-witnesses do not wish to participate in a prosecution of their boyfriends or husbands. Prosecutors then face the unappealing alternatives of dropping the charges in a case involving a violent crime, or going forward by putting the victim of a crime under threat of prosecution or contempt.

Something occurred to me that would make these cases more prosecutable; it may well already be in the literature, I offer it more as a notion flowing from a war story than a proposal or fully-baked idea. Here it is: Why not take victim-witnesses directly from the scene of the arrest to a court reporter, with a magistrate present or available, put them under oath, and take their testimony while it is still fresh? Call it a domestic violence preliminary hearing. Then, if the victim recants, the prior testimony can be used at trial (or to induce a plea).

There are a number of objections, none of which seem insurmountable.

The obvious confrontation clause/due process problems can be resolved. WIthin a few hours, defense counsel would have to be appointed, given an opportunity to meet their client and review police reports and the victim's criminal record, and then of course to cross-examine. In the absence of some special need for additional time to prepare for cross, a few hours to prepare should be consistent with due process. The defendant could be present, in the custody of the arresting officers.

Another potential objection is that taking testimony while the victim is angry is a strategem to frustrate the will and intent of the victim when calm. This renders the notion objectionable, or not, depending one's answer to the classic question of whether domestic violence is a private matter between the people involved, or just another public criminal offense like robbery or murder where the interest in prosecution is held by the public. If the latter view is correct, as now-common mandatory arrest/no drop policies suggest, then evading the victim's presumed future intent is unobjectionable because prosecution is not the victim's call.

One of my brilliant students who worked in this area suggested that another potential problem is that some people in physical danger will hesitate to call the police if they will be unable to halt a future prosecution. If people in physical danger no longer use the police in emergencies, that would increase violence, and therefore be undesirable. Put another way, there is value in arresting someone to halt an immediate assault even if no criminal conviction results. A couple of days after my student made the point, I came up with this response: the objection assumes legally sophisticated victims. A sophisticated victim calling the police only because of her power to end the case later would know she could still stop the process later. Not showing up or recanting at trial might not work anymore, but refusing to talk at the domestic violence preliminary hearing would. So ultimately, a victim who would not go to the authorities if a prosecution will result still has control, and can still call 911.

I'd be interested in hearing whether people who know much more than I do about domestic violence think there is something worth thinking about here. Meanwhile, see you at the happy hour.

Posted by Jack Chin at 08:48 PM | Comments (1) | TrackBack

Transition From Prisoner to Exonerated: Times Tracks Difficulties in New Life

The New York Times has interviewed 115 people whose convictions have been overturned based on DNA evidence. Apparently support systems for these people are often thin and in some cases the resources for those who did commit crimes are better than for those who did not: "despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance-abuse treatment, housing assistance and other services — than some states offer to paroled prisoners." The article details the compensation claims, the employment status, and the re-incarceration rates. I do not research in this area of the law but if anyone has studied this issue please send along a cite. The article highlights that once someone has the conviction some states are slow to remove the conviction after the error is found. In addition, earlier facts such as a college degree or a good job history are overshadowed. That point raises the question of when society truly forgives or forgets what came before. In these cases it seems that the vague knowledge that someone was convicted even though now found innocent is enough to hinder if not thwart efforts to rejoin society. Although the article focuses on what sort of compensation if any these people can receive and that issue is important, the Les Miserables aspect of being hounded by one's past even if that reputation is undeserved poses problems. Dan's work on online reputation and his earlier work about digital persons intersect here. The continual access to this information interferes if not prevents someone from re-establishing their identity, Whether society wants to provide the space to allow such acts may be what the lack of support for the exonerated points to.

The Times also has a multi-media, interactive feature that allows one to hear many of the voices and stories of the exonerated.

Posted by Deven Desai at 08:18 AM | Comments (1) | TrackBack

Squirrel Cop

Need some time away from the Thanksgiving festivities? Disappointed by (or don't care about) the football scores? Spend 15 minutes listening to the segment Squirrel Cop from PRI's This American Life. (When you link to the site, click on the "listen to full episode" icon and then fast-forward to minute 19:52; it's worth it.)

In a recent post, I criticized James Q. Wilson and George L. Kelling for not providing a more substantive reflection in an Atlantic essay that revisited their broken windows hypothesis. But when I teach criminal law, I use broken windows to introduce the concept of police discretion and to remind students that the practice of policing usually is far-removed from what appears on Law and Order. The segment from This American Life accomplishes the same thing, albeit with much more levity than I usually muster in class.

A quick apology that I was unable to streamline the listening process. This American Life won't give permission for their audio to be posted on any server but their own.

Posted by Sarah Waldeck at 05:31 PM | Comments (0) | TrackBack

Markets Say: "Barry Bonds Almost Certainly To Serve Time"

The Intrade contract price for Barry Bond's guilt is currently trading at 75, which means traders estimate that there is a 75% chance that Bonds will either by convicted or plead guilty to the original charges. As I once discovered to my chagrin, this does not mean that traders believe that Bonds has a 25% chance of avoiding a conviction. As the contract rules state:

The contract will settle (expire) at 0 ($0.00) if (including, but not limited to):

- Barry Bonds is found not guilty in a trial by jury or judge
- All charges are dropped
- The case is dismissed
- There is a mistrial
- Barry Bonds pleads guilty only to lesser charges as part of a plea agreement (please note that if Bonds pleads guilty to any of the original charges as part of a plea agreement the contract will expire at 100)

The italicized rule is the kicker. Since you've got to figure that a plea is highly likely, it fair to say that traders estimate the likelihood that Bonds will face time to be a near certainty.

Of course, volume has been almost nonexistent. The question of how illiquid a prediction market can be while remaining efficient is beyond my pay-grade.

(Image Source: Wikicommons)

Posted by Dave Hoffman at 02:35 PM | Comments (1) | TrackBack

Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?

A few days ago, I blogged about a series of articles in the Dallas Morning News about the many instances where murderers received probation in Texas. Over at Grits For Breakfast, Scott Henson has a provocative argument that probation isn't always inappropriate for murder:

As I wrote in a "first impression" about the series, it's possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the "law of parties" but didn't actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically "needed killin'," so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what's wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett's lead, let's think more closely about category D, in particular, the ones whose victims "needed killin'." Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as "the classic case of the battered woman ... there was a definite mental break."

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why'd she get probation? Because prosecutors believed jurors would conclude the victim "needed killin'" - in other words, that justice had been served by the defendants' actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it's true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn't that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

Is this just the jury system at work? Or is it evidence that prosecutors have too much discretion? Even accepting Scott's argument that juries are about letting the public come to its own conclusions about justice, the Synnissa Gabriel case didn't involve the public making the decision -- instead, the prosecutor decided. I'm not opining on the merits of Gabriel's case, but I will note that I am sympathetic to the battered woman's syndrome defense. That said, however, the immense power of the prosecutor in this case -- to offer a plea for probation for what would ordinarily be a first degree murder -- takes the matter out of the hands of juries and the courts, as well as sidesteps the criminal statutes that the state has passed through its elected officials. Plea bargaining is a necessary evil in the criminal justice system -- without it the system would probably collapse -- but it has gotten out of hand, giving prosecutors such an immense power and making the criminal justice system not one about statutes, or about courts, or about juries -- it's about prosecutors and their astounding discretion.

In the end, regardless of whether justice may have been served in Gabriel's case with probation, it is the process that makes me very uneasy.

Photo credit: Falaschini

Posted by Daniel J. Solove at 01:23 PM | Comments (2) | TrackBack

Probation for Murder?

Texas is typically notorious for being a "hang em" state, where the death penalty is about as easy to get as junk mail. But the Dallas Morning News reports on an interesting study:

Probation? For murder? In Texas?

The idea seemed so strange that a Houston lawyer in the Legislature this year promised colleagues free meals if they showed him one case prosecutors had approved in his city.

It happens "probably once in a hundred years," Rep. Harold Dutton told the House Committee on Criminal Jurisprudence in March. Committee chairman Aaron Peña said he didn't know probation as a sentence for murder was legally possible.

As The Dallas Morning News has shown this week, it is not only legal, it happened at least 120 times in Texas from 2000 through 2006.

Dallas County led the state, by far, in granting probation for murder. It returned at least 47 killers to the streets, more than double the number the county sent to death row.

Wow -- 120 cases where a murderer got probation in a seven-year period. Many of these cases involved plea bargains, but some involved sentences at trial.

This article is Part V of a series of articles examining sentencing and plea bargaining in Texas. For the entire series, click here.

From the first article in the series:

The News began investigating the probation-for-murder phenomenon last year after writing about John Alexander Wood, who was charged with murder for shooting an unarmed prostitute in the back. He claimed that he was merely trying to scare the victim and shot him accidentally.

Mr. Wood came from a politically prominent family, and his character witnesses included the pastor of First Baptist Church in Dallas. The victim was poor and had no grieving relatives in court.

As jurors struggled to decide whether to convict him, Mr. Wood pleaded guilty to murder in exchange for probation. He went on to violate the terms of his probation repeatedly but avoided prison nonetheless.

Was the case a fluke? Or did it reflect larger patterns?

No one in the United States had researched systematically who gets probation for murder and why. So reporters analyzed thousands of government records, including some from confidential criminal files. They interviewed more than 200 people, including police, prosecutors, defense lawyers, judges, probation workers, victims' families and the killers themselves. (The News' study excluded capital murder cases, for which probation is not permitted, and unintentional forms of homicide, such as manslaughter.)

Dallas County, it turned out, granted probation for murder far more frequently than Texas' other large, urban counties – more than twice the rate in Harris County, home to Houston, and more than three times the rate in Tarrant County.

Bill Hill, the Dallas County district attorney until the end of 2006, could not explain the county's high rate of probation-for-murder sentences. "It surprised me," he said, especially in light of the local justice system's "hang 'em high" reputation.

Here are some more interesting facts about the study:

Most of the murderers in The News' study were minorities who killed minorities. That racial pattern is typical of killings overall in Dallas, where most of the probation-for-murder cases occurred.

About half of the defendants in the study were poor enough to qualify for court-appointed lawyers.

Most of the victims had something in common with Mr. Wood's victim. They had few advocates, and their deaths attracted little news coverage. They had done something unsavory, perhaps, or they had contributed in some way to a confrontation.

In short, there was a way to make them seem unsympathetic.

Sympathy matters because Texas, unlike most states, lets juries determine sentences. That's a recipe for extreme disparity because each group of 12 people starts from scratch – and most have no experience putting a price tag on human life, no legal background beyond watching Law & Order.

Photo credit: Falaschini

Posted by Daniel J. Solove at 06:05 PM | Comments (0) |