Author: Kent Scheidegger

Sentencing Length and Recidivism: A Review of the Research

by · Dec 5, 2022 2:49 pm

We previously announced a working paper, Sentence Length and Recidivism: A Review of the Research, in May 2021 and announced an update last June. We are pleased to announce that the review has now been published in a peer-reviewed journal, Federal Sentencing Reporter, in the October issue. (Vol. 35, No. 1) The permanent link to the published version is https://doi.org/10.1525/fsr.2022.35.1.59. The paper is also available on CJLF’s website.

Here is the abstract:

In response to prison overcrowding concerns in recent years, many U.S. officials have undertaken efforts to reduce sentence lengths for certain crimes. However, it is unclear how these changes affect recidivism rates. Among the research on incarceration and recidivism, the majority of studies compare custodial with noncustodial sentences, while fewer examine the impact of varying incarceration lengths. This article reviews the research on the latter. Overall, the effect of incarceration length on recidivism appears too heterogeneous to draw universal conclusions, and findings are inconsistent across studies due to methodological limitations. For example, many study samples are skewed toward people with shorter sentences while others include confounds that render results invalid. Of the studies reviewed, some suggested that longer sentences provide additional deterrent benefits in the aggregate, though some studies also had null effects. None suggested a strong aggregate-level criminogenic effect. We argue that a conclusion that longer sentences have a substantial criminogenic effect, large enough to offset incapacitative effects, cannot be justified by the existing literature.

That last sentence is important. Continue reading . . .

SCOTUS Monday

by · Dec 5, 2022 8:14 am

The U.S. Supreme Court has issued an orders list from last week’s conference. No new cases were taken up. There are no criminal cases on this week’s oral argument docket.

The Court currently seems to be less interested in criminal law issues than in past years. To some extent, no news is good news. Federal constitutional limitations on state criminal law run only in the defendant’s favor. In addition, changes in the law in the defendant’s favor often have retroactive effect, while changes in the prosecution’s favor rarely do. So lack of change is, at least in part, good for law enforcement.

On the other hand, there are a lot of rules with no real basis in the Constitution that one might think that an originalist-dominated Supreme Court would want to get rid of. One possible explanation is that the Court has a sort of budget for turmoil and has spent it all in other fields for the time being. That could change as the storms from last term’s decisions subside. Continue reading . . .

Recusing the District Attorney’s Office

by · Nov 22, 2022 3:54 pm

Can an entire district attorney’s office be recused from a criminal case on the basis of a campaign fund-raising letter that calls the defund-the-police movement “wacky” and opposes “anarchist groups”? I would think that opposing anarchy is a job requirement for a district attorney, not a disqualification.

Does it matter if the district attorney has appeared in forums where other people said critical things about a group the defendants are affiliated with? I would not think so. But surprisingly, the Superior Court for San Luis Obispo County, California, recused the DA on just such grounds, and the Court of Appeal affirmed. CJLF today filed an amicus curiae letter brief supporting the DA’s petition for review in the California Supreme Court. Continue reading . . .

Alabama Execution Update

by · Nov 18, 2022 10:21 am

Alabama hit man Kenneth Eugene Smith got a (hopefully brief) respite from his execution yesterday. The U.S. Court of Appeals for the Eleventh Circuit granted a stay on a different issue than the one noted in this post. The Supreme Court vacated the stay, three Justices dissenting, but the warrant expired at midnight, and the execution team was not able to find a suitable vein in that time.

Execution warrants that are good for one calendar day only are an old tradition, but there is no need for such a limitation. In an era where many judges are prone to issue last-minute stays, whether they are legally justified or not, a one-day window needlessly changes quickly reversed stays into longer ones in practice, as the date-setting machinery must be restarted. This is also very stressful for victims’ families, who often travel to the execution site believing that they are finally going to see long-overdue justice done, only to have it snatched away at the last minute.

States are gradually doing away with the one-day rule. California has a 10-day window, enacted by initiative. Continue reading . . .

A Bad Week For Murderers

by · Nov 17, 2022 2:19 pm

This is a bad week for murderers. I previously noted that the Supreme Court turned down the stay application of Alabama hired hit man Kenneth Smith. He is scheduled for execution at 6:00 p.m. CST. This morning Oklahoma executed Richard Fairchild for the torture and murder of a 3-year-old boy. AP story here; Supreme Court denial here.

Yesterday Arizona executed double murderer Murray Hooper. AP story here. Supreme Court denials here and here.

Also yesterday, Texas executed Stephen Barbee for the murders of his pregnant ex-girlfriend and her 7-year-old son. AP reports: Continue reading . . .

Judicial Override, the Sixth Amendment, and Retroactivity

by · Nov 16, 2022 9:55 am

Sentencing a murderer to death generally requires three decisions in the United States today: (1) a factual finding that the defendant is guilty of the highest degree of murder; (2) a further factual finding that an additional aggravating factor is true;* and (3) a discretionary decision that death is the appropriate punishment for this murder and this murderer, considering both aggravating and mitigating factors.

The first decision must be made by a jury under the Sixth Amendment, unless the defendant waives that right. In Ring v. Arizona, the Supreme Court held that the second decision must also be made by a jury, though it previously held the opposite multiple times. The third decision may be vested in a judge (or panel of judges) or a jury by state law. Only Nebraska currently vests the decision in judges.

If a state can vest the decision in the judge entirely, can it also have a jury make a recommendation but still leave the final decision with the judge no matter what the jury recommends? Of course. If a state has such a system but decides to change it and make the jury’s life-sentence recommendation binding, does the U.S. Constitution require that it make that change retroactive, overturning final judgments entered under the old system? Of course not.

Yet that question is before the Supreme Court today in the case of hired hit man Kenneth Eugene Smith. [Update: Stay denied without comment or dissent.] Continue reading . . .

Juries Less Than 12

by · Nov 14, 2022 11:38 am

In its 2020 decision in Ramos v. Louisiana, the Supreme Court held that nonunanimous juries are unconstitutional in the guilt phase of criminal trials, and no doubt to the finding of sentencing factors to which the right of jury trial extends under the Apprendi rule. The high court did so despite the heavy reliance of two states on its contrary decision on the precise point nearly a half century earlier.

Last week, two Justices fired a shot across the bow of the six states that still allow juries of less than twelve people. Those states would be well advised to get rid of their small juries—prospectively only—immediately, before the Supreme Court does so retroactively. Continue reading . . .

Supreme Court Takes Up Medicaid Fraud Case

by · Nov 14, 2022 10:36 am

The U.S. Supreme Court has taken up for full briefing and argument a case regarding Medicaid fraud and the Identity Theft Penalty Enhancement Act, Dubin v. United States, No. 22-10.  What is the question presented? Here is the petitioner’s version:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

And here is the respondent’s (i.e., the Government’s):

Whether sufficient evidence supported the jury’s finding that petitioner “use[d]” the means of identification of another person to commit fraud, in violation of 18 U.S.C. 1028A(a)(1), by submitting a Medicaid claim invoking a specific patient’s right to reimbursement for a fictitious three-hour examination by a licensed psychologist on a date when that patient would have been eligible for the reimbursement.

Are these people talking about the same case? Continue reading . . .