Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward Kennedy (respectively, University of Michigan Law School, Michigan State University – College of Law, American College of Radiology, and University of Pennsylvania – School of Medicine) have posted Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death (Proceedings of the National Academy of Sciences, 2014) on SSRN.

Here is the abstract:

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

The birthday party celebrations for the Gideon decision reaching 50 years old have pretty much died down, but the reality of our failure to achieve the full promise of the right to counsel remains with us. That is why this intriguing paper by Professor David Rudovsky (University of Pennsylvania Law School) is worth reading.

The abstract states:

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to provide adequate remedial measures to ensure that appointed counsel have the time and resources necessary to meet their constitutional obligations.

I propose a litigation strategy as a means of confronting the issues of funding and resources that incorporates both Sixth Amendment and professional responsibility standards to enable courts to order structural relief in cases of systemic deficiencies. The Supreme Courts of Florida and Missouri have recently applied these principles in permitting public defenders to withdraw from cases where excessive caseloads and under-funding have interfered with their ethical obligations to their clients. Recognizing that the Strickland post-conviction test was not the sole means of enforcing Sixth Amendment rights, these courts permitted pre-trial challenges that did not depend on a showing of sub-standard performance or actual prejudice in an individual case. Other courts have permitted pre-trial challenges as well and the United States Supreme Court has recognized the significance of a lawyer’s professional judgments and obligations in fulfilling their ethical and constitutional duties.

The article concludes by discussing three cases from Pennsylvania that show both the promise and the difficulties of litigation in achieving systemic reform.

Supreme Court Favorability Rebounds

Continuing Partisan Divide in Views of Court’s Ideology

Favorable views of the Supreme Court are back above 50%, having rebounded from historic lows reached in the summer of 2013. However, the court still has several major decisions pending that could impact the public’s views, including rulings on challenges to the Affordable Care Act’s requirement that employers include contraceptive coverage in their employees’ health plans.

The latest survey by the Pew Research Center, conducted April 23-27 among 1,501 adults, finds that 56% have a favorable view of the court, while 35% have an unfavorable view. (The survey was conducted before the court’s ruling that a town council in New York and, by extension, other legislatures, can begin meetings with a Christian prayer.) Last July, following high-profile rulings on the Voting Rights Act and same-sex marriage, about half held a favorable view of the court (48%), among the lowest measures recorded in Pew Research surveys.

Currently, more Democrats (63%) than Republicans (54%) have a favorable impression of the Roberts court, though the gap has narrowed considerably since July 2012. At that time, shortly after the court upheld most of the provisions of the Affordable Care Act, 64% of Democrats viewed the court favorably compared with just 38% of Republicans.

Blacks hold a favorable view of the Supreme Court by about a two-to-one margin (63%-30%). In July 2013, blacks were divided in their views of the court (44% favorable, 41% unfavorable).

We live in a time when there is eroding trust and confidence in government. Fortunately for those of us who serve in the judiciary, most of that erosion of the public’s trust and confidence is directed to the other branches of government….so far.

But, all of us who care about courts need to be concerned. The Huffington Post reports:

An overwhelming majority of voters would support sweeping reforms to the Supreme Court, as trust and confidence in the institution has eroded in recent years, according to a new survey by the Democratic-aligned firm Greenberg Quinlan Rosner.

Wide majorities disagree with the recent 5-4 party-line rulings that have upended a century of campaign finance law and tilted the rules in favor of the extremely wealthy and major corporations. The landmark Citizens United ruling was opposed by a whopping 80-18 margin. The more recent McCutcheon decision, which lifted caps on total giving, was said by a 51 percent majority to be likely to create more corruption, while 8 percent suggested it would lead to less.

By a 60-36 spread, those surveyed said that Supreme Court justices were more likely to be carrying out a personal or political agenda than working to render a fair and impartial judgment, an opinion that cut across party lines. John Roberts swore before Congress during his confirmation hearings that he had great respect for precedent. But once confirmed as chief justice, he embarked on a remarkable run of conservative judicial activism that has favored the wealthy while undermining affirmative action and protection for voting rights.

Overall approval of the Supreme Court has been falling since its 5-4 Bush v. Gore decision handed the presidency to George W. Bush in 2000, according to Gallup.

Big majorities in the GQR poll said that Supreme Court justices should no longer be appointed for life, that cameras should be allowed in the courtroom and that justices should disclose financial conflicts of interest and be bound by ethics rules.

If this were just one poll, one might be dismissive. If it were not for that fact – that the esteem (or lack thereof) of the United States Supreme Court can have an effect on the public’s perception of all courts – you might be dismissive.

But this is an important issue. Many have called for cameras in the United States Supreme Court, but surely this is more than just about television. Although cameras are showing state supreme court hearings through the nation, what is needed is likely more than just that. Perhaps a start is for the Supreme Court to acknowledge there is a problem. It is the first step to recovery.

Jeff Bellin has this post at EvidenceProfBlog:

Earlier this month, various news sources reported on an effort in New York to prohibit the reliance on / seizure of condoms as evidence of prostitution.  The idea is that prostitutes, fearful that condom possession will be used against them in court, decide not to carry condoms.  Or, additionally, that police seizures of condoms (often distributed free by the City) as evidence is counterproductive for obvious reasons.  One story notes that if NY were to pass this restriction, it would be the first state to do so.  Compelling arguments against the proposal do not spring to mind, although there are suggestions of opposition in the stories.

Kristian Bryant Rose has posted Of Principle and Prudence: Analyzing the F.B.I.’S Reluctance to Electronically Record Interrogations (9 Okla. J.L. & Tech. 64 (2013)) on SSRN.

Here is the abstract:

Currently, the F.B.I. maintains a policy that generally precludes electronically recording interrogations and interviews of suspects. Instead, the Bureau relies on “302 reports,” whereby an agent transcribes, by hand, what is said during an interview. But this practice is not without exception. In certain circumstances, the Special Agent in Charge of a field office may exercise discretion to allow the recording of an interview. Nonetheless, the majority of interactions between Special Agents and suspects during interrogations and interviews remain obscured – if not veiled – by analog practices.

Carissa Byrne Hessick and F. Andrew Hessick (University of Utah – S.J. Quinney College of Law and University of Utah – S.J. Quinney College of Law) have posted Procedural Rights at Sentencing (Notre Dame Law Review, Vol. 90, 2014 Forthcoming) on SSRN.

Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy. It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones. As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems. Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose. The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

By:  Melissa S. Kearney and Benjamin H. Harris

This Hamilton Project policy memo provides ten economic facts highlighting recent trends in crime and incarceration in the United States. Specifically, it explores the characteristics of criminal offenders and victims; the historically unprecedented level of incarceration in the United States; and evidence on both the fiscal and social implications of current policy on taxpayers and those imprisoned.

 

Chapter 1. The Landscape of Crime in the United States

Crime rates in the United States have been on a steady decline since the 1990s. Despite this improvement, particular demographic groups still exhibit high rates of criminal activity while others remain especially likely to be victims of crime.

Fact 1. Crime rates have steadily declined over the past twenty-five years.

Fact 2. Low-income individuals are more likely than higher-income individuals to be victims of crime.

Fact 3. The majority of criminal offenders are younger than age thirty.

Fact 4. Disadvantaged youths engage in riskier criminal behavior.

Read the full report here.

IAALS Executive Director Rebecca Love Kourlis penned an Informed Opinion about a recent threat to judicial independence in Oklahoma.

Simply stated, judicial independence means that one branch of government is not subject to the will of the majority. Yet, over the last two weeks in Oklahoma, the executive and legislative branches maneuvered to undermine the state Supreme Court.

If the judiciary can be bullied by the other two branches, is our Constitution effectively safeguarded? Judicial independence is the keel on the boat, Kourlis suggests. Without it, we drift and perhaps even capsize.

Read the Opinion here.

This post first appeared in Sentencing Law & Policy which is written by Professor Douglas Berman.  Professor Berman’s piece is drawn from this report via USC News summarizing a speech given by Judge Jed Rakoff.  Here are excerpts:

Rakoff, who sits on the Federal District Court in Manhattan, N.Y., spoke recently at the USC Gould School of Law’s Neiman Sieroty Lecture on “Why Innocent People Plead Guilty.”

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said.

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

What can be done? Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated.

“But to be frank, I don’t think, politically, either of those things is going to happen. … When it comes right down to it, I think the public really wants these high penalties, and that’s because when these harsh penalties were imposed [in the 1980s], the crime rate went down.”

Another more controversial solution is to allow judicial involvement in the plea bargain process. A judge who is not involved in the case could take a first pass at an agreement, working with prosecutors and defense attorneys.

“What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

Until extraordinary action is taken, Rakoff said little will change. “We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”