Mandatory Sentencing and Racial Disparity:  Assessing the Role of Prosecutors and the Effects of Booker

The Yale Law Journal

Sonja B. Starr & M. Marit Rehavi

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases.

Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends.

In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker’s effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion.

You can find the full article here.

Recognizing that appellate Judicial Performance Evaluation (JPE) programs have largely been patterned after programs for trial judges, IAALS has developed recommendations and tools for evaluating the performance of appellate judges that are tailored to those judges’ unique role and responsibilities.

These recommended tools are the product of two years’ work, which included a national conference that brought together stakeholders from around the country; an expert task force of appellate judges, JPE program coordinators, and legal academics; focus groups with appellate judges and attorneys; and cognitive interviews of potential respondents to JPE surveys.

You can find the new material here.

The Volokh Conspiracy is one of the most interesting legal blogs out there (see this blog’s earlier post today re:  The Citizen Accused).

Here is another recent sample from the Volokh site:

By Eugene Volokh on November 5, 2013, 7:33 pm

An interesting question, which Carver v. State (Oct. 31, 2013) answers “yes,” following several other such decisions:

After a jury trial, Rebecca Michelle Carver was convicted of pointing a firearm at another and reckless conduct…. Her sole [grounds for appeal] presents a question not previously considered in Georgia: whether the trial court erred in denying her motion in limine seeking to prohibit the victim [who was on active duty in the Navy but on leave for the trial] from wearing his military uniform at trial. Because Carver has not demonstrated that the trial court abused its discretion in denying her motion, we affirm.

The court cited various similar cases from other states; here’s a sample passage, from a 2006 Tennessee case:

Likewise, we find no error in allowing the victim in this case to testify dressed in her military uniform. While it may be true that the jury looked favorably upon a witness who was serving her count[r]y, we cannot automatically assume that the jury afforded her testimony more weight or credibility based solely on her appearance in military uniform. We find this little different from a police officer testifying in a police uniform. As argued by the State, whether a witness or a victim is a common laborer, an engineer, or a doctor, is a fact which may be considered by the jury but is clearly not determinative of the credibility of that person. Contrary to the Appellant’s argument, we cannot equate this to a situation where the defendant is forced to appear in prison attire. This issue is without merit.

The court notes that one case from another state barred a defendant from appearing in military attire, but concludes that it’s inapposite, without expressing an opinion on whether it’s correct on its own terms.

Judge Shira Scheindlin ruled that New York police violated the Constitution with their stop-and-frisk tactics.

That decision was much talked about in the race for Mayor of New York City.  But the case drew even more attention when Judge Scheindlin was recently removed from the case (see this Blog’s post dated November 4, 2013:  “Do Judges Have First Amendment Rights?”).

Yesterday, the New York Times published an editorial:

“The United States Court of Appeals for the Second Circuit erred badly last week when it stayed the remedies ordered by Judge Shira Scheindlin of Federal District Court to correct the civil rights violations associated with New York City’s stop-and-frisk policy, including an independent monitor to review police practices. It also unjustly damaged Judge Scheindlin’s reputation when it removed her from the case.”

For the full editorial see:  http://www.nytimes.com/2013/11/08/opinion/judge-scheindlins-case.html?hp&rref=opinion

In an unusual response, Judge Shira Scheindlin is herself challenging the decision to remove her from the New York stop-and-frisk case – with some help.

In a brief (PDF) filed this past Wednesday on behalf of Judge  Scheindlin, New York University law professor Burt Neuborne claims the judge was “completely blindsided” by the panel’s decision.

No party had raised the issue of bias or impropriety at the trial court, in a motion, or in the briefs on appeal.

The issue was raised by the panel of the Second Circuit during Oral argument.  The panel said in an October 31st order that Judge Scheindlin “ran afoul” of the judicial conduct code through her handling of the case.

Thanks to Will Baude and the Volokh Conspiracy blog, there is this great commentary on a creative response to a pretty unusual motion:  the prosecutor sought to prohibit the defense from referring to the prosecution as “The Government.”

A Tennessee prosecutor in the case of State v. Powell apparently moved to preclude the defense from referring to his side as “the government.” The defense lawyer had an entertaining response. You can get the whole motion here, but I’ve reproduced most of it below:

The government has moved to ban the word “government.” The State of Tennessee offers precisely zero legal authority for its rather nitpicky position, and the defense can find none. The Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff’s proposed ban on speech would violate the First Amendment. The motion should be denied.

…

Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions for amending the speech code. First, the Defendant no longer wants to be called “the Defendant.” This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes Mr. D.P. The word “defendant” should be banned. At trial, Mr. P. hereby demands to be addressed only by his full name, preceded by the title “Mister.”

Alternatively, he may be called simply “the Citizen Accused.” This latter title sounds more respectable than the criminal “Defendant.” The designation “That innocent man” would also be acceptable.

Law Blog, a publication of the Wall Street Journal, reports that:

The New Hampshire Supreme Court has upheld both the conviction of the state’s only death-row inmate and the constitutionality of the state’s death-penalty-law.

But the court put off a definitive ruling on whether the death penalty was correctly imposed on the defendant, who was convicted of killing a police officer in 2006.

In a 243-page, highly anticipated ruling, the five-judge court unanimously rejected a host of arguments made by lawyers of Michael Addison, who was convicted in 2006 of murdering a Manchester, N.H., police officer. Mr. Addison, 33 years old, shot officer Michael Briggs while Mr. Briggs was attempting to arrest Mr. Addison in connection with a number of armed robberies.

The New York Times has a report that begins, “An amendment to the New York State Constitution raising the mandatory retirement age to 80 for judges on the Supreme Court and on the Court of Appeals went down in defeat in a referendum on Tuesday, handing Chief Judge Jonathan Lippman a stinging rebuke.”

For the full story, go here.

Former Chief Justice Ron George of California had a profound effect on the system of justice in California, but his impact was felt far beyond just that state.

In 2002, he was awarded the William Rehnquist Award which is given annually to the state judge who most exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics.

The Los Angeles Times has a story on a new oral history of Chief Justice George, and begins as follows:

“When Ronald M. George served as chief justice of California, he pleaded annually with legislators for money to run the courts, warning the loss of funds would compromise justice.

But he said he learned that some lawmakers took positions on the budget for purely personal reasons, obsessively discussing their divorces or traffic tickets and punishing the judiciary for rulings they did not like.

“I remember dealing with one state senator who found it impossible … not to bring up his own divorce proceedings and how he thought he’d gotten a raw deal at the hands of his wife and her attorneys and didn’t feel the court system dealt with him fairly,” George said, not naming the elected official.

George’s recollections are contained in an 800-page history, released Wednesday, in which the longtime California judge and leader of its judiciary ruminates about his time on the court.”

The full story can be found here.

Marshall Goldsmith, a New York Times bestseller and a widely recognized expert, leadership thinker and executive coach, answers the tough question and prompts great discussion about the key beliefs of successful leaders and the behaviors that hold them back.

What Got You Here Won’t Get You There will help successful people become more successful by discovering the workplace habits you need to break in order to reach the next level of achievement.

Goldsmith outlines twenty of the most commonly-found workplace habits in the corporate environment and provides the tips needed to help you begin climbing your ladder to success with a positive behavior change.

Trends in State Courts is an annual, peer-reviewed publication that highlights innovative practices in critical areas that are of interest to courts, and often serves as a guide for developing new initiatives and programs, and for informing and supporting policy decisions.

Trends in State Courts is the only publication of its kind and enjoys a wide circulation among the state court community.  It is distributed both in hard copy and electronically.

Submissions for the 2014 edition are now being accepted.

There are many judges (and a lot of American Judges Association members) who can help make this a better world by emailing abstracts of no more than 500 words to Deborah Smith at:  dsmith@ncsc.org.