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Inertia and the Death Penalty

Baumgartner FR, Box-Steffensmeier JM, Campbell BW (2018) Event dependence in U.S. executions.

Inertia and the Death Penalty

Most of us go to the doctor regularly, or at least use the Internet to identify health information of questionable medical value. Either way, we have heard some variation on the phrase “one of the very best predictors of [medical event X] is a prior instance of [X].” One of the very best predictors of whether you’ll have a stroke later is whether you’ve had a stroke before. As it turns out, that same statistical relationship describes another, ahem, morbidity risk: executions. In a newly published article, a group led by University of North Carolina political scientist Frank Baumgartner shows that there is extraordinary event dependence in American execution practice. Stated a little more accessibly, the Baumgartner data shows that one of the best predictors of whether a county will execute someone in the future is how many the county killed in the past.

This finding matters, a lot; someone should be capitally punished because their crime and moral blameworthiness merits death, not because a particular county happens to have acquired professional expertise in killing people. In this very forum I wrote a short piece, based on my longer law review article, describing the concentration of American execution activity in a few “outlier” counties — counties that maintain exorbitant levels of capital punishment activity. I presented a theory of “local muscle memory,” positing that the small cohort of outlier counties kill because they’ve gotten used to killing, and the rest largely abstain because they haven’t had the practice. And I argued that the already-concentrated map of American capital punishment activity was still concentrating even more, reflecting a crude bureaucratic path dependence. Institutional stakeholders in a particular locality must invest considerable time and capital to develop the skill — the muscle memory — to produce death sentences and then convert them into executions. As a result, bureaucratic habituation was causing counties to separate into two groups: a small group of outlier counties that maintained elevated capital punishment activity, and a much larger group of abstainers. In documenting the increasing concentration of American execution practice, I relied on some of Professor Baumgartner’s data, and some of his prior work. Nonetheless, because I am not a statistician and because empirical testing of the hypothesis was somewhat beyond the scope of the project, my muscle-memory thesis did not include regressions and other advanced statistical analysis that would determine the fit between the theory and available data. Professor Baumgartner and his collaborators have largely filled that gap.

They worked from a sample of 1,422 executions spanning 1977 to 2014, from 474 counties in 34 states. I’ll leave out most of the major modeling details, but suffice it to say that the analysis was capable of controlling for four phenomena that had typically been assumed to drive execution activity: (1) county-level homicide activity; (2) racial demography; (3) poverty rates; and (4) county-level population. The fourth control is deceptively important insofar as large population centers experience more homicides and have more professionalized prosecution offices, and hence tend to produce more death sentences. (Of course, the study removed states that didn’t use the death penalty from the analysis.)

The result of the Baumgartner analysis is pretty astonishing, both because of its bottom line and, to a lesser extent, because of what it discloses about the influence of several controlled-for variables. The headline finding is that when it comes to executions, event dependence is extraordinary; over an eighteen-month interval, a county with previous executions will be five times as likely to execute a new prisoner as a county with no previous executions. Quite surprisingly, county-level homicide activity and poverty rates have no effect on how many people a county executes. There is a smaller positive correlation between executions and the county’s population of people of color, a variable sometimes called “racial threat.” That is, majority-white communities are more likely to resort to aggressive social control — including ramping up police presence and aggressive prosecutions — in situations where there is a greater fraction of minority membership. Although I am focused on event dependence, and although racial threat is just a control variable, the horror of the concept bears repeating: even controlling for criminality and poverty, predominately white communities that include larger non-white membership tend to use the death penalty more extravagantly.

The authors readily admit that a better test for event dependence might involve capital sentences, rather than executions — most defendants who are sentenced to death are never actually executed, and so the execution data (as opposed to capital sentencing data) is uniquely sensitive to certain types of shocks, including the availability of lethal injection drugs. The execution model is nonetheless powerful evidence of event dependence — and there is also recent county-level sentencing data, assembled by University of Virginia Professor Brandon Garrett, which he has in turn used in at least one articleand one book. (I used an early version of the data set in my muscle-memory article.) Using county-level death sentencing data covering 1990 to 2016, Professor Garrett, along with several co-authors, studied the degree of event dependence. Although the methodology used by Professor Garrett and his coauthors diverges somewhat from the methodology used by Professor Baumgartner and his, the findings converge. As with executions, one of the greatest predictors of whether a county will sentence people to death in the future is whether it sentenced people to death in the past. Moreover, the explanation offered by Professor Garrett et al. lines up with that offered by Professor Baumgartner — as well as with mine. Whether the term is “inertia” or “muscle memory” or “path dependence” or “self-reinforcement,” local, bureaucratic habituation is causing the vast majority of American counties to sentence to death and kill no one, and causing an extremely small number to sentence and kill repeatedly.

To understand the theory writ small, consider the role of the prosecutor. To train its prosecutors to navigate the various institutional hurdles that an execution presents, district attorneys must train their lawyers to investigate aggravating evidence, select a death-qualified jury, try a sentencing case, conduct post-conviction proceedings, obtain an execution date, and defend the judgment in crisis-phase litigation — all unique facets of a death penalty case. The human capital involved in successfully performing all of these tasks is enormous; to realize a reasonable return on that considerable investment, an office must produce a lot of capital punishment. In some ways, it’s a simple economic story of spreading high fixed costs across a more output. But once an office is trained to, well, kill, its existing human resources are bureaucratically conditioned to transmit that lethality to the next generation of attorneys, with the subsequent generation passing the torch to one that comes after it, and so forth. But the bureaucratic habituation that causes certain urban, well-endowed counties to remain active capital punishers actually causes most others to abstain. Once the institutional knowledge necessary to secure executions begins to disappear, it is unlikely to be revived in the absence of unusual political will, substantial financial resources, and caseload of death-eligible cases worthy of renewed institutional investment.

A capital punishment practice operating through muscle memory is quite concerning, because it signals profound arbitrariness. States are meting out death sentences not by systematically isolating the worst of the worst, but by isolating those in certain area codes. When people like Clarence Thomas extol the virtues of geographically differentiated punishment, they generally contemplate things like different states having different punishment schemes, or different localities expressing the collective blaming preference of an affected community. Kent Scheiddeigger, an energetic proponent of vigorous death penalty practice, responded to a famous study showing geographic disparities by snarking: “The study calls the variation by county ‘geographic disparity.’ I call it local government.” What studies like Professor Baumgartner’s show, however, is that maps of capital punishment activity are not capturing the output of good governance or particularly severe punishment preferences; they are capturing a largely arbitrary distribution of death penalty activity, suffused with path dependence.

New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children

New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses — such as sex trafficking — and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity:

Prosecutions related to the possession, receipt, or distribution of child pornography increased by 91% … Of the 21,887 defendants in cases led in U.S. district court with a CSEC charge from 2004 to 2013, 80% of defendants were charged with possession, receipt, or distribution of child pornography.

Lumping the terms “possession, receipt, or distribution” of child pornography together is another bit of sophistry. While the term distribution obviously lends itself to economic arguments, in the overwhelming majority of cases it means something much less sinister: 73% of federal child porn distribution cases involve little more than a defendant using a peer-to-peer network to download child pornography, with “distribution” being baked in to how peer-to-peer networks operate. They are offenses which are generally committed as a result of technological illiteracy, as opposed to mercenary motive. The remaining roughly 27% of distribution cases typically involve defendants swapping illicit images directly with one another, though without any money changing hands. For example in 2010, exactly zero of the distribution cases pressed at the federal level involved commercial distribution.

Prosecution of non-production, non-economic child pornography cases nearly doubled in federal court over the time period in question in the DOJ report, yet also comprise the vast majority of offenses that the DOJ is characterizing as offenses committed against minors for “financial or other economic reasons.” Carissa Hessick is law professor at the University of North Carolina and expert on federal sentencing and child pornography law. She told In Justice Today that while possession of child pornography is a serious crime,

“DOJ’s decision to lump these crimes together is so poorly explained, one worries that it was done, perhaps in part, to create the appearance that the Department of Justice has been more active in prosecuting cases involving the physical molestation of children, such as production of child pornography and sex trafficking…The numbers in this report would look far different if they excluded child pornography possession cases.”

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending. Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst. While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that:

Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months.

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement. More than ten images? Enhancement. Distribution, even unintentional distribution, as discussed above? Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement. Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutorymaximum sentences.

Excerpt from the 2016 United States Sentencing Guidelines Sentencing Table

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences. As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory — that even possession of such images drives a market for child pornography. The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course. Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

Guy Padraic Hamilton-Smith is an author and civil rights activist focusing on sex offense law and policy, criminal justice, and civil rights. His own experiences with the registry inspired him to go to law school, though was denied the ability to take the bar exam in Kentucky. Most recently, he successfully sued Kentucky in federal court for civil rights violations. His writing has been published in various outlets such as the Berkeley La Raza Law Journal and the American Bar Association’s State of Criminal Justice. He resides in Lexington, Kentucky with his fiancé and two cats. Connect with him @G_Padraic on Twitter.

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Philadelphia Media Slam Newly Elected DA Krasner for Firings but House Cleaning Advances His Promise of Equal Justice

Philadelphia Media Slam Newly Elected DA Krasner for Firings but House Cleaning Advances His Promise of Equal Justice

It didn’t take too much deliberation for the Philadelphia Inquirer to render its guilty verdict against District Attorney Larry Krasner after he took office on January 2: “the first days of Krasner’s administration,” the editorial board intoned nine days later, “seem more about imprudence than jurisprudence”

Zing. A rhyme. But what does it all mean? Well, Krasner swiftly ousted 31 prosecutors who packed up their desks along with others who had resigned on their own accord before he took office. Last year, Krasner, a career civil rights and defense attorney, rode a surge of grassroots organizing to a shocking win, promising to turn the Philadelphia District Attorney’s Office upside down and take concrete steps to end mass incarceration.

What’s surprising to me, first of all, is all the Inky’s surprise: What should be remarkable is that Krasner fired such a small number, judging the vast majority of people in an office of roughly three hundred prosecutors to be ready to head in a very different direction under his new leadership — a direction in which he plans to leaven the conventional pursuit of punishment with a more holistic conception of public safety and well-being.

The Inquirer’s editorial board, however, shrouded its opposition to the firings (which were actually pointed requests to resign) with criticism of the way in which they were orchestrated. Echoing reporting from the paper, they complained that “victims of crimes, witnesses and people accused, along with judges and defense attorneys, were left in a lurch in city courtrooms when prosecutors expected to play their part in our criminal justice system were suddenly yanked from those roles, with no replacements ready.”

At least two different stories in the paper highlighted a murder case that was delayed because veteran prosecutor Andrew Notaristefano was pushed out, with one story citing the emotional toll the delay caused for the victim’s family. No doubt: lengthy trials are painful for victims’ families, and the paper is right to tell their stories. But context is important and hard to find in the coverage: trials are delayed all the time, often at the request of prosecutors. It’s worth considering, then, why this one delay has dominated the paper’s coverage of Krasner’s extremely short tenure, and why stories about the many Philadelphians who have had their lives ripped apart by mass incarceration and police brutality — and what they might be hoping for from the new district attorney — have been absent.

The paper’s reporting — “Last week’s shakeup and the new appointments added to the impression — and in some corners, hope — that Krasner, a career civil rights lawyer, would drastically reshape the office and its priorities” — turns reality on its head, portraying their own reactionary position as the majority one prevailing in the city. In some corners? The paper has yet to accept that their position, which is also the position of the city’s criminal justice establishment, was thoroughly repudiated at the ballot box.

The Inquirer is not alone. At The Philadelphia Citizen, co-Executive Director Larry Platt compared an inexperienced Krasner to Trump and Oprah, lampooning his “amateurish first week,” pointing to the “freaked out Assistant District Attorneys” blowing up his phone. “It had,” he hyperbolically suggested, “the feel of an authoritarian (Trump-like?) purge.” But the Trump comparisons will fall flat. Most Philadelphians hate Trump, and they voted for Krasner in a landslide. And though Philadelphians voted against typical prosecutorial expertise in carrying out systematic justice, Krasner has considerable experience in the Philadelphia criminal justice system as a defense attorney. What’s more, Trump is a monstrous bigot fomenting a smokescreen of fear and hate to advance a war against poor people. By contrast, Krasner has pledged to do his part to fight back on the other side.

The Inquirer’s coverage is not just anti-Krasner; it is bad reporting, featuring fundamental oversights that shouldn’t appear in the city’s paper of record. First, the coverage is premised on the belief that Krasner was acting in bad faith — that he jettisoned people like Notaristefano for no good reason — and worse yet, that he has no real interest in securing justice. It didn’t seem to occur to the paper that Krasner might have a serious problem with the way that Notaristefano was prosecuting cases or about his overall track record.

Second, The Inquirer seems dumbstruck that Krasner’s own personal impression of prosecutors played a role in their ouster. But Krasner has spent decades in the court system, giving him a front row seat to how prosecutors play dirty by, say, turning a blind eye to brazenly lying cops or unconstitutionally hiding evidence from the defense. Why shouldn’t this sort of information, combined with what he has learned from others in the legal system, inform his personnel decisions?

Third, the coverage betrays a basic misreading of what district attorneys do. The presumption at work is that the district attorney’s office is a technocratic one rather than a political force that wields incredible discretionary power over people’s lives and liberty. Consider that no one would ever fault a president, governor or mayor for excusing functionaries who were hostile to their mission, and installing a new team. The technocratic conception of the district attorney’s office is a smokescreen obscuring the regular operation of mass incarceration: seeking maximum sentences for huge numbers of people at whatever cost, however ethically repugnant or legally dubious. That the status quo was normal did not make it right.

But perhaps The Inquirer’s biggest reporting failure is that it didn’t deign to examine why Krasner fired the prosecutors. It is The Inquirer’s duty to investigate the question: Krasner cannot publicly answer it. That would invite defamation suits and a can-of-worms of defense lawyers citing said explanations to reopen old convictions won by the disparaged prosecutors.

You would have to read the news site City & State PA for any real insight. As one source inside the office who kept their job told the site, many were “supervisors with different visions, veteran high-salaried do-nothings or younger prosecutors associated with misconduct.” The rationale behind many of the firings was indeed obvious.

Prosecutor Mark Gilson, for example, was amongst the booted. Gilson at one time ran a conviction integrity unit — the purported goal of which are to search out wrongful convictions — that under former District Attorney Seth Williams found that most every questionable conviction had the utmost integrity. And as for the large numbers of people fired from the homicide unit: they were not fired not out of animosity toward the prosecution of murder cases but rather because the homicide unit was the home of some of the office’s most veteran prosecutors — prosecutors who were likely deeply committed to the old way of doing things.

The alarmist coverage of the firings has also overshadowed hires and internal promotions. The new chief of the conviction integrity unit is Patricia Cummings, who headed up the unit in Dallas County, Texas. Refreshingly, she has a reputation for seeking to free people from prison who did not commit the crimes for which they were convicted. That should have been news but, unsurprisingly, wasn’t. The Inquirer had until quite late in the game ignored the office’s failure to free the wrongfully convicted.

Or what about Movita Johnson-Harrell, an anti-violence activist — who has lost a father, son, brother, and cousin to gunfire — being picked to lead the victims services office? Or Krasner’s remarkable choice for first assistant district attorney, his second in command: 83-year old Carolyn Engel Temin, who was first female public defender in the city, a former prosecutor, and a longtime city judge who also served as an International Judge on the Court of Bosnia and Herzegovina in Sarajevo? Much of this was covered by The Inquirer, but mostly lost amidst the hand wringing over prosecution as we knew it coming to an end.

Winning the local media war will be tough for Krasner because many are rooting against him. And Krasner doesn’t like much of what he sees in the media. As he told me in an interview last fall, he believes that many reporters practice “yellow journalism” and are solely interested in stories that gin up fears of crime and thus grease the wheels of mass incarceration. His criticism is spot on: take, for example, their 2009 investigation of unpaid court debt that prompted city courts to launch an ill-fated shakedown campaign. But Krasner shouldn’t write the papers off: diagnosing The Inquirer’s shortcomings will not, even in an era of steep decline, will them out of existence. Krasner should have prioritized getting ahead of the inevitable media backlash, and tried his best to not let the firing story precede the one about hiring.

There was one complaint from The Inquirer that Krasner should take seriously. The editorial board noted that Krasner’s office did not release a list of those who resigned, saying that they would take 30 days to respond to a public records request. At first glance, this looks like an error on the District Attorney’s part. The public has a right to know about basic government functions and decision making. And Krasner should have known that The Inquirer, like many newspapers, puts a premium on transparency, often at the expense of most anything else, including whether Philadelphians receive substantive justice from legal system. That said, Krasner did allow these people to resign: it would have been odd for him to then announce to the public that they had been fired.

But even though Krasner should prioritize reaching out to the city’s papers, it ultimately falls to the papers themselves to report well on Krasner’s new reign at the DA’s office. And to report well in this new era, they have to think about criminal justice more expansively and critically. The Inquirer, which sets the tune for the entire Philadelphia media, has long mostly been interested in criminal justice only insofar as it pertains to street crime and official corruption (there are important exceptions to this, notably my former editor, criminal justice writer and bar reviewer Samantha Melamed, who recently wrote a story looking ahead at what Krasner’s conviction integrity unit might mean for those with wrongful conviction claims). To wit: they turned against the now imprisoned former District Attorney Seth Williams not because his office was presiding over mass imprisonment, blithe complicity in police perjury, failure to charge prison guards with assault and charging the prisoner victim instead, and using the legal system to swipe poor people’s stuff. It was only when he was caught in a case of mind-numbingly pathetic and penny-ante corruption that they called for his head.

I’m not arguing that the press shouldn’t adopt a critical stance toward Krasner. Far from it. But they should redefine what it means to hold prosecutors accountable, and then do so zealously. Krasner promised to help put an end to the era of mass incarceration and crack down on police misconduct. That will be a daunting task. Reporters should hold him to it, carefully scrutinizing his actions over the next months and years to determine whether he is sending significantly fewer people to prison, for significantly less time, as promised.

Krasner was catapulted into office on a wave of grassroots civil rights organizers demanding an end to the era of mass incarceration. Getting rid of prosecutors hostile to that mission was an expected and utterly necessary first step.

Thanks to Burke Butler.

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