Around the Blogs, Thursday, April 26, 2007

• Couple of thought-provokers from Doug Berman over at Sentencing Law and Policy. One deals with the rebellion an Australian judge created when he tried to involve juries there in sentencing deliberations. Some really patronizing and undemocratic sentiments. What really came to my mind, though, was this: do we really have plea bargaining because of the backlog of cases or is it, at least in part, because of the power it gives trial practitioners to get the outcome they want without having to worry about the rabble? The other catches a very good example of what I was talking about the other day concerning mistaking the highly vocal, highly visible, and highly conservative “victims groups” and their political spokespeople for the full range of wishes and opinions of crime victims. Good to see the rest of crime victims get organized and out there.
• Empirical Legal Studies alerts us to this SSRN article on recent work on the cognitive mechanisms behind racial bias and how conscious efforts to stop its effect in crim just, including sentencing, can't get past the unconscious. Which says a lot about what needs to happen with guidelines if you really think you can rid bias from sentencing. Of course, if you're waiting until sentencing, those horses are pretty much out of the barn.
• Really good piece here at Prawfsblawg, with excellent points made about the range of factors judges consider, how limited guidelines are in picking them up, and the reality that “disparate” sentences that justified (and justify) guidelines may not have been that “disparate” after all. But notice the dog that doesn’t bark here—where's any consideration of what sentencing data say was the effectiveness of any sentence given in reducing recidivism, increasing public safety, demonstrating its superiority over other sentences in those regards, or what the public thinks of the legitimacy, effectiveness, or justice of the decisions given? A great case of what a closed world judges and trial practitioners live in. Also, you should note that the WI Sentencing Commission is finishing an NIJ study that we started when I was there that will detail some of the “factors considered when sentencing” for some major offenses. That might push these exercises along and it will be real cases, not hypotheticals or post facto deliberation. I selfishly think it should help make us rethink what we really think we’re doing in corr sent policy, but I may have displayed ego here before.
• Corey Rayburn Yung at Sex Crimes Blog has one of those head-scratchers that law professors will probably be throwing at their crim law classes soon—if the defense wants an independent expert to examine video child porn to see if tech things have been done that would help the defendant’s case, can the expert be arrested for possession of child porn? Even if in the prosecutor’s office? Looks like maybe in OH they can. And if the threat alone exists, then how does the defendant, you know, defend himself? Aren’t we getting just a tad strange with this? Great catch, Corey.
• Haven’t mentioned the great work covering TX crim just policymaking at Grits for Breakfast lately, primarily because he manages to cover so many things every day that it’s hard to pick out individual ones to highlight, much like Pam Clifton does in CO at Think Outside the Cage. I’m sure I’ve aggravated him in the past with my distaste for what TX does to the rest of this nation, and I apologize for that if not for the belief, but, really. You can’t read what he reports every day and not come away shaking your head and wondering what’s in the water and/or soil down there. And why he and his fellow travelers insist on extolling the state’s greatness. But, seriously, go and visit and give him some regular hits. It’s an education, in the negative feedback kind of way, that you need.
• Finally, at Cognitive Daily, a great recap of the recent research demonstrating that capuchin monkeys have an innate sense of justice and are willing to forgo what "cost-benefit" would suggest just to express that sense. See any comparisons to another species here? Once again, a strict “cost-benefit” rationale for corr sent reform bites the dust. We have to emphasize that we’re not getting the public safety for our dollars with most incarceration as we would with alternatives, with the results being more crimes and victims. Even if harsh punishment feels just to the victim, which isn’t always the case and is actually why we created a crim just system to take those perceptions out of the community’s equation, if it results in more crime and victims, it’s not just for the community. Simply saying it’s irrational to spend $20,000-$30,000 a year to incarcerate someone who did $5000 worth of crime is not going to get the job done. If anything's clear by now, it's that.