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Posted 11/23/10
IS THE UCR BEING MUGGED?
AND IF SO, BY WHOM?
A mayors’ group blasts a publisher for ranking cities by their crime rates
For Police Issues by Julius (Jay) Wachtel. “A premeditated statistical mugging of America’s cities.” That’s how a press release from the influential U.S. Conference of Mayors described the yearly CQ Press ranking of America’s largest cities by their crime rates.
It’s not CQ’s methodology to which the mayors object. CQ gets its numbers from the UCR. It includes all Part I crimes excluding larceny-theft and arson (murder and non-negligent manslaughter, forcible rape, robbery, aggravated assault, burglary and motor vehicle theft) for metropolitan statistical areas and non-MSA cities with populations of 75,000 or more. CQ computes each locale’s difference from the national average for each type of crime, and then summarizes the results into a single score.
Well, that seems pretty straightforward. So what’s the problem? The mayors have three big gripes. One is that cities face unique circumstances so it’s unfair to rank them.
Cities differ in ways that have nothing to do with their crime risk, but that can greatly affect their ranking. Pure geographic happenstance – the location of the boundary line separating “city” and “suburb” – is one. Cities that are geographically small and that therefore do not include as many middle-class areas as larger cities get penalized, arbitrarily.
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Cities do vary. Some are big, others are small; some are prosperous, others aren’t. And yes, many have low-crime suburbs. Los Angeles (243/400 on the list, with smaller being better) would probably look a lot better if its score included peaceful communities such as Simi Valley (16/400), where many cops choose to live. (Simi also happens to be the place where four LAPD officers accused of beating Rodney King were tried and acquitted, touching off major riots in, naturally, Los Angeles.)
Who’s “penalized” depends on whose ox is being gored. Whatever the reason for the L.A./Simi Valley demarcation line, families looking for a safe place to live in northern Los Angeles County might find CQ’s information very useful. Apparently so does Simi Valley police chief Mike Lewis, whose website message brags that his community “consistently ranks as one of the Safest Cities in America.”
Another argument is that city rankings can’t predict the risk of being victimized:
Knowing the city in which a person lives reveals next-to-nothing about his or her crime risk, especially when compared with genuine risk factors such as age, lifestyle, and the neighborhood within a given city where that person lives.
Leaving aside the obvious – that even residents of safe areas must travel outside their neighborhoods – it’s true that the risk of becoming a victim depends on many factors. West Los Angeles, for example, has far less crime than South or East L.A. Still, the effects of crime are felt citywide, straining the municipal budget and impacting everything from libraries to street maintenance. Last July former mayor Richard Riordan predicted that without substantial additional reductions in expenditures (or without substantially increasing the property tax rate) the city could go broke in two years. While no aggregate statistic such as city crime rank can accurately predict whether a specific individual will get mugged, CQ’s number is nonetheless a useful barometer of a city’s overall health.
A third objection leaves behind the validity of the rankings to argue that the numbers used to create them are hopelessly unreliable:
Cities differ in the degree to which their citizens report crimes and in how crime is reported. How much of the difference between any two cities’ crime ranks is real and how much reflects differences in measurement and reporting systems is not known.
Indeed, just during this past year anecdotal reports suggest that many police departments have undercounted crime and minimized its severity:
- Baltimore: Rapes are up twenty percent, to 112 from 94 for the same period last year. Why? Because the local paper blew the whistle on a police practice of ignoring sexual assaults. Police have also been accused of classifying shootings with multiple victims as a single crime. They also reportedly jiggled the value of stolen property to keep thefts from reaching the felony threshold.
- Dallas: Reporting guidelines that were overhauled in 2004, causing aggravated assaults to plunge, were justified by the police chief, who says he follows State, not FBI classification rules. Dallas also stopped reporting vehicle burglaries, supposedly to keep from counting phony reports. Meanwhile a newspaper investigation reveals that police are only reporting half the crimes called for by FBI rules.
- Detroit: In a strange twist, the police are claiming that recent threats to punish officers who “miscode” lesser crimes as burglaries are only intended to reduce over-reporting (who knew that was a problem?) It may or may not be related, but former Detroit police chief James Barren was fired in 2009 after his department and the medical examiner got caught classifying homicides as self-defense and suicide.
- Memphis: Police proudly report an 80 to 90-percent homicide clearance rate. But using FBI reporting standards it dips to 69.3 percent, only slightly better than the national average.
- Miami: A 2009 report by the Florida Department of Law Enforcement attributed chronic under-reporting by Miami police to “a self-imposed pressure that certain [officers] felt as a result of the implementation of Compstat.” One example was a carjacking that police downgraded to an “information report.”
- Nashville: Police are accused of clearing domestic violence crimes as unfounded to improve the department’s statistics and “[make] it look like crime has diminished.” Officers also accuse former chief Ronal Serpas (now at New Orleans) of using CompStat to “manipulate” statistics and make it appear that crime had declined.
- New Orleans: Police are reexamining 30 sexual assault reports from 2009 that may have been improperly downgraded to non-criminal incidents. 146 such write-downs were made in 2008, versus 97 recorded as criminal.
- New York City: Managers pressed by Compstat allegedly monkeyed with reports to keep theft losses under the FBI’s $1,000 threshold. To hold down the aggravated assault rate they also reportedly encouraged victims of violence to minimize what took place. A whistleblower complaint recently led to internal charges against five officers including a Deputy Inspector for suppressing crime reports in order to make their precinct look good.
- St. Louis: Police admit that at least some of the steep drop-off in crime was due to a change in reporting practices. They have also begun to report more assaults.
Fiddling with numbers may reflect a concern to not stand out during an era of falling crime rates. Undercounts may have other causes. As we’ve mentioned before, victims who reside in high-crime areas may be too scared to report crime. In Milwaukee, declines in patrol staffing that caused 911 response time to average three hours have so discouraged some residents and business owners that they simply stopped calling.
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What does the FBI have to say about using the UCR to rank cities? In a word, “don’t”:
Since crime is a sociological phenomenon influenced by a variety of factors, the FBI discourages ranking the agencies and using the data as a measurement of law enforcement effectiveness.
A more elaborate statement to the same effect, “Caution Against Ranking,” pops up whenever users access the UCR. Yes, crime imposes unequal burdens. It’s probably unfair to use crime rankings to compare the performance of police departments. Keep in mind, though, that the UCR does more than pass on numbers. Its yearly reports, which are relied on for a wide range of purposes, aggregate and analyze crime statistics for the U.S. as a whole. That crime has dropped steadily for nearly two decades is accepted as gospel. Really, if we trust UCR data that much, why should its use to rank cities be any different? Because it embarrasses?
Of course, if we don’t trust the data – and there may be good reason not to – then we ought to be doing something more than just picking on the messenger.
UPDATES (scroll)
6/27/24 The FBI’s switch from the UCR to the NIBRS remains a work in progress. Many agencies are yet to fully implement the new system, and crime numbers to be released this fall will be up to 18 months old. Such delays, according to the Council on Criminal Justice (CCJ), inaccurately depict crime trends and render data-based responses ineffective. CCJ asks that the FBI get agencies to submit crime data to cover 98 percent of the U.S. population by 2027, thus “matching the level of coverage prior to the switch”. States are asked to assure that all police agencies furnish crime data each month. CCJ Report
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Turning Cops Into Liars Location, Location, Location Liars Figure
Posted 10/17/10
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Posted 8/22/10
WHO DESERVES A BREAK?
AND HOW WOULD WE KNOW?
A Sheriff’s lieutenant urges cops to consider the individual before making an arrest
“Are you really going to put a felony on this guy? Here is a kid that could have been planning on going into the military, being a cop or fireman, and/or just being a guy with a career.”
For Police Issues by Julius (Jay) Wachtel. When Los Angeles County Sheriff’s Lieutenant Bill Evans issued an instructional memo setting out a fictional encounter between a deputy and a Christian college student with an “illegal folding pocket knife” (let’s call it a switchblade) he didn’t expect that the document would ricochet around the country at the speed of the Internet.
But it did. Now everybody from Maine to Montana to this blogger wants to weigh in. (Well, not everyone. At last check the President’s stayed out of it.) Not all the reaction has been positive. Hubert Williams, president of the Police Foundation and former chief in Newark didn’t think that focusing on the youth’s character was appropriate. “The moment you start saying ‘take the individual into account’ you’ve opened the door to allow bias into the decision-making process.” Merrick Bobb, southern California’s famous police watchdog, had another concern:
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What if the same kid was a black student with long dreadlocks at Dorsey High? What if the same kid was a Latino and undocumented? A single parent with a young child at home? I would hope the same ability to empathize and exercise compassionate discretion would be triggered in those instances also.
Discretion is an inescapable part of policing. Agencies choose how and where to deploy cops and which crimes to emphasize, while individual officers decide whom to stop and what to do with them afterwards. Cops, of course, can’t simply act how they please. Some laws – domestic violence comes to mind – require an arrest when there’s sufficient evidence. Even if not mandated by law, it would be unthinkable for cops not to arrest an armed robber or a violent criminal. Police discretion is bounded in other ways. As James Q. Wilson pointed out, communities influence the police, and conduct that may lead to an arrest in one city may not in another.
So what should a cop do about a college student with a switchblade? Seeking guidance from the LAPD manual (regrettably, the LASD’s isn’t online) we come across section 1/508, “Police Action Based on Legal Justification.” It advises that what’s appropriate varies with the situation. Hmm. Then there’s section 1/512, “Alternatives to Physical Arrest, Booking or Continued Detention,” which warns that if an arrest is legally justifiable, the decision to invoke a less serious alternative must be based on fact alone:
Once a violator has been identified, it is the function of the Department to initiate the criminal process; however, there are circumstances when a crime may occur and the Department will not make a physical arrest. There may be a report written and an application for a complaint made; or in some cases, when the offense is of a minor nature, a verbal warning or other direction may be given. The decision not to make an arrest will be guided by Department policy and the factual situation involved, not by the personal feelings of the officer.
That’s all well and good if there is an applicable policy and there are plentiful “facts.” Yet the paradox is that policies governing the exercise of discretion tend to lack detail precisely because these “facts” are often nonexistent or too ambiguous or politically incorrect to articulate, let alone put into writing. To be sure, one could draft a policy that gives a break to youths carrying switchblades that they don’t intend to misuse. But on what “facts” would cops be expected to rely? (For New Haven PD’s exceptionally detailed policy, which applies only to order-maintenance situations, click here.)
Lieutenant Evans knows that officers often exercise leniency. Perhaps he’d like the practice to increase. Yet encouraging them to do so in weapons cases seems questionable. Decisions to arrest are influenced by perceptions of a suspect’s dangerousness, and it so happens that weapons possession is its most salient indicator. Criminal record, gang involvement and suspect demeanor are also important. All are demonstrable “facts,” so if an agency wishes to regulate the use of discretion each could probably be part of a defensible policy.
On the other hand, turning to extrinsic factors such as religiosity or which college one attends invites fatuous distinctions. Decisions to let someone go shouldn’t rest on idle speculation. That’s probably what spurred a Sheriff’s station commander to suggest that it would have been better to share the memo at a meeting where the “subtleties” of police decision-making could be properly addressed.
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There’s no question but that the lieutenant was well intended. Where, he asks, would some of us be had we run into a “hard-line cop” when doing “crazy stuff” in our younger years? Fair enough, but as we mentioned in Before JetBlue it’s precisely the overlooking of crazy stuff that has allowed ticking time-bombs to become police officers. It goes without saying that everyone benefits when characters who may have a penchant for violence are formally rather than informally processed. Sure, be compassionate, but when it comes to carrying a switchblade (incidentally, it’s a misdemeanor under P.C. 653k) being Christian seems like an awfully flimsy excuse.
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A Delicate Balance
Posted 6/6/10
A NATION OF LIARS
Mortgage fraud, ordinary people and the Great Recession
For Police Issues by Julius (Jay) Wachtel. Four to six billion dollars. That’s what mortgage fraud costs the U.S. each year. And it’s not just our pockets that are getting picked. Effects from America’s financial meltdown have rippled around the world, spreading pain at the speed of the Internet and turning the Great Recession into a global event.
An analysis of suspicious mortgage-related activities during 2008 revealed that 65 percent of suspected home purchase fraud and 54 percent of suspected refinance fraud was “for housing,” meaning that borrowers intended to live in the home and keep payments current. Purchasers actively furthered the fraud in 87 percent of these cases, usually by misrepresenting their income and liabilities and offering false documentation. Stated income loans made fudging easy. More popularly called liar’s loans, they carried high (subprime) rates but didn’t require proof of income.
Mortgage industry workers can increase their sales volume, thus their income by inflating the creditworthiness of marginal borrowers. It’s estimated that 63 percent of suspected “for housing” schemes involved brokers, and 23 percent appraisers. Indeed, when the market was hot financial firms pressed employees to make as many loans as possible. A State’s attorney who investigated the Ameriquest scandal put it succinctly: “The culture was to sell, sell, sell and do whatever it takes to sell, sell, sell.” A person who identified himself as a loan underwriter (verifies that loans conform to policy) posted this revealing comment on an Internet bulletin board:
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Now...the initial [loan] application...was submitted [by the loan officer] as [an] unsigned telephone interview so that the gory REAL details of the borrower's data could be swept under the rug and compel the underwriter to approve the loan....I am an underwriter and caught this numerous times to the dismay of my employers who wanted every loan approved. I was not their favorite underwriter...I caught on to the malfeasance...not appreciated. Did this happen on a regular basis, you betcha...every day.
We’ll get to why lenders would carelessly dole out cash in a moment. For now let’s turn to the other kind of mortgage fraud, “for profit.” There are many varieties (for an overview click here and go to page 13.) “Flipping,” the repetitive purchase and resale of a home by corrupt investors, is very popular. It often begins with a homeowner desperate to sell. Fraudsters inflate the home’s value with an exaggerated appraisal (see photo above), then get the seller to kick back the difference between the loan and the secretly agreed-to purchase price. They then put the property through a series of sham resales to straw buyers, at each step profiting from the income generated by ever-larger appraisals. Eventually the property is abandoned to foreclosure or sold to an unsuspecting mark. (Click here for a recent example.)
Builders are often involved in scams. With a purchaser’s assent they may inflate the selling price and apply the excess loan amount as a pretend down payment, thus creating the illusion that the borrower has equity. Many buyers consider this a quasi-legitimate way to acquire a home with no money down. Of course, if they default the lender quickly discovers that a good chunk of the home’s “value” has vaporized.
Reports filed with the Treasury Department suggest that in 2008 sixty-one percent of “for profit” schemes involved buyer cooperation. Their participation was second only to brokers (62 percent) and far more frequent than appraisers (23 percent).
When real estate was hot the mortgage industry was more than happy to qualify the unqualified and look the other way as shady brokers and appraisers helped boost the paper value of already overpriced property. In an overheated, go-go atmosphere where home prices rose before lunch, few objected.
It’s not that the Feds didn’t know what was going on. As early as 2004 the FBI’s top criminal investigator warned that mortgage fraud “has the potential to be an epidemic.” One year later FBI’s Mortgage Fraud Report pointed out that “combating significant fraud in this area is a priority, because mortgage lending and the housing market have a significant overall effect on the nation's economy.”
And it’s not that they lacked legal tools. Mortgage applicants complete a standard form that warns false statements are crimes. Thanks to the interstate commerce clause and the government’s insuring of financial institutions and backing of loans, virtually every shady move is a violation of Federal law. Among the applicable statutes are 18 USC 1341, mail fraud; 18 USC 1343, wire fraud; and 18 USC 1014, false statements in loans and credit applications (click here for an example of a charging document in a Federal prosecution.)
Yet as the real-estate bubble grew the number of investigators overseeing the loan industry fell sharply. In the wake of 9/11 the FBI reassigned 2,400 agents from criminal duties to chasing Al Qaeda; by 2007, as the bubble was set to pop, a mere 100 agents were working mortgage fraud. As a retired supervisor said, “we knew that the mortgage-brokerage industry was corrupt....But the agents with the expertise had been diverted to counterterrorism.”
Once the nation started slipping into recession the FBI had second thoughts. Many agents were brought back to fight white-collar crime. Their return was welcome. Naturally, much of the damage was already done.
Really, mortgage shenanigans were the worst-kept secret in the financial industry. Why did lenders encourage unqualified borrowers to sign on the dotted line? Why didn’t they challenge exaggerated appraisals? Because when times were good churning out loans regardless of quality paid rich dividends. Risk was passed along. Mortgages – including the many stinkers – were sold by smaller lenders to the larger, then bundled by the latter into securities that were peddled throughout the world. As long as homeowners paid their debts, investors got their dividends. If a few borrowers defaulted it hardly mattered.
Except that when the bubble burst the cash stopped flowing, fast. Firms that had purchased highly-rated mortgage-backed securities (yes, the ratings agencies were in on it too) turned on the Wall Street firms that got them into the fix. In the end Uncle Sam decided that some financial houses were “too big to fail” and propped them up with taxpayer cash. Soon the big fish were again making money hand over fist and vacationing in the Hamptons. (Click here for an entertaining slide show that tracks the mortgage debacle.)
Dreams of home ownership and, yes, profit led many upwardly mobile members of the middle class to take out subprime loans and buy homes that were well beyond their means. Encouraged by brokers and loan officers, ordinary individuals gambled that rising prices would give them enough equity to refinance before teaser rates expired. Holding their noses, they exaggerated their income, minimized their liabilities and dove in. Then the economy collapsed, taking home values with it. Unemployment soared. But like ticking time-bombs the mortgages were still there, their interest rates resetting to stratospheric highs. Without equity getting a new loan was impossible. Jobless or underemployed, owing far more than their properties were worth, millions walked away or were driven from their homes. Once-manicured neighborhoods fell to blight, becoming breeding grounds for crime and disorder.
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There’s plenty of blame to go around. By all means, point the finger at greedy lenders who peddled loans for which a schnauzer could have qualified. Lock up the crooks who took advantage of the wild-west atmosphere to line their pockets. Go after the financial giants who ignored warning signs and recklessly marketed mortgage-based securities for the sake of a buck. But don’t forget that it couldn’t have happened without help from the many borrowers who decided that the time was ripe to get theirs, and that if all it took was a few white lies and a little bit of imagination, why that was perfectly acceptable.
After all, things could only go up!
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You Think You’re Upset? Who’s Guarding the Henhouse? (Part II)
Posted 4/26/10
EXTREME MEASURES
Angry over Federal dithering, Arizona enacts its own immigration laws
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Posted 2/6/10
THE GREAT DEBATE (PART II)
Violence is the problem. Is harsh sentencing the solution?
“The three-strikes law sponsor is the correctional officers’ union and that is sick!”
For Police Issues by Julius (Jay) Wachtel. Who said that? Here are three possibilities: (1) the ACLU president, (2) the ACLU executive director, or (3) Supreme Court Associate Justice Anthony M. Kennedy, addressing a gathering of lawyers on February 3, 2009 at Pepperdine University’s Odell McConnell Law Center, perched high on a spectacular bluff overlooking the shores of the Pacific.
Hmm...let’s see...
For someone who’s supposed to keep an open mind Justice Kennedy’s words may seem intemperate. Yet those familiar with his concerns aren’t a bit surprised. A staunch supporter of the police, the third-most senior member of the Court (he joined in 1988) is also a long-standing prison reformist. Justice Kennedy has frequently spoken out against overcrowding and excessively long sentences, which he likes to point out are on the average eight times longer than the European norm.
Justice Kennedy’s ire last week was directed at California’s three-strikes law, widely considered to be the toughest in the nation. We’ve already described its two most salient features. First, it’s both a two-strikes and three-strikes law. Persons who are convicted of a new felony after being convicted for a violent or serious felony get their terms doubled; two such priors draw a mandatory 25 years to life. Note that the triggering offense – the new charge, or “strike” – can be any felony, including drugs and theft.
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It’s no secret that sentencing has become substantially harsher. According to the Bureau of Justice Statistics, 447 per 100,000 adults (18+) were sentenced for felonies in State court in 1990. In 2006 the rate was 503 per 100,000, an increase of 13 percent. More importantly, those sentenced to State prison were serving considerably lengthier terms. Between 1993-2005 the average time served in State prison (all offenses) went up from 21 months to 29, an increase of 38 percent. For violent crimes the increase was from 36 months to 50 (39 percent); for property crimes it was from 17 months to 22 (29 percent).
Harsh sentencing goes back several decades. According to the Statistical Abstract of the U.S. the U.S. imprisonment rate (persons in State or Federal custody and sentenced to one year or more, per 100,000 population) was 96 in 1970. It took off four years later and never looked back. By 1980 it had reached 139; in 1990 it was 296 and still climbing. The historical high, a mind-bogging 756 per 100,000 population came in 2007. In that year 2,298,041 persons – nearly one out of every one-hundred Americans – were locked up doing a year or more. (In 2008 the rate dropped ever so slightly, to 754.)
As the good justice implied, when it comes to imprisoning its citizens the U.S. is on top (or the bottom, depending on one’s point of view.) According to the authoritative World Prison Population List, our 2007 incarceration rate of 756 was by far the highest on the planet, five times greater than the world rate of 145 per 100,000 and eight times that of Southern and Western Europe’s measly 95. Way behind in second place was Russia, with a barely respectable 629. Other pleasant places like Cuba (531) and Belarus (468) weren’t even in contention.
Our chart depicts historical and contemporary violent crime and imprisonment rates per 100,000 population from 1970 to 2008. Comparing the trend lines we see that the well-known surge in violent crime that began in the mid-1970’s substantially outpaced the imprisonment rate until the late 1980’s. It’s generally agreed that by then a punitive mindset had formed, which persisted even as violent crime tumbled. In 1991, as the mayhem reached its zenith, there were 1,911,767 violent crimes, yielding a rate of 758.2 per 100,000. By 2000 the violent crime rate (based on 1,425,486 offenses) was a full one-third lower, at 506.5. A moderate downtrend still persists; 2008’s rate, 454.5, amounts to an additional reduction of ten percent.
So here’s the million dollar question: was it punishment that turned things around? While it’s common sense that incapacitating offenders prevents crime, just how much additional value was produced by imprisoning more persons for longer terms? In his conservatively entitled “The Limited Importance of Prison Expansion,” statistician extraordinaire William Spellman estimates that increased imprisonment cut violence twenty-seven percent, a seemingly modest figure until one remembers that there were nearly two million violent crimes at the height of the madness. His endorsement of stiffer sanctions, though, seems half-hearted.
One may conclude, with considerable conviction, that the prison buildup was an important contributing factor to the violent-crime drop of the past few years. America would be a much more violent place had billions of dollars not been invested in prison beds; violent crime would not have dropped as far and as fast as it has. Nevertheless, violent crime would have dropped a lot anyway. Most of the responsibility for the crime drop rests with improvements in the economy, changes in the age structure, or other social factors. Whether the key to further reductions lies in further prison expansions, or (more likely) in further improvements in these other factors remains an open question.
What could really harsh stuff like three-strikes accomplish? Methodological issues make it difficult to figure out its unique effects. Three recent studies arrive at varying conclusions. In a survey of U.S. three-strikes laws Chen reported slight but statistically significant associations between three-strikes and declines in crime. Notably, California’s law, the harshest of the lot, didn’t fare better than the others. On the other hand, Kovandzic, Sloan and Vieraities found that three-strikes had no impact. (One possibility they cite is that in cases where three-strikes applies, its added sanctions aren’t of sufficient magnitude to stand out.) Finally, Helland and Tabarrok estimate that California’s three-strikes law reduced felony arrests for those with two existing strikes by 17-20 percent. They nonetheless suggested that the money spent on three-strikes is better used elsewhere.
Money is a central issue. Thanks to liberalizations brought on by the economic downturn, imprisonment rates in a majority of States stood still or went down between 2007-2008, with reductions of as much as thirty-one prisoners per 100,000 population in Texas and Massachusetts. Still, harsh treatment is unlikely to disappear, and for the most practical of reasons: as we said last week citizens aren’t “averages” – they’re victimized one at a time. If, as Dr. Spellman conceded, stiff sentencing cuts violence by one-fourth, hundreds of thousands could be saved from becoming victims each year.
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Indeed, a push-back is already underway. In California a jail inmate let go under a new early-release policy then promptly re-arrested for sexual assault became the new poster-child for victim-right groups, while in Oregon the release of a violent inmate who went on to reoffend spurred reassessment of a law expanding good-time credits. Speakers at a recent national conference cautioned against letting financial considerations dictate sentencing. A public-policy expert opposed releasing prisoners just to “return to policies that don’t make sense,” while a State senator called a recent triple murder by a parolee a sharp reminder that he and others hadn’t been taking the threat of violence “as seriously as we should have been.”
There’s nothing new about horrible crimes being committed by persons released on bail, or by probationers and parolees. Sure, it’s always possible to tune up the release system, but in the end predicting individual dangerousness is well-nigh impossible. So what about changing people? Well, we can’t force anyone to age out of crime any faster, and as far as making humans kinder and gentler – forget it!
But we can throw away the key.
UPDATES (scroll)
10/23/24 Walter Johnson, aka “King Tut,” was a New York City crime legend in 1997 when Federal judge Frederic Block sentenced him on yet another string of violent crimes. Calling him “a classic example of a person who has to be incapacitated,” Judge Block gave Johnson five life sentences. But during the ensuing 27 years, Johnson’s “stellar” prison behavior and mentorship of others impressed Judge Block. So much so, that he just turned away prosecutors’ objections and resentenced Johnson, under the First Step Act, to time served. “King Tut” is now a free man.
2/27/24 San Francisco’s crime problem may be changing public attitudes about policing. Deaths from Fentanyl have skyrocketed, leading the D.A. to warn dealers that overdoses will be prosecuted as murders. And on the March city ballot, Proposition E would relax rules that limit pursuits to the most urgent situations. Instead, they would be authorized to arrest persons who are reasonably suspected of having committed a felony or violent misdemeanor. Use of drones, cameras and facial recognition technology would also be expanded.
2/21/23 A new Illinois law eliminates life-without-parole sentences for everyone under 21 years of age, regardless of the crime they committed. Persons under 21 will become parole-eligible for most crimes after ten years. For first degree murder and aggravated sexual assault eligibility begins after 20 years. And for “natural life” sentences (given for crimes that are committed in an especially heinous manner) after 40 years. Public Act 102-1128
3/26/22 During confirmation hearings, would-be Supreme Court justice Ketanji Brown Jackson was challenged about her leniency, as a judge, when sentencing defendants convicted for possessing child pornography. A prominent example, Wesley Hawkins, was nineteen when she gave him an unusually brief three-month term. Hawkins, now twenty-seven, concedes that he’s had a hard go of it. But he expressed deep remorse for his conduct and “leans on therapy, his family and faith to move forward.”
12/31/21 Colorado’s governor commuted the prison sentence of the truck driver who lost control of his rig and killed four persons from 110 years to ten. That’s far lower than the twenty to thirty years that the D.A. intended to request. Five million persons reportedly signed an online petition for leniency.
12/23/21 In the case of the truck driver sentenced to 110 years, prosecutors have started a process to reconsider the sentence, and the judge has called in both sides to discuss mitigation. But the wife of a man killed in the crash opposes any sentence reduction that would amount to “a slap on the wrist.”
12/20/21 In April 2019 a Colorado truck driver lost control of his rig and crashed into traffic, killing four motorists. He said his brakes failed, but prosecutors faulted him for not using a runaway truck ramp. Later that year jurors convicted Rogel Aguilera-Mederos, 24, on 27 counts, including vehicular homicide and assault, and he was sentenced to 110 years in prison. An online effort urging the Governor to grant clemency has collected more than four million signatures.
10/18/21 Polly Klaas had two sisters. Jess Nichol, now 38, and Annie Nichol, 34, host “A New Legacy,” a podcast about crime’s survivors. Unlike their father, Marc Klaas, who believes in harsh punishment, the sisters oppose “three-strikes laws” and mass incarceration, which they feel has contributed to a racist criminal justice system. “As Polly’s sisters, it is difficult to fathom how these laws became our sister’s legacy. The beauty of Polly’s life shouldn’t be overshadowed by this pervasive injustice.”
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Report on California Three-Strikes Impacts of State Sentencing Policies
Posted 1/31/10
THE GREAT DEBATE (PART I)
Who should go to prison? For how long?
For Police Issues by Julius (Jay) Wachtel. On December 6, 2009 police in Culver City, a Los Angeles suburb, confronted Boneetio Washington, a transient on felony probation, on a complaint that he tried to break into a home. Officers didn’t feel there was enough evidence and let him go. His freedom didn’t last long. Two days later LAPD officers arrested Washington moments after he allegedly forced his way into an apartment and raped and murdered its occupant, a woman pregnant with twins.
Washington’s prior conviction had also been for breaking into a woman’s apartment. Confined to jail and a mental hospital for a year awaiting trial, he pled guilty and was sentenced to time served and three years probation. By then the 22-year old had amassed a record of similar crimes, including arrests and at least one conviction for breaking and entering, larceny and assault in his native Rhode Island and, as recently as 2006, in North Carolina.
Considering Washington’s criminal history why had California authorities dealt with him so leniently? Unnamed sources told the Los Angeles Times that there was “nothing in his past that appeared to show a predisposition to the kind of violence he is now accused of committing.”
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Here’s another L.A. story. In 2006 Charles Samuel snuck into the residence of the man who was dating Samuel’s estranged wife. He confronted and beat up the man and stole some small things. Already a two-time loser (he had served six years for a 1986 incident in which he kidnapped an elderly man to get him to withdraw cash from an ATM, resulting in convictions for residential burglary and robbery) Samuel was nonetheless allowed to plead guilty to felony theft. Although that lapse was attributed to a “clerical error,” Samuel had told a probation officer that the bargain avoided his being charged with a third strike, which in California generally calls for a mandatory 25-to-life (P.C. 667e).
Samuel was paroled to a drug rehab facility after two years. On July 24, 2009 he got permission to go to the downtown DMV office. A 17-year old high school senior, Lily Burk, was also downtown, running an errand for her lawyer mother. Her mutilated body was later found in the family Volvo. In a horrific incident that parallels his earlier crime, Samuel has been charged with kidnapping Burk to get her to withdraw money from an ATM, then in a rage slashing her to death with a broken bottle.
Forty years ago prison sentences were indeterminate, with the actual number of years to be served set by parole boards and commissions after the fact. While penalties looked stiff on paper, felony offenders sentenced to prison wound up serving, on average, only 38 percent of the top end of the range imposed by a judge (for violent offenders, it was 46 percent; for property offenders, 34 percent.)
During the 1970’s and 80’s inner-city violence, much of it related to a booming crack trade, led to calls for “getting tough on crime.” Spurred by Federal grants, State legislatures responded with “truth in sentencing” laws that constricted sentencing ranges and cut back on good-time and other credits, narrowing the gap between what judges imposed and what was actually served. By the early nineties a majority of States and the District of Columbia required that prisoners serve at least 85 percent of their terms before release.
In 1994 violent felons served, on average, less than one half their terms; by 2004 it was two thirds. More defendants were also being convicted and incarcerated. There were 893,630 felony convictions in State courts in 1990. By 2006 the figure was 1,132,290; adjusted for population growth, it represented a net increase of 13 percent. Yet the toughening wasn’t as severe as it might seem. While the number of convictions was up, and the disparity between sentencing and actual time served was reduced, penalties under the new determinate sentencing model were also lower, meaning that inmates wound up serving about the same amount of time as before.
How much time do offenders serve? Keeping in mind differences between States, in 2006, the most recent year with full data, slightly more than half (54 percent) of violent offenders went to prison. Not including life terms, their sentences averaged 96 months. Minus fifteen-percent good-time credit that comes to 81.6 months, or nearly seven years. Terms for aggravated assault were substantially lower, for robbery and sex crimes somewhat higher, and for murder much higher.
But citizens aren’t “averages.” They’re victimized one at a time.
On October 1, 1993, Petaluma (Calif.) resident Polly Klaas, 12, was kidnapped and brutally murdered. A parolee, Richard Allen Davis, was quickly arrested for the crime. He admitted killing the girl and police collected abundant evidence of his guilt. Davis was tried, convicted and sentenced to death. He’s still on death row.
Polly’s murder shocked the nation. Citizens were particularly roiled by the killer’s record, which included a 1974 conviction for multiple burglaries (he got six months to 15 years and served two years), a 1976 conviction for kidnapping and assault (he got one to 25 years and did six), and a 1985 conviction for robbery and extortion (he got 16 years and did eight.)
How could someone like that have been released at all, let alone after only serving half his term?
The anger was quickly transformed into legislation. Enacted in 1994 by popular vote, Proposition 184, the “Three Strikes and You’re Out” initiative provides enhanced penalties for persons convicted of any felony, including property and drug crimes, if they have been previously convicted of a violent or “serious” felony (examples of the latter include burglary of an occupied dwelling and robbery). Those with a single such past conviction get their new term doubled (PC 667[e] [1]), while those with two or more qualifying convictions get a minimum of 25 to life (PC 667[e] [2] [A]). There is one exception: prosecutors can, “in the interests of justice,” choose to ignore prior “strikes” when accepting pleas to new crimes.
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Polly Klaas was murdered before three-strikes. But what about the two killers mentioned at the top of this post? Boneetio Washington had only one “strike” before he murdered the pregnant woman, so three-strikes would not have kept him off the street. Samuel, on the other hand, had at least one and possibly two strikes when he pled guilty to felony theft, yet prosecutors for some reason chose not to charge the priors, so he was freed well before Lily Burk ran her fateful errand.
Next week we’ll examine three-strikes in greater detail. Stay tuned!
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Posted 1/24/10
TINKERING WITH THE MACHINERY OF DEATH*
Academics prove that the death penalty works. And that it doesn’t.
For Police Issues by Julius (Jay) Wachtel. When ASC members opened the November 2009 issues of the society’s two publications, stodgy old Criminology and the supposedly more real-world Criminology and Public Policy, they must have felt dizzied. Criminology’s lead piece, “The Short-Term Effects of Executions on Homicide,” by Land, Teske and Zheng, concludes that capital punishment works, at least in Texas, preventing .5 to 2.5 homicides per execution. Meanwhile, in Criminology & Public Policy, Kovandzic, Vieraitis and Boots answer the question posed by their article, “Does the Death Penalty Save Lives?” with a resounding no, that it doesn’t.
Indeed, the differences in opinion seem unusually sharp, with C&PP Senior Editor John Donohue flat-out asserting in his introductory remarks that “no credible evidence exists” that the death penalty deters homicide. Whoa – it’s not that simple! Decades of research have produced findings supporting both sides of the debate. Some of the squabbling can be attributed to differences between disciplines. Economists, who believe that criminal behavior is influenced by cost-benefit analyses, tend to favor the death penalty, while traditional criminologists, preferring to think that they take a broader, more nuanced view, often come out against.
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Either way, crunching the numbers presents a major challenge. While executions are exceedingly few, homicide is plentiful and influenced by many factors, so teasing out the unique effects (if any) of the former on the latter stretches the statistical arts, some would say to the breaking point. As far back as 1978 a book-length report commissioned by the National Academy of Sciences panned death-penalty studies for, among other things, making “implausible” assumptions about the data for the sake of applying sophisticated statistical techniques. (For a skeptic’s more recent review of death penalty research click here and scroll to page 4.)
Alas, concerns about over-reaching haven’t slowed investigators down. On reading these pieces one quickly encounters methodological complexities that are impenetrable to all but trained statisticians. Forgive the pun, but the impression is of a mathematical duel to the death. Writing in the same issue of Criminology and Public Policy that published the article favoring the death penalty (Criminology doesn’t include opposing views) here is what Emory University economist Paul Rubin had to say:
In sum, Kovandzic et al. (2009) change the model specification, estimation method, as well as both the dependent and independent variables used by earlier death penalty studies that report deterrence, and they find no deterrence....To prove their assertions, Kovandzic et al. instead should have established, with rigor, that their results are derived from more appropriate statistical models and must, therefore, be the correct one. Moreover, their statistical methods are unjustified and, at times, inappropriate. Their assertion about the lack of a deterrent effect is, therefore, unwarranted given their evidence. (p. 858)
After finishing off his enemy with a slide rule, Dr. Rubin goes on to suggest that (horrors!) human bias is likely at work:
Most murders occur in poor neighborhoods and among relatively uneducated persons, often with risky lifestyles. An element of elitism may be present in academic recommendations for abolishing the death penalty, because others will bear the costs. (p. 858)
Yes, where one stands undoubtedly influences what one sees. But as the frailty of the adjudicative system has become well recognized, minds have changed for the best of reasons. In Texas, the hang ‘em high State that hosts nearly half of America’s executions, one barometer of the public mood, the Dallas Morning News, recently came out against the death penalty. It used to strongly favor it:
It's hard to imagine that, at the start of this decade, it was legal to execute people for crimes they committed as children, to execute the mentally retarded and to bring racial biases into jury-selection processes. The Supreme Court righted those wrongs and, for the first time, established that post-conviction DNA evidence could be considered in the appeals process. And in Texas, life without parole – or ‘death by prison,’ as we like to call it – finally became an option for juries. These are all signs that courts, prosecutors, politicians and the public are recognizing the problems in our imperfect system of justice. This newspaper feels more strongly than ever that those flaws are sufficiently widespread that the justice system cannot be trusted to impose irreversible sentences of death...
If, as most criminologists believe, punishment deters, then it’s probably true that fear of being put to death has prevented some murders. But that presumed benefit alone isn’t dispositive. State-sanctioned killing is a political and moral issue that goes to the heart of the relationship between the people and their government. Capital punishment is also replete with racial and socioeconomic disparities. Simply put, if you can’t afford a good lawyer, better break open that Bible. What’s more, it’s become painfully clear that the justice system does goof, sometimes in a big way. According to the Death Penalty Information Center, 139 death-row prisoners have been exonerated since 1973. To date the Innocence Project reports 249 DNA-based exonerations, including seventeen on death row.
It’s likely that our contemporary justice system has executed innocent persons. (For an example, click here.) Surely, such blunders are unforgivable. Yet as the article in Criminology suggests, enjoying Texas-sized benefits requires ramping up the threat of execution to Texas-size levels. Naturally, that might increase the frequency of tragic mistakes. To what extent is impossible to estimate. Dead men tell no tales, and since we don’t track miscarriages of justice until they’re officially acknowledged, the error rate remains a cipher. (It’s analogous to the problem that plagues deterrence research. We don’t know who’s deterred, so how can we be sure how or if deterrence works?)
Considering its problems one would be hard-pressed to support the death penalty just because of its reported effects in Texas. But what if the benefits could be extended to the rest of the country? In 2009 the Lone Star State (pop. 24,782,302) put twenty-four persons to death, or approximately one per million. Applying that ratio to the U.S. (pop. 307,006,550) calls for about 300 executions per year. Using the benefit range reported by Kovandzic et al. that would save from 150 to 750 lives, yielding, based on 16,272 murders reported in 2008, an overall reduction in homicide from .9 to 4.6 percent.
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Hmm. Executing two dozen persons each month might not be a problem in China or North Korea, but could we stomach that in the U.S.A.? Keep in mind that according to the deterrence paradox we can’t know whose lives are saved, so stirring up public support might be problematic. Really, given the controversies about its fairness, doubts about its effectiveness, and the likelihood of wrongful executions, expanding the use of the death penalty seems unlikely and unwise. With fifteen States and D.C. having already abolished capital punishment, it may be time for the U.S. to quit “tinkering” and join the E.U. and the rest of the civilized world in doing away with this throwback to the Dark Ages altogether.
* Adapted from Justice Blackmun’s famous words in Callins v. James (1994):
“From this day forward, I no longer will tinker with the machinery of death.”
UPDATES
9/4/24 According to USA Today, twenty-one States impose the death penalty. Twenty-three do not, and six have placed it on hold. Texas has been the most prolific executioner, with 589 convicts put to death since 1982. It executed eight in 2023 and three so far in 2024, most recently on August 7, when it put to death the man who murdered a mother of three. But there are substantial concerns that innocent persons, particularly non-Whites, are unjustly executed. One study placed it at 4.1 percent. Death Penalty Info. Center
2/29/24 Try and try again? Idaho’s execution team tried to carry out Thomas Eugene Creech’s death sentence earlier today. But they couldn’t tap into a vein. After eight tries, things got put off. Creech, 73, has been locked up fifty years. He was doing life for five murders when he beat a fellow inmate to death forty-three years ago. That earned him the death penalty. Citing the State’s “inability to carry out a humane and constitutional execution,” his public defenders now demand that Creech be left alone.
6/6/23 In June 2000 Michael Tisius, then 19, shot and killed two guards as he and a companion tried to break a friend from jail. Tisius was convicted of their murder and jurors agreed that he deserved the death penalty. And that’s what he got. However, six jurors (incl. two alternates) have since changed their minds, and said so in affidavits. But a sister of one of Tisius’ victims feels execution is appropriate. So does Governor Mike Parson. A former sheriff, he’s pledged to carry it through. It’s scheduled for today. (And, yes, it took place).
4/8/23 Oklahoma death row inmate Richard Glossip’s execution is set for May 18. Only problem is, the main witness against him, who testified that he was hired by Glossip to shoot and kill his boss, had a serious psychiatric condition that prosecutors knew about but didn’t disclose. That recently came out, and given other weaknesses in the case, prosecutors have seconded a defense motion for a new trial. (See 7/2/22 update)
3/22/23 Firing squads? Idaho banned them fourteen years ago. But botched lethal injections, a shortage of approved killer drugs, and eight prisoners on death row have led to a move to reinstate the practice. Remote-control trigger mechanisms are being considered. A supportive law professor says that firing squads are less likely than drugs to “botch” an execution and more likely to instantly kill.
2/23/23 A 1964 Supreme Court decision requires that, in a capital case, jurors be informed should the alternative punishment to a death sentence forbid parole. But Arizona courts refused for technical rasons to follow that script in the case against John Montenegro Cruz, whom jurors, ignorant that life without parole was possible, sentenced to death for the 2003 murder of a police officer. In a new, 5-4 decision, Cruz v. Arizona, the Supreme Court required that Arizona allow Cruz to challenge his death sentence.
11/21/22 Alabama has interrupted two executions in two months because of difficulty in accessing a condemned inmate’s veins. Kenneth Eugene Smith, who was convicted of a 1988 murder, was the most recent beneficiary. In October another 57-year old, Alan Eugene Miller, reportedly endured an hour’s poking with needles before authorities gave up. Smith and Miller remain alive and have filed objections to a re-do. Not Joe Nathan James Jr. While the same issue arose during his execution last July, authorities succeeded after three hours in establishing a line, and James was put to death.
10/14/22 Jurors who deliberated whether Nikolas Cruz should get life or death for the Parkland, Florida high school massacre told media sources that a lone member of the panel, who was then joined by two others, rejected death because she felt that Cruz was mentally ill. Since Florida law requires unanimity to impose a death penalty, Cruz was sentenced to life without parole. Families of the victims reacted angrily. Detailed CBS coverage
8/26/22 After a five-year pause brought on by technical issues, Oklahoma resumed executions last October. But condemned prisoner John Marion Grant vomited during the process, and litigation over a sedative led to another pause. But the State prevailed in court. And yesterday, after Governor Kevin Stitt rejected the State parole board’s recommendation for clemency, it executed James Coddington. Twenty-four additional Oklahoma inmates are now on track to be executed in the next 28 months.
7/2/22 Following recent Federal approval of a drug the State uses for fatal injections, Oklahoma’s State Court of Criminal Appeals set execution dates for twenty-five condemned inmates who have exhausted their appeals. James Allen Coddington is scheduled to be the first to die, on August 25. Every other condemned prisoner is set to be executed by December 2024. Among them is Richard Glossip. His claims of innocence have drawn wide support, including from a State legislator. (See 4/8/23 update)
6/4/22 During a staff discussion about whether to seek the death penalty for a Black defendant in a double-murder case, Orange County D.A. Todd Spitzer said that many Black men date White women to improve their life circumstances. His comments were leaked to the judge, who ruled they violated the law. However, since the D.A.’s office opted to seek a life sentence, the judge took no further action.
5/4/22 Tennessee couldn’t get the drugs they needed to carry out executions from established manufacturers. So they got a pharmacist to “compound” them. Only problem is, their do-it-yourselfer skipped a vital step - testing the end product for endotoxins - which, if present, could have a “catastrophic” effect (no pun intended.) Governor Bill Lee has accordingly put off the five executions which were slated for this year. One was called off an hour before the injection was to take place.
4/21/22 South Carolina’s Supreme Court has delayed using the state’s newly-installed firing squad apparatus by granting a stay to Richard Bernard Moore, who was scheduled to be shot dead April 29. Meanwhile a State judge is reexamining challenges by Moore, Brad Sigmon and two other inmates that firing squad and electrocution - the only methods available - are “barbaric” (see 3/24 update).
4/18/22 Texas death-row prisoner John Henry Ramirez admits that he shot and killed a retail store employee in 2008. A recent Supreme Court ruling granted his wish to have his pastor lay hands on him during his execution, scheduled for October 5. But Nueces County D.A Mark Gonzalez just announced that “the death penalty is unethical and should not be imposed on Mr. Ramirez or any other person.” Requesting that Mr. Martinez’s death warrant be withdrawn, he announced that as long as he remains the chief prosecutor his office will not seek the ultimate punishment for anyone.
4/4/22 Nikolas Cruz pled guilty last year to shooting and killing fourteen students and three teachers and wounded seventeen others at a Florida high school in 2018. It’s now time to select the jury who will decide whether he will be put to death. Anything short of unanimity means life without parole. To sit on the case jurors cannot be fundamentally against the death penalty. And to vote for death, they must decide that aggravating factors outweigh “his lifelong mental illness and the deaths of his parents.”
3/25/22 Ruling in Ramirez v. Collier, the Supreme Court decided 8-1 that condemned persons are entitled to the presence of a member of the clergy and, if they wish, a “laying of hands” at the moment of death. Texas authorities refused to let John Ramirez’s pastor be with him last September, but the Supremes delayed the execution to consider the request. Ramirez was condemned for brutally stabbing a store employee to death in 2004 during a petty robbery. He is scheduled to die by lethal injection (see 4/18 update.)
3/24/22 Brad Sigmon and Freddie Owens cannot be executed unless they can select either the electric chair or a firing squad. After all, ruled the South Carolina Supreme Court, that choice is embedded in state law. So the State spent $53,600 to set up a metal chair and cut a hole in a wall. From fifteen feet away three volunteers will fire rifles aimed at the intended recipient’s heart. Three other states: Mississippi, Oklahoma and Utah, offer a similar option (see 4/21 update.)
3/5/22 On a 6-3 vote, the Supreme Court reinstated the death sentence handed down to Dzhokhar Tsarnaev for his 2015 conviction of killing four persons, including a police officer, and wounding over two-hundred in the bombing of the 2013 Boston Marathon. An appeals court had vacated the penalty because prosecutors withheld information that Tsarnaev was heavily influenced by his brother Tamerlan, who perished during the attack. Federal executions, however, were suspended last year.
2/9/22 Announcing that “the intentional killing of another person is wrong and as Governor, I will not oversee the execution of any individual,” in March 2019 California Governor Gavin Newsom placed a moratorium on the death penalty. At the time there were 737 prisoners on death row, and the penalty had not been carried out in the State since 2006. On February 2, 2022, San Quentin’s death row was shut down altogether. Its prisoners are being transferred, but their sentences remain in effect.
12/17/21 Death penalties reached their modern peak in 1999, when 98 prisoners were put to death. Since then the yearly count has plunged, and this year’s eleven executions mark a modern low. Twenty-three States, most recently Virginia, have abolished capital punishment. After a record-setting six executions during the Trump-Biden transition, the Feds have placed it on indefinite hold. As has California. With 704 condemned prisoners, its death row is more than twice the size of Florida’s, the runner-up. Still, three States - Alabama, Oklahoma and Texas - enthusiastically favor the practice.
7/2/21 Prompted by the prior Administration’s use of the death penalty - it carried out “the first federal executions in nearly two decades” - Attorney General Merrick Garland declared a “moratorium” on Federal executions. He will assess concerns that the death penalty is applied arbitrarily, discriminates against minorities, and, given the “troubling number of exonerations,” threatens to put innocents to death. Pentobarbital, the new Federal drug used for executions, will be reviewed to determine if it causes “unnecessary pain and suffering.”
12/30/19 James Dailey sits on death row for the 1985 stabbing death of a Florida teen. Appeals done, his execution seems imminent. But his alleged accomplice, who’s doing life, says Dailey had nothing to do with it. Lacking physical evidence, authorities relied on the word of a jailhouse informer who swears that Dailey admitted the crime. Jurors convicted Dailey in 1987, and Florida’s governor has said that it’s time for justice to run its course.
3/13/19 Asserting that the death penalty discriminates against minorities and the poor and is “inconsistent with our bedrock values,” Gavin Newson, California’s newly-elected Governor, issued an executive order shutting down the state’s execution chamber (last used in 2006) and prohibiting its use during his term. Legal challenges are expected.
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