Category Archives: Paul Seeman

EXPUNGEMENT OF CRIMINAL CONVICTIONS: AN EMPIRICAL STUDY

That is the title of a first-of-its-kind empirical study of the effects of state laws limiting public access to criminal records – commonly known as “expungement.” It is worth quoting the abstract in its entirety:

 “Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

The paper is available here.

The Innocent Defendant’s Dilemma

In the classic game-theory “Prisoner’s Dilemma,” the puzzle is that two suspects questioned separately may end up getting harsher punishment when they both cooperate with law enforcement and implicate their accomplice than if they each stay silent – even though it appears they will get more lenient treatment if they cooperate.

The normal game is described in detail in Wikipedia:

Prisoner B


Prisoner A

Prisoner B stays silent
(cooperates)
Prisoner B betrays
(defects)
Prisoner A stays silent
(cooperates)
Each serves 1 year Prisoner A: 3 years
Prisoner B: goes free
Prisoner A betrays
(defects)
Prisoner A: goes free
Prisoner B: 3 years
Each serves 2 years

A real life version of this is the innocent defendant’s dilemma – a defendant who pleads guilty or no contest in return for a more lenient sentence, while maintaining their innocence – an “Alford” plea – may end up facing harsher treatment later on in the process than a defendant who is factually guilty and is therefore able to truthfully express remorse in return for more favorable outcomes in probation, parole, or other collateral consequence contexts.

We know for a fact from the evolution of DNA testing and the popular scope of “Innocence Project” investigations that innocent defendants do plead guilty. Those cases are almost always serious felonies, so it is hard to know the real extent of the problem or practice in the criminal justice system as a whole, but in a 2013 study published in the Journal of Criminal Law and Criminology – “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem”, (Volume 103, Issue 1) a controlled experiment found that more than 50% of a sample of college students were willing to falsely admit guilt for a perceived benefit.

That finding makes an interesting bookend to a paper in the Missouri Law Review – “Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford Plea” (68 Missouri Law Review 1 (2003)) discussing how the legal system assumes and allows innocent defendants to plead guilty – an “Alford” plea – or nolo contendere, but then assumes guilt for post-sentencing, rehabilitation, and other collateral consequence purposes. As the authors of that article point out, because of the lack of “remorse” that goes with a continuing claim of innocence, those defendants may be treated more harshly after the Alford or nolo plea than others who are in fact  guilty of criminal conduct and are able to express remorse and regret in return for favorable treatment in probation, parole, or other collateral consequence contexts:

“Availing oneself of an Alford plea may result in a stiffer sentence than that imposed on someone who merely pleads guilty…Courts have consistently upheld sentence aggravation for defendants who have pled guilty, but maintained their innocence based on their “lack of remorse.” In addition, courts have revoked defendants’ probation because after utilizing the Alford plea and asserting their innocence, they fail to admit their offense as part of a probation-mandated counseling program. Finally, courts have upheld the denial of parole to defendants who have utilized the Alford plea, professed their innocence, and then failed to admit their guilt while in prison.”

Just one more small example of how the over-criminalization and over-charging that drive our plea-bargain based system of criminal adjudication leads to systemic injustice and hypocrisy.

Bail Reform Challenge In California

The historic bail reform legislation passed in California last year, described in a blog post here in August 2018, is being challenged by the bail bond industry. As described by the LA Times,  a national coalition of bail agency groups has collected enough signatures to put a measure on the ballot in 2020 that would overturn the reform legislation and restore the money bail system.

Bail bonds are a $2-billion national industry, and there are 3,200 bail agents registered in California.

Pending the referendum, bail reform based on the new law – SB 10 – continues. At least 11 counties are employing roughly 40 different pilot pretrial programs to reduce the number of people cycling in and out of jail, and as many as 49 California counties are using risk assessment tools, or tech analyses that help courts determine which defendants are fit for release and which pose a risk to public safety or of not coming back to court. California Chief Justice Tani Cantil-Sakauye, who helped craft the state’s bail law, has assembled a working group to evaluate pretrial programs and make recommendations on next steps now that the law is on hold, and Gov. Gavin Newsom earmarked $75 million in his budget proposal last week for counties over the next two years to implement and evaluate pretrial efforts in up to 10 courts.

 

The Blessings of Forgetting….

 

The Jacob Marschak Interdisciplinary Colloquium on Mathematics in the Behavioral Sciences at UCLA

“In this talk, Ralph Miller will briefly review sources of non-pathological forgetting, including spontaneous decay with increasing retention intervals, displacement from short-term memory by irrelevant information, associative interference by similar but different information, and inadequate retrieval cues at test. He will discuss the potential for recovery of target information from each of these types of forgetting without further training and will consider the frequently overlooked but highly beneficial consequences of most forgetting.

Miller will examine forgetting caused by associative interference, including influences of the test situation, the retention interval as a function of whether the interfering information was acquired before or after the target information, and the nature of the target information and interfering information. He will also describe some basic procedures for reducing or increasing forgetting when desired.”

 

CHARLES E. YOUNG RESEARCH LIBRARY MAIN CONFERENCE ROOM 11360

WEDNESDAY, JANUARY 16, 2019 | 3 to 4:30 P.M.

 

The Blessings of Forgetting and the Fates of Forgotten Memories

Speaker: Ralph R. Miller, Distinguished Professor, Department of Psychology, State University of New York at Binghamton

 

“Too Tough on Crime?”

 

“Too Tough on Crime? The Impact of Prosecutor Politics on Incarceration”  is a new study by Ashan Arora, a Research Director at the University of Chicago Crime and Education Labs The study is statistically sophisticated (sample: “Estimates of the effect of DA identity are obtained by using local linear functions within a narrow bandwidth of close DA elections. I estimate standard RD specifications of the form Yi = + Di + f(Vi) + ui (1) where Yi is the outcome variable, e.g. the number of sentences, Vi is the forcing variable, the Republican vote share in the DA election, and Di is an indicator variable taking the value of 1 if the county elects a Republican DA and 0 if the county elects a emocratic/Independent DA.’

The conclusion:

“This paper explores the impact of chief prosecutor political affiliation on sentencing outcomes in the state criminal justice system. Linking just under 600,000 convicted defendants to their elected District Attorneys, I use quasi-experimental variation generated by close elections to show that Republican DAs do not affect the number of individuals sentenced to prison at the county level, but sentence defendants to longer prison terms compared to their Democratic and Independent counterparts. This translates into a persistent increase in incarceration well after DAs’ time in office. This increase in sentence length does not lead to overall crime deterrence, as arrest rates remain unchanged for a broad range of offense categories. Further, this increase in sentence length  dissipates in the period following Blakely v. Washington (2004),  consistent with judges in state courts gaining more discretion and limiting prosecutors’ ability to affect eventual sentencing outcomes.”

Mental Health Diversion Law – Fits and Starts

The LA Times reports on the slow implementation of AB 1810 in San Diego County, in part due to resistance from prosecutors. The mental health diversion law, AB 1810, which was signed by Gov. Jerry Brown last June 27, is intended to steer people with mental health conditions into treatment and away from jail or prison. It gives judges discretion to order defendants into a pretrial diversion program for treatment instead of prosecution. If the person’s mental health treatment is ultimately deemed successful — the diversion can last up to two years — then all charges will be dropped. If at any time the judge determines the treatment isn’t working, the criminal case can start again.

In San Diego, only 2 defendants out of 19  – in cases ranging from residential burglary to vandalism – have been granted diversion. San Diego prosecutors have opposed pretrial mental health diversion in every case, contending the law is unconstitutional on a variety of grounds, including that it is too vague and violates victims’ constitutional rights. In court papers in each case, the prosecutors call the law “a dangerous change to the manner in which criminals with mental health diagnoses” are treated in the criminal justice system. And they also argue that defendants may have a qualifying mental disorder but lack a specific plan for treatment — which should disqualify them from diversion.

Rights Restoration in Nevada

Nevada is one of 12 states that restrict voting rights even after a person has served his or her prison sentence and is no longer on probation or parole. Based on the most recent estimates Nevada’s law disenfranchises over 89,000 people: 4% of the entire state-wide voting-age population but 11.76% of the adult black voting-age population. More than half of disenfranchised African Americans are post-sentence, meaning they can petition a court to have their rights restored. Nevada also has a relatively complicated system for restoration of voting rights for people with criminal records that depends in part on the type of record – see the description at the end of this blog. There is a great new project and resource for determining if someone is eligible to have their franchise rights restored at Restore Your Vote, a project of the Campaign Legal Center. On the site you can download a Toolkit that walks people through the eligibility issues and the rights restoration process.

Here is the actual description of eligibility rules from the website of the Clark County Registrar:

Conditions

IF you were convicted in Nevada on or after July 1, 2003 of

A category A or B felony that resulted in substantial bodily harm to the victim, or
Two or more felonies, unless the convictions arose out of the same act.

You may petition the court of competent jurisdiction for an order granting the restoration of your civil rights.

IF you were convicted in Nevada of a felony other than a category A or B felony as described above, and have been:

Honorably discharged from probation, or
Honorably discharged from parole, or
Released from prison.

You have been restored the following civil rights:

The right to vote; and
The right to serve as a juror in a civil action.
Four years after the date of honorable discharge from parole or probation, pardon, or release from prison, the right to hold office.
Six years after the date of honorable discharge from parole or probation, pardon, or release from prison, the right to serve as a juror in a criminal action.

IF you received an unconditional pardon

You are restored all civil rights and are relieved of all disabilities incurred upon conviction.

IF you were convicted of a felony in a federal court or convicted in another state

Call the Clark County Election Department at (702) 455-0075 or (702) 455-8683 for direction.

IF you were federally convicted in the US District Court of Nevada  

AND the Election Department advises you must provide:

An Order Terminating Probation or
A signed letter from the District Court where you were supervised

AND you do not have that documentation
Call the main telephone of the U.S. District Probation and Parole Department at (702) 527-7300.

Historic Bail Reform in California

Governor Jerry Brown today signed into law SB 10, the groundbreaking bail reform legislation that establishes a new system for determining a defendant’s custody status while they await trial based on an assessment of risk to public safety and probability of missing a court date rather than their ability to pay cash bail.

“Today, California reforms its bail system so that rich and poor alike are treated fairly,” said Governor Brown.

Governor Brown signs SB 10. Left to right: Assembly Speaker Rendon, Senate President pro Tempore Atkins, Governor Brown (seated), Senator Hertzberg, Chief Justice Cantil-Sakauye and Assemblymember Bonta.

This action delivers on the commitment made last August by Governor Brown, California Chief Justice Tani Cantil-Sakauye and the bill’s authors – Senator Robert Hertzberg (D-Los Angeles) and Assemblymember Rob Bonta (D-Alameda) – to work together on long-needed reforms in the second year of the two-year legislative session.

“This is a transformative day for our justice system. Our old system of money bail was outdated, unsafe, and unfair. It took a three-branch solution with Governor Brown, the Legislature led by Senator Hertzberg and Assemblymember Bonta, and the Judicial Council’s Administrative Director Martin Hoshino working with judges in my Pretrial Detention Reform Work Group to bring about a fair and just solution for all Californians,” said Chief Justice Cantil-Sakauye.

The new law will take effect on October 1, 2019.

Sixth Amendment, Typewriters, Carbon Paper….

Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:

“Trial by jury has been replaced by a “system of  guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”

The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.

Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.

Voting in Jail Pt. 2

And in Los Angeles, the ACLU has partnered with LARRP, the Los Angeles Regional Reentry Partnership, on an “Unlock the Vote”  campaign to reduce barriers to registration and voting for justice-involved and justice-impacted folks in Los Angeles County as well as Orange County. The project volunteers go inside the LA and Orange County jails to to educate and register eligible voters, both the prisoners and the family and friends who are visiting, and reach out through reentry fairs and other community events to educate and register people who are returning citizens or otherwise criminal justice system-impacted. If you are an LA County resident and would like to get involved, here is the information to volunteer.