Factors in Judicial Decision-Making

CHAPTER 10 The Criminal Trial and Its Aftermath

In 2015 Dzhokhar Tsarnaev was convicted on all thirty counts related to the 2013 Boston Marathon bombing. His defense attorneys admitted Tsarnaev’s involvement in the crimes during the trial in the hopes of avoiding a death sentence by placing more of the responsibility on Dzhokhar’s older brother, Tamerlan, who died during a confrontation with police in the days after the bombing. Dzhokhar Tsarnaev, who was nineteen years old at the time of the bombing, was sentenced to death.

The previous chapter outlined the steps that lead up to a criminal trial in the United States, and this chapter focuses on the trial itself. We examine the rights of criminal defendants at trial, the process of selecting a jury, the role of the judge and the jury during the trial, the sentencing of criminal defendants, and the possibility of an appeal. We also discuss the reasons given by penologists for punishing the convicted felon.

Procedures during a Criminal Trial Assuming that no plea bargain has been struck and that the accused maintains his or her

innocence, a formal trial will take place. This is a right that the Sixth Amendment guarantees to all Americans charged with federal crimes and a right guaranteed by the various state constitutions—and by the Fourteenth Amendment—to all persons charged with state offenses. The accused has many constitutional and statutory rights during the trial. The following are the primary rights that are binding on both the federal and state courts.

Basic Rights Guaranteed during the Trial Process The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The founders emphasized the word speedy, so that an accused would not languish in prison for a long time prior to the trial or have to wait an unduly long time before his or her fate is determined. But how soon is speedy? Although the Supreme Court has defined this word in various ways, Congress gave new meaning to the term when it passed the Speedy Trial Act of 1974. The act mandated time limits, ultimately reaching one hundred days, within which criminal charges must be either brought to trial or dismissed. Most states have similar measures on the statute books, although the precise time period varies from one jurisdiction to another. By “public trial” the founders meant to discourage the notion of secret proceedings whereby an accused could be tried without public knowledge and whisked off to some unknown detention camp—a state of affairs typical of totalitarian regimes.

The Sixth Amendment also guarantees the right to an impartial jury. At a minimum this has meant that prospective jurors must not be prejudiced in any way before the trial begins. For example, a potential juror may not be a friend or relative of the prosecutor or the crime victim, nor may a person serve who believes that anyone of the defendant’s race or ethnic ancestry is “probably the criminal type.” What the concept of an impartial jury of one’s peers has come to mean in practice is that jurors are to be selected randomly from voter registration lists—supplemented in an increasing number of jurisdictions by lists based on automobile registrations, driver’s licenses, welfare rolls, and so on.1 Although this does not provide a perfect representation of the community because not all persons are registered to vote or possess a driver’s license, the Supreme Court has said that this method is good enough. The legal requirement is that the jury pool be drawn from a “fair cross section” of the community.2 The high court has also ruled that no class of persons (such as African Americans or women) may be systematically excluded from jury service. This does not mean that a black defendant, for example, has a right to have other persons of the same racial background on a jury; it means only that no racial category may be intentionally kept from jury service.

Besides being guaranteed the right to be tried in the same locale where the crime was committed and to be informed of the charges, Americans have the right to be confronted with the witnesses against them. They have the right to know who their accusers are and what they are charging so that a proper defense may be formulated. The accused is also guaranteed per the Sixth Amendment to the U.S. Constitution the opportunity “to have the Assistance of Counsel for his defence.” Before the 1960s, this meant that one had this right (at the state level) only for serious crimes and only if one could pay for an attorney. However, because of a series of Supreme Court decisions, the law of the land guarantees the accused an attorney if tried for any crime that may result in a prison term, and the government must provide the legal defense for an indigent defendant. This is the rule at both the national and state levels.

With defense attorneys, as with many things in life, the expectation is that you usually get what you pay for. If money is no object, you can afford to hire one or more experienced and highly competent defense lawyers who will probably be superb advocates on your behalf. This does not automatically mean that you will be acquitted if you are guilty, but it may mean that you will obtain a more advantageous plea bargain or a lighter sentence if convicted. If you are not wealthy or have no means at all, you may be forced to rely on the services of an attorney provided to you by the state. Typically, indigent defense come in the form of attorneys working for state or county public defender offices, or with the assignment of private attorneys who supplement their practice by representing indigent defendants.3 Criticisms of how indigent defendants are represented focus on the unmanageable caseloads and low compensation of those tasked with providing adequate defense.4 One study found that when all other relevant variables were held constant, there was virtually no difference in the outcome whether the defendant used a public defender or retained counsel, perhaps due to the positive working relationship that public defenders have within the courtroom workgroup.5 Based on measures such as sentence length and the likelihood of being convicted of the most serious charge, indigent defendants represented by salaried public defenders have been found in two recent studies to have better outcomes than those represented by appointed attorneys.6

The Fifth Amendment to the U.S. Constitution declares that no person shall “be subject for the same offence to be twice put in jeopardy of life and limb.” This is the famous Double Jeopardy Clause, which means in effect that no one may be tried twice for the same crime by any state government or by the federal government. It does not mean, however, that a person may not be tried twice for the same action if that action has violated both national and state laws. For example, someone who robs a federally chartered bank in New Jersey runs afoul of both federal and state laws. That person

could legally be tried and acquitted for the offense in a New Jersey court and subsequently be tried for that same action in federal court. Again, this clause means that the same level of government may not try a person twice for the same crime.

Nor does it mean that a crime victim cannot bring a civil suit against an alleged perpetrator. This famously occurred in the 1997 case involving former football star O. J. Simpson, who had been acquitted in 1995 of criminal charges in the deaths of his ex- wife, Nicole Brown, and her friend, Ronald Goldman. However, the victims’ families later brought a civil suit against Simpson, and in 1997 a jury found Simpson liable for the wrongful deaths of Brown and Goldman. The jury ordered Simpson to pay more than $33 million in restitution to the families. Cases of this type are unusual, however, because most criminal defendants, unlike Simpson, do not have much money, so crime victims can rarely justify the considerable expense of suing the wrongdoer.

Another important right guaranteed to the accused at both the state and federal levels is not to “be compelled in any criminal case to be a witness against himself.”7 This has been interpreted to mean that if the accused elects not to testify on his or her own behalf in court, this may not be used against the person by judge and jury. This guarantee serves to reinforce the principle that under the U.S. judicial system the burden of proof is on the state; the accused is presumed innocent until the government proves otherwise beyond a reasonable doubt.

Finally, the Supreme Court has interpreted the guarantee of due process of law to mean that evidence procured in an illegal search and seizure may not be used against the accused at trial. The source of this so-called exclusionary rule is the Fourth Amendment to the U.S. Constitution; the Supreme Court has made its strictures binding on the states as well. The Court’s purpose was to eliminate any incentive the police might have to illegally obtain evidence against the accused. Civil libertarians have argued that this rule is a key element in the basic concepts of due process and fair play. Others (mostly conservatives) have countered that this right does not discourage improper police behavior and that it serves only as a technical loophole to free the guilty. Recent Supreme Court rulings have taken steps to narrow the effect of the exclusionary rule. In 2006, for example, the Supreme Court allowed evidence that was seized in a raid in which police officers violated their department’s “knock and announce” rule before entering a home.8 In 2013, furthermore, the Court ruled that the collection of DNA evidence as a routine part of the booking process for serious crimes was, like fingerprinting, reasonable under the Fourth Amendment.9

Selection of Jurors

If the accused elects not to have a bench trial—that is, not to be tried and sentenced by a judge alone—his or her fate will be determined by a jury. At the federal level twelve persons must render a unanimous verdict. At the state level such criteria apply only to the most serious offenses. In some states a jury may consist of fewer than twelve persons and render verdicts by other than unanimous decisions. (Acceptable votes might be 11–1, 10–2, or 5–1.)

A group of people is summoned from a panel of potential jurors to appear in a given courtroom.10 This group is known as a venire (sometimes known as veniremen, or an array). The venire is then questioned in open court about their general qualifications for jury service in a process known as voir dire. The prosecutor and the defense attorney ask general and specific questions of the potential jurors. Are they citizens of the state? Can they comprehend the English language? Have they or anyone in their family ever been tried for a criminal offense? Have they read about or formed any opinions about the case at hand? In April 2015, Chief Justice John Roberts was called to jury duty for a civil case involving a car accident in Maryland.11 As “Juror 49,” the chief justice participated twice in open court in response to questions concerning family members working in the medical profession (Roberts’s sister is a nurse) or in law enforcement (his brother-in-law works for the Indiana State Police).12 The chief justice was not seated on the jury. The panel of jurors and alternates was seated before the trial judge, going in numerical order, got to Juror 49.13

In conducting the voir dire, the state and the defense have two general goals. The first is to eliminate all members of the panel who might have an obvious reason for not rendering an impartial decision in the case. Common examples might be someone who is excluded by law from serving on a jury (such as a person who is currently under indictment for a criminal offense); someone who is a friend or relative of a participant in the trial; and someone who openly admits a strong bias in the case. Objections to jurors in this category are known as challenges for cause, and the number of such challenges is unlimited. The judge determines whether these challenges are valid.

The second goal of the opposing attorneys in questioning the array of potential jurors is to eliminate those who they believe would be unfavorable to their side even though no overt reason for bias is apparent. This can be done because each side is given a number of peremptory challenges—requests to the court to exclude a prospective juror with no reason given. Most states customarily give the defense more peremptory challenges than the prosecution is given. At the federal level one to three challenges per jury are usually permitted each side, depending on the nature of the offense; as many as twenty are allowed in capital cases. The use of peremptory challenges is more of an art than a science and is usually based on the hunch of the attorneys. For example, in a case where

a poor person stole groceries from a supermarket, a prosecutor might use available challenges to exclude jurors of low economic status, on the premise that they might be more sympathetic to the accused. Or in a case involving a sexual offender, a defense attorney might try to eliminate jurors who belong to fundamentalist religions, assuming that they would take a more judgmental stance in such matters than those with more broad-minded religious convictions.

Long ago, attorneys were able to exclude potential jurors by using the peremptory challenge for virtually any reason. However, in 1986 the Supreme Court interpreted the Fourteenth Amendment’s Equal Protection Clause to restrict this unbridled discretion. The high court ruled in the case of Batson v. Kentucky that prosecutors may not use their challenges to exclude African Americans from serving on a criminal jury solely on the basis of race.14 Out of this case came the Batson rule, which bars the discriminatory use of peremptory challenges. In 1994 the Court extended the rule to prohibit the exclusion of women.15 Since then some courts have expanded the Batson rule to include other groups—for example, ethnic groups such as Italian Americans and Jews—and have even barred exclusions based on sexual orientation.16 Expressing continued concern about bias in the peremptory challenge process, the Supreme Court ruled in 2005 that defense attorneys could point to statistical analysis of the venire, side-by-side comparison of struck and impaneled jurors, differences in questions asked, and evidence of historical discrimination in proving bias in the peremptory challenge process. This ruling arose out of a Texas case in which the prosecution had used its peremptory challenges to strike ten of the eleven African Americans who were eligible to serve on the jury.17

The process of questioning and challenging prospective jurors continues until all those duly challenged for cause are eliminated, the peremptory challenges are either used up or waived, and a jury of twelve (six in some states, particularly in misdemeanor cases) has been assembled. In some states alternate jurors are also chosen. They attend the trial but participate in deliberations only if one of the original jurors is unable to continue in the proceedings. Once the panel has been selected, the jurors are sworn in by the judge or the clerk of the court and the trial usually begins immediately. In the criminal trial of “Boston Bomber” Dzhokhar Tsarnaev in 2015, jury selection took more than seven weeks, resulting in 1,373 prospective jurors completing the questionnaire and 256 jurors being interviewed through voir dire. 18 From the pool of 75 qualified jurors determined by Judge George O’Toole, a panel of 12 jurors and 6 alternates was chosen.19

In highly publicized criminal trials, the Sixth Amendment’s protection of a right to a trial by “an impartial jury”20 can be difficult to secure, particularly given that criminal

trials are to be held “in the State where the said Crimes shall have been committed.”21 As asked by Justice Ruth Bader Ginsburg in a case concerning the conviction of Enron executive Jeffrey Skilling, “When does the publicity attending conduct charged as criminal dim prospects that the trier can judge a case as due process requires, unswayed by outside influence?”22 In response to a defense attempt to have the Tsarnaev trial moved out of Boston, the U.S. Court of Appeals for the First Circuit determined that metropolitan Boston is large and diverse, with people receiving their news from a variety of sources.23 Therefore, Tsarnaev’s request to change venue at the pretrial stage (as opposed to raising a Sixth Amendment challenge on direct appeal) was denied.24

The system of relying on laypeople selected to sit in judgment on criminal trials that we have in the United States is not seen in all democracies. In finding that about half of the world’s large democracies reject the jury system, one recent study concluded that “no one should think a criminal jury is a necessary qualification for a democracy in the contemporary global community.”25 In countries that use the inquisitorial method, if laypeople are used, their role is subordinate to that of the judges, and they are selected in a cursory process. In Italy and Greece, for example, serious crimes are tried before a panel of laypeople and professional judges who deliberate together and decide cases by majority rule.26

Opening Statements At the beginning of the formal trial both the prosecution and the defense make their opening statements (although the defense is not technically required to do so). Long and detailed statements are more likely to be made in jury trials than in bench trials. The purpose of opening statements is to provide members of the jury—who lack familiarity with the law and with procedures of criminal investigation—with an outline of the major objectives of each side’s case, the evidence to be presented, the witnesses to be called, and what each side seeks to prove from the evidence of the witnesses. If the opening statements are well presented, the jurors will find it easier to grasp the meaning and significance of the evidence and testimony, and ideally they will be less likely to get confused and bogged down in the complexities and technicalities of the case. The usual procedure is for the state to make its opening statement first and for the defense to follow with a statement about how it will refute that case.

During the opening statements in the trial of Dzhokhar Tsarnaev, the prosecutor referred to Tsarnaev repeatedly as a “murderer” and concluded by showing pictures of the three people killed during the bombing and the MIT officer killed three days later, while

explaining how they died.27 Tsarnaev’s attorney noted that “It was him,” but emphasized the influence on Dzhokhar of his older brother, Tamerlan, in the bombing.28 Even at this opening stage of the trial, the defense was looking ahead to the sentencing stage, where Tsarnaev’s attorney was working to avoid having him sentenced to death.29

The Prosecution’s Case After the opening statements, the prosecutor presents the evidence amassed by the state against the accused. Evidence is generally of two types—physical evidence and the testimony of witnesses. The physical evidence may include such things as weapons, ballistics tests, fingerprints, handwriting samples, blood or urine tests, and other documents or items that serve as physical aids. The defense may object to the admission of any of these tangible items and, if successful, will have the item excluded from consideration. If unsuccessful, the physical evidence is labeled by one of the courtroom personnel and becomes part of the official record.

Most evidence at criminal trials takes the form of testimony of witnesses. The format is a question-and-answer procedure that may appear a bit stilted, but its purpose is to elicit specific information in an orderly fashion. The goal is to present only evidence that is relevant to the case at hand and not to give confusing or irrelevant information or illegal evidence that might result in a mistrial (for example, evidence that the accused had a prior conviction for an identical offense). The following hypothetical question and answer between a district attorney and a police officer is typical:

DA: Please state your name and occupation.

Officer: My name is Justen Muchow. I am employed as a police officer by the city of Elgin, Illinois.

DA: Did you have reason to be at or near the corner of Dundee Avenue and North Liberty Street about seven o’clock on the evening of March 5?

Officer: Yes, I was summoned to a liquor store near that address after a witness phoned the department and said she saw someone breaking into the building.

DA: What did you observe after you arrived on the scene?

Officer: I observed a white male with what appeared to be a crate of liquor under his arm.

DA: What was he doing at the time?

Officer: He was running away from the building.

DA: What did you do at that time?

Officer: I subdued the man and placed him under arrest.

DA: Is the person whom you saw running from the building and arrested sitting in this courtroom today?

Officer: Yes, sir.

DA: Would you point out that man?

Officer: He is sitting to the left of the defense attorney.

DA: Your Honor, may the record show that the officer pointed to the defendant in this case?

After each witness, the defense attorney has the right to cross-examine. The goal of the defense will be to impeach the testimony of the prosecution witness—that is, to discredit it. The attorney may attempt to confuse, fluster, or anger the witness, causing him or her to lose self-control and begin providing confusing or conflicting testimony. The testimony of the witness for the prosecution may also be impeached if defense witnesses who contradict the version of events suggested by the state are subsequently presented. On completion of the cross-examination, the prosecutor may conduct a redirect examination, which serves to clarify or correct some telling point made during the cross- examination. After the state has presented all its evidence and witnesses, it rests its case.

Some observers have recently speculated that juries, influenced by popular television programs such as CSI: Crime Scene Investigation—which portrays detectives using high-tech methods to solve crimes—may increasingly seek to rely on physical evidence in reaching their decisions. This “CSI effect” has some prosecutors concerned because the Hollywood crime shows are often scientifically farfetched and typically portray physical evidence as unassailable (which, in reality, is frequently not the case).30 Defense attorneys, on the other hand, suggest that the “CSI effect” may be a good thing, as it may make it harder for prosecutors to bring charges against the innocent and may also encourage prosecutors to build stronger cases.31 A 2007 study identified evidence to bolster claims of a “CSI effect”—researchers found that compared to non-CSI viewers, CSI viewers were more critical of the forensic evidence presented at trial, finding it less

believable. Those who watched the TV show also expressed more confidence in their verdicts than did nonviewers.32 In a 2010 study, however, researchers found that when compared to people who watched little crime-related programing on TV, those who spent more hours per week watching crime shows were more likely to rate forensic evidence as reliable and were less likely to say they would convict someone of murder without forensic evidence.33 Still other research has questioned whether the “CSI effect” is real or simply popular lore.34

The Case for the Defense The presentation of the case for the defense is similar in style and format to that of the prosecution. Tangible evidence is less common in the defense’s case, and most of the evidence will be that of witnesses who are prepared to rebut or contradict the prosecution’s arguments. The witnesses are questioned by the defense attorney in the same style as those in the prosecution case. Each defense witness may in turn be cross- examined by the district attorney, and then a redirect examination is in order.

The real difference between the case for the prosecution and the case for the defense lies in their obligation before the law. The defense is not required by law to present any new or additional evidence or any witnesses at all. The defense may consist merely of challenging the credibility or the legality of the state’s evidence and witnesses. The defense is not obligated to prove the innocence of the accused; it need show only that the state’s case is not beyond a reasonable doubt. The defendant need not even take the stand. (However, if he or she elects to do so, the accused faces the same risks of cross- examination as any other witness.)

After the defense has rested its case, the prosecution has the right to go back on the attack and present rebuttal evidence. In turn, the defense may offer a rejoinder known as a surrebuttal. After that, each side is ready for the closing arguments. This is often one of the more dramatic episodes in the trial because each side seeks to sum up its case, condense its strongest arguments, and make one last appeal to the jury. New evidence may not be presented at this stage, and the arguments of both sides tend to ring with emotion and appeals to values that transcend the immediate case. The prosecutor may talk about the crime problem in general, about the need for law and order, and about the need not to let compassion for the accused get in the way of empathy for the crime victim. The defense attorney may remind the jurors “how we have all made mistakes in this life” or argue that in a free, democratic society any doubt they have should be resolved in favor of the accused. The prosecution probably avoids emotionalism more than the defense attorney does, however, because many jury verdicts have been reversed

on appeal after the district attorney injected prejudicial statements into the closing statements. In the Tsarnaev trial in 2015 the prosecution showed an unusual level of emotion during the closing statements in attempting to characterize Dzhokhar Tsarnaev as a “co-conspirator” and “partner” in the crimes.35 The defense once again conceded that Tsarnaev “fully participated in the events,” but attempted to place more of the responsibility for planning the bombing on his older brother.36

Role of the Judge during the Trial The judge’s role in the trial, although important, is a relatively passive one. He or she does not present any evidence or take an active part in the examination of the witnesses. The judge is called on to rule on the many motions of the prosecutor and of the defense attorney regarding the types of evidence that may be presented and the kinds of questions that may be asked of the witnesses. In some jurisdictions the judge is permitted to ask substantive questions of the witnesses and also to comment to the jury about the credibility of the evidence that is presented; in other states the judge is constrained from such activity. Still, the American legal tradition has room for a variety of judicial styles that depend on the personality, training, and wisdom of individual judges. This was vividly demonstrated in the O. J. Simpson trial, presided over by California state judge Lance Ito, and the trial of 9/11 conspirator and al Qaeda operative Zacarias Moussaoui, presided over by U.S. district judge Leonie Brinkema. The comparatively inexperienced Ito never appeared to be in control of the courtroom proceedings, which lasted for eight long months. He allowed an inordinately large number of peremptory challenges, which greatly delayed jury selection; he permitted the attorneys to bicker endlessly, both in and outside of the courtroom; and he refused to restrict lengthy excursions on the witness stand (for example, allowing nine days of testimony by police criminalist Dennis Fung). Brinkema, by contrast, kept tight reins on the trial of Moussaoui, who was charged with conspiring to kill Americans as part of the 9/11 terrorist attacks. Brinkema’s control was clear even from the time of his arraignment. Seasoned court watchers noted that “the veteran trial judge … [moved] to prevent Moussaoui from transforming his trial into a politically charged show trial to vent anti-American views.”37 She ordered two U.S. marshals to restrain Moussaoui every time he attempted to speak out of turn; she designated court-appointed, standby attorneys to pick up Moussaoui’s self-defense “in the event that he ignores judicial admonitions or breaches courtroom etiquette”; and she significantly limited the scope of Moussaoui’s eleven handwritten pretrial motions, holding that she would hear the motions only “if oral argument will assist the court.”38

While judicial styles vary from one courtroom to another, all American jurists are

expected to manifest some similar traits. First and foremost, the judge is expected to play the part of a disinterested party whose primary job is to ensure that both sides are allowed to present their cases as fully as possible within the confines of the law. If judges depart from the appearance or practice of being fair and neutral parties, they run counter to fundamental tenets of American jurisprudence and risk having their decisions overturned by an appellate court. For example, in 2006 federal district court judge Royce Lamberth was removed from a case involving claims that the federal government mismanaged billions of dollars in Native American oil and gas royalties. In a blistering opinion handed down by Lamberth, he called one of the litigants in the case (the Department of the Interior) “a dinosaur—the morally and culturally oblivious hand-me- down of a disgracefully racist and imperialist government that should have been buried a century ago, the pathetic outpost of the indifference and anglocentrism we thought we had left behind.”39 The appellate court panel that removed Lamberth from the case viewed his harsh words negatively, stating that the jurist “extends beyond historical racism and all but accuses current Interior officials of racism.”40 Removing a judge from a case is necessary, the panel ruled, “if reasonable observers could believe that a judicial decision flowed from the judge’s animus toward a party rather than from the judge’s application of law to fact.” Lamberth was ejected from the case because he violated the long-held tradition that judges must be—or at least appear to be—objective, disinterested decision makers.

Although judges do, for the most part, play an independent role, their backgrounds and values affect their decisions in close calls—when they have to rule on a motion for which the arguments are equally strong or on a point of law that is open to a variety of interpretations. Evidence of this discretion and the way it is influenced by the values of the judges come from a variety of sources.

Role of the Jury during the Trial Passive is the word that characterizes the jurors’ role during the trial. Their job is to listen attentively to the cases presented by the two opposing attorneys and then come to a decision based solely on the evidence that is set forth. They are ordinarily not permitted to ask questions either of the witnesses or of the judge, nor are they typically allowed to take notes during the proceedings. This is not because of constitutional or statutory prohibitions but primarily because it has been the traditional practice of courts in America. The adversarial form of justice requires lawyers to play the primary role during the trial; the judge and jury are to behave as dispassionate observers.

Not all trial courts in the United States strictly follow this norm, however, and some

judges have allowed jurors to become more involved in the judicial arena. When John F. Grady was Chicago’s chief U.S. district court judge in the 1980s, he permitted jurors in his courtroom to take notes. Grady contended that asking juries to absorb passively all the testimony they hear “is like asking a college student to take a course without any notes and then take a final exam by memory.” He further stated, “Judges who try cases without a jury sure don’t sit there and do nothing—they take notes and ask questions.” One 2003 study of “mock jurors” in an experimental design found that allowing jurors to take notes during complex cases improved their performance in deciding the case, regardless of whether or not the jurors were able to access the notes during the verdict deliberations.41

Many practicing attorneys and judicial scholars do not agree, particularly when it comes to allowing jurors to become overly involved in the trial process. Some lawyers fear that interruptions from the jury box will upset their carefully planned trial strategies, ride roughshod over time-honored rules of evidence, or change jurors from neutral observers to advocates of one side or the other. As one prominent Kansas City, Missouri, attorney put it, “When you’re scoring a baseball game, you’re prone to miss something on the field.” In some states a few trial judges have allowed jurors to take fairly active roles in the trial. For instance, Wisconsin state judge Mark Frankel recalled a trial in which one of his jurors elicited “the smoking gun.” The case concerned a stabbing in which the defendant claimed that he acted in self-defense. The district attorney held the victim’s blood-stained jacket and sweater in front of the jurors and pointed to the slits where the knife had entered. Then one juror, acting on a remarkable hunch, passed Judge Frankel a note asking him to order the victim to put on the garments in question and then twist around in a variety of positions. Frankel agreed. To the astonishment of many in the courtroom, the slits in the garments lined up perfectly only when the victim curled up into a self-protective crouch—thus casting real doubt on the defendant’s argument that he had stabbed the victim in self-defense. The jury subsequently convicted the defendant. Frankel concluded that the juror’s suggestion “changed the whole picture of the case.”42

Likewise, at the federal level jurors in recent years have been allowed greater participation in the questioning of witnesses in some instances. Some U.S. appellate courts have given tacit approval to the practice so long as jurors are not permitted to blurt out queries in the midst of the trial and attorneys are given a chance to object to specific questions before they are posed to witnesses.43 Still, at both state and federal levels the role of the jury remains basically passive, and the jury liberation movement remains in the experimental stage.

Instructions to the Jury A very important function of the judge during the trial is to charge the jury after the prosecution and defense have rested their cases. Although the jury’s job is to weigh and assess the facts of the case, the judge must instruct the jurors about the meaning of the law and how the law is to be applied. The judge’s instructions can be drafted in a way that favors one side or the other. For example, if someone were accused of embezzlement and the judge favored acquittal, it might be possible to give the jury such a narrow legal definition of the word embezzlement that it would be difficult to bring in a guilty verdict. Likewise, if the judge were disposed toward conviction, a broader discussion of the laws on embezzlement might facilitate a conviction.

Both the prosecutor and the defense attorney know that the nature of the instructions can nudge the jury in one direction or another. Consequently, each side in the case often submits its own set of instructions to the judge, asking that its version be the official one read to the jury. The judge may then select either of the two sets of instructions or, as often as not, develop one of his or her own (perhaps based on selected parts of those offered or on a previously used set of instructions).

Because many cases are overturned on appeal as a result of faulty jury instructions, judges tend to take great care that the wording be technically and legally correct. The problem with this, however, is that although highly technical legal instructions may please an appellate court, they are often incomprehensible to individual jurors. Some research indicates that jurors spend up to 25 percent of their deliberation time simply trying to decipher what the instructions mean.44 A study of jurors in Cook County (Chicago), Illinois, revealed that as many as 75 percent did not understand parts of the instructions given to them in death penalty cases.45 Judges tend to decline the jury’s subsequent pleas to clarify instructions or to rephrase them in everyday language because doing so would risk saying something that could move one side or the other to appeal the instructions.

Whatever the thrust or bias of the instructions, they must all have some basic elements. One is to define for the jurors the crime with which the accused is charged. This may involve giving the jurors a variety of options about what kind of verdict to bring. For example, if one person has taken the life of another, the state may be trying the accused for first-degree murder. Nevertheless, the judge may be obliged to acquaint the jury with the legal definition of second-degree murder or manslaughter if it should determine that the defendant was the killer but did not act with malice aforethought. Or if the accused is pleading not guilty by reason of insanity, the judge must offer in the instructions the proper legal definition of insanity.

The judge also must remind the jury that the burden of proof is on the state and that the accused is presumed to be innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt of the accused, it must bring in a verdict of not guilty. Jurors are often troubled by what this means. “How sure do we have to be,” they often ask themselves, “75 percent, 90 percent, 99 percent?” What is reasonable, and how strong may the doubt be? One judge defined the matter this way:

It is such a doubt as would cause a juror, after careful and candid and impartial consideration of all the evidence, to be so undecided, that he cannot say that he has an abiding conviction of the defendant’s guilt. It is such a doubt as would cause a reasonable person to hesitate or pause in the graver or more important transactions of life. However, it is not a fanciful doubt nor a whimsical doubt, nor a doubt based on conjecture.46

Despite this and other guidelines that the juror may be given to help determine reasonable doubt, in the final analysis each person has to decide alone at the moment when he or she votes to acquit or convict.

Finally, the judge usually acquaints the jurors with a variety of procedural matters: how to contact the judge if they have questions, the order in which they must consider the charges if there are more than one, and who must sign the official documents that express the verdict of the jury. After the instructions are read to the jury (and the attorneys for each side have been given an opportunity to offer objections), the jurors retreat to a deliberation room to decide the fate of the accused.

The Jury’s Decisions The jury deliberates in complete privacy; no outsiders observe or participate in its debate. During their deliberation jurors may request clarification of legal questions from the judge, and they may look at items of evidence or selected segments of the case transcript, but they may consult nothing else—no law dictionaries, no legal writings, no opinions from experts. The consequences when a juror consults other information can be serious. In Vermont, Donald Fell was convicted and sentenced to death under federal law (the state of Vermont does not have the death penalty) in 2005 for a murder that occurred in 2000.47 In 2014 the conviction and sentence were overturned and Fell was granted a new trial (set for 2016) after evidence of juror misconduct surfaced.48 Fell’s lawyers contended that a juror in the initial trial secretly traveled to the crime scene and

talked with the other jurors about what he observed there.49

When a decision has been reached by a vote of its members, the jury returns to the courtroom to announce its verdict. If a decision has not been reached by nightfall, the jurors are sent home with firm instructions not to discuss the case with others or to follow it in news reports. In very important or notorious cases, the judge might order sequestration of the jury, which means that its members will spend the night in a local hotel away from the public eye. Consider, for example, the highly publicized trial of Casey Anthony, the Florida woman who was acquitted in 2011 for the disappearance and murder of her two-year-old daughter. To protect the jurors from the massive media coverage of the trial, they were sequestered at a local hotel for six weeks.50

If the jury becomes deadlocked and cannot reach a verdict, it may report that fact to the judge. In such an event the judge may insist that the jury continue its effort to reach a verdict, saying something like the following: “The state and the accused have spent a lot of time and money on this case, and if you can’t agree, then another jury just like you folks is going to have to go through this whole thing again.” (There is nothing like instilling a little guilt to motivate human behavior.) Or, if the judge is convinced that the jury is hopelessly deadlocked, he or she may dismiss the jury and call for a new trial.

Research studies indicate that most juries dealing with criminal cases make their decisions fairly quickly. Almost all juries take a vote soon after retiring to their chambers (“just a nonbinding straw vote to see where we are”). In approximately 30 percent of the cases it takes only one vote to reach a unanimous decision. As the foreperson of the jury that in 1997 convicted Oklahoma City bomber Timothy McVeigh put it, “It was unanimous from the get-go.”51 In 60 percent or so of cases, the majority on the first ballot eventually wins out. In about 10 percent of cases, a hung jury occurs. These are instances in which no verdict can be reached, and they tend to happen only when a large minority existed on the first ballot.

Scholars have also learned that juries often reach the same verdict that the judge would have, had he or she been solely responsible for the decision. One large jury study asked judges to state how they would have decided jury cases over which they had presided. The judge and jury agreed in 81 percent of the criminal cases (about the same as in civil cases). In 19 percent of the criminal cases the judge and jury disagreed, with the judge showing a marked tendency to convict where the juries had acquitted. Most disagreement occurred over drunk-driving and rape cases.52

In drunk-driving cases many jurors apparently envisioned themselves in similar situations and had sympathy for the accused. In forcible rape cases the jury was likely to

believe that the woman had encouraged the attack because of the way she was dressed or the place where the rape occurred—for instance, in the back room of a bar. This phenomenon was vividly called to the nation’s attention when a state jury in Fort Lauderdale, Florida, acquitted the defendant in a rape case despite clear and overwhelming evidence that he had sexually assaulted the victim. When one juror was asked by a reporter why the jury had opted for acquittal in the face of such clearcut evidence, the juror replied, “She asked for it. The way she was dressed with that skirt you could see everything she had. She was advertising for sex.” (The twentytwo- year- old victim had been wearing a tank top, lace skirt, and no undergarments at the time of the assault.)53

In recent years studies have documented another phenomenon characterizing jurors’ behavior. As citizens, they may denounce crime and call for greater measures to curtail and punish it, but as jurors they seek to understand the criminal act and link punishment to their explanation for the behavior. In a 1995 study one scholar asked experimental jurors to sentence a man for writing a $100 check drawn on an imaginary bank account.54 As the study continued, additional facts about the defendant were revealed to the jurors. When they were told that he had a long criminal record, the sentence jumped from ten months to thirty years. However, when the jurors heard a defense psychiatrist explain the defendant’s behavior, the penalty dropped from thirty to five years. (When psychiatrists testified for both sides, the sentence evened out at fifteen years.)55 In a parallel experimental study jurors decided a case about a battered woman who killed her abusive husband under three different situations: the woman was a good wife and mother; she was incompetent in those roles; and she was a bad wife and mother. As the battered woman went from good to bad, the percentage of guilty verdicts rose dramatically—even though, legally, her fitness as a wife and mother had nothing to do with the probability of her guilt.56

Jurors, like police officers, prosecutors, grand jurors, and judges, reflect their personal values and backgrounds in their decision-making process. Earlier studies have shown that men speak up more than women in the jury deliberation process and have more influence on the final outcome, and that well-educated people play a more significant role than those with lesser educational backgrounds. Some evidence also suggests that during the jury deliberation process ethnic or racial minorities may draw on their personal experiences as members of a disadvantaged group and may be more likely to favor the accused. In a more recent study assessing how actual jurors reported their own participation on juries, researchers found that while jurors with more education and who are wealthier reported participating more on juries, they found less support than seen in previous studies for the conclusion that men participate more than women or that white

jurors participate more than nonwhite jurors.57

When the members of the jury do finally reach a decision, they return to the courtroom and their verdict is announced in open court, often by the jury foreperson. At this time either the prosecutor or the defense attorney often asks that the jury be polled—that is, that each juror is asked individually if the verdict reflects his or her own opinion. The purpose is to determine whether each juror supports the overall verdict or whether he or she has caved in to group pressure. If the polling procedure reveals that the jury is not of one mind, it may be sent back to the jury room to continue deliberations; in some jurisdictions a mistrial may be declared. If a mistrial is declared, the case may be tried again before another jury. In such an instance, there is no double jeopardy because the original jury did not agree on a verdict. If the jury’s verdict is not guilty, the defendant is discharged on the spot and is free to leave the courtroom (unless other charges are pending).

Conviction Rates and the Likelihood of Being Sent to Prison About 90 percent of all persons charged with felonies in the United States are convicted. This may seem high, but in a country such as Japan—not known for having an unduly draconian criminal justice system—a full 99 percent of all criminal defendants are convicted.58 Also keep in mind that conviction statistics usually include plea bargains, which almost always involve a guilty plea. At the federal level in the United States around 80 percent of those convicted were sent to prison in 2009, up from 60 percent in 1990.59 Between 2012 and 2013, the federal prison population dropped for the first time since 1980.60 Federal convicts were likely to serve 88 percent of their sentence (before parole) in 2003, up from 65 percent in 1990.61 At the state level, 70 percent of all convicted felons in 2004 were sentenced to confinement behind bars. The percentage of time that a defendant serves varies significantly from state to state, by the defendant’s record and also by the level of severity of the crime. Overall, the typical defendant serves around half of his or her term, a figure that has remained fairly constant over the years.62

Procedures after a Criminal Trial At the close of the criminal trial, two stages generally remain for the defendant if he or she has been found guilty: sentencing and an appeal.

Sentencing Sentencing is the court’s formal pronouncement of judgment on the defendant, at which time the punishment or penalty is set forth.

Penologists have traditionally given four justifications for punishing those who break the laws of society: retribution, incapacitation, deterrence, and rehabilitation. Each one contains separate, although not mutually exclusive, philosophies about why the state should punish offenders. Some emphasize past actions, while others focus on the future behavior of the criminal. Some place their primary focus on the rights and needs of society, while others are more oriented toward the criminal as a human being.

Retribution in its most basic sense stems from the ancient principle of revenge—the moral right of society to punish those who have inflicted harm on a member of that society, or as the biblical book of Leviticus succinctly puts it: “An eye for an eye, a tooth for a tooth.” Although there is harshness in this principle, it carries the modulating notion that the state should punish according to some form of due process of law—as opposed to private citizens carrying out a rampage of revenge. In addition, once the punishment is exacted, that is the end of the matter. The state and the victim do not have the right to commence a vendetta against the criminal or the criminal’s family. Nonetheless, this philosophy of punishment has underlying weaknesses. First, if taken literally it would force the state into untold acts of violence and brutality. Furthermore, while the concept of inflicting injury for injury may be comprehensible in terms of crimes of violence, it is not a useful tool for crimes against property. For instance, if X were found to have engaged in a willful and unlawful misuse of a computer software program, what would be the appropriate punishment in terms of “an eye for an eye”?

A second justification for punishment is incapacitation. Its underlying assumption is that if offenders are removed from society by putting them in prison (or by executing them), they will no longer be a threat to society. This proposition clearly has some truth, however simplistic, especially because evidence shows that a small number of criminals are responsible for a large number of crimes: “Lock the crooks up and we’ll all be better off for it.” Nevertheless, this philosophy does not address some key questions. For example, for how long should the criminal be put in prison? What about evidence suggesting that prison time makes criminals harder and meaner and thus even a greater threat to society when their incarceration ends? Should the extraordinary financial expense (as of 2010, it costs the states an annual average of $31,307 per prisoner) of guarding and housing prisoners for years on end be a consideration?63 Finally, does the state have any responsibility to reform or rehabilitate the offender?

Deterrence is a third reason to justify the state’s handing down a punishment. The focus is not so much on punishing the wrongdoer (although it does that), but rather on trying to prevent others from breaking the law. If the state severely punishes a criminal, this will serve as a warning to others that the same will happen to them if they break the law. This philosophy is partly based on the notion that people obey the law not just because they are good but also because they do not want to be caught and punished. While this argument may seem persuasive, in the real world it does not always work. The United States has a relatively high percentage of its population in prison—more than 2.2 million behind bars in 2013.64 Yet the country still has a large amount of crime (though overall crime rates have declined significantly as the prison population has increased). On the other hand, Canada, compared with the United States, has a much lower percentage of people in jail and a lower crime rate, too. Moreover, much crime, particularly crime of violence, is committed on the spur of the moment or under the influence of drugs or alcohol, when the wrongdoers are in no state of mind to calculate the odds of getting caught or the severity of their possible punishment.

Finally, rehabilitation is a more modern justification for punishing the lawbreaker. Its thesis is that people commit crimes because society has failed to provide them with a proper foundation (such as a decent home environment, a good education, or a job), and that with some help these unfortunate individuals can put their lives on a positive track. It also acknowledges that a criminal may be ill physically or mentally, or possibly a victim of substance abuse. Thus the purpose of the sentence is not to punish but rather to treat the individual needs of the lawbreaker as a means for preventing criminal recurrence: “Teach him a trade and get him off the bottle, and he won’t have to steal for a living.” While rehabilitation undoubtedly works in some cases, there is much evidence showing that it fails to do so in many other instances. For example, almost 40 percent of convicted felons in 2004 had an active criminal justice status at the time of their charged offense, including 16 percent who were on probation, 11 percent on pretrial release, and 5 percent on parole.65 A 2002 analysis found that more than two-thirds of former inmates released from state prisons were arrested again within three years.66 Furthermore, in recent decades data have shown that former inmates are likely to engage in criminal activity regardless of whether they were treated harshly in prison or offered a gentle rehabilitating hand. Given the expense involved (rehabilitation programs tend to be costly to administer) and their high failure rate, it is hardly surprising that taxpayers have shown little desire to spend large amounts of money on people who have been convicted of crimes and, at least statistically speaking, are likely to break the law again.

In sum, while all four philosophies of sentencing have some compelling elements, each contains some inconsistencies and shortcomings, and none seems to address all the

complex aspects of this important but complicated societal issue.67

At the federal level and in most states, only judges impose sentences.68 However, in several states the defendant may elect to be sentenced by either a judge or a jury, and in capital cases states generally require that no death sentence be imposed unless it is the unanimous decision of twelve jurors. Some states have a bifurcated procedure for determining innocence or guilt and then imposing a sentence for the guilty: After reaching a guilty verdict, the jury deliberates a second time to determine the sentence. In several states a new jury is impaneled expressly for sentencing. At this time the rules of evidence are more relaxed, and the jury may be permitted to hear evidence that was excluded during the trial (for example, the previous criminal record of the accused).

After the judge pronounces the sentence, several weeks customarily elapse between the time the defendant is found guilty and the time the penalty is imposed. This interval permits the judge to hear and consider any post-trial motions that the defense attorney might make (such as a motion for a new trial) and to allow a probation officer to conduct a pre-sentence investigation. The probation officer is a professional with a background in criminology, psychology, or social work who makes a recommendation to the judge about the length of the sentence to be imposed. The probation officer customarily examines factors such as the background of the criminal, the seriousness of the crime committed, and the likelihood that the criminal will continue to engage in illegal activity. Judges are not required to follow the probation officer’s recommendation, but it is a major factor in the judge’s determination of what the sentence should be. Judges are presented with a variety of alternatives and a range of sentences. Many of these alternatives involve the concept of rehabilitation and call for the assistance of professionals in the fields of criminology and social science.

One of the lightest punishments that a judge can hand down is probation. According to Department of Justice data, in 2010 some 47 percent of all probationers in the United States were convicted of a misdemeanor, 50 percent of a felony, and 2 percent of other infractions. The most common offenses of these men and women (28 percent) were property crimes, followed by a drug law violation (at 26 percent).69 Probation tends to be the penalty if the crime is regarded as relatively minor or if the judge believes that the guilty person is not likely to engage in future criminal activity. For example, a woman with no prior criminal record who kills her husband after being physically abused for many years is unlikely to go on a rampage of bank robberies or additional killings. If a probated sentence is handed down, the criminal may not spend any time in prison, provided that the conditions of the probation are met. These might include staying away from bars or convicted criminals, not committing other crimes, or, with increasing frequency, performing some type of community service. For example, in 2009 R&B

singer Chris Brown pled guilty to physically assaulting his former girlfriend, pop star Rihanna. As part of his sentence he was required to do six months of community service, much of which he completed by doing a variety of menial tasks for law enforcement authorities in Richmond, Virginia.70

Alternative sentencing programs, which have been prompted by tight budgets and overcrowded prisons, offer a form of punishment that has been on the rise in recent years. Between 1984 and 1994 the number of these programs surged from about twenty to more than three hundred.71 Some of these sentences can be quite creative. In 2004 an Ohio judge ordered a man to jog for an hour every other day around the city block where the jail is located in the town of Coshocton because the man had run away from police after a traffic accident.72 If a criminal serves out his or her probation or alternative sentence without incident, the criminal record is usually wiped clean, and in the eyes of the law it is as if no crime had ever been committed.

If the judge is not disposed toward probation or an alternative sentence and feels that hard time is in order, he or she must impose a prison sentence that is within a range prescribed by law. For example, in a certain state the penalty for aggravated assault may be a prison term of “no less than five but no more than fifteen years in the state penitentiary.” The reason for a range of years instead of an automatically assigned number is that the law recognizes that not all crimes and criminals are alike and that, in principle, the punishment should fit the crime. Thus a criminal with a prior record who held up a liquor store might be given a longer sentence than the person with no record who embezzled some money to pay for his child’s life-ordeath surgery.

In an effort to eliminate gross disparities in sentencing for basically the same set of circumstances, the federal government and many states have developed fairly precise guidelines to ensure greater consistency among judges. At the national level this effort led to the Sentencing Reform Act of 1984, which established a set of guidelines to structure the sentencing process:

The guidelines contain a Sentencing Table with 43 offense levels on the vertical axis and six categories of criminal history on the horizontal axis. Offenders in criminal history category 1 would likely have little or no criminal record, while those in category 6 would likely have extensive criminal histories.

The judge would find the applicable guideline sentencing range, which the

table expresses in months of imprisonment, by determining the offense level and then reading across the axis to the proper criminal history category. Offense level 4, for example, which could apply to an offender convicted of theft of $100 or less, prescribes a sentencing range of 0 to 4 months for an offender in criminal history category 1, and 6 to 12 months for an offender in criminal history category 6. Offense level 38, which could apply to an offender convicted of aircraft hijacking, prescribes a sentencing range of 235– 293 months for offenders in criminal history category 1, and 360 months to life for offenders in both the 5th and 6th criminal history categories.73

The original act by Congress stated that judges could depart from the guidelines only if they found an aggravating or mitigating circumstance that the commission did not adequately consider. Although the congressional guidelines did not specify the kinds of factors that could constitute grounds for disregarding the sentencing guidelines, Congress did state that the grounds could not include race, gender, national origin, creed, religion, socioeconomic status, drug dependence, or alcohol abuse.74 In 2005, however, the Supreme Court ruled in the case of U.S. v. Booker that the mandatory sentencing guidelines violated the constitutional right to a trial by jury, since the rules required that sentences be based on facts found by judges after the jury had issued a conviction.75 The Court’s decision effectively meant that the sentencing guidelines could be considered advisory, not mandatory.

What effects have the guidelines had? Besides stirring up a storm of controversy among U.S. judges who resent restrictions on their traditionally broad sentencing authority, two observations now appear warranted. First, prior to the Booker decision, the vast majority of federal judges were adhering to the guidelines, and thus aggregate disparities among judges declined after the guidelines were introduced in the 1980s. However, some data suggest that adherence to the guidelines has declined somewhat—69 percent of sentences were within the guidelines in 2003, but only 61 percent were in 2005.76 Even more recently, the adherence to the guidelines has declined even further. According to the U.S. Sentencing Commission, from December 2007 through September 2011, only 54 percent of sentences were within the guidelines.77

Second, there is movement within the federal government (and in some states) to reduce the lengthy sentences that some nonviolent offenders are given under this system. In April 2014 the United States Sentencing Commission78 voted unanimously to reduce the base sentencing guidelines for most drug trafficking offenders.79 The Commission estimated that this change would affect 70 percent of federal drug offenders, reducing

sentences an average of eleven months (down to fifty-one months from the previous sixty-two on average).80 In July 2014 the Commission again voted unanimously, this time to make these sentence reductions apply retroactively to eligible prisoners.81 In addition, in March 2015 President Barack Obama discussed sentencing practices with David Simon (the creator of the TV show The Wire).82 In this conversation, President Obama noted that “there is a [sic] increasing realization on the left but also on the right politically that what we’re doing is counterproductive,” in terms of sentencing of nonviolent drug offenders.83

Sentences may be appealed if the judge appears to have departed from the guidelines in an unjust fashion, but this does not happen often. Of the more than 230,000 sentences handed down by federal judges from 1999 through 2002, prosecutors appealed only 282 of them, including 138 where the defendants also appealed.84

Following the lead of the federal government, the states created a variety of programs for avoiding vast disparities in judges’ sentences. Guidelines of some sort were in effect in twenty-one states as of 2008.85 However, just as at the federal level, these state guidelines have also been rendered advisory and not mandatory by recent Supreme Court decisions.86 Almost all of the states have enacted mandatory sentencing laws that require an automatic specific sentence upon conviction of certain crimes— particularly violent crimes, crimes in which a gun was used, or crimes perpetrated by habitual offenders. How successful have these reforms been a decade or so after they were put in place? One study concluded that “state guidelines reforms have clearly succeeded in their goal of encouraging more informed and rational sentencing policy decisions. Published evaluations also suggest that state guidelines have generally succeeded in achieving their goals of reducing sentencing disparity, lessening the impact of short-term political pressures on sentencing policy, and linking sentencing severity to available correctional resources.”87 However, as has been seen with respect to federal sentencing policy, many states have started to reconsider sentencing practices that result in very long sentences for nonviolent crimes. In California, for example, voters easily approved Proposition 36 in 2012, which revised the state’s Three Strikes Law and limited the circumstances under which a life sentence could be imposed.88

Despite their enormous impact on the sentence, judges do not necessarily have the final say on the matter. Whenever a judge sets a prison term, it is still subject to the parole laws of the states. There is no parole system at the federal level—Congress abolished parole when it passed the Sentencing Reform Act in 1984. However, many federal prisoners can earn an early release for “good behavior.” By law, federal prisoners

serving more than one year in prison and engaging in “satisfactory behavior” are eligible for fifty-four days a year off their sentence for every one year they serve.89

Parole boards (and sometimes the president and governors, who may grant pardons or commute sentences) have the final say about how long an inmate stays in state prison. Evidence collected by the Justice Department for the state level suggests that parole boards and governors have not been hesitant about exercising their prerogatives. The average time served in state prison by violent felons is around 80 percent of his or her sentence; the rate is lower for those convicted of nonviolent crimes, and it varies significantly from state to state.90 At the federal level the typical prisoner now serves 88 percent of his or her sentence.91 There has been a sharp increase in these median time periods in the past two decades as the result of numerous mandatory minimum-time sentencing laws that have been enacted by Congress and the various state legislatures, coupled with a sharp rise in the number of prison beds in the United States. In comparison, in 1993 the average time served in state prison by violent offenders was about 47 percent of his or her sentence, and in 1990 the typical federal prisoner served only 65 percent of his or her stretch.92

An Appeal At both the state and federal levels everyone has the right to at least one appeal after being convicted of a felony, but in reality few criminals avail themselves of this privilege. An appeal is based on the contention that an error of law was made during the trial process. Such an error must be reversible, as opposed to harmless. An error is considered harmless if it had no effect on the outcome of the trial. A reversible error, however, is a serious one that might have affected the verdict of the judge or jury. For example, a successful appeal might be based on the argument that evidence was improperly admitted at trial, that the judge’s instructions to the jury were flawed, or that a guilty plea was not voluntarily made. However, appeals must be based on questions of procedure and legal interpretations, not on factual determinations of the defendant’s guilt or innocence. Furthermore, under most circumstances one cannot appeal the length of one’s sentence in the United States (as long as it was in the range prescribed by law). This is unlike the practice in most other Western democracies, which routinely permit criminals to contest in the appeals courts the length of their prison terms.

Criminal defendants do have some degree of success on appeal about 20 percent of the time, but this does not mean that the defendant goes free. The usual practice is for the appellate court to remand the case (send it back) to the lower court for a new trial. At that point the prosecution must determine whether the procedural errors in the original

trial can be overcome in a second trial and whether it is worth the time and effort to do so. A second trial is not considered double jeopardy because the defendant has chosen to appeal the original conviction.

In 1991 the Supreme Court made it harder for convicted criminals, especially those on death row, to repeatedly challenge the constitutionality of their convictions. The high court ruled that when a prisoner files a second habeas corpus petition in federal court, the prosecutor must specify which claims are being made for the first time.93 The prisoner is then obliged to provide compelling reasons as to why these new issues, such as the unavailability of factual or legal information, were not raised in the initial petition. The prisoner must demonstrate that his or her case was prejudiced by the alleged constitutional violations.94

The Supreme Court’s tightening of the screw for death penalty appeals has not been without effect. To illustrate, in 1976 fewer than 500 persons were awaiting execution, but in 2012 around 3,170 persons were on death row either at the federal penitentiary in Terre Haute, Indiana, or in its counterparts in the thirty-three states that have capital punishment. This sharp rise is not entirely due to the limitation of appeals; the Supreme Court reinstated the death penalty in 1976 after a five-year pause. Still, there is little question that the limitation of appeals has certainly had consequences. In 2013 some 39 inmates were executed in nine states in the United States.95 After increasing throughout the 1980s and 1990s, the annual number of executions in the United States has declined fairly steadily since 1999, when 98 inmates were executed.96 The state of Texas consistently tops the list of states with the most executions. In 2013 some 16 (or about 41 percent of all executed in the United States that year) received the ultimate penalty in the Lone Star State.97 The number of executions around the world increased dramatically throughout the 1980s and 1990s. In 2008 about 2,390 people were known to have been executed in twenty-five countries worldwide,98 but this is down significantly from 2001, when some 3,048 persons were executed in thirty-one countries around the world.99 China leads the world in executions—an estimated 1,700 people were executed in the authoritarian country in 2008.100

Despite the willingness of Congress and state legislatures to enact death sentence statutes and the equal willingness of judges and juries to hand down the ultimate penalty, America still seems to be troubled about the fairness of the laws and by the increasing evidence that innocent persons have been, and are being, executed. In terms of the fairness issue, it has long been recognized that minorities are more likely than whites to receive a death sentence. For example, even though blacks and whites commit the crime of murder at roughly the same rate, of persons on death row in 2008, around

41 percent were African Americans and 11 percent were Latinos.101 Another issue is the indication that innocent persons, often represented by attorneys of questionable ability, are being sentenced to death. Some observers have noted that “in the last decade DNA tests have provided stone-cold proof that sixty-nine people were sent to prison and death row in North America for crimes they did not commit,” and the “number has been rising at a rate of more than one a month.”102 Perhaps the most visible manifestation of this phenomenon was the decision of Illinois’ conservative Republican governor, George Ryan, in January 2003 to commute the death sentences of all 167 inmates on death row. The governor noted that 13 death row inmates had been exonerated since 1987 through appeals and DNA evidence (as well as in several cases as the result of persistent investigations by college journalism students).103 Indeed, the attorney general of Maryland noted in 2003 that “102 people on death rows around the country have been exonerated since the U.S. Supreme Court allowed states to reinstate capital punishment in 1976.”104 In addition to Illinois, six more states (Nebraska, New Jersey, New York, New Mexico, Connecticut, and Maryland) have abolished the death sentence since 2007.105 Increasing evidence shows that appellate courts, at both federal and state levels, are giving more careful scrutiny to death penalty appeals that are lawfully made, and there appears to be an increasing willingness to require DNA testing when such tests are feasible.106

Some concerned about the execution of an innocent person point to the case of Cameron Todd Willingham, who was put to death by Texas in 2004 following his conviction for setting a fire that resulted in the death of his three young daughters. Cameron professed his innocence until the very end—his final statement included, “The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do.” At trial Cameron refused a plea deal that would have required him to plead guilty but would have spared his life. Instead, his case went to trial, he lost, and he was sentenced to die. In 2009 a respected investigative reporter published a widely read story that drew on arson investigation experts and scientific advances; it suggested that, contrary to the claims of the prosecution, there was no evidence that the house fire was intentionally set by Willingham.107

However, in fairness it should be noted that the death penalty enjoys wide political support in the United States. The Gallup polling organization reports that as of 2011, some 61 percent of the public support the death penalty for a person convicted of murder, and 35 percent oppose.108 Furthermore, the Supreme Court has consistently ruled that executions are allowable under the Constitution in certain circumstances, and it has never held that executions are, per se, cruel or unusual.

Still, it is hard to ignore the evidence of the Supreme Court’s growing concern with the death penalty as evidenced in two cases involving who may be executed. In its 2002 decision in Atkins v. Virginia,109 the Supreme Court ruled that (per the Court’s language) “mentally retarded” persons could not be legally executed in the United States because their intellectual disability affects their mens rea. Similarly, in the 2005 case of Roper v. Simmons,110 the Supreme Court held that individuals who were minors when they committed their crimes could not be executed because scientific research has shown that the intellectual development of those under the age of eighteen is such that many are not fully able to understand the implications of their actions (which is one of the reasons why states prohibit minors under the age of eighteen from voting). Even moderately conservative Supreme Court justice Sandra Day O’Connor stated publicly that “after 20 years on the high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country… . Perhaps most alarming … is the fact that if statistics are any indication, the system may well be allowing some innocent defendants to be executed.”111

After fourteen hours of deliberation, the jury sentenced Dzhokhar Tsarnaev to death on May 15, 2015, rejecting the defense’s argument that Dzhokhar’s older brother should shoulder most of the blame for the bombing and its aftermath.112 The final stage of sentencing occurred on June 24, 2015, when the judge, as required by federal law in capital cases, imposed the jury’s death sentence determination on Tsarnaev.113

One final observation about the appellate process in general is appropriate. The media and champions of law and order often make much of appellate courts that turn loose obviously guilty criminals and reverse convictions on technicalities. This undoubtedly happens from time to time, but many in the general public have the false impression that it is a frequent occurrence. Some basic facts and figures reveal the reality of the situation. First, about 90 percent of all defendants plead guilty, and this plea virtually excludes the possibility of an appeal. Of the remaining group, roughly two-thirds are found guilty at trial, and only a small percentage of these appeal. Of those who do appeal, only about 20 percent have any measurable degree of success. Furthermore, of those whose convictions are reversed, many are found guilty at a subsequent trial. (For example, in the famous case of Miranda v. Arizona, which spearheaded the criminal rights emphasis of the Warren Court, Ernesto Miranda’s conviction was overturned by the high court because tainted evidence had been used to convict him. Nevertheless, at a subsequent trial—minus the tainted evidence—he was again convicted for the same crime.)114 The oft-held perception that legions of criminals are freed due to minor errors is simply not true. In fact, well under 1 percent of persons convicted of crimes are

subsequently freed because of reversible court errors. Most people would consider that an acceptable risk in a free society, and one might argue that it is inevitable in a democratic country whose legal system is based on fair play and the presumption of the innocence of the accused.

Summary We began this chapter by outlining the basic rights of the accused in a criminal trial and looked at the vagaries of the jury selection process. We then examined the key players at the trial—the prosecutor, the defense attorney, and the judge—and contrasted the roles of these individuals (as well as of jurors) with those in other countries that employ the inquisitorial method. After discussing the work of the jury, we examined the post-trial procedures of sentencing and appeal. Throughout the chapter, we stressed that the backgrounds and attitudes of the criminal justice participants have as much to do with the nature and quality of justice as do the formal rules of the game. Whether the subject is police officers, prosecutors, judges, or juries, the criminal justice system is greatly influenced by the perceptions, mores, and values of the men and women who dispense justice in the United States.

FURTHER THOUGHT AND DISCUSSION QUESTIONS 1. In the United States judges and juries sit passively while attorneys have the main

responsibility for conducting the trial and presenting the evidence. In most European and South American countries, which use the inquisitorial method, the judges and jurors sit together actively and conduct the trial in an effort to seek the truth while the attorneys take a passive role. What method does a better job at getting at the truth and serving justice?

2. In recent years dozens of convicted murderers on death row were freed at the last minute because DNA evidence proved that they had not committed the crime. Does this prove that justice does work in the American criminal justice system, or is it a sign of pathology in the way criminal trials are conducted in the first place?

3. In the United States the length of a prison sentence cannot be appealed if it is within the range prescribed by law. That is not the case in many countries, such as the United Kingdom, where convicted persons may appeal the length of their sentence if they believe it to be unjust. Would it be a good idea if convicted felons in this country could appeal the severity of their prison terms?

4. Studies show that the recidivism rate is about the same whether prisoners are treated humanely during their time in prison or whether they are subjected to harsh treatment with few amenities. If so, wouldn’t it be a good idea to

significantly cut prison budgets that allow expenditures for the few amenities of prison life (e.g., a library, exercise facilities, educational opportunities)? Or are there humane reasons for treating those behind bars with a modicum of decency and respect?

SUGGESTED RESOURCES Dammer, Harry R., and Erika Fairchild. Comparative Criminal Justice Systems.

Belmont, Calif.: Wadsworth, 2005. An introduction to the judicial and corrections systems around the world.

Hastie, Reid, Steven D. Penrod, and Nancy Pennington. Inside the Jury. Cambridge, Mass.: Harvard University Press, 1983. An excellent discussion of the history of and legal constraints on jury behavior, with a sophisticated, data-containing behavioral model of how a jury functions.

Jonakait, Randolph N. The American Jury System. New Haven, Conn.: Yale University Press, 2003. A comprehensive discussion of U.S. juries, including the jury selection and decision-making processes.

Judicature 83 (May–June 2000). The entire issue of this journal is dedicated to an examination of the twenty-first-century American jury.

Neubauer, David W. America’s Courts and the Criminal Justice System, 9th ed. Belmont, Calif.: Wadsworth, 2007. A classic political science textbook on all the major stages present in the criminal justice process.

Useem, Bert, and Anne Morrison. Prison State: The Challenge of Mass Incarceration. Cambridge: Cambridge University Press, 2008. A rigorous analysis of the causes and consequences of the increase in imprisonment in the United States.

NOTES

1. Also, in many jurisdictions laws exempt persons in specific occupations (for example, doctors, members of the clergy, police officers) and in specific situations (for example, full-time students, persons over sixty-five years of age, mothers with young children at home).

2. See Taylor v. Louisiana, 419 U.S. 522 (1975), and the Jury Service and Selection Act (1968), 28 U.S.C. § 1861.

3. Michael A. Roach, “Indigent Defense Counsel, Attorney Quality, and Defendant Outcomes,” American Law and Economics Review 16, no. 2 (2014): 577–609.

4. See John P. Gross, “Gideon at 50: A Three-Part Examination of Indigent Defense in America,” report by the National Association of Criminal Defense Lawyers, March 2013, www.nacdl.org/gideonat50/ (accessed April 20, 2015); and Harvard Law Review, “Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense,” Harvard Law Review 113, no. 8 (2000): 2062–2079.

5. Marian R. Williams, “A Comparison of Sentencing Outcomes for Defendants with Public Defenders versus Retained Counsel in a Florida Circuit Court,” Justice System Journal 23, no. 2 (2002): 249–257.

6. Roach, “Indigent Defense Counsel, Attorney Quality, and Defendant Outcomes.” See also James M. Anderson and Paul Heaton, “How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes,” Yale Law Journal 122 (2012): 154–217.

7. U.S. Constitution, Fifth Amendment.

8. Hudson v. Michigan, 547 U.S. 586 (2006).

9. In Maryland v. King, 569 U.S. ____ (2013), the DNA cheek swab of Alonzo King taken at his booking for threatening a group with a shotgun matched the DNA sample collected in a rape case six years earlier.

10. The response rate for jurors can vary dramatically from jurisdiction to jurisdiction. The national average delinquency rate in 2007 was 8.9 percent. In Massachusetts, the delinquency rate is only 6.3 percent, meaning that around 94 percent of people statewide report for jury duty when summoned. By comparison, in Harris County (Houston), Texas, the district clerk reported in 2009 that only 20 percent of those summoned for jury service actually respond or report to serve. See Jonathan Saltzman, “Law’s Long Arm Finds Shirkers of Jury Duty” Boston Globe, October 5, 2009,

11. Dan Morse and Robert Barnes, “Chief Justice Roberts Reports for Jury Duty in a Maryland Court,” Washington Post, April 15, 2015, www.washingtonpost.com/local/crime/chief-justice-roberts-reports-for-jury-duty-in-a- maryland-court/2015/04/15/8f6d410c-e37d-11e4-b510-962fcfabc310_story.html (accessed April 23, 2015).

12. Ibid. See also Russell Berman, “Chief Juror of the United States: John Roberts Reports for Jury Duty in Maryland,” The Atlantic, April 18, 2015, www.theatlantic.com/politics/archive/2015/04/chief-juror-of-the-united-states/390819/ (accessed April 25, 2015).

13. Morse and Barnes, “Chief Justice Roberts Reports for Jury Duty.”

14. Batson v. Kentucky, 476 U.S. 79 (1986).

15. J. E. B. v. Alabama, 511 U.S. 127 (1994).

16. Daniel Wise, “‘Batson’ Protection Extended to Jews,” National Law Journal, April 28, 1997, A10; and Victoria Slind-Flor, “Illegal to Exclude Gays from Jury,” National Law Journal, August 26, 1996, A11.

17. Miller-El v. Dretke, 545 U.S. 231 (2005).

18. Zeninjor Enwemeka and Zoë Sobel, “A Look at the Dzhokhar Tsarnaev Jury,” WBUR News, April 8, 2015, www.wbur.org/2015/03/03/tsarnaev-boston-marathon- bombing-jury-profiles (accessed September 15, 2015).

19. Ibid.

20. U.S. Constitution, Sixth Amendment.

21. Art. III, §2, cl. 3. The Sixth Amendment as well requires that the impartial jury shall be “of the State … wherein the crime shall have been committed.”

22. Skilling v. United States, 561 U.S. 358 (2010), at 378-9.

www.boston.com/news/local/massachusetts/articles/2009/10/05/massachusetts_cracks_down_on_jury_duty_shirkers/ (accessed September 15, 2015); see also Loren Jackson, “Reporting for Jury Service Matters,” Houston Chronicle, September 13, 2009, www.chron.com/disp/story.mpl/editorial/outlook/6617164.html (accessed September 15, 2015).

23. In re Tsarnaev, 775 F.3d 457 (1st Cir. 2015).

24. Ibid.

25. Ethan J. Leib, “A Comparison of Criminal Jury Decision Rules in Democratic Countries,” Ohio State Journal of Criminal Law 5 (2008): 629–644, at 642.

26. Ibid.

27. Masha Gessen, “Opening Statements Made in Boston Marathon Bombing Trial,” Washington Post, March 4, 2015, www.washingtonpost.com/news/post- nation/wp/2015/03/04/openingstatements-made-in-boston-marathon-bombing/ (accessed September 15, 2015).

28. Katharine Q. Seelye and Richard A. Oppel Jr., “Opposing Pictures of Tsarnaev at Boston Marathon Bombing Trial,” March 4, 2015, www.nytimes.com/2015/03/05/us/boston-bombing-trial-opens-almost-two-years-after- attack.html (accessed September 15, 2015).

29. Ibid.

30. See Richard Willing, “‘CSI Effect’ Has Juries Wanting More Evidence,” USA Today, August 5, 2004, http://usatoday30.usatoday.com/news/nation/2004-08-05-csi- effect_x.htm (accessed September 15, 2015).

31. Ibid.

32. N. J. Schweitzer and Michael J. Saks, “The CSI Effect: Popular Fiction about Forensic Science Affects Public Expectations about Real Forensic Science,” Jurimetrics 47 (Spring 2007): 357.

33. Deborah R. Basking and Ira B. Sommers, “Crime-Show-Viewing Habits and Public Attitudes toward Forensic Evidence: The ‘CSI Effect’ Revisited,” The Justice System Journal 31, no. 1 (2010): 97–113.

34. Donald Shelton, “The ‘CSI Effect’: Does It Really Exist?” NIJ Journal 259 (2008): 1–7.

35. Eric Levenson and Hilary Sargent, “The Prosecution’s and Defense’s Closing Arguments, in Conversation,” Boston.com, April 6, 2015, www.boston.com/news/local/massachusetts/2015/04/06/the-why-dzhokhar-tsarnaev-

focus-closing-statements/mSQqqluSH5FJwTP1g9KxfK/story.html (accessed April 23, 2015).

36. Ibid.

37. Stewart M. Powell, “Moussaoui’s Judge Is Asserting Control,” Houston Chronicle, June 30, 2002.

38. Ibid.

39. Eric M. Weiss, “At U.S. Urging, Court Throws Lamberth off Indian Case,” Washington Post, July 12, 2006.

40. Ibid.

41. Lynne ForsterLee and Irwin A. Horowitz, “The Effects of Jury-Aid Innovations on Juror Performance in Complex Civil Trials,” Judicature 86, no. 4 (2003): 184–190.

42. Tamar Jacoby with Tim Padgett, “Waking Up the Jury Box,” Newsweek, August 7, 1989, 51.

43. “Jurors May Question Witnesses during Trial, Appeals Court Rules,” Wall Street Journal, August 6, 1992. For an excellent study of this general subject matter, see Larry Heuer and Steven Penrod, “Juror Notetaking and Question Asking during Trials,” Law and Human Behavior 18 (1994): 121–150; and Heuer and Penrod, “Increasing Juror Participation in Trials through Note Taking and Question Asking,” Judicature 79 (1996): 256–263.

44. See Shari Seidman Diamond and Judith N. Levi, “Improving Decisions on Death by Revising and Testing Jury Instructions,” Judicature 79 (1996): 224–233; and Peter Annin and Tom Morganthau, “The Verdict: Death,” Newsweek, June 23, 1997, 41.

45. Helene Cooper, “Death Sentence Vacated because Study Reveals Juror Misunderstanding,” Wall Street Journal, September 28, 1992.

46. Moore v. U.S., 345 F.2d 97 (D.C. Cir. 1965).

47. Elizabeth Murray, “Donald Fell Death-Penalty Retrial Set for 2016,” Burlington Free Press, April 10, 2015, www.burlingtonfreepress.com/story/news/2015/04/10/fell- death-penalty-trial-due-in-us-court/25564925/ (accessed April 23, 2015).

48. Ibid.

49. Elizabeth Murray, “Donald Fell Case to Be Retried after 15 Years,” Burlington Free Press, March 8, 2015, www.burlingtonfreepress.com/story/news/local/2015/03/08/death-penalty-case-retried- years/24629173/ (accessed April 23, 2015).

50. Amy Pavuk, “As Anthony Jury Selection Starts Today, Those Chosen Will Put Lives on Hold,” Orlando Sentinel, May 8, 2011, http://articles.orlandosentinel.com/2011-05- 08/news/os-casey-anthony-trial-sequestration-20110508_1_jury-selection-casey- anthony-trial-anthony-case.

51. Annin and Morganthau, “The Verdict,” 41.

52. For an excellent classic study of jury behavior, see Harry Kalven Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown, 1966).

53. “Overheard,” Newsweek, October 16, 1989, 23.

54. Experimental jurors are citizens who were asked to participate in some type of jury simulation exercise. They sit as jurors for a hypothetical case (or a series of cases) designed by an academic experimenter and render a verdict. They usually are then debriefed by the experimenter conducting the study.

55. Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law (Cambridge, Mass.: Harvard University Press, 1995), 146–150.

56. James Q. Wilson, Moral Judgment (New York: HarperCollins, 1997), 91.

57. Erin York Cornwell and Valerie P. Hans, “Representation through Participation: A Multilevel Analysis of Jury Deliberations,” Law & Society Review 45, no. 3 (September 2011): 667–698.

58. J. Mark Ramseyer and Eric B. Rasmusen, “Skewed Incentives: Paying for Politics as a Japanese Judge,” Judicature 83 (2000): 195.

59. U.S. Department of Justice, Bureau of Justice Statistics, Federal Justice Statistics 2009, http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf (accessed September 15, 2015).

60. U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2013, www.bjs.gov/content/pub/pdf/p13.pdf (accessed September 15, 2015).

61. For a full compendium of data on these matters, see U.S. Department of Justice,

Bureau of Justice Statistics, http://bjs.ojp.usdoj.gov/index.cfm?ty=dca (accessed September 15, 2015).

62. Ibid.

63. “The Cost of a Nation of Incarceration,” CBS News, April 23, 2012, www.cbsnews.com/news/the-cost-of-a-nation-of-incarceration/ (accessed September 15, 2015). It costs much more to house prisoners in certain parts of the country. It cost $167,731 for each prisoner in New York City in 2012, for example">www.cbsnews.com/news/ the-cost-of-a-nation-of-incarceration/ (accessed September 15, 2015). It costs much more to house prisoners in certain parts of the country. It cost $167,731 for each prisoner in New York City in 2012, for example (see Marc Santora, “City’s Annual Cost per Inmate is $168,000, Study Finds,” New York Times, August 23, 2013, www.nytimes.com/2013/08/24/nyregion/citys-annual-cost-per- inmate-is-nearly-168000-study-says.html) (accessed September 15, 2015).

64. Precise numbers on the total number of incarcerations vary based upon survey methodology. Some studies consider only state and federal jurisdictions, excluding local governments (where data are much harder to compile); others include local numbers. Some analyses include the accused who are awaiting trial (but have not been convicted); others exclude these people from the statistics. For data and discussion, see U.S. Department of Justice, Bureau of Justice Statistics, Correctional Populations in the United States, 2013, December 2014, www.bjs.gov/content/pub/pdf/cpus13.pdf (accessed September 15, 2015).

65. Ibid.

66. Genaro C. Armas, “Number of Rearrested Former Inmates Rising,” Houston Chronicle, June 3, 2002.

67. In discussing the justification for sentences, we have borrowed from David W. Neubauer, America’s Courts and the Criminal Justice System, 9th ed. (Belmont, Calif.: Wadsworth, 2007).

68. However, according to a 1994 law passed by Congress (18 U.S.C. §§3593 and 3594), in capital cases only a jury can hand down a death sentence.

69. U.S. Department of Justice, Bureau of Justice Statistics, Probation and Parole in the United States, 2010, November 2011, www.bjs.gov/content/pub/pdf/ppus10.pdf (accessed September 15, 2015).

70. “Chris Brown: How He Logged His 1,400 Hours of Community Service,” CBS News, September 28, 2012, www.cbsnews.com/8301-207_162-57522489/chris-brown- how-he-logged-his-1400-hours-of-community-service/ (accessed September 15, 2015).

71. David Mulholland, “Judges Finding Creative Ways of Punishment,” Wall Street Journal, May 24, 1994.

72. Donna Leinwand, “Judges Write Creative Sentences,” USA Today, February 24, 2004, http://usatoday30.usatoday.com/news/nation/2004-02-24-oddsentences_x.htm (accessed September 15, 2015).

73. “News from the Sentencing Commission,” The Third Branch 19 (May 1987): 3–4.

74. Ibid., 5.

75. U.S. v. Booker, 543 U.S. 220 (2005); U.S. v. Fanfan, 543 U.S. 220 (2005).

76. “A Year after Booker: Most Sentences Still within Guidelines,” The Third Branch 38 (February 2006): 2.

77. United States Sentencing Commission, Report on the Continuing Impact of United States v. Booker on Federal Sentencing, December 2012, www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/booker- reports/2012-booker/Part_A.pdf#page=2 (accessed September 15, 2015).

78. The U.S. Sentencing Commission is an independent agency within the judicial branch of the federal government. It was created by Congress in 1984 as part of the Comprehensive Crime Control Act. The Commission’s primary responsibility is to determine federal sentencing practices, including the sentencing guidelines. For more information, see “An Overview of the United States Sentencing Commission” at http://isb.ussc.gov/files/USSC_Overview.pdf (accessed April 20, 2015).

79. U.S. Sentencing Commission News Release, “U.S. Sentencing Commission Votes to Reduce Drug Trafficking Sentences,” April 10, 2014, www.ussc.gov/sites/default/files/pdf/news/press-releases-and-news-advisories/press- releases/20140410_Press_Release.pdf (accessed September 15, 2015).

80. Ibid.

81. U.S. Sentencing Commission News Release, “U.S. Sentencing Commission Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking

Sentences,” July 18, 2014, www.ussc.gov/sites/default/files/pdf/news/press-releases- and-news-advisories/press-releases/20140718_press_release.pdf (accessed September 15, 2015).

82. David Stout, “Watch President Obama Interview The Wire Creator David Simon,” Time, March 27, 2015, http://time.com/3761066/obama-the-wire-david-simon/ (accessed September 15, 2015).

83. Ibid.

84. Jess Bravin and Gary Fields, “House Panel to Prove U.S. Judge,” Wall Street Journal, March 12, 2003.

85. Neal B. Kauder and Brian J. Ostrom, “State Sentencing Guidelines: Profiles and Continuum,” report by the National Center for State Courts, July 2008, www.ncsc.org/~/media/Microsites/Files/CSI/State_Sentencing_Guidelines.ashx (accessed September 15, 2015).

86. Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004).

87. Richard S. Frase, “State Sentencing Guidelines: Still Going Strong,” Judicature 78 (1995): 177.

88. Tracey Kaplan, “Voters Overwhelmingly Ease Three Strikes Law,” San Jose Mercury News, November 6, 2012, LexisNexis Academic.

89. 18 U.S.C. § 3624.

90. John J. DiIulio Jr., “Keeping Crime on the Run,” Blueprint Magazine, September 1, 2000, www.dlc.org/ndol_ci.cfm?contentid=2153&kaid=119&subid=213.

91. U.S. Department of Justice, Bureau of Justice Statistics, Federal Justice Statistics: Summary Findings, http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=1# (accessed September 15, 2015).

92. These data were reported in 2003 by the U.S. Department of Justice, www.ojp.usdoj.gov/bjs/sent/html and www.ojp.usdoj.gov/bjs/fed/html.

93. A petition for habeas corpus is a civil petition by either a state or a federal prisoner, usually filed after he or she has been convicted and has had that conviction upheld by an

appellate court. The petition does not focus on whether the evidence supported a conviction but instead challenges the constitutionality of various police, lawyer, or judicial practices that supposedly violated the rights of the defendant.

94. McCleskey v. Zant, 499 U.S. 467 (1991).

95. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2013— Statistical Tables, December 2014, www.bjs.gov/content/pub/pdf/cp11st.pdf (accessed September 15, 2015).

96. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2013— Statistical Tables, July 2013, www.bjs.gov/content/pub/pdf/cp11st.pdf (accessed September 15, 2015).

97. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment Statistics: Summary Findings,www.ojp.usdoj.gov/bjs/cp.htm (accessed September 15, 2015).

98. Amnesty International, “The Death Penalty in 2008,” www.amnesty.org/en/death- penalty/death-sentences-and-executions-in-2008.

99. “Report: Executions Doubled in 2001,” Houston Chronicle, April 10, 2002.

100. Chris Hogg, “China Executions Shrouded in Secrecy,” BBC News, December 29, 2009, http://news.bbc.co.uk/2/hi/asia-pacific/8432514.stm (accessed September 15, 2015).

101. CBS News, “Death Penalty Discrimination,” February 11, 2009, www.cbsnews.com/2100-201_162-550986.html.

102. Jim Dwyer, Peter Neufeld, and Barry Scheck, “When Justice Lets Us Down,” Newsweek, February 14, 2000, 59.

103. Don Babwin, “Advocate Becomes Opponent: Governor Could No Longer ‘Play God,’” Houston Chronicle, January 14, 2003.

104. “Official Urges Maryland to Abolish Death Penalty,” Houston Chronicle, January 31, 2003.

105. Mark Berman, “There Are 18 States without the Death Penalty. A Third of Them Have Banned It since 2007,” Washington Post, April 30, 2014,

www.washingtonpost.com/news/post-nation/wp/2014/04/30/there-are-18-states-without- the-death-penalty-a-third-of-them-have-banned-it-since-2007/; Theodore Schleifer, “Nebraska Becomes First Conservative State to Outlaw Death Penalty in 40 Years,” CNNPolitics, May 27, 2015, www.cnn.com/2015/05/27/politics/nebraska-outlaw-death- penalty/ (accessed September 15, 2015); and Theodore Schleifer, “Nebraska Becomes First Conservative State to Outlaw Death Penalty in 40 Years,” CNNPolitics, May 27, 2015, www.cnn.com/2015/05/27/politics/nebraska-outlaw-death-penalty/ (accessed September 15, 2015).

106. The June 12, 2000, issue of Newsweek carried a series of articles about the current status of the death penalty, DNA testing, and the response of the public and the courts to these phenomena. See also Mark Miller, “A Life or Death Gamble,” Newsweek, May 28, 2000, www.newsweek.com/life-or-death-gamble-160063 (accessed September 15, 2015).

107. David Grann, “Trial by Fire: Did Texas Execute an Innocent Man?” The New Yorker, September 7, 2009, www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann? currentPage=all (accessed September 15, 2015).

108. Gallup, “Death Penalty,” www.gallup.com/poll/1606/death-penalty.aspx (accessed September 15, 2015).

109. 536 U.S. 304 (2002).

110. 543 U.S. 551 (2005).

111. “O’Connor Rethinks Death Penalty Justice,” Houston Chronicle, July 5, 2001.

112. Katharine Q. Seelye, “Dzhokhar Tsarnaev Gets Death Penalty in Boston Marathon Bombing,” May 14, 2015, New York Times,www.nytimes.com/2015/05/16/us/dzhokhar- tsarnaev-death-sentence.html (accessed May 15, 2015).

113. Associated Press, “Boston Marathon Bomber Says He’s Sorry for the First Time,” June 24, 2015, New York Times,www.nytimes.com/aponline/2015/06/24/us/ap-us- boston-marathon-bombing.html (accessed June 25, 2015).

114. Miranda v. Arizona, 384 U.S. 436 (1966).