Bail Decisions Based on Algorithms

The New York Times has this interesting report on using algorithms to make bail determinations. From the article:

Setting bail is a difficult task for judges. They must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out on the next court date.
Now comes help in a distinctly modern form: an algorithm. 

After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence. 

. . . 

The Arnold assessment has been met with some skepticism because it does not take into account characteristics that judges and prosecutors normally consider relevant: the defendant’s employment status, community ties or history of drug and alcohol abuse. Instead, after crunching data on one and a half million criminal cases, researchers found that fewer than 10 objective factors — basically age, the criminal record and previous failures to appear in court, with more recent offenses given greater weight — were the best predictors of a defendant’s behavior. Factoring in other considerations did not improve accuracy.

Bail determinations are an important, but often overlooked step of the trial process. If somebody is required to post bail, that person may be taken into custody if he or she cannot afford it. The result is that this person will face higher pressure to go to trial quickly or reach a hasty resolution of their case in order to get out of custody. Charlie Gerstein notes the pressure that a bail determination can induce on plea bargain in his article, Plea Bargaining and the Right to Counsel at Bail Determination.

Given the substantial impact that a bail determination may have on the pretrial and trial process, I am happy to see steps being taken to make decisions on bail more accurate. The article notes that in a jurisdiction where the Arnold assessment has been adopted, jail populations have decreased due to fewer instances of requiring bail, but crime has not increased.

It will be interesting to see if more jurisdictions adopt and apply formulas in deciding to require bail. If more jurisdictions turn to algorithms, hopefully the positive results reported by the Times will be reflected on a wider scale.

Hill on Inmates' Need for Federally Funded Lawyers

Over the weekend, I noticed that the first issue of Volume 62 of the UCLA Law Review is now available online. While there are several articles that I am planning to read in the near future, I want to highlight a comment by a former classmate of mine.

Tasha Hill's comment, Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights, appears in this issue of the UCLA Law Review and can be read and downloaded in full here. You can find Hill's previous work on sexual abuse in California prisons here. In this most recent paper, Hill delves into a sorely underdiscussed aspect of indigent representation. Hill's writing is approachable and illuminating, and should be of interest to readers in all fields -- and particularly those working in the fields of criminal law and prison law. Here is the abstract:

The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation to protect these people whom it has chosen to strip of the ability to protect themselves and to provide for inmates’ other “basic human needs” such as adequate nutrition and housing.  

The only legal avenue of redress available for inmates to enforce their constitutional rights lies with the courts. But in recent decades, inmates’ access to the courts has been undermined by Congressional acts (principally the Prison Litigation Reform Act) and Supreme Court decisions (such as Casey and Iqbal), leading to a sharp reduction in the success rate of meritorious inmate Constitutional claims. Additionally, pro se inmates, who file the vast majority of claims, have substantially lower success rates in civil rights cases than do represented inmates. 

I therefore propose that a new program called Prison Lawyers be designed and implemented. Prison Lawyers would work for the state, much like public defenders do, and would guide inmates through increasingly complicated administrative grievance processes to achieve exhaustion. Should grievances not be successfully settled, Prison Lawyers would then help inmates file civil rights claims in federal courts. This system would potentially save the state money by reducing the courts’ burden in processing pro se inmate civil rights claims, and would ensure the enforcement of constitutional carceral conditions.

Hill suggests that the the Ninth Circuit could fund a "circuit-wide" Prison Lawyers program that could take up the task of representing inmates who file lawsuits over poor conditions and mistreatment. Noting that most inmate constitutional claims are filed in federal courts, Hill argues that as few as 68 lawyers could take on this role based on the current number of federal cases inmates file. While this program would need to be funded, Hill argues that the program could save money in the long term by creating stronger incentives for prisons to comply with constitutional requirements.

There are indeed some unanswered questions, and Hill recognizes this. It is unclear what the Prison Lawyers program would do to the number of lawsuits filed. Prisoners who may have formerly refrained from filing lawsuits may think that their prospects of success are improved if they are represented by an attorney. This may lead to a heavier caseload for prison lawyers than current numbers suggest.

At the same time, the costs such a program could save shouldn't be dismissed. Beyond long-term savings that may result from changing prison conditions, the Prison Lawyers program could be a filtering device that could weed out frivolous and malicious claims before they reach the courts. Attorneys could inform their clients why a claim lacks merit or redirect their clients' efforts toward proper administrative channels. This could lead to a twofold reduction in workloads: it would lessen the burden on the courts that would have handled and rejected these claims, and of government attorneys who would have responded to these claims.

Hill sheds light on an under-scholared area of law and makes concrete proposals. People working in the field of prison law should take note of this comment.

Federal Court Rules California's Death Penalty is Unconstitutional

The case is Jones v. Chappell. From the LA Times:

A federal judge in Orange County ruled Wednesday that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. 

U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.

. . . 

Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.

. . .

The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said.

The full opinion is available here.

Judge Carney notes that delays at various steps of the appeal process contribute to the lengthy nature of death penalty reviews. Defendants who are sentenced to death typically need to wait about three years for appellate counsel to be appointed, and the briefing process tends to take an additional four years due to the complexity of death penalty case files. Contributing to the delay is a lack of attorneys to represent defendants in state habeas proceedings.

Judge Carney notes that the purposes of California's punishment system are to deter offenders and to obtain retribution for wrongdoing. But Judge Carney argues that offenders who commit a capital crime are so likely to die while waiting on death row, that California's death penalty "is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain." And any retributive purposes that the death penalty is supposed to fulfill are defeated if only an arbitrary few defendants are executed.

The Times notes that this case can be appealed, and I suspect that it will be. The Times also notes that this is the first time a federal court had held a death penalty scheme unconstitutional because of the procedural delays inherent to the system. Because of this novel basis for finding California's system unconstitutional, I am not sure how this case will turn out on appeal.

Whatever the outcome of this case will be in the courts, I suspect that it will get the attention of California's government. Essentially all of Judge Carney's reasons for finding California's death penalty unconstitutional stem from an underfunded and under-resourced system of appellate representation. By devoting more resources to death penalty appeals, many of the delays that Judge Carney discusses could be ameliorated -- at least for future cases.

But the government would probably also face some additional legal obstacles, most notably, making the chemicals for lethal injection available. My understanding is that the chemicals needed for lethal injection are not available for executions in California, since the legality of these chemicals has been tied up in litigation since 2006. To make the death penalty a feasible prospect for those convicted of capital crimes, this litigation will need to either be wrapped up or sidestepped through the use of alternate execution methods or chemicals.

Even if California's government manages to address some of the delays that Judge Carney discusses in his opinion, the state may need to do quite a bit more to make this new constitutional argument go away, especially if the Ninth Circuit is receptive to the logic of Judge Carney's opinion.

Forget Cruel and Unusual Punishment, Waterboarding Violates the Establishment Clause...

...at least if Sarah Palin is in charge of things. The Hill reports on a speech Palin gave before the National Rifle Association annual meeting on Saturday. From The Hill:

“They obviously have information on plots to carry out Jihad,” she said at the National Rifle Association (NRA) annual meeting on Saturday evening, referring to prisoners. "Oh, but you can’t offend them, can’t make them feel uncomfortable, not even a smidgen. Well, if I were in charge, they would know that waterboarding is how we baptize terrorists.”

There's a video of it too!





Palin gets to the quote above at around the 6:45 mark, in case you don't have the time to watch the full video.

The First Amendment prohibits, among other things, Congress from making a law "respecting an establishment of religion." I imagine that forced baptism of prisoners would run afoul of this constitutional protection.

UPDATE

The American Conservative criticizes Palin's remarks, calling her statement "sacrilegious."