Sentencing Is Symbolic: Sentences for First Time Burglars Don’t Significantly Affect Recidivism

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Human nature is hard to change, so hard that even burglary sentences don’t have much effect upon  defendants’ future conduct.

Georgia uses a system of discretionary sentencing where most crimes carry a broad range of potential punishments.  For instance, a first time burglary can carry anywhere from two years of probation to 25 years in a state prison.  Trial judges have almost unbridled authority to impose any sentence in this range.

How to treat first time burglars is arguably the most contested criminal justice issue in the Henry County Superior Court.  In the last decade of his 24-year tenure as District Attorney, Tommy Floyd adopted a restrained approach towards first time burglars.  The “standard sentence” became five years probation with 60 to 120 days in a probation detention center.  Some first time burglars were able to avoid any jail time beyond their initial arrest.  Floyd’s approach was unusual and was more lenient than that of Democratic district attorneys in neighboring counties.  While Floyd’s prosecutors recommended the detention center for first time burglaries, prosecutors in DeKalb and Clayton County typically asked for prison time.  (Any custodial sentence of one year or more in a felony case is typically served in prison, shorter sentences are served in jails or detention centers).  The Superior Court of Henry County was a strangely enlightened place.

In the last decade, there has been push back against Floyd’s gentle ways.  Judge Brian Amero, a former Clayton County prosecutor, took the bench in 2006.  His “standard sentence” for a first time burglary is one year in prison, followed by four years probation.  Early on, Amero largely deferred to Floyd’s sentencing recommendations.  In 2007, the majority of Judge Amero’s first offender sentences for burglary did not involve prison time.  However, by 2011, Amero had become more confident in his sentencing philosophy, almost half of his first offender burglary sentences involved prison time.  Floyd’s successor as district attorney, Jim Wright, shared Judge Amero’s philosophy.  Under Wright, the standard plea offer for a first offender burglary involved a year in prison.  The current District Attorney, Darius Patillo, appears to be continuing Wright’s practice.

The competing approaches to first offender burglary sentences have created an intriguing natural experiment.  Henry County judges imposed at least 212 first offender sentences for burglary in cases filed between January 1, 2007 and December 31, 2011.  Virtually all of these sentences were imposed at least five years ago.  The structure of first offender sentences makes it possible to rigorously compare how defendants given different types of sentences have fared.

Under Georgia law, any person who is accused of burglary is eligible for first offender treatment if they have never been convicted of a felony and have not previously received first offender treatment.  This makes its possible to ballpark the criminal history of defendants given first offender sentences.  A typical felony sentence does not specify the offender’s criminal history.  A long sentence might indicate either an unusually severe offense or a substantial criminal history.  However, any time a first offender sentence is imposed, it is very likely that the defendant has not been convicted of a felony and has not received first offender treatment in the past.  In other words, we know that defendants who received first offender sentences had relatively limited criminal histories.

Every one of the first offender sentences for burglary entailed at least five years of probation.  This makes it easy to measure recidivism.  If a probationer is caught committing a crime or violating the terms of his probation, his probation officer initiates a probation revocation hearing.  When the violations are sufficiently serious, the probation officer also seeks an “adjudication of guilt,” which involves a felony conviction on the original felony charge.  If the judge finds that a first offender has violated his probation, he can adjudicate the defendant guilty and/or sentence the defendant up to the statutory maximum for burglary, which is generally 25 years.  If the judge imposes incarceration, he is required to give the defendant credit for any time served on probation.  Thus, a first offender who violated his probation after two years could receive up to 23 years in prison: the 25 year maximum minus the two years already served on probation.

I used probation revocation proceedings to gauge the success of the judicial system in rehabilitating first offenders.  A case was considered a failure if any of three things occurred: (1) the defendant was adjudicated guilty of burglary and became a convicted felon; (2) the defendant received a custodial sentence of 12 months or more because of a new offense or violation of probation; or (3) the defendant absconded from probation and has not yet been apprehended.  A case was considered a “success” if none of these three things happened.  Many “successful” probationers did violate their probation, but their violations were minor enough that the judge let them keep their first offender status and did not sentence them to 12 months or more.

I sorted the first offenders into three categories.  First offenders who were not sentenced to incarceration, those who received incarceration short of prison, and those who received a year or more in a state prison.  The most common sentence, “incarceration short of prison” typically involved assignment to a detention center for 60-120 days, assignment to a boot camp program for 90 days, or between 60 and 120 days in the county jail.  Most offenders in this category spent about 60 days incarcerated before beginning their probation.  The “no incarceration” category included suspended custodial sentences.  The outcomes for each category were as follows

No Incarceration Incarceration short of prison One plus year of prison Totals
Successes 40 68 15 117
Failures 30 46 13 86
Total 70 114 28 212

Here are the success rates of each category, as well as the standard deviation attributable to sampling error:

No incarceration                               57.1% +/- 5.9%

Incarceration short of prison         59.6% +/- 4.6%

Prison                                                   53.6% +/9.4%

Overall                                                  55.1% +/-4.2%

Superficially, these results suggest that the most effective sentence is incarceration short of prison.  These defendants were 4 to 5% more likely to successfully complete a five year (or longer) period of supervision than defendants who went to prison.  However, these results are nowhere near statistical significance.  The standard deviation for each of the three subsets was at least 4.6%.  This means the plausible ranges for the three figures overlap significantly.  When using sampling, the true value is within one standard deviation of the sample mean 66% of the time, and within two standard deviations 95% of the time.  Thus, there is a 95% chance that the true success rate for “incarceration short of prison” is between 50.2 and 69.4%.  Any value within that range is plausible.  Nor can we reduce the sampling error by adding more observations.  Judge Amero took the bench in 2007, and we need a five year observation period to gauge whether a defendant succeeded on probation.  We might scrounge a few more cases charged in late 2006 and early 2012, but this would not materially reduce the sampling error.

The takeaway from the data is that sentences probably don’t have a big effect on rehabilitation.  This is not a trivial finding.  A year in prison costs taxpayers $23,000.  Two months in a detention center cost about $4,000.  The detention center is probably a more effective punishment, and there is no evidence at all that prison lowers recidivism rates beyond what the detention center achieves.  Though the data are murky, they buttress my respect for an old-fashioned type of conservatism, one I have often seen Judge Crumbley display on the bench.  Human nature is imperfect and stubborn.  Once a defendant gets out of jail, the best predictor of his actions are his temperament, family, and associates.  If prison isn’t demonstrably effective, why not try something else first?  Burglary is a poor predictor of murder, and the hardened criminals will be back in court soon enough.

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Warning: You Are Probably Being Recorded

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Today, I was in Judge Blount’s courtroom for a probation revocation.  I watched a hearing involving an inmate (not my client) who is serving a sentence for battery.  Judge Blount had ordered him not to contact the victim.  He had other plans and called her roughly 70 times from the jail.  The prosecution had an airtight case.  Not only were there call logs of every number he had called using his jail account, there were high quality audio recordings of each call.  Some people in the audience were shocked that every call from a jail inmate was recorded.  I was not.  Recording equipment is ubiquitous.  As I type this, there are five video cameras within five feet of me.  All of them were included in phones, computers, and tablets I purchased with no intention of buying a video camera.  Never before have so many people recorded so many things so cheaply.

Henry County’s extensive surveillance apparatus has even snagged attorneys.  Recently, a lawyer was jailed for contempt of court after falsely telling a judge that she had a scheduling conflict.  Courthouse video footage showed her filing documents in the clerk’s office during her alleged conflict.  Every court in McDonough has an extensive video surveillance system.  The McDonough City Court also has microphones in its common areas.  Almost every court proceeding is audio taped either by the court reporter or, if there is no court reporter, by the court itself.

Here is a list of other things which are typically recorded:

  1. Virtually every patrol car in Henry County has a “dash cam” that captures a roughly 45 degree arc centered on the middle of the car’s hood.
  2. Virtually every patrol car in Henry County has a microphone and/or video camera which records what suspects do after they are taken into custody. Sometimes, officers will leave defendants in the patrol car alone with their cell phone in hopes of obtaining incriminating statements.
  3. Almost all common areas at the jail are monitored by digital video. This includes the booking area.  It can be useful to pull this tape in DUI cases.
  4. All 911 calls are audio recorded.
  5. All communications between officers in the field and dispatch are audio recorded.
  6. Many officers who are trained to investigate DUIs have cameras mounted in the flash lights they use in these investigations. The flash cams can also record audio.
  7. Some interview rooms at the police precincts have audio and video recording equipment. Others, apparently, do not.
  8. Some gas stations and other businesses have street facing cameras that capture which cars passed a given location.
  9. Virtually any big box store has dozens of cameras within the store and a few monitoring the parking lot.
  10. If your cell phone is GPS enabled, there is a fairly precise record of its location. Even if it is not GPS enabled, your carrier has a record of which towers it communicated with.  This record can be used to establish the phone’s location within 5 or 10 miles.

Some things still are not recorded.  Relatively few Henry County officers have body cameras.  Accordingly, if an officer comes into your house, or is canvassing a street for witnesses, it is unlikely those interactions were recorded.  As previously noted, some interviews of criminal suspects still are not recorded.

Overall, I’m glad recording equipment has become so pervasive.  Early in my practice, many criminal defendants were subjected to “swearing contests” where criminal liability hinged on whether an officer or the suspect was telling the truth.  This is not a good situation to be in.  Many jurors (and most judges) trust police officers more than criminal defendants.  A criminal defendant who argues that a cop lied and is convicted can expect a harsh sentence.  Police officers knew this.  Some officers knew that they could get away with the occasional lie in a big case.

The ubiquity of recording equipment helps criminal defendants three ways.  First, officers who know they are being recorded are less likely to misbehave.  Second, the best way to predict a defendant’s odds of conviction is by watching a video of the incident.  After I watch a DUI or shoplifting video, I have a very good idea of what a jury will do.  Watching a video early in a case helps a client make the plea/trial decision when there is still time to accept responsibility and pursue mitigation.  Finally, juries are coming to expect that law enforcement should record most of what it does.  The absence of a video seems dubious when most jurors have a video camera in their pocket.

Finally, if law enforcement fails to collect available video evidence, this weakens the prosecution’s case.  Suppose my client is accused of a non-fatal drive by shooting.  Several sources of video might corroborate or disprove guilt.  Did any of the neighbors have video surveillance systems?  Did any of the local stores have street facing security cameras?  Could one drive to the crime scene without passing these cameras?  Did the defendant have a cell phone?  Was it GPS enabled?  Where was it at the time of the shooting?  Which towers did it communicate with?

In a murder investigation, law enforcement may run down all of these leads.  In a non-fatal case, they rarely do.  When the State has the burden of proof, its failure to collect available evidence can be the best path to an acquittal.

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Gaming the Constitution: the Tactics of the Henry County K-9 Unit

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Interstate 75 is one of the busiest North-South routes in the United States.  It is also a major drug trafficking corridor.  The Henry County K-9 Unit uses drug-sniffing dogs to interdict drugs on the 19 miles of interstate that pass through Henry County.  Its tactics are effective, resulting in a dozen or more drug trafficking prosecutions each year.  They are also legally dubious.

The K-9 unit has targeted black motorists driving rental cars, especially those with Florida tags.  It’s easy to identify a Florida rental car because the Florida DMV conveniently tags all rental cars with certain initial letters.    More than 50 major drug busts in Henry County have resulted from stopping motorists matching this profile.

Federal constitutional law permits a K-9 officer to conduct a “free air sniff” of the exterior of a car, so long as this occurs while a driver’s license is being checked or a citation is being written and there is not “undue delay.”  Henry County has gamed this rule.  Most Henry County patrol officers are trained in using the GBI’s computer database to check drivers’ licenses.  They have internet enabled computers in their patrol cars that can check a driver’s license in seconds.  K-9 officers do not.   Accordingly, K-9 officers have to radio motorists’ identifying information to dispatch and wait for a response.  As the Georgia Court of Appeals detailed in Bodiford v. State, the K-9 unit uses this artificial delay to conduct drug investigations:

The video of the traffic stop shows Hart standing between Bodiford’s car and his patrol car, using his shoulder-mounted radio to provide dispatch with Bodiford’s driver’s license number. After transmitting the license information to dispatch, Hart asked Bodiford whether he had any contraband in the car, such as drugs, guns, or excessive amounts of cash. When Bodiford responded negatively, Hart asked for permission to search the car. Bodiford questioned Hart as to whether he was required to consent to an automobile search and Hart explained that Bodiford had a constitutional right to refuse, but that if Bodiford refused consent, “what I’m gonna do is, I’m gonna get my dog out of the [patrol] car, run my dog around [your] car and see if he shows any positive odor response on the vehicle.” When Bodiford refused to give an unequivocal “yes” to Hart’s request for consent to search the car, the officer patted him down, instructed him to stand away from his car and next to Hart’s patrol car, and asked for and received permission to turn off Bodiford’s car.

After turning off Bodiford’s car, and approximately nine minutes into the traffic stop, Hart returned to his patrol car to retrieve his dog. Although Hart cannot be seen on camera at this point, dispatch can be heard very clearly on the radio attempting to contact Hart. Hart, however, did not respond to the dispatcher. . . Seven seconds later, as he was standing together with his dog next to Bodiford’s car, Hart responded to the radio call, telling the dispatcher, “I’m in a bad spot here.” Hart testified that his response resulted from the fact that radio service on the part of I–75 where the traffic stop was occurring was “very poor” and that “90 percent of the time” officers in that area would need to use the radio in their patrol car to speak with dispatch. Hart further explained that once dispatch was told he was in a bad spot for radio, the dispatcher would know she should make no further attempts to contact him; rather, the dispatcher would wait for Hart to contact her.

Having thus instructed dispatch not to initiate any further contact with him, Hart walked his dog around Bodiford’s car. The dog indicated that there was contraband in the car and Hart then searched the vehicle. During that search, the officer found a large quantity of cocaine located underneath a passenger-side seat. Based on this discovery, Hart arrested Bodiford.

In Bodiford,  the Court of Appeals suppressed the defendant’s drugs because the K-9 officer unlawfully prolonged a traffic stop by ignoring the dispatcher’s attempts to communicate with him.  In a 2012 case, Weems v. State, the Court of Appeals found that a Henry County K-9 officer acted illegally by continuing a drug investigation after he had finished writing a warning for a traffic offense.  The drugs in Weems were also suppressed.

Bodiford and Weems both involved fairly obvious misconduct.  However, the tactics of the K-9 unit have evolved and are now more subtle.  I recently had a case where dispatch took over 8 minutes and 30 seconds to run a driver’s license and communicate the result to the K-9 officer.  This permitted lengthy questioning of the driver during the so-called “license check.”

K-9 Unit cases are a target rich environment for aggressive lawyering   Back in 2006, I managed to obtain statistics on the race of the motorists that K-9 unit officers pulled over.  I am still shocked that they kept these statistics.  The standard Georgia traffic citation thoughtfully lists the driver’s eye color but not his race, an omission which makes it harder to prove racial profiling.   In 2006, 52% of the motorists K-9 Unit officers stopped were white.  The chief of the K-9 unit probably thought he was in the clear because a (bare) majority of the motorists his officers stopped were white.  This was ridiculous.  At the time, Henry County was roughly 30% minority, and folks who have the time and money to drive to Florida (or engage in interstate travel generally) are disproportionately white.  I made a few trips to Exit 212, and observed the race of the motorists who passed.  Roughly a quarter of the motorists who passed were black, far less than the 40-some percent of the motorists who the K-9 unit stopped.  I never used these statistics in court, (it was unclear at the time whether racial profiling was grounds for suppression of evidence), but I did get great deals in a few K-9 cases.

If you are a defendant in a K-9 unit case, a good lawyer who knows K-9’s tactics is invaluable.   The penalties for drug trafficking are severe, with a mandatory minimum of 10 years in prison for possessing 28 grams or more of cocaine or methamphetamine.  The K-9 unit consistently pushes the edge of what the constitution allows.  I doubt they still keep statistics on the race of the motorists they stop, but this could be reconstructed through pulling the videos of an officer’s stops.  This is a labor intensive project and would not be cheap.  However, a defendant with relatively modest means could subpoena not only the video of his arrest but also the dispatch tape and the computer records showing when his license was run through the GBI computer.  When analyzed together, there is a good chance these records would show that law enforcement took longer than necessary to check the defendant’s driver’s license, that the defendant was illegally detained, and that any drugs discovered during such an illegal detention must be suppressed.

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Practical Advice for Convicted Felons: Avoid Lawyers

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The man who cuts our grass charges $65.  It takes him about an hour.  The mower that he uses, an old push mower with a wide cutting area, must have cost less than $1,000.  We never ran a background check on him.  I have no idea whether he has a criminal history and frankly I don’t care.  We hired him because he quoted the best rate, and he’s done good work for five years.  If he mows six lawns a day, five days a week, he would gross $1,950 a week.  If he works eight months a year, this would be $76,000.  If he can find something else to do in the winter, his income would approach six figures.

The man who cuts our grass charges $65.  It takes him about an hour.  The mower that he uses, an old push mower with a wide cutting area, must have cost less than $1,000.  We never ran a background check on him.  I have no idea whether he has a criminal history and frankly I don’t care.  We hired him because he quoted the best rate, and he’s done good work for five years.  If he mows six lawns a day, five days a week, he would gross $1,950 a week.  If he works eight months a year, this would be $76,000.  If he can find something else to do in the winter, his income would approach six figures.

Most convicted felons make much less.  Every month, I get a few calls from convicted felons who want convictions “taken off their record.”  There’s usually a sad story behind the request.  Typically, the caller has gotten a job offer or even started a job, only to be let go after failing a background check.  I can’t really “fix” this problem.  First offender and conditional discharge sentences can be cleaned up.  However, if you are a convicted felon, your conviction is a matter of public record and cannot be expunged.  You might possibly get a pardon, though the Board rarely grants pardons until ten years after your sentence, including probation, is complete.  That means an offender sentenced to ten years of probation probably won’t get a pardon until 20 years after conviction.  Even if you are pardoned, your conviction will still show up in court records and private background checks.  Many employers will still hold this against you.

If you are a convicted felon, you should seriously consider starting your own business.  In today’s America, there is a strong prejudice against blue collar employment.  Hoards of underemployed young attorneys could make more mowing lawns.  As an example, let’s take inflation adjusted wages from early in my career:

  • Law clerk to state court judges, $25 an hour
  • Assistant public defender, $28 an hour
  • Federal appellate staff attorney, $39 an hour
  • Associate for mid-sized law firm, $44 an hour

No one should feel sorry for me.  Many law school graduates can’t find a legal industry job.  In the 16 years since I graduated, I’ve spent a total of four days unemployed.  Much of my work has been interesting and some of it important.  These early positions gave me the experience to begin my own practice and charge several times the $44 an hour I earned as an associate.  Still, it took me three years of college, three years of law school, $120,000 of family money, and six years as a lawyer before I earned a higher hourly rate than the man who mows my lawn.  Landscapers don’t have it so bad.

If you are a convicted felon trying to make it, think small.  You probably don’t have the capital to start a car dealership or even a restaurant.  But, if you are industrious and frugal, you can mow lawns, detail cars, paint houses, or install drywall.  If you get good at your trade and save several thousand dollars, you can hire other people to work for you and pay them half of what you charge.  Almost any independent contractor, even one doing unskilled work, makes more than a low-level corporate employee.  As long as you avoid licensed professions, you won’t have to pass a background check.

A surprising number of convicted felons make good money.  They tend to be people with the humility to do physical labor and the courage to strike out on their own.

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O.J. Needed A Trial Lawyer, But His Case Was Unusual

Last weekend, I watched the first four episodes of The People v. O.J. Simpson on Netflix.  It was compelling TV and deserves every one of the many awards it has won.  I can’t say the show was completely accurate because I have no idea what the players in the O.J. case said in private.  But I can say it is a worthy and informative study of my craft.

One of the biggest decisions in criminal defense is whether to plead guilty or go to trial.  In the series, this choice is personified in contrast between Robert Shapiro and Johnny Cochran.  Shapiro is a “fixer of things,” a plea lawyer who cultivates good relations with police and prosecutors.  He saves O.J. an embarrassing “perp walk” because the district attorney trusts him to surrender O.J. Simpson at an agreed time.  Things go downhill quickly when O.J. flees in his friend’s Ford Bronco rather than surrender.  Shapiro is embarrassed and holds an ill-advised press conference where he reads an inculpatory letter that O.J. wrote.

Cochran is the antithesis of a plea lawyer.  He made his reputation and his fortune suing police for excessive force.  He is brash, unapologetic and enjoys confrontation.  At first, Cochran avoids the case, thinking it is unwinnable.  But when he sees the depth of support for O.J. in the black community and learns that the case will be tried in downtown Los Angeles, where blacks constitute roughly half of the jury pool, he becomes interested.

In the series, Shapiro appears out of his depth.  One of his first acts is to ask O.J. whether he is guilty.  (I rarely do this though clients are free to confide).  Next, he subjects O.J. to a polygraph, which O.J. badly fails.  Shapiro accuses officers of racism in media interviews, but then unctuously denies “playing the race card” to Judge Ito.  Cochran sees things more clearly.  He understands that, because the prosecution has overwhelming physical evidence, his only chance of victory is to completely discredit law enforcement.  He truly believes that law enforcement has a shameful history of institutional racism, and he uses this as a rhetorical cudgel to destroy the police’s credibility.

Cochran was the better lawyer for O.J. Simpson’s case, but there is plenty of room in criminal defense for Robert Shapiro types.  Murder cases have unique dynamics.  Absent compelling evidence of self-defense, the prosecution will usually demand a life sentence.  This doesn’t leave much room for negotiation.  If I were charged with murder, I would be almost indifferent between a life sentence and the death penalty.  Either sentence would destroy my human potential.

In Henry County, only 3 or 4% of felony cases result in a jury trial.  About 20% of all felony cases are dismissed, and the rest are resolved by guilty pleas, sometimes to reduced charges.  The consequences of losing a jury trial range from bad to catastrophic.  Many cases involve overwhelming evidence of guilt.  Few defendants have the resources of O.J. Simpson, and even he caught a huge break.  If the prosecution had tried him in Santa Monica, with a heavily white and affluent jury pool, he almost certainly would have been convicted.  Most non-capital defendants would do better to hire Shapiro than Cochran.

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Georgia’s Patchwork Justice System

Georgia’s Patchwork Justice System

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In Georgia criminal justice, every county is unique, and the differences between counties can be huge.  Georgia law gives judges vast discretion over sentences and prosecutors even greater power over what charges to bring.  Accordingly, virtually all misdemeanors can be punished by anything between a token fine and 12 months in the county jail.  Even a minor speeding ticket can theoretically put you in jail for 12 months.  While all the judges I know would rather fine ordinary speeders than put them in jail, when it comes to more serious misdemeanors, there are night and day differences between the sentences they impose.

The best statistics on Georgia misdemeanor sentences come from the Department of Community Affairs, which conducts a monthly jail census of every Georgia county.  The jail census categorizes inmates into four groups: those serving state sentences, those serving county sentences, those awaiting trial, and other.  State sentences, which involve one or more years in prison, can only be imposed in felony cases.  Statewide, roughly 28,000 such sentences are imposed each year.   Defendants who receive state sentences are held in a county jail until picked up by state authorities.  The jail census figures for state sentences are typically small, because they include  only those defendants who have received state sentences but have yet to be transferred to the state system.  Any jail sentence of 12 months or less is deemed a county sentence .  While judges sometimes impose county sentences in felony cases, the far greater volume of misdemeanor cases (there are roughly eight misdemeanor cases for each felony case) means that county sentences closely track misdemeanor sentencing patterns.

 

Here are the county sentence numbers for January 2017.  To control for population differences, I listed the number of county inmates per 1,000 residents.

COUNTY                              Inmates Serving County Sentences/

                                                1,000 population

Clayton 2.88
Henry 1.73
Hall 1.60
Douglas 0.61
Spalding 0.61
Walton 0.59
Newton 0.52
Cobb 0.37
Rockdale 0.35
DeKalb 0.34
Forsyth 0.22
Fulton 0.11
Gwinnett 0.09

The diversity between counties is astounding.  Clayton County’s rate is 31 times Gwinnett’s.  Much of this difference is driven by disparities in bonding practices.  In “front-end systems,” many misdemeanor defendants are given higher bonds than they can afford, In practical terms, whether a county has “high” bonds is determined both by the dollar amount of the bonds and the means of the county’s defendants.  Defendants in front-end systems often serve most or all of their jail sentence before they are found guilty.  This inflates the number of inmates categorized as “awaiting trial.”

I call counties with more lenient bonding practices “back-end systems.”  You could also call them deliberative or court centered systems.  Other things constant, back-end systems have higher rates of county sentences because defendants spend their jail time “under a county sentence” rather than “awaiting trial.”  Back-end systems are better than front-end systems, because the jail time is more likely to come after the defendant has been found guilty, and money has less influence on defendants’ sentences.  Front-end systems effectively transfer judicial power to arresting officers but deter the affluent and the influential from speaking out by letting them buy favorable treatment.  They also enrich politically connected bondsmen.

We can examine counties’ bonding practices by looking at the ratio between inmates awaiting trial and those who are serving any kind of sentence.  The disparities are eye-popping.

County                                                         No. Awaiting Trial/

                                                                        Serving County Sentence

Clayton 0.22
Henry 0.54
Hall 1.46
Forsyth 5.07
Walton 4.85
Newton 5.75
Cobb 5.52
DeKalb 6.08
Douglas 6.52
Spalding 9.41
Rockdale 10.81
Gwinnett 18.21
Fulton 18.30

 

The Clayton County number is murky because Clayton County categorized an outsized number of inmates as “other.”  It is unclear why these people are in jail.  Excluding Clayton County, Henry and Fulton County differ by a factor of 37.  This is bigger than the difference in per capita income between the U.S. and India.   It cannot possibly be explained by economic differences between the counties, because their poverty rates are within a factor of 2.  The major difference is that Fulton County has a front-end system and Henry County has a court centered system.

We can also use the jail census to estimate counties’ total misdemeanor incarceration rates.  To do this, we add the number of inmates serving county sentences to the number of inmates awaiting trial on misdemeanor charges.  Unfortunately, the “awaiting trial” category includes inmates facing felony charges.  However, because there is also a figure for inmates under a state sentence, we can get a decent handle on how many of each counties’ inmates are charged with felonies.  My experience suggests that, in the aggregate, defendants charged with felonies spend about two days in jail awaiting trial for every day awaiting transfer to the state system.  (Defendants who can’t post bond spend more than a third of their stay in the county jail awaiting trial, but roughly half of felony defendants do post bond).  Thus, the number of misdemeanor defendants awaiting trial roughly equals the number of defendants awaiting trial minus twice the number of inmates serving state sentences.  The precise coefficient doesn’t make a huge difference because, in most counties, the number of state-sentenced inmates is relatively small.

Here are the total misdemeanor incarceration rates:

County                                 Misdemeanor Inmates per 1,000 people

Spalding 4.80
Rockdale 4.09
Douglas 3.82
Hall 3.61
Clayton 3.40
Henry 2.44
Walton 2.16
DeKalb 1.99
Cobb 1.90
Fulton 1.82
Newton 1.56
Gwinnett 1.56
Forsyth 0.28

 

The procedural differences between counties dwarf the differences in misdemeanor jail time per capita.  The figure for Forsyth is clearly an outlier, and likely reflects the massive number of inmates in Forsyth serving state sentences, rather than anything going on in misdemeanor cases.  (The Forsyth County Superior Court likely had a term of court begin just before the jail census, and imposed a large number of state sentences at that time).  Excluding Forsyth county, misdemeanor sentences differed only by a factor of three.

Conversely, even excluding the dubious Clayton County number, our measure of bonding practices differed by a factor of 37, almost 10 times the difference in misdemeanor incarceration rates.

The numbers teach three important lessons about Henry County criminal justice.  First, the vast majority of misdemeanor defendants in Henry County are able to post bond.  Second, many defendants post bond only to return to jail.  Indeed, roughly 67% of all misdemeanor jail time in Henry County occurs after the defendant posts bond.  Finally, given that Henry County has a lower crime rate than the core metro counties, but is 6th out of 13 in misdemeanor incarceration, Henry County misdemeanor sentences are somewhat harsher than those in the median metro county.

 

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Georgia’s Slow Motion Killing Machine

 

headlineimage-adapt-1460-high-georgia_death_penalty_chamber_012715-1449682703336Last night, Georgia executed Steven Spears for the 2001 suffocation death of his ex-girlfriend, Sherri Holland.  Georgia has now carried out eight executions in 2016, one more than Texas and fully 44% of the national total.  Strangely, Georgia has become the nation’s leading executor because, among states where the death penalty is common, Georgia’s procedures are uniquely inefficient.

The modern death penalty has its roots in two Georgia cases that made their way to the U.S. Supreme Court.  In 1972, the high court held in Furman v. Georgia that Georgia’s procedures for deciding which inmates were sentenced to death were so arbitrary and essentially random as to violate the constitution.  Four years later, in 1976, the Supreme Court upheld revised procedures for imposing the death penalty in Gregg v. Georgia.  However, the death penalty resumed very slowly.  Nationwide, only three executions were conducted in the 1970s, and the tenth post-Gregg execution did not occur until 1983.  By the 1990s, executions had become less rare, with 478 occurring during that decade.  There were 551 executions during the naughts.

Georgia’s creaky procedures meant its death penalty took decades to build momentum.  Georgia conducted only 9 executions during the 1990s, less than 2% of the national total and fewer executions per capita than the nation as a whole.  By contrast, Virginia, which has a smaller population than Georgia and is less conservative, executed 65 inmates during the 1990s.  However, Georgia began to catch up during the naughts, executing 23 people or 4% of the national total.  (Virginia executed 32 people during this period).  Between 2010 and 2015, Georgia conducted 14 of the nation’s 234 executions, or 6% of the total.

Most of Georgia’s executions are for decades-old crimes.  Georgia inmates executed during the past two years have spent an average of 20.3 years on death row.  This is in addition to the several years it typically takes prosecutors to obtain a conviction.  Even Spears, who refused to appeal his sentence, took over 6 years to convict and an additional 9 years to execute.

Georgia’s lethargic procedures suggest it will continue to be a leading practitioner of the death penalty for several years.  The median inmate on Georgia’s death row has been there 18 years.  Georgia’s death row features inmates sentenced in five different decades:

Decade of Death Sentence          Number

1970s                                                     1

1980s                                                     9

1990s                                                     30

2000s                                                     19

2010s                                                     7

The large cohort of inmates sentenced during the 1990s and early 2000s should be nearing the end of their appeals.  Even if Georgia juries continue to impose only a trickle of death sentences, we will have an active death penalty for at least a decade.

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