Wisconsin leads the nation in what?

I suspect the Venn diagram for people who listen to This American Life and people who read this blog is either a circle or a figure eight.  In case it is the latter, I wanted to point out that last week's episode on policing is very well done.  You can listen to it here. 

Of particular interest to me, and perhaps interesting to others given Wisconsin Governor Scott Walker's apparent interest in becoming President of the USA, was the shows mention that Wisconsin has the highest rate of incarceration of African-Americans per capita of any state in the Country.  At first, I could not believe this was true.  However, this paper put out by the University of Wisconsin-Milwaukee's Workforce and Training Institute, cites U.S. Census Bureau statistics that support the claim.  

The full spectrum.

The ABA Law Journal has a story about Warren Redlich, a Florida attorney who has some interesting suggestions for how to behave at a drunken-driving checkpoint. Mr. Redlich is the founder of Fair DUI.

Mr. Redlich advises motorists facing these checkpoints to hang a plastic baggie to the exterior of their car. The baggie should contain the driver's licence, registration, proof of insurance, and a flyer that says "I remain silent," "no searches," and "I want my lawyer."  According to Mr. Redlich the purpose of the flier is to protect drivers from bad cops.  You can see a video of Mr. Redlich following his own advice here.

So that is one way to handle the possibility of being stopped on suspicion of drunk driving.  A counter example comes from Freeborn County, Minnesota.  Fox 9 News has the story of a woman who had a blood alcohol content of .45%.  The story notes that this is more than 5 times the legal limit for driving in Minnesota and was the highest.  recorded in the state during the month of December.  The story also notes that the woman was found passed out in the driveway of a home owned by a trooper with the Minnesota State Patrol.

The fact that the woman was passed out in a state trooper's driveway intrigued the Fox 9 news team to do this follow up report. The report revealed that the did not know the state trooper and had apparently followed the trooper's boyfriend home from a bar. The boyfriend did not know the woman but did call the police to say she was passed out in her car in the trooper's driveway.  When police arrived at the scene, the woman's car was running. Perhaps because she was unaware of Mr. Redlich's advice, the woman allegedly told the police that her home address was "28780 I'm drunk."

Unfortunately for the woman, Clark's Grove, Minnesota-the town where the woman lives-does not have a street called "I'm Drunk."  A quick google search of the woman's name reveals that she did get the numeric portion of her address right.  However, being half-right about her address was not enough to prevent the woman from being charged with driving while intoxicated.

I don't know that there are any lessons to be drawn from these two stories besides the one should not drink and drive. I did find it amusing that there at the southern tip of the country there is a story about how to avoid being charged with drunk driving while at the the northern tip of the country there is a story about how to not avoid being charged with drunk driving.

You've spent time in both states Mr. Torvik, do these tales tell us anything about the advantages or disadvantages of living in Minnesota or Florida?

How a 10-year-old gets charged as an adult.

The ABA Journal has an article about a shocking crime: a 10-year-old boy in Northeastern Pennsylvania has been charged with beating a 90-year-old woman to death.

"People can't shoot themselves more than once."

At least that is what Pine County, Minnesota Sheriff Robin Cole told the Associated Press in this story about a man who said he accidentally shot himself four times.The man, who was taken to a Duluth, Minnesota hospital, told investigators that his four gunshot wounds were self-inflicted.The story says the investigators did not believe the man and instead arrested his girlfriend on charges of first-degree assault.

Two sides to every story.

As our Reader(s)™ might have gathered from prior posts, I did not go to law school straight from college. Instead, I kicked around for several years trying to “make it” with my band. During that time, I worked in a couple of restaurants and also as a production worker in a factory (really it was a high-speed bakery but if you tell people you worked in a bakery they get an image of hipsters making artisanal breads. This job was not that. The factory made and bagged 3000 pounds of bread every 12 minutes).

In August 2000, I started law school. About the same time that I started law school, an African-American co-worker of mine from the restaurant (who I liked a lot and always worked really hard at what was a really crappy minimum wage job) pled guilty to 1st degree reckless homicide and was sentenced to 40 years in prison followed by 20 years of supervised release. When his incarceration ends in November 2040, I will probably be a retired grandparent. I can’t guess what life will be like for my former coworker then. He and I are the same age and I have no idea how an ex-con in their mid-70s would find employment.

I was thinking of my friend today because I just got back from vacation and am catching up on the chaos in Ferguson, Missouri. In reading about the story, it reminded me that one day my friend and I were working and I described to him how early one morning the police had found me passed out against a tree in my neighborhood and had given me a ride home rather than arrest me. My coworker looked at me with incredulity and said “Adam, your dealings with the police are a lot different than mine.” He then described a number of incidents of what is now called driving while black.

I do not have any big thoughts to share about Ferguson but whenever there is a story about possible police misconduct, I wonder whether the dealings with the police that the reporter/pundit/blogger/internet commentator has had are more similar to mine or my former coworkers.

People do go to prison for copyright infringement.

Mr. Torvik did a post about decriminalization last week and asked "how many people are wasting away in prison on a copyright rap?" In a comment to the post, I said I didn't know but suspected not many. Then I remembered that I wrote my comment on a device that is a pretty fair research tool. I did a Google search "prison sentence for copyright infringement" and got some interesting hits.

More Lawyers + Fewer Crimes = Tough Times for Young Lawyers

As we know, it's hard to be a young lawyer these days, mainly because there are more lawyers chasing less work. Today I want to look at one particularly stark example of this, which is actually caused by the intersection of two separate trends:

1) The long term rise in the number of lawyers in the United States; and
2) The continuing decrease in the amount of crimes committed in the United States.

Together, these trends have drastically reduced the number of potential clients available for young criminal defense lawyers. Keep this in mind when old criminal defense lawyers who hung out their shingles during the golden age of criminal defense (1968-1992) make fun of the young lawyers trying to do the same thing in today's much harsher environment

More Lawyers

Since 1969, the per capita rate of licensed lawyers in the US has increased 150%, from 1.6 per 1,000 people to 4.0:

Fewer Crimes

For a while—and purely by coincidence I'm sure—the proliferation of lawyers was accompanied by a proliferation of crime. Crime exploded from 1960 to 1980, dropped off for a few years, and then peaked again in 1991. Since then, however, the crime rate has plummeted, and the major crime rate is now lower than it was when the lawyer-boom began in 1969. The following chart shows the rate of the FBI's "Part I" crimes (a combination of the violent crimes and the major property crimes):

Major Crimes Per Lawyer: Dropping like a Brick

Put the two trends together, and here is what you get:

Between 1968 and 1991, there were an average of 22 major crimes per licensed lawyer. In 2012, that number was down to 8, and there is every reason to believe that the bottom is still dropping out. In the 70s and 80s, criminal lawyers could afford to be choosy, and the lack of competition meant there was little need to compete on price. Times have changed.

Arrests Per Lawyer Dropping Too

One objection to the graphs above is that the crime rate is not strictly speaking relevant to the number of potential clients for lawyers; what matters is the arrest rate. The arrest data I could find only goes back to 1980, but that's far enough to tell the same story. Here are the number of arrests for major crimes per lawyer since 1980:

Between 1980 and 1991, there were an average of 3.9 arrests per lawyer. By 2012, that had dropped had dropped 56% to 1.7.  Roughly speaking, in the 80s there were twice as many arrests for major crimes per lawyer as there have been in the 21st century.

Expanding the data to look at all arrests again paints the same general picture:

In this graph you can see the effect of the drug war, which kept the overall arrest rate from dropping too steeply until 1997. Still, from peak to trough, there are twice as many lawyers per arrest than there was just a generation ago.

Obviously, it's a very good thing that there's so much less crime now than there used to be. But criminal defense has historically been one of the main practice areas available to solo practitioners and small firms, even for lawyers just graduating from law school. That opportunity likely no longer exists, as the older, established criminal defense lawyers now snap up the vast majority of the much scarcer work. 

This dynamic is exacerbated by the demographic shift in the legal profession. In 1980, a full 50% of lawyers were under 40. By 2005, only 26% of lawyers were under 40, and the median lawyer age was up to 49. There are a lot more experienced lawyers than there used to be, and given the nature of legal services older lawyers have a big competitive advantage. 

A Fiercer Market

Being a lawyer has, undoubtedly, always been difficult, and it always took hard work to succeed. But it takes more hard work and more luck than it used to, at least for young lawyers who didn't graduate from top schools or at the top of their classes.  So it's a bit ridiculous when the old-timers make fun of the recent law grads as the "slackoisie" without acknowledging the demographic and social factors that made things so much easier for them—particularly when the market for legal services used to be significantly bigger precisely because those baby boomers were so, so much more likely to be criminals. 

Posner on Decriminalization

Judge Posner has a lengthy essay / book review in the New Republic, discussing the topic of crime and punishment and the fact that too many Americans are in prison. It is worth a read.

Like me, Judge Posner thinks there should be fewer crimes. Decriminalization of marijuana and other drugs is the low-hanging fruit, but Posner does not stop there:

There are also other candidates for decriminalization, such as prostitution and copyright infringement (which should be just a civil offense); and it is time that the age of consent were reduced to 16 or even 15, in recognition of contemporary sexual mores. Gambling should be decriminalized, and probably environmental offenses as well, such as killing a migratory bird; such offenses should be left to the civil law, with its financial sanctions.

I'm with him on prostitution, of course, but some of his other ideas strike me as a little strange—or at least trivial. How many people are wasting away in prison on a copyright rap? And would changing the age of consent from 16 to 15 make any difference whatsoever to prison populations?

I'm all for legalizing all forms of gambling, but again I wonder how many people actually go to jail on gambling offenses. When I was a law clerk, Judge Rosenbaum did preside over a money-laundering trial that came out of an FBI take down of a St. Paul bookie operation, so it's not fanciful. But the defendant who was convicted (one was acquitted) was sentenced to probation. My understanding is that most money laundering and gambling prosecutions are efforts to go after the more public manifestations of organized crime. So I guess if you made gambling legal it might have the side-benefit of making organized crime less profitable.

I guess I'd be okay with decriminalizing migratory bird murder, too, but it would be pretty far down the list as well.

What do you think, Mr. Gillette? Should the Man get out of the copyright-enforcement racket? Any other crimes you'd like to see taken off the books?

Tattoos part deux

Last month, I posted about a gentleman accused of murder in Kansas had to bring a motion asking the court to allow him to cover up a tattoo on his neck that spelled "MURDER" (or "REDRUM" depending on how you were looking at it). At the time, I thought it was sort of a unique motion. I was wrong. This month brings a similar motion in an Indiana murder trial.

Punk in Drublic (apologies to NOFX)

The Arizona Republic has a story about a recent ruling by the Arizona Court of Appeals that overturned a Scottsdale, Arizona ordinance that prohibited being drunk in public. The ruling is here. Why can't the city ban being drunk in public? Because it turns out that an Arizona state law prevents local governments (counties, municipalities, or "other" political subdivisions) from adopting or enforce any local law, ordinance or resolution includes "being a common drunkard or being found in an intoxicated condition" as one of the elements of a criminal offense. The state law has been on the books for over 40 years. 

When a tattoo might mean trouble.

The poet Alan Ginsberg used the motto "first thought best thought" as his guiding principal on how to be a fearless writer. Should that motto apply when the writing in question is a tattoo?

General Rettig v. Captain Justice.

Judge Richard Kopf has a post over at Hercules and the Umpire about a motion in limine that the prosecution filed in Williamson County, Tennessee Circuit Court. The prosecution wanted to prohibit the defendant's attorney from referring to the prosecution as "the government."  The prosecution believes that referring to it as the government is derogatory.  Keep in mind that the prosecution in this case was by the State of Tennessee.  In the motion the prosecution wanted the defense to refer to the State of Tennessee by the title or name of the assistant attorney general prosecuting the case  Among the suggestions the offered in the motion was "General Rettig."  Rettig is the last name of the prosecuting attorney.

What does it feel like?

NBC News has a story on Herman Wallace's release from prison yesterday. Mr. Wallace's story is notable because he spent 41 years in solitary confinement in the Louisiana State Penitentiary.  Mr. Wallace was released because women were excluded from the grand jury that indicted Mr. Wallace more than 40 years ago. It is not clear to me how the issue of the exclusion of women from the grand jury did not come up before now. But this post is not about that possible oversight.

Mr. Wallace has terminal liver cancer. Prison doctors stopped treating his illness on August 31, 2013, and told Mr. Wallace he has two months to live. Presumably that figure is now down to one month. I can't imagine what it is like to be free from prison after 41 years, let alone being free from solitary confinement after that long. But imagine trying to adjust to being around people, being free, and the idea of dying within a couple of weeks all at the same time. Calling the feelings involved in such an adjustment overwhelming is probably a disservice to the situation.

UPDATE:  Nola.com reports that Mr. Wallace has died.

Crime down, prosecutions ... down?

On Friday, I published a chart showing that, despite dropping crime rates, the rate of people being sentenced in federal court has gone up.

As I mentioned then, one plausible explanation for this mismatch is that there is just something particular about federal crimes (which are a small slice of overall crimes). So I went looking for some state-only data. I was able to find some data on the number of number of felonies filed in Illinois courts each year since 1997. If you add that data, you get this chart:

(All three lines are normalized to an index rate of 100 in 1997, so this shows their relative change over time.)

The blue line is the new Illinois data. Unlike the federal sentencing rate (which has gone up despite the drop in crime) the Illinois felony-filing was steady between 1997 and 2006, after which it began to mirror the drop in the overall crime rate. So that's kind of encouraging. And it's evidence that undercuts my implicit hypothesis that the prosecution rate isn't at all sensitive to the crime rate.

Crimes down, Convictions ... up!

Crime rates in the United States have been plummeting for over 20 years. The cause of this turnaround is a topic of much debate and controversy. The Freakonomics guys say we can thank Roe v. Wade. Kevin Drum says we can thank unleaded gas. The authoritarians say we can thank boots on the ground and pigs in the pen. And there are many other plausible theories. Perhaps the most plausible theory is that a lot of things came together at once. But no one denies that we've seen a remarkable and remarkably unexpected drop in crime—all kinds of crime: rape, murder, theft, etc.

This got me to thinking. Even though you hear more and more about this dropping crime rate, you don't hear much about prosecutors sitting around on their hands with nothing to do. So I wondered whether there was any data on the relationship between the number of crimes committed and the number of people who are actually being convicted of crimes.

Although I'm sure such data exists, I couldn't find it on the Google. So I had to create it myself:

The red line is the crime rate in years 1995 through 2011. You can see there is a precipitous decline. The source for this data is the US Department of Justice.

The green line is the number of people convicted of crimes in federal court in years 1995 through 2011. The source for this data is the United States Sentencing Commission.

What you see, obviously, is a remarkable mismatch. As the crime rate goes down, the number of people convicted of crimes goes up.

Now, one obvious objection to this graph is that it comparing apples to oranges: all crimes versus federal convictions. And that's true. So one possible explanation for this mismatch is that federal crimes have expanded despite the overall fall in the crime rate. But my working assumption is that the federal conviction data is a good proxy for the overall state and federal conviction rate. (Some support for my assumption is provided by the fact that overall incarceration rates continued to rise even while crime rates plummeted.)

Anyhow, you can draw your own conclusions. My conclusion is the obvious one: criminal justice is a one-way ratchet.  

Sometimes it is hard to tell who is on which side.

The Miami New Times has a story today about Adam Finkel, a 26-year-old assistant state attorney in Florida. Mr. Finkel allegedly got into an altercation this weekend with the doorman of a club in South Beach. The altercation allegedly occurred with Mr. Finkel was told that he had to wait in line because the club was full.  After arguing with the doorman about having to wait, Mr. Finkel was told he was no longer welcome at the club. 

How much jewelry is enough?

One of F. Scott Fitzgerald's most famous quotes comes from his 1926 short story, The Rich Boy. He wrote, "Let me tell you about the very rich. They are different from you and me." The Rich Boy is not one of Mr. Fitzgerald's most famous works. But the quote is famous because it rings true to many people.

Jai Alai? Really?

Seth Stevenson at Slate is going to cover the trial of alleged Boston crime figure Whitey Bulger. Mr. Stevenson's coverage begins here. As Mr. Stevenson notes, Mr. Bulger is accused of a number of crimes. One crime called to mind an episode of "Man Men." Mr. Bulger is accused of murdering a businessman in 1981 as part of an attempt to take over the World Jai Alai association. Was there enough money being made in jai alai that alleged mobsters wanted in on the action? I wonder if the defense to that particular charge will be that Mr. Bulger was not stupid enough to believe he could make money on a sport that virtually no one plays, follows, or knows anything about.

A DNA-swab success story reveals a terrible truth

As I mentioned the other day, the Supreme Court has ratified the practice of taking a DNA sample from all people accused of "serious crimes." Here in Illinois, Cook County was waiting for the Court's decision to implement this very practice. But officials in Virginia did not wait, and this has apparently led to the freeing of an innocent man in Lake County, Illinois:

Jerry Hobbs had been sitting in Lake County Jail for almost five years awaiting trial for the slayings of his daughter and her friend when a man was arrested on unrelated felony charges in Virginia, a pioneer of testing suspects upon arrest rather than waiting for a conviction.

A DNA sample was taken from the man, Jorge Torrez, and it went into a national database, authorities said. It matched the sample from the scene of the Lake County double slaying, according to court records, and Hobbs was soon freed. Torrez, 24, awaits trial in the killings.

We shouldn't be naive about the costs these criminal procedure rights. When we expand rights of privacy and the rights of the accused, we make it more likely that the guilty will go free. Thus, the classic formulation that it is better that nine guilty men get off than one innocent man be convicted.

But the sad reality of our criminal justice system is that the innocent are too often convicted on flimsy or nonexistent evidence. The main culprit here, it seems, is the false confession. It is hard to imagine why someone would confess to a murder or rape he didn't commit, but Mr. Hobbs' case provides a chilling example:

Police immediately suspected Hobbs after he found his 8-year-old daughter, Laura, and her 9-year-old friend Krystal Tobias stabbed to death in a Zion park in May 2005. Hobbs, then a recent transplant from Texas with a long criminal record, denied killing the girls for most of an interrogation that involved several officers and stretched across about 24 hours, police testified.

Late in his questioning, Hobbs said, "I did it. Just write it down. Start this thing and send me to the judge," according to court records.

We now know that Mr. Hobbs just caved in to the pressure because he wanted to get out of the room and go on with his life, even if just for a minute. It seems that mankind's most overpowering urge is just to be left alone. We can hold out for only so long, but eventually we will falsely confess to savagely murdering our own 8-year-old daughter if it means we can just be left alone for a few minutes.

Police interrogations stretching for 24 hours take advantage of this fundamental human flaw to coerce these false confessions. Why do the police do it? My theory is that they, too, do it so that they can get on with their lives and be left alone. You would think after so many false confessions—perhaps most infamously the false confessions of the Central Park Five—the police would change their tactics. But the police are human too. Deep down, they are more interested in just going home to their families than they are in making sure the confessions they get are true. A confession, whether true or false, solves the case and lets everyone get on with their lives. Once you realize that a man will falsely confess to murder just to be left alone for a few minutes, it becomes easy to understand how a cop will use tactics known to produce false confessions. We are all very weak.

This fundamental weakness is why I oppose putting the DNA of innocent people into a nationwide criminal database. The intentions are no doubt pure, and the benefits are real. But you don't have to be paranoid to worry about how a big government full of weak human beings will abuse this information. It's just too much, and the possibilities are too terrible. Just leave me alone.

The public safety in Boston.

NBC reports that suspected Boston Marathon bomber Dzhokhar Tsarnaev has started answering questions posed to him by authorities.  The article says that a "a special high value detainee interrogation team will question" Mr. Tsarnaev without advising him of his Miranda rights.  It is unclear whether this team is already at the hospital or Mr. Tsarnaev is answering questions posed by different authorities.  It may be unintentional but the report makes one wonder what is the difference between answering questions and being interrogated.