Convicted Felons Research Articles

Freedom of expression, the right to vote, and proportionality at the European Court of Human Rights: An internal critique

This article offers an internal critique of the European Court of Human Rights’ deferential approach to the content and limits of the right to vote (under the right to free and fair elections, article 3 of Protocol 1 to the European Convention on Human Rights). Rather than imposing an independent theory of democratic rights, the critique is internal as it relies on the Court’s own conception of democracy developed under article 10 ECHR (freedom of expression) and article 11 ECHR (freedom of reunion and assembly). It uses normative democratic theory to show that the Court’s conception under those rights reveals an utmost concern for political inclusion and that this conception is systematically used by the Court to balance alleged interferences with this article. It then argues that this concern has implications for the Court’s review of the right to vote. While the Court proclaims the complementarity between expression and vote at the level of principle, the Court refrains from engaging in the balancing exercise under P1-3. The article takes the notorious example of the right of convicted felons to vote. The article does not conclude, however, that the Court should systematically maintain its franchise on democratic grounds. It rather contends that the Court should apply proportionality with the same substantive democratic principles across democratic rights.

More than Mothers: Juries of Matrons and Pleas of the Belly in Medieval England

Common law was an all-male system, with one glaring exception: juries of matrons. If a convicted felon requested a reprieve from execution on the grounds of pregnancy, it was the responsibility of a group of twelve matrons to perform an inspection in order to determine if she was in fact pregnant. Matrons were in a position of great authority. Their verdicts were definitive: if they decided a woman was pregnant, then she was sent back to prison. Despite the significance of their role, little is known about medieval matrons and what qualified them to sit on a jury. Were they mothers? Honorable wives? Midwives? The goal of this paper is to argue that matrons had training in obstetrics. This was particularly important for medieval matrons because the quickening (that is ensoulment, signaled by the first fetal movements) did not become the focal point of the matrons' assessment until at least 1348. Before this, the diagnosis was much more medically challenging as matrons had to determine whether a felon had conceived. Overall, the medieval records demonstrate great confidence in medieval matrons and their obstetrical expertise.

Crime and punishment

PurposeA surprisingly large proportion of the working population of the USA consists of individuals with felony convictions. Moreover, the issue of employability of these individuals is compounded for minorities. This paper aims to present two experimental studies investigating whether minorities with felony backgrounds have a more difficult time being selected for employment than identically situated white applicants. The authors ground the paper in realistic group conflict theory. Results indicate discrimination is more acute against minorities with felony backgrounds than whites with the same background and shed light on the mechanisms leading to this discrimination. Theoretical and practical implications are discussed.Design/methodology/approachThis paper involves two experimental studies involving working adults engaging with realistic survey situations using mTurk.FindingsResults of both studies indicate discrimination is more acute against minorities with felony backgrounds than whites with the same background, and shed light on the mechanisms leading to this discrimination.Research limitations/implicationsOne limitation of the methodology is that the authors used fictional candidates and jobs. This may have led to understating the effects of discrimination on minorities because it allowed applicants to answer in socially desirable ways (e.g. absent of racial bias) without suffering any of the anticipated negative consequences of actually hiring individuals about whom they hold negative stereotypes.Practical implicationsThis research has several important implications for practice. First, organizations should be keenly aware of the potential for subtle and unconscious bias to affect the job application process even among well-intentioned hiring managers. Second, as the bias is often triggered by threats, organizations should share with their employees the nature of the threat involved with former felons.Social implicationsOrganizations should deliberately address issues associated with the use of criminal background checks. For many organizations, a felony conviction in an applicant’s background automatically eliminates that person from employment. However, a substantial amount of the workforce now has a felony in their background. Indeed, the Equal Employment Opportunity Commission (2012) has issued guidelines that detail important factors that organizations should consider on a case-by-case basis when considering employment for former felons. Organizations may consider updating any blanket exclusions regarding the hiring of ex-felons – not only because it makes good policy but also because it may help the organization hire the best people.Originality/valueThis research studies an important – and growing – societal problem related to the hiring of convicted felons, and the related issue of racial discrimination that affects black convicted felons particularly hard. There has been very little work in the management area on this topic. Moreover, there has been very little work in all areas that includes experimental methods. The use of such methods is particularly useful to eliminate confounds found in field data.

Who will kill again? The forensic value of 1st degree murder convictions

Studies of homicide offenders that engage in repeat, non-serial homicide offending are scarce and most studies lack comprehensive criminal career data that include convictions for 1st degree murder. Drawing on archival data on 682 male convicted felons from the Florida Department of Corrections, the current study examined the prognostic association between prior 1st degree murder convictions and various specifications of subsequent homicide offending. Negative binomial and logistic regression models found that prior 1st degree murder convictions were significantly associated with current/instant homicide offending and multiple homicide offending despite controls for five forms of serious felony violence, age, and race. Suggestions for future research are proffered regarding the forensic and criminological value of 1st degree murder convictions.

Minority threat, community disadvantage and sentencing

Purpose Prior studies of criminal sentencing have largely focused on individual-level predictors of sentencing outcomes. The purpose of this paper is to examine the effects of a variety of theoretically derived community measurements of social threat and disadvantage on the criminal sentencing of convicted felons. This analysis permits an evaluation of whether legal ideals such as equality before the law and policy goals of equal treatment for like offenders are achieved. Design/methodology/approach The study examines data of individuals sentenced in the state of Florida and community level measurements of racial and ethnic threat and community disadvantage. Hierarchical generalized linear model is used to analyze the effect of these measures on the dichotomous in/out imprisonment variable, and standard hierarchical linear regression analysis is used to model the continuous dependent variable of sentence length. Findings The results provide support for the racial threat perspective though not for ethnic threat nor community disadvantage. The findings and their implications are discussed in terms of theory, research and policy. Practical implications Racial disparity in criminal justice practices is receiving increasing public and policy attention, as evidenced by the growing Black Lives Matter movement. Regarding sentencing, racial disparity remains a major research and policy question. While the current research and theoretical literature on sentencing is not conclusive, it is clear that race matters. As a result, racial disparity in sentencing needs to be a priority in subsequent “transitional criminology” efforts between researchers and policy makers to identify, explain and ultimately predict exactly how race impacts sentencing, and how to reduce it as a consideration from sentencing. Originality/value This study contributes to a growing body of literature that examines the social context of punishments by using several community level measurements of threat and disadvantage, while modeling the two-step sentencing outcome of imprisonment and sentence length.

Where Have All the Innocents Gone?

The DNA revolution has revealed that, contrary to received wisdom, the conviction of an innocent defendant by the vaunted American criminal justice system is far from a freakish event. The National Registry of Exonerations now lists more than 2,200 cases of wrongful convictions. Of course, 2,200 cases is a minuscule number compared to the roughly 1.5 million felons in state and federal prisons at any given moment. The last quarter century has seen a vigorous debate about the error rate that leads to the conviction of innocent defendants. Estimates have ranged from 0.027% to 15%; most estimates are in the 0.5% to 2% range. This Article presents the first study to draw on an existing data set of actual claims of innocence to estimate the overall error rate in the criminal justice system. The data come from the North Carolina Innocence Inquiry Commission, a unique program that allows applications for exoneration from convicted felons. Conservative assumptions about the North Carolina data set produce a likely error rate of 0.125% to 0.5%. Though the estimates of the wrongful conviction rate are thus limited to North Carolina, there is no reason to think that the error rate is materially different in other states. This Article is, in part, a response to Paul Cassell’s article, Overstating America’s Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions. Though the findings here as to the estimated error rate are higher than Professor Cassell’s, we do agree that previous estimates tend to be too high for reasons this Article will explore.

Jury diversity in the age of mass incarceration: an exploratory mock jury experiment examining felon-jurors’ potential impacts on deliberations

ABSTRACTToday, nineteen million American citizens bear the mark of a felony conviction, far more than in any prior era. With that mark comes a host of record-based restrictions that curtail access to various political, social, and civic institutions. One such restriction impacts convicted felons’ eligibility for jury service. Forty-nine states, the federal government, and the District of Columbia statutorily limit convicted felons’ opportunities to serve as jurors. Justifying these restrictions, lawmakers and courts suggest that convicted felons, if allowed to serve, would diminish the quality of the deliberation process. This exploratory mock jury experiment is the first to assess jury deliberations that include felon-jurors, comparing (1) homogenous juries comprised entirely of non-felon-jurors to diverse juries comprised of both non-felon and felon-jurors and (2) non-felon-jurors to felon-jurors. Results suggest that on theoretically derived measures of deliberation structure, deliberation content, and juror perceptions, diverse juries performed as well as homogenous juries. Data also tend to demonstrate few statistically significant differences between felon-jurors and non-felon-jurors. Notably, on measures of novel case facts covered and time spoken as a proportion of deliberation duration, felon-jurors outperformed their non-felon counterparts, perhaps calling into question the necessity of blanket felon-juror exclusion policies.

Exorcising Presumptions? Judges and Attorneys Contemplate “Felon-Juror Inclusion” in Maine

This exploratory study is the first to examine how courtroom personnel conceive of and navigate Maine’s unique policy of felon-juror inclusion. Findings derived from interviews with trial judges and trial attorneys in Maine, the only U.S. jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants ostensibly reject the criminology of the other, instead viewing former offenders as individual fellow citizens who contribute to and benefit from their inclusion in the jury process. These views also tend to shape jury selection in Maine, as participants reported taking a case-specific, personalized approach to the screening of felon-jurors. For felon-jurors with a sexual offense, however, some participants refused to acknowledge the possibility of reformation, intimating that all such offenders lack the character to engage in the jury process. In sum, this study suggests that among courtroom personnel in Maine, the criminology of the other has little influence on their conceptualizations and treatment of almost all potential felon-jurors.

Modesta Again

The story of Modesta Avila, the first convicted felon in Orange County, California, is both a popular California legend and a potent metaphor used by scholars to illustrate themes of social injustice, ethnic intolerance, railroad intransigence, the decline of the Californios, and the treatment of Hispanics following the Treaty of Guadalupe Hidalgo. Because of its frequent use as a metaphor to explain serious historical themes, the accuracy of the story is important; however, key elements are inaccurate and need revision. New research—into original land titles, Mexican land grants, genealogy, trial transcripts, applications for appeals to governors Markham and Waterman, the personal notes of the historian Jim Sleeper, and hundreds of contemporary news articles—results in a revised and compelling story that has even stronger metaphorical import for historians and others to deploy in their work.

Examining the stability and predictors of deterrability across multiple offense types within a sample of convicted felons

Deterrence research finds mixed support for the effect of sanction, potentially due to differences in deterrability across individuals. We assessed differential deterrabilty within a known offender sample (n = 428), and examined consistency in deterrability across multiple offense types: drunk driving, aggravated assault and commercial robbery. Using Pogarsky's (2002) classification method, inmates were categorized as acute conformist, deterrable, or incorrigible for each scenario. These classifications varied by scenario, suggesting little intra-individual consistency across offenses. Regression analyses uncovered little consistency in predictors of deterrability across offense types. Results suggest policies to increase certainty, swiftness and/or severity of formal sanctions will not have uniform deterrent effects, but may have differential impacts across individuals as they contemplate different crimes.

A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life. Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II). Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process. Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon's opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously. Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “nonoffenders.” In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror. In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

Mapping the Shift: Human Rights and Criminal Law

In 2015, the Institute for Policy Studies (IPS)—a progressive think tank on U.S. domestic and foreign policy—awarded its annual human rights awards to two criminal lawyers. The domestic award went to Daryl Atkinson, who advocates for the rights of convicted felons. Its international award went to Almudena Bernabeu, for what the IPS called her “successful prosecution of several of the worst Latin American perpetrators of crimes against humanity.” I do not think that the IPS was trying to be balanced by picking a lawyer working on behalf of the rights of the formerly incarcerated, on one hand, and a prosecutor, on the other. Rather, the organization sought to honor those it sees as promoting human rights. In the context of U.S. law, that means fighting for the rights of defendants and the convicted. For international law, it means the opposite.

Chester B. Himes: A Biography

Chester B. Himes: A Biography

Acts of Communion

An article about the aesthetics, politics and dramaturgy of taste implicit in Reckless Sleepers' The Last Supper (2003). The authors explore notions of gustatory taste and the multi-sensory potential of serving food in performance and the ethics of (mis)representation of real life events; the assassination of the Romanovs and Che Guavara proving to be the most unreliable narratives. The piece sits between fact and fiction, the found and the fabricated, and is punctuated with the arrival of the real last suppers of convicted felons. The work speaks from a primarily western religious perspective, inspired by Da Vinci's Last Supper (1498) and the act of communion that takes place in church services. In this way, it leans towards an occidental, spiritual notion of taste, where transubstantiation allows the rice paper script to become both the body of Christ and the symbol of his own last supper.Nietzsche's notion of intoxication comes into play as performers and audience share wine, or blood, and drink to absent friends. The article proposes that the piece enacts a dramaturgy much like a meal, where conversation ebbs and flows, and a sense of togetherness, or act of communion, is engendered. The authors posit that the tacit contract with the audience is redrawn by food as both an aesthetic and dramaturgical encounter. As such, it becomes an invocation (or intoxication) of taste, mortality and last-ness that continues to resonate thirteen years after its devising. Both Pinchbeck and Westerside wrote about this performance when they first saw it at the same venue in 2006, both conducted interviews with members of the Reckless Sleepers, Mole Wetherell and Tim Ingram, for their ongoing research into dramaturgy, aesthetics and taste in contemporary performance. Now this research is woven together into a tapestry of reflections on the piece, a pentimento of memories.

The Right to Arms: The Criminology of Guns

This article seeks to sketch the criminological underpinnings of the Second Amendment right to arms. Most agree with prohibiting possession of firearms by convicted felons, violent misdemeanants and the mentally unbalanced as our laws currently do. But an insistent and articulate minority argues for going further: to banning possession of handguns, or all guns, by ordinary people. This is unfortunate, their argument is preposterous: it is false to assert that most murders are committed by ordinary citizens who kill because they happen to have a firearm in a moment of anger.

Over-incarceration and disenfranchisement

This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e., when criminals vote less frequently than non-criminals.

Voter Turnout, Felon Disenfranchisement and Partisan Outcomes in Presidential Elections, 1988–2012

States vary in their treatment of the voting rights of convicted felons through incarceration, probation, parole, and beyond. A few states permit even incarcerated felons to vote, while others rescind the right permanently, with most states’ policies located between those extremes. This paper analyzes the relationship among voter turnout, election outcomes, and levels of felon disenfranchisement by state. The results show a pattern of divergence around the 2000 election before which turnout, disenfranchisement, crime rates, and Republican or Democratic success in elections were unrelated and since which strong correlations are found. Disenfranchisement rates no longer bear a significant relationship to crime rates, and states won by Republicans have both lower overall turnout and higher levels of ineligible felons in the voting-age population. Partisan control of state legislatures does not predict these patterns, but there is a strong regional component to the data with disenfranchisement notably higher in Southern states regardless of partisan control. Overall the data support a need for further research on the disparate treatment of felon voting rights among states which may be contributing to broader trends emerging in political science research of a growing relationship between lower voter turnout and Republican electoral success.

The Many Saliences of Justice Michael D. Ryan: A Comparative Empirical Analysis of Concepts of Salience as Applied in State Appellate Courts

This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael D. Ryan by examining the impact of his work on Arizona law through the lens of his “most important” opinions. As with all things touched by Justice Ryan it has become something greater than its initial purpose. The Author began this project by surveying three hundred seven Arizona judges about Justice Ryan’s published opinions. The results of this survey were quite surprising. Rather than identifying a common core of important opinions, the survey identified two mutually exclusive sets of important opinions: one for the appellate court and the other for the trial court. In an effort to understand this result, the Author reviewed the salience literature (which identifies measures of case or issue importance) and identified fourteen measures of salience. The application of those measures to Justice Ryan’s published opinions only confirmed the results of the survey because no two measures identified the same set (or even similar sets) of opinions as important. This empirical analysis and review of Justice Ryan’s published opinions demonstrated three things. First, Justice Ryan’s opinions matter to a wide range of people including grandparents, illegal aliens, homeowners, schoolchildren, employees, and convicted felons on death row. Second, the salience literature does not identify a single unitary concept of importance, but rather many different concepts of importance. Finally, the empirical analysis discussed herein unequivocally demonstrates that whether an opinion is important depends upon who you ask.

‘Raising Sand, Soil and Gravel’ Pardon Refusers On-Board Prison Hulks (1776–1815)

For a short period of time at the end of the eighteenth-century and the beginning of the nineteenth-century a small number of convicted felons refused the offer of a royal pardon. Drawing heavily on evidence from The National Archives this article considers the possible and actual fate of fifty convicted felons on-board prison hulks at the turn of the nineteenth-century who declined the offer of pardons on condition of serving in the army abroad. Who were these convicts and why did they refuse the offer of a pardon? What were the choices they faced and how successful a strategy was refusal in terms of survival, freedom and a return to friends and family? This article bridges the gap in literature that exists between work on discretion (King, Gatrell, Hay et al.); prison hulks (Branch-Johnson and Campbell) and transportation (Bateson, Hughes, Morgan and Rushton) while challenging and developing the understanding of the motivations of the pardon refuser, set out by Devereaux and MacKay, but within the context of the forgotten prison hulks.