Penalty Phase Research Articles

The importance of sample preparation techniques for use in mine site operational mineralogy

The use of automated mineralogy has been critical in understanding all stages of a mine cycle including; identification of potential ore phases for exploration projects; routine composites for monthly mineralogy trends including liberation of target phases plus identification of penalty phases; for mine closure; and the potential of reactions like carbon sequestration from mine waste in order to ensure efficient remediation. Whilst automated mineralogy is clearly a key technique, the quality of the data and how ‘automated’ the actual automated mineralogy process is, is driven by the accuracy and efficiency of sample preparation techniques. The need for on-site operational mineralogy is growing with the need for rapid turnaround of data to drive processing plants.This paper discusses the effects of poor sample preparation on the quality of automated mineralogy data outputs including liberation metrics, mineral abundance and grain size. Potential sources for error from preparation techniques include; inefficient cleaning of all utensils and the block itself; poor screening, deagglomeration and polishing of the sample; and the pressure to streamline these preparation techniques for optimisation of mine site laboratories in order to rapidly generate data to monitor daily processing plant activity. A further discussion touches on how automated is automated mineralogy, establishing that a large percentage of the process depends on the efficiency and accuracy of sample preparation and that research should be focused on optimising this stage of the process.

Expert Psychological Testimony in the Capital Trial Penalty Phase: A Content Analysis of Trial Transcripts

ABSTRACT We know little about what constitutes “typical” testimony offered by psychological experts in capital sentencing trials. Experts may address mitigating factors to the jury during the penalty phase, but the mitigators typically offered, as well as the evidence presented to support the relevance of the mitigators, remains poorly understood. A sample of 94 capital trial transcripts were content analyzed. Findings suggest that expert presence was unrelated to sentencing judgments. Analysis of testimony content revealed that testimony concerning childhood abuse, mental illness, and family issues (i.e., a parent in prison or witnessing domestic violence) occurred in over 50% of the cases involving experts and that intelligence tests and personality assessments were the most frequently used assessment tools. The type of mitigating evidence presented (i.e., whether the testimony focused on the individual’s characteristics or the environmental factors that influenced the individual during development) varied considerably across cases. Implications, limitations, and future directions are discussed.

Making death (in)different: discursive legitimation in death trials

ABSTRACT Adopting Van Leeuwen’s model of legitimation, this study critically scrutinizes the ways in which the State validates a death sentence and uncovers patterns of legitimizing strategies, along with their lexico-grammatical manifestations in the penalty phase of capital trials, including moralization, rationalization and authorization. The findings reveal that moralization plays a part in constructing “us-them” boundaries through negative evaluative lexis, agency-oriented transitivity patterns, as well as oppositional reference terms. The use of rationalization, observed in reason and purpose clauses as well as legal lexis and future predicates, emphasizes the legal ideology of facticity, impartiality, and objectivity at the expense of humanistic consideration of the person on trial. Authorization bestows power by incorporating various authoritative voices as well as the jurors’ verdicts in the guilt phase of the trial. It is argued that in their legitimating practice, the State denies capital defendants the full consideration that the law requires and fails to differentiate and justify the necessity of the lethal choice over life imprisonment. This, in turn, potentially leads to the creation of death-inclined jurors.

Naming as doing: Identities, positioning, and ideologies in capital trials

AbstractAdopting a socio-pragmatic view on linguistic choices, this study aims to show how proper names come to function as an ideologically-significant resource for identity construction, impression management, and the negotiation of meaning-making. Drawing upon twelve opening addresses from the penalty phase of capital trials, the research identifies the forms, functions and frequencies of the naming choices that the prosecution and defense use to reference the defendants and victims. The findings reveal characteristic patterns in the two sides’ speeches both in terms of the naming choices and purposes for which such choices are (not) used. It is argued that, despite the defense’s attempts to neutralize the damaging effects, this value-laden practice potentially construes distance and exaggerates differences between the person on trial and the victims, and shapes the relationship between the defendant and jury in such a way that hinders empathy and understanding, thereby becoming one of the aggravating factors itself.

Trends in 30- and 90-Day Readmission Rates for Heart Failure.

The impact of hospital readmission reduction program (HRRP) on heart failure (HF) outcomes has been debated. Limited data exist regarding trends of HF readmission rates beyond 30 days from all-payer sources. The aim of this study was to investigate temporal trends of 30- and 90-day HF readmissions rates from 2010 to 2017 in patients from all-payer sources. The National Readmission Database was utilized to identify HF hospitalizations between 2010 and 2017. In the primary analysis, a linear trend in 30-day and 90-day readmissions from 2010 to 2017 was assessed. While in the secondary analysis, a change in aggregated 30- and 90-day all-cause and HF-specific readmissions pre-HRRP penalty phase (2010-2012) and post-HRRP penalties (2013-2017) was compared. Subgroup analyses were performed based on (1) Medicare versus non-Medicare insurance, (2) low versus high HF volume, and (3) HF with reduced versus preserved ejection fraction (heart failure with reduced ejection fraction and heart failure with preserved ejection fraction). Multiple logistic and adjusted linear regression analyses were performed for annual trends. A total of 6 669 313 index HF hospitalizations for 30-day, and 5 077 949 index HF hospitalizations for 90-day readmission, were included. Of these, 1 213 402 (18.2%) encounters had a readmission within 30 days, and 1 585 445 (31.2%) encounters had a readmission within 90 days. Between 2010 and 2017, both 30 and 90 days adjusted HF-specific and all-cause readmissions increased (8.1% to 8.7%, P trend 0.04, and 18.3% to 19.9%, P trend <0.001 for 30-day and 14.8% to 16.0% and 30.9% to 34.6% for 90-day, P trend <0.001 for both, respectively). Readmission rates were higher during the post-HRRP penalty period compared with pre-HRRP penalty phase (all-cause readmission 30 days: 18.6% versus 17.5%, P<0.001, all-cause readmission 90 days: 32.0% versus 29.9%, P<0.001) across all subgroups except among the low-volume hospitals. The rates of adjusted HF-specific and all-cause 30- and 90-day readmissions have increased from 2010 to 2017. Readmissions rates were higher during the HRRP phase across all subgroups except the low-volume hospitals.

Observational study assessing changes in timing of readmissions around postdischarge day 30 associated with the introduction of the Hospital Readmissions Reduction Program

BackgroundThe Hospital Readmissions Reduction Program (HRRP) initially penalised hospitals for excess readmission within 30 days of discharge for acute myocardial infarction (AMI), congestive heart failure (CHF) or pneumonia (PNA) and...

An examination of the effects of mental disorders as mitigating factors on capital sentencing outcomes.

Mentally ill and emotionally disturbed offenders comprise a significant component of those whose criminal conduct has swept them into the criminal justice system, including a subset who are tried and convicted of capital murder. The present study employs the population of capital cases advanced to penalty phase in the state of North Carolina (1990-2009) to examine whether presentation to the jury of the statutory mitigators of extreme mental and emotional disturbance and capacity impaired, and specific mental illness diagnoses, often referred to as mental disorders, at the sentencing phase mitigate against a sentence of death. Mental disorders included mood disorders, psychotic disorders, anxiety disorders, brain disorders, multiple mental illness diagnoses, learning disabilities, and personality disorders. Results from these 835 cases indicate that with the exception of one, the diagnosis of a learning disability, the capital jury's acceptance of various mental health conditions does not effectively mitigate against a capital sentence. In addition, jury rejection of a diagnosis of mental illness or the two mental health statutory mitigators, capacity impaired and extreme emotional disturbance, as a mitigating factor has a counter-mitigating effect in that it significantly increases the odds of a death penalty recommendation by about 85-200%.

Actions, actors, and agency in the penalty phase of capital trials

This study critically scrutinizes the discursive practice of state killing in capital trials. The quantitative and qualitative analysis compares the experientially constitutive roles of lexico-grammatical choices in attributing agency to the actions of the defendant and victims in lawyers’ opening and closing speech in the penalty phase of a high-profile capital trial. Integrating Van Leeuwen’s social actor representation framework (2008) into Halliday’s transitivity analysis (1994), the study identifies the prosecution’s and defense’s polarized referential practice for the defendant and victims as well as descriptions of their actions. It is argued that, rather than existing as facts outside the trial discourse, aggravating and mitigating factors are morally and normatively constructed in real-time discursive interaction through these extreme, and at times disturbing, reference and transitivity choices, potentially leading to a death recommendation

“Let’s kill him”: self-reference pronouns and speaking roles in capital trials

ABSTRACT Viewing pronouns as a semiotic resource that is central to self/other positioning, this study explores constitutive and performative functions of self-reference pronouns in the institutional context of the penalty phase of capital trials. Based on a corpus of 12 closing arguments, the findings indicate that self-reference pronouns are not simply indexical tools of reference in this monologic discursive event but also serve to activate and foreground certain identities while backgrounding others. In effect, lawyers can orchestrate a multiplicity of selves, ground their participation as members of different socio-cultural communities other than that defined by the current setting, and shift their speaking roles and perspectives in relation to the audience and the issue being discussed on a moment-by-moment basis. Such manipulation of group membership constitutes power struggles between opposing lawyers in the efforts to display (dis)alignment with aggravating and mitigating factors, alienate or create empathy for the person on trial, and manage self-impression and relationship with the jury, thereby potentially mediating capital jurors’ perceptions of state killing.

How are Electronic Health Records Associated with Provider Productivity and Billing in Orthopaedic Surgery?

Electronic health records (EHRs) have become ubiquitous in orthopaedics. Although they offer certain benefits, they have been cited as a factor that can contribute to provider burnout. Little is known about the degree to which EHR adoption is associated with provider and practice characteristics or outpatient and surgical volume. (1) What was the rate of EHR adoption in orthopaedics and how are physician and practice characteristics associated with adoption? (2) How is EHR adoption related to outpatient productivity? (3) How is EHR adoption associated with surgical volume? We conducted this retrospective analysis by linking three publicly available Medicare databases, which we chose for their reliability in reporting because they are provided by a government-funded entity. We included providers in the 2016 Physician Compare dataset who reported a primary specialty of orthopaedic surgery. The EHR adoption status for these providers between 2011 and 2016 was determined using the Meaningful Use Eligible Professional public use files, which we chose to standardize both adoption and usage of EHRs. Provider characteristics, from the Physician Compare dataset, were compared between non-adopters, early adopters (who adopted EHR in 2011 and 2012), and late adopters (2016) using a multivariate logistic analysis, due to the binary nature of the dependent variable (adoption). To measure productivity and billing, we used the 2012 and 2016 Medicare Utilization and Payment datasets. To measure productivity before and after EHR adoption, we compared the number of services for select Current Procedural Terminology codes between 2012 and 2016 for providers who first adopted EHR in 2013, and performed the same comparison for non-adopters for the same years. Paired t-tests were used where volume in 2012 and 2016 were being compared, and multivariate analysis was performed. By 2016, 10,904 of 21,484 orthopaedic providers (51%) had adopted EHRs, with an increase from 8% to 46% during the incentive phase (2011 to 2014) and an increase from 44% to 51% during the penalty phase (2015 to 2016). After analyzing factors associated with adoption, it was most notable that for every additional year since graduation, the odds of adopting EHR later increased by 4.14 (95% confidence interval 4.00 to 4.33; p < 0.001). After adoption, providers who adopted EHRs increased the mean number of Medicare outpatient visits per year from 439 to 470 (mean difference, increase of 31 procedures [95% CI 24 to 39]; p < 0.001), and providers who did not use EHRs decreased from 378 to 368 visits per year (median difference, decrease of 10 procedures [95% CI 8.0 to 12.0]; p < 0.001). EHR was not associated with billing for Level 4-5 visits, after adjusting for practice size and pre-adoption volumes (p = 0.32; R = 0.51). EHR adoption was not associated with surgical volume for 10 of 11 common orthopaedic procedures. However, two additional TKA procedures annually could be attributed to EHR adoption, when compared with non-adopters (p = 0.03; R = 0.65). After adoption, orthopaedic surgeons increased their annual TKA volume from 42 to 48 (mean difference, increase of 6 [95% CI 4.0 to 7.0]; p < 0.001), while non-adopting orthopaedic surgeons increased their annual surgical volume for TKA from 28 to 30 (median difference, increase of 2 [95% CI 2.0 to 4.0]; p < 0.001). In orthopaedics, the Health Information Technology for Economic and Clinical Health (HITECH) Act resulted in approximately half of self-reported orthopaedic surgeons adopting EHR from 2011 to 2016. Considering the high cost of most EHRs and the substantial investment in adoption incentives, this adoption rate may not be sufficient to fully realize the objectives of the HITECH Act. Diffusion of technology is a vast field of study within social theory. Prominent sociologist Everett M. Rogers details its complexity in Diffusion of Innovations. Diffusion of technology is impacted by factors such as the possibility to sample the innovation without commitment, opinion leadership, and observability of results in a peer network, to name a few. Incorporating these principles, where appropriate, into a more focused action plan may facilitate technological diffusion for future innovations. Lastly, EHR adoption was not associated with higher-level billing or surgical volume. This might suggest that EHRs have not had a meaningful clinical benefit, but this needs to be further investigated by relating these trends to patient outcomes or other quality measures. Level III, therapeutic study.

Abstract 159: Did the Hospital Readmission Reduction Program Result in Delayed Readmissions Just After 30 days?

Background: The Hospital Readmission Reduction Program (HRRP) was enacted in March 2010 and imposed financial penalties beginning in October 2012 for hospitals with higher-than-expected 30-day readmissions for acute myocardial infarction (AMI), congestive heart failure (CHF) and pneumonia. The HRRP has been associated with reduced readmissions for these conditions, however, evidence has suggested an increase in mortality for heart failure and pneumonia as an unintended consequence of this program. Because of strong hospital responses to the HRRP, we examined whether hospitals postponed readmissions around the 30-day threshold, resulting in a spike in “delayed” readmission just after 30 days. Methods: Hospital admissions for AMI, CHF, and pneumonia were identified between January 2007 and October 2015 using the Medicare Provider Analysis and Review database, containing admissions for all fee-for-service Medicare enrollees. Stroke was studied as a control condition because it was not included in HRRP. Following prior literature, we divided the overall study period into three phases: January 2007 to March 2009 represented the pre-HRRP phase, April 2009 to September 2012 represented the implementation phase, and October 2012 to October 2015 represented the penalty phase. We used an interrupted time-series analysis to examine whether there was an increased probability of readmissions between days 31 to 35 as compared to days 25 to 30. This was implemented using Poisson and Quasi-Poisson models to generate a slope and intercept change model with adjustments for seasonality by condition. We then compared the changes in slopes for AMI, CHF, pneumonia and stroke in the separate phases. Results: A total of 68,020,501 admissions were included in this analysis. For AMI, the slopes for readmissions between days 31 to 35 as compared to days 25 to 30 over time were -0.003, 0.001 and -0.0003 for the three phases, respectively. The change in slope between the pre-HRRP and penalty phase was 0.003 (p=0.31). For pneumonia, the slopes for readmissions between days 31 to 35 as compared to days 25 to 30 over time were 0.002, -0.0004 and 0.001 for the three phases, respectively. The change in slope between the pre-HRRP and penalty phase was -0.001 (p=0.74). For CHF, the slopes for readmissions between days 31 to 35 as compared to days 25 to 30 over time were 0.001, -0.0002 and -0.001 for the three phases, respectively. The change in slope between the pre-HRRP and penalty phase was -0.001 (p=0.29). For stroke, the changes in slope between days 31 to 35 as compared to days 25 to 30 were 0.002, 0.0004 and -0.002 for the three phases, respectively. The change in slope between the pre-HRRP and penalty phase was -0.004 (p=0.11). Conclusions: Using a national sample of Medicare enrollees, we found no association between the start of HRRP and higher likelihood of readmissions for AMI, CHF, or pneumonia just after 30 days.

Person reference, identity, and linguistic violence in capital trials

This study examines the ways in which lawyers exploit person reference in the context of the penalty phase of capital trials. Based upon twelve closing arguments from six capital trials, the quantitative and qualitative analysis explicates how the defendant and victim are made into certain kinds of people and identifies stark characteristic patterns by opposing lawyers. Specifically, the use of reference terms in this context constitutes a representation of “linguistic violence” by the prosecution. This is achieved by estranging the individual on trial while invoking solidarity for the victims (mainly through proper names), silencing and backgrounding other characteristics of the defendant while highlighting those of the victims (mainly through functionalizations), and assigning full agency to the defendant and emphasizing violence done to the victims (mainly through identifications and impersonalizations). In contrast, attempts by the defense are also witnessed that neutralize or defeat such linguistic violence by selecting terms that personalize and contextualize the person on trial while silencing the issues of damage and victimization, and that attribute violent acts to other causes, thereby reducing the individual’s full agency and responsibility. I argue that this extreme, and, at times, problematic and disturbing referential practice morally and normatively constructs, as the discourse unfolds on a moment-by-moment basis, the heinousness of the crime as well as the dangerousness and incorrigibility of the defendant, potentially leading to jury recommendations for death sentences.

The heterogeneity of victim impact statements: A content analysis of capital trial sentencing penalty phase transcripts.

The heterogeneity of victim impact statements: A content analysis of capital trial sentencing penalty phase transcripts.

Gender differences in the evaluation of aggravating and mitigating circumstances: the mediating role of attributional complexity

ABSTRACTAt the penalty phase of a capital trial, jurors endorse and weigh aggravators and mitigators. The purpose of the current studies was to examine how gender differences in attributional complexity relate to endorsements of aggravators and mitigators. In Study 1, undergraduate participants read definitions of aggravators and mitigators and rated the extent to which circumstances were aggravating or mitigating. In Study 2, a death qualified community sample read a trial summary, rated the extent to which aggravators and mitigators were present in the case, reported whether mitigators outweighed aggravators, and rendered a sentence. Results indicated that gender differences in mitigator endorsement were mediated by attributional complexity, and that gender differences in sentencing decisions were serially mediated by attributional complexity, mitigator endorsement, and aggravator and mitigator weighing.

The Impact of Angry Versus Sad Victim Impact Statements on Mock Jurors’ Sentencing Decisions in a Capital Trial

The present study tested the effects of angry and sad victim impact statements (VIS) on jury eligible participants’ decisions. Death qualified participants ( N = 581) watched the penalty phase of a capital trial that varied the presence and emotional content of the VIS (angry, sad, or no VIS) along with the strength of mitigating evidence (weak or strong). Results revealed that Angry VIS led to an increase in death sentences, whereas Sad VIS did not. Furthermore, participants who reported becoming angry during the trial were more likely to render a death sentence, but participants who became sad during the trial were not. No interaction was found between VIS and strength of mitigating evidence, but participants exposed to the angry VIS did rate the mitigating evidence as less important to their decisions. The results indicate that VIS are not inherently biasing, nor are all emotions equally impactful on sentencing decisions.

Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm

This article discusses the Quebec Court of Appeal decision in Cook that provides an unambiguous affirmation of the importance of victim impact evidence as a source of aggravation at sentencing. If followed in other jurisdictions, the decision will have a significant impact on the evolution of victim impact statements. To date, the victim impact statement has remained in a legal no man’s land, somewhere between an unsworn statement made by the victim, which may (or may not) be entered into the record and a form of evidence that can affect the quantum of punishment and hence the liberty interests of the defendant. This state of affairs is unsatisfactory for all concerned. In our view a victim impact statement serves a number of purposes, some expressive in nature. We discuss the concept of ancillary harm — inflicted on secondary crime victims — to demonstrate the utility of impact statements as a source of legally-relevant information at sentencing. We conclude that an impact statement is evidence that enables the court to reach a more accurate determination of the harm created by the offence. In this sense the use of victim impact evidence promotes the principle of proportionality at sentencing. This evidence is properly adduced at a separate penalty phase of the criminal process, namely the sentencing hearing.

The Sociologist as Story Teller: The Broken Foster Care System Used as Mitigation at Criminal Trial

This paper describes the role a sociologist in a capital murder case involving a defendant who was in foster care and adoption for most of his youth. The author of this paper worked as a sociologist/ mitigation expert in this case. The circumstances of his tragic life leading up to and in the foster care system is presented as mitigation. A literature review on the issues surrounding foster care, presented here, was developed and given to all experts and attorneys working on this case. These issues were to be presented whenever appropriate in their testimony or questioning, during both the guilt and penalty phase. The jury found him guilty of two counts of first degree murder; but voted for life during the sentencing phase. The utility of sociology in criminal cases in general is discussed.

Brief on Behalf of the National Black Law Students Association as Amicus Curiae in Buck v. Davis

This Amicus Curiae Brief was filed on behalf of the National Black Law Students Association in Buck v. Davis, on appeal to the Supreme Court of the United States. Duane Buck was convicted of capital murder in Texas. During the penalty phase, Mr. Buck's own defense attorney presented the testimony of a clinical psychologist who said that he included race in his future dangerousness analysis because Blacks and Latinos are overrepresented in the criminal justice system. On cross examination, the prosecution prompted the psychologist to clarify his position and the psychologist stated that the fact that Mr. Buck is Black created a greater likelihood of future dangerousness. The jury found that Mr. Buck was a future danger and sentenced him to death. The amicus curiae brief recounts the history of the stereotype that Black people are unusually dangerous and how the narrative of Black dangerousness remains a part of our cultural view. The brief argues that the effect of this relentless narrative is that national debates about race — from criminal justice reform to parenting to education to housing — are driven by and even resolved with the idea of the excessive criminality of Black people. The brief drew examples ranging from the racial disparities in school discipline to the media and social media using the word thug more than 625 times the day after Black professional football player Richard Sherman bragged about his athletic abilities, to the murder of Trayvon Martin. The brief also argues that when there are racial appeals in the criminal justice system, procedural hurdles should not be interpreted to prevent review.

The Impact of Neuroimages in the Sentencing Phase of Capital Trials

Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and nonexpert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials. Two mock jury experiments (n = 825 and n = 882) were conducted online using nationally representative samples of persons who were jury eligible and death qualified. Participants were randomly assigned to experimental conditions varying the defendant's diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation). For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; nonimage neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that the defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or nonimage neurological, but when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.

Conflict in the Jury Room

A number of studies have shown how participants work to accomplish their goals in ways that minimize the possibility of acrimonious conflict. And yet acrimonious conflict does occur. This raises the issue of what circumstances and discursive moves engender acrimonious interactions and what circumstances and discursive moves avert them. We address this issue through the analysis of segments of a jury deliberation in the penalty phase of a murder trial. We followed the lead of writers who have tied the outbreak of an acrimonious interaction to the launching of a complaint that exposes a personal flaw in the target. We examine three cases where one juror made such a complaint about another. In two of those cases, an acrimonious interaction did not ensue, in the third it did. In comparing these cases, we found that much depends on whether the complainant’s wording and sequential placement of the complaint are mitigating or inflammatory, and much depends on whether the target juror resists the complaint in ways that engender acrimony or concedes and avoids engendering it.