Prior Convictions Research Articles

Finally, a True Elements Test

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of the War on Crime started in the 1980s, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses for lawful permanent residents with criminal records, the Court has demanded that convictions used for deportation strictly correspond to a federal removal ground. In both Descamps v. U.S. and Mathis v. U.S., recent Armed Career Criminal Act opinions authored by Justice Kagan, the Supreme Court interpreted the categorical approach as requiring a true elements test, declaring that at least two decades of the Court’s precedent required this result. Yet, Justice Breyer and Justice Ginsburg, two justices who had been in the majority in Descamps, dissented in Mathis. This Essay analyzes the trajectory of the Court’s categorical approach decisions, using the Mathis dissent authored by Justice Breyer, and joined by Justice Ginsburg, to explain an ambiguity in the Court’s jurisprudence that Descamps and Mathis have now settled. While Justice Kagan’s penchant for hyperbole oversimplifies the relationship between the Court’s early and late decisions regarding the categorical approach, the holdings of Descamps and Mathis are not only correct. They are likely constitutionally mandated.

Criminal Practice Developments in Maryland Evidence Law and Confrontation Clause Jurisprudence

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The Confrontation Clause; Authentication: Rules 5-901 – 5-902.

Using Risk to Assess the Legal Violence of Mandatory Detention

Immigration mandatory detention is a particularly harsh example of the structural violence embedded in immigration enforcement. It deprives liberty without bond for immigrants with prior crimes, and assigns many individuals to the harsh conditions associated with unnecessary and even wrongful detention. Mandatory detention has been justified on the grounds that mandatory detainees are a danger to public safety. This article puts to the test this presumption of dangerousness among mandatory detainees, and finds, to the contrary, that immigrants with prior charges or convictions are no more dangerous than any other category of individuals in Immigration and Customs Enforcement (ICE) custody. Using the risk classification assessment (RCA) tool, which the author is the first to obtain through the Freedom of Information Act, the article contributes to the growing criticism of mandatory detention, providing evidence that many of those in mandatory detention should probably have never been detained.

Criminal Histories in Public Housing

As America attempts to remedy the harsh sentencing policies enacted during the “War on Drugs” in the 1980s and 1990s, hundreds of thousands of ex-offenders are being released from jails and prisons annually. Upon release, these individuals will confront legal obstacles in their quest to reenter society. Based solely on the fact of prior criminal conviction, new releasees will inevitably confront statutory “civil” penalties severely limiting their most basic opportunities for employment, education, and housing. Known as “collateral consequences,” these penalties relegate ex-offenders to the status of second-class citizens by systematically depriving them of individual rights and privileges. Professor Gabriel “Jack” Chin has classified this socioeconomic phenomenon as the “New Civil Death.” This Article focuses on one cluster of collateral consequences that deprive those who have paid their debt to society of a basic necessity — affordable housing.Collateral consequences are sanctions specifically targeted at individuals with criminal convictions. They operate outside the normal criminal process and are not considered in criminal sentencing determinations. They are characterized as “civil” in nature and thus exempt from most of the constitutional protections that are triggered by the criminal process. The basic principle underlying these penalties can be stated simply: individuals who do not play by the rules do not get to play the game. Thus, those with criminal histories are less deserving of socioeconomic opportunity, as they have demonstrated that they will not play by the rules. In the past 20 years, reentry scholars and advocates have encouraged the review and reform of a number of collateral consequences. For example, Christopher Uggen and Jeff Manza’s 2000 study demonstrated the way in which felon disenfranchisement could affect election outcomes. Today, most states reenfranchise upon completion of a criminal sentence. More recent scholarship that focused on immigration likely influenced the United States Supreme Court’s decision in Padilla v. Kentucky. Moreover, for the past decade, not for profit agencies, as well as governmental bodies such as the Equal Employment Opportunity Commission (EEOC), have worked on implementing fairness standards in both the public and private employment markets. Housing consequences, while not ignored, must also be critically reexamined and reformed.This Article adds to the existing reentry scholarship and advocacy by identifying and examining issues in the administration of federal public housing policy and inequities inherent in the current system. More specifically, this Article explores federal public housing policies regarding the use of criminal history information in determining the eligibility of applicants seeking admission to federal public housing programming. This criminal history information includes not only criminal convictions but also arrests and prior drug use. I argue that in light of recent federal reentry initiatives, federal housing law must be substantially reformed.

In Search of a Second Chance: Channeling BMW V. Gore and Reconsidering Occupational Licensing Restrictions

In Search of a Second Chance: Channeling BMW V. Gore and Reconsidering Occupational Licensing Restrictions

Changing the Ties that Bind

Research SummaryBy using a subsample of the Returning Home data set, we explored how family relationships change during reentry as a result of incarceration. Overall, we found that individuals who completed parenting classes, those with more frequent visits from family members, and Black and female respondents experienced positive changes in family relationships. On the other hand, single and divorced individuals, those with prior convictions and mental health issues, and individuals who reported barriers to family contact reported significant negative changes within the family relationship.Policy ImplicationsThe findings from this study suggest that reducing barriers to family contact—especially the cost of visitation and visitation procedures—may lead to positive changes within family relationships for formerly incarcerated individuals. Furthermore, developing programs to assist individuals with mental health issues to maintain family relationships may create avenues to help those individuals keep, or reestablish, family ties after release.

Open-minded cognition: The attitude justification effect

Although open-mindedness is generally valued, people are not equally open-minded in all situations. Open-mindedness is viewed as socially desirable when individuals encounter viewpoints that are compatible with conventional social norms. However, open-mindedness is viewed in less desirable terms when individuals encounter viewpoints that undermine these norms. The perceived desirability of open-mindedness is also influenced by the individual’s personal attitudinal convictions. Individuals ‘inflate’ the normative appropriateness of open-mindedness when it serves to reinforce their convictions, but devalue the normative appropriateness of open-mindedness when it serves to contradict these convictions. Conversely, normative prohibition of closed-mindedness is exaggerated when a closed-minded orientation threatens the individual’s personal attitudinal convictions, but is minimized (or reversed) when a closed-minded orientation reinforces these convictions. Paradoxically, the perceived appropriateness of open-mindedness is engendered (at least in part) by the motivation to confirm one’s prior attitudinal convictions. Evidence of this attitude justification effect is obtained in two experiments.

Prior convictions, conduct and disposition: a scientific perspective

ABSTRACTThe use of prior conduct and convictions in criminal proceedings has been a controversial issue for over a hundred years. Rarely does a year go by without another call from lawmakers or prominent citizens for prior convictions and ‘history’ to be made available to tribunals to resolve issues of guilt. Yet the debate seems to have reached an impasse, with the proponents of either side facing off at 20 paces, armed only with the familiar arguments that have failed to prevail in the past. The lack of resolution in the debate suggests that it needs to be reframed. The present article proposes a perspective based on broader scientific methodology, analysing factual decisions in a criminal trial as a form of probabilistic argument. The psychology of probabilistic reasoning is examined with a focus on the effect of attributional information on judgments of probability. The logical structures of factual reasoning about disposition, tendency, similar facts and coincidence are then put under the microscope to expose some new arguments, some weaknesses in old arguments, and some quantitative relations that affect probability judgments in this area.

Mind the Gap: The Unique Disadvantage Faced by Indigent Indians

In 2014, the Ninth Circuit created a federal circuit split over the use of tribal court convictions in federal prosecutions that the Supreme Court will soon resolve. In United States v. Bryant, the Ninth Circuit held that tribal court convictions cannot be used as predicate offenses in subsequent federal prosecutions unless the tribal court guarantees a right to counsel commensurate with the Sixth Amendment right. The Court accordingly dismissed a federal domestic assault charge under 18 U.S.C. § 117(a) because the predicate offense upon which the prosecution relied would have violated the Sixth Amendment right to counsel had the case arisen in federal or state court. The Court rooted its decision in the principle commonly espoused in criminal procedure jurisprudence that uncounseled convictions are unreliable. Extending this reliability principle to tribal proceedings is, perhaps predictably, problematic since indigent defendants are rarely guaranteed the right to appointed counsel, and the Constitution itself is without force in tribal courts. The Eighth and Tenth Circuits have thus upheld the use of uncounseled tribal court convictions on comity grounds. This Note analyzes the Eighth, Ninth, and Tenth Circuit cases to highlight the unique disadvantage indigent Indian defendants with prior uncounseled tribal court convictions confront when prosecuted under § 117(a). With an eye toward the Supreme Court, this Note proposes an alternative interpretation of the statute that avoids the constitutional quandary created by the Eighth and Tenth Circuits' holdings. This Note concludes by urging the Court to seize the opportunity United States v. Bryant presents to reassess Congress' immense plenary power under the Indian Commerce Clause.

The effect of criminal convictions on real estate agent decisions in New York City

Prior research suggests that a felony conviction limits housing opportunities. This study used an experimental audit design to determine the effect of a felony conviction on real estate agent willingness to accept prospective clients. A male and a female ‘tester’ posing as apartment seekers called real estate agents in New York City to ask for assistance renting an apartment. Conviction type was manipulated such that testers posed as non-offenders (control) or as having a prior conviction for either drug trafficking, statutory rape, or child molestation (experimental groups) to measure the extent to which offense type influenced agent responses. Analyses indicated that a prior conviction was associated with a significant decrease in agent willingness to accept prospective clients, most notably for those with child molestation conviction. Agents were more willing to help prospective clients seeking more expensive apartments, although the time of year nullified the effect of cost. The results suggest that agents may be more concerned with the financial status of prospective clients than their criminal history but market forces override their decisions to accept a client. This study has implications for the ways in which the formerly incarcerated seek housing and how policy can address housing this population.

Conditional Release of Forensic Psychiatric Patients Consistent with or Contrary to Behavioral Experts' Recommendations in the Netherlands: Prevalence Rates, Patient Characteristics and Recidivism After Discharge from Conditional Release.

The present study examined a group of 447 Dutch forensic psychiatric patients on conditional release (CR). After a brief overview of the Dutch CR system for forensic psychiatric patients is presented, two sets of factors were studied: factors associated with behavioral experts' recommendations on CR readiness (prevalence rates of recommendations in contrast to or consistent with the judge's decision on CR, written vs. oral recommendations and consensus among parties); and characteristics of forensic psychiatric patients on CR imposed consistent with or contrary to behavioral experts' recommendations (i.e., demographic variables, psychopathology, judicial background and outcomes of violent behavior). Patients on CR consistent with or contrary to the behavioral experts' recommendations did not differ in demographic background variables and psychopathology. Patients on CR contrary to the behavioral experts' recommendations, however, had more prior convictions, and their index offense more often included a sex offense and a property offense (with or without violence) as compared to patients on CR consistent with the behavioral experts' recommendations. In addition, decisions contrary to the behavioral experts' recommendations were more often reached after a 3-month continuation adjournment and after an appeal. Also, patients on CR contrary to the behavioral experts' recommendations were less often found to have been on trial leave before their CR. Finally, recidivism rates were found to be much higher for those on CR contrary to, as compared with those on CR consistent with the behavioral experts' recommendations. However, when corrected for other well-known static predictors of recidivism, this significant difference was no longer prevalent. The implications for evaluators' CR readiness reports and lessons that may be learned from the Dutch forensic psychiatric CR system are discussed. Copyright © 2016 John Wiley & Sons, Ltd.

The complexities of prior record, current crime type, and Hukou status in China: interactive effects in sentencing

Using sentencing data all over China from 2000 to 2011, this study examines the complex relationship between offenders’ prior record, current offense, hukou status and sentencing outcomes. Based on the perspectives and findings of previous studies conducted in common-law jurisdictions, this study suggests that prior record influences sentencing decisions in a complex manner and the number of prior conviction as a measure of prior record is not adequate. Furthermore, it also appears that the prior record effects are contingent upon current offense type, carrying more weight on the less serious current crime compared to more serious current crime. Finally, after illustrating the existence of sentencing disparity based on hukou status, this study uncovers that the interactive effects between prior record and hukou discrimination are dependent on the current offense type in China.

Hugo L. Black’s Dissents: From Betts to Gideon

Hugo L. Black’s Dissents: From Betts to Gideon MELVIN I. UROFSKY A dissent in an appellate court, especially the Supreme Court, is more than a statement of disagreement with the majority decision. While most dissents—and many majority opinions—are soon and rightfully forgotten, there are some that have a life of their own, sometimes outlasting the life of their authors. These dissents fit the description penned by Charles Evans Hughes: “A dissent in a court oflast resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissentingjudge believes the court to have been betrayed. Nor is this appeal always in vain.”' All dissents are part of a constitutional dialogue, one that takes place primarily among members ofthe high courtbut also between the Court and the other branches of government, the states, and the citizenry. The dissents that are important, described by some scholars as “prophetic dissents,” are those that essen­ tially will not go away. Their logic, their style, their argument is so strong that eventually the Court—often years later—will come around to theirpoint ofview. The first Justice Harlan’s dissents in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896) seemed to have been forgotten until they emerged triumphant in Brown v. BoardofEducation (1954) and the subsequent civil rights decisions ofthe Warren Court.2 The dissents by Oliver Wendell Holmes, Jr., and Louis D. Brandeis in the speech cases of the 1920s were eventually adopted in Brandenburg v. Ohio (1969).3 One of these prophetic dissents was written by Hugo L. Black in 1942, and, unlike Harlan, Holmes, and Brandeis, he lived to see his dissent become the law of the land. The Betts Case In May 1939, Smith Betts, an unem­ ployed farm worker, found himself in the Circuit Court of Carroll County, Maryland, about an hour northwest of Baltimore. Fortythree years old and on relief, he was charged with the armed robbery of a country store on Christmas Eve, 1938. When arraigned before HUGO L. BLACK’S DISSENTS: FROM BETTS TO GIDEON 91 Judge William H. Forsythe, Jr., he said he could not hire an attorney, and he requested that the court appoint a lawyer to represent him. Judge Forsythe said this could not be done, as the practice in Carroll County was to appoint counsel for indigent defendants only in prosecutions for murder and rape. No stranger to the court system—in 1935, he had been sentenced to three years in prison after a larceny conviction—Betts did not waive his right to counsel, pleaded not guilty, and asked to be tried without ajury. He gave the court a list of witnesses he wanted called in his behalf, cross-examined the State’s witnesses, and examined his own witnesses in trying to show he had an alibi. Betts did not, however, take the stand in his own behalf, because his prior conviction could then have been entered into testimony. After hearing the evidence, the judge found Betts guilty and sentenced him to eight years in prison. While serving his sentence, Betts filed a petition with the Circuit Court for Wash­ ington County for a writ of habeas corpus, claiming he had been denied the right of counsel guaranteed to him by the Fourteenth Amendment. The circuit court heard Betts’s arguments and rejected them. Returned to jail, he now filed another petition for habeas corpus with the Chief Judge of the Maryland Court of Appeals, Carroll T. Bond. Because the state’s highest court recognized the importance ofthe issue, it directed an attorney to help Betts with the appeal. At the hearing, both sides agreed on a formal statement of facts incorporating the trial record, and, although Judge Bond issued the writ, he nonetheless denied Betts reliefand remanded him to prison. In his opinion, Judge Bond said that the trial had been simple and routine, and “in this case it must be said there was little for counsel to do on either side.” Betts had been able “to take care of his own interests.” Subsequent examination of the case reveals that...

Predicate Offenses, Foreign Convictions, and Trusting Tribal Courts

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the perpetrator has at least two prior domestic abuse convictions, because Bryant’s convictions did “not comport with the Sixth Amendment right to counsel.” The Ninth Circuit decision jeopardizes the health and safety of Native American women and stymies federal efforts to prosecute domestic violence in Indian country. Available studies suggest domestic abuse is a grave concern among indigenous communities. For instance, over half of indigenous women respondents to a Department of Justice survey reported being stalked, physically assaulted, or raped during their lifetimes. But the stakes of the case also extend to the legitimacy of tribal courts. Because federal courts often allow the use of foreign convictions as predicate offenses or factor them into sentencing decisions, even where those convictions would have violated the U.S. Constitution if obtained domestically, the Ninth Circuit’s rejection of the uncounseled conviction in United States v. Bryant implicitly suggested that tribal courts are less reliable fora than many foreign courts. This year the Supreme Court will have the opportunity to repudiate the Ninth Circuit’s distrust of tribal court procedures and affirm its commitment to the integrity of tribal courts.

Facts or Ideology: What Determines the Results of Econometric Estimates of the Deterrent Effect of the Death Penalty? A Meta-Analysis

Given that as a whole the literature on the deterrent effect of capital punishment is inconclusive, the fact that individual authors persistently claim to have found solid evidence in one or the other direction raises two questions. Firstly, what are the causes of these different results? Do different data samples, estimation methods or time periods lead to different results or do the outcomes merely reflect prior convictions on the part of the authors? Secondly, to what extent is it possible to derive such divergent results by slightly changing the specification of the test equations without violating scientific standards? After conducting a survey of the more than forty available reviews of this literature, we present a meta-analysis of 102 deterrence studies published between 1975 and 2011. The only statistically significant explanatory variable in these studies turned out to be the profession of the author: Economists claimed significantly more often than members of legal or other social science departments to have found a significant deterrent effect. Furthermore, using a panel data set of U.S. states, we show how easy it is to derive contradictory results by employing alternative specifications. Thus, our results reinforce the claim that the empirical evidence presented to date is far too fragile to provide a basis for political decisions.

Analysis of “Powder Keg Theory” in State Escape Statutes

Escape research has debunked the powder keg theory that all escapes are inherently violent and may explode into violence at any given time. The vast majority of escapes takes place from minimum secure facilities and do not involve force at time of escape or recapture. Nevertheless, federal defendants often receive unduly harsh sentences based on prior escape convictions because courts assume that the majority of escapes are violent for purposes of sentencing enhancement. This study analyzed all 50 U.S. state escape statutes to determine which states classify escapes in a manner consistent with the powder keg theory. Results indicated that the majority of state statutes neither concurred with the powder keg theory nor favored a more nuanced understanding of the relationship between escapes and potential violence. Policy implications of these findings and potential pathways for future escape research are discussed. This article concludes that criminal acts of escape must be reconsidered for sentencing purposes in relation to their potential violence, risks, and intentions.

Alcohol, drug and other prior crimes and risk of arrest in handgun purchasers: protocol for a controlled observational study

Background and objectiveAlcohol abuse is common in the USA and is a well-established risk factor for violence. Other drug use and criminal activity are risk factors as well and frequently...

Compensating the Innocent: Perceptions of Exonerees’ Deservingness to Receive Financial Compensation for Wrongful Convictions

Those who have been wrongfully imprisoned face a variety of challenges upon reentering the community, and monetary compensation may be helpful in rebuilding one’s life following a period of incarceration. However, very little is known about factors that may impact public attitudes regarding compensation policy. Using a sample of 396 university students, we investigated the role of exonerees’ race/ethnicity and prior conviction history, as well as participants’ socially dominant and right-wing authoritarian attitudes in explaining beliefs about financial compensation. Results suggest that males, minority group members, and older participants tended to rate hypothetical exonerees as more deserving of financial compensation. Perceptions of deservingness for compensation did not differ according to the exonerees’ race/ethnicity, but exonerees who had no prior convictions were perceived as more deserving compared with those with prior misdemeanor or felony drug convictions. Participants’ right-wing authoritarianism scores were negatively associated with deservingness scores, whereas social dominance orientation scores were not significantly related to deservingness, after controlling for participant demographics and exoneree factors.

Domestic Homicide: Neuropsychological Profiles of Murderers Who Kill Family Members and Intimate Partners.

Domestic homicide is the most extreme form of domestic violence and one of the most common types of homicide. The objective was to examine differences between spontaneous domestic homicide and nondomestic homicide offenders regarding demographics, psychiatric history, crime characteristics, and neuropsychological status, utilizing neuropsychological test data from forensic examinations of 153 murderers. Using standard crime classification criteria, 33% committed spontaneous domestic homicides (SDH) and 61% committed nondomestic homicides (NDH). SDH offenders were more likely to manifest psychotic disorders, but less likely to be diagnosed with antisocial personality disorder or to have prior felony convictions. SDH offenders manifested significantly worse neuropsychological impairments than NDH offenders. The mean number of victims was lower for the SDH than the NDH group and only 14% of SDH offenders used a firearm, whereas 59% of NDH offenders used a firearm. These findings corroborate the notion that spontaneous domestic homicide may represent a discernible criminological phenotype.

Directive 2014/42/EU and Non-Conviction Based Confiscation: A Step Forward on Asset Recovery?

Depriving criminals of the control over the proceeds of crime has for several reasons become a priority on the national and international agenda. In the last decade, the European Union has adopted several legal instruments on asset recovery. However, due to their scarce success, the EU policy makers recently endeavoured to improve the legal framework: their efforts led to the recent Directive 2014/42/EU on the freezing and confiscation of proceeds of crime in the EU of 3 April 2014. One aspect is central in the debate on asset recovery: the possibility to introduce common rules on ‘non-conviction based confiscation’, i.e. confiscation orders independent from a prior conviction. This was much discussed during the legislative process for the adoption of the Directive, from which it eventually emerged containing a provision with a limited scope. This article elucidates the approach of the EU to fostering non-conviction based confiscation in the Member States, aiming to assess the potential impact of the non-conviction based confiscation provision in the Directive on the asset recovery process, and its compliance with fundamental rights.