May|June 2004



DUCKING THE DEATH PENALTY

Illinois governor George Ryan made big news last year when he commuted the sentences of all 167 prisoners on death row in his state, just before handing over the statehouse to his successor. Under federal investigation for misusing state funds for tax fraud, Ryan had declined to run for re-election, and he knew that he couldn't hurt his political fortunes by taking a stand against the death penalty. (Ryan was indicted in federal district court in December.) For death penalty opponents, Ryan's commutations were clearly a happy occasion, but they were also yet another example of the arbitrariness of the death penalty. Why should prisoners who were on Illinois's death row when Ryan issued his order fare better than those who were executed before he took office—or those who were on death row in Texas?

"Who Shall Live and Who Shall Die?," a forthcoming Journal of Legal Studies article by University of Colorado professors Laura Argys and Naci Mocan, examines what characteristics are most likely to lead to a death row inmate's escaping his death sentence. While 70 percent of the death row inmates who avoid execution earn their reprieves through the appellate process, this study also considers what happens to prisoners who have exhausted their appeals without a victory yet still manage to avoid being put to death.

When the choices come down to commutation or execution, demographics are good predictors: Women are more likely to live than men, young are more likely to live than old (no death row inmate over 69 has ever had his sentence commuted), and those with only a grade school education are more likely to live than those with a high school degree.

Political factors matter even more. Though the study's data ended before Ryan's mass commutation, the authors found that lame-duck governors were 82 percent more likely to commute a sentence than new or returning governors. The authors don't note it, but their data suggest that some politicians lack the courage of their convictions when it comes to the death penalty. It can take losing an election—or a pending federal investigation—to bring out an anti-death-penalty stance. If death row inmates could vote, they'd be wise to cast ballots against the incumbent. Journal of Legal Studies, Volume 33, Number 2

DON'T PROSECUTE ME, I'M LOCAL

Connecticut governor John Rowland, like George Ryan, has been under a federal prosecutor's microscope for misconduct, in his case involving free improvements to his vacation house. It's been a bad year for sticky-fingered governors, thanks in large part to the Feds.

Federal investigations have become the principal mechanism for unearthing and prosecuting state—and sometimes local—corruption. The Feds' investigation of Ryan's malfeasance hasn't raised too many eyebrows because the federal prosecution of state corruption has become commonplace. But what about the federal prosecution of a corrupt city mayor—or a local police officer who accepts bribes to make speeding tickets go away? Since the Constitution gives state governments autonomy on a variety of legal issues, federal courts have given mixed answers to the question of when federal prosecutors can intervene and when such action is an invasion of state authority. "Federalism and the Federal Prosecution of State and Local Corruption," by Wayne State University law professor Peter Henning, answers the charge that the federal government has overstepped its jurisdictional bounds in prosecuting local governments.

Henning, drawing on recent rulings and his own reading of the Constitution, argues that there is a clear federal interest in preserving the ethical and legal integrity of state governments. The Supreme Court has found that the federal government is barred from prosecuting purely local crime, like gun possession in public schools or rape.

But Henning suggests that corruption should be an exception to this broader rule, since corruption undermines the very basis of state autonomy. Federalism was designed to ensure checks and balances between federal and state power, he says, and states won't be equipped to provide any kind of balance if they've got crooks at the helm. Kentucky Law Journal, Volume 92, Number 1

SETTLING FOR LESS

When civil cases do go to trial, the chances of either side winning are 50-50. When it's clear what the likely outcome and the costs of a trial will be, parties typically make a deal. Trials are reserved for the really hard-to-predict cases, where the sides can't agree about what will happen in court.

For years, the legal academy has thought that criminal plea bargains are like civil settlements—the best and most efficient way of resolving cases where the outcomes are easy to predict. Not so, says Stephanos Bibas in the Harvard Law Review.

"Plea Bargaining Outside the Shadow of Trial" points to a number of structural and psychological factors that may lead criminal parties to make the wrong choices about whether to plead and about which deals to accept. Underpaid public defenders, for example, may be motivated to plead out meritorious cases because of the difficulty and time involved in mounting an effective trial defense. Innocent defendants rarely know the case against them and tend to be risk-averse, so they may be motivated to plead to crimes they didn't commit. By contrast, overconfident defendants may accept the risks of trial, even if their chances of success are not high. Trial outcomes suggest some defendants are miscalculating. Overall, only 6 percent of criminal cases are decided at trial, but roughly 75 percent of those end in conviction.

Bibas's paper is more a call to arms than a plan of attack. He fails to identify which factors most pervert the system; he's content to suggest that empirical work is needed in the field to settle such questions. His article is a reminder, however, that criminal defendants may behave less rationally than civil litigants, and that their irrationality may put them at a disadvantage in negotiations with prosecutors. Harvard Law Review, Volume 117, Number 8