Playing With Numbers

Lawyers are no good at it.  Even SCOTUS Justices like Scalia are no good at it.

Following up on our previous post here at Lawyers on Strike, go ahead and read the last paragraph in Nino’s dissent in the very recent McQuiggin v. Perkins.  No wait, I’ll just quote it here:

The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today’s decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.

A little perspective, please.  In 1953 the prison population of the United States was about 250,000.  In recent years it has apparently maxed out at about 2.5 million.

As we’ve noted before, the true upper limit of our ability to imprison our fellow citizens and human beings is established by budgets, not concerns about whether we might be doing anything wrong, raising the disturbing specter of increasingly indiscriminate incarceration.  Since even Justice Rehnquist, no friend of criminal defendants, has said:

After  all, the central purpose of any system of criminal justice  is to convict the guilty and free the innocent.  See UnitedStates v. Nobles, 422 U.S. 225, 230 (1975).

it would seem that any evidence of indiscriminate incarceration – such as Brown v. Plata – would be troubling to judges, especially SCOTUS justices, who are supposed to bear some sort of overall responsibility for this mess the criminal justice system in the United States.

So with all that in mind, let’s take a slightly critical look at Nino’s little foray in arithmetic to see whether the superficial force of his argument bears up under any scrutiny at all.  The 1953 figure of 541 federal habeas petitions divided into the country’s then-prison-population of 250,000 indicates that two tenths of one percent of those prisoners filed federal habeas corpus petitions.  The 2012 figure Nino cites of 15,929 equates to six tenths of one percent of the overall prison population of 2.5 million.

Can an increase from 2/10 of 1% to 6/10 of 1% accurately be described as “inundation” and a “flood”?  Admittedly, it’s a three-fold increase – from infinitesimal to miniscule might be one way of putting it.

Moreover, as recently as 2011 – the very previous year – Nino’s 15,929 number could have been 17,000.  As recently as 2006 the number would have been closer to 20,000.

In other words, the number of federal habeas petitions filed by state prisoners has been precipitously declining of late.

The real story is that we’re imprisoning too many people because the courts have largely abdicated their responsibility to accurately determine guilt or innocence.  As the proportion of innocent people locked up has therefore increased as a result, so have the efforts of those people to free themselves, including federal habeas corpus.  This should hardly be surprising, the increase could hardly be described as a “flood”, especially given the severity of the problem, and to the extent we have more of these federal habeas petitions than we should that’s a reflection of the dismal performance of our state criminal justice systems, as recently and prominently exemplified in Arizona by the Jodi Arias trial.

The real flood, as the linked chart and every other statistical measure show, has been in criminal convictions and incarceration, a 10 fold increase in the same time-frame as Nino’s numbers.  If you’re willing to tolerate that with few questions and little more than pat and heavily ideological answers to the questions you actually do bother to ask, you could also and probably more fairly ask if the “creaking at rusted joints” you’re hearing originates in your head.



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3 responses to “Playing With Numbers

  1. Jessie

    Isn’t the astronomical increase in incarceration rates due to things like mandatory sentencing and our hysterical reaction to drugs? That wouldn’t mean we’re necessarily locking up more innocent people, so much as we’re locking them up for things that either shouldn’t be so heavily sentenced or shouldn’t be crimes at all. How many are locked up just for simple pot possession? How many due to “three strikes” laws? Revocation of probation for minor offenses? And how much longer have sentences become?

    When more people are being charged, of course the raw number of wrongful convictions will also go up, but what you’re saying here implies that wrongful conviction rates are increasing AND that’s to blame for the dramatic rise in the prison population.

    I would say the problem isn’t that all those people convicted of minor offenses are innocent (i.e., did not commit the offense), but that a lot of those things either shouldn’t be offenses and/or shouldn’t be sentenced so heavily.

    Conveniently, though, it does keep lots of brown people from voting (in some cases, ever again) and it keeps money rolling into the private prison system. Win-win! USA! USA!

    On a side note: We just had a murder in my area recently. Woman slit another woman’s throat (“allegedly,” natch). Granted, the victim was also a woman, which evens out the weight class. But, still, it’s reportedly a similar sort of injury.

    I know you never said it was impossible that a woman would slit someone’s throat, but it stuck in my mind because it was a severe neck wound like that inflicted by a woman. The weight class is a pretty significant difference, at least on average, but that might be nothing more than the difference between a woman being able to overpower another woman without incapacitating her first.


    • Well, the “astronomical increase” is most likely due to a lot of things, some of which you mention of course. But there’s also this systemic element that’s more important than you might think if you’ve never experienced the system from the inside.

      I know a very clever attorney who decided he wouldn’t do any criminal defense work in federal court anymore because, as he quipped, he didn’t like being nothing more than a “speed bump” on the road to conviction.
      The conviction rate in federal court is north of 95%.

      The point being, that when the institutional momentum that accompanies criminal prosecutions encounters little or no resistance the momentum builds and eventually becomes this out of control monster, and this is a deceptively large factor in the US incarceration rate as well.

      Regarding your side note, it would be good to know if the woman who allegedly inflicted the injury had any history of violence, fighting, etc. Because you have to add the lack of that kind of history in for the JA situation, in addition to the weight class difference, in addition to the extreme nature of deliberately doing that, such that it would be rare even for the run-of-the-mill violent person.

      I mean, there are people out there arguing that the throat slit could have been the result of a freakishly “lucky” slash/swing with a knife and of course that’s true. But to give you an idea of how implausible that is, I personally know of a woman who killed her significant other because she swung the knife and hit his jugular in the course of a domestic altercation. But scoring a lethal nick in the right place swinging a knife like an amateur is very different from the ear to ear gash on Travis Alexander.

      I remain very skeptical that JA even killed TA at all, and everything I learn about that trial, especially the conduct of the judge and the over-indulged, over-confident but quite intelligence challenged prosecutor undermines any faith I might otherwise have in the outcome.


      • HonestAbe

        We know that money drives our government and it’s clear to see. We have wars being fought in various places for a so called “war on terror” yet were never really told what the war is really about. One always hears accusations that these Middle East wars are about oil but even though it is a valuable commodity per se, I have heard that huge lithium deposits in the Middle East are the main reason. Of course, we’ll probably never know. So, what does this have to do with our justice system? Well, for starters, our prison system is being increasingly privatized and guess what? It’s big business and it’s not only recession proof, it actually gets better during a recession.
        So what does this have to do with our judicial system? Well, for one thing, CCA needs prisoners to make money. This starts with the police and filters into the court system. But for this to work in the favor oc CCA, we need to influence juries. Well, Casey Anthony certainly helped after OJ got the ball rolling. Now we have Jodi Arias. Yeah, yeah, but how do we get the juries to think people are guilty when we deal with evidence? Simple, the media.
        If you watched the coverage or even listened to it, HLN did a number on Jodi Arias, big time. Everyone focus was away from the pieces of evidence and to her lies, her antics such as headstands, her sex tapes, nude photos, etc. and focused on the number of stabs, an emotional appeal for the family and for Travis and if you think I’m wrong, go through FB or Twitter and see how many “Justice for Travis” avatars you see.
        Investigative reporting should have consisted of identifying how many .25 caliber guns are in circulation, how many are stolen, and comparing ballistics and fatality rate of various shots to the head. Considering it’s the desert, I would have been interested in seeing how many people bring along extra gas when going from CA to AZ. I would have been interested to know the average pounds of pressure it takes to slice one’s throat and how easy it really is. There are lots of armed forces people who can tell you. For kicks, go ask OJ as Nicole’s neck was but so deeply that her bone was nicked and if you remember back to that case, the defense noted that such an attack is very difficult to do without training (unfortunately, OJ received the training for a movie).
        Look, I don’t know Travis or Jodi but I do know what justice is and I didn’t see a jury that really evaluated the evidence presented to them. I heard one juror, a woman who spoke with a self-importance flair, who said the prosecution proved it’s case. I have to say, I wasn’t angry but rather confused because all Martinez did was toss out a theory, which morphed a little during the trial by the way, and the jury bought it.
        Litigation is not my profession but I was surprised that we saw more focus on trying to confirm abuse than attacking the pieces of evidence and ripping apart Martinez and Flores for not even being able to tell us with certainty if Travis was shot first or last. Martinez insists it was last. Kevin Horn said it was probably last, yet HLN produced a pathologist who noted that he could have been shot first and why. How come this was never introduced. Where’s Michael Baden when you need him?
        I can accept the verdict but I don’t like it. It’s not because I don’t feel for Travis. It’s not because I don’t feel for his family. It’s because I think there is a likelihood that the person who did this is still out there. Exploring all possibilities is “Justice for Travis” not the conviction of a disliked former girlfriend with poor decision-making skills and a penchant for interviews.


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