15 June 2007

Unintended Consequences?

The June 2007 issue of the ABA Journal has an interesting article entitled "Judge v. Jury," by Jason Krause, in which Andy Leipold, a professor at the University of Illinois College of Law compared the acquittal rates of federal judges with that of federal juries. Using data from the Administrative Office of the U.S. Courts, Professor Leipold discovered that the conviction rates since 1946 have averaged 75% for juries and 73% for judges. But since 1946, the conviction rate for juries has been steadily climbing from just over 60% to around 90% in 2006. Meanwhile, the conviction rate for judges has had a more erratic history, but is trending downward from more than 90% in 1946 to about 65% in 1970 to above 85% in 1980, down to below 50% in 1995 and back up to about 63% in 2006. Professor Leipold "also discovered a correlation between judicial acquittal rates and the introduction of strict federal sentencing guidelines two decades ago." At 46. "In the 14 years from 1989 through 2002, the conviction rate of federal juries increased to 84 percent while that of federal judges decreased to 55 percent." At 47.

While it is an interesting theory, the statistics provided in a chart don't lead me to the same conclusion. The guidelines took effect in 1988, yet the decline between 1980 and 1995 was almost a straight line. Professor Leipold's theory does not seem to account for the decline in the conviction rate of federal judges from above 85% in 1980 to below 70% by the time the guidelines took effect in 1988.

I would hate to see sentencing guidelines in the military justice system. But I would not be surprised if some congressman attempted to introduce legislation to establish them. After all, military sentences often seem truly disparate, even after considering matters in aggravation and mitigation. I have always considered the military sentencing system one of its major flaws. Before the existence of military judges, court members had to determine sentences. But it makes no sense now. In the last 20 years, the court-martial rate has dropped significantly, and court members often lack experience sentencing. Judge alone sentencing would not be a panacea, but I would still expect more rational and consistent sentencing than we see today.

1 comment:

Anonymous said...

Personally, I've come to the belief that sentencing by members is not a weakness, but a strength of the military justice system. Still, it is in stark contrast to the great majority of civilian criminal justice systems (by my last count I could only find 5-6 jurisdictions that provided an option of sentencing by some authority other than a judge). Thus, if the history of military justice reform is the history of military justice scandals, I predict the next era of "reform" will arise from some controversy over the utter absence of limits on the sentencing authority of a court-martial, whether composed of members or of judge alone. Imagine, for example, a court sentencing an accused found guilty of child rape to 30 days restriction. What do you believe the reaction of the public or its elected representatives would be to the reality that no "mandatory minimum" or similar limit currently cabins the discretion of the sentencing authority at a court-martial?