Big Data and Criminal Justice

The debate about the criminal justice system increasingly is driven by empirical studies. Phil Dixon wrote thoughtfully last week about a new analysis of 700,000 drug arrests conducted by UNC faculty members outside the School of Government. This article by a Georgia law professor is also attracting attention – it claims to be “the most substantial empirical analysis of misdemeanor case processing to date,” based on “multiple court-record datasets, covering several million cases across eight diverse jurisdictions.” Similarly, in the popular media, this Washington Post article analyzes a huge trove of data to determine the percentage of arrests in each county across the nation that are based on marijuana possession.

I could list many more examples, but the general point is one with which I suspect most readers will agree: that big data is revolutionizing the discussion of criminal justice. This transformation has been unfolding for decades. Drivers include the growth of law and economics and other law and social science approaches, which has fertilized the legal field with social science techniques, and the increasing availability of large datasets, which has made statistical analysis easier. This post offers a few thoughts about the costs and benefits of this new data-focused world.

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News Roundup

This week federal prosecutors announced that they have charged 60 people, including 31 doctors, pharmacists, and medical professionals, with various offenses arising from an investigation into illegal opioid distribution and health care fraud.  Last year the Justice Department formed the Appalachian Regional Prescription Opioid Strike Force and dispatched experienced health care fraud attorneys to several federal districts across the country to build cases against “medical professionals [who] behave like drug dealers.”  The charges were brought in Ohio, Kentucky, Tennessee, Alabama, and West Virginia.  Additional arrests are expected to arise from the investigation.

The News Roundup comes a day early this week as the School is closed tomorrow for a holiday, we’ll be back to blogging on Monday.  Keep reading for more news.

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Bail Reform in North Carolina: Pretrial Preventative Detention

In this post, part of a series on Bail Reform in North Carolina, I discuss preventative detention of defendants who are too dangerous or who present too great a flight risk to be released pretrial. At least twenty-two states, the District of Columbia and the federal system provide for pretrial preventative detention through constitutional or statutory provisions. Although neither the North Carolina constitution nor the General Statutes expressly provide a procedure for it, pretrial preventative detention occurs in North Carolina in two ways. First, the General Statutes allow defendants charged with capital murder to be held in jail without conditions. Second, due to concerns about public safety, flight, and obstruction of justice, other defendants are intentionally detained pretrial through the imposition of unattainably high bonds. The use of a secured bond for preventative detention is an imperfect solution for this simple reason: if a high risk defendant has sufficient resources, he or she can pay the bond or bail bondsman’s fee and walk out of jail with no supervision. But for many defendants, when a judicial official sets what is meant to be an unattainably high bond for the purpose of holding a defendant pretrial, that goal is achieved: the defendant remains in detention. Preventative detention—whether implemented through a statute or through the use of unattainably high detention bonds—must comply with the constitution. In a paper (posted here) I explore the constitutional parameters of preventative detention, provide guidance to policymakers and stakeholders on the core components of a constitutionally compliant preventative detention scheme, present several model preventative detention schemes, and discuss related issues. In this post, I offer a quick summary of the constitutional requirements for preventative detention.

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Sharks, Minnows, and the Drug War

A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings.

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Extending Traffic Stops to Wait for Other Officers

May an officer prolong a traffic stop to wait for a second officer to come to the scene? An officer may want another officer present to provide backup, or may need assistance from an officer who speaks Spanish, is proficient at administering Standardized Field Sobriety Tests, or is a certified Drug Recognition Expert. Under Rodriguez v. United States, 575 U.S. __ (2015), a traffic stop may last no longer than necessary to complete the “mission” of the stop — addressing the traffic violation that prompted the stop while attending to officer safety. When waiting for another officer is part of the mission of the stop is a question with which courts across the country are grappling.

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News Roundup

On Wednesday, a ruptured gas line in Durham caused a massive explosion that killed one person and injured 25 others while also completely destroying a building and damaging property nearby.  The Durham Herald Sun reports that nine firefighters were among those injured in the blast as the department was in the process of evacuating people from the area surrounding the ruptured line.  At the time of writing, the precise cause of the rupture and explosion was still being investigated.  Keep reading for more news.

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Thirsty for Criminal Law Trivia this Thursday?

Earlier this week, I was asked to provide a criminal law case update to a group of attorneys. I started the session by giving them a quiz, which I thought could go one of two ways. Possibly, they’d know all the answers and tune me out for the next hour. On the other hand, maybe they’d have some uncertainty, and some interest, and would tune in to see what the court said. Fortunately, on Tuesday, the latter sentiment prevailed.

Given that our readers are voracious consumers of criminal law, I thought you might enjoy taking the quiz and seeing what you know – or don’t – about recent decisions from the appellate courts. Interest piqued? Try your hand at answering the questions below.

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Charging the Felony After a Misdemeanor Appeal

This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.

The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.

The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?

This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.

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A Simple Idea for Reducing FTAs on Summonses: Redesign the Form

In a series of posts I’ve been discussing bail reform in North Carolina and various options to reduce pretrial detentions that do more harm than good. Some of the solutions are tough and complicated. Here I offer one potential solution that’s neither hard nor complex: Redesign the Criminal Summons form.

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