Mimesis Law
26 September 2020

Not Enough Info To Be Alarmed About Geographic Sentencing Disparities

September 6, 2016 (Fault Lines) – Being an armchair expert is not just for football anymore; it is now something of an honored American tradition. The idea that average uninformed people can be founts of knowledge has been elevated to a place of honor by calling it the wisdom of crowds. Nietzsche was instead pessimistic, describing group think as insanity.

Today, there is a great deal of noise regarding who is an expert. Besides the noise created by arm chair experts opining on things that they truly have little knowledge about, there is reason to mistrust even the credentialed experts. And there are the journalists, who often like to think of themselves as polymath experts. At least one critic has stated that despite journalists claiming to seek the truth, their business is really entertainment.

On the point of journalism being primarily entertainment, the popular media has been interested in sentencing for some time now. It has all the entertainment value that they need—race and class disparities, sympathetic victims, bad guys, and somewhat intractable issue that fills pages and pages of print. On the issue of sentencing, the New York Times recently had a piece titled “This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?

It begins:

Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer.

There’s a lot wrong with that sentence, but I understand that sometimes artistic license is needed. Still, it is doubtful any offender would ever pick an undercover officer as the person to whom to sell drugs, irrespective of geography.

If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.

But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to serve 12 years in prison.

The concern over geographic disparities in sentencing has diffused out of the academy and then into Supreme Court opinions, first as a way to further narrow the death penalty. But here it was transmuted into a generalized concern over sentencing. This is an odd issue for the New York Times to be concerned about, even considering that it sees itself still as the national paper of record.

As long as there have been political boundaries and people on either side of it, there have been stark differences. The New York Times is aware of this, at least in the case of Nogales. There are true intellectual reasons for comparing a place like Nogales, but it is not clear there is an intellectually rigorous reason for comparing Dearborn County to a smattering of other places in the U.S mentioned in the article. But such big disparities are interesting, which is what really matters.

Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative. * * *

But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction. Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.

Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties.

Well, okay. This is curious fact, granted. And the handy chart and numbers support this statement. But so what? The rural counties are still part of a state. Presumably those states have mid-size and larger counties, and state law applies equally throughout.

In the case of Dearborn, Indiana, the maximum sentence available to the judge there would presumably be the same available to a judge sitting in Indianapolis or Gary. It would be unusual and doubtfully constitutional for states to increase sentences based on population. So, it’s not readily apparent how population is a cause and not merely a correlation. But the New York Times has some thoughts.

Cities have adopted a more lenient approach to drug offenses in particular, diverting many low-level drug offenders to probation or treatment rather than to jail.

This appears to just be guessing. At least here in Ohio, only municipal courts are city run, and the ability of cities to create misdemeanors is not unfettered. As a result, all felony drug offenses are handled at the county level. Thus, a felony offender in a rural city has the same exposure as if the crime had been committed in one of the large cities.

Prosecutors in New York City have sharply cut incarceration rates in part by diverting drug offenders from prison after state changes encouraged paths to treatment. But in the rest of the state, prosecutors and judges continue to put drug offenders in prison at a steady flow.

In Texas, a series of changes intended to cut the prison population led to large reductions in new prisoners from Houston and Austin. But the rest of the state has had only modest declines.

Too many facts have been cut from these paragraphs to be of any use. For example, the state may have offered grants based on capitation, which would explain why big cities started programs that smaller ones did not. Moreover, there’s no ready way to determine what are the programs and changes being referenced here. But it does further the narrative of “cites, yay; rural areas, boo.” The New York Times returns to the issue of resources:

At the same time, cities tend to have more resources to fight addiction outside of jail and prison. In Cincinnati, most people who are caught with small quantities of drugs are charged with a crime but are diverted to drug court, where they are placed in an outpatient treatment program, said Mr. Stephens, the public defender. If the offender completes the program, the charge is dismissed. * * *

“In smaller counties, prisons are often the only well-funded response to a range of social ills, including drug abuse and mental illness.

Again, this may be true in other places, but this statement is inaccurate with regard to Ohio. The Supreme Court handles the certification process of drug courts, and the counties, along with state funding, are the entities that provide these services. And counties with the largest city having less than 50,000 people may have drug courts. It’s not just something counties with large cities can afford. Regarding the second sentence, I would take issue with categorically describing prisons in small counties as well-funded.

In the article, the Times created a colored map of counties, with high admission rates being coded a dark blue. When you examine it, six states are more obvious than others. But these states don’t share a lot in common, except being mostly states that at one time permitted slavery. But they are outliers among the states that permitted slave ownership. Besides it’s not really clear if that fact matters. They all fall along the Mississippi, but that fact too has no apparent value. But for being interactive, it provides little information.

But the Times still has one more explanation—prosecutors. And it has the benefit of introducing a bad guy for the readers:

But the extraordinarily high incarceration rate here — about one in 10 adults is in prison, jail or probation — is driven less by crime and poverty than by a powerful prosecutor, hard-line judges and a growing heroin epidemic.

Opioid addiction spread early here. Mr. Negangard, the prosecutor, has fought the heroin crisis by aggressively going after drug crimes.

“If you’re not prosecuting, then you’re de facto legalizing it,” Mr. Negangard said.

Mr. Negangard has faced few obstacles to getting more convictions. He supervises his own police force, an unusual arrangement that allows him to investigate and prosecute most of the county’s serious crime. The police go after even minor drug cases, often offering to dismiss drug possession charges in exchange for information on friends or family members who sell drugs.

While judges and prosecutors shoulder the blame, legislators are absolved. That’s nice of the Times. But if the maximum sentence is too high, then the legislators are truly to blame. This is particularly so if there is little guiding judges on the appropriate sentence, in contrast to systems like the Federal Sentencing Guidelines, which is at the terminus of the opposite end of the spectrum.

Ohio, for example, does little to ensure uniformity in sentencing, leaving the judges to pick just about any sentence in the range. If the legislature has given the judge wide discretion, then there is often little incentive to pick the lowest sentence. That is the fault of the legislature.

As Professor John Pfaff has argued, if counties are free to externalize costs, then there is no practical, countervailing reason to routinely choose lower sentences. On the other hand, if counties have to share the costs, then there may be a decrease in prison population. Ohio presents evidence of that thesis. The General Assembly made counties share in the cost of imprisoning juvenile offenders, and juvenile judges now rarely sentence juveniles to prison. So, again, it’s not appropriate to blame judges in a blanket fashion when what they are doing is legal and within the discretion committed to them.

Similarly, prosecutors typically charge the worst form of the offense, which in turn impacts the sentence available on conviction. And like judges, there are few legal reasons to do otherwise. Indeed, disparities between counties would get worse if more prosecutors were encouraged to make policy-type judgments regarding classes of crimes and offenders when charging. Doing so would infuse the inconsistencies of equity into what is supposed to be a legal process. Thus, the local prosecutor in Dearborn County is doing exactly what the legislature apparently intended when it created the crime and set the accompanying penalty.

But this discretion and powers of the judges and prosecutors would be present in other counties. Yet, in several of the states on the Times “heat map,” there are wild inconsistencies between how these judges and prosecutors exercise that discretion. This is even starker when comparing neighboring counties having wildly different rates. So, again, the offered explanation lacks the ability to inform, in a rigorous fashion, why this is happening in these counties.

The Times piece is interesting, but not terribly informative. Though it serves to hold the reader’s interest and no doubt confirms many biases held by the readership, it fails to illuminate the issue beyond bringing this curiosity to the co-consciousness.

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