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Abstract: Over the past three decades, the US prison population has soared from 300,000 inmates to 1.5 million. In recent years, many scholars have devised rigorous empirical models to try to determine what forces have been most responsible for this impressive growth. This article reviews these studies and finds that all suffer from important shortcomings that limit the extent to which they accurately identify causal mechanisms. The problems are both technical and conceptual. Technically, most studies either fail to control for several significant empirical defects - such as endogeneity, omitted variable bias, and colinearity - or so do unconvincingly. Conceptually there are several issues. In some instances, for example, it is unclear whether the variable chosen to test a particular causal theory is an effective or accurate proxy; in others, the theory itself does not appear to be formulated correctly. This article sets forth the problems with the current studies and suggests technical and conceptual improvements for future work.
Abstract: This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors. Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.
Abstract: The American legal system has traditionally established facts through adversarial proceedings, tempered by judicial evidentiary screening. Legal observers, however, have grown increasingly discontented with this approach when dealing with scientific facts. Focusing on public law, we argue here that judges confronting empirical questions should look beyond the claims of dueling, adversarial experts to derive the answers. Scientists themselves do not use such adversarial proceedings, but rather evidence based logic (EBL), an objective method of reviewing existing empirical evidence to determine what science knows and does not know. We propose that judges should incorporate EBL into their gatekeeping functions. EBL leads to scientifically sounder judicial resolutions, discourages the misuse of scientific data, and draws more clearly the line between policy disputes that can and cannot be helped by scientific inquiry. Furthermore, judicial use of EBL respects adversarialism while providing neutral, objective assessments of scientific validity.
Abstract: Though the growth in US prison populations over the past three decades - from 300,000 inmates in the 1970s to 1.6 million today - is well known, its causes are not. This paper examines one potential source of growth that has received surprisingly little rigorous attention: changes in time actually served in prison. Using offender-level data from the National Corrections Reporting Program, this paper demonstrates that median and 75th percentile times to release have not risen dramatically, and have even declined in some jurisdictions - although some of the decline appears to be caused by states increasingly incarcerating minor offenders who may not have been admitted in earlier years. In general, the results indicate that changes in admissions practices, rather than time served following admission, have played the dominant role in prison population growth. This paper also examines how offender-level traits have shaped the probability of release. The young, the Hispanic, and the violent are less likely to be released in any given period, and those over forty more likely to be so. Blacks, women, and property and drug offenders are no less likely to be released than their counterparts.
Incarceration, Sentence Length, Sentencing Policy, Prisons
Abstract: Empirical scholarship in the social sciences and the law stands at a critical threshold. As the volume of statistical analysis grows, it becomes increasingly difficult to assess what we actually know about a particular phenomenon. Contradictory findings abound, and the social sciences and empirical legal studies currently lack effective tools to filter the good claims from the bad and to synthesize the high-quality findings. This paper explores how to fundamentally change and improve the way these fields generate and use empirical knowledge. I start by examining why these fields are poorly equipped to draw conclusions from an empirical literature. The root problem is a misguided philosophy of science. Contrary to what social scientists are taught and believe, empirical knowledge does not come from (deductively) testing hypotheses but rather from (inductively) measuring effect sizes. Induction, however, requires a far more holistic perspective than deduction. Given their mistaken philosophical foundation, the social sciences and empirical legal scholarship have undervalued such perspectives. I then argue that the solution is to develop rigorous, evidence-based systematic reviews for observational research. These reviews have been revolutionizing fields like medicine and epidemiology that use randomized clinical trials, but they are almost unheard of in areas that rely on observational work. I demonstrate why these reviews are substantially superior to the more informal approaches currently used. I also discuss many of the significant challenges that face those who wish to design such reviews for observational work and point to possible solutions.
Econometrics, Hypothesis Testing, Evidence-Based Policy, Quality Guidelines
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