Plain Spoken, EASILY UNDERSTOOD: Habitual Drunkard

The other day, I was lecturing a group of a few dozen law enforcement officers on the changes to and interpretations of Virginia's laws by appellate courts. As part of it, I had to tell them that the 4th Circuit Court of Appeals, shortly after supported by a Virginia Attorney General Opinion, has declared interdiction is unconstitutional.  Manning v. Caldwell. Interdiction in Virginia law is a process by which the government can petition a judge, accompanied by proof of abuse and notice to the person, and have the person be declared "interdicted." An interdicted person cannot be sold alcohol and cannot possess alcohol or be drunk in public. (the second is semi-redundant as that stands as its own lesser charge).

One of the officers asked why interdiction was unconstitutional and I had to inform him that it was because the 4th Circuit couldn't understand the words "habitual drunkard" because they were too vague.

The entire room dissolved into laughter.

Nobody can make a convincing argument that "habitual drunkard" is beyond easy understanding. That's why the judge writing this opinion spends pages 11 thru 33 trying to convince us that it is. It's definitely a "methinks thou dost protest too much" moment. Whenever you see a judge writing that much to convince you that two words from a minor statute don't mean what they seem to pretty clearly mean you know you're in the result oriented zone.

Eventually, the judge says that the only thing habitual drunkard could mean (although it is too vague to actually get there) is "alcoholic" and it violates the 8th Amendment to punish someone who is acting in accord with that status.

If that's the case then the laws that make it illegal for people under a certain age (21 in Virginia) to possess alcohol or nicotine products are status based and must to be unconstitutional as well. If possession of alcohol can't be prosecuted because it is an "involuntary manifestation" of alcoholism then possession of chewing tobacco must be an involuntary manifestation of nicotine addiction and possession of methamphetamine must be an involuntary manifestation of meth addiction. Read this way, it appears that the 4th Circuit believes that all possessors of addictive substances are not guilty by reason of insanity because they are acting in response to an irresistible impulse. That's ludicrous.

Or perhaps the judge is trying to tell us that "drunk in public" is in and of itself entirely unconstitutional unless it can be proven in court that the individual involved isn't an alcoholic or addict. However, this fails the judge's own logic because drunk in public applies to all without recourse to status as alcoholic or non-alcoholic.

At best, a kind reading of this opinion's 8th Amendment analysis would conclude that the opinion makes it unconstitutional to give a more severe penalty for an alcoholic if she is convicted of drunk in public because of her status as an alcoholic and that the opinion bypassed the illegal possession of alcohol portion of the statute.

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Whence the jurisdiction?

Nowhere does the judge writing the opinion even attempt to explain how the 4th Circuit has jurisdiction to impose its will upon these statutes. This seems an awful lot like it's an end run around the Antiterrorism and Effective Death Penalty Act where the 4th Circuit would be held to a higher deference standard unless it could point to a specific US Supreme Court decision with a specific point that made the Virginia statutes clearly unconstitutional. Of course, that would be impossible because of Powell v. State of Texas, 392 U.S. 514 (1968):

The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being mentally ill, or a leper.

It can be argued whether this applies because it is part of a plurality opinion, but it definitely makes it very difficult to claim that the Virginia statutes fall directly afoul of US Supreme Court precedent.  Having read the 4th Circuit case, I'm sure the judges involved could have cobbled together some excuse so they could impose their will on Virginia. Nevertheless, having not done so, the 4th Circuit opinion appears to be advisory at best and courts in Virginia would be bound by their own precedent.

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In a world where we've moved away from individual responsibility, moved toward treatment solutions (arguably back toward them in a crippled, limping manner), and decided of late to ennoble the homeless at the expense of other citizens, the elimination of interdiction is not terribly surprising. However, it is and should be a legislative decision made by the Virginia General Assembly and signed off on by the governor. The 4th Circuit stretched further than it should have to get where it got. Despite the Attorney General's collapse in the face of this opinion, and without an explanation of what would allow the 4th Circuit to step on Virginia's sovereignty, I think that binding precedent for Virginia courts would be from Virginia's Court of Appeals in Jackson v. Commonwealth, 44 Va. App. 218 (2004):

Code § 4.1-322 imposes no criminal sanction for the status of being an alcoholic. It forbids specific behavior: possession of alcohol and public drunkenness by interdicted persons. Therefore, in accord with Powell and Fisher, we hold that Code § 4.1-322 does not violate the Eighth Amendment by punishing status or by imposing cruel and unusual punishment. 

Unless the General Assembly acts to change the law, I think that the trial courts of Virginia remain bound by Virginia precedent. The 4th Circuit, without some sort of statutory grant by Congress, doesn't stand as a court in lieu of Virginia's appellate courts and the Virginia Court of Appeals' constitutional interpretation will trump that of the 4th Circuit in Virginia trial courts. As well, prosecutors and officers acting in accord with a statute that has been specifically found constitutional by  the Virginia Court of Appeals will be well within their rights and abilities as actors under Virginia's binding precedent.

A Frolicking Police Officer

A police officer is on duty until 6 p.m. At 4:30, she clocks out and goes to collect a $300 debt. She is in civies, but has a badge and pistol on her belt. An argument ensues and the person who owes her money sprays mace in the officer's face. The officer draws her firearm and shoots - missing the person who sprayed her, but grazing the guy in the next room.

Understandably perturbed, the victim sues in federal court under §1983. In order to do so, the plaintiff claims the defendant was operating as a police officer because her shift had not ended and she had her badge and service revolver on. Everyone seems to agree that although she clocked out she was still on her shift (not sure how that works - how else do you get off the clock? Quit?).  However, that's still not enough to win the day because the 6th Circuit determines she was "frolicking":

The purely private altercation between Morris and Adams does not possess the necessary indicia of authority to find that Adams was acting under color of law.²

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 ²  Adams’ conduct was the definition of the ancient concept of “frolic.” The general principle of the concept of “frolic” remains intact today, and vicarious liability arises only with respect to conduct that in part at least is in furtherance of the employer’s business. Restatement (Second) Agency, § 235. “If the agent is off on a frolic of its own, in a situation where the principal has neither given the agent authority to act for it nor done anything to suggest to others that the agent has such authority, and in the absence of ratification, courts do not ordinarily treat the act of the agent as the act of the principal.” Abbott Labs. v. McLaren Gen.Hosp., 919 F.2d 49, 52 (6th Cir. 1990); Carroll v. Hillendale Golf Club, Inc.,144 A. 693 (Md. Ct. App. 1929) (“Where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be on a frolic of his own, the master is no longer answerable for the servant’s conduct.”).

Hat tip to The Volokh Conspiracy.

Non-Unanimous (Super-Majority) Verdicts

In case you've been living under a legal rock, let me inform you that most States and the federal courts require a unanimous 12 person jury to convict someone of a criminal offense. Now, the last couple States that allow super-majority verdicts (10-2) are being brought before the US Supreme Court on claims that a less than unanimous verdict is unconstitutional (specifically, it's Ramos v. Louisiana). And if you look around, all the talking heads types are fairly confident that the court will take the power of determining jury use away from the States and mandate unanimous jury votes from here on out.

JURY REFORMS IN OTHER COUNTRIES

No matter how much the American legal system has come to cherish this unanimity (while at the same time doing everything it can to de facto eliminate jury trials), this is not a mandated outcome of the constitution as written. As is often the case, we can look to the development of jurisprudence in England in order to see see an equally valid version which could have developed in the United States. In Section 13 of the Criminal Justice Act 1967, later replaced by Section 17 of the Juries Act 1974, England and Wales codified conviction by super-majority. Under this system, the jury has two hours to reach a unanimous verdict under the statute and apparently ten minutes has been added for time to travel back and forth to the jury room. Crown Court Compendium Part I, 21-4 Majority verdicts.  If they have not reached a unanimous verdict after two hours at any time thereafter (at the judge's discretion) they get an instruction from the judge that contains these elements:

(1) They should still, if at all possible, reach a unanimous verdict.
(2) If however they are unable to reach a unanimous verdict the time has now come when the court could accept a verdict which is not unanimous but one on which a majority of at least 10 of them agree; that is to say a majority of 10/2 or 11/1. 
Crown Court Compendium

Or if you prefer to see a version of this delivered (although fictionalized):

I would of course prefer a unanimous verdict, but I'm prepared to accept one upon which at least ten of you are agreed.
Kavanagh QC, Season 1 Episode 1, 01:32:05 (here on Amazon)

England/Wales weren't the first to reform toward super-majority juries. In Australia the various states adopted this system: South Australia (1927), Tasmania (1936), Western Australia (1960), the Northern Territory (1963), Victoria (1994), and New South Wales (2006). In 2009, New Zealand adopted super-majority verdicts. Jamaica adopted them in 2010. Of course, you could complain that these are all modernish developments and be semi-correct. If you did, I'd pass on arguing whether 1927 or 1936 could be called even modernish and point you to the Scottish system which has allowed simple majority verdicts in criminal trials since the 16th century.

So, you see, the unanimous 12 person jury was not some predestined commandment based on ingrained natural law. Instead, it's the shadow on the cave's wall. The question is how we've become so rapt in our belief of the reality of the shadow.

INITIAL REJECTION OF UNANIMITY

The entirety of the mentions in the constitution having to do with criminal petit juries are:

Art. III, Sec. 2(3): The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Amendment VI:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.

You'll notice that no requirement of unanimity under either passage. So where does it come from? We know that a lot of the Bill of Rights was based upon the Virginia Declaration of Rights (incorporated as the first part of Virginia's constitution). However, we can see that portions of the VDR were rejected.

That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.VDR Section 8.

Of particular interest to this discussion is the fact that Virginia's requirement "without whose unanimous consent he cannot be found guilty" was passed over in the federal version. We know that when the 6th Amendment was being put together by Congress language requiring unanimity was proposed:

The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction . . .
1 Annals of Congress 435 (1789)

Congress chose not to include the language requiring a unanimous verdict.

EX POST FACTO CLAIMS

What followed was something we see far too often. Those who couldn't get their version into law declared that it was the law anyway. Here's an article from Reason in favor of unanimity that does a good job of summarizing all the ex post facto claims that the 6th Amendment says what it doesn't say - or at least encompasses unanimity by the mere mention of the word "jury." This interpretation sweeps aside Congress' choice not to include the requirement and the States' ratification of that choice by adopting the amendment as written (the States initially rejected two amendments).

BLACKSTONE -  THE COMMON LAW AS CONSTITUTION?

The strongest argument for the word "jury" including in its definition unanimity is that it was that way under the common law. As with all things common law, the go to place to find this is Blackstone:

UPON theƒe accounts the trial by jury even has been, and I truƒt ever will be, looked upon as the glory of the Engliƒh law. And, if it has ƒo great an advantage over others in regulating civil property, how much muƒt that advantage be heightened, when it is applied to criminal caƒes! But this we muƒt reafer to the enƒuing book of theƒe commentaries: only obƒerving for the preƒent, that it is the moƒt tranƒcendent privilege which any ƒubject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his perƒon, but by the unanimous conƒent of twelve of his neighbours and equals. 2 Blackstone's Commentaries Chapter 23: Of the Trial by Jury, p. 379 (Book Three).

Of course, as with all things Blackstone, this is a cherry-picked section which provides support for a favored position. Remember, this is the same book that says:

WHEN the evidence is gone through on both ƒides, the judge in the preƒence of the parties, the counƒel, and all others, ƒums up the whole to the jury; omitting all ƒuperfluous circumƒtances, obƒerving wherein the main queƒtion and principal iƒƒue lies, ƒtating what evidence has been given to fupport is, with ƒuch remarks as he thinks neceƒƒary for their direction, and giving them his opinion in matters of law ariƒing upon that evidence.

I dare a trial judge out there to sum up the evidence only including what she thinks is relevant and to tell the jury what facts she thinks they should concentrate on. You could probably put a stopwatch on how quickly an appellate court would overturn that conviction.

Anyway, Blackstone provides the best legal argument for those wanting to declare that less than unanimous verdicts were unconstitutional from the beginning.  Of course, it assumes that this part of the common law was constitutional and neither merely a law nor a part that has been ignored as not fitting in the current American legal framework. Clearly, the parts about "affected . . . in his property" and the twelve person requirement have both been found to be laws, not constitutional guarantees and this shouldn't bode well for claiming the rest of the statement is something guaranteed.
 
Other than that those arguing unconstitutionality are on even thinner ice. Those more disposed toward legal arguments rely on Blackstone combined with the ex post facto arguments above made by those who couldn't get Congress to include their proposed condition in the 6th Amendment.

INSTITUTIONAL GUILT

Some are making the argument that the non-unanimous rule should be done away with because of problems specific to Louisiana's adoption of the rule. Although neutral on its face, it was adopted for racist reasons. In 1880 the US Supreme Court ruled that Blacks must be allowed to serve on juries. In that same year, Louisiana changed its laws so that conviction would be allowed at 9-3 (changed in 1974 to 10-2); this was made part of their constitution in 1898. Thus, considering its roots, it should be swept away.

MAJORITARIANISM

Unfortunately, a potentially powerful argument in favor of the unanimity requirement is that of majority rule. Of course, it's not the job of the constitution to impose what a majority of states choose upon the minority of states, but let's be realistic. It's a powerful influence even when it shouldn't be. 

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ARGUMENTS AGAINST CONSTITUTIONALLY REQUIRED UNANIMITY

(1) CONGRESSIONAL CHOICE:  The Congress by choosing not to include it in the 6th Amendment set unanimity of jury verdicts solidly in the "law" part of American jurisprudence rather than the "constitution" part. Thus, it falls within the realm of the Congress and the law making bodies of the various states to determine whether a jury verdict should be unanimous because every single body that determines law can change or outright override the common law.

(2) CONGRESSIONAL KNOWLEDGE:  Furthermore, it was well within the knowledge of a number of the writers of the Constitution and Bill of Rights that there were places in the world where a unanimous jury verdict was not required for conviction. Remember, the man who wrote the Constitution was born in Scotland. In fact, the members of Congress didn't even have to look overseas to find this legal condition. Connecticut, Pennsylvania, North Carolina, and South Carolina during colonial times developed jury systems that did not require unanimous verdicts (see note 45 here). The proposal for a unanimous verdict clause in the Constitution and its rejection did not occur in a vacuum.

(3) NEUTRALITY OF THE STATUTORY SCHEME:  There is nothing inherently racist, sexist, or anti-religious about a super-majority verdict. While this case and the news coverage of it have concentrated on the problematic origins of Louisiana's and Oregon's rules allowing super-majority verdicts, you'll notice that none of them comment on the military's use of majority juries. It doesn't fit the narrative. Neither does the adoption of super-majority verdicts in many (perhaps most) of the countries which have judicial frameworks that find their roots in the same British common law system as ours sprang from. Our system is the one that's anachronistic. And, of course, California isn't exactly known as a hotbed of laws based on racial bigotry and it considered changing to majority verdicts three times from 1980 to 1995.

(4) TRYING TO FIX THE WRONG PROBLEM:  The problem isn't really super-majority verdicts. The argument proceeds as such: the requirement that only ten people have to vote for a finding of guilt allows African-American votes on the jury to be silenced. If this is true, the problem isn't in the allowance of super-majority verdicts; it's in jury selection. 

32.18% of the residents of Louisiana are Black. As such, a twelve person jury should have at least three Black jurors and usually four. That means that a minimum of one or two Black jurors would need to vote for conviction in order to reach the super-majority. If the number of Black jurors on a jury aren't representative then the problem isn't the super-majority requirement - it's the summoning and selection of jurors. Assuming bad intent, the problem is found in the biased creation of the list of potential jurors, or the over-liberal allowance of strikes for cause, or the poor enforcement of Batson. The problem here might be that none of that applies. I can't find anything - including Ramos' brief - that states the composition of the jury had two or less Black jurors. I would expect that to be the lead fact pointed to if it were so. It's also of note that apparently Ramos identifies or at least was identified at trial as "Mexican or Hispanic" (Ramos' brief) which calls into question whether the number of Black and White jurors is even relevant.

His lawyers had to work with what they had. If they couldn't demonstrate actual prejudice they were left with an abstract argument that didn't have any real personal emotional hooks. Obviously, they've done a good job to get it this far, but that doesn't mean they're right.

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WHY WE ARE HERE

Because the controlling precedent in this area, Apodaca v. Oregon, is weak. It's one of those 4/4/1 opinions you only see from the Supreme Court (because nobody else could get away with it). 4 justices wanted to make the states have unanimous juries, 4 justices didn't think the 6th Amendment required unanimity, and Justice Powell struck out on his own deciding that the 6th Amendment required unanimity but that it didn't apply to the states. As the Supreme Court has imposed more and more of the Amendments on the States through the 14th Amendment Justice Powell's decision has become more and more tenuous. Back in the day, the justices chose which parts of the constitution applied to the states; now they just impose everything.

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EXPECTED DISPOSITION

I expect this will be a fairly shallow opinion. That doesn't mean it won't be between 25 to 40 pages, replete with tons of citations, and filled with repetitive circular reasoning (this is the Supreme Court after all). It simply means that I expect the justices to impose all of their 6th Amendment precedent on the states without a serious consideration of whether the precedent of unanimous juries should stand.

Even were they to consider it, I wouldn't expect a decision based on solid constitutional grounds. Oh, sure, there'd be lots of legalistic sophistry, but this one is a rule of five situation where the Supreme Court has already sat and would sit as a super-legislature writing laws. It would be decided on the "feels." Instead of recognizing the Constitution as a framework that allows different possibilities within the limits laid out in the 6th amendment, the Court would again impose the unanimous jury on every state. It would do so because it feels like they ought to. The vast majority of states already do it. Louisiana, the state specifically involved in this case, has changed its law to require unanimous verdicts. Extra-legal, American institutionalized guilt would weigh in. Whatever the  legal excuse given, the feels are the real reason this Court would affirm another denial of the power of states to decide their own laws.


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WHY IT IS IMPORTANT

America is behind in the jury reform movement. While we mouth words about how sacrosanct the jury is, in reality we are making it more and more like a unicorn: a beautiful creature of myth that is never seen. Drop in on your local felony court on any given day and you'll almost never see a jury. Juries are heavily disfavored and discouraged to the point that the defendants who demand them are usually irrational or have nothing to lose. They are inconvenient, time consuming, expensive, and take matters out of the hands of legal professionals (the unforgivable sin). They were as well in the countries who have engaged in reforms.

This is not to say that super-majority verdicts would bring back the number of juries seen in previous eras. It's just a start, but it's a start that has been adopted almost everywhere with a jury system similar to ours. When you're the odd man out, it's not a bad thing to reconsider your position. However, once the Supreme Court has declared that the states no longer have the power to reconsider, this rule will be carved in stone until the end of time unless someone amends the Constitution. Since we now seem to consider the Constitution as Holy Writ (rather than merely foundational, and changeable law) that is highly unlikely.

Is it a Guilty Plea if the Plea Never Ends?

Judge: "You're pleading guilty to snipe hunting and before I can accept the plea I have to make sure that it is voluntarily made and that you understand what you're doing so I'm going to ask you some questions."

Mabel: "Okay."

Judge: "Before you pled guilty did your lawyer answer all your questions about what you were charged with, your options, and the consequences of a guilty plea?"

Mabel: "No."

Judge: "Ma'am, didn't you talk with your attorney about your case?"

Mabel: "Yes, but I didn't ask any questions."

Judge: "Ooookay. So you met with him. Did the two of you discuss the case?"

Mabel: "I guess you could say that."

Judge: "No, ma'am, I can't say anything. You're the one who has to answer the questions. Did you meet with your attorney prior to this hearing?"

Mabel: "Yes."

Judge: "Did your attorney explain to you your right to go to trial, have a jury, the possible results of trial and the consequences if you accept the plea agreement offered by the prosecution?"

Mabel: "I guess so."

Judge: "You can't just guess, ma'am. You have to give an answer."

Mabel: "Okay. Yeah"

Judge: "Yeah you'll answer the questions or yeah he explained things to you?"

Mabel: "Yeah, I'll answer the questions."

Lather. Rinse. Repeat. It takes the judge what seems like hours to get the defendant through what should have been five minutes of questioning because he has to pin her down to get actual answers. I'm sitting there watching all this with semi-fascination from the prosecutor's table and the defense attorney has chosen an enthralling section of wall to give her full attention. Personally, I'm having an internal debate over whether Mabel is on the simple side and just trying to answer as best she can or if this lady is some sort of manipulative mad genius who has decided she's going to keep us in the courtroom until we all die from old age. The judge solved that quandary for all of us.

Judge: "Now, you've pled guilty to snipe hunting. Hunting snipe is illegal. So if you snipe hunt you break the law. Tell me what you did to get convicted of snipe hunting."

Mabel: "I did something wrong."

Alternative Sentencing and the 24 Judges

A group of professors got together and decided to review compliance and attitudes toward alternative sanctions as they have played out in Virginia under the "Non-Violent Risk Assessment" portion of its sentencing guidelines (link here). They, of course, have the dogmatic belief of all academics that anything which keeps a non-violent offender out of prison is a good.¹ It colors the paper, but not enough to make it unworthy of a read.

I'm going to offer some observations and critiques. Most are going to be Virginiacentric, but they could still be interesting to those of you with the poor sense to live elsewhere.

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Assumptions / Assertions

(1)  To begin with, the article assumes that sentences increased as a result of Virginia's Truth in Sentencing reforms put in place in 1995: "One of the net effects of TIS was to increase the time served by those convicted of felony crimes." This is unattributed and feels like it proceeds from a shallow understanding of TIS. Yes, parole went away which would seem to increase actual sentences. However, at the same time the sentencing guidelines were put in place which lowered sentences back down to about where they actually were under parole. I am a post '95 attorney, but I was close enough to have heard the stories about judges getting talked to for not following the guidelines and sentencing too high (and adjusting their sentences downward to ensure they got reappointed the next time they went before the legislature). I'd really like to see something more than a bald assertion about sentence lengths on lesser felonies.

(2)  "Those who plead guilty to charges were more likely to receive alternative sanctions than those who went to trial."

Absolutely. If you accept responsibility rather than having it thrust upon you then you have taken the first potential step in moving in the right direction toward improving yourself. That voluntary step forward should be rewarded.

(3)  "Males were also found to be less likely to receive a first offender waiver from incarceration than females."

Yes. This is a result of actuarial tables as to the probability of re-offending showing a higher rate for males. It's also a result of the guidelines being entirely discretionary and Virginia statutes forbidding them to be a basis of appeals. If they were mandatory, the fact that the NVRA is openly biased against males would be a serious constitutional issue.

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Methodology

Of the 161 felony trial judges in Virginia, 30 agreed to be interviewed and only 24 actually were. As the authors concede this carries with it the probability of selection bias. They were questioned about the NVRA and their answers were stirred into a pot until certain "themes" were noted. This, of course is inductive reasoning. The academic doublespeak used to describe this by the authors is "an interpretivist approach based on inductive thematic analysis." That gobbledygook could mean anything so the authors are kind enough to explain it further: "Inductive thematic analysis draws from a constructionist worldview in which  [is] meaning and experience are socially-produced and can be uncovered through an examination of the structur[es] al constructs within the collected qualitative data."²  In other words, they're using inductive reasoning.

Inductive reasoning gets a bad rap sometimes. However, in the soft sciences it is the best you are going to get. There are too many constantly shifting variables for deductive reasoning and replicable tests. It's a valid research tool for a study, although you do have to point out weaknesses in a specific study. The specific dings on the study used here would be that the interviewees were self selecting (showing some sort of potentially skewed interest in the subject), the survey pool was too small, and  the data was created instead of mined from a third party data set (increasing the possibility of introduced biases). None of these invalidate the observations made in the paper; they would however increase the margin of error one might attach to any observation. However, in this case I don't think the margin of error would be enough to invalidate all the themes (save perhaps theme 4) the authors pluck from their data.

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The Themes

The authors point to seven "themes"³ which they distill from the data set they've created. Next, they claim the "themes were then organized in a conceptual map that offered a general description of the factors influencing the use of risk assessment in sentencing." I think that's more academic buzzspeak surplusage because all they actually do is lay out the themes without any kind of discussion of their interactions and the general weight a judge might give to each theme as one might expect from a conceptual map. In any case, here are the themes:

(1) The NVRA is non binding. 

A strong majority of judges consider it as a factor without it trumping all other factors during sentencing. The professors later in the article suggest making the the NVRA presumptive instead of discretionary. As a practical matter, this would be contrary to the general operation of Virginia's guidelines and give rise to valid constitutionally based appeals as described above.

(2) Deference is given to plea agreements even if they are contrary to NVRA.

Yes, a judge should have a strong preference in favor of a pre-negotiated deal with which both the prosecution and the defense have agreed. A judge knows little or nothing about the facts of a case when he is handed a plea agreement and, at least in Virginia, a judge is forbidden to participate in plea negotiations and should he reject a plea deal the case is assigned to another judge. Should a judge start denying plea agreements because they are contrary to the NVRA, (1) he is arguably participating in plea negotiations, and (2) he might be rejecting a lot of plea agreements and accomplishing almost nothing when those agreements are accepted by a subsequent judge. Well, nothing except having to answer why he rejected two-hundred agreements that were accepted by another judge the next time he is before the legislature trying to get reappointed to his job.

BTW: The authors do a clever thing here where they flip the script and talk about how this could lead to a number of people getting alternative punishments who do not qualify under NVRA. In so doing, they have accidentally tripped over a real issue with NVRA. Males under the age of 30 almost never qualify for alternative punishment. Assuming that alternative punishment is a proper reaction to criminal activity, it cannot be proper to exclude all males from it. Thus, assignment of a male to an alternative program is almost always contrary to NVRA and often the only way they can get there is thru a plea deal.

(3) Lack of alternative programming capacity.

This really is a serious problem. It's a money issue. The problem with this sort of thing is always going to be money. I suspect that if the survey had been completed by all the judges in Virginia this would have been the predominant reason given. There is only so much money a legislative body - be it the General Assembly or the local county board of supervisors - is going to be willing and able to allocate to this as opposed to things such as fixing roads or educating children. Keep in mind, one of the major selling points of these programs is that they will save money, not cause an infinitely growing amount of expenditures.

In Virginia all courts have at least two options available: advisement and CCAP (formerly Detention and Diversion). Rather than reinventing the wheel, here is a link to a post I think is still generally correct from several years back. As the authors point out, many of these programs are limited by available slots and whether the defendant is medically capable of being in the program.

(4) Valuing risk assessment as a way to reduce incarceration rates.

 No. Just No. Nobody thinks about incarceration rates in the courtroom. Their own quotes in this section support this. They quote judges not wanting to send people to prison who are addicted or "low level" offenders. None of them are talking about incarceration rates.

Defense attorneys are trying to get their client the best deal they can with a strong, strong presumption that the client's liberty interest is paramount. Prosecutors are at the very least responsible for protecting the citizenry from destructive behavior first before they start to think about fixing the person who harmed the community; in other words, when they push to incarcerate they are looking toward their community's interest, not how many people are held by the Department of Corrections. The judge is responsible for visiting appropriate consequences on the guilty person standing in front of him. Rate of incarceration is an issue for the legislature, not the people int he courtroom.

A better theme here might have been "Concern that incarcerating low level offenders is not appropriate."

(5) Skeptical that the NVRA is actually predictive.

As the authors point out, judges were particularly skeptical as to the NVRA's ability to be predictive as to the risk of re-offense by addicts; one judge among the interviewed flat out told them that this isn't science. I think this is reflective of a general thought pattern you will find amongst almost anyone that does much work in criminal courtrooms. We see so many recidivists that it's hard to not be colored by it. And almost all of them have had prior opportunities attached to prior convictions.

The problem with things like the NVRA is that they are not predictive as to the individual standing in front of the judge. They are predictive as to trends within a group. Thus, they aren't really scientific when applied to a single person while they might be toward the population in general. Let's put this in perspective. Assume this advertisement is right and 60% of adults have farsightedness (not likely, but don't get sidetracked). You wouldn't want a doctor to immediately stick you in a chair and start lasik because the trend among adults is that the majority have farsightedness. No one would question the fact that the doctor runs specific tests and examinations to determine whether you as an individual are farsighted. Large group data trends may give the doctor an idea of what to look for; they should never be dispositive as to the individual patient.

The same principle applies with an individual in front of a judge. The NVRA may give a judge an idea of which way most convicts will behave in the future. The judge must consider the facts in the presentence report and other evidence presented to make a valid determination concerning the actual person standing in front of him. The NVRA isn't predictive as to the actual person and therefore should not be dispositive.

(6) Judges aren't sure whether  following the NVRA is a downward deviation from the guidelines.

I must admit, I never thought about this before reading the article. Inasmuch as the guidelines say a defendant should get between 7 months and 2 years engaging in alternative sentencing without incarceration seems to be a downward deviation. However, it is an authorized downward deviation and shouldn't count negatively in whatever statistics the legislature maintains on sitting judges. However, I do not know how the legislature actually handles this.

(7) Lack of training on NVRA.

Why would judges require indepth training on this? They understand the legislature has made this a part of the guidelines and therefore a part of the sentencing process if a defendant is being sentenced by the judge. The ones who put thought into it most likely figure out the same thing I reasoned out under theme 5 above. Training as applied here feels more like it is meant as advocacy on the behalf of those who believe the NVRA should be blindly applied to make a better world where actuarial tables determine who should and shouldn't receive alternative sentences without resort to consideration of the particular person being sentenced.

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My Thoughts

The NVRA isn't a bad thing or even a good thing. It's just a thing. It's something of a shame that it has been tacked onto the end of the guidelines where it is more likely to be ignored by all unless it benefits one party or the other during arguments over sentencing. If it were at the front of the guidelines it could show the judge the general trend against which he should view the defendant and the evidence provided for her individualized sentence.

I also wish it was more nuanced. As it stands if the points scored in the NVRA are below 32 the defendant qualifies for alternative punishment. I would much prefer, and believe it would be more helpful, that the NVRA were to provide a percentage of potential to re-offend for persons of like circumstance as the defendant without setting a specific line above which persons don't qualify. I realize that the default to simple, easily workable solutions will probably keep this from happening, but I can dream.

And, no, the actuarial tables represented by the NVRA should not become mandatory or even presumptive. The NVRA is a tool among many tools which can be used to decide an individualized sentence. If they were even presumptive the rest of the tools would be ignored the vast majority of the time and that's not the appropriate way to sentence any particular person.

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¹ Experience in several jury trials, tends to show that the citizens of my county would disagree with this. In my locality there is a long standing joke that the best defense to murder is "He needed to be kilt" and lower level violent crimes tend to get swept up under the term "swarping" which generally means drunk/stupid/fighting and excused as typical Friday night behavior. But God help you if you if you shoplift a $5 item from the local grocer; years have been imposed for such an offense by the jury (jury sentencing, the ultimate barometer of community standards).

²  Yes, yes, I get it. You are terribly modern or post-modern or whatever the current accepted terminology for being an academic hipster is. Your rejection of pre-existent first principles contributes nothing. The basis for the forms in the data (themes in your chosen language) is not relevant only the presence of the forms is.

³  If you've had any sort of training in philosophy or theology you might recognize what they are actually discussing are forms. Out of several similar answers they derive one perfect answer - a form. Referring to it as a "theme" is ambiguous and awkward, but I will use their language because it's their paper.