Friday, March 28, 2008

Is everyone the same on criminal justice issues? Part I

Unfortunately, this is going to take a while, so I am going to break it up.

Let's start by reviewing the bidding. We in Wisconsin have been faced with wildly divergent claims about Justice Louis Butler's propensity to uphold the claims of defendants in criminal cases. His campaign cites one number (25%) and the Coalition For America's Families cites anoter (60%). Who are we to believe? And what do these numbers mean anyway?

Let's start with the last question. Taken alone these numbers are interesting, but of limited value. It's not always wrong to rule in favor of the claim of a criminal defendant. Sometimes the defendant shold win. We can try to place some value on a number but it will be most meaningful in comparison with other justices. There is where we might begin to get at differences in judicial philosophy.

Until recently, no one has run comparative numbers. I have not had the time to do so. But Jessica McBride has and her effort has, I think, moved the converstion to the next level.

I understand that, for my lefty readers, this is not supposed to be possible. Jessica (who I think I have met once) is supposed to be a partisan hack attack dog. She once anglicanized a french word. She made a bad joke about Eugene Kane.

But, unlike Illusory Tenant who has claimed he would do something that the rest of us could respond to, she actually has.

I am not yet prepared to say that she has got it just right and she uses language that I would not. I also think that any claim about the influence of the pending election requires more analysis. But she has actually advanced the ball further than anyone else, so Whallah!

But before we get to that, let's review where we have been.

This list has apparently been produced by the Butler campaign. On the top, as you can see, it has a "key" which says that shaded cases are those in which the Justice "ruled for the defendant/inmate." Their words, not mine.

If that is what it's supposed to show, then it is wrong. McBride came up with some examples of cases that could not reasonably be characterized in the way that the campaign characterized. I mentioned a few others. I said that I did not know how wrong it was but when a quick look at something reveals numerous errors, it doesn't inspire a lot of confidence.

No one has actually responded to those criticisms. They have tried to say that the mischaracterized cases were rightly decided. They have said that some were unanimous. They have said that cases that were not criminal have been the subject of ads criticizing Justice Butler and should be included (although the campaign still gets them wrong).

But none of that meets the point we are concerned with here. The document claims that Justice Butler ruled for the "defendant/inmate" in less than 30% of the 70 cases listed. That is clearly wrong. The number is higher.


John Foust said...

"Anglicized" is a perfectly fine word. No need for hypersyllabification. Illusory Tenant did post more a few minutes after you did. How far does the ball need to go? Are you saying that no one has adequately examined the corpus of cases in good enough detail so far?

I'm not afraid to show my ignorance. It's the only way to learn. Given the rather small data set, in your experience are these enough data points to generate research-paper quality statistics in legal academia? If it's not enough, why try to measure the downs in inch increments? Are court cases truly binary in terms of whether they're "tough on crime" and does it make sense to sum the totals, then divide to haggle about percentages? Gigo? Why are we still arguing about whether a first down has been reached if there's no line? If we are to learn, should we spend more time simplifying complex issues than we spend on subtlety?

I'd rather hear why Gableman would make a better justice for Wisconsin than Butler. In the recent debate, do you think Butler or Gableman sounded more like a competent justice?

Republicrat said...

Mr. Foust --

I don't disagree with you here -- debating these numbers feeds into the campaigning that we have been complaining about (tough on crime, locking up criminals, etc.).

That said, I do find it odd that, as soon as Butler's numbers are challenged, you try to change the issue.

Forget "Anglicized." We need something more American. So, with inspiration from Snoop Dogg, I propose "Englishizzized."

Brett said...

Regardless, please see the joint statement of 30 judges across this state condemning this entire academic exercise:

John Foust said...

There's nothing wrong with challenging Butler's numbers. There's nothing wrong with challenging Gableman's numbers. There may be plenty wrong with trying to distill factoids from these data sets. Esenberg has hedged a number of times about their usefulness, but I don't think the disclaimers have the same prominence as, say, his repeated support of McBride's tomfoolery. As Barbie once said, "Math is hard." So is interpreting court cases. Why try to frame the debate in terms of "Gableman, now with 33% more tough on crimefighting power" and "Butler, now 33% more supportive of victims"? Because it polls well? If you want to argue about who trotted out the most ridiculous numbers first - well, that's not on my mind.

Brett said...

All I'm saying is rather than debate the merits of bean counting convictions or muse over how to quantify "pro-criminal" and "anti-criminal" count-by-count decisions, lets look at Setting judicial philosophy aside (although Gableman's talismanic philosophy is laughable), is there any doubt left that Gableman is UTTERLY UNQUALIFIED to sit on this state's highest court? Seriously, ANY doubt?