Saturday, March 29, 2008

Is everyone the same on criminal justice issues, part 6

Finally. a word on some of the comments to my look at these numbers.

Over at his blog, Illusory Tenant is running through a bunch of cases that he says are on CFAF's list and offering a range of commentary. Sometimes he argues that the case was rightly decided or that a conviction was not overturned. Other times he notes that conservative members of the court joined in. I agree with some of his obversations but none of them have anything to do with what I have looked at here.

The McBride analysis looks at nothing more than voting for or against a criminal defendant's claims. As I've said before, this is not all that unusual. Some of the claims may not amount to much, like being able to see a sentence report, but since the point of the analysis is to compare the members of the court, that doesn't really matter unless you think that Justice Butler is more likely than the others to grant minor requests for relief and not more substantial ones.

Conducting the analysis in this way may result in a higher percentage of pro-defendant rulings than other ways - but it will do so for each justice. I have said repeatedly that I don't care all that much about the number for any justice (because I can't tell what it means) but am more interested in how it relates to the numbers for the others.

That's one of the reasons why I don't think that there is much to the argument between whether you should count convictions upheld or overturned or do an analysis of claims. There is no reason to believe that Justice Butler would be more willing to vote for the claims of defendants unless it would result in the overturning of a conviction.

I have said that there are problems with how the Butler campaign reached its percentage of convictions upheld and no one has yet responded to that. To reiterate, if convictions are the denominator and the point is to show how often you voted to overturn them, then you must restrict yourself to cases in which the convictions were on the line. Counting a case in which you held that a defendant is entitled to a hearing on his motion to withdraw a guilty plea as upholding the three counts that he pled to is silly. Overturning or upholding them wasn't the issue.

But is there really any reason to believe that if we did apply this conviction methodology to all of the justices we wouldn't get the same ranking ?

Some commenters have said "How can you trust McBride?" I am not sure why I'm not supposed to be able to do so but, the fact of the matter is that I am only trusting that she did her math right with repect to the other justices. I've looked at how she handled Justice Butler and said that it looks like it is mostly correct by the terms of her methodology with a few, in my judgment, errors that bring her number down from 58% ot 48%. (Those errors would affect the numbers for the others as well.) I ran the number to see if she was doing what she said she was but, again, what is most interesting here are the differences between members of the court and not the number for any single justice.

Illusory Tenant says that McBride is doing the same thing that CFAF did. Since he won't show us what CFAF did, I can't comment on that. But it seems clear that she did not do the same thing as CFAF. For example, IT claims that CFAF counts Mayo as a ruling for a criminal defendant. That would be wrong. McBride doesn't do that. And I certainly did not do that in checking her numbers.

Finally, some commenters suggest that I am endorsing McBride's use of the term "pro-criminal" or suggestions that the Butler campaign lied. I am doing neither. I don't think that the term "pro-criminal" is appropriate because 1) defendants are not always criminals and 2) it suggests that a justice has a "pro-criminal" bias which I think is a misleading way to describle people who have a judicial philosophy that is more favorable to defendants.

Nor do I accuse anyone of deceit as I have repeated and repeated. One commenter did not like my phrase "cooking the numbers" because, to his ear, it sounds like accusing someone of lying. Maybe he's right but that wasn't my intent. I think someone tried very hard to get a very low number and may have allowed that desire to get in the way of his or her better judgment. (And let's acknowledge that the candidates don't do this work. Whatever the merits or flaws of the Butler campaign's analysis, the work was done by a staffer.)


illusory tenant said...

Since he won't show us what CFAF did ...

I am showing you every step of the way.

Display Name said...

How hard could it be to obtain CFAF's table?

If they're not handing it out to folks like Prof. Esenberg, who are they showing? Only McBride? This is Reporter 101. (Must... resist... McBride... joke...) Don't get upset that the other guy did the footwork and got the confirming facts.

Or in this case, maybe they handed it to the one most likely to misinterpret and kept it from the one likely to get it right, thereby accomplishing the greater goal of smearing as much muck as possible, thereby occupying the Butler forces with academic, technical-ity refutations of the supposed "truth."

"Yeah, right, but Jessica's a professor!"

Tin foil hat off.

Anonymous said...

Jessica is a lecturer -- she isn't a professor. She likes to call herself a "faculty member" but that's a bit of a stretch.

"Lecturer" is nearly as low on the academic totem pole as you can get, and it is well suited to her abilities.

Anonymous said...

""pro-criminal" bias... I think is a misleading way to describle people who have a judicial philosophy that is more favorable to defendants"

More favorable than what?

By "defendants", presumably you mean "American citizens who find themselves accused of a crime". How unfavorable an attitude towards American citizens would you personally prefer to see from a justice?

Or maybe these are just hopelessly simple-minded ways of carving up deeply heterogeneous classes of subtle, complex rulings and opinions...

"One commenter did not like my phrase "cooking the numbers" because, to his ear, it sounds like accusing someone of lying. Maybe he's right..."

Golly. You think?