The Drunkard's Search for Money in Politics

By Professor Justin Levitt

Late at night, a good Samaritan happens upon an intoxicated man crawling under a streetlight, studying the ground.  The drunkard says that he is looking for his keys, and our helpful bystander joins the search.  After a few minutes, the helper asks, “Are you sure this is where you dropped them?” “No,” says the drunk, “I probably dropped them by the bar down the road. But the light’s much better here.”

The phenomenon of the drunkard’s search, often attributed to Abraham Kaplan, afflicts much empirical inquiry.  Researchers seeking quantitative rigor too often head for the available data, fire up STATA, and only as an afterthought offer a few generic caveats about the limitations of the data for the topic at hand.  

Campaign finance analysis is not immune from this problem. In reading some recent studies over the weekend, I noticed a few recurring lapses.

Consider the evaluation of electoral spending by entities other than candidates and parties: “outside” spending, for short. Frequently, studies look to data from the Federal Election Commission (and equivalent state sources) to track the rise of independent expenditures since blockbuster Supreme Court cases like Citizens United, which allowed corporations (and, by logical extension, other non-affiliated groups) to engage in such activity without limits.  

Moffett-Gutierrez a Victory for Juvenile Advocates

By Clinical Professor Christopher Hawthorne

Attorneys will quibble about its nuances, and the work of implementing the decision will go on for years to come, but People v. Moffett/People v. Gutierrez is the California Supreme Court opinion juvenile advocates were hoping for.  First, the Court firmly declares that section 190.5 California Penal Code is covered by the 2012 U.S. Supreme Court case Miller v. Alabama, which banned mandatory life without the possibility for parole (LWOP) for juveniles.  This is a significant legal step, because section 190.5 is not strictly mandatory.  Instead, the statute declares that LWOP is the presumptive sentence for 16- and 17-year-olds who fall under the special circumstance murder laws.  The judge, at his or her discretion, may choose a sentence of 25 to life.  For years, courts have debated whether 190.5 offered the judge complete sentencing discretion, or only the discretion to occasionally override the presumption.  The latter view, embodied in People v. Guinn, was the more popular, and for good reason.  Not only did Guinn absolve trial court judges of the charge of arbitrariness; it also absolved the court of the necessity to actually consider mitigating evidence related to the defendant’s youth.

Moffett-Gutierrez changes all that.  After the Supreme Court’s ruling, trial court judges must think hard, and think on the record, about whether to sentence a teenager to LWOP.  And, just as important, the Court gives a roadmap to judges who are thinking about imposing these harsh sentences.  When choosing a sentence for a youthful offender, judges must now take into account the "distinctive attributes of youth," which is another way of saying that judges must consider whether the child they are sentencing is the “rare juvenile offender whose crime reflects irreparable corruption.”  The Court directs judges to consider “how children are different and how those differences counsel against a sentence of life without parole ―before imposing a particular penalty.”

One thing Moffett does not decide is whether Miller is retroactive:  in other words, whether it applies to juveniles who have already been convicted and are serving LWOP.  Juvenile advocates in California have been filing Miller petitions as if they assume retroactivity is a done deal, but other states are split on the issue.  Illinois and Texas say Miller is retroactive.  Pennsylvania says it's not.  Expect the California Supreme Court to enter that debate soon.