Sunday Commentary: Gilligan, Sentencing and the Specter of White Privilege

On Thursday, Hayley Gilligan plead no contest to a revised charge of voluntary manslaughter, thus avoiding a trial where she would be facing first degree murder charges and where, if she had been found guilty, she would have faced likely 50 years to life (with the use of the gun enhancement).

Instead she will receive a 13-year sentence, which would enable her to be eligible for parole within ten years with the time already served.  Some immediately suggested that such a plea agreement was offered in part due to race.

On Facebook that led to an interesting debate, with one observer stating, “I don’t understand why some people, mostly liberals, have to make everything about race.”

Not everything is about race, but racial disparities are real and we can’t simply ignore them.

Another responded, “This case has nothing to do with race unless you think her plea deal should’ve been longer?”

There is an interesting parallel here to the case of Mohamed Noor, the police officer who was found guilty of third-degree murder and manslaughter in the July 2017 death of Justine Damond, a 40-year-old Australian woman.

Many activists believed that race played a factor in Mr. Noor’s conviction.  The point they made was not that Mr. Noor did not deserve to be convicted for his actions, but rather that similarly situated police defendants, who are white (with black victims), have not been convicted of crimes.

In this case, for sure some people believe Ms. Gilligan should get a longer sentence for her crime.  I am not here to argue either way on that point.  Rather, I am simply pointing out that I believe there is something to the complaint by people of color that white people seem to get off more easily that people of color in the criminal justice system.

That is not to say that white people never are overly charged or convicted – that’s not true.  What we can look toward are aggregate statistics which show that on average there are pervasive racial disparities in the system, and these disparities have persisted across generations.

As the Sentencing Project submitted in April 2018 in a report to the UN: “African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.”

There is also the 2017 study from Carlos Berdejo of Loyola Law School.  His study looks specifically at the racial disparities in the plea-bargaining process.

While looking at misdemeanor cases in Wisconsin over a seven-year period, he found that white people were 74 percent more likely to have charges either dropped, dismissed or reduced than similarly situated black people.

He also found: “White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.”

He did find that racial disparities are “greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.”

However, a key intervening role here is criminal history.  “While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.”

This leads him to conclude that “prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.”

These studies suggest, first of all, that racial factors are complicated to tease out.  But the pervasiveness of the findings, even when attempting to control for both criminal history and the nature of the crime, suggests that ignoring racial disparities in sentencing is fool-hardy, even if we can easily find examples that deviate from the aggregate data.

Beyond race, there is another factor that largely gets ignored in the criminal justice system.  The case of Hayley Gilligan was fascinating from the start, not only because the defendant was a female with no criminal history, not only because she was a deviation in that she was an educated, decidedly middle class woman residing in a low crime community like Davis, but because – at least initially – she claimed self-defense and domestic violence.

The evidence that emerged during the preliminary hearing tended to negate those claims and showed evidence that she attempted to conceal evidence at the crime scene, and misled if not outright lied to investigators.

Still, had she gone to trial, she could have brought forward claims of domestic violence either as an absolute defense or as mitigation against first degree murder charges.

Would she have prevailed?  That we will never know.  But part of the calculation here was the offer of 13 years for a 29-year-old defendant had to play a key role in her decision to take the plea agreement, in a case where she faced 50 to life if she guessed wrong at trial.

The notion of the trial penalty has not gotten nearly enough attention in criminal justice reform.

In her book, “Prisoner’s of Politics,” Rachel Barkow, who will speak at a Vanguard event at the law school on July 10, noted that legislatures have armed prosecutors with the ability to heavily charge defendants in these cases (and in this case, the possible sentence is doubled by a voter approved gun enhancement).

She writes that “legislatures arming prosecutors with a choice of charges and severe mandatory sentences and the judiciary giving them unlimited license to use harsh sentences as leverage to extract pleas—virtually knocked jury trials out of the system.”

Statistical analysis shows that roughly 97 percent of cases plead out before getting to trial. One reason for that is the trial penalty.

Basically, “the defendant received a more severe sentence as a result of going to trial.”

If you are a defendant, let us say you are being charged with questionable charges or you are even innocent. But the charges are such that you face a ten-year prison sentence if convicted. Now let’s say the DA offers you six months.

You have a choice of waiting a year to be tried, with a chance you will receive a ten-year sentence, or you can be assured of being out in six months. Which are you going to take?

Professor Barkow writes: “In the federal system, those who go to trial face sentences three times as long as those who plead. It is thus no surprise that 97.1% of convictions in the federal system are the result of pleas.”

At the state level she adds, “94% of felony convictions are the result of pleas, and those who go to trial similarly face significantly longer sentences, with a mean maximum sentence imposed on state felony convictions after trials of 78 months compared to 29 months after pleas.”

Is this a problem?  Rachel Barkow says yes.

She argues: “With jury trials a rarity, one of the Framers’ central checks on government excess lost its mediating influence.”

Basically the DA has been given the power to leverage away weak cases – unless people are willing to roll the dice and take it to trial.

She writes, “By allowing the government to threaten severe punishments that are far greater if a defendant exercises his or her right to a jury trial, the Supreme Court has weakened the jury power to the point that it exercises little restraint on the government.”

In the case of Hayley Gilligan, we can be troubled by the idea that perhaps a person of color in the same position as Ms. Gilligan would not be able to get out of prison nearly as quickly.  But we can also be troubled by the fact that, while the evidence seemed very strong against Ms. Gilligan at preliminary hearing, we never got to see her make an affirmative defense.

In a system where the difference between going to trial and taking a plea wasn’t 37 years, perhaps we would be better able to assess what sentence would have been the fair one.

—David M. Greenwald reporting reporting