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April 12, 2011

"Beyond Budget-Cut Criminal Justice"

The title of this post is the title of this new article by Professor Mary Fan, which is now available via SSRN.  Here is the abstract:

The criminal justice system is undergoing a massive jolt and potential transformation because of a perfect storm of severe budgetary shortfalls and courts awakening to the role of checking penal severity.  A wave of reforms is sweeping the states as budgetary woes are leading to measures once virtually impossible or very difficult because of the political risk of looking soft on crime such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences.  The social meaning of ameliorating penal harshness is being redefined as a way to curb wasteful and destructive spending rather than being soft on criminals and garnering bipartisan support among conservative and liberal proponents.  On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review in the noncapital context and granted appeal to consider the power of a three-judge court to order California to reduce its prison population and consider alternatives to incarceration.  This article explores the future of penal law and theory after the turn to budget-cut criminal justice reform and the awakening of courts at the tipping point where the fiscal and human costs of maintaining the highest per capita incarceration rate in the world have become unsustainable.

The article argues that in this important historical moment, we need long-term guides beyond emergency-response for sustainable penal law and policy reform and a successful jolt out of incapacitation stagnation.  We have a fomentation of reforms without orienting theory -- short-term reactions to the unbearable rather than sustainable long-term reorientation.  The article lays the foundation for thinking beyond emergency-response by theorizing a turn to rehabilitation pragmatism and penal impact analysis in criminal legislation and politics.  The article also sounds a caution about the need to ensure that the selective approach towards picking who benefits from rehabilitative pragmatism helps address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy.

April 12, 2011 at 08:49 AM | Permalink


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More to the point executive summary: "Since budget constraints are going to force cutbacks, let's see if we can leverage the moment to do a "Back to the Future" kind of thing, in which we get to revive the 1970's "rehabilitation model" and get away from all this Neanderthal punishment stuff. It's true that crime took off under the "rehabilitation model," but we can probably keep that under wraps by bellowing loudly enough about human rights or racism or "Bush Lied, Children Died," or something, so no one will notice. This is bound to produce good results for our clients. Whether it produces good results for anyone else is not our department. If anybody asks, tell them we'll do a study and get back to them."

Posted by: Bill Otis | Apr 12, 2011 9:44:09 AM

Haven't read the article, but the abstract's portrayal that CJ reforms based on left-right coalitions are knee-jerk reactions to a short-term emergency certainly doesn't apply to Texas or quite a few other states implementing them. After Republicans took control of the Texas Legislature in 2003 for the first time since Reconstruction, they almost immediately began passing bipartisan bills aimed at reversing the prison population boom authored by Democratic majorities over the prior 15 years. The most-frequently copied TX reforms were passed in '05 and '07, before the budget crunch, as were those in Kansas and elsewhere. Yes, now that we're in a fiscal crisis other states are looking to mimic them, but those were steps taken deliberately, with lots of forethought and buy-in, based on (though I agree it's an overused phrase) an evidence-based theory of crime-control, not just some willy-nilly reversal in reaction to the current recession.

And btw, despite Bill's sky-is-falling predictions, crime rates in Texas overall dropped like a stone during this period, just as they did across the country. Similarly, we reduced our juvie prison population by more than 50% over the same period, pre-recession, and juvie crime continues to drop. Not that he'd want to let facts get in the way of a snarky attempt to relive his antipathy for civil-rights protesters, hippies, or whatever it was about the '60s and '70s that keeps him so focused on mocking his enemies from the era.

Posted by: Gritsforbreakfast | Apr 12, 2011 10:46:24 AM

I'm amused, but not at this point surprised, by Grits's odd combination of being capable of occasional serious argument, and simultaneously of making insulting, ad hominem and dishonest attacks like the one he launched on me with this: "Not that [Bill would] want to let facts get in the way of a snarky attempt to relive his antipathy for civil-rights protesters..."

Now ordinarily I would ask Grits for some documentation that I was antagonistic toward civil-rights protesters, but I've learned it's useless, because he views himself as above answering questions. It's the drive-by smear and not much else. The fact that you're a conservative on criminal law issues suffices to justify his bile; nothing more is needed.

Nonetheless, Grits did me the favor of bringing me back to the days of my youth, and I have a little story to tell. I grew up on Philadelphia's Main Line, which is a bunch of prosperous suburbs west of the city. In high school, I was, like my father, a Main Line Republican, which would now be looked upon as being the first cousin to a John Lindsay-type "limosine liberal," although in foreign policy and economic matters, my father was no liberal (and indeed was a committed anti-Communist). But I had characteristically Northern attitudes towards race and the South, although more of a fondness for the South than most of my fellow Yankees, since my mother had grown up in Richmond.

I wound up going to the University of North Carolina, where my mother's grandfather had been president (and, later, Governor of N.C. and a United States Senator).

By that time, 1964, blacks had been admitted at Carolina, but there was racial tension to say the least. Having all the headiness of an 18 year-old, I struck up a friendship with a black guy, Herman Mixon, whom I met in P.E. (Herman was the only black in the class, and I was the only white willing to pair up with him). One day Herman and I went into Chapel Hill proper to the NC Cafeteria, which I guess had been integrated for a few years (although not many, as I would soon find out).

Anyway, Herman and I went in and had something (a BBQ sandwich I guess) without incident. As we were finishing up, a rather large white student (he looked like a football player, but I never found out) tapped me on the shoulder. I turned my stool at the counter around to look at him, whereupon he said in about the tone you'd expect, "Nigger lover!" and gave me an uppercut right to the chin.

Nobody did anything; I think the place was as surprised as I was. I would like to tell you that I was a big hero and that there was blood everywhere, but there wasn't. There was a small trickle, right at the point of my chin. I didn't go to the hospital and I didn't get stitches. I still have a scar there, less than a quarter of an inch long, and no longer very visible.

I kept up with Herman and was buddies with him all four years. I lost track of him after that, though. Many years later his brother tracked me down while I was at the USAO for the EDVA and told me that Herman had died of Kaposi's sarcoma. It turns out that Herman had been gay, and had been one of the first people in the United States to die of an AIDS-related illness. He must have had a very, very tough life. To this day, I am ashamed of myself that he didn't trust me enough to tell me.

Grits, though, says, on the basis -- and only on the basis -- of his florid, hateful imagination, that I enjoy re-living my antipathy towards blacks and civil rights, so it must be so.

Posted by: Bill Otis | Apr 12, 2011 2:58:17 PM

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