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January 4, 2014

"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"

The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III.  Here is the abstract:

This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).

Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.

This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.

January 4, 2014 at 09:22 PM | Permalink


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The only real thing I feel like addressing is whether it's difficult to cabin the opinion or if it would apply to all of criminal justice.

The article is right to find the parallels with death penalty jurisprudence. It's been pointed out many times that they've essentially imported the death penalty rules requiring individualized consideration into juvenile justice. But just as "death is different," I don't see how it's hard for courts to say "juveniles are different." I'm sure there were those after the big death penalty cases came out who wanted to argue that it should apply to non-capital cases. It didn't get far then and I'm not sure why it would get far now.

Sure, there's the argument that 18 is an arbitrary number and the brain science suggests a number closer to the late 20s. On the other hand, the fact that you take age into account based on the individual cuts both ways. Miller (iirc, it could have been Graham) fought over a young juvenile. Their argument was partly based on the idea that a 13 or 14 year old shouldn't be put in the same box as a 17 year old. However, given that there's no precedent for other cut-off lines besides 18, the Court was reluctant to go down that route. But, a court, when deciding a case based on individualized characteristics, is free to recognize that a 14 year old should be treated differently than a 17 year old and might be more willing to impose a sentence of life without parole for that 17 year old depending on all other factors.

Posted by: Erik M | Jan 5, 2014 11:32:57 AM

Graham/Miller is simply power-judging run amok. Make no mistake, people will be victimized as a result of this decision. We should start by getting that right. Now, liberals and all others who believe that the Platonic Guardians should provide extra-constitutional protection to vicious criminals will simply point to the scoreboard--because there's no real defense to this bit of nonsense from SCOTUS.

Let's start with the "juveniles are different"--well, yes, but that is basically sloganeering. It's basically a vessel into which some liberal judge can pour his or her policy preferences. When you strip away all the brain science nonsense--gee, if deterrence works less well on juveniles, why is it a categorical imperative to lessen the deterrence (ya see, the evidence cuts both ways)--you're left with a bunch of judges thinking it's just mean to sentence a juvenile offender to die in prison. Of course, it's mean to let people suffer preventable harm as well--but some nameless victim--well, that just doesn't tug on the heartstrings as much as "giving up on rehabilitation" (or some other maudlin phrase that disguises a general lenience for vicious crimes).

As for the decision itself, well, it seems that it suffers from a couple of fundamental flaws---the first one is pretty obvious--why does LWOP eligibility have to be evaluated at the time of sentence? Why not have a wait and see approach--let a juvenile serve a long time and then make his argument. Where is it in the Constitution that a meaningful opportunity for release has, in the case of juvenile murderers, to be determined at sentencing? Of course, it isn't, but the Supreme Court had to make a splash, and telling states to take a wait and see approach just wouldn't do.

Additionally, there's a very serious logical flaw in the decision. There is nothing in the Constitution that constitutionalizes the discretionary decisionmaker. So, why is LWOP illegal in states where the executive has the power to release someone from a sentence. Does the Constitution seriously require a parole board, as opposed to a governor? In California, the Governor has the power to overrule a parole board's decision. Is that now unconstitutional with respect to juveniles? If not, then LWOP with possibility of executive clemency cannot be unconstitutional.

Of course, the braintrust that made this decision is the same one that credited evidence that releasing prisoners from California's prison system could improve public safety. Empirically, that has turned out to be a cruel joke, but the flawed thinking should have been self-evident from the get-go. Um, guys, if overcrowding increases recidivism, then releasing the guys who were subject to the overcrowding would necessarily decrease public safety. Apparently, this bit of common sense escaped the braintrust. Of course, it's likely that the increased criminality won't touch them personally. People tend to be better guardians of their own safety and when their safety is on the line, people tend not to make such obvious errors.

Apparently, being a prosecutor and a federal judge didn't teach Sotomayor anything. She had to know that releasing a bunch of criminals would harm public safety. So why did she sign off on the "it could make the public safer" nonsense? Even someone who couldn't figure out that Ginsburg's dissent in the Ricci case wouldn't have affirmed the Second Circuit should know better than this. So, we must conclude that she has a soft spot for criminals. And why not--after all, she thinks they should be given the franchise. (Ain't that a hoot--some killer gets to vote and his victim does not. And this is dictated by the 14th Amendment.)

Posted by: federalist | Jan 5, 2014 10:42:28 PM

Erik M.,
I agree that "juveniles are different" is a limiting principle, but I think the argument was that juveniles & mandatory LWOP is different is not much of a limiting principle.

Posted by: John | Jan 5, 2014 11:38:19 PM

Eric M. writes, "brain science suggests a number closer to the late 20s."

This is a common myth that gets pushed around and it is false. First, at a physical level the human brain evolves continuously throughout a person's lifespan. The idea that the brain "peaks" or is "fully developed" at some point in time is without any foundation whatsoever or to be most precise it has exactly as much meaning as whatever the individual theorist chooses for it to mean. Saying the brain is "fully developed" at age X is as arbitrary and capricious as saying a child is a legal adult at age 18. The two statements have the same scientific content--none.

Moreover, none of this relates to anything dealing with a child's psychological development. In fact, study after study has shown that a child's moral values are usually firmed up by the time the child is nine. So even if the child's brain is still evolving after age nine it certainly will not have any impact on the child's ability to tell right from wrong (however the child perceives right from wrong). This is not to suggest that there are not other mental faculties that may come into play later on in life, such as foreseeability, that may play a role in legal culpability. But even on the topic of foreseeability there is a huge variation in children.

Science doesn't tell us much about when it is OK to kill children no more than brain science can tell us much about when a child can consent to sex. These are fundamentally legal constructs and not neurological ones.

Posted by: Daniel | Jan 6, 2014 1:57:07 AM

The issue and the debate is specifically about the development of the frontal lobe and impulse control compared to centers that regulate pleasure. I'm certainly not going to pretend that there's an inability to determine right from wrong, but that's why the issue is mitigation, not guilt or innocence.

Posted by: Erik M | Jan 6, 2014 7:51:58 AM

federalist, I see a common theme in many of you criticisms of any pro-defendant criminal rulings on punishment issues: you are often eager to assert (1) that it is an indisputable fact that giving convicted offenders more rights/opportunity for release will lead to more innocent crime victims, and (2) that any judge who disputes or seeks to question this fact must be a fool or a liar or worse.

Before I respond to this theme, I am eager to get you to confirm or deny whether you think this is a fair account of your views in short form.

Posted by: Doug B. | Jan 6, 2014 9:34:45 AM

"In fact, study after study has shown that a child's moral values are usually firmed up by the time the child is nine." -- Daniel

-- Sounds like 'do an adult crime, do adult time' & that the arbitrary 18 Roper v. Simmons of is untenable.

You do realise that decision after decision have incorporated neurological constructs as well as others into the calculus?
Ergo, oughtn't we argue for the most proven neurological constructs to be favoured?

Posted by: Adamakis | Jan 6, 2014 11:05:57 AM


I am saying a couple things here--first, if deterrence works less well on juveniles, why is it a categorical imperative that we reduce the deterrence by possibility allowing more lenient sentences? The answer, as I think we all know, is that we're not talking about public safety, but some idea of "fairness." OK, fine, but let's be up front about that. People who are eligible for parole have a funny way of getting out. This particular decision is going to lead to increased victimization.

As for generalities, I think that incarceration of violent criminals reduces crime and letting them out on the street tends to increase crime. I don't see how this is really disputable.

Doug, why don't you try to defend SCOTUS on the point about releasing these guys could increase public safety? That's just nonsense on stilts. Also, can you defend the obvious logical flaws in SCOTUS' reasoning about parole eligibility?

Posted by: federalist | Jan 6, 2014 11:36:09 AM

Three generations of imbeciles are enough. Give grandpa, mom and dad, and kiddo an IQ test. If all three fail then kill the punk.
See Buck v. Bell. Or was it Bell v. Buck? Anyway, Oliver Wendell Holmes said its ok to sterilize an imbecile. Go all the Way with LBJ.
What is a kid anyway but an ant younger than the other ants on the anthill?

Posted by: Liberty1st | Jan 6, 2014 12:43:02 PM

If I understand the current reasoning coming out of neurology studies, it is that there are certain periods in life when the brain develops in certain ways that makes some people more prone to misassess risk and reward. (Caveat, many studies outside neurology shows that most people are poor at understanding theoretical risk and reward and can only really properly assess risk and reward based on actual experience.) If this science justifies special rules for adolescents (one such period in life) does it also justify special rules for those in their mid/late 40s undergoing the proverbial mid-life crisis (another of those periods).

Posted by: tmm | Jan 6, 2014 1:39:54 PM

tmm--I think the science cuts both ways--one could argue that since juveniles are less-susceptible to deterrence that the deterrence should not be decreased.

Posted by: federalist | Jan 6, 2014 1:50:12 PM

federalist, I have a hard enough time defending my own opinions, and thus I rarely try to defend others'. Consequently, I am not eager to waste time trying to defend in this space how SCOTUS tries to justify its rulings in cases like Plata and Graham and Miller.

Instead, I am happy to try to explain my own views as to why I think Plata is right as a matter of statutory interpretation (i.e., Congress provided for Prisoner Release Orders in the PLRA, and California seemed to satisfy the conditions for entering such an order). Similarly, I will also try to explain my own views as to why I think Graham and Miller are right. But to engage you effectively on these fronts, I remain hopeful you will respond to my query. Ergo, I will ask again:

Is it a fair summary of your perspective to say that in your view (1) that it is an indisputable fact that giving convicted offenders more rights/opportunity for release will lead to more innocent crime victims, and (2) that any judge who disputes or seeks to question this fact must be a fool or a liar or worse?

Posted by: Doug B. | Jan 6, 2014 9:13:48 PM


The problem isn't that the court tries to incorporate neurological or psychological concepts in the abstract. The problem is that the court doesn't have the expertise to understand what these concepts mean within the context of the respective disciplines. So the result is that they often offer up "science" as a justification for a decision when they do not actually understand the science behind it.

There is one more problematic aspect of basing Constitutional interpretation on science and that is the fact that science, all of them, are themselves subject to change. In my view people often embrace science when it supports their moral views and ignore science that undercuts their moral views. The Scientific Method by its basic structure is a house of shifting sands. It doesn't strike me as the type of process one builds a stable society upon.


That wasn't my point. My point is that issues in the psychological sciences often get interpreted by lay people with a great deal more certainty and specificity than actual professionals believe is warranted. Such laypeople see clarity (because it serves their agenda) whereas the actual scientists in the field see confusion and doubt. This is my point to Adamakis: yes, we can go with the best available research. But are you and your ideals really prepared to take the hit when the needle on the science goes 180 degrees, as it has done more than one time in the past? And if you say yes then I'd ask who has the real power in our society: the judge or the scientist?

Posted by: Daniel | Jan 6, 2014 10:21:27 PM

Sorry, Doug, I haven't had a chance to respond. I sense you are trying to lay a trap, but I am not really all that concerned. Plata is difficult to defend for any number of reasons--by the way.

With respect to issue number 1--yes, when you give violent criminals more opportunities for release before the end of sentences, you will typically, over the long run, see criminals getting out earlier and some will commit more violent crime that would not have happened but for the granting of additional rights. Now, I understand that there are programs that may allow criminals to earn good time credit for certain actions (drug counseling, GED) and maybe those programs have a net benefit to society in terms of safety. But that's not what we're talking about here. We're talking about giving killers a chance to get out at relatively young ages. Some parole boards will be tough; others will not. And there will be a price in blood for that.

As for 2, I think the issue is that judges making these sorts of decisions would plead that they only gave these guys a chance to "earn" parole and that it's the parole boards who screw it up. But they're the ones twisting the law to give these guys the chance. If they cannot see the danger--then yes, they either are a fool or dishonest.

Posted by: federalist | Jan 7, 2014 10:01:48 PM

federalist: I am just trying to fully understand the views of someone with different views, not "set a trap." And I am still not sure you answered my question precisely because you reference "violent criminals" and "killers" and not just "convicted offenders." That is an important distinction, because Plata is about ALL California prisoners, whereas Graham is about juves involved in nonhomicide offenses and Miller is about juves involved in murders. So, technically, only Miller is actually about "giving killers a chance to get out at relatively young ages."

In addition, of course, Miller does not itself give any actual juve killer a chance to get out at relatively young ages. Rather, Miller holds that a state cannot decide, categorically for all cases, that every juve killer must never get a chance to get out at any age. You might think I am splitting hairs, but again these hairs are important for your assertion that judges must recognize "there will be a price in blood" for these rulings.

I find Plata a reasonable statutory ruling because there was strong evidence put forward that there was a price of blood taking place before the ruling in the form of one needless prisoner death each week in California because of the overcrowding, and some of these needless deaths involving nonviolent prisoners who might have been able to get adequate medical care if not confined by the state. (There is evidence that crime has gone up somewhat in California since Plata, but I am inclined to blame the failure of state officials to deal with these issues earlier leading SCOTUS to affirm a statutory prison-release order authorized by Congress AND state failure to better screen who got released so that only nonviolent offenders benefitted from Plata. Just as I suspect you do not blame SCOTUS for the problems with ObamaCare even though it upheld that law, I am not inclined to blame SCOTUS for problems in California even though it upheld a statutory prisoner release order entered by a lower court after 20 years of California mis-management.)

I find Graham a reasonable constitutional ruling because it never involves killers, and it only says juve offenders who have not killed must get at least some chance at some time to, in your words, "earn good time credit for certain actions (drug counseling, GED) [which may] have a net benefit to society in terms of safety."

Finally, though Miller does involve juve killers, its holding is only that judges at sentencing after the crime, not prosecutors at the time of charging, must have authority to look at a juve killer and at sentencing decide whether a particular juve killer ever even gets a chance at parole. Miller still allows discretionary LWOP for the worst juve killers, and a number of juve killers continue to get LWOP since Miller (e.g., school shooter TJ Lane here in Ohio).

What you see as "twisting" the Eighth Amendment in Miller, I see as giving its constitutional limit on punishments a reasonable application. Indeed, because juveniles do not have a right to vote under the constitution --- e.g., 18 is the age our Constitution now sets for being in the voting polity --- the idea that we cannot subject juves to our very harshest adult punishment makes sense to me as a matter of political theory. And, of course, neither the Eighth Amendment or other constitutional amendments are interpreted to say restrict rights if there is any possible danger to public safety.

I find valuable and notable that you apparently acknowledge that it would be reasonable for a judge to believe that allowing some convicted offenders "earn good time credit for certain actions (drug counseling, GED) [may] have a net benefit to society in terms of safety." Thus, I assume you also would not think a justice or judge would be either a fool or dishonest to believe/assert that Plata and Graham and Miller will all get applied by legislatures and judges and parole boards and prosecutors, informed by empirical evidence concerning public safety, to try to make sure that the rights recognized in these cases only end up functionally benefiting those who we have reason to believe prison programming can increase public safety.

The reason I bring all this up is because I think it is reasonable --- indeed, justified --- that the Justices will hope and expect that avoiding a "price in blood" will be a focal point of how every lower court/official will seek to apply the rights recognized in their constitutional rulings. (E.g., Lots of people on the left say Heller and McDonald will have an obvious "price in blood," but that to me is not a sufficient argument for saying the 2d A should be read out of judicial existance.) In addition, I do not think the justices should have to assume or expect that other actors --- e.g., parole boards, lower court judges, legislatures --- will be sure to "screw it up" and thus we ought to contract important constitutional rights because government officials are sure to screw it up when dealing with these rights.

Posted by: Doug B. | Jan 8, 2014 9:36:04 AM

One last point, federalist, which I think we both know/see: the biggest "price in blood" that should be obvious to all judges and other criminal justice officials is the willingness to let repeat drunk drivers drive again. Roughly speaking, about 10 people die or are critically injured EVERY SINGLE DAY due to repeat drunk drivers. Only if and when you and others get serious about the price of blood getting spilled on our highways every day because of these adult violent criminals, then I will turn to having a greater concern about whether a few extra releases of juve killers due to Miller might lead to similarly harmful public safety consequences.

Posted by: Doug B. | Jan 8, 2014 9:42:57 AM

Good grief Doug. Because I don't what? Vote against Democrats who think that illegal aliens who drink and drive still should be allowed to stay here? Well, I do. I suspect you generally vote a 'rat ticket. And if getting drunks off the streets were really that important to you, you'd vote against Democrats who want to give illegal alien drunk drivers citizenship. But I suspect you don't.

As for not showing enough concern--you're right to a certain extent, I don't post that much on this issue--but my sense is that you and I are in pretty solid agreement on this issue. I don't see a reason to post something about the sky being blue. No one really disagrees, although I have noticed some numbskulls who have posted nonsense about drunk driving being mere negligence that shouldn't be harshly punished.

In any event, with respect to Graham/Miller--I apologize, I kind of elided a bunch of subjects from different threads together. Some of your comments merit response--first off, with respect to the Constitution--obviously, if the Constitution requires a certain result, then public safety is to be damned. But that's not what's going here--the Supreme Court has arrogated onto itself the power to (a) discern a national consensus and (b) insert its own judgment as to what is cruel and unusual. Well, where that's the case, certainly the rest of us can point out that public safety will be harmed and can question the motives of the Justices that discover things in the Constitution that, quelle surprise, happen to dovetail with their policy preferences.

In the other thread, I was discussing a court which, not required by anything, decided to retroactively apply the Supreme Court diktat. There's no good argument that this is required by the Constitution. So, once again, I can attack motives.

As for the Supreme Court being able to rely on smart people knowing whom to release--perhaps that's right as a policy matter--but legislatures saw what happens when we have the possibility of parole--blood. The Supreme Court gave this issue short shrift. (Of course, if we're going to talk about a "national consensus", the strong shift to adult time for adult crime should have made the decision easy. Cf. Atkins.) From a policy standpoint, of course, the reality is that the Supreme Court has reduced the democratic accountability of those who want to be nice to criminals. Decisions affecting public safety are now committed to "experts" who did such a great job.

As for Plata, I won't get into the obvious problems with the decision--suffice it to say that benefiting those who haven't had their rights violated is a curious means of vindicating constitutional rights, particularly in the face of a statute that was enacted to curb the very problem. But whatever. What I find interesting is how you seem to assume that somehow, someway, California could have figured out the right people to release, and everything would have been fine, and therefore, the fault lies not within the precious federal courts, but within the people who, because they don't have crystal balls, are to be held responsible by ivory tower law profs. (My how the academy defends the supremacy of the courts.) But it's painfully obvious that the five Member majority is the problem. This braintrust actually stated that, lo and behold, public safety can be helped by reducing overcrowding. Applied in the Plata case, this is nonsense on stilts---the people being released were subjected to the very overcrowding that supposedly was to increase recidivism--and so we're going to, ta-da, release them to increase public safety.

The blood of the Plata decision is on Barack Obama's hands too. Let's not forget--he appointed Justices that he should know would run a risk of making pro-criminal boneheaded decisions like this. I don't think it unfair to point out that his family almost certainly won't pay the price in blood that has resulted from this lawlessness.

Posted by: federalist | Jan 8, 2014 10:23:53 PM

Doug, I gotcha on the voting for Democrats. Where's your criticism of them wanting to keep drunk driving illegals here?

Posted by: federalist | Jan 12, 2014 12:47:17 PM

Sorry for not responding earlier, federalist, I was distracted by the start of classes. First, as to my voting pattern. I tend to vote for those politicians whom I think will use my tax dollars most wisely, will try to expand US health and wealth and freedom AND will set a good moral tone for my family and for my nation. During the Clinton years, and still today when the Clinton approach to the D party still dominates, I had a very hard time voting for anyone who fit this mantra. More broadly, I greatly prefer direct democracy to representative democracy so we can here from the people themselves rather than the political class. And, notably, the people themselves reformed 3-strikes in California once it was clear the costs of overincarceration was worse than the price of blood you sceam so much about. And if the Gov before Jerry Brown had not campaigned against 3-strikes reform back in 2006, Plata would never have come to pass. I defend the need for judges to step in when politicians fail to, and these is no doubt that political failings explain California's problems much better than Plata. (Do you know, by the way, that when Reagan was gov he lead a significant reduction in the CA prison population because he realized people do not want to pay the tax price of excessive incarceration, and forcefully cutting the prison population is the ONLY way to get judges and prosecutors to actually think about the costs of always "erring" in the side of public safety.)

The problem is not that voters/politicians/people do not have crystal balls. It is that, as we see in the federal system now, voters/politicians/people want popular programs now that future generations have to fund. That is all that mass incarceration is -- a big government program that makes politicians feel good now at the public policy expense of others. Finding a polician who wants to be nice to criminals --- OTHER THAN THOSE THEY KNOW AND LIKE SUCH AS THEIR KIDS OR POLITICAL FRIENDS --- is as easy as findig a politician who wants to raise taxes. And so California (and the nation as a whole) tries to be extra mean to criminal and do it on the cheap so that a bunch of low-level criminals are stuck to die in prison. You may not care -- they are criminals, you would say, who cares if they die while in state custody --- but I do think it is right for judges to say that at some point comdemning folks to die in prison for minor drug crimes is not much better than letting drunk drivers roam the streets.

You are of course right, just as Supremecy Clause is right, that elected officials and judges and Bill Otis and me and you rarely have to "pay the price in blood" of releasing offenders early. But, even more worrisome to me, all these leaders also never have to pay the family/social price of incarceration or really even the full economic costs because this is all pushed to the future like entitlement programs --- AND when it looks like they finally some elite politicial might have to pay the same price as the rest of Americans, some buddy comes along to save the day (cf. the prison time serve by Victor Rita for a federal perjury crime much less bad than Scooter Libby's).

Thus, the real explanation of soft drunk driving laws is that this is the one area in which most politicians can imaginge themselves and their friends getting in trouble, so punishments are too lenient. But when it is a crime they do not think they will commit (or know they likely will not get caught committing like illegal drug use) the political elites are eager to get tough with others' lives for their own political gain. (And, of course, it is disproportionately young men of color who really get stuck holding the ugly side of the over-incarceration bill).

In other words, there is a price to pay from too much incarcetation or too little. Given now that we have historically low crime rates and historically high taxes going to incarceration, I think we might actually save blood by spending less money warehousing aging offenders and low-level drug dealers and instead spend that money to try to reduce wrongful incarceration and use better technology to prevent excess roadway deaths. A little money for red light cameras and ignition locks have already proved to save a lot more blood than LWOP for nonviolent offenders.

Posted by: Doug B. | Jan 12, 2014 1:18:14 PM

So basically, you can yammer about how everyone blows off drunk driving--but when push comes to shove, you'll vote for people who want to keep them here--damn the consequences to society. Ok, gotcha.

"And, of course, it is disproportionately young men of color who really get stuck holding the ugly side of the over-incarceration bill."

Oh. really? When you say disproportionately, do you mean by population or conviction? To paraphrase Kent S., what's your denominator?

"And, notably, the people themselves reformed 3-strikes in California once it was clear the costs of overincarceration was worse than the price of blood you sceam so much about. And if the Gov before Jerry Brown had not campaigned against 3-strikes reform back in 2006, Plata would never have come to pass. I defend the need for judges to step in when politicians fail to, and these is no doubt that political failings explain California's problems much better than Plata."

So much wrong here, it's hard to know where to start. First of all, the people's revision of 3-strikes was a tweak, not an order to release thousands. I believe in harsh punishment too, but that doesn't mean that I don't think that there are some laws that could use some revision to make them more lenient. So I don't see how a tweak is proof that the cost in blood was worse than the over-incarceration generally. It could be simply an understanding that a prison bed is a scarce resource, and you want to maximize the return on the resource.

As for "judges stepping in," ain't that a hoot? Of course, an ivory tower law prof is going to say something like that. Of course, if the judges say that releasing a bunch of criminals is actually going to improve public safety, you cannot defend it. Those are the people, Doug, who are making criminal policy decisions---policy decisions that have already harmed thousands of Californians.

As for the idea that many many many "low-level criminals" are stuck to die in prison, where is the evidence for that nonsense? Is that remotely the case in California? Yes, criminals get "violated" for seemingly minor things, but you cannot count that as making them "low-level criminals." If an armed robber on parole steals a car, when's violated, he's an armed robber, not a car thief (for purposes of his incarceration).

Of course, what's really funny to me, Doug, is that we're talking about juveniles who have either committed murder or some other serious crime. So I don't get where the "low-level criminal" issue comes into play. These guys aren't low-level criminals. They're serious ones. And there's the price in blood to be paid--and funny how it almost certainly won't impact the people who made this crap up, or the people that appointed those who amde it up.

Posted by: federalist | Jan 12, 2014 5:24:03 PM

A few quick responses, federalist: I mean by conviction as shown by juve LWOP numbers (see EJI data) and LWOP for nonviolent offenders (see ACLU data) and for federal crack offenses (see USSC data).

I am glad you favor tweaking laws that are too harsh, and Plata would not have come to pass had California's legislators done that kind of tweaking (as has Texas and New York and Ohio and lots of other red and blue states that do not want to raise taxes to build more prisons). Plata came to pass because Cal politicians kept wanting to stuff more folks into prison without paying the costs of doing so and thereby creating a deadly public crisis in its prisons. Plata is not judges run amok, but judges doing what Congress authorized when a state does not deal with the prison problems of its own making.

Meanwhile, federalist, you are again mixing threads, because I can and will defend the idea --- supported by lots of recidivism data --- that keeping certain first offenders away from and out of prison can improve public safety because prison for some is criminogenic. Are you familiar with this research? I sure hope Califoria officials are, though I fear they are using politics rather than data to make CJ policy decisions. And that is what costs blood -- just like foolish decisions to go light on illegals who drink and drive or even legals who drink and drive.

The policy decision to go soft on drunk drivers costs 200 innocent American lives EVERY WEEK. Data from NHTSA. Do you have any data to support your suggestion that Plata or Miller has cost thousands of lives? I believe there were actually many fewer murders rapes and assaults in 2012 in California than in 2009. There was a slight uptick in these crimes from 2011 to 2012, but I have heard that some police funding realities explain this as much as Plata. And, I am aware of no data suggesting that the uptick comes from violent folks being moved from prisons to jails.

I am glad you are interested in a discussion of data and public safety now --- in prior threads I feared you were suggesting these were poor for judges to consider --- but it would help if you were up to speed on this data so that we can have a truly informed discussion on these topics.

Posted by: Doug B. | Jan 12, 2014 11:04:44 PM

"I am glad you are interested in a discussion of data and public safety now --- in prior threads I feared you were suggesting these were poor for judges to consider --- but it would help if you were up to speed on this data so that we can have a truly informed discussion on these topics."

Ah, some ivory tower condescension. I don't really have a problem with judges taking into consideration "data"--in fact, I said so numerous times in other posts. What I had a problem with was some misguided idea that "data" could determine the minimum necessary sentence to protect public safety. That was a silly comment.

"I can and will defend the idea --- supported by lots of recidivism data --- that keeping certain first offenders away from and out of prison can improve public safety because prison for some is criminogenic." Now what does that have to do with the price of tea in China? My criticism of the Plata decision was based on the fact that the release order wasn't about dealing with first-time non-serious offenders, but rather releasing criminals hardened by their experiences in prison. Apparently, you believe that because some diversionary programs are successful, that the release order can be justified in terms of public safety.

Of course, you cannot answer the disproportionality question.

Posted by: federalist | Jan 13, 2014 9:13:34 PM

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