Sentencing Law and Policy

Do cases like the DC sniper and the Fort Hood shooter and Ohio serial killer ensure death's vitality?

Reviewing some of the media coverage of sentencing issues this morning confirms my view of why it is always going to be difficult for death penalty abolitionists to convince the majority of Americans to be opposed to the death penalty in all cases for all crimes.  Specifically, this week all the major death penalty talk centers around (1) Virginia's efforts to execution the DC sniper, John Allen Muhammad, and (2) the consideration of capital prosections of the Food Hood shooter, Malik Nadal Hasan, and Ohio's sex offender serial killer, Anthony Sowell.

Notably, in all three of these cases, we all must confront obviously deranged offenders who have committed multiple brutal and senseless murders that have terrorized local communities and the nation as a whole.  In none of these there cases is there any serious basis to doubt the guilt of the offender, and there likewise does not seem to be a good chance that poor lawyering or racial bias or some other procedural defect explains why the case is to be a capital case.

In other words, with such potent capital punishment poster children like Muhammad and Hasan and Sowell garnering much media coverage and capturing most of the public's attention, I suspect it will remain very hard for death penalty abolitionists to change the hearts and minds of average Americans to be opposed to the punishment of death in all contexts.

"[A]mong those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior"

The title of this post is the key take-away from the abstract of this new criminology paper on SSRN from Donald Green and Daniel Winik. The paper is titled "Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism Among Drug Offenders," and here is the abstract:

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is re-arrested after release. Very few studies have taken advantage of the fact that in some jurisdictions, defendants are randomly assigned to judges who vary in sentencing tendencies.  The present study investigates whether defendants who are randomly assigned to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges.

We track 1,003 defendants charged with drug-related offenses (and no non-drug-related offenses) who were randomly assigned to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records over a four-year period following the disposition of their cases in order to determine whether they were subsequently re-arrested.  Our results indicate that randomly-assigned variations in prison and probation time have no detectable effect on rates of re-arrest.  The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.

Must-read posts from Kleiman on having less crime and less punishment

I have been following with great interest a series of guest posts by Mark Kleiman at The Volokh Conspiracy, which are essentially excerpts from his important new book titled "When Brute Force Fails: How to Have Less Crime and Less Punishment."  This introductory post included this summary of the book:

We have too much crime and vastly too many people behind bars.  Is it possible to have less of both?  Yes, if the criminal justice system can learn what everyone who has ever successfully raised a child or trained a puppy knows: the right amount of punishment is the minimum that gets the message across, and that minimum effective dose is smaller if rules are clearly communicated and if punishments follow violations swiftly and predictably.

There are now working examples of successful strategies based on these principles, but the political and journalistic debate about crime has yet to catch up to progress on the ground.  Doing things we already know how to do, we could have half as much crime and half as many people in prison ten years from now as we have today.

Here are links to the posts by Kleiman so far over:

• How to Have Less Crime and Less Punishment
• Positive feedback and strategic enforcement
• Benefits and costs: crime, crime avoidance, crime control
• Crime and punishment, race and class

The comments from readers are almost as interesting as the posts themselves.

"Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights"

The title of this post is the title of this piece available via SSRN from Wayne Logan. The paper seems especially timely in light of the Supreme Court's upcoming consideration of Second Amendment incorporation (not to mention the feds recent decision to "localize" its approach medical marijuana enforcement). Here is the abstract:

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms.  In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely.  Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment.

"Texas Faith: Are Texans immoral for supporting the death penalty?"

The title of this post is the headline of this new piece from the Dallas Morning News. The piece has thoughtful and extended responses to the question above from more than a dozen diverse clergy members, and here is how the piece sets up the religious inquiry:

In Texas, more than 400 people have been executed since capital punishment was reinstated by the Supreme Court in 1976. Ours is the busiest death chamber in the nation - and Texans overwhelmingly back the death penalty. Polls indicate that nearly three-quarters of Texans support capital punishment.

What is the moral dimension?... Is it moral to support capital punishment? Or are Texans immoral because they support the death penalty?  The responses from our Texas Faith panelists are varied, provocative and well worth reading amid this political and faith-based debate

Some related posts on religion and the death penalty:

• Candidates asked "what would Jesus do" about the death penalty
• "Religion and the Death Penalty: Can't have one without the other?":
• Fascinating NY Times piece on victims, religion and the death penalty
• Senator Brownback questions death penalty and culture of life
• Debating religion and the death penalty
• New DPIC page on religion and the death penalty
• New resource examining religion and the death penalty
• Remarkable circuit judge speech on capital punishment at mass
• Sister Prejean's powerful perspective

Friday forum: What kind of sentence would you give to Roman Polanski?

The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?".  Here is how the commentary starts and ends:

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...

Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.

This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.

"Incarceration American-Style"

The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:

In the United States today, incarceration is more than just a mode of criminal punishment.  It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills.  In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand.  I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.  This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

Recent related post:

• SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

Conviction in Astor family case raises classic questions about how age should impact sentencing

This new article from the New York Times, which is headlined "Weighing Prison When the Convict Is Over 80," documents how a high-profile state conviction in New York is raising hard questions concerning how a defendant's age should impact sentencing outcomes.  Here is how the piece starts:

In a case involving an 87-year-old man convicted of racketeering, a federal judge in Manhattan rejected a plea for leniency last year, giving the man a five-year sentence. The judge in this case had a special perspective: He was 84 himself.

But in another case this spring, an 85-year-old man who admitted providing sensitive military information to Israel was spared prison by a judge, who cited the man’s advanced age and said sending him to prison would “serve no purpose.”

In the 12 days they spent deciding the fate of Brooke Astor’s son, Anthony D. Marshall, the jurors said they did not make much of his age.  But now that Mr. Marshall, who is 85 and had quadruple bypass surgery last year, has been found guilty of a variety of charges, his age can be expected to have some bearing on his sentence — though it almost certainly will not serve as a get-out-of-jail-free card.

How might we punish "semi-voluntary acts"?

The question of this post is prompted by this new paper from Professor Deborah Denno that I just saw on SSRN.  The title of this paper is "Consciousness and Culpability in American Criminal Law," and here is the abstract:

American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category — semi-voluntary acts.

I am inclined, even without having a chance to read the whole paper, to embrace this proposed third category of semi-voluntary acts as a way to describe some wrongful behavior for criminal law purposes.  But that then just requires turning to the really hard question of how semi-voluntary acts ought to be punished.  Should perhaps alternative sentences or technocorrections or other novel punishment be the presumptive response to this new category of consciousness and culpability?

The latest version of "The Comparative Nature of Punishment"

I blogged here last year about a new piece by Professor Adam Kolber titled "The Comparative Nature of Punishment."  I believe a new version of the piece (with what seems to be a new abstract) is up now here at SSRN. The whole piece is worth checking out again, as this revised abstract suggests:

Our assessments of the severity of prison sentences rest on a fundamental mistake. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions. While doing so puts the inmates into identical situations, it does not change their situations equally unless they started out in identical circumstances. It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.

In tort and contract law, we understand what a defendant has done to a plaintiff by examining the change in the plaintiff’s condition caused by the defendant. To assess the amount of an injury, we compare an injured party’s condition relative to the condition the party would have been in under other circumstances. For some reason, however, when we consider the treatment of prisoners, we ignore their baseline conditions.

To accurately assess punishment severity, I argue, we must compare an offender’s condition in prison relative to his baseline condition. This is the approach we use to measure the severity of certain kinds of punishment, like monetary fines. Fines specify an amount by which to change an offenders’ wealth. We never use fines to set equally culpable offenders’ net worth to the same level. But we do use prison to set equally blameworthy offenders’ liberties to the same level, even though offenders are deprived of liberty to different degrees depending on their baseline levels of liberty.

When we recognize the comparative nature of punishment, we see that, by putting two offenders in prison for equal durations, the offender with the better baseline condition may be punished more severely than the offender with the worse baseline condition. This means punishing one offender more severely than the other, even when they are equally culpable. I suspect that most people care little about correcting such inequalities.  The bottom line, I suspect, is that people care less about true punishment equality and proportionality than they realize.

"Prison Population and Crime"

The title of this post is the title of this new criminology paper that I justice noticed via SSRN.  Here is the abstract of a paper that seems like a must-read for any and everyone who wants to make assertions about the relationship between incarceration rates and crime:

This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

"Parents in prayer death get probation, some jail"

The title of this post is the headline of this AP article reporting on a notable sentencing decision in Wisconsin state court.  Here are the basics:

A judge has sentenced a Wisconsin couple to 10 years probation and 30 days a year in jail for the next six years for praying instead of seeking medical care for their dying 11-year-old daughter.

Marathon County Circuit Judge Vincent Howard sentenced Dale and Leilani Neumann on Tuesday. The jail terms were stayed pending appeals by the couple of their convictions for second-degree reckless homicide in March 2008 death of their daughter, Madeline Neumann.

The girl died of complications from undiagnosed diabetes on the floor of the family's home while people around her prayed. Someone called 911 after she stopped breathing.

Okay, all you wanna-be sentencing judges: is this outcome similar to the sentence you might have given?

"A Smarter (and Cost-Efficient) Way to Fight Crime"

The title of this post is the headline of this recent piece in the New York Times by economist Robert Frank.  Here are snippets:

Law enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails,” he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly....

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. One way to make apprehension and punishment more likely is to spend substantially more money on law enforcement. In a time of chronic budget shortfalls, however, that won’t happen.

But Mr. Kleiman suggests that smarter enforcement strategies can make existing budgets go further. The important step, he says, is to view enforcement as a dynamic game in which strategically chosen deterrence policies become self-reinforcing. If offense rates fall enough, a tipping point is reached. And once that happens, even modest enforcement resources can hold offenders in check....

It is an ingenious idea that borrows from game theory and the economics of signaling behavior....

Considerable evidence supports Mr. Kleiman’s emphasis on the efficacy of immediate sanctions. Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages....

Potential applications of dynamic deterrence extend well beyond street crime. For example, it could help rein in corporate scofflaws who now feel free to violate environmental and safety regulations because they know that regulators are stretched thin. The strategy won’t work in all situations. But when the circumstances are right, it’s a revolutionary idea.

Could and should new technologies help achieve perfect deterrence?

This amusing article, which is headlined "Fantasy iPhone applications: 20 apps we would like to see," provides a technology suggestion that might help criminal deterrence work even better:

Below we present 20 iPhone apps that we would like to see.  Some will remain the stuff of fantasy without bolt-on hardware, but others should not be too difficult for developers to create....

6) Jail time

Provides instant sentencing guidelines for the most common offences, so would-be criminals can make informed choices. 

I like this idea so much, I am inclined to support its development beyond just an iPhone application.  What if a program like this was pre-loaded on to every computer and could provide a pop-up window every time a computer user seemed to be doing something hinky?  I  would certainly like to believe that many folks would stop using their computers for sex crimes if they were effectively informed about how harsh the guideline sentencing ranges have become for these crimes in the federal system.

"Time for a Moratorium to Rethink Executions"

The title of this post is the headline of this new commentary now up at The Huffington Post authored by Ohio's Secretary of State (and US Senate candidate), Jennifer Brunner.  The piece springboards off the failed execution attempt of Romell Broom in Ohio last week to set forth a fairly thorough (and rambling) assault on the death penalty on Ohio or anywhere else.  Here are a few excerpts from an interesting piece that might shake up the status quo concerning capital punishment in Ohio:

I am running for the United States Senate because I believe that public service is for the purpose of helping our fellow citizens realize improvement in their lives.  I believe that a government that treats its citizens with fairness, equality and respect, brings peace and justice to its citizens.  In this framework, killing in retribution for killing has no place.  It is in the community of sharing each other's burdens that we bridge the human chasm we cannot comprehend....

After Broom's execution was called off, the American Civil Liberties Union of Ohio asked state officials to immediately halt executions. "Ohio's execution system is fundamentally flawed. If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said. "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."

I agree....

I cannot condone a system that perpetuates the pain from which sprang the punishment. A civilized society does not abide barbarism to ease its pain. It is not justice for me. Even when those who represent me and make the laws say that it is, I say that the people have said, "Then if this is justice, it must not perpetuate the cruelty from which it has sprung." It must neither torment its recipients nor its administrators.

In Ohio, after a 30-month review of the state's death penalty system, a team of Ohio legal experts, working under the auspices of the American Bar Association's Death Penalty Moratorium Implementation Project, issued a report on September 24, 2007 calling for a temporary halt to executions in Ohio in light of numerous problems the team uncovered....

The failed attempted execution of Romell Broom is the latest reason to end the death penalty in Ohio. Since 1976 Ohio has executed 32 people. That puts Ohio in the top 10 of states and it's a top 10 we must exit....

Now is the time to rethink, first, how we kill, and then move on to the larger question of whether we even should kill in the first place.  We must begin to be the change we seek to improve individual lives one-by-one with temperance, patience and understanding.  We must focus on the improvements that shape and build and strengthen individual lives in our communities.  We must recognize and internalize that all are entitled to the basic rights as we the people have determined in our constitutions and entrusted to our courts to protect.  And when one of us violates those rights, we must continue to abide by these principles in addressing it.

There is much discussion ahead as we dare to embrace the change that lay before us. With your help I can begin that discussion in the Senate along with many other thoughtful and diverse minds.

In the interim I call for an immediate moratorium on the death penalty to allow the dialog to begin once again -- not just about how people are put to death, but whether they should be.  Like 15 other states that have outlawed prisoner executions, I believe that answer is no. I ask that you join me.

A timely examination of data and integration amidst California's corrections craziness

Professor W. David Ball has recently put up on SSRN on this timely analysisof California's sentencing and corrections challenges, which is titled "E Pluribus Unum: Data and Operations Integration in the California Criminal Justice System."  Here is the abstract:

The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals.  An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.

While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution).  As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination.  Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.

Some recent posts on related issues in California and elsewhere:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• Economic necessity finally forcing long-needed reform in California
• "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
• Reviewing how tough times are resulting in prison releases
• "Prison spending still shackles state budget"
• Dueling persectives on proposed California prison reforms and a new challenge
• Trickle-down realities of the prison economy in California
• Latest news on sentencing and prison reform in California

Seeking input on the most under-appreciated part of the US Constitution

The BLT's Morning Wrapnotes that today is "Constitution Day."  Here's its celebratory note:

On this day in 1787, the Constitution was signed, and the anniversary is being marked by the National Archives, the Library of Congress, the Constitution Project, and the Cato Institute, all in D.C., in addition to the National Constitution Center in Philadelphia and, we are sure, many other venues as well.

In addition to encouraging everyone to take the time to read the full US Constitution today, I thought it might be fun to celebrate today by asking readers to note in the comments what part or provision of the Constitution seems under-appreciated.

For fans of personal liberty and limited government like me, it is perhaps a bit too easy point to the Ninth Amendment as the most jurisprudentially under-appreciated provision of the Constitution.  But, as I reflect on the modern document and also my affinity for modern American democracy, I am also a huge fan of the 15th, 19th and 26th Amendments, each of which extended and safeguarded voting rights.  One reason I am often troubled by broad felon disenfranchisement laws is because I view the ever broaden of voting rights to be one of the many hallmarks of the greatness of this country.

Moving to a slightly different front, I think the 18th and 21st Amendments also should get a lot more love and attention as we consider our founding charter.  Though a national prohibition on alcohol now seems quite foolish, at least the temperance movement used the constitutional amendment process to achieve its policy goals rather than simply declaring a "war on alcohol" and having the local police power used to this end. 

And, even more importantly, once we collectively realized how foolish the 18th Amendment proved to be, we had the gumption and good sense to repeal it via the 21st Amendments.  I like being able to point my kids to these amendments when I say that everyone makes mistakes, and that the truly wise are the ones who admit their mistakes and then seek to fix them. 

"The Disutility of Injustice"

The title of this post is the title of this interesting new article on SSRN by Paul Robinson, Geoffrey Goodwin, and Michael Reisig. (Hat tip: the new CrimProf.)  Here is the avstract:

The retributivists and the crime-control instrumentalists have seen themselves as being in a irresolvable conflict for more than half a century. Social science increasingly suggests, however, that they need not be. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups – ironically, two groups traditionally opposed to one another. The first group – those concerned with what they see as the over-punitiveness of current criminal law – worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps will make things worse. The second group – those concerned with ensuring effective crime control – worries that a shift to desert will create many missed crime-control opportunities; it will increase avoidable crime.

The first group's concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which they disapprove are a reflection of the community's naturally punitive intuitions of justice. However, as Study 1 makes clear, today's popular crime-control doctrines in fact seriously conflict with people's intuitions of justice by exaggerating the punishment deserved.

The second group's concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half century that ignoring justice in pursuit of crime-control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost free. However, Studies 2 and 3 suggest that doing injustice has real crime control costs. Deviating from the community's shared principles of justice undermines the system's moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here give assurances to both groups. A shift to desert is not likely to either undermine the criminal justice system's crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system's punitiveness, and indeed may reduce it.

Reflecting on community intuitions about justice and punishment

As spotlighted in this paper and in lots of other thoughtful work, Paul Robinson has pioneered and championed a concept he calls "empirical desert" that is focused on having community intuitions of justice as the backbone of a criminal justice system.  As I have recently figured out, I think the label  "empirical desert" is a less-than-ideal way to describe Robinson's very valuable insight that shared intuitions of justice ought to play a more central role in the design of punishment systems.

Valuably, lots of thoughtful folks are starting to assess and debate Robinson's concept of "empirical desert," as evidenced by this new paper on SSRN, titled "How to Improve Empirical Desert," by Adam Kolber.  Here is the abstract:

According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.

I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain — those who are on the fence about offending — are likely to act under biased, heat-of-the-moment circumstances.  Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals.  Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals.  Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.

I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies.