Sunday, February 23, 2014
"Shadow Sentencing: The Imposition of Supervised Release"
The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:
More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release. Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant. Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections. The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.
Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system. In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.
Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release. It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence. This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.
February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Tuesday, February 11, 2014
"The Illusory Eighth Amendment"
The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, January 21, 2014
"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.
The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”
Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.
Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.
January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, January 19, 2014
Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing
For reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage. Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:
The Current State of White-Collar Sentencing
Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013).
Friday, January 24, 2014
Registration and Breakfast: 8:00 a.m. - 8:30 a.m.
Program: 8:30 a.m. - 11:30 a.m.
Eleven Times Square (41st Street and 8th Avenue)
New York, NY 10036
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing. This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures. Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:
- Mark D. Harris – Partner, Proskauer Rose LLP, Board of Editors, Federal Sentencing Reporter
- Sharon Cohen Levin – Chief, Asset Forfeiture Unit in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York
- Seetha Ramachandran – Deputy Chief, Asset Forfeiture and Money Laundering Section of the DOJ’s Criminal Division
- Mark H. Allenbaugh – Partner, Law Offices of Mark H. Allenbaugh
- Wes Reber Porter – Associate Professor, Golden State University School of Law
- Matthew Benjamin – Associate, Gibson, Dunn & Crutcher LLP
- Mei Lin Kwan-Gett – Partner, Wilkie Farr & Gallagher LLP
- David Deitch – Member, Ifrah Law
- Marcus A. Asner – Partner, Arnold & Porter LLP
Thursday, January 16, 2014
"If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment"
The title of this post is the title of this new paper by Kenneth Einar Himma now available via SSRN. Here is the abstract:
Thomas Nagel argues that the pervasive role that luck plays in conditioning behavior seems inconsistent with ordinary views about moral accountability and culpability. As many criminal justice practices seem to rely on these ordinary views, the pervasiveness of luck also seems inconsistent with the legitimacy of a number of criminal law practices. For example, the claim that people do not have direct control over the consequences of their acts and hence that the consequences of an act are conditioned by luck calls into question the legitimacy of the traditional practice of punishing unsuccessful attempts less severely than successful attempts; if the only difference between a successful and unsuccessful attempt is a matter of luck, then there can be no difference, other things being equal, in culpability between the two.
In this essay, I argue that the pervasive role that luck plays in conditioning a person’s acts calls into question the viability of retributivist justifications of punishment, which hold that punishment is justified insofar as deserved. A person is not culpable or deserving of punishment, according to ordinary views, for events beyond her control. But if the factors conditioning an agent’s act are all matters of luck beyond the agent’s control, then she is not deserving of punishment for the act. The pervasiveness of such luck seems inconsistent with retributivism and threatens not only differential punishment for successful and unsuccessful attempts. More significantly, it calls into question the very legitimacy of punishment itself. The problem of luck goes well beyond its implications for the law of attempts.
Wednesday, January 08, 2014
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course.
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Cross-posted at PrawfBlawg
Sunday, January 05, 2014
"The Punishment Imperative The Rise and Failure of Mass Incarceration in America"
“Backed up by the best science, Todd Clear and Natasha Frost make a compelling case for why the nation’s forty-year embrace of the punitive spirit has been morally bankrupt and endangered public safety. But this is far more than an exposé of correctional failure. Recognizing that a policy turning point is at hand, Clear and Frost provide a practical blueprint for choosing a different correctional future — counsel that is wise and should be widely followed.” — Francis T. Cullen, Distinguished Research Professor of Criminal Justice, University of Cincinnati
Over the last 35 years, the US penal system has grown at a rate unprecedented in US history — five times larger than in the past and grossly out of scale with the rest of the world. This growth was part of a sustained and intentional effort to “get tough” on crime, and characterizes a time when no policy options were acceptable save for those that increased penalties. In The Punishment Imperative, eminent criminologists Todd R. Clear and Natasha A. Frost argue that America’s move to mass incarceration from the 1960s to the early 2000s was more than just a response to crime or a collection of policies adopted in isolation; it was a grand social experiment. Tracing a wide array of trends related to the criminal justice system, The Punishment Imperative charts the rise of penal severity in America and speculates that a variety of forces — fiscal, political, and evidentiary — have finally come together to bring this great social experiment to an end.
Clear and Frost stress that while the doubling of the crime rate in the late 1960s represented one of the most pressing social problems at the time, this is not what served as a foundation for the great punishment experiment. Rather, it was the way crime posed a political problem — and thereby offered a political opportunity — that became the basis for the great rise in punishment. The authors claim that the punishment imperativeis a particularly insidious social experiment because the actual goal was never articulated, the full array of consequences was never considered, and the momentum built even as the forces driving the policy shifts diminished. Clear and Frost argue that the public’s growing realization that the severe policies themselves, not growing crime rates, were the main cause of increased incarceration eventually led to a surge of interest in taking a more rehabilitative, pragmatic, and cooperative approach to dealing with criminal offenders.
The Punishment Imperative cautions that the legacy of the grand experiment of the past forty years will be difficult to escape. However, the authors suggest that the United States now stands at the threshold of a new era in penal policy, and they offer several practical and pragmatic policy solutions to changing the criminal justice system’s approach to punishment. Part historical study, part forward-looking policy analysis, The Punishment Imperative is a compelling study of a generation of crime and punishment in America.
Sunday, December 15, 2013
In praise of sentencing and drug war coverage at The Atlantic and Reason.com
Thanks especially to columnists like Andrew Cohen and Jacob Sullum, sentencing fans need to make sure to make regular visits to The Atlantic and Reason.com. Below I provide just a sampling of what has appeared in these spaces over the last week.
From The Atlantic:
Monday, November 25, 2013
New Brennan Center report urges "Reforming Funding to Reduce Mass Incarceration"
As reported in this press release, late last week The Brennan Center for Justice published a notable new report setting out a notable new proposal under the title "Reforming Funding to Reduce Mass Incarceration." Here are highlights via the press release:
The proposal, dubbed by the authors “Success-Oriented Funding,” would recast the federal government’s $352 million Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by changing the measures used to determine success of its grants. It reflects a broader proposed shift in criminal justice programs at all levels of government. The proposal could be implemented without legislation by the U.S. Department of Justice.
“Funding what works and demanding success is critical, especially given the stakes in criminal justice policy. This report marks an important step toward implementing this funding approach in Washington and beyond,” said Peter Orszag, former Director of the White House Office of Management and Budget, who wrote the proposal’s foreword.
The Center proposes major changes to the program’s “performance measures”, which are used to track a grant recipient’s use of the funds....
“What gets measured gets done,” said Inimai Chettiar, director of the Justice Program at the Brennan Center and one of the report’s authors. “Criminal justice funding should reflect what works. Too often, today, it is on autopilot. This proposal reflects an innovative new wave of law enforcement priorities that already have begun to transform policy. That is the way to keep streets safe, while reducing mass incarceration.”
Success-Oriented Funding would hold grant recipients accountable for what they do with the money they receive. By implementing direct links between funding and proven results, the government can ensure the criminal justice system is achieving goals while not increasing unintended social costs or widening the pipeline to prison.
The JAG program was launched nearly three decades ago at the height of the crime wave. As such, its performance measures center on questions about the quantity of arrests and prosecutions. Although funding levels are not based on rates of arrests and prosecutions, interviews with over 100 state and local officials and recipients found that many grant recipients interpreted the performance measure questions as indicating how they should focus their activity.
The Brennan Center’s new, more robust performance measures would better record how effective grant recipients are at reducing crime in their state or locality. For example, current volume-based performance measures record activity, such as total number of arrests, number of people charged with gun crimes, or number of cases prosecuted. The Brennan Center’s proposed new Success-Oriented performance measures record results, such as the increase or decrease in violent crime rate or what percentage of violent crime arrests resulted in convictions.
A Blue Ribbon Panel of criminal justice experts also provided guidance and comments on the measures, including leaders in law enforcement, prosecutors and public defenders, former government officials, and federal grant recipients. Participants included David LaBahn, president of the Association of Prosecuting Attorneys; John Firman, research director of the International Association of Chiefs of Police; and Jerry Madden, a senior fellow at Right on Crime....
In addition to implementing new metrics, the Brennan Center recommends the Justice Department require grant recipients to submit reports. By mandating that grant recipients answer the questions, the Justice Department can align state and local practices with modern criminal justice priorities of reducing both crime and mass incarceration. The reported data should then be publicly available for further analysis.
The full Brennan Center report can be accessed at this link.
Wednesday, October 23, 2013
Lots of newly published sentencing-related scholarhip worth checking out
Thanks to the always helpful Concurring Opinions and its compilation of of law review contents, I now see a whole bunch of recently published articles that I am adding to my (always growing) pile of sentencing-related scholarship reading list:
Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law by Richard E. Finneran & Steven K. Luther
Informal Collateral Consequences by Wayne A. Logan
Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker by Sonja B. Starr & M. Marit Rehavi
Firearm Localism by Joseph Blocher
Monday, October 14, 2013
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).
Cross-posted at PrawfsBlawg.
Thursday, October 10, 2013
Please welcome (and often visit) the new Civil Rights Law & Policy Blog
It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside. Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:
CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues. CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy. Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.
CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law. In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry. Visitors are encouraged to visit CRL&P’s resource page.
CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.
Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.” Submissions should be sent here.
The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law. Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).
I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog. Indeed, here are just a small sampling of the many interesting posts one will find at that space already:
- Women allege forcible strip searches violated their civil rights
- Today in Civil Rights History: Roger Williams' early stand for civil liberties
- New Sentencing Project report shows life sentences have quadrupled since 1984
- Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment.
Tuesday, August 27, 2013
In praise of the US Sentencing Commission's new "Quick Facts" series
I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications. This posting from the USSC's webpage explains:
The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.
I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:
Wednesday, August 14, 2013
Lots of (mostly positive) reactions to AG Holder's big sentencing speech
In the last 48 hours, I have seen lots and lots of notable reactions and commentary in the wake of Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms. Nearly all have been relatively positive, and I believe I have seen more expressions of concern that AG Holder did not go far enough than that he went too far in urging criminal justice reforms and in changing some DOJ policies. Here is a sampling of some of the more high-profile and/or substantial discussions I have seen:
From the Baltimore Sun here, "Minimal reform on mandatory sentencing"
From the Dallas Morning News here, "Holder takes right approach on out-of-control drug war"
- From the New York Times here, "Smarter Sentencing"
From the Washington Post here, "Welcome drug prosecution reform still needs Congress’s help."
From Nancy Hoppock at Constitution Daily here, "Explaining the DOJ’s new policy on drug crimes and mandatory minimums"
- From Walter Palvo at Forbes here, "Despite DOJ Announcement, The Federal Prison Population Will Grow"
From Jacob Sollum at Reason here, "Eric Holder's Prison Break: The attorney general's criticism of mass incarceration and mandatory minimums is belated but welcome."
From Emily Bazelon at Slate here, "Not-Quite-So-Mandatory Minimums: Eric Holder’s plan to lower sentences for drug offenders isn’t ambitious enough"
UPDATE: I put together this op-ed for the Los Angeles Times explaining my basic reactions to the Attorney General speech and the paper gave it this title: "Atty. Gen. Holder plays catch-up on criminal justice: He should do more to seize the sentencing reform moment." Here is how it concludes:
Before a new course can be set, the criminal justice ship has to navigate away from the old "get-tough" course, and that won't be easy. So it's perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them. But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn't wait too long before sailing full speed ahead.
Wednesday, April 24, 2013
Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"
I am not at all surprised that, less than two months after coming on-line, U.S. District Court Judge Richard Kopf's his notable blog, "Hercules and the Umpire," is now a regular must-read. Here are just a few April posts by Judge Kopf on topics that should greatly interest sentencing fans, sequester watchers and so many others:
- Genghis Khan and sentencing
- Does ideology matter when district judges sentence?
- 30 days in jail for taking a cell phone photo of sentencing in federal court? Damn right!
On sequester realities:
- The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole
- Touching the third rails of judicial politics
- Statement on Impact of Sequestration on Judiciary, Defender Funding
- Congress is herewith warned
On other stuff:
- The frequent irrelevancy of the Supreme Court
- It’s a fact: Federal district judges are carpenters not politicians
- What I learned (and am still learning) from a “Fuck You” motion
There is so much worth of attention in these (and other) posts by Judge kopf, but I want to close this post with excerpts from yesterday's post warning Congress about the impact of sequester:
I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days. Here is the missive received today from our Clerk’s office:...
The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates ...[when that office] will be furloughed....
While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD. If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations. I have not finally decided on this course of action, but I am seriously contemplating it.
Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished. If a banana republic is what members of Congress want, I may help them get it.
Monday, April 22, 2013
Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the worldI am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere. And all of the article look like must reads for sentencing geeks like me. The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:
The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.
The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines. For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors? Should the guidelines bear some of the responsibility for the surge in prison population in the United States? Has the lack of guidelines helped Germany constrain its prison population? Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing? And how should guidelines be structured?...
The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011. The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research. The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones. It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.
Sunday, March 31, 2013
Two notable (and notably distinct) new capital punishment papersI tend not to read most of the (voluminous) academic commentary about the death penalty because they usually build to the same type of abolition-oriented conclusions. But appearing on SSRN in the the past few weeks are these two different kinds of discussions of the death penalty:
The Case Against the Case Against the Death Penalty by Chad Flanders:
Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general.
Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.
The Death Penalty Spectacle by Tung Yin:
The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).
This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.” On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).
There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?
Wednesday, March 20, 2013
Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"Especially because early Thursday morning I am heading out on a muti-day trip (involving both work and play) that will lessen my blogging opportunities, I am very pleased to be able to welcome Professor Alex Kreit as a guest-blogger to discuss his new casebook, Controlled Substances: Crime, Regulation, and Policy. I plan to teach a new seminar from this new text (which I will discuss in this space in a few weeks), and I am eager to hear all that Alex has to say about his work and work-product. And here are his first comments:
Thanks so much to Doug Berman for giving the opportunity to blog about my recently published casebook, Controlled Substances: Crime, Regulation, and Policy. I plan to do a short series of posts on about the book and about teaching law school courses on drug law and policy.
I don’t think it would be an exaggeration to say that no development has had a bigger impact on our criminal justice system over the past four decades than the war on drugs. The drug war has been a driving factor in the explosion in our prison population, with drug offenders accounting for about one fifth of our nation’s prisoners. Our drug laws have also had significant impacts on a range of other issues, from the nature of policing to race and the criminal justice system. Yet, while modern drug laws have dramatically changed our criminal justice system, they have been strangely absent from the curriculum at most law schools. Every criminal law casebook devotes significant coverage to homicide and property crimes, but only a handful — at most — include a chapter or section on drug offenses. Though criminal procedure courses are filled with drug cases, this is only because so many leading Fourth, Fifth, and Sixth Amendment decisions happened to involve drug investigations; not because drug law or policy is a special point of concern in criminal procedure courses. Likewise, only a small fraction of law schools currently offer a seminar on drug law and policy.
Indeed, at most law schools today, a student could take every single criminal law-related offering without studying drug law and policy.
Why is this? I must confess that, despite giving the question a lot of thought during my book project, I’m still not quite sure. I suspect — and hope — that a lack of prepared materials may be partly to blame. To my knowledge, before the publication of my new book, the last casebook dedicated to drug abuse and the law was published in 1983 (Gerald F. Uelmen and Victor G. Haddox’s Drug Abuse and the Law.)
Whatever the reason for the inattention to drug laws, teachers and students alike have been the poorer for their absence from law schools. A course on controlled substances provides a uniquely rich mix of complex legal and policy problems. A close look at the law of drug crimes reveals unusually tough challenges for how to define, prove, and grade criminal conduct. The enforcement of drug laws, meanwhile, provides an ideal vehicle for studying a number of important issues often overlooked in law classes like prosecutorial discretion, the use of informants in modern policing, and racial profiling. Drug prohibition also presents one of the most difficult tests for the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be crimes. Many theorists and policy analysts, however, believe that drug criminalization is unjust or unworkable.
From beginning to end, drug law and policy provides an intellectually engaging experience. Students who plan on becoming prosecutors or defense attorneys will learn about an area of the law that will inevitably occupy a large percentage of their practice. Others will enjoy engaging with fascinating theoretical and policy problems. And, with marijuana legalization now the law in two states and quickly shifting political views on the drug war generally, students have a real enthusiasm and interest in taking and learning about this subject.
The absence of a casebook in the field led me to write my book, which I hope will help contribute to seeing the subject taught in more law schools. In upcoming posts, I plan to talk a bit more about some of the different issues that can be taught using my book, designing a drug law course, and more.
One last note for now: If you think you might be interested in teaching a course on controlled substances yourself — whether you are a full-time professor or a practicing attorney — please feel free to contact me directly any time. I’d be happy to provide additional information like sample syllabi and, for prospective adjuncts, advice on how to submit a course proposal.
Monday, February 25, 2013
Another notable sign of our modern legal on-line times (and a suggestion)Via the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:
The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.
Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online. In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....
The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.
The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research. “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email. “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”
In line with this mission, the Law Review began publishing its print materials online in 2006. The organization also created a “Forum” section on its website where contributors can write exclusively online content. In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal. With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.
I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship. And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).
Sunday, February 24, 2013
"Two Moral Mistakes in the American Criminal Justice System"The title of this post is the title of this notable book chapter by Eric Blumenson now available via SSRN. Here is the abstract:
A state’s criminal justice system must serve two masters: it must protect the security of persons and property, and it must respect the liberties of the people. It is bound by both duties and must strike the morally correct balance between them. In this paper, I discuss some principles that I believe must be elements in that balance. I defend these principles as a necessary part of any effective, liberty-respecting criminal justice system; describe the extreme departure from those principles in the United States; and note some recent interest in reforms that, should they take root, could mark the beginning of an American transition towards a safer, less incarcerated and more liberty-affirming country.