Sunday, November 12, 2017

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

Friday, November 10, 2017

"Is It Time for Criminologists to Step Outside the Ivory Tower?"

The question in the title of this post is the headline of this commentary by LawProf Erik Luna from over at the Crime Report that provides some background and perspective on the extraordinary recent academic work, discussed here, that Erik helped create and curate. Here are excerpts:

[C]riminal justice reform presents an issue — perhaps the only issue today — on which the left and the right can unite. And, as it turns out, the academic world may be able to help, as demonstrated by a newly released report from a distinguished group of criminal justice scholars....

Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. On what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and the Charles Koch Institute?

In our nation’s capital, Republicans and Democrats came together to correct grotesque disparities between crack and powder cocaine sentencing, for instance, and pending bills would address such issues as America’s broken bail process, ruthless mandatory penalties, and recidivism by former inmates. In truth, the most remarkable bipartisan action is occurring outside of the Beltway, where states such as Texas (yes, Texas) are leading the way in top-to-bottom criminal justice reforms.

Although advocates may have different motivations — political, social, economic, religious — they agree that something needs to be done about criminal justice in America....

Despite [broad] reasons to support criminal justice reform, the movement still faces a daunting task. In particular, a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the reality of pretrial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration.

This lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice. What is needed is a means to help people grasp the system’s workings and its many, interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions.

This is where academics have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system and proposing changes to that system.

Traditionally, however, academic authors have written to themselves—that is, to other criminal justice scholars — not to the public or even to policymakers, professionals, or policy analysts interested in criminal justice.  As a result, academic scholarship is inaccessible in the sense that it is dense, filled with jargon, and, as a general rule, painful to read and unfriendly to normal human beings.  Oftentimes scholarly works are physically inaccessible as well, published by academic presses and journals and buried in libraries or hidden behind paywalls.

In an attempt to bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of well over 100 scholars has issued a four-volume report titled Reforming Criminal Justice, which takes on some of the most pressing issues in criminal justice today.

Broken down into individual chapters, each authored by a top scholar in the relevant field, the report covers dozens of topics within the areas of criminalization, policing, pretrial and trial processes, sentencing, incarceration, and release. The goal of each chapter is to increase both professional and public understanding of the subject matter, to facilitate an appreciation of the relevant scholarly literature and the need for reform, and to offer potential solutions.

Today, the United States is unique among Western nations in terms of the scale and punitiveness of its criminal justice system. Academics can’t directly change this: We’re teachers and scholars, not elected officials or other policymakers. But, as the report hopes to show, the academic world can enlighten the public and their representatives and help guide reform efforts through the insights of those whose lifework is the study of criminal justice.

Prior related post:

November 10, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (3)

Sunday, November 05, 2017

In praise of an extraordinary new resource, "Reforming Criminal Justice" 

This press release reports on the recent culmination of an extraordinary academic project:

In an effort to inform criminal justice reform, the Sandra Day O’Connor College of Law at Arizona State University published a major new report titled Reforming Criminal Justice. The culmination of a yearlong collaboration, the four-volume publication involved 120 of the nation’s foremost academics to discuss specific topics within the reform movement. The report was made possible with support from the Charles Koch Foundation....

Erik Luna, ASU Law Amelia D. Lewis professor of constitutional and criminal law, directs the project. “The goal of this report is to connect academics with those responsible for criminal justice policy,” said Luna. “In recent years, academics have not effectively participated in and contributed to the conversation. This is a way for them not only to be a part of the discussion, but also to impact real-world policy.”

The coalition of scholars, known as the Academy for Justice, was inspired by a bipartisan summit in 2015, which brought together prominent figures in the reform movement to discuss the problems of criminal justice and to propose real, meaningful, lasting solutions. Following the 2015 summit, Professor Luna spearheaded an effort to integrate the expertise of the nation’s leading academics into the criminal justice reform movement.  That effort ultimately led to the idea of creating an unprecedented report with perspectives from criminal justice experts from colleges and universities such as Berkeley, Chicago, Columbia, Georgetown, Harvard, NYU, Penn, Stanford, Vanderbilt, and Virginia.  The scholars gathered at ASU Law’s Beus Center for Law and Society in February 2017, to share ideas, review and provide feedback on each other’s work, and ensure the highest quality content and issue development....

The report provides both detailed analysis and specific policy proposals, a resource of unrivaled breadth and depth in the reform movement.  The 57 separate contributions cover a wide range of specific topics within criminal justice: from criminalization and policing to adjudication and incarceration.  To maintain and increase its momentum, policymakers, thought leaders, and community members must encourage a broader and deeper understanding of the problems and forge thoughtful solutions to these difficult issues. This is where academics have an important role to play.

The report is being distributed to policymakers, criminal justice officials, think tanks, non-profit organizations, and community activists, but will also be freely available to the public through a dedicated website, academyforjustice.org

I had the honor and privilege of contributing a chapter to this extraordinary project, which is available here and is titled simply "Sentencing Guidelines."  Sentencing fans will especially want to check out all of Volume 4  on "Punishment, Incarceration, and Release" for chapters on topics ranging from traditional theories of punishment to risk assessment at sentencing to fines and fees to sex offender registration and many more. Indeed, all criminal justice fans should check out all the volumes because there is so much extraordinary work to be found therein.

November 5, 2017 in Recommended reading | Permalink | Comments (1)

Wednesday, October 18, 2017

Special issue of Federal Probation looks at "30 Years with Federal Sentencing Guidelines"

The latest issue of the journal Federal Probation, which is published by the Administrative Office of the U.S. Courts, features a special section looking at "30 Years with Federal Sentencing Guidelines."  As revealed by the contents reprinted below, I had the honor of contributing a short article to this issue and that authorship puts me in some notable company:

Federal Sentencing Policy: Role of the Judicial Conference of the United States and the Administrative Office of the U.S. Courts by Hon. Ricardo S. Martinez

The Integral Role of Federal Probation Officers in the Guidelines System by Hon. William H. Pryor Jr.

Reflecting on Parole’s Abolition in the Federal Sentencing System by Douglas A. Berman

Five Questions for the Next Thirty Years of Federal Sentencing by Steven L. Chanenson

State Sentencing Guidelines: A Garden Full of Variety by Kelly Lyn Mitchell

Brief summaries of these pieces are available at this link, but I urge everyone to download the full issue here.

October 18, 2017 in Federal Sentencing Guidelines, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, October 17, 2017

Lots of criminal justice coverage at start of new Harvard Law Review Blog

Logo_DesktopVia email, I learned of an old institution of legal scholarship trying its hand at a new(?) medium. Here is the explanation via the email text:

We are excited to announce the launch of the Harvard Law Review Blog.

The Harvard Law Review published its first issue more than 130 years ago with the hope that it could “enlarge our field” and be “serviceable to the profession” through thoughtful and relevant legal analysis.  Our Blog continues this effort.  By fostering legal inquiry and argument that is fast-paced and timely, the Blog will strive to complement the long-form, in-depth analysis that has filled our pages for over a century.

Like our print edition and the Forum, the Blog will bring together the scholars, practitioners, and leaders who are on the forefront of today’s biggest legal issues — who are pushing for a deeper understanding of the law. In keeping with our tradition as a generalist publication, our contributors will explore a range of topics, from Chevron deference and civil rights to international trade and immigration law.

In 1887, the editors of the Law Review’s first issue wrote, “It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received.” Today, we launch the Harvard Law Review Blog in the same spirit.

Notably, a number of the initial posts up on the HLR Blog have a criminal justice focus:

October 17, 2017 in On blogging, Recommended reading | Permalink | Comments (2)

Tuesday, October 10, 2017

"The Idea of 'the Criminal Justice System'"

The title of this post is the title of this interesting-looking new paper authored by Sara Mayeux now available via SSRN. Here is the abstract:

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s.  This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science.

The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.”  Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations.  For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

October 10, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (0)

Tuesday, October 03, 2017

"What’s Behind the Decline in the Death Penalty?"

The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."  Here is how the Q&A gets set up, along with the concluding Qs and As:

There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....

If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts?  What happens if there is a return to the murder rates of the 1980s?

The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline.  If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches.  But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime.  We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences.  Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences."  How do you resolve that tension?  What do you think opponents of long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report.  I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out.  For decades, he filed habeas petitions himself and wrote letters.  After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America.  We have replaced the death penalty with the “other death penalty.”  Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory.  To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.

October 3, 2017 in Death Penalty Reforms, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Thursday, August 31, 2017

Thoughtful account of what to think about risk assessment tools

This new commentary at The Crime Report authored by Megan Stevenson, headlined simply "Is Crime Predictable?," provides an effectively measured discussion of the use of risk assessment tools in criminal justice decision-making. Here is how it starts and ends:

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.

Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety. Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.

Which side is right? It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented. Risk assessments are tools — no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.

They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense....

We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.

Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.

UPDATE: I am pleased to see that this commentary has now been given a more fitting headline over at The Crime Report: "Risk Assessment: The Devil’s in the Details"

August 31, 2017 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (4)

Sunday, June 18, 2017

"Days of Future Past: A Plea for More Useful and More Local Legal Scholarship"

The title of this post is the title of this notable new paper now available on SSRN and authored Frank Bowman.  Though not directly about sentencing, Frank's history as a fantastic sentencing scholar and reform advocate surely helped shape his perspective on the issues he discusses (and also surely helped me and this blog get a shout-out in footnote 81).  Here is article's abstract:

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship - a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.

June 18, 2017 in Recommended reading | Permalink | Comments (1)

Sunday, June 11, 2017

"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"

The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed.  Here is description via the book's Amazon page:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book.  The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost.  And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion.  The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention.  This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.

June 11, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, May 03, 2017

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"

The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

May 3, 2017 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Saturday, April 29, 2017

Illinois Law Review creates big online symposium to mark Prez Trump's first 100 Days

Via email I learned of an impressive and well-timed project completed by the Illinois Law Review: publication of this online symposium on President Trump's First 100 Days with 31(!) folks analyzing various aspects of the activities of the new Administration. Sadly, there is no commentary in the collection focused specifically on sentencing and punishment issues, but here is just a handful of the pieces that are connected in various ways to various issues covered on this blog:

April 29, 2017 in Recommended reading, Who Sentences? | Permalink | Comments (2)

Sunday, March 12, 2017

"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"

The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:

Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform."  The book concludes that police, legislators, and judges are not to blame for Mass Incarceration.  Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”

Locked In’s data-driven thesis aligns neatly with the academic consensus.  If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration.  The only problem is that it probably isn’t right.  While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data.  With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators.  This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration.  It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny.  When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

March 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, March 10, 2017

"Why Prison?: An Economic Critique"

The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:

This Article argues that we should not imprison people who commit crimes.  This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system.  Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.

Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses.  It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs.  The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently.  It concludes that there exist economically superior alternatives to prison available right now.  The alternatives are practicable.  They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.

This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.  Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective.  But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns.  That question is outside the ambit of this paper.  The alternative system can also be criticized on practicability grounds.  But upon close investigation, such criticisms lose much of their force.

March 10, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (10)

Monday, March 06, 2017

"Rationing Criminal Justice"

The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas.  Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities.  Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions.  Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.

Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps.  As these tools highlight, scarcity often works not as a bug but as a design feature.  Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture.  But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 6, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (3)

Monday, February 06, 2017

"A Theory of Differential Punishment"

The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:

A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.

The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified.  We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.

February 6, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

Saturday, February 04, 2017

"The Death Penalty as Torture From the Dark Ages to Abolition"

9781611639261The title of this post is the title of this new book authored by John Bessler about to be published by Carolina Academic Press.  Here is the blurb from the Press webpage:

During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture — from the thumbscrew and the rack to the Inquisition’s tools of torment — was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.

In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria — the father of the world’s anti–death penalty movement — condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.

In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.

February 4, 2017 in Death Penalty Reforms, Recommended reading | Permalink | Comments (6)

Sunday, January 29, 2017

"A Better Approach to Violent Crime"

The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:

If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.

There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...

Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.

It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks.  In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.

A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.

California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend. ​

Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens.  A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.

The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.

One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them.  Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on. ​

A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.

Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.

Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods.  Some studies have found that half of all urban crimes take place in under 10% of all city blocks.  In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.

It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...

Prison, in short, is by no means the only effective way to respond to violent behavior.  In fact, compared with these programs, prison is likely one of the least efficient approaches that we have.  The declines in incarceration over the past six years are worth celebrating.  But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.

If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time.  Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.

January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Monday, November 07, 2016

Interesting array of distinctive sentencing articles in Louisiana Law Review’s Fall 2016 issue

A helpful reader alerted me to this new symposium issue of the Louisiana Law Review with four distinct articles on four distinct criminal sentencing topics. The publication follows the live symposium earlier this year, reported here, which was titled "Throw Away the Key: Criminal Sentencing Reform in the 21st Century." Here are the four article from that issue:

Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post-Civil War South by Peter Wallenstein

Restitution and the Excessive Fines Clause by Kevin Bennardo

The Right to Redemption: Juvenile Dispositions and Sentences by Katherine Hunt Federle

Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing by Kenya J.H. Smith

November 7, 2016 in Recommended reading | Permalink | Comments (0)

Sunday, October 30, 2016

"The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All"

Report+CoverThe title of this post is the title of this big report released earlier this month and discussed in this press release. Here is a summary of the report drawn from the press release:

Over the last three decades, the U.S.’s emphasis on mass incarceration and criminalization policies wasted $3.4 trillion that could have instead been used to create living-wage jobs, improve educational opportunities for youth, and hire mental health and drug treatment counselors, according to a new report released today by three advocacy organizations.  The report, “The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All,” provides an analysis of the country’s investments in the justice system and their impact on federal, state, and local budgets, and on individual taxpayers. Authored by Communities United, Make the Road New York, and Padres & Jóvenes Unidos, the report includes state-by-state data and details on alternative investments that would more effectively address the roots causes of crime.

Key report findings show that, from 1982 to 2012, the U.S. increased its spending on the justice system from $90 billion annually to nearly $297 billion, a 229 percent increase.  Cumulatively, over that 30-year period, the U.S. spent $3.4 trillion more on the justice system than it would have if spending had remained steady since 1982.

“The ‘tough-on-crime’ approach and the ‘War on Drugs’ have not substantially improved public safety, but they have resulted in nearly eight million U.S. residents that are either in prison, in jail, on probation or parole, or otherwise under control of the justice system,” said Ricardo Martinez, Co-Director of Padres & Jóvenes Unidos. “That amounts to one out of every 40 people, which is a clear indication that our justice system is vastly oversized.”

Report authors found that the flawed spending impacted the country in the following ways:

• All 50 U.S. states accumulated billions of dollars in surplus justice spending over that time, ranging from $2.2 billion for North Dakota to $505 billion for California.

• In 1982, each household in the U.S. paid an average of $1,076 for our justice system. By 2012, each household was paying an average of $2,557, almost $1,500 more.

• Between 1983 and 2012, the justice system added an additional 1.2 million police officers, corrections employees, prosecutors, and other employees to our publicly funded workforce, nearly doubling its number of personnel.

• By far the largest category of justice spending — at 45 percent of the total — is police spending. It has also increased over time more than the other categories. For example, in 2012, the U.S. spent $85 billion more on police than it did in 1982.

• The impact of over-investment in the justice system has been particularly severe in communities of color. For example, approximately 1 in 18 Black residents, and 1 in 34 Latino residents, were under the control of the justice system in 2013 (compared to 1 in 55 White residents).

"To build safe and healthy communities, we need living-wage jobs, affordable housing, and access to quality education," said Zion Harley, youth leader at Make the Road New York. "It is time for us prioritize these types of community investments and stop the massive over-spending on the criminalization and incarceration of people of color and immigrants."

The report suggests that, instead of spending an extra $206 billion per year on the justice system, the U.S. could have created healthier and safer communities through other investments, such as:

• Creating over one million new living-wage jobs: $114B

• Increasing spending by 25 percent at every K-12 public school in the country: $159B

• Providing every household living in poverty with an additional $10,000 per year in income or tax credits: $87B

• Funding one million new social workers, psychologists, conflict mediators, mental health counselors, and drug treatment counselors to address public health/safety issues: $67B

• Creating a universal pre-K system for all 3- and 4-year-olds that would be free for lowincome families and affordable for middle-class families: $20B...

Key recommendations in the report suggest the following:

• Inclusive efforts at the federal, state, and local levels to reduce all four areas of surplus justice spending (police, corrections, judicial/legal, and immigration enforcement) and reinvest those funds in meeting critical community needs;

• The creation of a new, federal Justice Reinvestment Fund to dramatically expand the support and incentives for states and localities to engage in comprehensive justice reinvestment efforts; and

• State-level support and incentives for localities governments to engage in comprehensive justice reinvestment efforts.

October 30, 2016 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Saturday, October 29, 2016

"Constitutional Liberty and the Progression of Punishment"

The title of this post is the title of this notable new paper authored by Robert Smith and Zoe Robinson now available via SSRN. Here is the abstract:

The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants.  This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.

This Article challenges these assumptions.  It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause.  The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.

Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment.  Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty.  Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences and the prolonged use of solitary confinement.

October 29, 2016 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, October 15, 2016

"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."

The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:

In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016).  Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255.  In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."

The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy.  The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least.  That it has broadcast that belief in a Supreme Court brief is downright disturbing....

In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.  The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).

A few of many related prior posts and related materials:

October 15, 2016 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Tuesday, October 04, 2016

"The Original Meaning of 'Cruel'"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN.  Here is the abstract:

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.”  The word refers to the effect of the punishment, not the intent of the punisher.  In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence.  First, it clarifies the Eighth Amendment’s intent requirement.  To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment.  The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced.  Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not.  If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual.  

Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities.  Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering.  When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

October 4, 2016 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, September 23, 2016

Lots of notable new content worth checking out at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So... here are some recent posts of note from CCRC:

Major new federal awards support second chance advocacy

When does the Second Amendment protect a convicted person’s right to bear arms?

Felony Disenfranchisement: Setting the Record Straighter

Indiana courts interpret new expungement law

SUNY bans the box on admissions application

When collateral consequences drive the sentence: The David Becker case

Can the pardon power be revived through procedural reforms?

September 23, 2016 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Who Sentences? | Permalink | Comments (0)

Tuesday, September 20, 2016

Lots of notable new content worth checking out at Crime & Consequences

The students in my Sentencing Law and Policy course at The Ohio State University Moritz College of Law may already be getting tired of hearing me encourage them to regularly check out Crime & Consequences for another perspective on the issues we discuss in my class.  But as I was talking up a recent post there in class yesterday, I discovered that the C&C folks have recently added a lot of new content that merits highlighting here.  So....

In my class yesterday, I was trying to highlight the last of these listed posts as we were talking about whether and how you could argue to elected officials and voters that abolition of the death penalty would save significant monies within a jurisdiction. Perhaps unsurprisingly, as Kent at C&C highlights, folks advocating for death penalty abolition in Nebraska and elsewhere are eager to argue great savings from getting rid of the death penalty, but the numbers they promote as part of such a pitch are certainly contestable.

September 20, 2016 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Sunday, June 26, 2016

Mother Jones devotes issue to reporter's four months working as a private prison guard

Mojocover_JA16_660x866Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.

This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:

In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
 
Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....
 
Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last....  But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase: 
  • When the information obtained is of vital public interest.
  • When other efforts to gain that information have been exhausted.
  • When the journalist is willing to disclose the reason and nature of any deception.
  • When the news organization applies the skill, time, and funding needed to fully pursue the story.
  • When the harm prevented outweighs any harm caused.
  • After meaningful deliberation of the ethical and legal issues.

To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.

We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced.  There is no other way to know what truly happens inside but to go there.
 
But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.
 
Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....

Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.

Here are the chapter headings and links to this remarkable piece of reporting about private prisons:

CHAPTER 1: "Inmates Run This Bitch"  

CHAPTER 2: Prison Experiments 

CHAPTER 3: The CCA Way 

CHAPTER 4: "You Got to Survive" 

CHAPTER 5: Lockdown 

June 26, 2016 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, June 24, 2016

Do all or most prosecutors really end up "hostile to constitutional rights"?

The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights."  The full article is a must-read for lots of reasons, and how it gets started should highlight why:

Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.

Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.

When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly.  I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end.  I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights.  I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them.  I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types.  Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them.  Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.

June 24, 2016 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (9)

Monday, June 13, 2016

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, May 29, 2016

Some blogosphere reading for the extended weekend

With a bit of unexpect internet time, I have come to see a few interesting postings from the past week around the blogosphere that seemed worth rounding up here.  So:

May 29, 2016 in Recommended reading | Permalink | Comments (0)

Friday, May 27, 2016

Lots of valuable reading for sentencing fans at Prison Policy Initiative and The Crime Report

I am likely to be pretty busy working on a number of project this coming long weekend, and I am not sure if that will mean readers should be ready for lots or little holiday blogging.  Either way, I have noticed in recent weeks lots of great commentary for sentencing fans from two of my regular web-reads that would make for good weekend reading:

From the Prison Policy Initiative blog:

From the The Crime Report:

May 27, 2016 in Recommended reading | Permalink | Comments (0)

Monday, April 25, 2016

Deep thoughts about sentencing, sentencing rules, and sentencing rule-making

I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:

Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti

Abstract:  There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform.  These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.

This Article is the first to offer a framework to directly and effectively confront political disagreement.  It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement.  Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control.  This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.

Rules, Standards, Sentencing, and the Nature of Law by Russell Covey

AbstractSentencing law and practice in the United States can be characterized as an argument about rules and standards.  Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions.  As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.

Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself.  Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.

April 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1)

Sunday, April 17, 2016

"Montgomery's Messy Trifecta"

A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:

Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law.  First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments.  Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.

In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications.  Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.

April 17, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Saturday, April 09, 2016

In praise of "The Record" created by The Marshall Project

DownloadAnyone and everyone who reads this blog ought by now be regularly checking out all the criminal justice reporting and referencing now done by The Marshall Project. And, wonderfully, this terrific resource is now also committed to archiving criminal justice stories through what it is calling The Record.  Via the week-ending email I get from The Marshall Project, here is what this new feature is all about:

The Record is the online library TMP staff has curated over the past two years of some of the best criminal justice reporting on the internet.  Here is a 14,000-entry collection of reporting about topics, including “sentencing reform” and “death penalty”; events like the “Charleston Church shooting,” and people, including “Kalief Browder” and our namesake, “Thurgood Marshall.” Check it out and please send us your feedback....

There are many reasons why we did this; my favorite is that by making it easier for journalists, lawyers, academics, and others to find criminal justice stories we improve the chances that those engaged in the countless debates to come will be armed with more historical context and perspective, not to mention good, old-fashioned facts. That point was emphatically made on Thursday— the very day we launched, right on cue — by Bill Clinton, whose sharp retort to "Black Lives Matter" protesters begged for a look back at the conditions and consequences of the 1994 Crime Bill (a category included in The Record). The story of that law, like every other contentious criminal justice policy, is complicated, more complicated than either the protestors or the former president have made it out to be.  If the stories contained in The Record help illustrate the contours of those complications, the nuances that get lost in the heat of the moment, the background that helps explain why some themes suddenly rush to the foreground, our work will have succeeded.

April 9, 2016 in Recap posts, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, April 07, 2016

"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"

The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application.  This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.  In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.

The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves.  Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric.  Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.

Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment.  First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse.  Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved.  This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.

April 7, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (2)

Thursday, March 31, 2016

Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science

The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.

The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States."  Here is an excerpt from that introduction:

This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.”  She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks.  At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination.  The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years.  The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization.  While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.

March 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Saturday, March 05, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Sunday, January 17, 2016

Notable Yale Law Journal Forum essays respond to big report on solitary confinement

YLJ-social-01As reported in this prior post from this past fall, the Association of State Correctional Administrators with researchers at Yale Law School together produced an important report about solitary confinement titled Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison.  This report provided updated information, as of the fall of 2014, on the numbers and the conditions of prisoners in restrictive housing nationwide.

Now the folks at the Yale Law Journal have put together through its on-line Forum this impressive collection of essays that respond to Time-In-Cell.  Here are the contents with links via the essay titles:

January 17, 2016 in Prisons and prisoners, Recommended reading | Permalink | Comments (32)

Thursday, December 31, 2015

An effective review of the 2015 year that was in criminal justice

Download (7)As I reflect this day on the interesting and dynamic last twelve months in the field of criminal justice, I find myself wishing I could channel the brillance of Tom Lehrer to write an amusing and poignant song to tell the tale of the year that was.  (For fellow Tomfoolery fans, here are some links to always timely Lehrer classics like A Christmas Carol (just a few days late) and Fight Feircly Harvard (for football fans) and Whatever Became of Hubert (for political fans) and Who's Next (for those concerned about the Iran deal).)  

But because I lack the time and the talent of Lehrer, I am content to provide a review of the year that was via this effective Huffington Post piece authored by Lauren-Brooke Eisen of the Brennan Center for Justice.  The lengthy piece is headlined "Criminal Justice Reform in 2015: Year End Review," and below are some excerpts from its start, end and some in-between mentions of some sentencing matters (with links from the original):

Criminal justice reform continued to build momentum this year within the inner sanctum of the Beltway and across the nation in a handful of states. It emerged as a significant issue in the presidential campaign, and looks likely to stay front and center into 2016. Some of the year’s most significant steps forward (and back) are highlighted here....

April: A significant number of candidates running for President contributed essays to a book on criminal justice reform, entitled Solutions: American Leaders Speak Out on Criminal Justice.  New York Times White House correspondent Peter Baker wrote, “The last time a Clinton and a Bush ran for president, the country was awash in crime and the two parties were competing to show who could be tougher on murderers, rapists and drug dealers.  But more than two decades later, declared and presumed candidates for president are competing over how to reverse what they see as the policy excesses of the 1990s and the mass incarceration that has followed.”

With the streets still smoldering in Baltimore, Hillary Clinton gives a speech declaring, “It’s time to end the era of mass incarceration.” 

July: Former President Bill Clinton concedes that the 1994 Crime Bill, which imposed harsh sentences for many crimes and provided incentive funding to states to build more prison beds, “made the problem worse.”...

July: President Obama takes three high-profile actions in one week, demonstrating that he wants criminal justice reform to be one of his legacies.  On Monday, July 13, the president commutes the sentences of 46 non-violent drug offenders, the greatest number of commutations issued in a single day since Franklin Roosevelt.  The next day, President Obama gives a “passionate” address on criminal justice before the NAACP, flatly stating, “Mass incarceration makes our country worse off, and we need to do something about it.”  Then, on Thursday, July 16, President Obama becomes the first president to visit a federal prison when he tours a facility in Oklahoma.  After chatting with six non-violent drug offenders for about 45 minutes, President Obama remarks, “There but for the grace of God.”   And on the last day of the month, President Obama announces a pilot program allowing some prisoners to use Pell Grants for college courses, which Congress had banned in 1994....

November: President Obama uses his executive authority powerfully this year and signs an executive order to “ban the box,”  prohibiting federal agencies from asking potential employees about their criminal records on job applications. The federal government, President Obama says, “should not use criminal history to screen out applicants before we even look at their qualifications.”

December: President Obama commutes the sentences of 95 federal prisoners and pardons two. The number of commutations granted exceeds those of the last four presidents combined....

October:  In the most significant reform measure in recent history, the Senate Judiciary Committee votes 15-5 to send the bipartisan Sentencing Reform and Corrections Act to the floor. Although the measure does not eliminate mandatory minimum sentences entirely -- and in fact lengthens mandatory sentences for firearms and domestic violence offenses -- it reduces mandatory minimums for nonviolent drug crimes.  It also allows current inmates who qualify to cut their sentences by 25 percent, and sets limitations on juvenile solitary confinement.  The Act is now pending on the Senate floor and is expected to be taken up in 2016.

November: House Judiciary Committee unanimously approves the Sentencing Reform Act, the House version of the Senate sentencing reform bill. The bill is expected to be taken up by the full House in 2016....

May: Alabama Gov. Robert Bentley (R) signs criminal reform legislation which is projected to cut the state’s prison population by 4,200 over five years.  In reality, it’s not much of a trim -- the state’s prisons are already running at about 185 percent of capacity.  Penalties for some nonviolent property and drug crimes are reduced, and more nonviolent offenders are to be diverted from prison. The state is expected to save a total of $380 million.

Nebraska Gov. Pete Ricketts (R) signs criminal justice legislation, which is projected to cut the state’s prison population by 1,000 over five years. Despite having one of the lowest incarceration rates in the nation, Nebraska’s prisons were operating at 159 percent of capacity at the end of 2014, and are projected to hit 170 percent by 2020. The state is expected to save a total of $300 million in corrections costs....

December: The Maryland Justice Reinvestment Coordinating Council, a creation of the state legislature to examine how to reduce Maryland’s prison population, releases its final recommendations.  One of 25 proposals in the report is one that would create a major change in how drug offenders are sentenced, recommending sentencing guidelines that focus on treatment in lieu of incarceration for those charged with possession....

2015 proved an extraordinarily active year for criminal justice reform in both legislative changes and the public discourse.  2016 will certainly be a year to watch amid fear that some Presidential hopefuls will start to back away from their strong support of criminal justice reform.  Already, Presidential hopeful and Sen. Ted Cruz (R-TX) voted against significant criminal justice reform in the Senate Judiciary Committee, while this spring he supported efforts to reform the justice system.  Robert Kennedy once said, "Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice, he sends forth a tiny ripple of hope."  As we take stock of what was accomplished to improve the criminal justice system in 2015 and look ahead to 2016, a narrative of tiny ripples of hope emerges.  And with President Obama working to ensure justice reform is part of his legacy, criminal justice reform will likely remain front and center. 

December 31, 2015 in Recap posts, Recommended reading | Permalink | Comments (0)

Wednesday, December 23, 2015

"Reforming the Nation’s Criminal Justice System: The Impact of 2015 and Prospects for 2016"

The title of this post is the title of this notable report recently produced by the U.S. Justice Action Network. Here are excerpts on how it starts and ends:

Over the past year, criminal justice reform has been propelled to the forefront of national conversation, and on the minds of millions of Americans.  For years, advocates have worked tirelessly to chart a path forward to overhaul a justice system that has become bloated, unsustainable and inefficient.  But they knew that, to advance meaningful solutions to reduce the prison population and expand opportunities for formerly incarcerated people, that national momentum and widespread support would be needed to spur action.

Fortunately for advocates of criminal justice reform, 2015 proved to be the year that would ultimately place reform within the nation’s reach.  And because of the progress made this year, prospects for achievable, comprehensive reform in 2016 are appearing considerable....

The collective efforts witnessed throughout 2015, at the state and federal levels, certainly made it the most significant in the fight for reform.  For the first time, the nation at large took an active, invested role in the conversation — no longer was justice reform a topic relegated to policy conferences, legislative hearing rooms and opinion pages — it was a debate being waged in living rooms, at dinner tables, in schools and churches, and by people of every political stripe, in every age range, in every community across the country.  Below is a look ahead to some of next year’s key moments, issues and actions that could impact prospects for reform in 2016, and which will ultimately determine whether or not 2016 will be the year that reforms were achieved.

Narrowing window of opportunity means the first few months are key: With the 2016 election cycle kicking into high gear, it will be crucial for federal lawmakers and national advocates for reform to make progress on reforms as early as possible in the new year.  Momentum and support for reform has reached historically high levels, helping to create a political and legislative environment ripe for reform.

Law enforcement: Prominent law enforcement leaders are standing up and joining the push for action, and this widespread law enforcement advocacy effort will be crucial in the coming year to continue advancing criminal justice reforms that protect public safety and create better outcomes for all.

Congressional leadership: Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul Ryan (R-WI) have both signaled that reforming the justice system is an important priority.  In November, both McConnell and Ryan made optimistic statements signaling the bills could be included on a short list of priorities for congressional action, but stopped short of committing to floor time.

2016 election cycle: The 2016 presidential election cycle has for the first time made criminal justice reform a hot-button issue being discussed on the campaign trail by presidential candidates.  Candidates on both sides of the aisle have shared proposed policies to reform the system, and have shared differing perspectives on the state of justice reform.  As the campaigns continue marching forward, it is anticipated that criminal justice reform will continue making appearances in stump speeches, rallies, and interviews by those running for the White House.

45th anniversary of War on Drugs: The War on Drugs is sourced with both increasing attention on the scourge of drugs and substance abuse issues, but also amplifying the use of mandatory minimums and other one-size-fits-all criminal justice policies for lower-level drug issues.  In June, the U.S. will mark the 45th anniversary of the War on Drugs, and will surely see calls for federal lawmakers to continue to reconsider current U.S. drug policies and their impact on incarceration rates, and also more effective ways of addressing substance abuse issues that impact communities everywhere.

December 23, 2015 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Sunday, December 20, 2015

"'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution"

The title of this post is the headline of this intriguing paper I just came across on SSRN authored by Samuel Bray.  In addition to getting me thinking about the cool word hendiadys, this paper provides some interesting ideas for fans of Eighth Amendment.  Here is the abstract:

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.”  Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship.  That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning.  It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.”  When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual.  Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty.  If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action.  The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland.  The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

December 20, 2015 in Recommended reading, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, December 16, 2015

Two notable new papers looking at life sentences from two notable perspectives

Via SSRN, I have recently noticed two new papers providing different perspectives on life sentences. Here are titles, links and the abstracts for both interesting pieces:

"Irreducible Life Sentences: What Difference Have the European Convention on Human Rights and the UK Human Rights Act Made?" by Andrew Dyer

Abstract:  A comparison between United Kingdom (UK) and Australian law concerning irreducible life sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. In a series of challenges to draconian state laws that remove any possibility of parole from ten notorious murderers, the Australian courts steadfastly refused to intervene. Without clear authority to consider such legislation’s effect on human rights, the judges were careful to avoid creating any perception that they were undemocratically overriding Parliament’s will. But while the UK approach to irreducible life sentences is more desirable than that prevailing in Australia – especially concerning child offenders – Vinter v United Kingdom and succeeding events demonstrate that even courts that have explicitly been empowered to resolve human rights controversies possess far from a complete freedom, or ability, to effect change in this emotive area.

 

"Some Facts About Life: The Law, Theory, and Practice of Life Sentences" by Melissa Hamilton

Abstract: A diverse band of politicians, justice officials, and academic commentators are lending their voices to the hot topic of correcting the United States’ status as the world’s leader in mass incarceration. There is limited focus, though, upon the special role that life sentences play in explaining the explosion in prison populations and the dramatic rise in costs that result from providing for the increased needs of aging lifers. This Article highlights various ways in which life sentences occupy unique legal and political statuses. For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk. It also situates life sentences within an international moral imperative that reserves life penalties, if permitted at all, for the most heinous offenders and, in any event, demands period review of all long-term prison sentences.

This article provides a novel perspective, too, by presenting an empirical study in order to further investigate the law and practice of life sentences. Utilizing federal datasets, descriptive statistics and a multiple regression analysis offer important insights. The study makes an original contribution to the literature by exploring the salience of certain facts and circumstances (including demographic, offense-related, and case processing variables) in accounting for life sentence outcomes in the federal system. While some of the attributes of life sentenced defendants are consistent with current expectations, others might be surprising. For example, as expected, sentencing guideline recommendations, the presence of mandatory minimums, and greater criminal history predicted life sentences. Results also supported the existence of a trial penalty. On the other hand, lifers in the federal system were not representative of the most violent offenders or worst recidivists. Life sentences were issued across a variety of violent and nonviolent crimes, and in recent years a substantial percentage presented with minimal criminal histories. Regional disparities in the use of life sentences were also indicated. In concluding, this Article reviews potential remedies to the overreliance upon life penalties in the American justice system.

December 16, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, December 01, 2015

Lots of "New & Notable" for sentencing fans via The Crime Report

Regular readers have heard me praise and promote a lot of the work done over at The Crime Report, and this long list of stories flagged there as "New & Notable" highlights why TRC is a consistent must-read for all sentencing fans.

These pieces provide effective summaries and links to what are, as TRC suggests, new and notable research and reports on a variety of sentencing laws and practices.

December 1, 2015 in Recommended reading | Permalink | Comments (1)

Sunday, November 15, 2015

Lots of notable media reads on range of criminal justice topics

Another busy weekend for me has meant another weekend without sufficient time to blog about all the interesting criminal justice pieces I have seen in recent days in a variety of old and new media outlets.  So, to cover lots of ground, here is a round-up of piece that have caught my eye of late:

November 15, 2015 in Recommended reading | Permalink | Comments (1)

Saturday, November 07, 2015

"Incentives Structures and Criminal Justice"

The title of this post is the title of this interesting article authored by Aurelie Ouss now available via SSRN.  Here is the abstract:

The conventional assumption in economics of crime is that criminal justice system actors behave like social planners, choosing punishment levels to equate the marginal benefits and costs from society’s perspective.  This paper presents empirical evidence suggesting in practice, punishment is based on a much narrower objective function, leading to over-incarceration.  The costs and benefits of various punishment options are reflected at different government levels in the US.

The 1996 California Juvenile Justice Realignment can be used as a natural experiment: it shifted the costs of juvenile corrections from states to counties, keeping overall costs and responsibilities unchanged.  Moving the cost of incarceration from state to counties resulted in a discontinuous drop in the number of juveniles being sent to state facilities, but no change in juvenile arrests.  

This indicates that when costs and benefits of incarceration are not borne by the same agency, there is excess incarceration: not only is there more demand for prison than when costs are fully internalized; but there are no gains in terms of crime reduction from this extra incarceration.

November 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, November 05, 2015

Lots of interesting commentary on lots of interesting criminal justice topics

Every so often I have a day when, after spending just a little time surfing the web, I find a whole lot of materials that merit a read and attention.  Today is one of those days, and here is a round-up of pieces that perhaps all merit their own post:

November 5, 2015 in Recommended reading | Permalink | Comments (2)

Tuesday, November 03, 2015

"The Bumpiness of Criminal Law"

The title of this post is the title of this notable paper by Adam Kolber now available via SSRN. Here is the abstract:

Criminal law frequently requires all-or-nothing determinations.  A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.

Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs.  An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output.  By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects.  Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements.  While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.

November 3, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, October 25, 2015

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff

October 25, 2015 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0)

Wednesday, October 14, 2015

"The Retribution Heuristic"

The title of this post is the title of this intriguing new article available via SSRN authored by Stephen Koppel and Mark Fondacaro. Here is the abstract:

Cognitive heuristics are mental shortcuts that enable quick and efficient decision-making. Several converging lines of evidence suggest the existence of a retribution heuristic, which guides reactions to wrongdoing toward retributive punishment.  Although cognitive heuristics can generally be relied upon to produce sound decisions, they also are associated with cognitive biases and errors of judgment.  We show that the retribution heuristic produces systematic errors of judgment, and argue that the resulting “Fundamental Retribution Errors” serve to legitimize overly harsh, unjust, and ineffective criminal sanctions.

October 14, 2015 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Friday, October 09, 2015

Lots of interesting and notable pieces this week from The Marshall Project

Regular readers are likely tired of my regular recommendation of the work being done at The Marshall Project.  But this array of notable original pieces from just this past week reinforces why the site it is on my daily-must-read list:

October 9, 2015 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, October 08, 2015

"Mass Incarceration: An Annotated Bibliography"

The title of this post is the title of this notable new document prepared by Nicole Dyszlewski, Lucinda Harrison-Cox and Raquel Ortiz now available via SSRN. Here is the abstract:

This annotated bibliography is a scholarly supplement to the 2015 Roger Williams University School of Law Symposium "Sounding the Alarm on Mass Incarceration: Moving Beyond the Problem and Toward Solutions." It contains texts selected to facilitate further study by symposium attendees, researchers, lawyers, policy analysts, law librarians, public officials, law students, criminologists, casual readers, undergraduate professors and activists. The selected monographs have been briefly summarized and critiqued by the authors.

A quick scan of this scholarly supplement reveals it to be an extraordinary resource that I am likely to use on a regular basis.  I highly recommend this document (and I hope it will get updated and re-posted periodically).

October 8, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)