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:
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
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"
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.
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.
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:
- SCOTUS grants cert on Johnson application to career offender guidelines
- Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
- "What Lurks Below Beckles"
- Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
- Topical archive of many related posts: Vagueness in Johnson and thereafter
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.
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:
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.
Sunday, June 26, 2016
Mother Jones devotes issue to reporter's four months working as a private prison guard
Going 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....
Here are the chapter headings and links to this remarkable piece of reporting about private prisons: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.
CHAPTER 1: "Inmates Run This Bitch"
CHAPTER 2: Prison Experiments
CHAPTER 3: The CCA Way
CHAPTER 4: "You Got to Survive"
CHAPTER 5: Lockdown
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.
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:
From California Correctional Crisis, "Long Sentences for Juveniles: Does Parole Fix Everything?"
From Canna Law Blog, "The Marijuana Industry is not at War with the Poor"
From the Colllateral Consequences Resource Center, "“On Lawyering” on collateral consequences"
From Crime & Consequences, "A Requiem for Sentencing Reform"
- From Gamso -- For the Defense, "Loretta Lynch v. Connecticut"
- From Simple Justice, "Judge Block’s Curious Parsimony"
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:
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
Abstract: Sentencing 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.
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.
Saturday, April 09, 2016
In praise of "The Record" created by The Marshall Project
Anyone 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.
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.
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.
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
As 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:
Only Once I Thought About Suicide by Reginald Dwayne Betts
Worse than Death by Alex Kozinski
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails by Marie Gottschalk
Time-In-Cell: Isolation and Incarceration by Judith Resnik, Sarah Baumgartel & Johanna Kalb
Time-In-Cell: A Practitioner's Perspective by Ashbel T. ("A.T.") Wall
Thursday, December 31, 2015
An effective review of the 2015 year that was in criminal justice
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.
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.
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.
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:
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.
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.
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:
From The Atlantic here, "The Big Money Propping Up Harsh Sentences: Special-interest groups are funneling millions of dollars into state-court elections, taking a toll on justice and public confidence in judges."
From the AP here, "Ben Carson Wants Jail Time For Health Care Fraud -- Except For Friends"
From The Marshall Project here, "Need Cash to Hire a Lawyer? Try Crowdfunding When raising money the old-fashioned way just won’t do."
From Pacific Standard here, "Five Studies: Why Kids Who Kill Are Getting a Second Chance: Neuroscience helped debunk the superpredator myth — and sway the Supreme Court. Why the movement to overhaul juvenile sentencing is picking up steam."
From Politico here, "Why the GOP Candidates Are Hooked on Addiction Stories"
From Reuters here, "Death Penalties, Executions Slow As Capital Punishment Is Squeezed"
Also from Reuters here, "Tide turns against U.S. residency restrictions on sex offenders"
From the New York Times here, "A Criminal Record and a Fair Shot at a Job"
Also from the New York Times here, "Death Penalty Takes On New Dimension in 2016 Campaign"
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.
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:
From the Boston Globe (authored by former Judge Nancy Gertner), "Undoing the damage of mass incarceration"
From The Brennan Center for Justice, "The U.S. Prison Population Is Down (A Little)"
From the Crime Report, "Criminal Justice Reform Without Borders"
From The Huffington Post, "When GEDs Mean Failure for Prisoners"
From Mother Jones, "America’s Prison Population Is Falling, but Too Slowly to Undo Decades of Growth"
From USA Today, "More than a decade after release, they all come back"
From the Wall Street Journal, "Time to Kill the Federal Death Penalty"
From the Washington Post, "Ohio said no to legalizing marijuana. It might have nixed federal reforms, too."
Also from the Washington Post, "A bipartisan failure in talking about prisons and the ‘war on drugs’"
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.
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
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.
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:
What You Need to Know About the New Federal Prisoner Release: Five reasons it is (and is not) a big deal.
The Clintons Aren’t the Only Ones to Blame for the Crime Bill: Black leaders also embraced it.
Were These Transgender Prisoners Paroled — Or Just Kicked Out?: Three prisons were ordered to provide transgender health care. Three prisoners were suddenly set free.
How to Deal with Prison Brutality: It’s time to take these cases away from local prosecutors.
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).
Thursday, October 01, 2015
Lots and lots of good reads from The Atlantic, Reason, and Slate
Busy times on a number of fronts has prevented me from highlighting a number of recent articles from The Atlantic, Reason, and Slate on a range of topics that should be of interest to sentencing fans. In an effort to catch up, I will just here note headlines and provide links (and urge readers in the comments to idenitfy which pieces they think perhaps merit added attention).
Recently from The Atlantic:
Recently from Reason:
Recently from Slate:
Tuesday, September 01, 2015
Lots of notable new sentencing-related content at Crime & Consequences
I make Crime and Consequences a daily read for lots of reasons, and here is just a sample of some new content in a number of recent posts that sentencing fans should be sure to check out:
Wednesday, June 24, 2015
"Punishment in Popular Culture"
The title of this post is the title of this intriguing new book of essays edited by Charles Ogletree and Austin Sarat. The book's table of contents reveals that the essays are authored by an array of interesting and distinct scholars who focus on an array of interesting and distinct topics ranging from early prison films to Abu Ghraib to "White Masculinity and Harsh Punishment in 1990s Popular Culture." The book's introduction authored by the editors provides a great preview of the book's themes and coverage, and here is an excerpt:
From the Gospel of Matthew to George Bernard Shaw and former Supreme Court Justice William Brennan, many have remarked that how a society punishes reveals its true character. Punishment tells us who we are. The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness, and its particular ways of responding to evil....
Punishment in Popular Culture examines the cultural images that undergird and critique America’s distinctive approach to punishment. It analyzes punishment as a set of images, as a marvelous spectacle of condemnation. It recognizes that the semiotics of punishment is all around us, not just in the architecture of the prison or the speech made by a judge as she sends someone to a penal colony, but in both “high” and “popular” culture iconography — in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word “our” is inaccurate here. Émile Durkheim and George Herbert Mead, among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through dis-identification as much as imagined connection....
America, as is widely known, has been on a several decades’ old incarceration boom. As noted above, we continue to lock up more people for longer periods of time than most other nations, as well as to use the death penalty and to racialize punishment in ways that are quite remarkable. How are these facts of American penal life reflected in, encouraged through, or critiqued by the portraits of punishment that Americans regularly encounter on television and in film? What are the conventions of genre that help to familiarize those portraits and connect them to broader political and cultural themes? In its cultural lives, can punishment claim a secure basis in morality? Or do television and film help to undermine its moral claims? How are developments in the broader political economy reflected in the ways punishment appears in mass culture? And finally, how are images of punishment received by their audiences?
While the work collected in our book does not purport to provide a comprehensive overview, these are the questions that Punishment in Popular Culture addresses. Our book thematizes issues of genre, morality, political economy, and reception in its analyses and brings together distinguished scholars of punishment and experts in media studies in an unusual juxtaposition of disciplines and perspectives.
Sunday, June 21, 2015
"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"
The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:
There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.
By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.
Sunday, June 14, 2015
Fascinating account of how "how neoliberalism lies at the root of the carceral state"
The always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform." The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:
Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings. So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations. Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”
This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate. But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.
For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can. Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....
[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities. The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.
That discretion could be turned toward lenience. President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency. Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007). The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association. For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.
Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions. Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....
Alleviating the root causes of poverty and inequality will take a long time. In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.
I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.
June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)
Wednesday, June 10, 2015
"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"
The title of this post is the title of this intriguing new paper authored by Mark Fondacaro and Megan O'Toole now available via SSRN. Here is the abstract:
A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates. Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform. Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime. Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts.
However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally. This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.
Thursday, June 04, 2015
"Shining a Light on Overcriminalization"
The title of this post is the title of this notable new "Backgrounder" from The Heritage Foundation authored by Jordan Richardson. Here is the abstrat:
Overcriminalization — the overuse or misuse of the criminal law to address societal problems — manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability. However, overcriminalization has a more tangible aspect beyond legislation and legal theory: American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.
Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law. Only by identifying the problem and highlighting why it matters will any meaningful change take place.
Wednesday, June 03, 2015
"Bifurcation Nation: Strategy in Contemporary American Punishment"
The title of this post is the title of this notable new paper by Christopher Seeds now available via SSRN. Here is the abstract:
Important recent work by penal scholars recognizes the need to study the interplay between federal and state initiatives and between state and local structures. But the sociology of punishment has been less cognizant of late of the importance of studying the relation between the divergent treatment of high-level and low-level offenses and offenders as a means of understanding those federal, state or local approaches to penality. By one conventional view, the divergent policy trends for violent and nonviolent offenders are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, the increasing decarceration of low-level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders and offenses.
This paper suggests that, rather than a unidirectional force or mere ambivalent mix of old and new, contemporary sentencing policy is better understood as a bifurcation strategy — one that responds uniquely to the new dilemmas and new constraints presented by a moment we might call, with cautious optimism, late mass incarceration.
Tuesday, May 26, 2015
"Implementing Just Mercy"
The title of this post is thew title of this notable new piece authored by William Berry III now available via SSRN. Here is the abstract:
This book review essay explores the connection between Bryan Stevenson's recent book, "Just Mercy: A Story of Justice and Redemption", and the development of concepts of individualized sentencing under the Sixth and Eighth amendments by the Supreme Court.
In light of these steps toward individualizing sentencing, this book review essay imagines a serious application of the principles of just mercy that Stevenson has championed in his legal career to the criminal justice system. Specifically, this essay argues that individualized consideration of criminal offenders throughout the criminal justice process — from policing to sentencing — is necessary to achieve the compatible (not competing) goals of justice and mercy.
The essay proceeds in three parts. Part One describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders. In Part Two, the essay shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity. Finally, in Part Three, the essay outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.
Saturday, May 16, 2015
"Towards a Theory of Mitigation"
The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:
Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime. The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment. The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.
This Article seeks to restore mitigation to a prominent role in modern sentencing. First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence. Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.
Friday, March 27, 2015
NY Times Magazine covers modern prisons at home and abroad
I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:
The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.
Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.
Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.
Sunday, February 08, 2015
The title of this post is the headline of this intriguing new paper by Alice Ristroph now available via SSRN. Here is the abstract:
Ethical reflections on war — and the positive laws these reflections have inspired — have framed their undertaking as the effort to limit and regulate state violence. Ethical reflections on punishment have not been framed in the same way, but they should be.
Three characteristics of the philosophy (and laws) of war prove especially instructive for the philosophy (and laws) of punishment. First, the ethics of war is an ethics of violence: it acknowledges and addresses the gritty and often brutal realities of actual armed conflict. Punishment theory too often denies the violence of punishment or otherwise neglects the realities of penal practices. Second, philosophers of war tend to keep the usual agent of war’s violence — the state — squarely in view, whereas punishment theory tends to focus on the target of punishment rather than its agent. Third, and most importantly, commentators on the ethics of war have come to realize that the humanitarian project of limiting violence is a different and more difficult task than the project of justifying violence. This insight has produced the jus in bello: a set of principles aimed at limiting the violence of war without adopting a view of the war’s justification.
Punishment theory has long been focused on the project of justifying punishment, but this Article sketches the contours of a jus in poena: philosophical and legal principles designed to regulate the conduct of punishment without adopting any particular theoretical justification for punishment.
Wednesday, January 07, 2015
Criminology & Public Policy special issue on sentencing reform and mass incarceration
A helpful reader alerted me to this special November 2014 issue of the journal Criminology & Public Policy with an array of top criminologists and legal scholars talking about modern sentencing reform and mass incarceration in the united States. The entire issue looks like a must-read, and here is a list of the contents:
Reinventing Sentencing in the United States by Daniel S. Nagin
Remodeling American Sentencing: A Ten-Step Blueprint for Moving Past Mass Incarceration by Michael Tonry
Twentieth-Century Sentencing Reform Movement: Looking Backward, Moving Forward by Cassia Spohn
Creating the Will to Change: The Challenges of Decarceration in the United States by Anthony N. Doob & Cheryl Marie Webster
Ending Mass Incarceration: Some Observations and Responses to Professor Tonry by Gerard E. Lynch
Assessing the State of Mass Incarceration: Tipping Point or the New Normal? by Jeremy Travis
How Do We Reduce Incarceration Rates While Maintaining Public Safety? by Steven Raphael
Thursday, December 18, 2014
Call for Papers for 2015 Innocence Network Conference
I am happy to convey upon a kind request this Call for Papers that might be of interest to readers of this blog:
The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2015 Innocence Network Conference in Orlando, Florida on May 1-2, 2015.
Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this G-Mail account: email@example.com by February 13, 2015. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by April 17, 2015.
The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.
The Innocence Scholarship Committee is comprised of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark School of Law, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia School of Law; and Dr. Robert Schehr, Arizona Innocence Project, Northern Arizona University.
Saturday, November 15, 2014
Examining Crawford after a decade
First Impressions, the online companion to the Michigan Law Review, has this new on-line symposium titled "Crawford v. Washington: A Ten Year Retrospective." Here is how the editors introduce the pieces and links thereto:
No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.
The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.
We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.
Come Back to the Boat, Justice Breyer! by Richard D. Friedman
- Crawford v. Washington: The Next Ten Years by Jeffrey L. Fisher
The Crawford Debacle by George Fisher
Confrontation and the Re-Privatization of Domestic Violence by Deborah Tuerkheimer
The Frame of Reference and Other Problems by Richard D. Friedman & Jeffrey L. Fisher
Thursday, October 09, 2014
"Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes"
The title of this post is the title of this lovely essay by Daniel Richman now available via SSRN. Here is the abstract:
This essay — written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” — is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities.
Readers undoubtedly can come up with more than three styles. But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”
Wednesday, September 17, 2014
"Sentencing and Interbranch Dialogue"
The title of this post is the title of this intriguing new paper by Eric Fish now available on SSRN. Here is the abstract:
American legislatures generally delegate primary control over sentencing policy to one of two actors — trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values, individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity. In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines. They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.
Such dialogue has different institutional forms in different guidelines regimes. In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves. In an advisory guidelines regime (where the guidelines are non-binding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.
The benefits of a dialogic sentencing system are twofold. First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates. Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions. Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.
Monday, August 25, 2014
"Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America"
Thanks to this new posting at The Crime Report, I see the exciting news that Jonathan Simon's new book about mass incarceration and California's dysfunctional role therein has been released by The New Press. The book's title makes up the title of this post, and here is how the publisher describes the book on its website:
For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading — relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order. In short, mass incarceration has proven to be a fiscal and penological disaster.
A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.” Berkeley law professor Jonathan Simon — an internationally renowned critic of mass incarceration and the war on crime — argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence. Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.
Exposing the priority of politics over rational penal policy — and debunking the premise that these policies are necessary for public safety — this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.