Wednesday, October 17, 2018
Lots of interesting recent reform commentary on lots of different topics
I am in the midst of one of those weeks in which I have too little time to follow the criminal justice news, let alone effectively blog about highlights. Consequently, I am going to start "hump day" today with a (too) quick round up of some interesting commentary I have seen from interesting folks on interesting topics. In alphabetical order by author:
By Erwin Chemerinsky, "The death penalty is now unconstitutional in Washington state. California should be next"
By Seth Ferranti "How Men in Prison Reacted to Brett Kavanaugh's Confirmation"
By Newt Gingrich and Van Jones, "[Ohio] Issue 1 tackles opioid epidemic, puts politics aside"
By Steve Zeidman, "Let more juvie felons out: Raise the Age is only a first step"
Wednesday, October 03, 2018
A publisher's request for submissions from formerly and currently incarcerated individuals
This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:
The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations. They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.
Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry. Essays should contain elements of the author’s personal story in service of illuminating the suggested reform. Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.
The top 12-20 essays will be published in the finished book, and the authors will receive $500 each. Authors of the top 50 essays that were not selected for publication will also receive $50 each. Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP. The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.
The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law. However, essays will be selected based on the following:
I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.
II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.
III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.
IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.
Friday, September 21, 2018
So much great content and commentary at "The Appeal"
I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level." The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:
"The Incalculable Costs Of Mass Incarceration" by John Pfaff
Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith
"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing
Tuesday, August 28, 2018
"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"
The title of this post is the title of this notable new paper authored by Trevor George Gardner now available via SSRN. Here is its abstract:
Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.
The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction. In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.
Monday, August 27, 2018
Lots of notable pieces in August 2018 issue of Criminology & Public Policy
I just saw the contents of the August 2018 issue of the journal Criminology & Public Policy, and now I have at least half-dozen new pieces to add to my reading list. The issue has collections of pieces on timely topics such as "Risk Assessment And Juvenile Justice" and "Victim Compensation And White -Collar Crime" and "Downsizing Our Prisons And Jails" and "Prison Length Of Stay And Recidivism." Here are just a few of the article on these topics that seem worth checking out:
"Can We Downsize Our Prisons and Jails Without Compromising Public Safety?: Findings from California’s Prop 47" by Bradley Bartos and Charis Kubrin
"Relationship Between Prison Length of Stay and Recidivism: A Study Using Regression Discontinuity and Instrumental Variables With Multiple Break Points" by William Rhodes, Gerald Gaes, Ryan Kling, and Christopher Cutler
Thursday, August 09, 2018
The Modern Eighth Amendment
The title of this post was the name for one of yesterday's panels at the Southeastern Association of Law Schools ("SEALS") Conference. Organized by Will Berry (Ole Miss) and Meghan Ryan (SMU), the panel addressed the history of the Eighth Amendment, Eighth Amendment doctrine and its future. Panelists (myself included) covered everything from the original meaning of "cruel and unusual" to the Court's problematic use of the "evolving standards of decency" doctrine and the future of the death penalty and JLWOP.
There really was something for everyone (well, everyone interested in Eighth Amendment issues)!
Corinna Lain (Richmond) provides a full summary here.
Monday, July 02, 2018
Rich new issues of Federal Sentencing Reporter covers "Managing Collateral Consequences in the Information Age"
The fine folks over at the Collateral Consequences Resource Center reminded me through this new post that the big new double issue of the Federal Sentencing Reporter is right now fully available on-line here thanks to the fine folks at the University of California Press. Here is how the CCRC folks summarize the issue's coverage:
“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter. It is composed of papers prepared for a conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials. The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in records management in state legislatures in recent years. She also describes each of the papers.
This special double issue of FSR contains so much interesting an diverse material, I recommend readers check out the TOC and Introductory essay to decide which articles they want to read first.
This issue includes the final version of of my recent paper titled "Leveraging Marijuana Reform to Enhance Expungement Practices." Another piece focused on particular types of offenders is authored by Nora Demleitner under the title "Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing." But the bulk of the of the materials in the issue covers individual state reforms in states that are not often at noticed to be at the forefront of criminal justice reforms efforts. Specifically, a set of pieces look at Indiana's new expungement laws, and other piece look closely at other states including Nevada, North Carolina and Tennessee.
"The Institutional Design of Punishment"
The title of this post is the title of this notable new paper authored by Aaron Rappaport now available via SSRN. Here is its abstract:
For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment. Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions? These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?
Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates. This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field. In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.
Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands. Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.
Tuesday, June 26, 2018
Terrific new Boston University Law Review symposium on "Misdemeanor Machinery"
I recently received in this mail a hard-copy version of the May 2018 issue of the Boston University Law Review devoted entirely to examining misdemeanors in the US criminal justice system. The full title of the symposium, which had a live component late last year, was "Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System," and the article all looks terrific. This Editors' Foreword sets the tone:
Misdemeanor courts across the nation churn through millions of cases each year. Misdemeanors are understudied by scholars and underreported by the media. While these cases may be less significant than felonies in the eyes of the public, they have far-reaching consequences in the lives of individual defendants. Collateral consequences often far outstrip criminal sanctions and affect defendants’ housing, employment, education, and status in the United States. As Professor Malcolm M. Feeley aptly put it, “the process is the punishment.”
Periodically, attention is drawn to the misdemeanor courts. This tends to occur in times of discontent and unrest. Historically, reform efforts have largely been short-lived or entirely unsuccessful. But in the wake of public attention to misdemeanor practices in Ferguson, Missouri, the time is ripe for reform.
A dedicated group of scholars met at Boston University School of Law to explore the misdemeanor machinery on November 3-4, 2017. The conference featured both scholars and practitioners seeking to define “misdemeanor,” empirically analyze the misdemeanor system in the United States, explore the ramifications of misdemeanor charges, identify ethical concerns, and propose meaningful reform. The pieces in this Symposium Issue represent each of these perspectives and offer thoughtful next steps for research and reform.
And here are links to all the pieces:
How To Think About Criminal Court Reform by Malcom Feeley
The Scale of Misdemeanor Justice by Megan Stevenson and Sandra Mayson
The Innocence Movement and Misdemeanors by Jenny Roberts
The History of Misdemeanor Bail by Shima Baughman
The Prosecutor’s Client Problem by Irene Joe
Proportionality and Other Misdemeanor Myths by Eisha Jain
Toward Misdemeanor Justice: Lessons from New York City by Greg Berman and Julian Adler
Errors in Misdemeanor Adjudication by Samuel Gross
Thursday, June 14, 2018
"The New Dynamics of Mass Incarceration"
The title of this post is the title of this notable new publication from The Vera Institute of Justice. Here is much of its introduction:
After decades of continuous growth, the United States’ prison population began to plateau in the new millennium as the nation entered an era of criminal justice reform aimed at lowering the footprint of incarceration. This seemed to herald the beginning of the end for mass incarceration. Since 2007, when the country hit a peak of nearly 800 people in prison per 100,000 working age adults — over 1.6 million people total — overall prison incarceration has declined by about 1 percent on average each year. The new downward trajectory of incarceration in the United States has paralleled a reckoning with the mounting costs of confinement and a growing awareness that incarceration in America was — in the words of a 2014 National Research Council report — “historically unprecedented and internationally unique,” and did not have the promised impact on public safety. (See “A brief history of mass incarceration: From unified growth to an era of reform” at page 8.)
Legislative and policy reforms have not brought a swift reversal of mass incarceration, however. Even prison population trends — long used as convenient barometer of criminal justice reform’s progress — show that unwinding the nation’s overreliance on incarceration will be a longterm endeavor. At the current pace, it will be 149 years until U.S. prison incarceration rates are as low as they were in 1970. (See Figure 1 at page 6.)
At the same time, while aggregated national prison population data indicates slow decline, it cannot be the sole indicator used to measure the progress made in the nation’s recent efforts to reduce incarceration. Prison populations are slow to change after the implementation of most policy or practice changes, and thus provide an inadequate metric by which to measure and adjust the immediate impact of reforms — or regressive legislation. Furthermore, a reliance on aggregate prison data fails to acknowledge or measure the tremendous variation in incarceration trends from state to state and within states, and ignores a significant locus of incarceration: local jails — county- or municipally-run facilities that primarily hold people arrested but not yet convicted of a crime. For example, while much of the country is locking fewer people in jails and prisons, Kentucky is doing the opposite. If jails and prisons continue to grow in Kentucky as they have since 2000, everyone in the state will be incarcerated in 113 years. A comprehensive look at disparately reported metrics for the nation’s 50 state prison systems and 2,872 local jail jurisdictions is necessary to more accurately account for the headway made thus far in reversing mass incarceration.
To accomplish this goal, this report proposes a wider set of metrics by which to analyze incarceration trends to supplement the old standard of state prison population: 1) prison admissions; 2) jail admissions, 3) pretrial jail populations and 4) sentenced jail populations. When considered together, this combination of metrics better captures the complexity of contemporary incarceration trends at the state and local level, makes the patterns that underlie national statistics discernable, and provides a starting point for deeper investigation into the particular context of individual counties’ justice systems....
As this report will discuss, studying all the moving parts of the incarceration system reveals a more messy truth: that there is no single way to characterize the current state of mass incarceration. A single trend of unified growth across states and counties, and in both prison and jail incarceration, characterized mass incarceration’s rise. But that has fragmented into four distinct incarceration trends, depending on how and where incarceration is measured:
Ultimately, unwinding mass incarceration will require the particular alchemy of data-driven policy and political will, sustained by pressure from grassroots advocates and litigation. But only by acknowledging the realities in thousands of jurisdictions across the country can researchers, policymakers, and the public identify where reform is still only a promise and target attention and resources to drive change. Without understanding how local jail populations and county-level prison admissions have evolved over time, it will be difficult to have a real sense of how state and local systems are interacting, which problems to solve, or if progress is being made at all.
- some jurisdictions have seen meaningful overall declines in both prison and jail incarceration;
- others have seen stagnation at high incarceration rates;
- still others have seen shifts between prisons and jails in place of real reductions to the footprint of incarceration; and
- some have seen unchecked growth.
This new Mother Jones article about this new Vera report sums up its takeway via its extended headline: "The Era of Mass Incarceration Isn’t Over. This New Report Shows Why. 'Mass incarceration has a different face.'"
Wednesday, May 30, 2018
Two great new judicious commentaries on the federal sentencing guidelines
A helpful reader made sure I did not miss this latest issue of the Hofstra Law Review, which starts with a Colloquim on the topic "Thirty Years Later: A Look Back at the Original U.S. Sentencing Guidelines." The issue contains two notable articles authored by two notable jurists. Here are links to the pieces and their opening paragraphs:
"The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future" by Stephen G. Breyer
Thank you very much. It is terribly nice for me to be here at Hofstra. Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them. Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission. While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.
"The Federal Sentencing Guidelines: A Good Idea Badly Implemented" by Jon O. Newman
The best way to mark the thirtieth anniversary of the Federal Sentencing Guidelines is to candidly admit that they are a classic example of a good idea badly implemented. I propose to consider how the good idea originated, how the first Federal Sentencing Commission implemented it, how the Supreme Court has dealt with the Sentencing Guidelines, what is good about the Guidelines, what are the principal defects of the Guidelines, and the most important step that can now be taken to improve the Guidelines and realize the expectations of those of us who favored sentencing guidelines.
Tuesday, May 29, 2018
"In Justice Today" has now become "The Appeal"
In this post about one year ago I noted the creation of "In Justice Today" a new publication of the Fair Punishment Project at Harvard Law School. The publication had an introductory post that suggested that "the local elected prosecutor" was to be a particular focal point of the new publication's reporting. Now, via email, I have been told of this (small?) transition:
I am thrilled to be unveiling the Justice Collaborative’s newly renamed, revamped, and relaunched criminal justice publication: The Appeal. The Appeal, which steps in where In Justice Today leaves off, is a daily news source of original reporting focusing on local criminal justice systems — the most significant drivers of mass incarceration.
In creating The Appeal, we wanted something that was rigorous and hard-hitting, and engaging to the average reader. We are putting a human face on the practices of local criminal justice systems. Today, Professor Angela J. Davis outlines the importance of prosecutors, and Raven Rakia and Ashoka Jegroo explore the history of the push to close Rikers Island. Please check them out and let us know what you think!
It’s my sincerest hope that you enjoy our brand new publication and find it useful in your own work. We will continue digging deep in counties across the U.S. to shed light on the most undercovered parts of the system.
Too much criminal justice reporting relies on politicians, prosecutors, and law enforcement officials as the arbiters of the truth. We aim to be the journalistic watchdog that changes that.
If you have any feedback on our new look—or just want to draw our attention to something you’d like to see in The Appeal — please drop us a line!
Sarah Leonard, Executive Editor The Appeal
I sense that local criminal justice systems rather than just local elected prosecutors are now more clearly the focal point of this re-branded effort. But it seems also that the Fair Punishment Project at Harvard Law School is no longer the main sponsor of this publication, though its new ABOUT page is somewhat opaque.
Whatever the backstory particulars, I always found a lot of interest and value at "In Justice Today" and I presume I will likewise find much of interest and value at "The Appeal."
Saturday, May 19, 2018
"Federalism and Constitutional Criminal Law"
The title of this post is the title of this new paper authored by Brenner Fissell now available via SSRN. As the title itself suggests, Eighth Amendment jurisprudence is among the area of Supreme Court decision-making discussed in this paper. Here is the abstract:
A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial. The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?”
This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its restraint, this Article argues that federalism is not a universally effective argument against the imposition of these types of constitutional limits. Instead, different variants of “federalism” vary in their strength when used to resist different types of constitutional rules, and often the federalism-based argument is unjustified.
Saturday, April 28, 2018
"Punishment and Human Dignity: Sentencing Principles for Twenty-First Century America"
The title of this post is the title of this paper by Michael Tonry recently posted to SSRN. Here is its abstract:
A new conception of justice in punishment is needed that is premised on respect for offenders’ human dignity. It needs to acknowledge retributive and utilitarian values and incorporate independently important values of fairness and equal treatment. Punishment principles, policies, and practices lined up nicely in mid-twentieth century America. Utilitarian principles implied a primary goal of crime prevention through rehabilitation and avoidance of unnecessary suffering by offenders. Judges and parole boards were empowered to tailor decisions to fit offenders’ circumstances and interests. Corrections officials sought to address rehabilitative needs and facilitate achievement of successful, law-abiding lives. The system often did not work as it should, but its ideals, aspirations, and aims were clear. In our time, there are no commonly shared principles, sentencing laws and practices are unprecedentedly rigid and severe, judges and parole boards often lack authority to make sensible or just decisions, corrections officials are expected simultaneously to act as police officers, actuaries, and social workers, and injustice is ubiquitous.
Friday, March 23, 2018
Brennen Center releases new report: "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators"
This report sets forth an affirmative agenda to end mass incarceration in America. The task requires efforts from both federal and state lawmakers.
Today, criminal justice reform stands on a knife’s edge. After decades of rising incarceration and ever more obvious consequences, a powerful bipartisan movement has emerged. It recognizes that harsh prison policies are not needed to keep our country safe.
Now that extraordinary bipartisan consensus is challenged by the Trump administration, through inflammatory rhetoric and unwise action. Only an affirmative move to continue reform can keep the progress going.
The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. About 2.1 million people are incarcerated in this country, the vast majority in state and local facilities. Mass incarceration contributes significantly to the poverty rate. It is inequitable, placing a disproportionate burden on communities of color. It is wildly expensive, in some cases costing more to keep an 18-year-old in prison than it would to send him to Harvard. Our criminal justice system costs $270 billion annually, yet does not produce commensurate public safety benefits.
Research conclusively shows that high levels of imprisonment are simply not necessary to protect communities. About four out of every ten prisoners are incarcerated with little public safety justification. In fact, 27 states have reduced both imprisonment and crime in the last decade. A group of over 200 police chiefs, prosecutors, and sheriffs has formed, whose founding principles state: “We do not believe that public safety is served by a return to tactics that are overly punitive without strong purpose . . . we cannot incarcerate our way to safety.”
In cities, states, and at the federal level, Republicans and Democrats have joined this effort. They recognize that today’s public safety challenges demand new and innovative politics rooted in science and based on what works. The opioid epidemic, mass shootings, and cyber-crime all require modern responses that do not repeat mistakes of the past.
Crime is no longer a wedge issue, and voters desire reform. A 2017 poll from the Charles Koch Institute reveals that 81 percent of Trump voters consider criminal justice reform important. Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration. And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters.
But the politician with the loudest megaphone has chosen a different, destructive approach. Donald Trump, and his Attorney General Jeff Sessions, falsely insist there is a national crime wave, portraying a country besieged by crime, drugs, and terrorism — “American carnage,” as he called it in his inaugural address.
But, crime in the United States remains at historic lows. While violent crime and murder did increase in 2015 and 2016, new data show crime and violence declining again in 2017. The national murder rate is approximately half of what it was at its 1991 peak. Those who seek to use fear of crime for electoral gain are not just wrong on the statistics; they are also wrong on the politics.
Now, to continue the progress that has been made, it is up to candidates running for office to boldly advance policy solutions backed by facts, not fear. This report offers reforms that would keep crime low, while significantly reducing incarceration. Most solutions can be enacted through federal or state legislation. While most of the prison population is under control of state officials, federal policy matters too. The federal government’s prison population is larger than that of any state. Further, Washington defines the national political conversation on criminal justice reform. And although states vary somewhat in their approach to criminal justice, they struggle with similar challenges. The state solutions in this report are broadly written as “models” that can be adapted.
Steps to take include:
• Eliminating Financial Incentives for Incarceration
• Enacting Sentencing Reform
• Passing Sensible Marijuana Reform
• Improving Law Enforcement
• Responding to the Opioid Crisis
• Reducing Female Incarceration
March 23, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)
Friday, March 02, 2018
"The State of Justice Reform 2017"
The title of this post is the name of this terrific new resource created by the Vera Institute of Justice. The resource is packed with lots and lots of notable content and links, and here is how it is explained on its "About" page:
Like many justice reform organizations, Vera is often asked, “What are the latest and most interesting developments in the field?” This question has grown more common as more and more people confront the need to improve the nation’s broken justice system and want to help.
We endeavor in this report to provide the beginning of an answer, limiting our scope (mostly) to 2017, the first year of a new administration — one pushing a “law and order” platform — and covering most, but not all, areas of justice reform.
Vera’s task was to determine which of the thousands of changes to policy, practice, and legislation should be covered in this annual recap. To discern what should be included, we first asked Vera’s own internal experts to weigh in and identify what they felt was most important to cover in their subject areas. “Importance” was defined by the following criteria:
- the potential impact of a reform;
- the degree of change from past practice or norms; and/or
- the degree to which the field or the media is looking to a reform as a promising or leading practice to improve systems.
Using this definition, “importance” can be positive or negative, supportive or hostile to reform. The report thus focuses on both the best and the worst of 2017.
After hearing from Vera’s own experts, we reached outward, crowdsourcing suggestions from Vera’s Facebook and Twitter followings. Vera also invited 30 external experts to review drafts of specific sections, who are gratefully acknowledged under “Contributors.” Finally, Vera is issuing this as a digital report to allow for ongoing feedback and contributions, with the hope that this dialogue will add even more to the collective knowledge base about the year that was.
All parts of this terrific resource are worth checking out, and these parts should be of particular interest to sentencing fans:
Thursday, February 08, 2018
"Mass Incarceration and Its Discontents"
The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology. Here is how the essay gets started:
The contours of mass incarceration are, by now, broadly familiar. The U.S. incarceration rate began an unprecedented ascent in the 1970s. This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016). The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015). By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).
The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research. A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion. Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color. Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction. And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.
Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform. Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted. The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts. In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact. In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.
Thursday, February 01, 2018
Lots of interesting news, notes and commentary as the calendar turns
This time of year always seems busy and dynamic on various fronts, and one manifestation of this reality is my in-box getting way too full of way too many interesting sentencing-related items to blog about at length. So, to cover lots of ground too quickly, here is a list of links (in no particular order) to pieces that have caught my eye this week:
From Newt Gingrich and Pat Nolan at Fox News here, "Opioid deaths are a health crisis -- Treatment, not jail, is the cure"
From the Collateral Consequences Resource Center here, "Michigan sex offender registration law held unconstitutional"
From Emily Nagisa Keehn and J. Wesley Boyd at The Conversation here, "How mass incarceration harms U.S. health, in 5 charts"
From John Gramlich at Pew Research Center here, "5 facts about crime in the U.S."
From Laura Bogart at The Week here, "Why our true crime obsession is bad for society"
From the Oregon Council on Civil Rights here, "Youth and Measure 11 in Oregon: Impacts of Mandatory Minimums"
From Michelle Phelps at The Crime Report here, "The Lesson of Meek Mill: A Probation System ‘Set Up to Fail’"
From Colin Miller at Evidence Prof Blog here, "Cyntoia Brown & the "51-To-Life" Project: Final Report"
Sunday, January 28, 2018
Lots of interesting pieces in inaugural volume of Annual Review of Criminology
I just saw the first issue of the Annual Review of Criminology here, and so many of the impressive articles are now at the top of my ever-growing "to read" list. These pieces (among many in the big issue) are likely to be of particular interest to sentencing fans:
Varieties of Mass Incarceration: What We Learn From State Histories by Michael Campbell
Collateral Consequences of Punishment: A Critical Review and Path Forward by David Kirk and Sara Wakefield
Monetary Sanctions: Legal Financial Obligations in US Systems of Justice by Karin Martin, Bryan Sykes, Sarah Shannon, Frank Edwards, and Alexes Harris
Inmate Society in the Era of Mass Incarceration by Derek Kreager and Candace Kruttschnitt
Restricting the Use of Solitary Confinement by Craig Haney
Tuesday, January 23, 2018
"The 'New' District Court Activism in Criminal Justice Reform"
The title of this post is the title of this interesting new paper authored by Jessica Roth now available via SSRN. Here is the paper's abstract:
Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other.
To that end, the Article focuses on a cohort of deeply respected federal district judges — many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York — who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch. This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.
Sunday, January 21, 2018
"Sentencing in Time"
The title of this post is the title of this recent publication authored by Linda Ross Meyer via the Amherst College Press. Here is how the work is described:
Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison? How do we relate a quantitative measure of time — months and years — to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act? Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time — chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time).
In Sentencing in Time, Meyer asks whether — in overlooking the irreconcilability of these two modes of thinking about time — we are failing to accomplish the ends we believe the criminal justice system is designed to serve. Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful — and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.
Wednesday, January 10, 2018
A not-quite random collection of notable recent sentencing pieces
This week, though only half done, has been full of links to reports or commentaries or other items that seemed blogworthy but that I have not yet found time to blog about. Particularly because I likely will be off-line much of the rest of this week, I figured I could make up for lost time with a big round-up. So here goes, in no particular order:
Friday, January 05, 2018
"Prosecutors and Democracy: A Cross-National Study"
The title of this post is the title of this recently published book by Máximo Langer and David Sklansky. Here is how the publisher describes the book's contents:
Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government. Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics. The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe. Contrasting those strategies allows an assessment of their relative strengths -- and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.
Friday, December 15, 2017
Call for Papers associated with the Innocence Network Conference
I am always happy to use this forum to relay calls for papers and/or conferences announcements, and here is a two-fer that I received this afternoon:
The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2018 Innocence Network Conference in Memphis, Tennessee on March 23-24.
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 Gmail account: innocencescholarship @ gmail.com by January 16, 2018. Paper proposals must be no more than 600 words. Completed drafts must be submitted to the Committee by March 17, 2018.
The Innocence Scholarship Committee is arranging for publication for those papers accepted for Conference presentations in a symposium edition of the Northeastern Law Review.
The Innocence Scholarship Committee is composed of the following Members: Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law; Dr. Glinda Cooper, Innocence Project; and Ms. Vanessa Meterko, Innocence Project.
Wednesday, December 13, 2017
"Rethinking the Boundaries of 'Criminal Justice'"
The title of this post is the title of this new essay/book review authored by Benjamin Levin and now available via SSRN. Here is the abstract:
This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. Specifically, I trace two themes in the book: (1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and (2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.
I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these discussions in turn shapes the face of the reform movement and the types of proposals and critiques that are treated as legitimate.
Sunday, November 12, 2017
Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review
The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:
BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review. Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.
Friday, November 10, 2017
"Is It Time for Criminologists to Step Outside the Ivory Tower?"
The question in the title of this post is the headline of this commentary by LawProf Erik Luna from over at the Crime Report that provides some background and perspective on the extraordinary recent academic work, discussed here, that Erik helped create and curate. Here are excerpts:
[C]riminal justice reform presents an issue — perhaps the only issue today — on which the left and the right can unite. And, as it turns out, the academic world may be able to help, as demonstrated by a newly released report from a distinguished group of criminal justice scholars....
Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. On what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and the Charles Koch Institute?
In our nation’s capital, Republicans and Democrats came together to correct grotesque disparities between crack and powder cocaine sentencing, for instance, and pending bills would address such issues as America’s broken bail process, ruthless mandatory penalties, and recidivism by former inmates. In truth, the most remarkable bipartisan action is occurring outside of the Beltway, where states such as Texas (yes, Texas) are leading the way in top-to-bottom criminal justice reforms.
Although advocates may have different motivations — political, social, economic, religious — they agree that something needs to be done about criminal justice in America....
Despite [broad] reasons to support criminal justice reform, the movement still faces a daunting task. In particular, a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the reality of pretrial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration.
This lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice. What is needed is a means to help people grasp the system’s workings and its many, interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions.
This is where academics have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system and proposing changes to that system.
Traditionally, however, academic authors have written to themselves—that is, to other criminal justice scholars — not to the public or even to policymakers, professionals, or policy analysts interested in criminal justice. As a result, academic scholarship is inaccessible in the sense that it is dense, filled with jargon, and, as a general rule, painful to read and unfriendly to normal human beings. Oftentimes scholarly works are physically inaccessible as well, published by academic presses and journals and buried in libraries or hidden behind paywalls.
In an attempt to bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of well over 100 scholars has issued a four-volume report titled Reforming Criminal Justice, which takes on some of the most pressing issues in criminal justice today.
Broken down into individual chapters, each authored by a top scholar in the relevant field, the report covers dozens of topics within the areas of criminalization, policing, pretrial and trial processes, sentencing, incarceration, and release. The goal of each chapter is to increase both professional and public understanding of the subject matter, to facilitate an appreciation of the relevant scholarly literature and the need for reform, and to offer potential solutions.
Today, the United States is unique among Western nations in terms of the scale and punitiveness of its criminal justice system. Academics can’t directly change this: We’re teachers and scholars, not elected officials or other policymakers. But, as the report hopes to show, the academic world can enlighten the public and their representatives and help guide reform efforts through the insights of those whose lifework is the study of criminal justice.
Prior related post:
Sunday, November 05, 2017
In praise of an extraordinary new resource, "Reforming Criminal Justice"
This press release reports on the recent culmination of an extraordinary academic project:
In an effort to inform criminal justice reform, the Sandra Day O’Connor College of Law at Arizona State University published a major new report titled Reforming Criminal Justice. The culmination of a yearlong collaboration, the four-volume publication involved 120 of the nation’s foremost academics to discuss specific topics within the reform movement. The report was made possible with support from the Charles Koch Foundation....
Erik Luna, ASU Law Amelia D. Lewis professor of constitutional and criminal law, directs the project. “The goal of this report is to connect academics with those responsible for criminal justice policy,” said Luna. “In recent years, academics have not effectively participated in and contributed to the conversation. This is a way for them not only to be a part of the discussion, but also to impact real-world policy.”
The coalition of scholars, known as the Academy for Justice, was inspired by a bipartisan summit in 2015, which brought together prominent figures in the reform movement to discuss the problems of criminal justice and to propose real, meaningful, lasting solutions. Following the 2015 summit, Professor Luna spearheaded an effort to integrate the expertise of the nation’s leading academics into the criminal justice reform movement. That effort ultimately led to the idea of creating an unprecedented report with perspectives from criminal justice experts from colleges and universities such as Berkeley, Chicago, Columbia, Georgetown, Harvard, NYU, Penn, Stanford, Vanderbilt, and Virginia. The scholars gathered at ASU Law’s Beus Center for Law and Society in February 2017, to share ideas, review and provide feedback on each other’s work, and ensure the highest quality content and issue development....
The report provides both detailed analysis and specific policy proposals, a resource of unrivaled breadth and depth in the reform movement. The 57 separate contributions cover a wide range of specific topics within criminal justice: from criminalization and policing to adjudication and incarceration. To maintain and increase its momentum, policymakers, thought leaders, and community members must encourage a broader and deeper understanding of the problems and forge thoughtful solutions to these difficult issues. This is where academics have an important role to play.
The report is being distributed to policymakers, criminal justice officials, think tanks, non-profit organizations, and community activists, but will also be freely available to the public through a dedicated website, academyforjustice.org
I had the honor and privilege of contributing a chapter to this extraordinary project, which is available here and is titled simply "Sentencing Guidelines." Sentencing fans will especially want to check out all of Volume 4 on "Punishment, Incarceration, and Release" for chapters on topics ranging from traditional theories of punishment to risk assessment at sentencing to fines and fees to sex offender registration and many more. Indeed, all criminal justice fans should check out all the volumes because there is so much extraordinary work to be found therein.
Wednesday, October 18, 2017
Special issue of Federal Probation looks at "30 Years with Federal Sentencing Guidelines"
The latest issue of the journal Federal Probation, which is published by the Administrative Office of the U.S. Courts, features a special section looking at "30 Years with Federal Sentencing Guidelines." As revealed by the contents reprinted below, I had the honor of contributing a short article to this issue and that authorship puts me in some notable company:
Federal Sentencing Policy: Role of the Judicial Conference of the United States and the Administrative Office of the U.S. Courts by Hon. Ricardo S. Martinez
The Integral Role of Federal Probation Officers in the Guidelines System by Hon. William H. Pryor Jr.
Reflecting on Parole’s Abolition in the Federal Sentencing System by Douglas A. Berman
Five Questions for the Next Thirty Years of Federal Sentencing by Steven L. Chanenson
State Sentencing Guidelines: A Garden Full of Variety by Kelly Lyn Mitchell
Tuesday, October 17, 2017
Lots of criminal justice coverage at start of new Harvard Law Review Blog
We are excited to announce the launch of the Harvard Law Review Blog.
The Harvard Law Review published its first issue more than 130 years ago with the hope that it could “enlarge our field” and be “serviceable to the profession” through thoughtful and relevant legal analysis. Our Blog continues this effort. By fostering legal inquiry and argument that is fast-paced and timely, the Blog will strive to complement the long-form, in-depth analysis that has filled our pages for over a century.
Like our print edition and the Forum, the Blog will bring together the scholars, practitioners, and leaders who are on the forefront of today’s biggest legal issues — who are pushing for a deeper understanding of the law. In keeping with our tradition as a generalist publication, our contributors will explore a range of topics, from Chevron deference and civil rights to international trade and immigration law.
In 1887, the editors of the Law Review’s first issue wrote, “It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received.” Today, we launch the Harvard Law Review Blog in the same spirit.
Notably, a number of the initial posts up on the HLR Blog have a criminal justice focus:
"Costs of money bail to justice" by Honorable Tani G. Cantil-Sakauye
"Voting Rights: The Struggle of Our Lifetime" by Eric Holder, Jr.
Tuesday, October 10, 2017
"The Idea of 'the Criminal Justice System'"
The title of this post is the title of this interesting-looking new paper authored by Sara Mayeux now available via SSRN. Here is the abstract:
The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science.
The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.
Tuesday, October 03, 2017
"What’s Behind the Decline in the Death Penalty?"
The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is how the Q&A gets set up, along with the concluding Qs and As:
There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.
The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.
University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....
If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts? What happens if there is a return to the murder rates of the 1980s?
The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline. If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches. But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime. We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences. Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.
In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences." How do you resolve that tension? What do you think opponents of long sentences should do going forward to bring more mercy into the system?
Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report. I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out. For decades, he filed habeas petitions himself and wrote letters. After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.
We need to do something about the explosion of these life sentences in America. We have replaced the death penalty with the “other death penalty.” Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory. To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.
Thursday, August 31, 2017
Thoughtful account of what to think about risk assessment tools
This new commentary at The Crime Report authored by Megan Stevenson, headlined simply "Is Crime Predictable?," provides an effectively measured discussion of the use of risk assessment tools in criminal justice decision-making. Here is how it starts and ends:
Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.
Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.
Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety. Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.
Which side is right? It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented. Risk assessments are tools — no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.
They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense....
We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.
Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.
UPDATE: I am pleased to see that this commentary has now been given a more fitting headline over at The Crime Report: "Risk Assessment: The Devil’s in the Details"
Sunday, June 18, 2017
"Days of Future Past: A Plea for More Useful and More Local Legal Scholarship"
The title of this post is the title of this notable new paper now available on SSRN and authored Frank Bowman. Though not directly about sentencing, Frank's history as a fantastic sentencing scholar and reform advocate surely helped shape his perspective on the issues he discusses (and also surely helped me and this blog get a shout-out in footnote 81). Here is article's abstract:
Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.
This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship - a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.
These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.
I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.
Sunday, June 11, 2017
"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"
The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed. Here is description via the book's Amazon page:
Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment. Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work. The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book. The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost. And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion. The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention. This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.
Wednesday, May 03, 2017
"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"
The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:
Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.
This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic. It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe. Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.
This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.
Saturday, April 29, 2017
Illinois Law Review creates big online symposium to mark Prez Trump's first 100 Days
Via email I learned of an impressive and well-timed project completed by the Illinois Law Review: publication of this online symposium on President Trump's First 100 Days with 31(!) folks analyzing various aspects of the activities of the new Administration. Sadly, there is no commentary in the collection focused specifically on sentencing and punishment issues, but here is just a handful of the pieces that are connected in various ways to various issues covered on this blog:
"President Trump and the Judiciary" by Jason Mazzone
"Federalism Flashpoints in Trump’s First 100 Days" by Vikram David Amar
"Police Reform During the Trump Administration" by Stephen Rushin
Sunday, March 12, 2017
"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"
The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:
Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform." The book concludes that police, legislators, and judges are not to blame for Mass Incarceration. Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”
Locked In’s data-driven thesis aligns neatly with the academic consensus. If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration. The only problem is that it probably isn’t right. While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data. With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators. This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration. It also says something profound about prosecutorial power.
Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny. When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.
Friday, March 10, 2017
"Why Prison?: An Economic Critique"
The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:
This Article argues that we should not imprison people who commit crimes. This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system. Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.
Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses. It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs. The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently. It concludes that there exist economically superior alternatives to prison available right now. The alternatives are practicable. They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.
This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:
Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost. And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap. Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective. But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns. That question is outside the ambit of this paper. The alternative system can also be criticized on practicability grounds. But upon close investigation, such criticisms lose much of their force.
Monday, March 06, 2017
"Rationing Criminal Justice"
The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas. Here is the abstract:
Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.
Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.
Monday, February 06, 2017
"A Theory of Differential Punishment"
The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:
A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.
The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified. We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.
Saturday, February 04, 2017
"The Death Penalty as Torture From the Dark Ages to Abolition"
The title of this post is the title of this new book authored by John Bessler about to be published by Carolina Academic Press. Here is the blurb from the Press webpage:
During the Dark Ages and the Renaissance, Europe’s monarchs often resorted to torture and executions. The pain inflicted by instruments of torture — from the thumbscrew and the rack to the Inquisition’s tools of torment — was eclipsed only by horrific methods of execution, from breaking on the wheel and crucifixion to drawing and quartering and burning at the stake. The English “Bloody Code” made more than 200 crimes punishable by death, and judicial torture—expressly authorized by law and used to extract confessions—permeated continental European legal systems. Judges regularly imposed death sentences and other harsh corporal punishments, from the stocks and the pillory, to branding and ear cropping, to lashes at public whipping posts.
In the Enlightenment, jurists and writers questioned the efficacy of torture and capital punishment. In 1764, the Italian philosopher Cesare Beccaria — the father of the world’s anti–death penalty movement — condemned both practices. And Montesquieu, like Beccaria and others, concluded that any punishment that goes beyond absolute necessity is tyrannical. Traditionally, torture and executions have been viewed in separate legal silos, with countries renouncing acts of torture while simultaneously using capital punishment. The UN Convention Against Torture strictly prohibits physical or psychological torture; not even war or threat of war can be invoked to justify it. But under the guise of “lawful sanctions,” some countries continue to carry out executions even though they bear the indicia of torture.
In The Death Penalty as Torture, Prof. John Bessler argues that death sentences and executions are medieval relics. In a world in which “mock” or simulated executions, as well as a host of other non-lethal acts, are already considered to be torturous, he contends that death sentences and executions should be classified under the rubric of torture. Unlike in the Middle Ages, penitentiaries—one of the products of the Enlightenment—now exist throughout the globe to house violent offenders. With the rise of life without parole sentences, and with more than four of five nations no longer using executions, The Death Penalty as Torture calls for the recognition of a peremptory, international law norm against the death penalty’s use.
Sunday, January 29, 2017
"A Better Approach to Violent Crime"
The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:
If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.
There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...
Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.
It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks. In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.
A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.
California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend.
Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens. A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.
The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.
One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them. Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on.
A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.
Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.
Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods. Some studies have found that half of all urban crimes take place in under 10% of all city blocks. In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.
It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...
Prison, in short, is by no means the only effective way to respond to violent behavior. In fact, compared with these programs, prison is likely one of the least efficient approaches that we have. The declines in incarceration over the past six years are worth celebrating. But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.
If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time. Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.
January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)
Monday, November 07, 2016
Interesting array of distinctive sentencing articles in Louisiana Law Review’s Fall 2016 issue
A helpful reader alerted me to this new symposium issue of the Louisiana Law Review with four distinct articles on four distinct criminal sentencing topics. The publication follows the live symposium earlier this year, reported here, which was titled "Throw Away the Key: Criminal Sentencing Reform in the 21st Century." Here are the four article from that issue:
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.