Friday, May 27, 2016

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

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

From the Prison Policy Initiative blog:

From the The Crime Report:

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

Monday, April 25, 2016

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

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

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

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

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

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

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

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

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

Sunday, April 17, 2016

"Montgomery's Messy Trifecta"

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

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

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

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

Saturday, April 09, 2016

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

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

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

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

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

Thursday, April 07, 2016

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

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

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

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

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

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

Thursday, March 31, 2016

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

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

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

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

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

Saturday, March 05, 2016

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

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

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

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

Sunday, January 17, 2016

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

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

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

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

Thursday, December 31, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 23, 2015

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

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

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

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

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

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

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

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

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

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

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

Sunday, December 20, 2015

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

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

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

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

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

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

Wednesday, December 16, 2015

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

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

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

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

 

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

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

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

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

Tuesday, December 01, 2015

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

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

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

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

Sunday, November 15, 2015

Lots of notable media reads on range of criminal justice topics

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

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

Saturday, November 07, 2015

"Incentives Structures and Criminal Justice"

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

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

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

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

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

Thursday, November 05, 2015

Lots of interesting commentary on lots of interesting criminal justice topics

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

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

Tuesday, November 03, 2015

"The Bumpiness of Criminal Law"

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

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

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

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

Sunday, October 25, 2015

Great Hastings Law Journal coverage of federal sentencing circa 2015

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

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

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

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

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

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

Wednesday, October 14, 2015

"The Retribution Heuristic"

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

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

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

Friday, October 09, 2015

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

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

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

Thursday, October 08, 2015

"Mass Incarceration: An Annotated Bibliography"

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

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

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

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

Thursday, October 01, 2015

Lots and lots of good reads from The Atlantic, Reason, and Slate

Busy times on a number of fronts has prevented me from highlighting a number of recent articles from The Atlantic, Reason, and Slate on a range of topics that should be of interest to sentencing fans. In an effort to catch up, I will just here note headlines and provide links (and urge readers in the comments to idenitfy which pieces they think perhaps merit added attention).

Recently from The Atlantic:

 

Recently from Reason:

 

Recently from Slate:

October 1, 2015 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Tuesday, September 01, 2015

Lots of notable new sentencing-related content at Crime & Consequences

I make Crime and Consequences a daily read for lots of reasons, and here is just a sample of some new content in a number of recent posts that sentencing fans should be sure to check out:

 

September 1, 2015 in Recommended reading, Who Sentences? | Permalink | Comments (2)

Wednesday, June 24, 2015

"Punishment in Popular Culture"

9781479833528_FullThe title of this post is the title of this intriguing new book of essays edited by Charles Ogletree and Austin Sarat.  The book's table of contents reveals that the essays are authored by an array of interesting and distinct scholars who focus on an array of interesting and distinct topics ranging from early prison films to Abu Ghraib to "White Masculinity and Harsh Punishment in 1990s Popular Culture." The book's introduction authored by the editors provides a great preview of the book's themes and coverage, and here is an excerpt:  

From the Gospel of Matthew to George Bernard Shaw and former Supreme Court Justice William Brennan, many have remarked that how a society punishes reveals its true character. Punishment tells us who we are.  The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness, and its particular ways of responding to evil....

Punishment in Popular Culture examines the cultural images that undergird and critique America’s distinctive approach to punishment.  It analyzes punishment as a set of images, as a marvelous spectacle of condemnation.  It recognizes that the semiotics of punishment is all around us, not just in the architecture of the prison or the speech made by a judge as she sends someone to a penal colony, but in both “high” and “popular” culture iconography — in novels, television, and film.  Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption.  But perhaps the word “our” is inaccurate here.  Émile Durkheim and George Herbert Mead, among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through dis-identification as much as imagined connection....

America, as is widely known, has been on a several decades’ old incarceration boom.  As noted above, we continue to lock up more people for longer periods of time than most other nations, as well as to use the death penalty and to racialize punishment in ways that are quite remarkable.  How are these facts of American penal life reflected in, encouraged through, or critiqued by the portraits of punishment that Americans regularly encounter on television and in film?  What are the conventions of genre that help to familiarize those portraits and connect them to broader political and cultural themes?  In its cultural lives, can punishment claim a secure basis in morality? Or do television and film help to undermine its moral claims?  How are developments in the broader political economy reflected in the ways punishment appears in mass culture?  And finally, how are images of punishment received by their audiences?

While the work collected in our book does not purport to provide a comprehensive overview, these are the questions that Punishment in Popular Culture addresses.  Our book thematizes issues of genre, morality, political economy, and reception in its analyses and brings together distinguished scholars of punishment and experts in media studies in an unusual juxtaposition of disciplines and perspectives.

June 24, 2015 in Film, Recommended reading, Television | Permalink | Comments (0)

Sunday, June 21, 2015

"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"

The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.

By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.

June 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Wednesday, June 10, 2015

"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"

The title of this post is the title of this intriguing new paper authored by Mark Fondacaro and Megan O'Toole now available via SSRN.  Here is the abstract:

A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates.  Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform.  Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime.  Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts.

However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally.  This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.

June 10, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, June 04, 2015

"Shining a Light on Overcriminalization"

The title of this post is the title of this notable new "Backgrounder" from The Heritage Foundation authored by Jordan Richardson.  Here is the abstrat:

Overcriminalization — the overuse or misuse of the criminal law to address societal problems — manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability.  However, overcriminalization has a more tangible aspect beyond legislation and legal theory: American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.

Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law.  Only by identifying the problem and highlighting why it matters will any meaningful change take place.

June 4, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 03, 2015

"Bifurcation Nation: Strategy in Contemporary American Punishment"

The title of this post is the title of this notable new paper by Christopher Seeds now available via SSRN. Here is the abstract:

Important recent work by penal scholars recognizes the need to study the interplay between federal and state initiatives and between state and local structures.  But the sociology of punishment has been less cognizant of late of the importance of studying the relation between the divergent treatment of high-level and low-level offenses and offenders as a means of understanding those federal, state or local approaches to penality. By one conventional view, the divergent policy trends for violent and nonviolent offenders are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, the increasing decarceration of low-level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders and offenses.

This paper suggests that, rather than a unidirectional force or mere ambivalent mix of old and new, contemporary sentencing policy is better understood as a bifurcation strategy — one that responds uniquely to the new dilemmas and new constraints presented by a moment we might call, with cautious optimism, late mass incarceration.

June 3, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Tuesday, May 26, 2015

"Implementing Just Mercy"

The title of this post is thew title of this notable new piece authored by William Berry III now available via SSRN. Here is the abstract:

This book review essay explores the connection between Bryan Stevenson's recent book, "Just Mercy: A Story of Justice and Redemption", and the development of concepts of individualized sentencing under the Sixth and Eighth amendments by the Supreme Court.

In light of these steps toward individualizing sentencing, this book review essay imagines a serious application of the principles of just mercy that Stevenson has championed in his legal career to the criminal justice system.  Specifically, this essay argues that individualized consideration of criminal offenders throughout the criminal justice process — from policing to sentencing — is necessary to achieve the compatible (not competing) goals of justice and mercy.

The essay proceeds in three parts.  Part One describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders.  In Part Two, the essay shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity.  Finally, in Part Three, the essay outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.

May 26, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, May 16, 2015

"Towards a Theory of Mitigation"

The title of this post is the title of this new paper on SSRN co-authored by me and Carissa Hessick. Carissa is rightly the first name on the article, as she did most of the hard (and good) work, and I am grateful for being able to come along for the ride. Here is the abstract:

Criminal sentencing was once an exercise in rehabilitation — judges imposed sentences on defendants based on their estimation of how likely a defendant was to reform her lawless ways and avoid committing future crime.  The rehabilitative model of sentencing was largely abandoned in the late twentieth century, and it has yet to be replaced by another theory of punishment.  The failure to replace rehabilitation with another theoretical approach has contributed to a dearth of mitigation in modern sentencing.

This Article seeks to restore mitigation to a prominent role in modern sentencing.  First it provides an account of mitigation consensus. Using a comprehensive survey of state sentencing statutes and guidelines, as well as surveys of judges and public opinion, the Article identifies eight mitigating factors that, if present, should always result in a mitigated sentence.  Second, the Article offers a theoretical approach to sentencing mitigation. Drawing on the mitigation consensus, the parsimony principle, and theories of limited government, the Article proposes that judges should impose less severe sentences whenever any of the prevailing punishment theories would support a reduction.

May 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5) | TrackBack

Friday, March 27, 2015

NY Times Magazine covers modern prisons at home and abroad

I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:

The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.

Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.

Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.

March 27, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1) | TrackBack

Sunday, February 08, 2015

"Just Violence"

The title of this post is the headline of this intriguing new paper by Alice Ristroph now available via SSRN.  Here is the abstract:

Ethical reflections on war — and the positive laws these reflections have inspired — have framed their undertaking as the effort to limit and regulate state violence. Ethical reflections on punishment have not been framed in the same way, but they should be.

Three characteristics of the philosophy (and laws) of war prove especially instructive for the philosophy (and laws) of punishment.  First, the ethics of war is an ethics of violence: it acknowledges and addresses the gritty and often brutal realities of actual armed conflict.  Punishment theory too often denies the violence of punishment or otherwise neglects the realities of penal practices. Second, philosophers of war tend to keep the usual agent of war’s violence — the state — squarely in view, whereas punishment theory tends to focus on the target of punishment rather than its agent.  Third, and most importantly, commentators on the ethics of war have come to realize that the humanitarian project of limiting violence is a different and more difficult task than the project of justifying violence. This insight has produced the jus in bello: a set of principles aimed at limiting the violence of war without adopting a view of the war’s justification.

Punishment theory has long been focused on the project of justifying punishment, but this Article sketches the contours of a jus in poena: philosophical and legal principles designed to regulate the conduct of punishment without adopting any particular theoretical justification for punishment.

February 8, 2015 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Wednesday, January 07, 2015

Criminology & Public Policy special issue on sentencing reform and mass incarceration

CoverA helpful reader alerted me to this special November 2014 issue of the journal Criminology & Public Policy with an array of top criminologists and legal scholars talking about modern sentencing reform and mass incarceration in the united States. The entire issue looks like a must-read, and here is a list of the contents: 

January 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, December 18, 2014

Call for Papers for 2015 Innocence Network Conference

I am happy to convey upon a kind request this Call for Papers that might be of interest to readers of this blog:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2015 Innocence Network Conference in Orlando, Florida on May 1-2, 2015.

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English.  Please submit a title and paper proposal to the Innocence Scholarship Committee at this G-Mail account: innocencescholarship@gmail.com by February 13, 2015.  Paper proposals must be no more than 200 words.  Completed drafts must be submitted to the Committee by April 17, 2015.

The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.

The Innocence Scholarship Committee is comprised of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark School of Law, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia School of Law; and Dr. Robert Schehr, Arizona Innocence Project, Northern Arizona University.

December 18, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Saturday, November 15, 2014

Examining Crawford after a decade

First Impressions, the online companion to the Michigan Law Review, has this new on-line symposium titled "Crawford v. Washington: A Ten Year Retrospective."  Here is how the editors introduce the pieces and links thereto:

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.

The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.

We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years. 

November 15, 2014 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (9) | TrackBack

Thursday, October 09, 2014

"Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes"

The title of this post is the title of this lovely essay by Daniel Richman now available via SSRN. Here is the abstract:

This essay — written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” — is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities.

Readers undoubtedly can come up with more than three styles.  But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”

October 9, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 17, 2014

"Sentencing and Interbranch Dialogue"

The title of this post is the title of this intriguing new paper by Eric Fish now available on SSRN. Here is the abstract:

American legislatures generally delegate primary control over sentencing policy to one of two actors — trial judges or a sentencing commission.  In choosing between these actors, a legislature decides between two values, individualization or uniformity.  If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices.  If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant.  This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity.  In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines.  They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.

Such dialogue has different institutional forms in different guidelines regimes.  In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves.  In an advisory guidelines regime (where the guidelines are non-binding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.

The benefits of a dialogic sentencing system are twofold.  First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates.  Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions.  Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.

September 17, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, August 25, 2014

"Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America"

Mass_incarceration_finalThanks to this new posting at The Crime Report, I see the exciting news that Jonathan Simon's new book about mass incarceration and California's dysfunctional role therein has been released by The New Press.  The book's title makes up the title of this post, and here is how the publisher describes the book on its website:

For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading — relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order.  In short, mass incarceration has proven to be a fiscal and penological disaster.

A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.”  Berkeley law professor Jonathan Simon — an internationally renowned critic of mass incarceration and the war on crime — argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence.  Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.

Exposing the priority of politics over rational penal policy — and debunking the premise that these policies are necessary for public safety — this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.

August 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Friday, May 23, 2014

Conceptual considerations for differentiating sentence finality and conviction finality

As explained here, I have been "celebrating" the official publication of my article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  And, as set forth in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  In prior posts (all linked below), I reviewed the first part of my article where I detail (perhaps too briefly) how the forms and functions of different punishment systems throughout US history have provided different frameworks for the legal and practical relationship between conviction finality and sentence finality.  

With this post, I will start spotlighting the conceptual, policy, and practical considerations discussed in the second part of my article.  Here I seek to detail my view that fundamental differences between trials and sentencings entail that final convictions and final sentences are necessarily and inherently "different legal creatures" which, in turn, should raise questions about any claims that convictions and sentences necessarily must or generally should be given the same kind of treatment for finality purposes.  Here is some of my discussion about key conceptual differences between convictions and sentences: 

Criminal trials are inherently backward-looking, offense-oriented events, and convictions reflect and represent binary factual determinations about legal guilt.  Typically, trial disputes center on particular issues of historical fact; trials are designed and intended to achieve an accurate and specific legal determination that resolves these factual disputes in order to establish formally, for all pertinent legal purposes, whether the defendant in fact committed a criminal offense that calls for society’s condemnation and state punishment.  At issue at trial may be whether the defendant was the person who committed a wrongful act, what the defendant’s mental state was, or whether the defendant used a weapon or inflicted a particular injury.  Whatever the specific factual issue in dispute, in every criminal trial the advocates and the adjudicators can and should be given all the resources needed — and should be committed to and able to invest all necessary time, energies, and efforts — to marshal and review whatever evidence and information exists concerning the past historical events that are at the heart of the government’s accusations concerning a defendant’s alleged misconduct and wrongdoing. Every effort necessarily should be made to ensure — and every traditional constitutional and evidentiary rule is styled in order to ensure — that a criminal defendant is given a full and fair opportunity to raise a reasonable doubt about the government’s allegations, and trial decision-makers are required to choose from a fixed and limited set of possible trial verdicts as they resolve factual questions concerning guilt or innocence....  [When] the prosecution prevails at trial through a guilty verdict, this outcome of conviction justifiably merits a strong presumption of regularity and accuracy in light of all the time, energies, and efforts marshaled by the participants to get the fundamental guilt determination right initially.

Sentencings, in sharp contrast, involve assessing the future treatment and legal fate of only those offenders convicted after a trial or plea has resolved basic backward-looking factual disputes about guilt and degrees of criminality.  No matter which modern punishment philosophies a jurisdiction principally embraces, sentencing determinations will necessarily always incorporate some offender-oriented considerations, many of which involve assessments of a defendant’s personal history and characteristics to make a forward-looking prediction of the offender’s likelihood of committing future crimes. Though sentencing proceedings may often incorporate some backward-looking considerations concerning how and why a particular crime was committed, the focus of the advocates and the adjudicators is always broader, always more multifaceted and multi-dimensional, and always more granular and nuanced than the basic binary issues of historical fact that are resolved at trial and reflected in a criminal conviction.  The legal issue at sentencing is no longer simply what happened and who was involved in alleged criminal conduct, but what to do with the convicted criminal in light of his, the victims’, and society’s needs.  Sentencing decisionmakers, even within modern determinate sentencing schemes, are presented with a wide array of information about both the offense and the offender, and these decisionmakers are also typically given at least some (and often lots of) discretion to consider an array of possible punishments and sentencing dispositions.

Prior posts in this series:

May 23, 2014 in Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, May 16, 2014

Form, function and finality of sentences through history: the Modern Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  And, as set forth in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As noted in prior posts, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's final historical observations about sentence finality during the "Modern Era" stretching from the the 1970s through today.  At the start of this period, U.S. sentencing philosophies, policies, and practices changed dramatically.  Legislatures through this period have embraced determinate sentencing laws that require prison sentences for most offenses and require very lengthy prison terms for nearly all serious offenses and repeat offenders.  These modern sentencing realities, in turn, has considerably changed the nature and stakes of issues surrounding sentence finality:

[Modern incarceration] statistics suggest there may now be more individuals condemned to die in America’s prisons based on their current “final” sentences than the total prison population in the 1960s when courts and scholars began earnestly discussing the importance of finality for criminal judgments.  As explained before, the then-prevailing practices of indeterminate sentencing and parole entailed that the vast majority of 300,000 persons incarcerated in 1970 could take comfort in the then-prevailing reality that the duration of and justification for their ongoing prison terms would be regularly reviewed and reconsidered by corrections officials.  Today, in sharp contrast, the majority of the 2.25 million incarcerated individuals in the United States cope with the now-prevailing reality that their prison sentences are fixed and final and not subject to any regularized means of review or reconsideration for any purposes.

In sum, the transformation of the sentencing enterprise and embrace of mandatory sentencing schemes throughout the United States over the past four decades has been remarkable and remarkably consequential for the considerable number of offenders sentenced to significant terms of imprisonment.  The highly discretionary indeterminate sentencing systems that had been dominant for a century have been replaced by an array of sentencing structures that govern and control sentencing decisionmaking.  Most pertinent to the topic of this Essay, prison sentences that had for more than a century been defined by a lack of finality are now fixed and final in the vast majority of all serious criminal cases at the moment they are announced by a sentencing judge.  Consequently, two centuries of U.S. criminal justice experience in which sentence finality was not a distinct concern has given way, due to dramatic changes in sentencing laws, policies, and practices, to a modern era of mass and massive terms of incarceration that makes the treatment of final sentences arguably the most important issue for hundreds of thousands of current prisoners and for the tens of thousands more defendants being sentenced to lengthy prison terms each year throughout the United States.  Sentence finality, in short, has gone from being a non-issue to being arguably one of the most important issues in modern American criminal justice systems.

Prior posts in this series:

May 16, 2014 in Mandatory minimum sentencing statutes, Recommended reading, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, May 14, 2014

Form, function and finality of sentences through history: the Rehabilitative Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As explained in this prior post discussing Founding Era realities, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's observations about the dynamics of conviction and sentence finality during the so-called Rehabilitative Era stretching from the mid 19th Century to the latter part of the 20th Century.  During this period, prisons were constructed from coast to coast as American criminal justice systems nationwide embraced rehabilitation as the central punishment concern, and a highly discretionary “medical” model came to dominate criminal sentencing procedures and practices.  This punishment model, as explained here, had a considerable impact on sentence finality and its relationship to conviction finality:

This rehabilitative model of sentencing and corrections was avowedly disinterested and arguably disdainful of sentencing finality, at least with respect to the traditional sentences of prison and probation.  After a sentencing judge had imposed a prison term, which sometimes would be set in a range as broad as one year to life, prison and parole officials were expected and instructed to consistently review offenders’ behavior in prison to determine if and when they should be released to the community.  All imprisoned defendants would have regular parole hearings at which time their sentence terms were, formally and functionally, subject to review and reconsideration by corrections officials. Even after officials decided to set free a prisoner on parole, or if a defendant was sentenced to probation rather than prison in the first instance, correctional supervisors still kept close watch on offenders to assess their behavior in the community again with an eye toward reviewing and modifying sanctions as needed to fit the needs of the offender and society. Release on parole or probation was never really a final sentencing disposition: government officials readily could and often would revoke parole or probation to remand those who misbehaved in the community back to prison.

Significantly, this rehabilitative model of sentencing and corrections with its fundamental disaffinity for treating any sentencing term as final was still dominant in the 1960s when courts and scholars began earnestly discussing the importance of treating criminal judgments as final.  This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on the finality of criminal convictions; and (2) any problems or harms resulting from giving too much weight to the interests of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.

Prior posts in this series:

May 14, 2014 in Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

Monday, May 12, 2014

Form, function and finality of sentences through history: the Founding Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

This theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  I recount this historical story (too quickly) in three parts in my paper — discussing separately the Founding, Rehabilitative and Modern Eras — and will use three blog posts to set out this story here.  Starting with the Founding Era, here are some of my article's observations:

The distinct nature of sentencing and punishment in the Founding Era adds additional dimensions to the finality story in early American criminal justice systems.  At America’s founding, differentiating between convictions and sentences was largely unknown because a defendant’s conviction and sentence were generally one and the same. As the Supreme Court has explained, during this period the “substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense [and a] judge was meant simply to impose that sentence.”  This era’s “invariable linkage of punishment with crime” meant that there were generally no special sentencing doctrines or court proceedings distinct from the doctrines and procedures that attended traditional criminal trials. The early history of American law, in other words, did not generally distinguish between convictions and sentences for any purpose, let alone with respect to how these two components of a criminal judgment ought to be treated for finality purposes.

[In addition,] until the development of penitentiaries in the mid-nineteenth century, the capital and corporal punishments typically employed in early America were completed upon imposition and thus beyond review or reconsideration once imposed.  After a convicted criminal defendant was executed or banished or pilloried or whipped or placed in the public stocks, there were no practical means or opportunity to review or modify the imposed sanction.  An executed or banished defendant was, obviously, no longer present in the community to seek reconsideration of either his conviction or sentence; a defendant who was whipped or subject to other public corporal punishment could not have reversed or modified the pain or shame he experienced after such a sanction was first imposed.

Prior posts in this series:

May 12, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Thursday, May 08, 2014

Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts intended, in the words of my article's introduction, "to encourage more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final." This initial substantive post will set out a foundational conceptual idea from my article — an idea which drives much of my thinking about sentence finality and seems somewhat obvious to me, but one that others might consider controversial.   Here is how I set up the idea in my article (with a lengthy footnote omitted):

The issue of sentence finality is necessarily connected, of course, to the status and treatment afforded final criminal judgments more generally.  For more than a half-century, a robust jurisprudential debate has swirled in the Supreme Court and in academic circles concerning federal court authority to review final state criminal judgments using the historic writ of habeas corpus.  But courts and scholars analyzing whether and how defendants should be able to attack final criminal judgments have too often failed to explore or even recognize that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  It is curious and problematic that modern finality doctrines and debates rarely distinguish between final convictions and final sentences: curious because courts and commentators have long recognized that the determination of guilt and the imposition of punishment involve distinct stages of criminal adjudication calling for different rules and procedures; problematic because the strongest justifications for limiting reconsideration of final convictions are less compelling with respect to final sentences.

Stated a bit more directly, a foundational conceptual idea in my work here is that, whatever one may think about the importance of preserving final convictions and/or limiting ways in which final convictions can be reviewed or reconsidered, there are necessarily distinct concerns and issues surrounding the treatment of final sentences.  Perhaps in part because I am a sentencing geek, it seems so very obvious to me that, in just about any and every setting, the legal questions and policy debates that surround sentences are distinct in kind from the legal questions and policy debates that surround convictions.  But maybe this instinct and insight in the context of finality discussions is more controversial than I realize.

Prior post in this series:

May 8, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Wednesday, May 07, 2014

Examining "sentence finality" at length in new article and series of posts

I am pleased to report that an article I completed in conjunction with a wonderful symposium on "Finality in Sentencing" for the Wake Forest Journal of Law & Policy is now in print and available in full via this SSRN link.  

The full title of my article is "Re-Balancing Fitness, Fairness, and Finality for Sentences," and here is the abstract: 

This Essay examines the issue of “sentence finality” in the hope of encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final.  Drawing on American legal history and modern penal realities, this Essay highlights reasons why sentence finality has only quite recently become an issue of considerable importance.  This Essay also suggests that this history combines with modern mass incarceration in the United States to call for policy-makers, executive officials, and judges now to be less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.

Regular readers know I have commented in the past in this space about my fear that too much stock and weight is often put on "sentence finality" (as distinct from "conviction finality"), and this article provided me the first real opportunity to think and write about this issue more thoroughly and systematically.  And yet I fear I am only scratching the surface of various important conceptual and practical issues in this Wake article; as a result, I may end up writing a lot more on this topic in the months and years.  

In service to my stated goal "to encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final," I am planning in the days ahead to reprint and discuss in separate posts a few of the ideas and themes that find expression in this article.  For now, I am hopeful that readers will check out the full article and perhaps let me know via comments if they find this topic of sufficient interest and importance so as to justify many additional posts on sentence finality.

May 7, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Friday, May 02, 2014

"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"

The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:

Sex offenders are today’s pariahs — despised by all, embraced by none.  During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them.  These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found.  Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?

In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions.  At first OJPC lost badly — in both the courts of law and public opinion.  But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort.  It did so by borrowing an idea from Professor Derrick A. Bell.

Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites.  The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education.  According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.

OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse.  Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.

Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve.  I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.

May 2, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, March 25, 2014

Seeking special insights on Justice Sotomayor's sentencing jurisprudence

The request in the title of this post is my reaction to the new Yale Law Journal Forum posting providing here an online symposium titled "The Early Jurisprudence of Justice Sotomayor: Sonia Sotomayor's first five years on the Court."  Disappointingly, though not surprisingly, Justice Sotomayor's biggest sentencing opinions (e.g., Pepper, Peugh, Southern Union) do not seem to get much (if any) concentrated attention in the articles in the symposium.  

These three pieces from the symposium, however, do provide criminal justice commentary that might usefully supplement one's perspective on Justice Sotomayor's sentencing philosophies:

As the title of this post suggests, I would be eager to hear from readers as to whether they think there is something distinctive and/or notable about how Justice Sotomayor approaches sentencing issues.

March 25, 2014 in Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Tuesday, February 11, 2014

"The Illusory Eighth Amendment"

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

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology.  In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation.  In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation.  A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation.  Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation.  When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning.  Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules.  The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.

February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, January 21, 2014

"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"

The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:

State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.

The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”

Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.

Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.

January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack