Sentencing Law and Policy

Weekend SSRN reading (for mom?)

A large set of new articles just appeared on the SSRN Corrections and Sentencing list.  If mom is a sentencing fanatic, consider printing her out some of these new pieces:

• Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions that Won't Go Away by Michael L. Perlin

• Ethical Exception: Capital Punishment in the Figure of Sovereignty by Adam Thurschwell

• The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation by Dennis J. Baker

• Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions by Brenda V. Smith

• 'My Number One Priority': How Victims' Rights Advocates Derailed Rehabilitation's Potential Role in Prison Reform in California by Ashley T. Aubuchon

Another great read on the state of federal sentencing

The always interesting Mark Osler has this new piece up on SSRN, which goes by the engaging title "Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip." Here is the abstract:

The federal sentencing guidelines have been controversial and widely-criticized since they became effective in 1987.  One core problem with the guidelines is that there are too many (at least 31) distinct policy mandates from Congress directed at the Sentencing Commission.  Many of the principles embodied by these mandates are in direct conflict.  Much like the Pointless Man in Harry Nilsson's The Point (a character created while Nilsson was on an acid trip, who has arrows pointing in every direction and thus no point at all), sentencing policy has so many directives that it has no moral basis at all.

This article argues for starting over with the sentencing guidelines from scratch, in a project that can take advantage of state and federal experience over the past 20 years, the scholarship that has developed around sentencing, and can begin with a few understandable directive principles. Though such a project would likely result in a system which allows more judicial discretion, it is our best hope for a federal sentencing system that can combine principle and action with real moral authority.

Interesting historical look at the length of prison sentencing

Recently appearing on SSRN is this interesting new piece providing a distinct window into a notable period in the history of prisons and prison sentences.  The piece is titled "The Origin of Long Prison Sentences in America: A Case Study of Pennsylvania, 1829-1865," and here is the abstract:

Penal historian David J. Rothman has described early American prison sentences as "very long" while French emissaries Gustave de Beaumont and Alexis de Tocqueville, writing in 1833, described the American penitentiary system as "severe."  Though there exists a rich body of literature interpreting the birth of the prison, few scholars have written on the length of prison sentences that accompanied this birth. Using the length of prison sentences assigned to 1,727 convicts sentenced to the Eastern State Penitentiary in Pennsylvania in a dozen years falling between 1829 and 1865, this study investigates how long prison sentences were in Pennsylvania, what factors (race, age, gender, nationality, state of origin, recidivist status) affected sentence length, and how sentence length changed over time. Additionally, it compares Pennsylvania‘s sentence lengths to other American states to determine how representative Pennsylvania‘s prison sentences were of American prison sentences generally. Finally, it compares Pennsylvania‘s sentence lengths to those of Great Britain. While acknowledging the difficulty in comparing prison sentence lengths of different penal regimes in different states or countries, this study determines that Pennsylvania generally distributed shorter sentences than most other American states, but longer sentences than those in Great Britain.  These quantitative differences are then situated in the "American exceptionalism" debate regarding contemporary penality in the United States and abroad.

"Retributive Justice in the Real World"

The title of this post is the title of an interesting-looking article by Professor Michael Cahill, available at this link. Here is the abstract:

In 2003, Attorney General John Ashcroft announced a set of Department of Justice (DOJ) policies designed to curtail federal prosecutors’ discretion to plea bargain.  The new DOJ rules sought to ensure uniform criminal punishments and prevent criminal offenders from cutting deals to avoid deserved punishment. Yet the would-be ban on bargaining seems to have had little, if any, effect.  Such a result is hardly surprising, as the policy’s spirit of pursuing justice at all costs, however noble, is unworkable if the pursuers cannot actually pay all costs.  Limitations of budget, resources, or evidence inevitably demand some compromises, such as a tradeoff between seeking the maximum punishment for each offender and ensuring some punishment for all offenders.  Because Ashcroft’s memorandum could not articulate clear rules for how or when prosecutors could take these practical constraints into account, the result was more business as usual: unguided and unreviewable exercises of prosecutorial discretion in individual cases.

Both the adoption and the failure of the DOJ antibargaining policy underscore a significant but often-ignored difference between the two major theories of criminal law, utilitarianism and retributivism.  The policy reflected the aspirations of a retributive-justice agenda, seeking fair, uniform, and deserved punishment for all offenders.  Yet the policy also reflected the limitations of such an agenda, highlighting its restricted scope relative to that of the rival utilitarian theory. In a meaningful way, utilitarianism provides a complete theory of criminal justice, while retributivism apparently does not.

If only there was a sentencing chapter....

I might be able to justify buying this book as a business expense.  Instead, I will just use the fact that we are only a few hours away from the start of the greatest golf event of the season as an excuse to plug what looks to be a cool little book about the intersection of golf and law, "The Little Green Book of Golf Law."  Here is part of the publisher's blurb about the book:

John H. Minan writes on how violating "the law" of golf — as opposed to the rules that govern the game — can have serious consequences.  You don't have to be a lawyer to enjoy this book, which combines two great passions: law and golf.

Each chapter examines a different set of facts and involves an actual case. The chapters explore a wide array of legal issues — Tiger Woods' right of publicity, personal injury claims for negligence and products liability, contract disputes involving hole-in-one contests and golf cart rentals, a forfeiture claim under the Endangered Species Act, the Internal Revenue Service's litigation against a taxpayer over tax deductions for golf expenses, patent and trade mark disputes, and more.

Fitting the times, "Hole 2" of this book is titled "The Masters of Augusta (Tiger wins at Augusta but scores a triple bogey in the federal courts)."  And, speaking of times, as detailed here, Tiger starts his pursuit of his fifth Green Jacket at 10:45am on Thursday, and he is paired with the reigning US Open champion.

The latest sentencing must-read for white-collar practitioners

Now available from SSRN at this link is a new piece from Peter Henning discussing white-collar sentencing issues. The piece is titled, "The Changing Atmospherics of Corporate Crime Sentencing in the Post Sarbanes-Oxley Act Era."  Here is the abstract:

The Sarbanes-Oxley Act of 2002 has been viewed as a watershed event in dealing with corporate fraud. In addition to its extensive provisions dealing with internal controls and corporate accounting procedures, the law adopted new crimes and pushed the United States Sentencing Commission to enhance the Federal Sentencing Guidelines provisions for fraud and related offenses.  Even before the adoption of the Act, the Commission had increased the potential punishment for white collar crimes by amending the loss table for fraud offenses. These two steps played a key role in the increased sentences imposed on defendants convicted for their role in corporate crimes, such as Bernie Ebbers (twenty-five years) and John Rigas (fifteen years).  The Sarbanes-Oxley Act marked a change in the sentencing atmospherics for corporate crime that propelled judges to give out sentences that were unthinkable even five years earlier.

This article considers how the Sarbanes-Oxley Act changed the approach to sentencing of white collar defendants involved in corporate crimes.  It uses a hypothetical case to illustrate how sentences under the Guidelines have tripled from what they would have been just a few years earlier.  It then looks at the recent Supreme Court decision in Gall v. United States that emphasized the discretion federal judges have even under the Sentencing Guidelines to shape sentences that reflect the individual circumstances of the defendant. The change in sentencing created by the Sarbanes-Oxley Act may well be abating in the new era of discretion fostered by the Supreme Court.

"The Demise of Mercy" now in print

In this post last year I noted the thought-provoking piece from Rachel Barkow entitled "The Ascent of the Administrative State and the Demise of Mercy."  The piece is now in print as this essay in the latest issue of the Harvard Law Review, and here is the first part of the abstract:

There are currently more than two million people behind bars in the United States.  Over five million people are on probation or some other form of supervised release.  Prisoners are serving ever-longer sentences.  Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times.

Although a great deal of scholarship has sought to explain the incarceration boom and the rise in punishment, very little work has focused on the reasons why forms of mercy have been on the decline.  Specifically, scholars have not done much to explore why two of the last remaining forms of the unreviewable power to be merciful — executive clemency and jury nullification — are currently looked upon with such disfavor.  Perhaps this question has been ignored on the theory that the rise in punishment and the decline in mercy are two sides of the same coin, both outgrowths of the same phenomenon.  That is, the political climate that produces greater punishment must also depress mercy.  While it is true that the political economy of punishment is an important reason for the decline in nullification and clemency that should not be discounted or ignored, it is not a complete explanation.  As this Essay explains, skepticism about jury nullification and executive clemency has its roots in another development as well: the rise of the administrative state and the key concepts of law that have emerged alongside it.

More great (NCAA) sentencing reading from SSRN

A bunch of new pieces on SSRN seem worthy of a weekend look, especially if (when?) your bracket blows up.  Here are the titles and links:

• Against Judgment by Katherine Barnes

• Naïve Cynicism: Maintaining False Perceptions in Policy Debates by Adam Benforado & Jon D. Hanson

• Dialogic Allocution: Deliberative Democracy in Sentencing Law by Felix Valenzuela

Notable new journal with some innovative weekend reading

I just got an e-mail announcing an interesting new journal than would-be criminal justice reformers will want to be sure to check out.  Here is the text of the e-mail with links:

I'm writing to announce the publication of the first issue of the Journal of Court Innovation, a new journal that we have created in collaboration with Pace Law School and the New York State Judicial Institute.

The goal of the Journal is simple: to spark new thinking about how courts work and the role they play in our society. Along the way, we hope to bridge the worlds of theory and practice.  Like most scholarly journals, the Journal of Court Innovation will include in-depth examinations of complicated subjects. But it will also contain shorter pieces describing provocative experiments, interviews with leading thinkers and practitioners, and book reviews that highlight cutting-edge scholarship.

I think our first issue gives you a sense of the rich diversity of content that you can expect from the Journal going forward.  The first issue includes articles about using the Internet to impanel jurors, how to smooth the transition of parolees from prison to the community, and the lessons that can be learned from failed criminal justice reforms.  To subscribe to the Journal or to access articles from the first issue, visit http://www.courtinnovation.org/journal.html

Yet another insightful ivory tower view of modern sentencing realities

The stack of important academic reading for Blakely and Booker fans gets even longer with this new piece now on SSRN authored by Professors Stephanos Bibas and Susan Klein. This article is simply titled "The Sixth Amendment and Criminal Sentencing," and here is the abstract:

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems.  The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally importantly, the opposing sides in this debate have begun to form a stable consensus.  These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

"The Political Economies of Criminal Justice"

The title of this post is the title of this interesting looking article on SSRN.  Here is the abstract:

Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation.  As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems.  Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control.

This essay makes three arguments in response to the idea that society is governed through crime.  First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter.  Second, it analyzes the range of different political dynamics affecting criminal justice — including some beyond the scope of Simon's project — and considers their effects.  Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation.  The institutional realities identified with governing through crime — including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention — draw political support from multiple sources, not all problematic.  This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role.  Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise.  Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration.  That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state.

Culture, democracy and vengeance in modern American justice

I just received a notice about this new book from Cambridge University Press authored by Kenneth Aladjem and titled "The Culture of Vengeance and the Fate of American Justice."  Here is the publisher's teaser for the book:

America is driven by vengeance in Terry Aladjem’s provocative account — a reactive, public anger that is a threat to democratic justice itself.  From the return of the death penalty to the wars on terror and in Iraq, Americans demand retribution and moral certainty; they assert the “rights of victims” and make pronouncements against “evil.”  Yet for Aladjem this dangerously authoritarian turn has its origins in the tradition of liberal justice itself — in theories of punishment that justify inflicting pain and in the punitive practices that result.  Exploring vengeance as the defining problem of our time, Aladjem returns to the theories of Locke, Hegel and Mill.  He engages the ancient Greeks, Nietzsche, Paine and Foucault to challenge liberal assumptions about punishment.  He interrogates American law, capital punishment and images of justice in the media. He envisions a democratic justice that is better able to contain its vengeance.

I wonder if Aladjem has to resort to water-boarding when he was "interrogating" American law, capital punishment and images of justice in the media.

A must-read on the politics of sentencing on a big election day

Just before I head out to vote, I got an e-mail from Stephanos Bibas with this message: "Max Schanzenbach, Emerson Tiller, and I have just completed and submitted for publication the enclosed essay, entitled Policing Politics at Sentencing.  We hope you'll post it to your blog and welcome comments."  Not only will I happily post the essay below, but here is the abstract for ready reader consumption:

ABSTRACT: In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review.  The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.

Download policing_politics_at_sentencing.doc

For a host of reasons, I suspect I may not agree with much of this piece, largely because I fear that the authors may have a far too rosy a view of "appellate review as a check on policy and ideological variations" in the actual operation of the federal sentencing system.  Since the authors have requested comments, I'll here provide a quick two-point take on the basis for my concerns:

1.  Well before Booker, much of the variation in sentencing outcomes resulted from the failure of appellate review to serve as a check on policy and ideological variations.  Congress was forced to enact the Feeney Amendment largely because the (1) federal prosecutors and (2) federal circuits had taken such widely divergent views concerning the application and limits of departure authority when the guidelines were still mandatory.

2.  If appellate review is so obviously a positive good to achieve the sentencing reform goals that Congress seeks and that justice demands, the frequent uses of appeal waivers in plea agreements by the Department of Justice — both before and after Booker — would be extremely suspect and should not be so consistently approved by the very appellate courts that this article champions.  As detailed in this post from 2005, Nancy J. King and Michael O'Neill did some ground-breaking empirical work on appeal waivers in a piece entitled "Appeal Waivers and the Future of Sentencing Policy."  They found that discretionary and disparate use of appeal waivers by prosecutors, and not greater district court discretion, might be the root of many federal sentencing problems.  Disconcertingly, from a quick scan, I do not see any mention of appeal waivers or the King & O'Neill research in this new essay.

I hope to comment further after I read closely more than just the essay's abstract.  In the meantime, I hope others might comment on the piece while I go wait in line in the rain to vote.

A fascinating new blog to watch

Fans of the thoughtful criminal justice writings of Professor Bill Stuntz will want to check out his new blog, Less Than The Least (which is co-authored by David Skeel).  Here is the blog's notable introduction:

We are both law professors and evangelical Protestants — a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.

I always learn so much from Stuntz's articles, though I find most of them a bit too long.  I am very excited to see him now working in a short-form medium.  And this post connecting dots between Michelle Obama and mass incarceration highlights why I am sure I will be linking frequently to this new endeavor:

The last generation, the generation that saw the rise of legally protected civil rights for African Americans, also saw the rise of mass imprisonment of African Americans.  Today, of every 100,000 white men, 471 sleep in prison beds — a record-high number, many times the comparable figure elsewhere in the Western world. Among black men, the analogous number is 3,145. (For the numbers, click here).  Mass imprisonment is the defining fact of life in many black neighborhoods in the United States.  It would hardly surprise if that fact shaped the attitudes black men and women have toward a country that imprisons so many of their fathers and sons, brothers and friends.

I’m a middle-aged white guy and a Republican to boot; I have no special insight here.  But would it really be that surprising if a large fraction of black professionals look at our legal and political systems with a jaundiced eye, given the truly mind-boggling levels of black incarceration we’ve seen over the last twenty years?  Something tells me there are an awful lot of people who, when they read or heard Michelle Obama’s words, thought: she read my mind.

Weekend reading from SSRN

A bunch of new pieces on SSRN seem worthy of a weekend look.  Here are the titles and links:

• Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Jennifer M. Collins

• Experience and Expression: Conversations about Crime, Place and Community by Emily Gray, Stephen Farrall & Jonathan Jackson

• Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination by Christine Neylon & Jonathan J. Darrow

• Unequal Justice by William J. Stuntz

Latest issue of Corrections Today about "Evidence-Based" research and reforms

The latest issue of Corrections Today, which is the professional membership publication of the American Correctional Association, is devoted to "Correctional Research & Evidence-Based Practices."  In this opening commentary, National Institute of Corrections' Chief of Research and Evaluation sets the tone for the issue with this call to action: "We need to shift the center of gravity from the research community toward the practitioner community by focusing on the integration of research and correctional practice."  Here are just a few of the important pieces in this issue:

• When Evidence Is Ignored: Residential Restrictions for Sex Offenders

• Increasing Public Safety and Reducing Spending: Applying a Justice Reinvestment Strategy in Texas and Kansas

• Reducing the Harm: Identifying Appropriate Programming for Low-Risk Offenders

"The Subjective Experience of Punishment"

With thanks to Larry Solum for this pointer, I see Adam Kolber has this new paper on SSRN titled "The Subjective Experience of Punishment".  Here is the abstract:

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.

There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.

Here is Larry Solum's mini-review: "I really enjoyed this fine paper by Kolber, although I am pretty sure I do not accept his argument.  Nonetheless, a compelling read and highly recommended."

Finding "Compassion in Juvenile Sentencing"

Thanks to CDW, I just discovered the new blog Compassion in Juvenile Sentencing.  Here is how the creator has described her new project:

My name is Lisa Kenney and I became aware the number of individuals in my home State of Colorado who had been convicted as juveniles to Life Without the Possibility of Parole (LWOP) when I watched the Frontline documentary, When Kids Get Life.  I was so disturbed by what I’d watched that I began researching the subject of juveniles tried and sentenced as adults.  Based on what I discovered, I believe there are some serious problems with our justice system and with the way we, as a society view the children convicted of serious crimes.  This Weblog is a forum for presenting and discussing articles, rulings and issues related to this subject.

There is a lot of really interesting stuff on this blog, and I found this passage from the latest post especially moving and astute:

When I began writing this blog, I had assumptions about how the judicial system worked, but I never understood how gray so much of what happens is.  The cases that caught my attention are all high profile, highly publicized cases because of the age of the offenders and because of the nature of the crimes.

I’ve learned that the justice system and the laws that govern it can be profoundly impacted by politics, perceived public opionion and of course by the media. I’ve learned that most of those who’ve been locked away as children have been largely forgotten. The lucky ones have one or two people who stand behind them and support them.  The unlucky ones have been forgotten by even their families.

Drug laws, racial attitudes and jurisprudence

Alex Coolman, the lawyer who authors the always interesting Drug Law Blog, has a terrific new post providing the particulars interview with Prof. Doris Marie Provine, author of the book Unequal Under Law: Race in the War on Drugs.  Here are snippets of an interview that should be read in full:

Q: I’m thinking — and this is maybe a counter-example — of the moment you note in your book when Rep. Barney Frank was talking about the crack-powder sentencing disparity. He was being very explicit and saying it was “overwhelmingly, objectively racist,” and he inspired all these outraged responses from other representatives who just thought that was ludicrous and that it couldn’t possibly be.

A: You can’t go that route and create policy change. I think Marc Mauer [the director of the Sentencing Project] is brilliant in the way that he is approaching change. If we talked with Marc, I think his analysis of that disparity would be very similar.  But his approach when he’s dealing with people who aren’t of this persuasion is to address the issue in terms of “efficiency,” “cost,” all these utilitarian concepts. That’s good, because it’s more neutral territory and people can go there and not get so aroused.  But I don’t have Marc’s job.  I have a different job.  My focus in this book was on how race amplifies the fears that mind-altering drugs provoke.

OSJCL Amici launches with four district judges on Gall and Kimbrough

I am very proud to announce that this week the Ohio State Journal of Criminal Law has "officially launched" a new scholarly project: an on-line companion website that will publish commentaries from practitioners on cutting-edge criminal law. As explained here, OSJCL Amici: Views from the Field, in aspires to "help bridge divide between the academy and the practicing community by creating a venue for leading practitioners to engage with academics, students, the public, and others in the criminal law field."

The official launch includes publication of original commentaries by four district judges discussing federal sentencing after last month's Gall and Kimbrough rulings:

• Judge Richard Kopf of the District of Nebraska takes a Letterman-esque “Top Ten” view of the sentencing world as interpreted by Supreme Court decisions.
• Judge Gerard Lynch of the Southern District of New York emphasizes the “guideline” nature of the Sentencing Guidelines.
• Judge Lynn Adelman and law clerk Jon Deitrich of the Eastern District of Wisconsin, ask us to “curb our enthusiasm” for the twin decisions, which—they argue—do not go quite far enough.
• Judge Nancy Gertner of the District of Massachusetts identifies both the apparent blessings and the less-obvious dangers of the Court’s holdings.

Future on-line commentaries will come from practicing lawyers as well as judges, and we expect to cover a diverse range of topics at OSJCL Amici.  A lot of effort has gone into creating a distinctive on-line companion to OSJCL; I hope many folks (especially legal practitioners) will check out the first offering of essays and will share feedback on both the substance and style of this new endeavor.

Intriguing new paper thinking about what we think about punishment

This interesting looking paper, titled "Rethinking Retributivist Thought Experiments: An Abolitionist Critique," recently showed up on SSRN. Here is the abstract:

Retributivist arguments often employ thought experiments meant to elicit various responses from us — materials with which, it is hoped, compelling arguments for punishment can be constructed. Many think that these experiments help make a prima facie case for punishment, that they highlight reasons that speak unequivocally, if not decisively, in punishment's favor.  Retributivist use of these experiments has gone insufficiently challenged. I plan to turn the tables on the retributivist.  These experiments do not highlight reasons for punishment. In fact, examination of these experiments and arguments that have employed them can help emphasize the strength of Abolitionism, the view that punishment is unjustified.  I will show how these experiments have been and can be mishandled and what insights can be taken from them once we identify the errors that have plagued their use. Retributivist arguments employing these experiments suffer from a variety of problems.  They rely on dubious and ambiguous claims about the nature and content of the responses elicited by the experiments, misconstrue the moral import of some of the responses, and insufficiently question mistaken assumptions that influence the responses.

Long weekend reading from SSRN

Two new pieces on SSRN are worthy of a long look over a long weekend.  Here are the links and the starts of the abstracts:

• The Lost Meaning of the Jury Trial Right by Laura I. Appleman

ABSTRACT: The time has come to reevaluate the origins and historical meaning of the criminal jury trial right. The Supreme Court's most recent sentencing reforms have reaffirmed the role of the jury trial right in criminal justice, relying on the jury's historical and constitutional origins as reasons why juries must determine all aspects of punishment. Based on these reforms and the Court's underlying jurisprudence, it may be time to share the criminal jury trial right with the people, restoring some of its lost connotations. Doing so will ensure not only a proper fidelity to both the Constitution and the common law, but also a more engaged and effective use of criminal punishment in sentencing....

• Ordinal Proportionality in Punishment: A Case against Capital Punishment for Child Rape Under the Eighth Amendment by Issa Kohler-Hausmann

ABSTRACT: This article argues that various theories of justice in punishment adhere to a principle of ordinal proportionality — relative grading of penalties in measure to the relative severity of the crimes for which they are imposed. Ordinal proportionality is a demand of both deterrence and retributive theories of justice; in addition it is a tenet well entrenched in the Supreme Court's current Eighth Amendment jurisprudence. Under this principle the state cannot subject the crime of child rape to capital punishment because even a crime as horrendous as rape is not on par with murder in terms of harm and blameworthiness.

Intuitions, institutions and sentencing reform

I have a gut feeling that this new article from by Paul Robinson and John Darley, entitled "Intuitions of Justice: Implications for Criminal Law and Justice Policy," is a very important read for anyone seriously interested in sentencing reform.  Here is the start of the abstract:

Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective.  While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies.  This Article explores the serious implications of this reality for criminal law and criminal policy.

When discussing the challenges of transforming criminal justice institutions, this article echoes some of the themes I developed in this recent article entitled "Rita, Reasoned Sentencing, and Resistance to Change."

More great holiday reading from SSRN

Just in time for ringing out 2007, a bunch of new papers are now up at SSRN and should make great holiday reading for criminal justice fans:

• Not Wiser after 35 Years of Contemplating the Death Penalty by Leigh Buchanan Bienen

• New Evidence on the Monetary Value of Saving a High Risk Youth by Mark A. Cohen & Alex R. Piquero

• Respect and Resistance in Punishment Theory by Alice Ristroph

• Dead Wrong by Ronald F. Wright & Marc L. Miller

Notable sentencing commentaries

Thanks to How Appealing, I saw these two new notable commentaries on recent sentencing developments:

• From James Kilpatrick here discussing the Supreme Court's work in Gall, "The Score was Justice 7, Law 2"

• From the New York Times here discussing Texas's 2007 execution record, "State Without Pity"

Some fitting Eighth Amendment weekend reading

With folks gearing up for the Baze lethal injection case and with a fascinating new cert petition involving a challenge to a 12-year-old killer getting a 30-year mandatory sentence (details here and here), it is perhaps fitting than an Eighth Amendment article catches my eye before I call it a week.  Now available here from the University of Pennsylvania Law Review is Youngjae Lee's article entitled "International Consensus as Persuasive Authority in the Eighth Amendment."  Here is the abstract:

This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context.  First, this Article examines whether meaningful conclusions about one’s desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals.  Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral.  This Article concludes from this discussion that so long as the Supreme Court stays with what this Article calls the “norm-centric analysis” in consulting foreign sources, the existence of an international consensus on a penal practice should not lead us to lean one way or the other about its constitutionality under the Eighth Amendment. This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse.  This Article ends by exploring both broader implications and limits of arguments made in this Article for the judicial borrowing debate.

Interesting sentencing commentaries from Tennessee

For whatever reason, my Google news searches keep waltzing toward pieces from Tennessee.  This morning, these two interesting op-eds from a Memphis paper caught my eye:

• Stuffing crowded prisons isn't keeping us safe

• Death penalty's flaws embody a capitol crime

Once around the blogosphere

Not suprisingly, with so much sentencing action this week, the legal blogosphere is full of interesting posts:

• At SCOTUSblog, Frank Bowman has this pitch perfect Rashomonian assessment of Gall and Kimbrough from three perspectives

• At TalkLeft, check out this post, "Pending Mandatory Minimum Sentence Reduction Bills"

• At WSJ Law Blog, check out this post, "The Curious Case of Conrad’s Correctional Facility"

• At White Collar Crime Prof, check out this post, "Fraud Without Loss in the Reyes Case"

Weekend reading on "Restoring Ideals of Humane Punishment"

This week included new prison statistics, a new report on racial disparities in incarceration, and Hillary Clinton's stunningly disappointing opposition to greater sentencing justice (details here and here).  Against that backdrop, I am pleased to take home to read this new piece by Eva Nilson just appearing on SSRN, entitled "Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse."  Here's the abstract:

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment.  Unfortunately, the U.S. Supreme Court's response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases.  Absent from the discourse is any acknowledgment of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be.  The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.

This Article seeks to present that case.  Part I demonstrates that sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass.  The second part explains how the Court's narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the Article suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.

Commentary on the end of innocence in the federal system

With apologies to Don Henley, the commentary referenced here comes from PENNumbra as part of its featured November responses to Ronald Wright's great article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005).  And here is the impressive set of responders with links to their pieces:

• American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman, III

• What's Good About Trials? by Michael M. O'Hear

• Judging Untried Cases by Daniel Richman

Latest FSR issue on "Learning from Libby"

I am pleased to report that, just in time for the holiday clemency season, the latest issue of the Federal Sentencing Reporter examining the Libby commutation has gone to press. The opening commentary to this FSR issue, which I co-authored FSR fellow Aly White, is entitled "Looking at the Libby Case from a Sentencing Perspective" and can be downloaded below. 

The full contents of this latest FSR issue are listed below and should be accessible electronically here very soon. The Federal Sentencing Reporter can be ordered on-line here.

EDITORS' OBSERVATIONS

• Douglas A. Berman & Alyson S. White, Looking at the Libby Case from a Sentencing Perspective [Available here: Download 20.1 Ed Obs.pdf]

ARTICLES

• Margaret Colgate Love, Reinventing the President’s Pardon Power
• Molly M. Gill, Into the Bottomless Black Box: The Prisoner’s Perspective on the Commutation Process
• Keith Heidmann, Can I Get What Lewis Libby Got?
• Stephanos Bibas, Rita v. United States Leaves More Open Than it Answers

PRIMARY MATERIALS

• Sentencing Memoranda Submitted in US v. I. Lewis Libby
• Statement by the President on Executive Clemency for Lewis Libby
• Testimony before House Judiciary Committee on Libby Commutation
• Post-Clemency Sentencing Ruling by Judge Walton in US v. I. Lewis Libby
• US Sentencing Commission Research Memorandum, Analysis of the Impact of the Crack Cocaine Amendment if Made Retroactive

Great recent commentary on federal criminal justice issues

I am consistently impressed with the columns on criminal justice issues done by Debra Saunders of the San Francisco Chronicle (though I am surprised she is described on the paper's website as someone who provides "op-ed commentary with a conservative edge").  And thanks to a helpful colleague, I see that Saunders has authored these three strong pieces on federal criminal justice issues recently:

• "Free Clarence Aaron" (about an overpunished federal defendant meriting clemency)

• "Willie Horton 2008" (on the politics of crime and punishment in the presidential campaign)

• "Federal prosecutors on steroids" (on the Barry Bonds indictment)

SCOTUS issue of Harvard Law Review covers all the sentencing cases

The November issue of the Harvard Law Review is always dedicated to a review of the past Supreme Court Term, and the full contents are now available online here.  I was pleased to see that just about every sentencing ruling from the past SCOTUS Term gets discussed in the student commentary, and here is some of what you can find in the august HLR pages:

• Sixth Amendment — Allocation of Factfinding in Sentencing: Cunningham v. California
• Sixth Amendment — Federal Sentencing Guidelines — Presumption of Reasonableness: Rita v. United States
• Armed Career Criminal Act — Definition of "Violent Felony": James v. United States
• Eighth Amendment — Death Penalty — Execution of the Presently Incompetent: Panetti v. Quarterman
• Sixth Amendment — Death Qualification Decisions: Uttecht v. Brown
• Sixth Amendment — Ineffective Assistance of Counsel: Schriro v. Landrigan
• Eighth Amendment — Death Penalty — Consideration of Mitigating Evidence: Abdul-Kabir v. Quarterman; Brewer v. Quarterman

Some great (non-capital) holiday reading

As noted in posts here and here, there are plenty of new capital punishment articles to keep one busy this holiday week.  But, if you are interested in avoid death while in a thankful mood, here are two new pieces addressing other sentencing -related issues on SSRN that are also worth downloading:

• Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction by Brian Johnson

Abstract: Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at le