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

Sunday, January 19, 2014

Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing

FsrFor reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage.  Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:

The Current State of White-Collar Sentencing 

Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013). 

Friday, January 24, 2014 
Registration and Breakfast: 8:00 a.m. - 8:30 a.m. 
Program: 8:30 a.m. - 11:30 a.m. 

Proskauer 
Eleven Times Square (41st Street and 8th Avenue) 
New York, NY 10036
Register here

Program:
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing.  This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures.  Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:

January 19, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, White-collar sentencing | Permalink | Comments (0) | TrackBack

Thursday, January 16, 2014

"If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment"

The title of this post is the title of this new paper by Kenneth Einar Himma now available via SSRN. Here is the abstract:

Thomas Nagel argues that the pervasive role that luck plays in conditioning behavior seems inconsistent with ordinary views about moral accountability and culpability.  As many criminal justice practices seem to rely on these ordinary views, the pervasiveness of luck also seems inconsistent with the legitimacy of a number of criminal law practices.  For example, the claim that people do not have direct control over the consequences of their acts and hence that the consequences of an act are conditioned by luck calls into question the legitimacy of the traditional practice of punishing unsuccessful attempts less severely than successful attempts; if the only difference between a successful and unsuccessful attempt is a matter of luck, then there can be no difference, other things being equal, in culpability between the two.

In this essay, I argue that the pervasive role that luck plays in conditioning a person’s acts calls into question the viability of retributivist justifications of punishment, which hold that punishment is justified insofar as deserved.  A person is not culpable or deserving of punishment, according to ordinary views, for events beyond her control.  But if the factors conditioning an agent’s act are all matters of luck beyond the agent’s control, then she is not deserving of punishment for the act.  The pervasiveness of such luck seems inconsistent with retributivism and threatens not only differential punishment for successful and unsuccessful attempts.  More significantly, it calls into question the very legitimacy of punishment itself.  The problem of luck goes well beyond its implications for the law of attempts.

January 16, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1) | TrackBack

Wednesday, January 08, 2014

Seeking input on "must-teach" units as I start a new version of my Sentencing Law course

CasebookI am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course.  I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines.  Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course. 

As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years.  Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.  

Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring.  But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate.  The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.

Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester.  Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics.  But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.

So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course.   Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.

Cross-posted at PrawfBlawg

January 8, 2014 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

Sunday, January 05, 2014

"The Punishment Imperative The Rise and Failure of Mass Incarceration in America"

9780814717196_FullThe title of this post is the title of this notable new book published by NYU Press authored by Todd R. Clear and Natasha A. Frost.  Here is the book's description from the NYU Press site:

“Backed up by the best science, Todd Clear and Natasha Frost make a compelling case for why the nation’s forty-year embrace of the punitive spirit has been morally bankrupt and endangered public safety. But this is far more than an exposé of correctional failure. Recognizing that a policy turning point is at hand, Clear and Frost provide a practical blueprint for choosing a different correctional future — counsel that is wise and should be widely followed.” — Francis T. Cullen, Distinguished Research Professor of Criminal Justice, University of Cincinnati

Over the last 35 years, the US penal system has grown at a rate unprecedented in US history — five times larger than in the past and grossly out of scale with the rest of the world.  This growth was part of a sustained and intentional effort to “get tough” on crime, and characterizes a time when no policy options were acceptable save for those that increased penalties.  In The Punishment Imperative, eminent criminologists Todd R. Clear and Natasha A. Frost argue that America’s move to mass incarceration from the 1960s to the early 2000s was more than just a response to crime or a collection of policies adopted in isolation; it was a grand social experiment.  Tracing a wide array of trends related to the criminal justice system, The Punishment Imperative charts the rise of penal severity in America and speculates that a variety of forces — fiscal, political, and evidentiary — have finally come together to bring this great social experiment to an end.

Clear and Frost stress that while the doubling of the crime rate in the late 1960s represented one of the most pressing social problems at the time, this is not what served as a foundation for the great punishment experiment.  Rather, it was the way crime posed a political problem — and thereby offered a political opportunity — that became the basis for the great rise in punishment.  The authors claim that the punishment imperativeis a particularly insidious social experiment because the actual goal was never articulated, the full array of consequences was never considered, and the momentum built even as the forces driving the policy shifts diminished.  Clear and Frost argue that the public’s growing realization that the severe policies themselves, not growing crime rates, were the main cause of increased incarceration eventually led to a surge of interest in taking a more rehabilitative, pragmatic, and cooperative approach to dealing with criminal offenders.

The Punishment Imperative cautions that the legacy of the grand experiment of the past forty years will be difficult to escape.  However, the authors suggest that the United States now stands at the threshold of a new era in penal policy, and they offer several practical and pragmatic policy solutions to changing the criminal justice system’s approach to punishment.  Part historical study, part forward-looking policy analysis, The Punishment Imperative is a compelling study of a generation of crime and punishment in America.

January 5, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Sunday, December 15, 2013

In praise of sentencing and drug war coverage at The Atlantic and Reason.com

Thanks especially to columnists like Andrew Cohen and Jacob Sullum, sentencing fans need to make sure to make regular visits to The Atlantic and Reason.com.  Below I provide just a sampling of what has appeared in these spaces over the last week.

From The Atlantic:

From Reason.com:

December 15, 2013 in Death Penalty Reforms, Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Monday, November 25, 2013

New Brennan Center report urges "Reforming Funding to Reduce Mass Incarceration"

REFORM_FUND_MASS_INCARC_v6_Page_01As reported in this press release, late last week The Brennan Center for Justice published a notable new report setting out a notable new proposal under the title "Reforming Funding to Reduce Mass Incarceration." Here are highlights via the press release:

The proposal, dubbed by the authors “Success-Oriented Funding,” would recast the federal government’s $352 million Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by changing the measures used to determine success of its grants. It reflects a broader proposed shift in criminal justice programs at all levels of government. The proposal could be implemented without legislation by the U.S. Department of Justice.

“Funding what works and demanding success is critical, especially given the stakes in criminal justice policy. This report marks an important step toward implementing this funding approach in Washington and beyond,” said Peter Orszag, former Director of the White House Office of Management and Budget, who wrote the proposal’s foreword.

The Center proposes major changes to the program’s “performance measures”, which are used to track a grant recipient’s use of the funds....

“What gets measured gets done,” said Inimai Chettiar, director of the Justice Program at the Brennan Center and one of the report’s authors. “Criminal justice funding should reflect what works. Too often, today, it is on autopilot. This proposal reflects an innovative new wave of law enforcement priorities that already have begun to transform policy. That is the way to keep streets safe, while reducing mass incarceration.”

Success-Oriented Funding would hold grant recipients accountable for what they do with the money they receive. By implementing direct links between funding and proven results, the government can ensure the criminal justice system is achieving goals while not increasing unintended social costs or widening the pipeline to prison.

The JAG program was launched nearly three decades ago at the height of the crime wave. As such, its performance measures center on questions about the quantity of arrests and prosecutions. Although funding levels are not based on rates of arrests and prosecutions, interviews with over 100 state and local officials and recipients found that many grant recipients interpreted the performance measure questions as indicating how they should focus their activity.

The Brennan Center’s new, more robust performance measures would better record how effective grant recipients are at reducing crime in their state or locality. For example, current volume-based performance measures record activity, such as total number of arrests, number of people charged with gun crimes, or number of cases prosecuted. The Brennan Center’s proposed new Success-Oriented performance measures record results, such as the increase or decrease in violent crime rate or what percentage of violent crime arrests resulted in convictions.

A Blue Ribbon Panel of criminal justice experts also provided guidance and comments on the measures, including leaders in law enforcement, prosecutors and public defenders, former government officials, and federal grant recipients. Participants included David LaBahn, president of the Association of Prosecuting Attorneys; John Firman, research director of the International Association of Chiefs of Police; and Jerry Madden, a senior fellow at Right on Crime....

In addition to implementing new metrics, the Brennan Center recommends the Justice Department require grant recipients to submit reports. By mandating that grant recipients answer the questions, the Justice Department can align state and local practices with modern criminal justice priorities of reducing both crime and mass incarceration. The reported data should then be publicly available for further analysis.

The full Brennan Center report can be accessed at this link.

November 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, October 23, 2013

Lots of newly published sentencing-related scholarhip worth checking out

Thanks to the always helpful Concurring Opinions and its compilation of of law review contents, I now see a whole bunch of recently published articles that I am adding to my (always growing) pile of sentencing-related scholarship reading list:

October 23, 2013 in Recommended reading | Permalink | Comments (2) | TrackBack

Monday, October 14, 2013

In praise of student-assembled reading lists for law school seminars

I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars.  Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics.  I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.

I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise.  I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles). 

Cross-posted at PrawfsBlawg.

October 14, 2013 in On blogging, Preparing for pot professing, Recommended reading | Permalink | Comments (0) | TrackBack

Thursday, October 10, 2013

Please welcome (and often visit) the new Civil Rights Law & Policy Blog

It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside.  Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:

CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues.  CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy.  Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.

CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law.  In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry.  Visitors are encouraged to visit CRL&P’s resource page.

CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.

Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.”  Submissions should be sent here.

The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law.  Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).

I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog.  Indeed, here are just a small sampling of the many interesting posts one will find at that space already:

October 10, 2013 in Collateral consequences, On blogging, Recommended reading | Permalink | Comments (9) | TrackBack

Tuesday, August 27, 2013

In praise of the US Sentencing Commission's new "Quick Facts" series

I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications.  This posting from the USSC's webpage explains:

NEW Quick Facts Publication Series Launched

The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.

I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:

August 27, 2013 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, August 14, 2013

Lots of (mostly positive) reactions to AG Holder's big sentencing speech

In the last 48 hours, I have seen lots and lots of notable reactions and commentary in the wake of Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms.  Nearly all have been relatively positive, and I believe I have seen more expressions of concern that AG Holder did not go far enough than that he went too far in urging criminal justice reforms and in changing some DOJ policies.  Here is a sampling of some of the more high-profile and/or substantial discussions I have seen:

UPDATE:  I put together this op-ed for the Los Angeles Times explaining my basic reactions to the Attorney General speech and the paper gave it this title: "Atty. Gen. Holder plays catch-up on criminal justice: He should do more to seize the sentencing reform moment." Here is how it concludes:

Before a new course can be set, the criminal justice ship has to navigate away from the old "get-tough" course, and that won't be easy.  So it's perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them.  But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn't wait too long before sailing full speed ahead.

August 14, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, April 24, 2013

Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"

I am not at all surprised that, less than two months after coming on-line, U.S. District Court Judge Richard Kopf's his notable blog, "Hercules and the Umpire," is now a regular must-read.  Here are just a few April posts by Judge Kopf on topics that should greatly interest sentencing fans, sequester watchers and so many others: 

On sentencing:

On sequester realities:

On other stuff:

There is so much worth of attention in these (and other) posts by Judge kopf, but I want to close this post with excerpts from yesterday's post warning Congress about the impact of sequester:

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days. Here is the missive received today from our Clerk’s office:...

The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates ...[when that office] will be furloughed....

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD. If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations. I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished. If a banana republic is what members of Congress want, I may help them get it.

April 24, 2013 in Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, April 22, 2013

Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world

Lcp1I am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere.  And all of the article look like must reads for sentencing geeks like me.  The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world.  While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.

The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines.  For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors?  Should the guidelines bear some of the responsibility for the surge in prison population in the United States?  Has the lack of guidelines helped Germany constrain its prison population?  Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing?  And how should guidelines be structured?...

The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011.  The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research.  The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones.  It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.

April 22, 2013 in Federal Sentencing Guidelines, Recommended reading, Sentencing around the world, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Sunday, March 31, 2013

Two notable (and notably distinct) new capital punishment papers

I tend not to read most of the (voluminous) academic commentary about the death penalty because they usually build to the same type of abolition-oriented conclusions.  But appearing on SSRN in the the past few weeks are these two different kinds of discussions of the death penalty:

The Case Against the Case Against the Death Penalty by Chad Flanders:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders.  This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment.  The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty.  Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general.

Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

The Death Penalty Spectacle by Tung Yin:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.” On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).

There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?

March 31, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, March 20, 2013

Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"

31-cEIG37XL._SL500_AA300_Especially because early Thursday morning I am heading out on a muti-day trip (involving both work and play) that will lessen my blogging opportunities, I am very pleased to be able to welcome Professor Alex Kreit as a guest-blogger to discuss his new casebook, Controlled Substances: Crime, Regulation, and Policy.  I plan to teach a new seminar from this new text (which I will discuss in this space in a few weeks), and I am eager to hear all that Alex has to say about his work and work-product. And here are his first comments:

Thanks so much to Doug Berman for giving the opportunity to blog about my recently published casebook, Controlled Substances: Crime, Regulation, and Policy.   I plan to do a short series of posts on about the book and about teaching law school courses on drug law and policy.

I don’t think it would be an exaggeration to say that no development has had a bigger impact on our criminal justice system over the past four decades than the war on drugs. The drug war has been a driving factor in the explosion in our prison population, with drug offenders accounting for about one fifth of our nation’s prisoners.  Our drug laws have also had significant impacts on a range of other issues, from the nature of policing to race and the criminal justice system.  Yet, while modern drug laws have dramatically changed our criminal justice system, they have been strangely absent from the curriculum at most law schools.  Every criminal law casebook devotes significant coverage to homicide and property crimes, but only a handful — at most — include a chapter or section on drug offenses.  Though criminal procedure courses are filled with drug cases, this is only because so many leading Fourth, Fifth, and Sixth Amendment decisions happened to involve drug investigations; not because drug law or policy is a special point of concern in criminal procedure courses.  Likewise, only a small fraction of law schools currently offer a seminar on drug law and policy.

Indeed, at most law schools today, a student could take every single criminal law-related offering without studying drug law and policy.

Why is this?   I must confess that, despite giving the question a lot of thought during my book project, I’m still not quite sure.   I suspect — and hope — that a lack of prepared materials may be partly to blame.   To my knowledge, before the publication of my new book, the last casebook dedicated to drug abuse and the law was published in 1983 (Gerald F. Uelmen and Victor G. Haddox’s Drug Abuse and the Law.)

Whatever the reason for the inattention to drug laws, teachers and students alike have been the poorer for their absence from law schools.  A course on controlled substances provides a uniquely rich mix of complex legal and policy problems.   A close look at the law of drug crimes reveals unusually tough challenges for how to define, prove, and grade criminal conduct.  The enforcement of drug laws, meanwhile, provides an ideal vehicle for studying a number of important issues often overlooked in law classes like prosecutorial discretion, the use of informants in modern policing, and racial profiling.   Drug prohibition also presents one of the most difficult tests for the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be crimes.  Many theorists and policy analysts, however, believe that drug criminalization is unjust or unworkable.

From beginning to end, drug law and policy provides an intellectually engaging experience. Students who plan on becoming prosecutors or defense attorneys will learn about an area of the law that will inevitably occupy a large percentage of their practice.   Others will enjoy engaging with fascinating theoretical and policy problems.  And, with marijuana legalization now the law in two states and quickly shifting political views on the drug war generally, students have a real enthusiasm and interest in taking and learning about this subject.

The absence of a casebook in the field led me to write my book, which I hope will help contribute to seeing the subject taught in more law schools.   In upcoming posts, I plan to talk a bit more about some of the different issues that can be taught using my book, designing a drug law course, and more.

One last note for now: If you think you might be interested in teaching a course on controlled substances yourself — whether you are a full-time professor or a practicing attorney — please feel free to contact me directly any time.  I’d be happy to provide additional information like sample syllabi and, for prospective adjuncts, advice on how to submit a course proposal.

March 20, 2013 in Guest blogging by Professor Alex Kreit, Recommended reading | Permalink | Comments (5) | TrackBack

Monday, February 25, 2013

Another notable sign of our modern legal on-line times (and a suggestion)

Gannett HouseVia the always timely How Appealing, I came across this new Harvard Crimson piece headlined "Harvard Law Review Increases Online Presence." Here is the heart of the report:

The Harvard Law Review will more than double the number of editors focusing on online content for the publication next year in an effort to expand its web presence.

Increasing the online staff from two to five, these new editors will join the Forum Committee, which is responsible for developing the website and editing the material published online.  In the next year, the Law Review hopes to enhance the functionality and design of its website in addition to increasing the quantity of published content, according to second-year Law School student Gillian S. Grossman ’10, the recently elected president who will lead 127th Volume of the organization....

The majority of returning editors voted to add two additional students to this year’s pool of rising editors in order to expand the online content while maintaining the quality of the current print operations, according to Grossman.

The Law Review will also grow the amount of material published online in an effort to increase the resources available for scholarly research.  “The Law Review recognizes that legal conversations and legal scholarship are taking place online in addition to print mediums,” Grossman wrote in an email.  “The Law Review’s Forum provides a platform for authors to engage with the articles we publish in our print issues and to engage with current legal developments through various forms of online scholarship.”

In line with this mission, the Law Review began publishing its print materials online in 2006.  The organization also created a “Forum” section on its website where contributors can write exclusively online content.  In the past, these articles have come in the form of “Responses,” approximately 2,500 word pieces written in response to articles published in the print journal.  With the new push towards expanding the Law Review’s web presence, the “Forum” will also begin publishing “Reactions,” shorter pieces commenting on recent developments in the law, as well as other scholarly essays.

I am always quite pleased to see any and all efforts from the folks at Gannett House to continue to innovate with the form and function of modern legal scholarship.  And, ever eager to encourage my favorite kinds of engagement "with current legal developments through various forms of online scholarship," I will make one big suggestion for the new HLR leaders: try to use the new on-line spaces to try to cover much more state "developments in the law" both legislative and judicial (and, to make me really giddy, give special attention to state criminal justice developments).

February 25, 2013 in On blogging, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 24, 2013

"Two Moral Mistakes in the American Criminal Justice System"

The title of this post is the title of this notable book chapter by Eric Blumenson now available via SSRN. Here is the abstract:

A state’s criminal justice system must serve two masters: it must protect the security of persons and property, and it must respect the liberties of the people.  It is bound by both duties and must strike the morally correct balance between them. In this paper, I discuss some principles that I believe must be elements in that balance.  I defend these principles as a necessary part of any effective, liberty-respecting criminal justice system; describe the extreme departure from those principles in the United States; and note some recent interest in reforms that, should they take root, could mark the beginning of an American transition towards a safer, less incarcerated and more liberty-affirming country.

February 24, 2013 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Tuesday, February 19, 2013

"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change.  In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors.  The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years.  But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment.  The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice.  Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure.  Kimbrough authorized policy-based variances.  Gall instructed courts how to apply the advisory Guidelines in individual cases.  But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized.  The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences.  Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall.  Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations.  The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves.  When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime.  Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved.  The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion.  The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

February 19, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Saturday, February 16, 2013

"Stakeholder Sentencing" from book exploring the import of public opinion on penal theory

I was intrigued and pleased to see this new paper on SSRN by UK scholar Thom Brooks, which is to be part of a forthcoming book exploring important (and under-theorized) topics concerning public opinion and sentencing policies. The forthcoming book is titled Popular Punishment: On the Normative Significance of Public Opinion for Penal Theory, and here is the abstract for the "Stakeholder Sentencing" chapter:

Recent years have witnessed increasing interest in how to provide new avenues for incorporating a greater public voice in sentencing. This development is the product of a widely perceived growing crisis concerning the lack of public confidence in sentencing decisions.  One important factor is negative media headlines that draw attention to cases that contribute to feeding a culture of sentencing disapproval by the public where punishments are believed to be undeservedly lenient.  A second factor is the recognition that victims should have greater involvement in the criminal justice system, including sentencing decisions.  But how might we improve public confidence and provide a greater voice for victims without sacrificing criminal justice in favour of mob rule?

These developments concerning the relation of public opinion and punishment raise several fundamental concerns.  How much voice, if any, should the public have regarding sentencing decisions?  Which institutional frameworks should be constructed to better incorporate public opinion without betraying our support for important penal principles and support for justice?

This chapter accepts the need to improve public confidence about sentencing through improving avenues for the public to posses a greater and better informed voice about sentencing decisions within clear parameters of justice.  I will defend the idea of stakeholder sentencing: those who have a stake in penal outcomes should determine how they are decided.  This idea supports an extension of restorative justice I will call punitive restoration where the achievement of restoration may include a more punitive element, including imprisonment.  My argument is that the idea of stakeholder sentencing offers a compelling view about public opinion might be better incorporated into sentencing that promotes a coherent and unified account of how punishment might pursue multiple penal goals, including improving public confidence in sentencing.

February 16, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 16, 2013

"Punishment Without Culpability"

The title of this post is the title of this notable new paper on SSRN by Professor John Stinneford, which ought to be of special interest both to those who think of themselves as criminal justice "originalists" and to those eager for reform of strict liability elements of modern criminal law.  Here is the abstract:

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.

This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.

January 16, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (6) | TrackBack

Thursday, January 10, 2013

"Anchoring the Sentencing Scale: A Modest Proposal"

The title of this post is the title of this interesting article I came across via SSRN, which covers a sentencing issue that I think gets far too little attention given its practical importance.  The piece is authored by Richard Lippke, and here is the abstract:

This paper proposes a partial solution to the anchoring problem in sentencing theory.  After explaining the problem and the importance of a solution to it, I advance what I term the “commensurate harms principle,” according to which the losses and deprivations imposed on convicted offenders as punishment should be kept commensurate with the standard harms their crimes cause victims.  The principle is defended as an aid to setting sentences for core criminal offense types rather than tokens.

Intelligent application of the principle requires us to gain an informed understanding of both the harms caused by crimes and the harms done by criminal sanctions, particularly imprisonment.  The principle is grounded in a justification of legal punishment that involves censure and equalizing hard treatment.  Various objections to the principle are addressed, including claims that victim and penal harms cannot be compared and that the harms produced by crimes and criminal sanctions extend beyond victims and offenders.  I contend that the commensurate harms principle would counsel the sparing use of imprisonment and with many, though not all offense types, support less harsh sentences than are the norm in many countries.

January 10, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1) | TrackBack

Monday, December 31, 2012

"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"

I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions.  And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement.  In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum.  In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry.  This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance.  The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt.  Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost.  And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease.  This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant.  Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system.  In these situations, the criminal justice system becomes a negative sum game.  Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally.  Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

December 31, 2012 in Recommended reading, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, December 26, 2012

"Putting Desert in Its Place"

The title of this post is the title of this intriguing new paper by Christopher Slobogin and Lauren Brinkley-Rubinstein now available via SSRN.  Here is the aabstract:

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.”  The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation.

This Article describes seven original studies that test the most important hypotheses underlying empirical desert theory.  The authors’ conclusions, which throw doubt on much of empirical desert theory, include the following: (1) while consensus on the ordinal ranking of traditional crimes is relatively strong, agreement about appropriate punishments — which arguably is the type of agreement empirical desert requires in order to work — is weak; (2) the relationship between people’s willingness to abide by the law and the law’s congruence with their beliefs about appropriate punishment is complex and not necessarily positive; further, any noncompliance that results from the law’s failure to reflect lay views about desert is probably no greater than the noncompliance triggered by a failure to follow lay views about the role utilitarian goals should play in fashioning criminal dispositions; (3) while the relative crime control benefits of a desert-based system and a prevention-based system are hard to evaluate (and are not directly examined here), people are willing to depart from desert in cases that do not involve the most serious crimes if they believe that preventive goals can be achieved in some other way.  The Article ends by discussing the implications of these findings for criminal justice policy, especially with respect to determinate and indeterminate sentencing.

December 26, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, December 23, 2012

"The Presumption of Punishment"

The title of this post is the title of this interesting-looking new piece by Shima Baradaran which is now up on SSRN. Here is the abstract:

The presumption of innocence undergirds the American criminal justice system.  It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial.  An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day.

Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications.  First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial.  Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial.  These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing.  Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.

December 23, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (9) | TrackBack

Saturday, December 22, 2012

Latest OSJCL issue with "McClesky at 25" symposium now available on-line

As noted in this prior prior post, the Fall 2012 issue of the Ohio State Journal of Criminal Law has a lead symposium focused on "McClesky at 25."  The whole issue is now available on line at this link, and here are all the articles in the symposium:

McClesky at 25 OSJCL Symposium Articles:

December 22, 2012 in Death Penalty Reforms, Race, Class, and Gender, Recommended reading | Permalink | Comments (28) | TrackBack

Tuesday, December 18, 2012

The Crime Report lists "Ten Most Significant Criminal Justice Stories of 2012"

I always enjoy end-of-the-year Top 10 lists, especially when they deal with matters of crime and punishment.  Consequently, I was both excited and intrigued by this lengthy new piece at The Crime Report titled "The Ten Most Significant Criminal Justice Stories of 2012." Here is the set-up to the list, followed by the Top 10 (click through to see discussion of each item on the list):

Even in a year marked by heart-wrenching tragedy, we believe it’s important not to lose sight of  developments in criminal justice that promise to improve the lives of millions of Americans — and even make us safer — as we enter 2013.

For our second annual ”Top Ten” list, The Crime Report asked readers, contributors  and columnists to join us in nominating the stories and issues they believe have had the most significant impact during 2012 — and will bear watching over the next year.

We won’t pretend the list is definitive.  And perhaps, in a reflection of the kind of year it has been, not all the choices represent “positive” impacts. 

But as we’ve also noted this year, criminal justice appears to be one of the few areas of our national life where there is broad bipartisan agreement on the shape of an agenda for change.

That’s worth celebrating in 2012.

Later this week, we’ll be running the second part of our annual feature: the top policymakers or newsmakers in criminal justice during 2012....

THE 2012 TOP TEN

1. Supreme Court LWOP decision in Miller v Alabama: progress on Juvenile Justice...

2. Passage of Marijuana Legislation in Washington and Colorado...

3. The Connecticut School Shootings and Mass Gun Violence...

4. Trayvon Martin and the intensifying conflict over gun control... 

5. Social Impact Bonds and DOJ’s “Investment in Innovation”...

6. Three Strikes Reform in California...

7. Camden (NJ) fires its cops...

8. Connecticut and Capital Punishment... 

9. Prison-to-College Pipeline...

10. Pro Bono Requirement for New York Bar...

I personally think #2 on this list is a MUCH bigger deal than anything else on this list. Also, I think the rejection by Californian voters of the effort to repeal the state's death penalty via ballot initiative should be high on this list. And I would love to hear from readers their views on what they think is wrong (or right) about this Top 10 list (which may inform my own end-of-year sentencing law and policy list in the weeks ahead).

December 18, 2012 in Recap posts, Recommended reading | Permalink | Comments (5) | TrackBack

Saturday, December 15, 2012

"Peeking Behind the Plea Bargaining Process"

The title of this post is the title of this new paper by Laurie Levenson now available via SSRN.  Here is the abstract:

The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors.  This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.

December 15, 2012 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, December 10, 2012

"Foreword: Criminal Justice Responses to the Economic Crisis"

The title of this post is the title of this SSRN posting that I just came across. Authored by Caren Myers Morrison, the piece previews what will become a must-read symposium (once it comes available on-line).  Here is the abstract:

The epidemic rate of incarceration in the United States, long documented, has come at significant financial and social cost.  But the global financial crisis has forced legislators and government officials to face issues that they had previously been able to ignore: whether incarceration is the best use of resources to deal with non-violent offenders, whether former inmates should be sent back to prison for violations of conditions of their post-conviction release, rather than for new criminal activity, whether sentences should be so long that the prison population becomes increasingly geriatric.  At the same time, taxpayers are beginning to realize that they are not always getting a decent return on their corrections dollar.  Crime, and the fear of it, is no longer dominating the domestic agenda.  And fiscal conservatives are edging out “tough on crime” rhetoric with proposals to be “smart on crime.”

The goal of the Symposium, held in Atlanta on January 27, 2012, was to bring together a number of scholars and practitioners to see how the moment might be leveraged to produce sustainable change.  Cognizant of the ephemeral quality of reform that is solely cost-driven, the participants proposed a variety of solutions that could have staying power, even after the good times return.  While controversial, large-scale reforms may remain out of reach, perhaps an accumulation of incremental changes might add up to an overall shift in focus, away from the punitive overreliance on incarceration, and towards a more just, evidence-based and cost-effective justice system.

December 10, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, December 04, 2012

Terrific symposium in latest issue of the Journal of Legal Education

Though I always enjoy reading the Journal of Legal Education, I was especially excited to see that JLE's November 2012 issue starts with a symposium titled "Teaching Mass Incarceration." Here is a summary from the JLE's introduction of the pieces in the symposium (with links inserted):

The issue begins with a Symposium on “Teaching Mass Incarceration,” a subject that has received considerable attention from activists and some from mainstream media but is remarkably absent from the law school curriculum.  Giovanna Shay opens with a case study of “Inside-Out as Law School Pedagogy,” a teaching vehicle for bringing prison inmates and law students into one course, building student engagement and inspiring open-minded discussion that forces students to move beyond knee-jerk politics and clichés [available here].  The second article in the Symposium, by Sharon Dolovich, makes a powerful case for teaching the “law governing prisons,” the “back-end” of the criminal justice system and the law applicable to 2.3 million Americans, of whom a huge disproportion are African-Americans — arguably a front line in civil rights advocacy today [available here]. The third article, by Teresa A. Miller, entitled “Encountering Attica,” explores documentary film-making to transform the dialogue of the “inside-out class” into a vehicle for reaching much larger audiences [available here].  Readers of these contributions will be hard-pressed to deny the case for more visibility and engagement with mass incarceration and the means to accomplish those goals.

I thoroughly enjoyed and learned much from all three of these articles, and I encourage even those not in the ivory tower to check them out.

December 4, 2012 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, November 26, 2012

First articles in OSJCL symposium on "McClesky at 25" now up at SSRN

OSJCL-banner-logo-smallI am very pleased to report that two articles from the Fall 2012 issue of the Ohio State Journal of Criminal Law are now available via SSRN. There are an especially large number of terrific pieces in this issue, all of which I will be praising and promoting when the full issue comes on-line in the next few days.  But, because the articles already on SSRN come from the lead symposium focused on "McClesky at 25," I will start shining the spotlight now for sentencing fans:

Scott Sundby, The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values.  This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism.  What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty.  McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself.  Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote -- a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation.  The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution:

Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.

This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment.  A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level.  The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.

Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.

The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment.  In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

November 26, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (4) | TrackBack

Wednesday, November 21, 2012

Holiday reading for sentencing fans in Harvard Law Review SCOTUS issue

The Harvard Law Review's annual Supreme Court review issue is now available here on line, and there are at least three pieces that should be of special interest to sentencing fans.

Professor Stephanos Bibas has this comment on Lafler v. Cooper and Missouri v. Frye which is titled "Incompetent Plea Bargaining and Extrajudicial Reforms." In addition, the HLR staff has case comments labelled "Factfinding in Sentencing for Criminal Fines: Southern Union Co. v. United States" and "Mandatory Juvenile Life Without Parole: Miller v. Alabama."

November 21, 2012 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1) | TrackBack

Friday, November 16, 2012

Reform advice for Prez Obama's second term at The Crime Report

The folks at The Crime Report have recently posted this group of terrific commentaries with post-election advice for President Obama:

November 16, 2012 in Campaign 2012 and sentencing issues , Criminal justice in the Obama Administration, Recommended reading | Permalink | Comments (0) | TrackBack

Monday, October 15, 2012

"John Paul Stevens, Originalist"

The title of this post is the title of this intriguing paper now on SSRN by Professor (and former Stevens clerk) Diane Marie Amann. Here is the abstract:

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism."  It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment.  Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist -- as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution.  To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

I must note that this Essay mentions Baze in its discussion of Justice Stevens as an originalist, but makes no mention of Apprendi.  For that reason, I suspect that this piece is more provocative than comprehensive in making the case for a special kind of Stevens-filtered originalism.  Still, with the last section of the Essay headed "Justice Stevens, Justice Scalia, and the Substance of Liberty," I think this is still a must-read.

October 15, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, September 18, 2012

"Crime, Weather, and Climate Change"

The title of this post is the title of this notable paper by Matthew Ranson available via SSRN. Here is the abstract:

This paper estimates the impact of climate change on the prevalence of criminal activity in the United States.  The analysis is based on a 50-year panel of monthly crime and weather data for 2,972 U.S. counties.  I identify the effect of weather on monthly crime by using a semi-parametric bin estimator and controlling for county-by-month and county-by-year fixed effects.  The results show that temperature has a strong positive effect on criminal behavior, with little evidence of lagged impacts.  Between 2010 and 2099, climate change will cause an additional 30,000 murders, 200,000 cases of rape, 1.4 million aggravated assaults, 2.2 million simple assaults, 400,000 robberies, 3.2 million burglaries, 3.0 million cases of larceny, and 1.3 million cases of vehicle theft in the United States.

Yikes!   Well, I guess the good news is that I can now think of my Prius as a crime-fighting machine. 

Seriously, I have long understood there are important connections between weather and crime, and perhaps this article provides (still more) justification for climate change advocates to consider seizing upon a "tough on crime" mantra.

Recent related post:

September 18, 2012 in Data on sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5) | TrackBack

Sunday, September 16, 2012

Deep thoughts on deep punishment theory via SSRN

One of many reasons I like finding time to read papers on punishment theory is to see if and how new deep thoughts can be presented on a deep subject that has been debated since the start of recorded history.  And, thanks to SSRN, here are two more new entries with deep thoughts on deep punishment theory:

September 16, 2012 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (2) | TrackBack

Saturday, September 08, 2012

"Retribution as Revenge and Retribution as Just Deserts"

The title of this post is the title of this interesting looking new article now up at SSRN authored by Monica Gerber and Jonathan Jackson. Here is the abstract:

Public attitudes towards law-breakers shape the tone and tenor of crime-control policy. The desire for retribution seems to be the main motivation underpinning punitive attitudes towards sentencing, yet there is some confusion in the research literature over what retribution really means. In this paper we distinguish between retribution as revenge (as the desire to punish criminal offenders to retaliate a past wrong by making the offender suffer) and retribution as just deserts (as the preference to restore justice through proportional compensation from the offender).

Results from an online survey (n=176) provide evidence of two distinct dimensions of retribution, but we also show that these two dimensions have different ideological and motivational antecedents, and have different consequences in terms of the treatment of criminal offender. We find that retribution as revenge is associated with the motivation to enforce status boundaries with criminal offenders, as well as ideological preferences for power and dominance (as expressed by social dominance orientation) and in-group conformity (as expressed by right-wing authoritarianism). Endorsement of retribution as revenge also predicts the support of harsh punishment and the willingness to deny fair procedures. By contrast, retribution as just deserts is mainly predicted by a value restoration motive and by right-wing authoritarianism. After controlling for revenge, retribution as just deserts predicts support for procedural justice in the criminal courts. We conclude with the idea that beliefs about proportionality and compensation work as a buffer against the negative effects of revenge.

September 8, 2012 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (2) | TrackBack

Tuesday, August 14, 2012

"Reality-Challenged Philosophies of Punishment"

The title of this post is the title of this notable new article by the always terrifically interesting Professor Robert Weisberg.  This piece is now available via SSRN, and here is the abstract:

This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.”  Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world.  More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.

Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world.  Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison?  Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account?  Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty?  In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous.  Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.

August 14, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

"Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment"

The title of this post is the title of this latest and greatest must-read piece about the state and future of the US death penalty coming from Professors Carol Steiker and Jordan Steiker. Here is the abstract:

In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade.  Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization.

We contrast the effects of the death penalty reforms of prior generations -- such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods -- with the reforms of the modern era of constitutional regulation.  The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence.  We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious.  We explore the implications of these insights for two broader debates -- the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.

August 14, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (2) | TrackBack

Tuesday, June 26, 2012

"Crime, Punishment, and the Psychology of Self-Control"

The title of this post is the title of this new paper by Rebecca E. Hollander-Blumoff now available via SSRN. Here is the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control.  This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research.  First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will.  The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place.  Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions.  That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.”  The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

June 26, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (7) | TrackBack