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:
Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law by Richard E. Finneran & Steven K. Luther
Informal Collateral Consequences by Wayne A. Logan
Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker by Sonja B. Starr & M. Marit Rehavi
Firearm Localism by Joseph Blocher
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.
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:
- Women allege forcible strip searches violated their civil rights
- Today in Civil Rights History: Roger Williams' early stand for civil liberties
- New Sentencing Project report shows life sentences have quadrupled since 1984
- Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment.
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:
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:
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:
From the Baltimore Sun here, "Minimal reform on mandatory sentencing"
From the Dallas Morning News here, "Holder takes right approach on out-of-control drug war"
- From the New York Times here, "Smarter Sentencing"
From the Washington Post here, "Welcome drug prosecution reform still needs Congress’s help."
From Nancy Hoppock at Constitution Daily here, "Explaining the DOJ’s new policy on drug crimes and mandatory minimums"
- From Walter Palvo at Forbes here, "Despite DOJ Announcement, The Federal Prison Population Will Grow"
From Jacob Sollum at Reason here, "Eric Holder's Prison Break: The attorney general's criticism of mass incarceration and mandatory minimums is belated but welcome."
From Emily Bazelon at Slate here, "Not-Quite-So-Mandatory Minimums: Eric Holder’s plan to lower sentences for drug offenders isn’t ambitious enough"
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.
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:
- Genghis Khan and sentencing
- Does ideology matter when district judges sentence?
- 30 days in jail for taking a cell phone photo of sentencing in federal court? Damn right!
On sequester realities:
- The Federal Judiciary, and Federal Public Defenders in particular, are facing devastation and the Constitution is in peril–this is not hyperbole
- Touching the third rails of judicial politics
- Statement on Impact of Sequestration on Judiciary, Defender Funding
- Congress is herewith warned
On other stuff:
- The frequent irrelevancy of the Supreme Court
- It’s a fact: Federal district judges are carpenters not politicians
- What I learned (and am still learning) from a “Fuck You” motion
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.
Monday, April 22, 2013
Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the worldI 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.
Sunday, March 31, 2013
Two notable (and notably distinct) new capital punishment papersI 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?
Wednesday, March 20, 2013
Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"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.
Monday, February 25, 2013
Another notable sign of our modern legal on-line times (and a suggestion)Via 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).
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.
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 theoryI 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.
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.
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.
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.
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.
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.
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:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
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).