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....


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

Saturday, June 23, 2012

Hearty welcome to a timely new blog: "Juvenile Justice Blog"

I am very pleased to welcome to the blogosphere Juvenile Justice Blog, a fantastic looking new blog by UNC law prof Tamar Birckhead.  Here is how Tamar, whose blog bio is available here, describes her new blog creation:

The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.

It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.

If you would like to see something posted that fits within these themes, please email the blog administrator at  As this is a work in progress, I welcome your thoughts, suggestions, and comments.

There is already a lot of great content on JJB.  And with a big SCOTUS ruling on the constitutional of juve LWOP coming wihtin the week, I am sure to make JJB a daily read in the weeks ahead.

June 23, 2012 in Offender Characteristics, On blogging, Recommended reading | Permalink | Comments (4) | TrackBack

Wednesday, June 13, 2012

Lots new to check out over at The Crime Report

Regular readers may be tired of hearing my recommendation that every sentencing fan should should make regular visits to The Crime Report.  But these items, all posted in just the last day, provide more support for my advice:

June 13, 2012 in Recommended reading | Permalink | Comments (0) | TrackBack

Tuesday, May 08, 2012

Call for papers for ABA/AALS joint conference this Fall in DC

I have been really intrigued and impressed by special criminal justice programs that have been put together by the ABA each fall over the last few years. To its credit, the ABA has made a special effort in these events to connect criminal justice practitioners and academics (as evidenced by the speakers brought together at last year's event).  Consequently, I am pleased to be able to promoted this "Call for Papers — Criminal Justice" in conjunction with this year's planned event:

On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C.  The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice.  All papers on criminal law, criminal procedure, or criminal justice topics are welcome. 

Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.  Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces.  Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.

To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at and Laurent Sacharoff at by Aug. 15, 2012.  Space is limited and presenters will be chosen by members of the organizing committee.

May 8, 2012 in Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 19, 2012

Professor Bibas guest-blogging on "The Machinery of Criminal Justice"

Bibas bookEspecially because I am heading out on a Spring Break trip that will soon lessen my (daytime) blogging opportunities, I am very pleased to be able to welcome Professor Stephanos Bibas as a guest-blogger to discuss sentencing issues raised by his terrific new book my new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  (Though I have not yet had a chance to read the entire book, I feel confident already describing the book as terrific based on the introduction available here via SSRN and based on the guest-blogging Stephanos has already done recently in this series of posts at The Volokh Conspiracy.)

For those interested in the broad array of topics that Stephanos takes on in this book (and everyone should be), I highly encourage whetting your appetite by checking out the posts already up at Volokh (or at least this provocative first one in the series).  Here is a key theme from the book mentioned set forth in that post: "without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine.  There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads.  What I want you to see, however, is the price we have paid to purchase more and more efficiency."

Stephanos reports he will be covering a lot of different ground in this blog space than he did at Volokh.  As he put it in an e-mail to me, he plans to cover different aspects of the book likely to be of even more interest to sentencing fans, "especially the shift from temporary punishments to prison, the frustration that causes, and various reforms to punishments (work / military service, collateral consequences, reentry)."  I am very happy to be lending this space for this great use and very excited to see what Stephanos has to say. 

(I hope and expect to do still do some additional blogging while on the road over the next few days, but I cannot predict how much or how often, especially because I also have a fantasy baseball draft for which to prepare.)

March 19, 2012 in Guest blogging by Professor Stephanos Bibas, Recommended reading | Permalink | Comments (4) | TrackBack

Tuesday, February 21, 2012

Notable new blog on wrongful convictions

Cgswc-md_logo-for-webVia e-mail, I received this note from Professor Mark Godsey concerning a notable new criminal law blog:

I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog.  The web address is, or you can just click the link above.

The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning.  You will see that we have contributing editors from all over the world, thus the tagline is:  "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum."  There is a place for comments and debate on each post....

The blog will involve more than just news and links.   We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.

A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space.  That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.

February 21, 2012 in On blogging, Recommended reading | Permalink | Comments (3) | TrackBack

Monday, February 20, 2012

Lots to read about American sentencing development on this patriotic day off

For reasons I only partially understand, I have a regular teaching day at my law school; it seems nearly all other government-linked institutions have an extra day to their weekend thanks to our nation's greatest presidents.  Fortunately, for those sentencing fans looking to find a productive way to spend this extra day off, there are lots of new papers on SSRN worth giving a look.  Here is just an abridged list of pieces recently added to SSRN that I hope I might soon find time to read:

February 20, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (4) | TrackBack

Thursday, February 02, 2012

New report from The Sentencing Project on latest state-level sentencing reforms

I received news of this notable new report on state-level sentencing reforms coming from The Sentencing Project.  The report is titled “The State of Sentencing 2011: Developments in Policy and Practice,” is authored by Nicole Porter, and is summarized this way via the e-mail I got yesterday:

The report highlights 55 reforms in 29 states and documents a growing trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

Sentence modifications - Four states -- Connecticut, Ohio, Nebraska, and North Dakota -- established sentence modification mechanisms that allow correctional officials to reduce the prison sentences of eligible prisoners;

Drug offense reforms - Four states -- Arkansas, Delaware, Kentucky, and Ohio -- revised penalties for certain drug offenses and authorized alternatives to prison as a sentencing option in specified circumstances.  In addition, Idaho and Florida expanded the eligibility criteria for drug courts in order to expand their impact.

Death penalty - Illinois abolished the death penalty, becoming the sixteenth state to eliminate the sentencing option;

Probation revocation reforms - North Carolina restricted the use of prison as a sentencing option for certain persons who violate the conditions of probation; and

Juvenile offender sentencing reforms - Georgia authorized sentence modifications for certain juvenile defendants with felony offenses by allowing judges to depart from the statutory range when considering the youth’s background.

February 2, 2012 in Recommended reading, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, November 11, 2011

"Blind Goddess": a new reader on race and criminal justice

Via an e-mail for the folks at The Sentencing Project, I have learned of this new book on note titled "Blind Goddess: A Reader on Race and Justice." The book has edited selections from a broad range of scholars and advocates discussing racial dynamics intersect with the criminal justice system.  Here is a summary of the work from the publisher's website:

Blind Goddess brings together the most significant writings of practitioners, professors, and advocates to make sense of what is perhaps the nation’s most astonishing and shameful achievement: the highest per-capita incarceration rate anywhere in the world compounded by the shockingly disproportionate imprisonment of poor people of color. Although there is growing awareness of the huge fiscal cost of mass incarceration, the moral, human, and social devastation of racially skewed law enforcement remains largely unrecognized.

Featuring many of today’s premier legal scholars, experts, and writers—among them David Cole, Glenn C. Loury, Bob Herbert, and Lani Guinier—here is a boundary-pushing book that elucidates the impact of race on each stage of the criminal process. From policing and prosecuting to jury selection, sentencing, prison conditions, and reentering society, Blind Goddess is an essential volume for the general reader and an ideal reality check for students of criminal law. With selections from critically acclaimed contemporary works including Michelle Alexander’s The New Jim Crow, Paul Butler’s Let’s Get Free, Amy Bach’s Ordinary Injustice, and Robert Perkinson’s Texas Tough, Blind Goddess provides easy access to a wealth of cutting-edge analyses and concrete solutions.

November 11, 2011 in Race, Class, and Gender, Recommended reading | Permalink | Comments (1) | TrackBack

Thursday, November 10, 2011

Effective new report on effective state-level sentencing and corrections reforms

Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms."  This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:

States continue to struggle during what is the most difficult fiscal environment since the Great Depression.  Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less.  Full economic recovery may not happen until the end of the decade.  With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.

Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections.  They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes.  Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.

Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:

  • South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism; 
  • Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
  • Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.

The challenge to states is to make cuts in corrections spending while maintaining public safety.  Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not.  Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent.  Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.

States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:

  • Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
  • Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
  • Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
  • Support mandatory supervision and treatment in the community; and
  • Use real-time data and information for decision-making.

November 10, 2011 in Procedure and Proof at Sentencing, Recommended reading, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, November 09, 2011

"Marriage as Punishment"

The title of this post is the title of this forthcoming article by Professor Melissa Murray now available on SSRN. As the abstract reveals, this piece a serious discussion of interesting issues (though the title might sound like the punchline of a bad joke among rowdy bachelors):

Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will.  However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used -- and importantly, continues to be used -- as state-imposed sexual discipline.

Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage.  The defendant could simply marry the victim and avoid liability for the crime.  However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.

The history of marriage as punishment offers important insights for contemporary discussions of marriage.  It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry.  Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.

With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

November 9, 2011 in Criminal Sentences Alternatives, Recommended reading | Permalink | Comments (18) | TrackBack

Monday, November 07, 2011

"Moral Imagination in Judging"

The title of this post is the title of this interesting new paper now posted on SSRN by Professor Susan Bandes. Though not discussing sentencing directly, I have long thought that discussion of theories of judging — and particular debates over whether judges are like umpires or should have empathy — are especially interesting when considered through the lens of sentencing law, policy and practice. Here is this paper's abstract:

The debate over the role of empathy in judging has revealed a tenaciously hardy folk conception of judicial deliberation and the judicial role.  This concept is most crudely captured in Chief Justice Roberts’ well-known “umpire” metaphor, in which judges leave all their preconceptions and values behind and simply discover and apply the law “as written.”  This conception is the legal variant of the hardy philosophical notion that moral reasoning is the process of discovering and applying a system of universal moral laws, and that these laws exist in a realm that transcends individual subjectivity.  If laws are universal, timeless and discoverable, then a decision-maker’s attributes, beliefs and values; his or her situatedness in a tradition, a culture, a historical time and place, can only be impediments to rational decision-making.

This notion of rationality has long been a subject of criticism, but few of its critics have had kind words for the role of empathy or moral imagination in the judicial process. Yet empathy and moral imagination implicate questions that go to the heart of longstanding jurisprudential debates.  What role should a judge’s prior assumptions and values play in decision-making?  What factors are relevant to principled adjudication?  How do judges give meaning to spacious, indeterminate terms like due process and equal protection of law?  What institutional reforms might serve to improve the quality of the deliberative process?  I will argue that the denial of indeterminacy and the myth of the omniscient judge pose significant barriers to the rule of law.  The widespread reaction against the role of empathy is based on unrealistic and largely undefended notions of the judicial role and the process of judicial deliberation.  More broadly, it reflects assumptions about deliberation that are increasingly out of synch with developing understandings of moral cognition.  Empathy and moral imagination, properly understood, are part of the solution to the problem of unaccountable judges interpreting indeterminate law, rather than part of the problem.

November 7, 2011 in Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 26, 2011

Another notable review of "The Collapse of American Criminal Justice"

In this post a few days ago, I blogged about former SCOTUS Justice John Paul Stevens' review the final book written Professor Bill Stuntz, titled "The Collapse of American Criminal Justice."  I am pleased now to link to another review by another notable former jurist, Paul Cassell, this one appearing in the Wall Street Journal.  This review carries the headlined "Crimes, Courts And Cures: Why the justice system does a bad job of separating defendants who deserve punishment from those who don't."  The whole review is a must-read, and these final insights close the piece:

"The Collapse of American Criminal Justice" concludes that our system suffers "from the rule of too much law and the wrong kind of politics."  Mr. Stuntz recommends a host of reforms, including decentralization that would encourage local control responsive to local crime. He also argues for expanding city police forces — because the increased police presence would discourage the commission of crimes.

But he seems to back away from his argument that excessive proceduralism is part of the problem.  While critiquing decisions such as Mapp and Miranda, Mr. Stuntz never urges that they be overturned or restructured, even though such changes could lead to the decentralized decision-making that he supports.  Instead, he singles out for overruling Supreme Court precedents limiting equal-protection argument by defendants.  He targets United States v. Armstrong, for example, which barred drug dealers from arguing that prosecutors must be racially discriminating when statistics indicate disparities in charges being brought.  But overturning the law would lead to precisely the kind of procedural litigation that Mr. Stuntz deplores.

Nonetheless, the overarching themes of "The Collapse of American Criminal Justice" deserve wide discussion, and the book as a whole can be rightly seen as the capstone to a distinguished legal career.  Americans may debate whether our criminal-justice system has truly collapsed, but few would argue that it can't be improved.

October 26, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (2) | TrackBack

Sunday, October 23, 2011

Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"

9780674051751In the new issue of the The New York Review of Books, Former SCOTUS Justice John Paul Stevens reviews the final book written Professor Bill Stuntz, which is titled "The Collapse of American Criminal Justice."   This terrific and lengthy review is headlined "Our ‘Broken System’ of Criminal Justice," and here is how it starts and finishes:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University.  He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year.  The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice.  Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street....

Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading.  It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law.  It should motivate voters and legislators to take action to minimize those injustices.

The publisher's website for Stuntz's book has this summary overview of the book and its themes:

The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely.  Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime.  In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.

The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime — bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control.  The system has become more centralized, with state legislators and federal judges given increasing power.  The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

What would get us out of this Kafkaesque world?  More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.

October 23, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences? | Permalink | Comments (27) | TrackBack

Friday, October 21, 2011

"Balanced Justice: Cost-Benefit Analysis and Criminal Justice Policy"


The title of this post is the title of this notable new research paper from NYU's Institute for Policy Integrity, which urges policymakers to apply more economic analysis and cost/benefit research to criminal justice policy. Here is how the report is described via this webpage

Crime and justice are not usually associated with cost-benefit analysis. But they should be, according to new research. This is especially true in an economic downturn, when government funding is scarce. In “Balanced Justice,” released jointly with the Center for the Administration of Criminal Law, author Jennifer Rosenberg reviews a growing body of research showing that counting the costs and benefits of our nation’s justice system can highlight areas of improvement that can save billions of taxpayer dollars without compromising public safety.

Instead of incarceration, behavioral therapy for young offenders is saving Washington State money and keeping citizens safer.  In Hawaii, intensive supervision is keeping parolees out of expensive penitentiaries and keeping cash in state coffers.  And all over the country, drug courts have proven cost-effective alternatives to standard prison sentences, lowering recidivism rates and earning taxpayers sizeable returns on investment.

These results show how powerful the use of economic analysis can be when applied to criminal justice policy.  Many of these initiatives cost less than incarceration and future benefits can dwarf the administrative costs of implementing new criminal justice programs.

Over at The Atlantic, Andrew Cohen has this effective follow-up commentary on this new report, which concludes with these insightful points:

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime."  It's been nearly twice that long since the so-called "silent majority" took back the streets.  Violent crime is down.  But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice.

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them.  Of course, many criminals deserve to be there.  But many do not.  For years there has been a strong economic case for legalizing (and taxing) marijuana.  And now, more broadly, there is a stronger economic case for keeping more criminals out of prison.

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice.  It's easier to be "tough on crime" when you can pay the price, right?  But now we can't.  And the collective poverty within our criminal justice systems isn't going to ease on its own.  So bring in the economists! And let the stale, old law-and-order crowd step aside.

October 21, 2011 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, October 17, 2011

A comical complaint about laws and harsh guidelines

100px-Get_Fuzzy_LogoI am not a daily reader of the funny pages, and I am not sure I have ever before even seen the daily comic "Get Fuzzy."  But I may need to start following this comic for professional reasons, because a kind reader alerted me to a sentencing-related punchline from today's Get Fuzzy strip. 

The punchline from today's strip, which can be read in full at this link, is as follows: "I'm fine with the laws.  It's the harsh minimum sentencing guidelines I'm having an issue with."  I cannot help but wonder if the creator of Get Fuzzy has spent some time in federal courthouses; this line sound like it came straight from a federal sentencing transcript.  

October 17, 2011 in Recommended reading | Permalink | Comments (1) | TrackBack

Thursday, October 06, 2011

Vera Institute produces special Federal Sentencing Reporter issue: “Sentencing Within Sentencing”

Fsr I am so very pleased and proud to announce that the October 2011 issue of the Federal Sentencing Reporter is now complete and available on line.   This is a special issues that was put together by the amazing folks at the Vera Institute of Justice, and here is how Vera describes the contents:

The October issue of the journal Federal Sentencing Reporter (FSR) examines the theme of “Sentencing Within Sentencing” — punishments defendants face in addition to those meted out by judges upon conviction. As Alison Shames, associate director of Vera’s Center on Sentencing and Corrections, writes in the “Editor’s Observations” column, “People involved in the criminal justice system are, in fact, punished at multiple points.” 

The special Vera-edited issue presents new articles and reprints by staff, alumni, and associates that address a broad range of collateral penalties, including pretrial detention due to inability to afford bail, solitary confinement, and court fees and fines.  The articles reflect Vera’s work since its founding 50 years ago, with a focus on the U.S. criminal justice, juvenile justice, and immigration systems.

You can read Alison Shames’s column and an article by Vera cofounder Herbert Sturz free of charge online.  Vera will publish related guest blog posts and additional articles from the new issue of FSR on the website in the coming weeks.

Read a blog post about this issue of FSR by Vera’s director, Michael Jacobson.

October 6, 2011 in Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, September 26, 2011

Great new Rutgers resource reviewing crim books

Via Professor Stuart Green, I am please to be able to relay this notice concerning what looks like a great new criminal justice researcher and reader resource:

Rutgers Law School-Newark and the Rutgers School of Criminal Justice are pleased to announce the launch of a new website called Criminal Law and Criminal Justice Books.   We aim to publish high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

Among the great looking new books subject to great looking reviews are:

September 26, 2011 in On blogging, Recommended reading | Permalink | Comments (0) | TrackBack

Thursday, September 08, 2011

"Ex Ante Fairness in Criminal Law and Procedure"

The title of this post is the title of this new paper from Professor Vincent Chiao available via SSRN.  The piece discusses in interesting ways both death penalty and federal sentencing outcomes.  Here is the abstract:

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion.  The question I ask in this paper is whether we should in fact object to arbitrariness in punishment.  The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one equalizes chances across a class of similarly situated criminals.  In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to reliably rank claims by comparative desert, and a pressing need for punishment to be imposed.  I call this an ex ante theory of fairness.

The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested.  Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa.

After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure -- the Supreme Court’s capital jurisprudence, prosecutorial discretion, non-capital sentencing post-Booker, and “strict” criminal liability -- all exhibit an implicit commitment to an equalization of chances rather than of outcomes.

September 8, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Monday, August 29, 2011

New US Sentencing Commission reviews of sentencing jurisprudence

Undaunted by earthquakes or hurricanes or the unnatural disasters that are even more common inside the Beltway these days, the US Sentencing Commission this summer has completed and now posted new documents that "present specific decisions by the U.S. Supreme Court and U.S. circuit courts of appeals regarding the federal sentencing guidelines and related sentencing issues."

Specifically, at this link everyone can find a lengthy document with brief summaries of nearly every major Supreme Court ruling on federal sentencing issues over the last 25 years.  And, on this page, everyone can find links to circuit-by-circuit reports on guideline interpretation and post-Booker jurisprudence.

August 29, 2011 in Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, August 18, 2011

2011-2012 supplement for Sentencing Law and Policy casebook now available

As a new school year approaches, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook.  Anyone can download this 2011-2012 supplement below.

This updated supplement includes edited versions and notes on the 2011 SCOTUS cases of Pepper and Plata (while also retaining versions of the big prior recent SCOTUS cases of GrahamPadillaKennedyKimbrough and Gall).  There are also a bunch of additional notes covering various major sentencing developments from the past few years, including the passage of the Fair Sentencing Act of 2010 and the litigation surrounding the capital punishment administration in North Carolina in the wake of the state's adoption of its racial Justice Act. 

As always, my co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.

Download 2011SuppDBMW 

August 18, 2011 in Recommended reading | Permalink | Comments (1) | TrackBack

Tuesday, August 02, 2011

Lots of diverse crime and punishment news at The Crime Report

I have often mentioned that one of my daily web-stops for criminal justice news and commentary is The Crime Report, and this fascinating and diverse set of recent entries under its Crime and Justice News banner helps highlight why: 

August 2, 2011 in Recommended reading | Permalink | Comments (0) | TrackBack

Tuesday, July 05, 2011

Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website

I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses."  This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive.  This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.

I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics.  I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.

July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack

Saturday, July 02, 2011

"Cruel and Unusual Federal Punishments"

The title of this post is the title of this interesting and important new article by Professor Michael Mannheimer. Here is the abstract:

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct.  This is the result of the confluence of two trends.  First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court.  Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed.  This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes.  This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices.  Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth.  Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical.  Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth.  Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct.  Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty.  Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State.  Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate.  And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish.  That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States.  Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.

July 2, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, June 20, 2011

Lots of notable new items via The Crime Report

The Crime Report website is a daily stop for me because it always has original pieces and links to other reporting about a rnage of important criminal justice issues with sentencing law and policy dimensions. For example, newly up on the site are these three notable items:

June 20, 2011 in Recommended reading | Permalink | Comments (0) | TrackBack