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.
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.
Sunday, October 23, 2011
Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"
In 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.
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.
Monday, October 17, 2011
A comical complaint about laws and harsh guidelines
I 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.
Thursday, October 06, 2011
Vera Institute produces special Federal Sentencing Reporter issue: “Sentencing Within Sentencing”
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.
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:
- Convicting the Innocent: Where Criminal Prosecutors Go Wrong
- The Boundaries of the Criminal Law
- Retributivism: Essays on Theory and Policy
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.
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.
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 Graham, Padilla, Kennedy, Kimbrough 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.
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:
- Second-Strike Penalties Account for 32,000 California Prison Inmates
- Utah Sees Gains in Stubborn Problem of Prisoner Recidivism
- Next Legal Gun Fight May Be the Right to Bear Arms in Public
- 'Social Impact Bonds' Touted for Criminal Justice Investments
- HuffPost: More College Students Paying Bills Through Prostitution
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:
Thursday, June 02, 2011
Latest OSJCL issue with lots of deep punishment and sentencing thoughts
I am very pleased to report that the Spring 2011 issue of the Ohio State Journal of Criminal Law is now fully available on-line. There are an especially large number of terrific pieces in this issue, which includes not only a thoughtful article symposium on "Political Theory and Criminal Punishment" but also an awesome commentary symposium on "The HBO Series The Wire." I am eager to praise and promote every piece in this new OSJCL issue, though here I will spotlight just a few of the pieces that ought to be of special interest to sentencing fans:
Zachary Hoskins, Deterrent Punishment and Respect for Persons, 8 Ohio St. J. Crim. L. 369 (2011).
Mary Sigler, The Political Morality of the Eighth Amendment, 8 Ohio St. J. Crim. L. 403 (2011).
Roger Lane, Taking the Mystery Out of Murder Rates: Can It Be Done?, 8 Ohio St. J. Crim. L. 553 (2011).
William H. Pryor, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).
Tuesday, May 24, 2011
"Padilla and The Delivery of Integrated Criminal Defense"
The title of this post is the title of this notable new paper by Professor Ron Wright. Here is the abstract:
The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team. This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession.
Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices.
The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys -- in short, toward a more bureaucratic criminal defense.
Monday, May 23, 2011
Effective review of recent past, notable present and potential future of sentencing reform
The latest issue of the American Bar Association’s Criminal Justice magazine (for which I serve on the editorial board) includes a new piece by The Sentencing Project's Marc Mauer titled "Sentencing Reform: Amid Mass Incarcerations, Guarded Optimism." The piece, which available at this link, reviews recent legal and policy developments at both the state and federal level and also urges assesses and makes recommendation for public policy advocacy in this arena. Here is one of many notable paragraphs from the piece:
Perhaps nowhere in the realm of social policy is there such a broad consensus among scholars and practitioners than in the area of public safety as to what should be done to promote better outcomes yet where there has been less implementation. Despite a widespread critique of mass incarceration and virtually no credible defense of its policies, reforms have been exceedingly modest and slow in coming, given the scale of the problem. Thus, while we still have much to learn about prevention, treatment, and reentry, the key dilemma we face is not so much one of figuring out “what works,” but rather how to transform the political environment to one that is more receptive to reform.
Thursday, April 28, 2011
Some deep thoughts on punishment theory and criminal procedure
Classes have wrapped up for the school year (though I still have grading to finish), and it will probably be a few days before I start feeling really guilty about returning to all the writing projects that stalled during a busy semester. This window presents a perfect time to do some deep professional reading, and these two interesting looking pieces on SSRN are going to the topic of my to-read pile:
The Ideological Basis of Punitive Sentiment: Beyond Instrumental and Relational Perspectives by Monica Gerber & Jonathan Jackson
Abstract: Why do people call for the tougher sentencing of criminal offenders? According to an instrumental perspective, punitiveness is driven by the experience of victimisation and fear of crime. People are motivated to feel safe and secure, and they look to criminal sentencing to reduce the likelihood of future harm. According to a relational perspective, punitiveness is driven by concerns about social decline and community breakdown. People are motivated to feel part of cohesive social groups, and retributive punishment symbolically restores moral boundaries and values. Building on the work of Tyler and Boeckmann (1997) and King and Maruna (2009), we present evidence that instrumental and relational predictors each explain some variation in punitive sentiment. But we also show that instrumental and relational concerns lose much of their explanatory power once we control for an authoritarian ideology. We conclude with the argument that instrumental and relational concerns are bound up with punitive sentiment and right-wing authoritarianism in complex but as yet rather under-theorised ways in criminology. Central to neo-Durkheimian attitudes towards punishment may be an authoritarian preference for tight, hierarchical social structures and related beliefs about a dangerous world that lacks cohesion.
Abstract: This paper diagnoses several of the liabilities of proof beyond a reasonable doubt, including its subjectivity, its ambiguity, and its presumed universal applicability across all crimes and all defendants. It argues further that the Supreme Court's repeated claims that this standard follows logically from an acknowledgement that false convictions are worse than false acquittals is an unsound inference. Finally, it proposes that future discussions of the standard of proof should take place in an environment in which detailed empirical information about the error rates at trial should be the engine driving the re-formulation of the standard of proof.
Wednesday, March 16, 2011
In memoriam: Professor Bill Stuntz
I am saddened to learn from this post by Orin Kerr that Harvard Law Professor Bill Stuntz, whom Orin describes as "the leading criminal procedure scholar of his generation," passed away earlier this week after a long battle with cancer. I always learned a lot and re-thought a lot whenever reading Bill's extraordinary scholarship, and both the legal academy and those interested in criminal justice reform have lost a distinctive and important voice.
Here are just a few of the many important pieces by Bill that I consider must-reads for sentencing law and policy fans (and should remain so for quite some time):
- Unequal Justice, 121 Harv. L. Rev. 1969 (2008)
- Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004)
- The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)
- The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997)
Thursday, February 24, 2011
Two notable case notes in latest Harvard Law Review
The February 2011 issue of the Harvard Law Review includes brief notes on two significant federal circuit court rulings that have both gotten considerable attention on this blog:
Monday, February 21, 2011
Special issue of Criminology & Public Policy examines mass incarceration and targeted policing
I was pleased this weekend to discover that the February 2011 issue of Criminology & Public Policy is devoted to the idea that society would be well served to reallocate resources from mass incarceration to targeted policing. Here is the start from the editor's introduction to the issue authored by Richard Rosenfeld:
Mass incarceration is the criminological issue of our time. A close contender is so-called hot-spots policing. The former invites condemnation from most criminologists. The latter inspires confidence that smart policing can reduce crime. In their provocative and important paper that is the focus of this special issue of Criminology & Public Policy, Steven Durlauf and Daniel Nagin (2011) bring the two issues together and propose that we might be able to achieve crime reductions by shortening prison sentences and using the cost savings to support more and better policing. They rest their case squarely in a deterrence framework. They argue that increasing the severity of punishment through marginal increases in the length of prison sentences has weak deterrent effects, at best; by the same logic, shortening prison sentences should not produce appreciable crime increases. In contrast, increasing the perceived certainty of punishment can reduce crime without increasing imprisonment levels through targeted policing strategies that reduce criminal opportunities. If the authors are right, this is a win-win strategy for crime control and criminal justice policy.Durlauf and Nagin (2011) are careful to delimit scope of their analysis. They do not examine the incapacitation effects of imprisonment or retribution as a goal of punishment. They do not consider in any detail crime-reduction approaches that extend beyond the criminal justice system. They acknowledge but do not thrash out the daunting political obstacles to shifting resources from state corrections budgets to local police departments. They also acknowledge the limited, albeit promising, research base for the effectiveness of targeted enforcement and call for more and better research. Nor do they claim originality for their assessment of the deterrent effects of imprisonment and policing. The deterrence framework they invoke dates to Beccaria and Bentham. Others have advocated smarter policing as a substitute for more incarceration (e.g., Weisburd, 2008). Durlauf and Nagin’s (2011) contribution is to ground deterrence in the logic and methods of modern economics and draw out the research and policy implications of increasing the certainty and reducing the severity of punishment. I believe they have succeeded admirably in achieving their objectives, especially if it is assumed that their overriding objective was to provoke thoughtful and informed discussion of their proposals by academic experts and policy professionals alike. As former Attorney General Richard Thornburgh (2011) puts it in his reaction essay, Durlauf and Nagin’s analysis provides an ideal “jumping off point” for serious debate.
The 16 reaction essays in this issue are uniformly sympathetic to Durlauf and Nagin’s (2011) basic argument, even while many are critical of specific aspects of their evaluation of the deterrence literature and diagnosis of the trade-offs between reductions in imprisonment and enhancements in policing. None proposes increasing incarceration or returning to policing as usual to promote public safety. Yet most of the discussants would have liked the authors to deepen their analysis of the criminal justice system and extend their arguments beyond the stated objectives.
Thursday, January 13, 2011
"The People’s Right: Reimagining the Right to Counsel"
The title of this post is the title of this interesting looking new article by Martin Guggenheim and now available via SSRN. Here is part of the abstract:
This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.
In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. In the overwhelming majority of cases prosecuted in state court, defendants are not provided with an attorney who has the capacity to undertake any kind of meaningful investigation into the facts and circumstances of their cases.
Courts need to rely on a vital ally when performing their oversight responsibilities. They depend (we depend) on a robust indigent defense system which routinely investigates the underlying facts and circumstances of individual cases as the only truly meaningful check on executive power....
Separation of powers, which has long been a shield preventing courts from overseeing indigent defense systems, is now a sword by which courts are authorized to decide for themselves whether indigent defense systems are adequate to allow courts to do their duty. If courts find they are not, they would be constitutionally empowered to fix the problem by insisting that more money is made available for indigent defense.
An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general enforcing the rights of his or her client, the collective defense system should be seen as the investigative arm of the judiciary providing meaningful oversight on executive power. Without a robust indigent defense system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis
Thursday, January 06, 2011
Two 2011 must-reads for sentencing fans from the Duke Law Journal
A little law review surfing proved fruitful this afternoon when I discovered that the January 2011 issue of the Duke Law Review is already available on-line and it includes these two must-reads for sentencing fans:
- this article by Ty Alper on lethal injection litigation titled "Blind Dates: When Should the Statute of Limitations Begin to Run on a Method-of-Execution Challenge?"
- this note by John Gabriel Woodlee titled "Congressional Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument For or Against Deference?"
Wednesday, December 15, 2010
SCOTUS reflections in Harvard Law Review covers Graham and Padilla effectively
I just got around to noticing that the traditional November Harvard Law Review issue reviewing the work of the prior Term of the Supreme Court is now fully available on-line here. Not surprisingly, this issue gives its greatest attention to the Citizens United ruling. But the big cases from last Term that criminal justice fans now know by first names — e.g., Skilling and McDonald — also seem to get effective case-note treatment. And, based on a quick skim, it seems that the two most significant rulings from last SCOTUS Term for sentencing law and policy are especially well examined in these short pieces:
- HLR assessment of Graham v. Floridaon the Eighth Amendment and LWOP sentences for juvenile offenders
- HLR assessment of Padilla v. Kentucky on the Sixth Amendment and advising defendants about collateral consequences of a conviction
Tuesday, December 14, 2010
New issue of Pace Law Review on need for prison oversight in US
I received via e-mail a press release spotlighting this new issue of the Pace Law Review that all sentencing law and policy fans will want to check out. Here is how the press release begins:
Latest issue of Pace Law Review offers blueprint for critically-needed U.S. prison oversight: Contains views from academics, human rights lawyers, national and international corrections experts
The United States has, by far, the highest incarceration rate of any developed country on the planet, yet its prisons remain largely hidden worlds. Unlike many Western countries, which have systems for inspecting and reporting on prison conditions, the U.S. lacks formal and comprehensive external oversight mechanisms to regularly monitor prisons and jails.
Now, a newly released issue of the Pace Law Review, “Opening up a Closed World: A Sourcebook on Prison Oversight,” offers a comprehensive look at prison oversight, including articles from leading academics, national and international corrections experts, and prisoners’ rights and human rights lawyers. Together, this diverse group calls for a national conversation on this important subject, and offers insights and practical ideas for how oversight could be accomplished in the American context.
Thursday, December 09, 2010
New issue of American Prospect magazine focused on mass incarceration
I was pleased to learn that this special issue of The American Prospect magazine is focused on “Mass Incarceration in America.” The issue includes an array of essays, and the introductory essay has a fitting title: "Eyes on the Prize: Our moral and ethical duty to end mass incarceration." And I would add that ending mass incarceration could also be fiscally wise and quite socially useful.
Thursday, December 02, 2010
"Social Historical Studies of Women, Crime, and Courts"
The title of this post is the title of this notable article available via SSRN that provides an interesting perspective on some social and legal criminal justice history. Here is the abstract:
While traditional criminology has ignored the historical dimension of female crime, social historical literature has examined the interplay between gender and the criminal process in a variety of historical settings. This review examines studies focusing on changes in crime, prosecution, conviction, and punishment patterns over time, as well as studies in particular settings. From these studies we conclude that crime has not always been a predominantly male phenomenon and that female crime rates have changed over time. We also conclude that, within the different categories, women defendants in particular were perceived through a gendered perspective, and their criminalization and punishment, as well as its representation in popular culture, reflected this special perspective.
Sunday, November 28, 2010
Justice John Paul Stevens continues his campaign against the modern death penalty
As detailed in this New York Times article, which is headlined "Ex-Justice Criticizes Death Penalty," the most recently retired Supreme Court Justice is continuing to assail the modern administration of the death penalty in the United States. Here is how the Times piece begins:
In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”
In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional. But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.
In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.
In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches. He will be on “60 Minutes” on Sunday night.
Retired Justice John Paul Stevens's piece in the New York Review of Books is a review of David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition." It is now available at this link, and here are a few paragraphs from the start of the lengthy review:
David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....
[D]espite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.
His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York. Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.
UPDATE: The 60 Minutes segment with JPS is now available at this link.
Monday, November 15, 2010
"Talking About Prosecutors"
The title of this post is the title of this intriguing looking article by Professor Alafair Burke, which is avaiable via SSRN. Here is the abstract:
This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings.
Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers. The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement. In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making. A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.
Thursday, November 04, 2010
"Memory and Punishment"
The title of this post is the title of this interesting looking new piece from O. Carter Snead that is now available via SSRN. Here is the abstract:
This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.
For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community. Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment. This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.
Sunday, October 17, 2010
"A Distributive Theory of Criminal Law"
The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review. Here is the abstract:
In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.
This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.
Friday, October 15, 2010
FSR October 2010 issue, "Life Without Parole," now available on-line
I am pleased to report that the October issue of the Federal Sentencing Reporter, which is full of cutting edge analysis and commentary on the topic of "Life Without Parole, is now available on-line. The Table of Contents for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.)
Professor Michael O’Hear, the chief FSR editor who assembled a great set of articles, authored an opening commentary, entitled "The Beginning of the End for Life Without Parole?", and this introductory essay can be downloaded at this link. The other major piece in this terrific FSR issue are listed below:
- Robert Blecker, Less Than We Might: Meditations on Life in Prison Without Parole
- Molly M. Gill, Clemency for Lifers: The Only Road Out Is the Road Not Taken
- Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States
- Gregory J. O’Meara, Compassion and the Public Interest: Wisconsin’s New Compassionate Release Legislation
- Dirk van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink?
COMMENTARY ON GRAHAM & SULLIVAN
- Rachel E. Barkow, Categorizing Graham
- Richard S. Frase, Graham’s Good News — and Not
- Youngjae Lee, The Purposes of Punishment Test
- Dan Markel, May Minors Be Retributively Punished After Panetti (and Graham)?
- Eva S. Nilsen, From Harmelin to Graham — Justice Kennedy Stakes Out a Path to Proportional Punishment
- Jessica Olive & David Gray, A Modest Appeal for Decent Respect
- Alice Ristroph, Hope, Imprisonment, and the Constitution
- Carol S. Steiker & Jordan M. Steiker, Graham Lets the Sun Shine In: The Supreme Court Opens a Window Between Two Formerly Walled-Off Approaches to Eighth Amendment Proportionality Challenges
- John F. Stinneford, Evolving Away from Evolving Standards of Decency
Wednesday, October 06, 2010
"Mercy, Crime Control & Moral Credibility"
The title of this post is the title of this new piece by the always interesting Professor Paul Robinson. Here is the abstract:
If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more likely the writer is to mistake judgments of blamelessness for exercises of mercy.
Should a criminal justice system exercise mercy in its real sense (of giving an offender less punishment than he deserves, using a fully nuanced and rich account of desert)?
One can imagine enormous benefits to the exercise of mercy by individuals in their personal dealings with others. A tendency toward mercy seems an admirable personal trait. However, it does not follow that mercy would be a desirable practice for a criminal justice system. Our strong interest in equality of treatment of like offenders and offenses suggests that mercy, if used, would need to be regularized in its application; punishment ought not depend upon the tendency toward mercy, or lack thereof, of the particular decisionmaker in the case at hand. But to institutionalize mercy is to create an expectation and right to it that may be inconsistent with its fundamental character of giving a relief or mitigation from punishment to which an offender is not entitled.
Further, one can imagine serious effects detrimental to the effective operation of the criminal justice system were mercy to be institutionalized. Classic arguments against it would cite its effect in undermining deterrence and the incapacitation of dangerous offenders. While some of us might find these arguments unpersuasive, even the desert advocate would have reason to be concerned. A "mercy program" would seem to similarly undermine both deotological and empirical desert, failing to do justice both as moral philosophers and as the community's shared intuitions of justice would assess it.
On the other hand, what if it were determined –- as recent research suggests -– that community intuitions tend to support some exercise of what might be seen as mercy? If one sought to distribute criminal liability and punishment in a way to maximized the criminal law's moral credibility, might such evidence of principles of mercy shared by the community suggest that such principles ought to be instantiated in law?
Sunday, September 26, 2010
Making the case for sentencing reform in the form of "Mandatory Minimalism"I am pleased to see this new article, titled "Mandatory Minimalism," about reforming mandatory minimum sentencing statutes authored by Professors Paul Cassell and Erik Luna. (Though Cassell was once a federal judge, luna is likely now more famous for once having been cited by Lindsay Lohan). Here are two paragraphs from the article's introduction:
One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.
Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.
Tuesday, September 21, 2010
Extraordinary symposium on "The Past and Future of Empirical Sentencing Research"As detailed at this website and in this news release, the University of Albany's School of Criminal Justice has planned for later this week an extraordinary two-day event called "The Symposium on Crime and Justice: The Past and Future of Empirical Sentencing Research." Here is a basic description of the event from the symposium website:
The punishment received by those convicted in the criminal justice system is the outcome of a complex set of interactions between actors starting with the initial charge and ending only when the convicted individual is released from supervision. There is a consensus among criminological scholars that the empirical study of this sentencing process has stagnated. The National Science Foundation has agreed to partially fund this symposium to help reinvigorate empirical research in this area by reengaging with other disciplines and reconnecting with the ongoing policy debates about sentencing. We have assembled a top flight group of scholars to review the current state of sentencing research and chart future research directions.
As the event's agenda highlights, there truly are top-flight scholars on event one of the panels looking at these four essential and important key areas:
- Risk assessment in sentencing: what is the potential for diverting low-risk offenders from prison to alternate-sanction programs?
- Discretion and decision making in the sentencing process: who are the people making the decisions; how do we study the effectiveness of various decisions?
- Managing criminal justice populations: why has the prison population of America quadrupled since 1980; how can the various actors work together better to reduce this population?
- The role of race in sentencing outcomes: what is the right balance of sentencing effectiveness and equal justice for all?
Wonderfully, for those like me who unfortunately cannot be in attendance at what looks sure to be an amazing event, there are a set of downloadable reference materials posted here that allows those of us stuck in distant lands to keep up with some of what is being discussed later this week in Albany.
Wednesday, September 08, 2010
Latest supplement for Sentencing Law and Policy casebook now available
As a new school year gets underway, 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 2010-2011 supplement below.
This updated supplement includes edited versions of the 2010 SCOTUS cases of Graham v. Florida and Padilla v. Kentucky (while also retaining versions of the big prior Term SCOTUS cases of Kennedy, Kimbrough and Gall). There are also a bunch of new 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.
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.
Thursday, August 19, 2010
"Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains"The title of this post is the title of this new interesting piece on plea practices by Colin Miller available via SSRN. Here is the abstract:
Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.
This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.
Wednesday, August 11, 2010
Two must-reads from the latest issue of Governing
The August 2010 issue of the magazine Governing has its cover story devoted to the interesting and important (and under-appreciated) story of corrections reform in the state of Mississippi. There are so many interesting parts to the stoty, I will just plug this piece by simply noting its headline and subheading: "Mississippi's Corrections Reform: How America's reddest state -- and most notorious prison -- became a model of corrections reform."
In addition, the same issue has this astute commentary piece on one of my favorite policy topics under the headline "Marijuana: To Legalize or Not to Legalize?; Federal, state and local governments can't seem to agree whether to legalize cannabis." Here are two snippets this commentary:
Medical marijuana is in a legal and political twilight zone, caught between the ongoing policy battles on drugs and the pleas of patients suffering from painful, debilitating diseases. In fall 2009, U.S. Attorney General Eric Holder announced that in the 14 states permitting the sale of medical marijuana, the feds would focus only on big drug traffickers and money launderers. Republicans fired back that Holder was undermining federal laws and fueling the drug wars on the Mexican border. The House Judiciary Committee's ranking Republican, Rep. Lamar Smith, countered: "We cannot hope to eradicate the drug trade if we do not first address the cash cow for most drug-trafficking organizations -- marijuana." The Cato Institute's Tim Lynch countered yet again, saying the drug war had proven a "grand failure," while advocates of legalizing marijuana quietly applauded....
It's hard to think of a policy battle full of so much heat but backed by so little research. The drive for medical marijuana comes from two sources: the underground campaign to make marijuana legal, where advocates have long argued that the drug is a harmless recreation, and the desperate plight of patients suffering from chronic diseases, where traditional medicine has provided little relief....
Amid the ongoing federal war on drugs, the states are leading a noisy revolution to legalize marijuana, at least for medical use. The Obama administration said it will back off prosecuting drug laws in the states permitting medical marijuana, but in some local governments, opponents are fighting back to restrict where state-sanctioned marijuana can be sold. The state laws themselves are all over the map, from California's permissive statute to New Jersey's tough government regulation of the chain from plant to user. [Along the way], we're clumsily drawing new lines on drug use as only American federalism can.
Monday, July 19, 2010
"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered." There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):
The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects. There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing. Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form. And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.
I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis. But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.
July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, July 16, 2010
"Trial and Error in Criminal Justice: Learning from Failure"
When it comes to criminal justice reform, neither citizens nor officials have endorsed the view that problems are solved iteratively. Reluctance to be associated with programs judged failures has stifled innovation and kept criminal justice reformers spinning their wheels.
Trial and Error in Criminal Justice Reform: Learning from Failure argues that public policies cannot be neatly divided into successes and failures. The book examines well-intended programs that for one reason or another fell short of their objectives (D.A.R.E. and Operation Ceasefire being prime examples) yet also had positive effects. Greg Berman and Aubrey Fox tell the stories of committed reformers — judges, cops, attorneys, parole officers, researchers, educators, and politicians — who, despite their knowledge and ambition, did not quite achieve their goals. They introduce readers to a parole officer who has to make a tough judgment call, a legislator who endures political pressure to rewrite sentencing laws, a judge who attempts a new response to drug offenses despite local resistance, and many others.
I have had a chance to read parts of this book already, and I find it fascinating. Here also is a comment about some of the themes of this important book that I received from one of the authors:
The vast majority of what police, prosecutors, defenders, correctional officials, probation officers and judges do on a daily basis is not supported by strong, scientific evidence.
Indeed, there is an enormous gulf between frontline criminal justice practitioners and social science researchers. One sign of this is the field's resistance to the scientific method — the process of trial and error. In general, criminal justice officials don't feel they have the latitude to talk honestly about a simple reality: new initiatives are just as likely to fail as they are to succeed.
This is a point that Aubrey Fox and I make in Trial and Error in Criminal Justice: Learning from Failure. Over the course of researching the book, we learned a number of important lessons, including the challenge that criminal justice officials face in trying to meet the often-unrealistic expectations of elected officials and the general public. There are no silver bullets when it comes to changing the behavior of offenders or reducing crime in hard-hit urban neighborhoods.
But perhaps the most important lesson we learned is that the closer one looks, the harder it is to draw a clear, defining line between what works and what doesn't in criminal justice. Initiatives like drug court and Operation Ceasefire that succeed spectacularly in one place can fail miserably in another. Even the drug prevention DARE, which is almost universally reviled by researchers, has achieved some positive results in some jurisdictions.
In a perfect world, it would be nice to be able to make black-and-white judgments about reforms.... But like so much of life, criminal justice is dominated by shades of grey. Acknowledging this reality is crucial if we ever hope to have an honest, rational conversation about criminal justice policy in this country.
Sunday, July 04, 2010
Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"In addition to enjoying a beautiful day, I plan this afternoon to read aloud to my kids the full text of the Declaration of Independence. And in this space, I encourage readers to comment on what this starting section of the document signed 234 years ago today should be thought to mean in the context of our modern American systems of criminal sentencing and punishment:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.
Saturday, June 12, 2010
Special JRP issue on "Sentencing and Corrections in the States"I am pleased to be able to report on and promote a the Special Issue on Sentencing and Corrections in the States that was just published by the Justice Research and Policy and it available via this link. Here is how this issue is summarized by the folks at JRP:
This special issue of JRP contains seven articles by leading researchers that examine sentencing and incarceration practices across the United States, with a focus on state issues and practices:
- A National Overview offer strategies for reducing the correctional population across the country as a whole.
- State Focus articles provide in-depth looks at corrections policies and practices in Florida, Pennsylvania, New York, Texas, and California.
- A final Commentary discusses the issues highlighted by these articles and offers insights into present and future U.S. sentencing and corrections practices.
Based on my own quick skim, it appears that every one of the seven articles in this special issue is a must read.
Friday, June 11, 2010
Worth reading around the blogosphere
Also worth checking out are these notable sentencing posts from some other old-favorite blog settings:
- From Pardon Power, "More Mercy in Iran than in Obama Administration!"
- From Prawfsblawg, "Time delayed sentencing gets off the ground!"
- From The Volokh Conspiracy, "Recent Michigan Prosecutions for 'Seducing an Unmarried Woman'”
"Sentencing and Comparative Theory"The title of this post is the title of this notable new piece of scholarship from Professor Richard Frase available via SSRN. Here is the abstract:
Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures.
In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.
Monday, June 07, 2010
"[M]ost law reviews are simply a waste of trees"The title of this post (which is cross-posted at LSI) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer. (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:
During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).
I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.
As Adam Liptak of the New York Times observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them."...
Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon. After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring. The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students. But in terms of contributing to the profession, most law reviews are simply a waste of trees.
To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems. I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.
As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews. And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis." I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees. (And, of course, no trees were killed or even hurt in the production of this blog post.)
Tuesday, June 01, 2010
New NAACP report on "prison-based gerrymandering"As detailed in this press release, this morning "the NAACP Legal Defense and Educational Fund (LDF) released Captive Constituents, a report on prison-based gerrymandering." Here is more from the press release:
As the report details, most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there.
“This practice is known as ‘prison-based gerrymandering,’ and it distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the districts where prisons and jails are located,” said John Payton, LDF Director-Counsel. “Everyone should care about this anti-democratic phenomenon because it distorts our political system.”
The United States Constitution requires that election districts must be roughly equal in size, so that everyone is represented equally in the political process. This requirement, known as the “one person, one vote” principle, is undermined by prison-based gerrymandering.
Prison-based gerrymandering results in stark racial disparities as well. African Americans are nearly 13% of the general population, but are 41.3% of the federal and state prison population. But incarcerated persons are often held in areas that are far removed, both geographically and demographically, from their home communities. Thus, prison-based gerrymandering not only weakens the political strength of communities of color, it is also eerily reminiscent of the infamous “three-fifths compromise,” which enabled Southern states to amplify their political power by counting enslaved and disfranchised African Americans as amongst their constituents.
“Because incarcerated persons in the United States are disproportionately African Americans and other people of color, the current counting of prisoners at their place of incarceration severely weakens the voting strength of entire communities of color,” said Payton.
The full (and brief and colorful) NAACP report is available at this link.
Thursday, May 27, 2010
Two notable federal sentencing pieces in the latest BC Law Review
Thanks to this post at Concurring Opinions, I see that the May 2010 issue of the Boston College Law Review has a student note and an article by a federal defender that should be of special interest for modern federal sentencing fans. Here are the titles and links to these two pieces:
- Alexandra W. Reimelt, An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal, 51 B.C. L. Rev. 871 (2010) [PDF]
- Doug Keller, Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too), 51 B.C. L. Rev. 719 (2010) [PDF]
Great coverage of sentencing issues at FAMM's new blog, SentenceSpeak
I am pleased to seem that the folks at Families Against Mandatory Minimums have their new blog, SentenceSpeak, up and running and it looks like it is on a steady path to being a daily must-read for all sentencing fans. As described to me by one of the progenitors, FAMM's goal "is to create a forum where we can talk about mandatory minimums and other sentencing policies and invite others to participate in that discussion ... and to reach out to people who may know nothing about sentencing, or who may be 'unlikely allies' in the sentencing reform effort."
Here are links to some of the interesting early posts on this new blog:
- Where's the Clemency, Mr. President?
- Stupid is as California Does
- Court Rejects Prosecutors End Run Around Jury
- Sentencing Nerds Unite!
Friday, May 21, 2010
Lots of good reading around the blogsphere
A busy week with travel and grading commitments has largely kept me from making the usual blog rounds this week. But here are a list of a few old faithfuls that have lots of good reading for criminal justice fans to catch up with over the weekend:
Wednesday, May 19, 2010
"Why Care About Mass Incarceration?"The question in the title of this post is the title of this book review by James Forman, Jr. recently published by the Michigan Law Review. The piece reviews Paul Butler's recent work, Let's Get Free: A Hip-Hop Theory of Justice. Here is an excerpt from early in the review:
Paul Butler’s arrest and prosecution transformed his thinking about crime and punishment, and Let’s Get Free is his effort to cajole the nation into a similar transformation. He wants America to incarcerate fewer people, and almost no drug offenders. He explains why juries should consider nullifying in nonviolent cases and why prosecutors should rely less on informant testimony. In a chapter that should be required reading for every student considering a career in criminal law, he provocatively claims that no one who cares about justice should become a prosecutor (Chapter Six). And he argues that his proposals should be adopted because they will make all of us — including the law-abiding majority — better off.
This assertion — that punitive crime policy hurts not just criminals but the rest of us — is the heart of Let’s Get Free. Butler’s argument is fresh, provocative, and worth our attention.