Thursday, January 10, 2013
"Anchoring the Sentencing Scale: A Modest Proposal"The title of this post is the title of this interesting article I came across via SSRN, which covers a sentencing issue that I think gets far too little attention given its practical importance. The piece is authored by Richard Lippke, and here is the abstract:
This paper proposes a partial solution to the anchoring problem in sentencing theory. After explaining the problem and the importance of a solution to it, I advance what I term the “commensurate harms principle,” according to which the losses and deprivations imposed on convicted offenders as punishment should be kept commensurate with the standard harms their crimes cause victims. The principle is defended as an aid to setting sentences for core criminal offense types rather than tokens.
Intelligent application of the principle requires us to gain an informed understanding of both the harms caused by crimes and the harms done by criminal sanctions, particularly imprisonment. The principle is grounded in a justification of legal punishment that involves censure and equalizing hard treatment. Various objections to the principle are addressed, including claims that victim and penal harms cannot be compared and that the harms produced by crimes and criminal sanctions extend beyond victims and offenders. I contend that the commensurate harms principle would counsel the sparing use of imprisonment and with many, though not all offense types, support less harsh sentences than are the norm in many countries.
Monday, December 31, 2012
"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions. And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:
Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.
However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.
The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.
Wednesday, December 26, 2012
"Putting Desert in Its Place"The title of this post is the title of this intriguing new paper by Christopher Slobogin and Lauren Brinkley-Rubinstein now available via SSRN. Here is the aabstract:
Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.” The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation.
This Article describes seven original studies that test the most important hypotheses underlying empirical desert theory. The authors’ conclusions, which throw doubt on much of empirical desert theory, include the following: (1) while consensus on the ordinal ranking of traditional crimes is relatively strong, agreement about appropriate punishments — which arguably is the type of agreement empirical desert requires in order to work — is weak; (2) the relationship between people’s willingness to abide by the law and the law’s congruence with their beliefs about appropriate punishment is complex and not necessarily positive; further, any noncompliance that results from the law’s failure to reflect lay views about desert is probably no greater than the noncompliance triggered by a failure to follow lay views about the role utilitarian goals should play in fashioning criminal dispositions; (3) while the relative crime control benefits of a desert-based system and a prevention-based system are hard to evaluate (and are not directly examined here), people are willing to depart from desert in cases that do not involve the most serious crimes if they believe that preventive goals can be achieved in some other way. The Article ends by discussing the implications of these findings for criminal justice policy, especially with respect to determinate and indeterminate sentencing.
Sunday, December 23, 2012
"The Presumption of Punishment"The title of this post is the title of this interesting-looking new piece by Shima Baradaran which is now up on SSRN. Here is the abstract:
The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day.
Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.
Saturday, December 22, 2012
Latest OSJCL issue with "McClesky at 25" symposium now available on-line
As noted in this prior prior post, the Fall 2012 issue of the Ohio State Journal of Criminal Law has a lead symposium focused on "McClesky at 25." The whole issue is now available on line at this link, and here are all the articles in the symposium:
McClesky at 25 OSJCL Symposium Articles:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
Tuesday, December 18, 2012
The Crime Report lists "Ten Most Significant Criminal Justice Stories of 2012"I always enjoy end-of-the-year Top 10 lists, especially when they deal with matters of crime and punishment. Consequently, I was both excited and intrigued by this lengthy new piece at The Crime Report titled "The Ten Most Significant Criminal Justice Stories of 2012." Here is the set-up to the list, followed by the Top 10 (click through to see discussion of each item on the list):
Even in a year marked by heart-wrenching tragedy, we believe it’s important not to lose sight of developments in criminal justice that promise to improve the lives of millions of Americans — and even make us safer — as we enter 2013.
For our second annual ”Top Ten” list, The Crime Report asked readers, contributors and columnists to join us in nominating the stories and issues they believe have had the most significant impact during 2012 — and will bear watching over the next year.
We won’t pretend the list is definitive. And perhaps, in a reflection of the kind of year it has been, not all the choices represent “positive” impacts.
But as we’ve also noted this year, criminal justice appears to be one of the few areas of our national life where there is broad bipartisan agreement on the shape of an agenda for change.
That’s worth celebrating in 2012.
Later this week, we’ll be running the second part of our annual feature: the top policymakers or newsmakers in criminal justice during 2012....THE 2012 TOP TEN
1. Supreme Court LWOP decision in Miller v Alabama: progress on Juvenile Justice...
2. Passage of Marijuana Legislation in Washington and Colorado...
3. The Connecticut School Shootings and Mass Gun Violence...
4. Trayvon Martin and the intensifying conflict over gun control...
5. Social Impact Bonds and DOJ’s “Investment in Innovation”...
6. Three Strikes Reform in California...
7. Camden (NJ) fires its cops...
8. Connecticut and Capital Punishment...
9. Prison-to-College Pipeline...
10. Pro Bono Requirement for New York Bar...
I personally think #2 on this list is a MUCH bigger deal than anything else on this list. Also, I think the rejection by Californian voters of the effort to repeal the state's death penalty via ballot initiative should be high on this list. And I would love to hear from readers their views on what they think is wrong (or right) about this Top 10 list (which may inform my own end-of-year sentencing law and policy list in the weeks ahead).
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.
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.
Tuesday, December 04, 2012
Terrific symposium in latest issue of the Journal of Legal EducationThough 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.
Monday, November 26, 2012
First articles in OSJCL symposium on "McClesky at 25" now up at SSRN
I 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:
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.”
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."
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:
A Post-Election Justice Reform Agenda by Glenn E. Martin
Will the President Heed the Call For Justice Reform? by Vanita Gupta and Ezekiel Edwards
It’s Time to Address Federal Prison Overcrowding by Matthew Mangino
Obama Can Alter the Landscape of Criminal Law by Bruce Barket
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:
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.
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.
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:
Sunday, September 16, 2012
Deep thoughts on deep punishment theory via SSRNOne 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:
More on the Comparative Nature of Desert: Can a Deserved Punishment Be Unjust? by Ronen Avraham & Daniel Statman
From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm by Nicola Lacey & Hanna Pickard
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.
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.
"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.
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.
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 firstname.lastname@example.org. 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.