Tuesday, August 14, 2012
"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 email@example.com. 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.
Wednesday, June 13, 2012
Lots new to check out over at The Crime Report
Regular readers may be tired of hearing my recommendation that every sentencing fan should should make regular visits to The Crime Report. But these items, all posted in just the last day, provide more support for my advice:
Tuesday, May 08, 2012
Call for papers for ABA/AALS joint conference this Fall in DC
I have been really intrigued and impressed by special criminal justice programs that have been put together by the ABA each fall over the last few years. To its credit, the ABA has made a special effort in these events to connect criminal justice practitioners and academics (as evidenced by the speakers brought together at last year's event). Consequently, I am pleased to be able to promoted this "Call for Papers — Criminal Justice" in conjunction with this year's planned event:
On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice. All papers on criminal law, criminal procedure, or criminal justice topics are welcome.
Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.
To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at firstname.lastname@example.org and Laurent Sacharoff at email@example.com by Aug. 15, 2012. Space is limited and presenters will be chosen by members of the organizing committee.
Monday, March 19, 2012
Professor Bibas guest-blogging on "The Machinery of Criminal Justice"
Especially because I am heading out on a Spring Break trip that will soon lessen my (daytime) blogging opportunities, I am very pleased to be able to welcome Professor Stephanos Bibas as a guest-blogger to discuss sentencing issues raised by his terrific new book my new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here. (Though I have not yet had a chance to read the entire book, I feel confident already describing the book as terrific based on the introduction available here via SSRN and based on the guest-blogging Stephanos has already done recently in this series of posts at The Volokh Conspiracy.)
For those interested in the broad array of topics that Stephanos takes on in this book (and everyone should be), I highly encourage whetting your appetite by checking out the posts already up at Volokh (or at least this provocative first one in the series). Here is a key theme from the book mentioned set forth in that post: "without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency."
Stephanos reports he will be covering a lot of different ground in this blog space than he did at Volokh. As he put it in an e-mail to me, he plans to cover different aspects of the book likely to be of even more interest to sentencing fans, "especially the shift from temporary punishments to prison, the frustration that causes, and various reforms to punishments (work / military service, collateral consequences, reentry)." I am very happy to be lending this space for this great use and very excited to see what Stephanos has to say.
(I hope and expect to do still do some additional blogging while on the road over the next few days, but I cannot predict how much or how often, especially because I also have a fantasy baseball draft for which to prepare.)
Tuesday, February 21, 2012
Notable new blog on wrongful convictions
I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog. The web address is www.wrongfulconvictionsblog.org, or you can just click the link above.
The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning. You will see that we have contributing editors from all over the world, thus the tagline is: "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum." There is a place for comments and debate on each post....
The blog will involve more than just news and links. We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.
A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space. That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.
Monday, February 20, 2012
Lots to read about American sentencing development on this patriotic day off
For reasons I only partially understand, I have a regular teaching day at my law school; it seems nearly all other government-linked institutions have an extra day to their weekend thanks to our nation's greatest presidents. Fortunately, for those sentencing fans looking to find a productive way to spend this extra day off, there are lots of new papers on SSRN worth giving a look. Here is just an abridged list of pieces recently added to SSRN that I hope I might soon find time to read:
The Failure of Parole: Rethinking the Role of the State in Reentry by Christine S. Scott-Hayward
Protecting Liberty and Autonomy: Desert/Disease Jurisprudence by Stephen Morse
Thursday, February 02, 2012
New report from The Sentencing Project on latest state-level sentencing reforms
I received news of this notable new report on state-level sentencing reforms coming from The Sentencing Project. The report is titled “The State of Sentencing 2011: Developments in Policy and Practice,” is authored by Nicole Porter, and is summarized this way via the e-mail I got yesterday:
The report highlights 55 reforms in 29 states and documents a growing trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety. The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice. Highlights include:
• Sentence modifications - Four states -- Connecticut, Ohio, Nebraska, and North Dakota -- established sentence modification mechanisms that allow correctional officials to reduce the prison sentences of eligible prisoners;
• Drug offense reforms - Four states -- Arkansas, Delaware, Kentucky, and Ohio -- revised penalties for certain drug offenses and authorized alternatives to prison as a sentencing option in specified circumstances. In addition, Idaho and Florida expanded the eligibility criteria for drug courts in order to expand their impact.
• Death penalty - Illinois abolished the death penalty, becoming the sixteenth state to eliminate the sentencing option;
• Probation revocation reforms - North Carolina restricted the use of prison as a sentencing option for certain persons who violate the conditions of probation; and
• Juvenile offender sentencing reforms - Georgia authorized sentence modifications for certain juvenile defendants with felony offenses by allowing judges to depart from the statutory range when considering the youth’s background.
Friday, November 11, 2011
"Blind Goddess": a new reader on race and criminal justice
Via an e-mail for the folks at The Sentencing Project, I have learned of this new book on note titled "Blind Goddess: A Reader on Race and Justice." The book has edited selections from a broad range of scholars and advocates discussing racial dynamics intersect with the criminal justice system. Here is a summary of the work from the publisher's website:
Blind Goddess brings together the most significant writings of practitioners, professors, and advocates to make sense of what is perhaps the nation’s most astonishing and shameful achievement: the highest per-capita incarceration rate anywhere in the world compounded by the shockingly disproportionate imprisonment of poor people of color. Although there is growing awareness of the huge fiscal cost of mass incarceration, the moral, human, and social devastation of racially skewed law enforcement remains largely unrecognized.
Featuring many of today’s premier legal scholars, experts, and writers—among them David Cole, Glenn C. Loury, Bob Herbert, and Lani Guinier—here is a boundary-pushing book that elucidates the impact of race on each stage of the criminal process. From policing and prosecuting to jury selection, sentencing, prison conditions, and reentering society, Blind Goddess is an essential volume for the general reader and an ideal reality check for students of criminal law. With selections from critically acclaimed contemporary works including Michelle Alexander’s The New Jim Crow, Paul Butler’s Let’s Get Free, Amy Bach’s Ordinary Injustice, and Robert Perkinson’s Texas Tough, Blind Goddess provides easy access to a wealth of cutting-edge analyses and concrete solutions.
Thursday, November 10, 2011
Effective new report on effective state-level sentencing and corrections reforms
Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms." This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:
States continue to struggle during what is the most difficult fiscal environment since the Great Depression. Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less. Full economic recovery may not happen until the end of the decade. With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.
Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections. They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes. Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.
Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:
- South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism;
- Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
- Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.
The challenge to states is to make cuts in corrections spending while maintaining public safety. Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not. Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent. Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.
States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:
- Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
- Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
- Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
- Support mandatory supervision and treatment in the community; and
- Use real-time data and information for decision-making.
Wednesday, November 09, 2011
"Marriage as Punishment"
The title of this post is the title of this forthcoming article by Professor Melissa Murray now available on SSRN. As the abstract reveals, this piece a serious discussion of interesting issues (though the title might sound like the punchline of a bad joke among rowdy bachelors):
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used -- and importantly, continues to be used -- as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.
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.