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.
Thursday, April 29, 2010
Of interest from The BLT
The Blog of Legal Times has a number of new (and lengthy) posts this week that may be of interest to various sentencing fans for various reasons:
- DOJ Challenges Sex Offender's Effort to Renounce Citizenship
- GOP Senators Hammer Nominee on Death Penalty Case
- Google, Apple Blasted as No-Shows at Children's Online Privacy Hearing
- DOJ Adds Prosecutors to Fight Intellectual Property Crime
Wednesday, April 28, 2010
Latest FSR issue, "Booker at Five," now available on-line
I am overdue in reporting that the latest issue of the Federal Sentencing Reporter, which is full of analysis and primary materials assessing federal sentencing law and practice five years after the Booker decision, is available on-line. This issue bears the simple title "Booker at Five," and an array of professors and practitioners discuss various of current state of the post-Booker sentencing landscape. The Table of Connects 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.)
FSR editor Paul Hofer played a central role in this timely FSR issue; Paul and I co-authored the issue's Editors' Observations, which is available here and is titled "A Look at Booker at Five." Here is how our introduction gets started:
The old saw “time flies when you’re having fun” does not quite capture the five years since the Supreme Court’s decision in United States v. Booker. To most observers, at least those outside the Department of Justice and perhaps a few circuit courts, the advisory guideline sentencing system created by the Booker remedial opinion is an improvement over the rigid mandatory guidelines system that the Booker merits opinion declared unconstitutional. Yet the U.S. Bureau of Prisons still runs the largest prison system in the United States, which is itself the nation with the highest incarceration rate in the world. And even district judges and defense attorneys, who may be the biggest fans of the post-Booker federal sentencing system, would surely agree that many aspects of the current system are far from perfect.
Though not everyone may be having “fun,” there has been no shortage of federal sentencing activity to keep everyone busy thinking about the ruling and its consequences and impact. In this time, more than 350,000 defendants have been sentenced under the effectively advisory guidelines. The Supreme Court has handed down five additional opinions clarifying implications of the Booker decision (with more in the works), and both district and circuit courts have grappled with issues left unanswered, with varying degrees of success (and expressions of frustration). Almost as noteworthy is what has not happened. Congress has not picked up the ball hit into its court by the Supreme Court’s Booker remedy, and the U.S. Sentencing Commission has barely acknowledged that the guidelines are advisory in its Guidelines Manual — plus, no major guideline revisions can be attributed to the decision.
In this issue of Federal Sentencing Reporter, we have solicited a range of authors to provide their perspective on what has and has not changed in the federal sentencing system after Booker. And, in these Editors’ Observations, we seek to spotlight how these perspectives provide a deeper understanding of whether the changes wrought by the Booker decision and its aftermath are the sort that those interested in sentencing justice should believe in.
Other recent FSR issues:
- FSR Issue 22.1: Alternatives to Incarceration in the Federal System
- FSR Issue 21.5: Fast Track Sentencing
- FSR Issue 21.4: On the Shoulders of Giants
- FSR Issue 21.3: "Second Look" Sentencing Reforms
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
Tuesday, April 20, 2010
New coverage of FSR at the website of the Vera Institute of JusticeI am pleased to be able to spotlight that the terrific Center on Sentencing & Corrections at the Vera Institute of Justice has created this new webpage featuring the work of the Federal Sentencing Reporter. Alison Shames, the Associate Director of the Center on Sentencing and Corrections, provides this kind introduction to this new web locale:
Vera and the Federal Sentencing Reporter share an approach to policy change that relies on information, analytical examination, and innovation. Rare among scholarly journals, the Federal Sentencing Reporter focuses — in its authorship and readership — on academics as well as practitioners. In its pages, conversations take place among judges, lawyers, policy makers, and scholars. The publication is an intellectual resource that people in the field turn to for solutions and that academics rely on to propose, learn about, and discuss new ideas. Each issue offers in-depth analysis on a wide range of topics related to sentencing policies and practices.
The Federal Sentencing Reporter is published five times a year. For each issue, Vera posts the “Editor’s Observations” (a regular feature that highlights the themes of the issue), a select article, and the table of contents on its website. Other articles, subscription services, and archives are available through University of California Press.
Tuesday, April 13, 2010
"Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice"The title of this post is the title of this notable new paper from Professors Dan Markel and Chad Flanders now appearing on SSRN. Here is the abstract:
In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.
Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.
Sunday, April 11, 2010
"Class Matters" gives needed attention to socioeconomic criminal justice questionsNow available via SSRN is this important new piece by Professor Erica J. Hashimoto titled "Class Matters." As its abstract highlights, this piece gives overdue attention to a very important aspect of modern criminal justice realities:
Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.
This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.
Wednesday, March 31, 2010
Is the mass media to blame for a distorted perceptions of criminal danger?The question in the title of this post is inspired by this interesting new piece published in Crime, Media, Culture: An International Journal, which is available via SSRN. The piece is titled "The Ambivalent Consequences of Visibility: Crime and Prisons in the Mass Media," and here is the abstract:
This article aims to demonstrate that, despite their potential for cultivating communitarianism and deliberative democracy on a large scale, the mass media contribute decisively to the formation of punitiveness amongst the public by means of selective semiotic aestheticisation. They overstate the problem of crime; put the blame on marginalised cohorts and level heavy criticism against the administration of prisons purportedly for laxity; issue urgent calls for ever-greater reliance on the use of strict imprisonment by the authorities and the adoption of self-policing measures by local communities and private individuals; and either mute or neutralise the attendant hardships prisoners suffer at the hands of the state. Breaking with discourses of rational linearity, whereby distorted perceptions of criminal danger result in punitive reactions, the claim is made that the imagery of crime and punishment helps audiences resolve at the level of symbolic expression contradictions which remain unconsciously insoluble at the level of everyday life.
Tuesday, March 23, 2010
"Apprendi Land Becomes Bizarro World"The title of this post is part of the cool title of this new paper now on SSRN from Benjamin Priester. The full title of the piece is "Apprendi Land Becomes Bizarro World: “Policy Nullification” and Other Surreal Doctrines in the New Constitutional Law of Sentencing," and here is the abstract:
Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F – but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land – which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.
Thursday, March 11, 2010
Latest FSR issue on federal alternatives to incarceration now available on-line
I am pleased to report that the latest issue of the Federal Sentencing Reporter is now available on-line, bearing the title "Decreasing Incarceration in the Federal System: Alternative Sanctions, Diversion, and Other Models." The Table of Connects 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.)
This timely FSR issue on sentencing alternatives was put together by FSR editor Nora Demleitner. And the title of her Editor’s Observations, which are available here, captures some of the spirit and themes of the whole issue: "Replacing Incarceration: The Need for Dramatic Change." The issue is filled with a variety of provocative ideas about how such a change might be engineered in the federal system.
Other recent FSR issues:
- FSR Issue 21.5: Fast Track Sentencing
- FSR Issue 21.4: On the Shoulders of Giants
- FSR Issue 21.3: "Second Look" Sentencing Reforms
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
- FSR Issue 20.2: Prisoner Reentry
Wednesday, March 10, 2010
Lots of notable new sentencing notes in the Notre Dame Law ReviewThe Notre Dame Law Review will always have an extra warm stop in my professional heart because it published my first big sentencing piece about departures over a decade ago. Now, thanks to a helpful reader, I have now leared that the February 2010 issue of the NDLR includes this trio of notable law review notes that look worth a look:
- The Use of Sentencing Findings as a Collateral Estoppel Weapon in Subsequent Civil Litigation (by Jonathan Scott Baker at 85 Notre Dame L. Rev. 713)
- The Unwelcome Cohort: When the Sentencing Judge Invades Your Bedroom (by Elizabeth M. Bux at 85 Notre Dame L. Rev. 745)
- Double Take: Evaluating Double Jeopardy Reform (by Kenneth G. Coffin at 85 Notre Dame L. Rev. 771)
Though all three of these pieces look like worthwhile reading, I am especially excited to learn that it has been sentencing judges (and not monsters) hiding under my bed all these years.
Monday, January 25, 2010
Lots of good reading around the crim law blogosphere...
at many of my favorite criminal law blogs, including:
California Corrections Crisis (with recent favorite "GPS Monitoring: Now Expanded to Include Gang Members")
- Prison Law Blog (recent fav "New Jersey Prisoner Alleges He Was Subjected to a Fake Electrocution")
Thursday, January 14, 2010
"The New Jim Crow: Mass Incarceration in the Age of Colorblindness"
The title of this post is the title of this terrific new book by my colleague Michelle Alexander that is just out from The New Press. Here is a snippet from the text along with the the publisher's description of the work:
Jarvious Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Klu Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation; his father was barred by poll taxes and literacy tests. Today, Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole. —FROM THE NEW JIM CROW
As the United States celebrates the nation’s “triumph over race” with the election of Barack Obama, the majority of young black men in major American cities are locked behind bars or have been labeled felons for life. Although Jim Crow laws have been wiped off the books, an astounding percentage of the African American community remains trapped in a subordinate status — much like their grandparents before them.
In this incisive critique, former litigator-turned-legal-scholar Michelle Alexander provocatively argues that we have not ended racial caste in America: we have simply redesigned it. Alexander shows that, by targeting black men and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of color blindness. The New Jim Crow challenges the civil rights community — and all of us — to place mass incarceration at the forefront of a new movement for racial justice in America.
Wednesday, January 13, 2010
"Rising Road: A True Tale of Love, Race, and Religion in America"
The title of this post is the title of this amazing new bookby my colleague Sharon Davies that is just out from Oxford University Press. Here is the publisher's description of the work, which highlights why those interested in criminal justice history and SCOTUS Justice history should be sure to check out this great new book:
It was among the most notorious criminal cases of its day. On August 11, 1921, in Birmingham, Alabama, a Methodist minister named Edwin Stephenson shot and killed a Catholic priest, James Coyle, in broad daylight and in front of numerous witnesses. The killer's motive? The priest had married Stephenson's eighteen-year-old daughter Ruth -- who had secretly converted to Catholicism three months earlier -- to Pedro Gussman, a Puerto Rican migrant and practicing Catholic.
Having all but disappeared from historical memory, the murder of Father Coyle and the trial of Rev. Stephenson that followed are vividly resurrected in Sharon Davies's Rising Road. As Davies reveals in remarkable detail, the case laid bare all the bigotries of its time and place: a simmering hatred not only of African Americans, but of Catholics and foreigners as well. In one of the case's most interesting twists, Reverend Stephenson hired future U.S. Supreme Court justice Hugo Black to lead his defense team. Though Black would later be regarded as a champion of civil rights, at the time the talented defense lawyer was only months away from joining the Ku Klux Klan, which held fundraising drives to finance Stephenson's defense. Entering a plea of temporary insanity, Black and his client used both religion and race-accusing the Puerto Rican husband of being "a Negro" -- in the hopes of persuading the jury to forgive the priest's murder.
Placing this story in its full social and historical context, Davies brings to life a heinous crime and its aftermath, in a brilliant, in-depth examination of the consequences of prejudice in the Jim Crow era.
Tuesday, January 05, 2010
"Do Standards of Review Matter? The Case of Federal Criminal Sentencing"The title of this post is the title of this interesting empirical article by Max Schanzenbach and Joshua Fischman available here via SSRN. Here is the abstract:
We exploit changes in sentencing doctrine over the last eighteen years to examine the interplay of judicial ideology, standards of review, and the United States Sentencing Guidelines. We find substantial differences in sentencing practices among district judges along two lines: whether judges were appointed by Republican or Democratic presidents, and whether judges joined the federal bench before the Guidelines. Democrats and judges appointed prior to the Guidelines’ adoption depart more from the Sentencing Guidelines and give lower sentences. However, the differences between Republicans and Democrats increase substantially as the standard of review becomes more deferential. On the other hand, we find that judges appointed before the Guidelines were adopted are significantly less responsive to changes in the standard of review. Our results have broad implications for the study of judicial behavior by showing that district judges respond to standards of review and that aversion to reversal acts as a substantial constraint on sentencing decisions. However, the unresponsiveness of judges appointed prior to the Guidelines suggests that this constraint does not operate uniformly, but rather varies with a judge’s respect for the underlying legal regime.
Saturday, December 19, 2009
Deep thoughts (and a great title) concerning drug and vice crimesThis article available via SSRN attracted my attention based just on its title, which is "Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward a Reformation of Drug and Prostitution Regulations." And, as this part of the abstract highlights, there are some deep thoughts behind the cool title:
This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means."... The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.
From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.