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.
Monday, August 29, 2011
New US Sentencing Commission reviews of sentencing jurisprudence
Undaunted by earthquakes or hurricanes or the unnatural disasters that are even more common inside the Beltway these days, the US Sentencing Commission this summer has completed and now posted new documents that "present specific decisions by the U.S. Supreme Court and U.S. circuit courts of appeals regarding the federal sentencing guidelines and related sentencing issues."
Specifically, at this link everyone can find a lengthy document with brief summaries of nearly every major Supreme Court ruling on federal sentencing issues over the last 25 years. And, on this page, everyone can find links to circuit-by-circuit reports on guideline interpretation and post-Booker jurisprudence.
Thursday, August 18, 2011
2011-2012 supplement for Sentencing Law and Policy casebook now available
As a new school year approaches, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook. Anyone can download this 2011-2012 supplement below.
This updated supplement includes edited versions and notes on the 2011 SCOTUS cases of Pepper and Plata (while also retaining versions of the big prior recent SCOTUS cases of Graham, Padilla, Kennedy, Kimbrough and Gall). There are also a bunch of additional notes covering various major sentencing developments from the past few years, including the passage of the Fair Sentencing Act of 2010 and the litigation surrounding the capital punishment administration in North Carolina in the wake of the state's adoption of its racial Justice Act.
As always, my co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.
Tuesday, August 02, 2011
Lots of diverse crime and punishment news at The Crime Report
I have often mentioned that one of my daily web-stops for criminal justice news and commentary is The Crime Report, and this fascinating and diverse set of recent entries under its Crime and Justice News banner helps highlight why:
- Second-Strike Penalties Account for 32,000 California Prison Inmates
- Utah Sees Gains in Stubborn Problem of Prisoner Recidivism
- Next Legal Gun Fight May Be the Right to Bear Arms in Public
- 'Social Impact Bonds' Touted for Criminal Justice Investments
- HuffPost: More College Students Paying Bills Through Prostitution
Tuesday, July 05, 2011
Crackerjack coverage of new crack guidelines and retroactivity decision on USSC website
I am very pleased to see and to report that the US Sentencing Commission's ever-improving website now has this special webpage titled "Materials on Federal Cocaine Offenses." This new special page provides especially effective and comprehensive coverage of the USSC's decision last week to make its new crack sentencing guideline retroactive. This new webpage also brings together in one space via links all the most important USSC materials concerning federal crack sentencing law and policy, including a helpful "Reader-Friendly" Version of Amendment on Retroactivity, which becomes effective November 1, 2011.
I sincerely hope that the US Sentencing Commission will continue to build these sorts of specialized pages with collected materials on all hot federal sentencing topics. I believe additional special pages on the immigration guidelines, the child porn guidelines, the fraud guidelines and others could and would be very helpful to both practitioners and researchers.
July 5, 2011 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Recommended reading | Permalink | Comments (2) | TrackBack
Saturday, July 02, 2011
"Cruel and Unusual Federal Punishments"
The title of this post is the title of this interesting and important new article by Professor Michael Mannheimer. Here is the abstract:
In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct. This is the result of the confluence of two trends. First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court. Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.
Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed. This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical. Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.
The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth. Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct. Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty. Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State. Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate. And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.
This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish. That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States. Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.
July 2, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, June 20, 2011
Lots of notable new items via The Crime Report
The Crime Report website is a daily stop for me because it always has original pieces and links to other reporting about a rnage of important criminal justice issues with sentencing law and policy dimensions. For example, newly up on the site are these three notable items:
Thursday, June 02, 2011
Latest OSJCL issue with lots of deep punishment and sentencing thoughts
I am very pleased to report that the Spring 2011 issue of the Ohio State Journal of Criminal Law is now fully available on-line. There are an especially large number of terrific pieces in this issue, which includes not only a thoughtful article symposium on "Political Theory and Criminal Punishment" but also an awesome commentary symposium on "The HBO Series The Wire." I am eager to praise and promote every piece in this new OSJCL issue, though here I will spotlight just a few of the pieces that ought to be of special interest to sentencing fans:
Zachary Hoskins, Deterrent Punishment and Respect for Persons, 8 Ohio St. J. Crim. L. 369 (2011).
Mary Sigler, The Political Morality of the Eighth Amendment, 8 Ohio St. J. Crim. L. 403 (2011).
Roger Lane, Taking the Mystery Out of Murder Rates: Can It Be Done?, 8 Ohio St. J. Crim. L. 553 (2011).
William H. Pryor, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).
Tuesday, May 24, 2011
"Padilla and The Delivery of Integrated Criminal Defense"
The title of this post is the title of this notable new paper by Professor Ron Wright. Here is the abstract:
The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team. This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession.
Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices.
The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys -- in short, toward a more bureaucratic criminal defense.