Monday, November 26, 2012
First articles in OSJCL symposium on "McClesky at 25" now up at SSRN
I am very pleased to report that two articles from the Fall 2012 issue of the Ohio State Journal of Criminal Law are now available via SSRN. There are an especially large number of terrific pieces in this issue, all of which I will be praising and promoting when the full issue comes on-line in the next few days. But, because the articles already on SSRN come from the lead symposium focused on "McClesky at 25," I will start shining the spotlight now for sentencing fans:
Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.
Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote -- a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?
G. Ben Cohen, McCleskey's Omission: The Racial Geography of Retribution:
Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.
This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment. A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level. The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.
Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.
The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment. In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”
Wednesday, November 21, 2012
Holiday reading for sentencing fans in Harvard Law Review SCOTUS issue
The Harvard Law Review's annual Supreme Court review issue is now available here on line, and there are at least three pieces that should be of special interest to sentencing fans.
Professor Stephanos Bibas has this comment on Lafler v. Cooper and Missouri v. Frye which is titled "Incompetent Plea Bargaining and Extrajudicial Reforms." In addition, the HLR staff has case comments labelled "Factfinding in Sentencing for Criminal Fines: Southern Union Co. v. United States" and "Mandatory Juvenile Life Without Parole: Miller v. Alabama."
Friday, November 16, 2012
Reform advice for Prez Obama's second term at The Crime Report
The folks at The Crime Report have recently posted this group of terrific commentaries with post-election advice for President Obama:
A Post-Election Justice Reform Agenda by Glenn E. Martin
Will the President Heed the Call For Justice Reform? by Vanita Gupta and Ezekiel Edwards
It’s Time to Address Federal Prison Overcrowding by Matthew Mangino
Obama Can Alter the Landscape of Criminal Law by Bruce Barket
Monday, October 15, 2012
"John Paul Stevens, Originalist"The title of this post is the title of this intriguing paper now on SSRN by Professor (and former Stevens clerk) Diane Marie Amann. Here is the abstract:
I must note that this Essay mentions Baze in its discussion of Justice Stevens as an originalist, but makes no mention of Apprendi. For that reason, I suspect that this piece is more provocative than comprehensive in making the case for a special kind of Stevens-filtered originalism. Still, with the last section of the Essay headed "Justice Stevens, Justice Scalia, and the Substance of Liberty," I think this is still a must-read.
Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism." It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist -- as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution. To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.
Tuesday, September 18, 2012
"Crime, Weather, and Climate Change"The title of this post is the title of this notable paper by Matthew Ranson available via SSRN. Here is the abstract:
This paper estimates the impact of climate change on the prevalence of criminal activity in the United States. The analysis is based on a 50-year panel of monthly crime and weather data for 2,972 U.S. counties. I identify the effect of weather on monthly crime by using a semi-parametric bin estimator and controlling for county-by-month and county-by-year fixed effects. The results show that temperature has a strong positive effect on criminal behavior, with little evidence of lagged impacts. Between 2010 and 2099, climate change will cause an additional 30,000 murders, 200,000 cases of rape, 1.4 million aggravated assaults, 2.2 million simple assaults, 400,000 robberies, 3.2 million burglaries, 3.0 million cases of larceny, and 1.3 million cases of vehicle theft in the United States.
Yikes! Well, I guess the good news is that I can now think of my Prius as a crime-fighting machine.
Seriously, I have long understood there are important connections between weather and crime, and perhaps this article provides (still more) justification for climate change advocates to consider seizing upon a "tough on crime" mantra.
Recent related post:
Sunday, September 16, 2012
Deep thoughts on deep punishment theory via SSRNOne of many reasons I like finding time to read papers on punishment theory is to see if and how new deep thoughts can be presented on a deep subject that has been debated since the start of recorded history. And, thanks to SSRN, here are two more new entries with deep thoughts on deep punishment theory:
More on the Comparative Nature of Desert: Can a Deserved Punishment Be Unjust? by Ronen Avraham & Daniel Statman
From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm by Nicola Lacey & Hanna Pickard
Saturday, September 08, 2012
"Retribution as Revenge and Retribution as Just Deserts"The title of this post is the title of this interesting looking new article now up at SSRN authored by Monica Gerber and Jonathan Jackson. Here is the abstract:
Public attitudes towards law-breakers shape the tone and tenor of crime-control policy. The desire for retribution seems to be the main motivation underpinning punitive attitudes towards sentencing, yet there is some confusion in the research literature over what retribution really means. In this paper we distinguish between retribution as revenge (as the desire to punish criminal offenders to retaliate a past wrong by making the offender suffer) and retribution as just deserts (as the preference to restore justice through proportional compensation from the offender).
Results from an online survey (n=176) provide evidence of two distinct dimensions of retribution, but we also show that these two dimensions have different ideological and motivational antecedents, and have different consequences in terms of the treatment of criminal offender. We find that retribution as revenge is associated with the motivation to enforce status boundaries with criminal offenders, as well as ideological preferences for power and dominance (as expressed by social dominance orientation) and in-group conformity (as expressed by right-wing authoritarianism). Endorsement of retribution as revenge also predicts the support of harsh punishment and the willingness to deny fair procedures. By contrast, retribution as just deserts is mainly predicted by a value restoration motive and by right-wing authoritarianism. After controlling for revenge, retribution as just deserts predicts support for procedural justice in the criminal courts. We conclude with the idea that beliefs about proportionality and compensation work as a buffer against the negative effects of revenge.
Tuesday, August 14, 2012
"Reality-Challenged Philosophies of Punishment"
The title of this post is the title of this notable new article by the always terrifically interesting Professor Robert Weisberg. This piece is now available via SSRN, and here is the abstract:
This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.” Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world. More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.
Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world. Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison? Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account? Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty? In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous. Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.
"Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment"
The title of this post is the title of this latest and greatest must-read piece about the state and future of the US death penalty coming from Professors Carol Steiker and Jordan Steiker. Here is the abstract:
In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade. Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization.
We contrast the effects of the death penalty reforms of prior generations -- such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods -- with the reforms of the modern era of constitutional regulation. The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence. We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious. We explore the implications of these insights for two broader debates -- the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.
Tuesday, June 26, 2012
"Crime, Punishment, and the Psychology of Self-Control"
The title of this post is the title of this new paper by Rebecca E. Hollander-Blumoff now available via SSRN. Here is the abstract:
Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.
Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.
Saturday, June 23, 2012
Hearty welcome to a timely new blog: "Juvenile Justice Blog"
I am very pleased to welcome to the blogosphere Juvenile Justice Blog, a fantastic looking new blog by UNC law prof Tamar Birckhead. Here is how Tamar, whose blog bio is available here, describes her new blog creation:
The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States.
It is intended for lawyers, academics, advocates, students, and all others interested in juvenile court practice, the fair sentencing of youth, and the criminalization of poverty, among other related topics.
If you would like to see something posted that fits within these themes, please email the blog administrator at firstname.lastname@example.org. As this is a work in progress, I welcome your thoughts, suggestions, and comments.
There is already a lot of great content on JJB. And with a big SCOTUS ruling on the constitutional of juve LWOP coming wihtin the week, I am sure to make JJB a daily read in the weeks ahead.
Wednesday, June 13, 2012
Lots new to check out over at The Crime Report
Regular readers may be tired of hearing my recommendation that every sentencing fan should should make regular visits to The Crime Report. But these items, all posted in just the last day, provide more support for my advice:
Tuesday, May 08, 2012
Call for papers for ABA/AALS joint conference this Fall in DC
I have been really intrigued and impressed by special criminal justice programs that have been put together by the ABA each fall over the last few years. To its credit, the ABA has made a special effort in these events to connect criminal justice practitioners and academics (as evidenced by the speakers brought together at last year's event). Consequently, I am pleased to be able to promoted this "Call for Papers — Criminal Justice" in conjunction with this year's planned event:
On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice. All papers on criminal law, criminal procedure, or criminal justice topics are welcome.
Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.
To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at email@example.com and Laurent Sacharoff at firstname.lastname@example.org by Aug. 15, 2012. Space is limited and presenters will be chosen by members of the organizing committee.
Monday, March 19, 2012
Professor Bibas guest-blogging on "The Machinery of Criminal Justice"
Especially because I am heading out on a Spring Break trip that will soon lessen my (daytime) blogging opportunities, I am very pleased to be able to welcome Professor Stephanos Bibas as a guest-blogger to discuss sentencing issues raised by his terrific new book my new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here. (Though I have not yet had a chance to read the entire book, I feel confident already describing the book as terrific based on the introduction available here via SSRN and based on the guest-blogging Stephanos has already done recently in this series of posts at The Volokh Conspiracy.)
For those interested in the broad array of topics that Stephanos takes on in this book (and everyone should be), I highly encourage whetting your appetite by checking out the posts already up at Volokh (or at least this provocative first one in the series). Here is a key theme from the book mentioned set forth in that post: "without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency."
Stephanos reports he will be covering a lot of different ground in this blog space than he did at Volokh. As he put it in an e-mail to me, he plans to cover different aspects of the book likely to be of even more interest to sentencing fans, "especially the shift from temporary punishments to prison, the frustration that causes, and various reforms to punishments (work / military service, collateral consequences, reentry)." I am very happy to be lending this space for this great use and very excited to see what Stephanos has to say.
(I hope and expect to do still do some additional blogging while on the road over the next few days, but I cannot predict how much or how often, especially because I also have a fantasy baseball draft for which to prepare.)
Tuesday, February 21, 2012
Notable new blog on wrongful convictions
I wanted to let you know that several of us involved in the Innocence Movement launched a new blog today, The Wrongful Convictions Blog. The web address is www.wrongfulconvictionsblog.org, or you can just click the link above.
The purposes of the blog are to (1) provide one place where you can go to get all the news and info about wrongful convictions, and (2) foster discussion, debate, and learning. You will see that we have contributing editors from all over the world, thus the tagline is: "Addressing Wrongful Conviction and Actual Innocence Issues in an International Forum." There is a place for comments and debate on each post....
The blog will involve more than just news and links. We will also have frequent commentaries/editorials on various topics, such as the commentaries up now about forensic odontologists attempting to validate their "science," the state of junk science generally, reacting to prosecutorial misconduct, and conviction integrity units at prosecutor's offices.
A quick review of the new blog shows right away that there will be lots of notable and important internation perspectives covered in this space. That reality, together with the terrific group of persons involved with the blog, means I will be sure to make this new resource a regular stop in my blogosphere travels.
Monday, February 20, 2012
Lots to read about American sentencing development on this patriotic day off
For reasons I only partially understand, I have a regular teaching day at my law school; it seems nearly all other government-linked institutions have an extra day to their weekend thanks to our nation's greatest presidents. Fortunately, for those sentencing fans looking to find a productive way to spend this extra day off, there are lots of new papers on SSRN worth giving a look. Here is just an abridged list of pieces recently added to SSRN that I hope I might soon find time to read:
The Failure of Parole: Rethinking the Role of the State in Reentry by Christine S. Scott-Hayward
Protecting Liberty and Autonomy: Desert/Disease Jurisprudence by Stephen Morse
Thursday, February 02, 2012
New report from The Sentencing Project on latest state-level sentencing reforms
I received news of this notable new report on state-level sentencing reforms coming from The Sentencing Project. The report is titled “The State of Sentencing 2011: Developments in Policy and Practice,” is authored by Nicole Porter, and is summarized this way via the e-mail I got yesterday:
The report highlights 55 reforms in 29 states and documents a growing trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety. The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice. Highlights include:
• Sentence modifications - Four states -- Connecticut, Ohio, Nebraska, and North Dakota -- established sentence modification mechanisms that allow correctional officials to reduce the prison sentences of eligible prisoners;
• Drug offense reforms - Four states -- Arkansas, Delaware, Kentucky, and Ohio -- revised penalties for certain drug offenses and authorized alternatives to prison as a sentencing option in specified circumstances. In addition, Idaho and Florida expanded the eligibility criteria for drug courts in order to expand their impact.
• Death penalty - Illinois abolished the death penalty, becoming the sixteenth state to eliminate the sentencing option;
• Probation revocation reforms - North Carolina restricted the use of prison as a sentencing option for certain persons who violate the conditions of probation; and
• Juvenile offender sentencing reforms - Georgia authorized sentence modifications for certain juvenile defendants with felony offenses by allowing judges to depart from the statutory range when considering the youth’s background.
Friday, November 11, 2011
"Blind Goddess": a new reader on race and criminal justice
Via an e-mail for the folks at The Sentencing Project, I have learned of this new book on note titled "Blind Goddess: A Reader on Race and Justice." The book has edited selections from a broad range of scholars and advocates discussing racial dynamics intersect with the criminal justice system. Here is a summary of the work from the publisher's website:
Blind Goddess brings together the most significant writings of practitioners, professors, and advocates to make sense of what is perhaps the nation’s most astonishing and shameful achievement: the highest per-capita incarceration rate anywhere in the world compounded by the shockingly disproportionate imprisonment of poor people of color. Although there is growing awareness of the huge fiscal cost of mass incarceration, the moral, human, and social devastation of racially skewed law enforcement remains largely unrecognized.
Featuring many of today’s premier legal scholars, experts, and writers—among them David Cole, Glenn C. Loury, Bob Herbert, and Lani Guinier—here is a boundary-pushing book that elucidates the impact of race on each stage of the criminal process. From policing and prosecuting to jury selection, sentencing, prison conditions, and reentering society, Blind Goddess is an essential volume for the general reader and an ideal reality check for students of criminal law. With selections from critically acclaimed contemporary works including Michelle Alexander’s The New Jim Crow, Paul Butler’s Let’s Get Free, Amy Bach’s Ordinary Injustice, and Robert Perkinson’s Texas Tough, Blind Goddess provides easy access to a wealth of cutting-edge analyses and concrete solutions.
Thursday, November 10, 2011
Effective new report on effective state-level sentencing and corrections reforms
Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms." This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:
States continue to struggle during what is the most difficult fiscal environment since the Great Depression. Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less. Full economic recovery may not happen until the end of the decade. With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.
Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections. They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes. Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.
Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:
- South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism;
- Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
- Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.
The challenge to states is to make cuts in corrections spending while maintaining public safety. Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not. Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent. Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.
States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:
- Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
- Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
- Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
- Support mandatory supervision and treatment in the community; and
- Use real-time data and information for decision-making.
Wednesday, November 09, 2011
"Marriage as Punishment"
The title of this post is the title of this forthcoming article by Professor Melissa Murray now available on SSRN. As the abstract reveals, this piece a serious discussion of interesting issues (though the title might sound like the punchline of a bad joke among rowdy bachelors):
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used -- and importantly, continues to be used -- as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.