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December 8, 2008

My latest (academic?) musings about progressive punishment perspectives

The kind editors of the Harvard Law & Policy Review were kind enough to ask me to write a piece for their terrific on-line journal.  Thanks to the editors' great and speedy efforts, my HLPR article now appears at this link.  The piece is titled, "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities," and here are the first two paragraphs:

Progressives have long played a leading role in reforming punshment practices and sentencing norms in the United States.  In the nineteenth century, progressives pioneered a move away from brutal physical punishments toward the development of penitentiaries focused on the spiritual rehabilitation of lawbreakers.  In the twentieth century, progressives complained about the failure to devote sufficient resources to humane prison programming and about the tendency of rehabilitative ideals to be corrupted in practice.  Over the last two centuries, progressives have also frequently expressed concerns about sentencing disparities rooted in racial, ethnic and socioeconomic discrimination.  Today, progressives continue to express concerns about punishment practices and sentencing norms.

But I fear that many progressives have failed to update their reform concerns and advocacy in light of twenty-first century realities.  We primarily hear progressive voices speaking out against the death penalty and lamenting wrongfulconvictions and racial disparities in criminal justice systems. Over the last decade, for example, the American Bar Association and other organizations have produced massive reports urging execution moratoriums and major reforms to the administration of capital punishment.  The Innocence Project and other organizations have spotlighted common causes of wrongful convictions and have urged states to establish innocence commissions.  Given the stunning and unprecedented expansion of modern American imprisonment rates, however, the problems and consequences of mass incarceration should become the new preeminent concern for progressives.  Indeed, as explained below, the failure of progressives to adapt their criminal justice advocacy for modern times may indirectly contribute to the status of the United States as the world’s leader in imprisonment.

Though I had in mind an audience of policy-makers and public policy groups (and transition teams?) when writing this piece, I fear that my musings here may still be too "academic" in every sense of that word.  In any event, I suspect some will find this piece provocative (and/or misguided), and I hope readers will share reactions in comments.

December 8, 2008 at 06:47 PM | Permalink


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I appreciate the article and its a good example of why I keep coming back to your blog.

I agree with your fundamental thesis that progressives have ignored the massive expansion of the prison/industrial complex. I don't find your reasons why that is the case particularly convincing, however.

(1)Progressives have had to pick and chose their battles in a hostile political environment. The innocent project worked because DNA evidence was impossible to refute. I don't want to go so far as to say that in deciding to fight this battle, progressives picked a low hanging fruit. But I do think that the reality is that when people join a cause, they want to make a difference and this was a real issue where that could happen. I was surprised, given your recent post, that you didn't bring up the issue of the number of ex-prosecutors on the bench. This seems a more likely explanation of why many judges are disinterested in anything beyond guilt/innocence.

(2) As for the death penalty, I agree with you that it has been a huge distraction to the progressive movement and I have felt that way for a long time. But I think that this has more to do with the real reason the death penalty was picked up as a progressive issue than the issue itself. Modern progressives are very different from their 19th century counterparts and anti-death penalty advocates extremely so. Modern progressivism is almost entirely an upper-class/middle-class political movement. Frankly, people like Jane Addams or John Dewey wouldn't recognize it. Death penalty issues are frankly an issue of most concern to the elite, a situation that undermines the very foundation of progressivism.

(3) I was also surprised to read the quote about the fact that no-one could have predicted the huge expansion in prison populations in the latter half of this century. I suggest you read "The Technological Society" by the French philosopher Jacques Ellul (1967). He certainly predicted just that. One aspect of what he calls the technological imperative is the drive for efficiency. And in his eyes the drive for efficiency requires the criminalization of anything that impedes the imperatives of modern industrial societies. I have long held that progressives can never lay a solid foundation for progress until they begin to understand that concepts like justice and democracy are by their very nature inefficient (from the perspective of technological capitalism).

(4) In sum, what I am hinting at is that the real reason that many modern progressives have ignored the expansion of the criminal justice system is that they are not in fact progressive. They have co-opted a historical term to justify a set of policies that mimics the compassion of the progressives while entirely abandoning its underlying intellectual and philosophical foundation.

Posted by: Daniel | Dec 8, 2008 9:40:03 PM

Inflation is the problem, sentence inflation. Inflation happens when the incentives to do something become unbalanced, which is what has happened in sentencing practice. Until recently, lawmakers, prosecutors, judges and so on had an outsized incentive to punish offenders, because that was what the public expected; sentence inflation was not a consideration. Just spend what it takes.

But this is now changing. Money and resources are limited. What can be done to overcome sentence inflation? Obviously, we have to rebalance the incentives. Here is a suggestion. Require prosecutors to explicitly consider the cost-effectiveness of projected sentences when they decide what crimes to charge. After all, they represent the people. Require judges to consider the cost of their sentences and make explicit findings about their cost-effectives. It is hard to believe that a sentence is reasonable, if it is not cost-effective.

The public would be much better informed if the projected cost of each sentence were reported in the news, along with its duration and so on. I believe this would lead to a decoupling of punishment and risk incentives. Punishments are determinate; risk is indeterminate. If a choice as to be made between the two, because resources are limited, I believe most people would emphasize the latter, better balancing the two kinds of incentives.

Posted by: Tom McGee | Dec 9, 2008 5:59:18 PM

Blogs are good for every one where we get lots of information for any topics nice job keep it up !!!

Posted by: digital dissertations | Dec 26, 2008 1:04:47 AM

Daniel is right about efficiency's key role in the making of Prison Nation.

I covered a complicated fraud trial recently in which three defendants with disparate interests were lumped together in a single trial for efficiency's sake.

The judge, praised by the local newspaper for "running a tight ship," interrupted a defense lawyer mid-sentence in an impassioned closing to impose the court's 20-minute closing rule.

Two other defense lawyers, mindful of the 20-minute rule, sounded like cartoon characters whose lines had been speeded up to two or three times normal.

The judge angrily scolded the jury three times for its lengthy deliberations. And again, this was a highly complex trial that unfolded over two weeks.

Beyond that, most attempts over the past several years to reign in the excesses and abuses of rogue prosecutors is met with the argument-ending reply that such changes would slow things down and clog the courts.

For my money, we're in the fix we're in mostly because cops have been freed of restraints that once kept them from trampling rights. And prosecutors have become too powerful and unaccountable; the brakes that once held them somewhat in check have all but been disabled.

With broad, sweeping RICO, drug war era and anti-terrorism statutes in hand and draconian sentencing guidelines at their disposal prosecutors can and do fill prisons almost single-handedly. Their excesses and abuses are routinely excused as the necessary evil that must be accepted to keep the courts moving.

Whatever else is done to fix things, we'll need a massive public education campaign to talk the mob down from its tough-on-crime, lynch-mob inclinations. The cost angle is probably the best tack.

Grand juries will need a makeover to enable them to actually do meaningful work.

Efforts must be made by courts and lawmakers to somehow force cops and prosecutors play fair and honest.

The possibility of actually testing criminal cases before juries must somehow be improved to more than 3 or 4 percent in federal and 23 to 25 percent in state cases.

Sentencing guidelines, the rubber hose of the new-age justice system, must somehow be scaled down or removed from the arsenals of prosecutors.

My two cents worth. And, yes, I do realize how idealistic and improbable this is.

Posted by: John K | May 6, 2009 11:25:23 AM

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