Long weekend sentencing reading from SSRN

These two new piece on very different sentencing topics caught my eye on SSRN this morning:

Unexpected Consequences: The Constitutional Implications of Federal Prison Policy for Offenders Considering Abortion by Claire Bernice Deason

Abstract: As many as 6,000 women are pregnant in prison in the United States. The option of abortion is particularly suited for these women, who struggle with public assistance, drug addiction, or who are at risk of losing their child to the foster system.  The Bureau of Prisons policies governing abortion in prison effectively require potentially coercive religious counseling, empower prison administrators to “pass the buck” and control abortion access, and disregard the time constraints associated with pregnancy.  Although these federal prison policies are facially constitutional and therefore survive substantive challenges, they are unconstitutional as applied because they deny pregnant offenders the constitutionally protected procedures that should accompany the right to abortion.  A simple, albeit surprising, analogy to prison correspondence policies can provide a roadmap for establishing the basic protections of notice and a hearing.  These procedural safeguards ensure that incarcerated women have the information they need to make reproductive decisions behind prison walls.

An Overdose of Dangerousness: How 'Future Dangerousness' Captures the Least Culpable Capital Defendants and Undermines the Rationale for the Executions It Supports by Meghan Shapiro

Abstract: "Future dangerousness” is a very non-technical name for a particularly problematic capital sentencing factor used in nearly every capital jurisdiction in the United States, directly underlying at least half of all modern era executions and likely playing some role in the rest.  Despite its popularity, the American Psychiatric Association has maintained for over twenty years that such predictions of future threat are “wrong in at least two out of every three cases.”  Thus, while an inquiry into a defendant’s future dangerousness seems to align with a Supreme-Court-approved purpose of capital punishment (“the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future”), in application the incapacitation rationale is severely undermined by alarmingly unreliable predictions of future threat.  Of even graver concern should be the effect of future dangerousness to obscure any culpability determination, resulting in a high number of death sentences for vulnerable defendants most people would never consider “deserving of execution,” and undercutting another common rationale for capital punishment: retribution.

This should cause us all to pause and, as Justice Stevens recently urged in Baze v. Rees, to question our retention of a system that is “the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits[.]”  This article broadly examines future dangerousness’ flawed application and unique ability to distort the constitutional function of capital sentencing hearings, replacing a juror’s duty to consider individual culpability with a fear of responsibility for future violence.  It concludes that, while comprehensive reforms might minimize its unsettling and unconstitutional implications, current use of future dangerousness is leading to unnecessary and unconstitutional executions lacking both incapacitation and retributive rationales.