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May 23, 2009

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.

May 23, 2009 at 11:54 AM | Permalink


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As to dangerousness foreseeability problems.

I oppose future forecasting, unless the event is repetitious and common, for example planetary orbits predict the sun will rise in the east, as it has million times without exception.

The foreseeability in torts in like that of a lottery number, and violates the procedural due process rights of the civil defendant. The Supreme Court has overlooked that violation.

In the case of the criminal, it should not be future dangerousness. It is past dangerousness. One way to measure is to end the criminal's life at $6 million in damages (the economist estimate of current value of life). Repeated crime costs are ordinary costs, for example, the value of the loot, of the repair bill, of the medical bills of the victim. After, $6 million, it is time to go.

Posted by: Supremacy Claus | May 23, 2009 1:39:34 PM

For once there is something that I agree with SC on without equivocation. May wonders never cease.

The only place where I differ is that I see the presumption of innocence as something that arises from English common law and as such is a substantive right, not a constitutional due process right.

Posted by: Daniel | May 23, 2009 3:38:20 PM

If we are going to use SC's methodology I would think the amount of damage caused should be subtracted from the offender's own valu. By the time overall damage reaches the adjusted value is the point that should trigger execution. Basically this means that a criminal would only get to destroy the value of 1/2 of a person before death is automatic.

I would also throw in all procedural costs when making the determination, pro-rated time for the judge, prosecutor, juror's lost income, the cost to incarcerate, medical care, transportation and anything else the offender's actions bring about.

Posted by: Soronel Haetir | May 23, 2009 5:29:41 PM

In most cases, the sole real value the person contributed is the wages made. So an executive who made $60 million in his life should not get to kill 10 people before facing the death penalty. The death penalty count should just measure losses (criminal harm). It is designed to stop the loss at a set limit. All should be treated equally, by the book. The saintly volunteer who kills the girlfriend gets the same as the low life junkie who does the same. It has to be that way, by the Constitution and in fairness to the victims.

At the time of trial, it is unknown if the defendant is innocent. Court costs are covered by taxes. The court is the mechanism by which we insure our public security. We want it neutral. I support the trial process for now, until something better comes along. If the court made more money by a guilty verdict, the conflict of interest would be unfair, and end its credibility.

No one has asked about property damage exceeding the value of a life, e.g. worth more than $6 million, but with no personal injury. The $6 million in property value taken out represents the lifetime of economic activity. Not a single penny of value has ever been generated except by human labor. Walking on the beach for a half hour, and finding a $10 million diamond is highly productive, but still human labor. So all destroyed property value is life taken, as if shooting the person in the head.

These are good challenges. I appreciate them, because I can change my mind on a dime's worth of fact.

Posted by: Supremacy Claus | May 23, 2009 6:28:51 PM

"At the time of trial, it is unknown if the defendant is innocent."

It is not an unknown. He is innocent until proven guilty.

Is there something about the word "until" that is unclear? Or did you just go back to babbling?

Posted by: Daniel | May 23, 2009 7:37:49 PM

Daniel: In most cases, people will not invest in a trial without pretty evidence. I credit the lawyer for that. The over 75% guilty verdict rate sets a standard of due care for all lawyer claims. In contrast, the majority of tort claims fails, violating this high standard of evidence before filing the complaint.

Posted by: Supremacy Claus | May 23, 2009 8:33:14 PM

Doug, it seems to me there are Ring v Arizona implications in the use of a determination of future dangerousness as a factor which can serve as what Justice Scalia calls a "death eligibility factor" Brown v Sanders. If future dangerousnes is the only aggravating circumstance, and without the finding of it the def can only be exposed to life, then it is "the functional equivalent of an element" of a greater substantive offense.

It is irrational to say that an element of a crime can be something that happens in the future. Crimes are related to actual conduct, not possible conduct.

Thank goodness North Carolina does not have future dangerousness as an ag.

bruce cunningham

Posted by: bruce cunningham | May 23, 2009 9:31:42 PM

"Daniel: In most cases, people will not invest in a trial without pretty evidence."

That's certainly true for the trial that is dating. If that's also true for a legal trial, holy cow does your average lawyer have some really low standards.

Posted by: Daniel | May 23, 2009 10:16:49 PM


I think you misunderstood my statements about valuation. I am not saying that the system should expect to recoup all those expenses, only that those expenses should be subtracted from the convict's current value. Once current value is less than accrued expenses the offender would be executed. So rather than having to destroy $2 million or $6 million, the offender would only need to reach $1 million or $3 million.

I don't see a conflict of interest in this calculation method. It would however cut down on prisoners serving long prison sentences, because even a normal offender sentenced to 25 or 30 years might hit the cut off. It would be interesting to know how that would effect the deterrence calculation, spending 20+ years expecting to be released, then rack up a large medical bill that suddenly puts you over and instead of release you get executed.

Posted by: Soronel Haetir | May 23, 2009 11:15:57 PM

Could the prisoner reduce expenses by a plea bargain? That adds uncertainty and gaming by both sides.

Greater certainty and uniformity of consequences was the advantage of the Guidelines, and they reduced crime by 40%. A great lawyer achievement.

Posted by: Supremacy Claus | May 23, 2009 11:47:39 PM

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