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May 14, 2014

Form, function and finality of sentences through history: the Rehabilitative Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  As explained in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As explained in this prior post discussing Founding Era realities, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's observations about the dynamics of conviction and sentence finality during the so-called Rehabilitative Era stretching from the mid 19th Century to the latter part of the 20th Century.  During this period, prisons were constructed from coast to coast as American criminal justice systems nationwide embraced rehabilitation as the central punishment concern, and a highly discretionary “medical” model came to dominate criminal sentencing procedures and practices.  This punishment model, as explained here, had a considerable impact on sentence finality and its relationship to conviction finality:

This rehabilitative model of sentencing and corrections was avowedly disinterested and arguably disdainful of sentencing finality, at least with respect to the traditional sentences of prison and probation.  After a sentencing judge had imposed a prison term, which sometimes would be set in a range as broad as one year to life, prison and parole officials were expected and instructed to consistently review offenders’ behavior in prison to determine if and when they should be released to the community.  All imprisoned defendants would have regular parole hearings at which time their sentence terms were, formally and functionally, subject to review and reconsideration by corrections officials. Even after officials decided to set free a prisoner on parole, or if a defendant was sentenced to probation rather than prison in the first instance, correctional supervisors still kept close watch on offenders to assess their behavior in the community again with an eye toward reviewing and modifying sanctions as needed to fit the needs of the offender and society. Release on parole or probation was never really a final sentencing disposition: government officials readily could and often would revoke parole or probation to remand those who misbehaved in the community back to prison.

Significantly, this rehabilitative model of sentencing and corrections with its fundamental disaffinity for treating any sentencing term as final was still dominant in the 1960s when courts and scholars began earnestly discussing the importance of treating criminal judgments as final.  This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on the finality of criminal convictions; and (2) any problems or harms resulting from giving too much weight to the interests of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.

Prior posts in this series:

May 14, 2014 at 11:55 AM | Permalink


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Oughtn’t we have one “sentence finality” here?

Intellectually & Morally Disabled’ Delay
Just hours before Robert James Campbell was scheduled to die from lethal injection, a federal appeals court announced that the execution would be halted due to Campbell’s “intellectual disability.”

The U.S. Court of Appeals for the Fifth Circuit granted the stay …
“… Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” the opinion read.

--- > Campbell was sentenced to death in 1992 for murdering Alexandra Rendon, a 20-year-old … abducted by Campbell and an accomplice while getting gas and was
robbed and raped before Campbell shot and killed her. < ---

• “I’m happy,” Campbell said of the stay, according to a spokesman for the Texas prisons system. “The Lord prevailed.”

• Moments after the news emerged, Campbell’s sister pulled into a parking lot across the street from the penitentiary and jumped out of the car, laughing and smiling
with multiple friends

• “We are excited,” Terri Brooks-Bridges said. “God is good, God is good!” She said that her brother had maintained a positive attitude right up until the news of his stay came.

• Death penalty opponents cheered the move …, “Any time that an execution is delayed, a life is saved and we live to fight another day,”
said the Rev. Jeff Hood of Denton, Tex., who is on the board of directors for the Texas Coalition to Abolish the Death Penalty.

• Attorneys for Campbell had utilized multiple routes in arguing for a stay. They cited his mental impairment, calling it “an outrage
that the state hadn’t properly considered that factor…. In addition, they filed an appeal … [for] the source of the[execution] drugs …

▼ Twisted 21st century morality ▼

Posted by: Adamakis | May 14, 2014 12:15:57 PM

I certainly think your article gets at something that is important and hope you pursue it further. But i would frame the issue somewhat differently. The so-called rehabilitative era was really an era during which the difficulty of the true problem was recognized and practitioners tried to cope with its complexity. How should the state respond to the criminal conduct by people? Rehabilitation was one objective, but not the only objective by any means. The California Youth Authority was a leader in this regard, but from its very beginning in 1941, holding offenders accountable was one of its objectives.

So what was missing from this era? We did not develop a decision making system that could cope with the complexity of the problem. Eventually the sentencing reformers of the 1970s and 80's, lawyers primarily, dumbed down the problem. How should the state respond when a person commits a particular crime? We are now experiencing what follows this narrow minded approach to a very complex social problem.

The challenge is still there. Build a decision-making system that can cope with complexity. A patchwork, band-aide approach to sentencing just won't cut it. A plan should be made for each offender; one that will accomplish all of the states objectives in that case. Then match the components of that plan with the components of a correction program. I like this quote from Scott Shapiro: "Laws are plans or plan-like social norms."

Posted by: Tom McGee | May 14, 2014 1:59:59 PM

I am a defense attorney and former prosecutor.

As you may have already observed in your article, the federal Youth Corrections Act (which was available to defendants 21 and under) and Young Adult Offender Act (which extended the benefits of YCA treatment to defendants under 26) were good examples, in theory at least, of the rehabilitative approach. The court had two options -- (1) give the offender probation, or (2) commit the offender to the custody of the Attorney General for an indeterminate term of up to six years. In either case, if the defendant succeeded, the conviction was set aside. (This was said to be patterned after the Borstal system in Britain.)

Judicial dissatisfaction with these procedures grew when it became clear that the Parole Commission was using guidelines (fancy that!), rather than individualized consideration, to determine the release dates of inmates sentenced under option 2. Some judges tried to mix and match by sentencing defendants to, say, two years "under the Youth Corrections Act," which the courts held could not be done. See United States v. Cruz, 544 F.2d 1162 (2nd Cir. 1976), and United States v. Jackson, 550 F.2nd 830 (2nd Cir. 1977).

Ultimately, as you know, the YCA was repealed as part of the 1984 Sentencing Reform Act. Enter the era of punitive sentencing.

Posted by: Allen Bentley | May 14, 2014 3:45:06 PM

Do you realize, Adamakis, that the Campbell stay was granted and required only because Texas prosecutors had hid and lied about important evidence for a decade?

Posted by: Doug B. | May 14, 2014 4:39:57 PM

Evidence? Exculpatory, or do you mean mitigating? Or is this an "innocent" convict?

If so, then use your status to sanction them, but try to stick to the crime
and culpability.

1. “thus, sometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded while a person whose IQ tests below 70 may not be mentally retarded.
---- Furthermore, IQ tests differ in content and accuracy.”
2. “seven years old, he performed in the lowest range of the “Metropolitan Readiness Test.”
3. “nine years old, Campbell received a “deviation IQ” of 68 on the “Otis-Lennon Mental Ability Test.”
4. “received by TDCJ in May 1990. The admission summary for that conviction indicates an IQ test score of 84.”
5. “in 1992, Campbell was administered the “WAIS-R IQ Short Form” (that is, the “Wechsler Adult Intelligence Scale-Revised Short Form”) test and scored 71.”
---In re Campbell, No. 14-20293

Average of 76.5?

By the way,
“To this end, the Metropolitan Readiness Tests (MRT) scores of 351 students in an Iowa school district were correlated with their Metropolitan Achievement Tests (MAT) scores at grades one, three, and five. These correlations were further compared to the publisher's (Harcourt, Brace, Jovanovich, Inc.) nationally-normed correlation of.70 between MRT scores and first grade MAT scores.^
… all the correlations were significantly below the.70 found by the publisher. … Of these low-scoring students, only about one-third continued to score in the low range by fifth grade.^
… Finally, data were examined to determine if the childrens' first grade intelligence test scores would have been a better indicator of future achievement than the MRT. It was found that, while the Otis Lennon School Abilities Index had moderately strong correlations (.46-.50) to the MAT scores at the three grade levels, the correlations of the MRT to the MAT scores were consistently slightly higher (.48-.52). ^”

ANN E. WERTHMAN FOX, University of Nebraska - Lincoln

Posted by: Adamakis | May 14, 2014 10:13:58 PM

it doesn't matter what the evidence was Adamakis the state committed a CRIME when it hid the evidence. Sorry at that point they lost any right to say shit to this individual about whatever he/she did. I wouldn't care if it was Adolf Hitler they had to release.

If you don't bother to obey your damn rules you have no right to punish anyone else who doesn't bother.

I think the criminals who run this country have either forgotten or never learned one of the first rules of criminals.

When another crook shafts you ...KEEP YOUR DAMN MOUTH SHUT!

in this case the state committed fraud and perjury. Sorry now you can shut your faces and release him. You MIGHT even want to get off your crooked lazy asses and actually PUNISH the fuckups who caused it to happen.

Posted by: rodsmith | May 15, 2014 1:00:21 AM

"it doesn't matter what the evidence was"
--..-- It does with a righteous judge.

This is all a sentencing phase dispute, so murderer/rapist Campbell’s convictions stand, even by the most liberal ACLU standard.

Howbeit, you remind me of one of the most ridiculous, pervasive problems with American law:
the tendency, actually compulsion, to toss-out convictions, nullify sentences, to contort and extend the “fruit of the poison tree” construct
to indefensible extremes.
Such equates to ‘throwing the baby out with the bath water,’ [recall Miranda?]

This does not strengthen the American judicial system, it slows and weakens it by promoting frivolous law suits,
and by assisting evidentially guilty parties in getting-out on irrelevant technicalities (which engenders endless appeals).
Thus the judicial process in far too many cases is more akin to a “game” rather than an exercise in justice, a search for the truth.

 According to some, from judges and law professors on down, the legal community believes that it is ‘un-American’ to discourage
redress of government by legal action, by making losers pay, or by readily denying irrelevant appeals or frivolous suits.

 Specifically in the criminal courts, tainted evidence could be suppressed without summary acquittal or nullification, but so often it does not happen.
[My understanding is that in other places in the world it results this way routinely, in some cases automatically, a.k.a. the “English Rule” .]

 I remember one time in my Mom’s law career she stated that she had counter-sued for court costs in all of her cases where it was appropriate --
in New York and Virginia -- but had never recovered anything regardless of how unfounded were the claims against her clients!


Posted by: Adamakis | May 15, 2014 10:05:33 AM

I actually agree but the problem is that for so many damn decades the gov't has committed crime after crime after crime that it's hit the point that ONLY this punishment will stop their shit. Get caught playing fast and loose with any information during a trial and the case is DONE.

Once they get their collective shit together then we can tighten the rules.

See I personally think the trial should be about the truth PERIOD. If the information is TRUE and collected within the law. the jury see's it. IF you broke the law to get it. The jury see's NOTHING and the case is done. Sorry that's the hight of two-faced criminal action. The defendant is on trial because THEY BROKE THE LAW. Now the gov't is going to BREAK THE LAW to get them. Sorry NO!

Posted by: rodsmith | May 15, 2014 2:32:28 PM

Well Adamakis maybe if the courts actually tossed illegal evidence you might have something.

after all how many 1,000 times have you seen a news article about the retard who got stopped for a tail light or a basic traffic ticket who was shortly under arrest for voluntarily allowing a search of the car when god knows how much illegal drug was laying in the back seat? Which the court immediately allows all the while knowing it was pretty much an illegal search. Sorry not even Gilligan or our fucked up politicians would be that damn stupid.

Personally I think pretty much all the current 4th amendment exemptions are illegal in today's society.

Sorry no warrant no evidence except in clear limited situations. as for that retarded 3rd party bullshit in today's interconnected society it's retarded.

Posted by: rodsmith | May 15, 2014 2:37:55 PM

Adamakis and rodsmith-

Your conversation is a good example of the confusion that can follow if you dumb-down the problem. The first question is did the person in question commit a crime? If the answer is no, that's the end of it. If the answer is yes, then you go on to the second question. Was that crime the core part of a criminal offense? If the answer is yes, then you go to the third question. Is that person a criminal offender who has a substantial risk of committing another crime?

What we have here is a jeopardy argument. It has two premises and a conclusion. It is primed by a positive response to the first question. The state's plan for correcting the problem should respond to each premise and the conclusion.

Posted by: Tom McGee | May 15, 2014 5:13:38 PM

well tom I will give you the first question. The second of course is wrong. It should be Can we make a case using evidence we LEGALLY collected. Not with faked evidence and LIES!

At that point the STATE IS NOW A CRIMINAL. Therefore it loses all right to do shit to this individual.

like I said before I don't care if it's adolf fucking hitler. If you can't get him within the law YOU DON'T GET HIM. Otherwise at that point the law is meaningless and nobody has to follow it. After all if the gov't be bothered for follow it WHY SHOULD ANYONE ELSE?

Posted by: rodsmith | May 19, 2014 1:56:24 AM

But I do like this question!

"Was that crime the core part of a criminal offense?"

Obviously in many cases the answer is NO but the state still moves forward. Can we say Martha Steward. You know who was convicted of lieing to the FBI about an illegal stock deal but never convicted of doing on!

Posted by: rodsmith | May 19, 2014 1:58:47 AM

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