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December 26, 2021

Catching up on some criminal justice holiday commentary

A bit of a holiday blogging slow down, as well as having a pile of exams to grade, means I will need to be content here to catch up for lost time with a round-up post here. So here goes, mostly with commentary pieces along with a few notable news items:

By Carissa Byrne Hessick, "The Constitutional Right We Have Bargained Away: Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right."

By Rory Fleming, "The Lack of Prosecutor Accountability Behind Trucker’s 110-Year Sentence"

By Tony Messinger, "The Conservative Case For Prison Reform"

By Walter Pavlo, "Operation 'Varsity Blues' Goes Out With Perfect Prosecution Record And A Reflection Of How The System Works"

By Austin Sarat, "How 2021 Changed the Death Penalty"

By Kenneth Starr, "To uphold the rule of law, US Supreme Court must act in Texas death penalty case"


From The Hill, "Report finds groups working with incarcerated women passed over for funding by feminist organizations"

From The Marshall Project, "Omicron Has Arrived. Many Prisons and Jails Are Not Ready."

From NBC News, "States make headway on criminal justice reform after Congress falls short"

December 26, 2021 at 02:58 PM | Permalink


Sorry but I still entirely reject the "trial penalty" framing, it is properly "plea leniency".

Posted by: Soronel Haetir | Dec 26, 2021 4:40:59 PM

Soronel is correct. Defendants are not punished for going to trial. The are punished, as they should be, for falsely denying at trial what they have done and/or their mental state when they did it. In addition, if rehabilitation is one of the goals of sentencing, then the only genuine starting place for rehabilitation -- a recognition that you did something wrong that needs to be changed -- is properly rewarded by the judge, while a more obstinate and self-righteous attitude is properly punished. A defendant can't be rehabilitated unless he understands that he needs rehabilitation.

Posted by: Bill Otis | Dec 26, 2021 5:20:45 PM

Hi Bill,

As I understand it, prisons were originally called penitentiaries because they were thought to engender penance. In some cases, they do, only too late. Second look hearings would recognize that sometimes taking ownership for wrongdoing is a process, especially for people who were not fortunate enough to be raised in homes where good morals were taught.

The other issue that comes to mind is the vast sentencing disparity between someone who took a prosecutor’s comparatively generous deal and someone who stalled on it.

That said, making pleas substantially less common would probably have some bar impacts on both defendants and society at large. Prosecutors would have to bring fewer cases because of system stresses, and the defendants who they have time for would probably still get convicted the vast majority of the time, just with a more pissed-off judge.


Posted by: Rory Fleming | Dec 26, 2021 7:19:50 PM

Bill, as I’m sure you already know, incarceration in the federal system is not intended to be rehabilitative and in fact it is reversible error for a judge to rely on that factor in fashioning the prison sentence (see 18 USC 3583(c) and the Supreme Court’s 2011 decision in Tapia). Therefore, I’m not sure your argument works. Better to say that a defendant who refuses to accept responsibility is more dangerous and therefore requires a longer sentence for deterrence/incapacitation.

Posted by: Curious | Dec 26, 2021 8:10:06 PM


A defendant who goes to trial does not necessarily lie -- many do not take the stand at all.

I think most of us, although perhaps not Ms. Hessick, are OK with the defendant's plea being a factor in sentencing -- but not an overpowering one. The UK sentencing guidelines say a maximum 1/3 discount -- that sounds about right to me, maybe 1/4 would be preferable. UK is in certain other cases -- 1/6 for murder, 1/5 in some cases with mandatory minimums. But some of the plea discounts / trial penalties can't be justified on theoretical grounds.

Posted by: Jason | Dec 26, 2021 8:45:48 PM

Curious --

Rehabilitation is an explicit goal of sentencing under the SRA, although Congress decided to give it less weight as a factor than it had before. I'll quote from Chapter One of the Commission's Introduction to the Sentencing Reform Act:

"Rehabilitation. The SRA directs judges to consider each defendant’s need for educational
and treatment services when imposing sentence. However, the SRA and the guidelines make
rehabilitation a lower priority than other sentencing goals (see Hofer & Allenbaugh, 2003). For
example, the Commission was directed to ensure that “the guidelines reflect the inappropriateness
of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant.”
28 U.S.C. § 994(k). Despite the relatively low priority given rehabilitation, judges are still required
to assess a defendant’s need for treatment or training when they decide whether to impose any special
conditions of probation or supervised release. See USSG §5D1.3(d). (Supervised release has replaced
parole as the means to provide offenders with post-imprisonment supervision.) Because prison
rehabilitation programs are administered by the Bureau of Prisons and post-imprisonment programs
are administered by the probation service of the Administrative Office of the United States Court,
these agencies have conducted the most extensive research on the effectiveness of treatment and
training programs (BOP, 1997)."

Posted by: Bill Otis | Dec 26, 2021 10:22:02 PM

Bill, rehabilitation is a goal of sentencing, which includes probation/supervised release, but it is not a goal of imprisonment. I'll quote from 3582(a) and the Supreme Court's decision in Tapia (surely more authoritative sources than the Commission's introduction to the SRA).

"The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. 3582(a).

"§3582(a) tells courts that they should acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation. And when should courts acknowledge this? Section §3582(a) answers: when 'determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, [when] determining the length of the term.' So a court making these decisions should consider the specified rationales of punishment except for rehabilitation, which it should acknowledge as an unsuitable justification for a prison term. ... Section 3582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation." Tapia v. United States, 564 U.S. 319 (2011).

Posted by: Curious | Dec 27, 2021 7:29:43 AM

Curious --

I agree more than you might want with your assertion that rehab is not a goal of IMPRISONMENT. Instead, it is a goal of SENTENCING, as both of us have said explicitly.

I have maintained for years that, while rehab in prison is desirable, and possible in a distinct minority of cases, it has, for the most part, been a failure (as recidivism statistics overwhelmingly attest). Where I differ with the Left is in pointing to the cause of the failure. The Left says it's a failure of the system. In fact it's a failure of the criminal, who doesn't need one more vocational training program (although they can be useful). What he needs is a change in his thinking and in his heart, where he understands and takes seriously that his victims have feelings just as he does; that they have the right to their own property and money; and that if he has a gripe, he cannot use violence to redress it.

A change of heart cannot be forced or even very consistently induced by the system or the government. The criminal has to come by it on his own. This is hard, as growing up always is. But if he wants to live in civil society in the same way that the rest of us do, it's his job, not ours, to get it done.

I'm all for helping them, where possible and where they're open to help. I have done so myself. But for policy formulation, we need to be quite clear on whose job it is. It's not ours. It's his.

Posted by: Bill Otis | Dec 27, 2021 11:05:47 AM

Bill, I more or less agree with you. Even from a defense perspective, having one less justification for incarceration is a benefit, which should lead to less prison time overall (most successful Tapia challenges, for example, result in shorter sentences on remand).

If a defendant is dangerous or does something bad, then we should imprison them for however long is necessary to protect the public and vindicate the authority of the law. But we shouldn't lock them up any longer than that for their "own good."

Posted by: Curious | Dec 27, 2021 6:26:34 PM

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