« South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional | Main | Should workers who are incarcerated at least be paid minimum wage? »

September 7, 2022

"Policing Mass Incarceration"

The title of this post is the title of this recent article available via SSRN authored by Fred O. Smith, Jr.  Here is its abstract:

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality.  The Supreme Court has produced these consequences by offering needlessly narrow remedies for constitutional wrongs and by issuing crabbed constructions of criminal procedural rights.  Chemerinsky’s indictment is written with clarity, comprehensiveness, and humanity.

This Book Review argues that mass incarceration presents an immense barrier to the author’s goals of producing less violent, more accurate, less invasive, and less racist policing.  First, many of Chemerinsky’s proposals for police reform assume a system of criminal trials.  In our system of mass incarceration, the overwhelming majority of incarcerated persons never receive a trial.  If the criminal legal system did attempt to rely on trials instead of coerced guilty pleas, the system would collapse under the weight of the sheer number of people we prosecute.  Second, Chemerinsky argues that we should revisit and raise the requisite standard for police to search a suspect from reasonable suspicion to probable cause.  But in a system of mass incarceration, probable cause is not hard to come by. The more things we label “crime,” the more reasonable it is to believe that someone is likely committing one.  Third, mass incarceration feeds on legal reforms that are not aimed at decarceration.  A “criminal caste” is more tolerable if the government gives the caste members “rights” before stripping them of humanity and core dimensions of citizenship.

It is imperative to reverse and control mass incarceration to achieve lasting transformation of the police.  There is no equitable way to police in a world of mass incarceration. 

September 7, 2022 at 09:55 AM | Permalink


"... the overwhelming majority of incarcerated persons never receive a trial."

That would be because they DON'T WANT A TRIAL, and never ask for one (which they would automatically get on request) because they know they'd lose at trial and look bad doing it. There is this thing called "evidence," which neither the author nor the reviewer deems worth mentioning. Such is the defense side's "honesty."

Posted by: Bill Otis | Sep 7, 2022 5:02:52 PM

Bill really oversimplifies this. People accused of committing crimes often plea because 1. The prosecutor's offer is "too good to refuse 2. Trial is risky, as a jury could convict the accused of something even if they did not commit a crime at all 3. The accused admits guilt and just wants the best deal possible which takes us back to reason 1.

People should stop calling law enforcement for every little nuisance and law enforcement should be demilitarized and defunded. However, mass incarceration would end if legislatures revamped sentencing guidelines and abolished mandatory minimum sentencing for non-violent and violent crimes and reduced the penalties for conviction. An offense carrying a 1-5 sentence with parole eligibility after serving 15% of the sentence would see higher releases than a mandatory minimum 10 year sentence with no parole.

Posted by: Anon | Sep 8, 2022 1:28:39 AM

Many guilty pleas, particularly for misdemeanor and lower level felonies (in Kentucky, Class D felonies carry a sentence of 1 to 5 years) are effectively coerced. This is particularly so if the prosecutor can keep the defendant incarcerated with a bond he cannot make, to fight the case from the street while working and earing money. Even 30 days in jail can cause many persons to lose their job, car and apartment (along with all of their personal property). Here in Fayette County, Kentucky, I have seen a prosecutor offer the defendant a 6 month plea deal after he had already spent 7 months in jail, and was still 2 months away from his scheduled trial date. Some prosecutors, like that one, effectively want the defendant to serve the entire sentence BEFORE they make the plea offer for time served (or less than time served!). These kinds of practices effectively violate Sections 16 (all defendants are entitled to bail, except in capital cases where the proof is great) and 17 (prohibiting excessive bail amounts, meaning the Judge must consider the poverty and lack of financial resources of each defendant) of the Kentucky Constitution [and probably the U.S. Constitution too].

Posted by: Jim Gormley | Sep 8, 2022 10:41:57 AM

Jim Gormley --

"Many guilty pleas, particularly for misdemeanor and lower level felonies (in Kentucky, Class D felonies carry a sentence of 1 to 5 years) are effectively coerced."

Depends on what you mean by the elastic phrase "effectively coerced." I'll give you an example of a guilty plea that one might easily say is "effectively coerced": "Hello there Mr. Bank Robbery Defendant. Your pretty face in on the surveillance tape for two full minutes while you were cleaning out the cash drawer; the bills taken from the bank were found under your mattress with your fingerprints on them; the getaway driver has confessed and named you as the fellow he drove; three tellers have positively identified you; and a hand-drawn diagram of the bank was found in your desk drawer at home. Oh, and your ex-girlfriend says you bragged for three days after the robbery about how the security guard was such a coward. Now we can go to trial if you prefer, or you can take this plea offer. Which do you want?"

Is the ensuing plea "effectively coerced"? You bet. Is there anything wrong with that? Not if the defendant and his lawyer are even vaguely sane.

Posted by: Bill Otis | Sep 8, 2022 9:24:19 PM

If making an offer that is to good to refuse is coercion, then we need to redo a lot of contract law in this country.

When I was a defense attorney, my job was to get the best possible result for my clients. If the State's case was decently strong, I wanted an offer that was too good to refuse because that offer would always be much better than my client would probably get after trial. If the State's case was weak, I would encourage my client to go to trial with the expectation that the charge would be dismissed well before trial.

As a prosecutor, my job is to try to resolve the less serious offenses quickly so that I can focus on the cases that need a lengthier sentence. So, of course, my offer is going to be less than I expect to get after a trial. If I offered what I thought I would get after trial, I would be spending all of my time trying minor cases and would have little time to try the cases of the defendants who need to be locked up for a long time.

As far as people calling law enforcemen, the job of law enforcement is to protect us from crime. The problem appears to be that Anon seems to thinks that certain things (unclear what) are mere nuisances and should not be crimes. (Of course, there is always the possibility that Anon is actually just parroting an exaggerated version of the position of the far left of the criminal justice community just to make clear the weakness of that position.) But most things that result in people serving time in jail or prison are things that can't be called mere nuisances -- unless you think that assaults, burglary, and shoplifting are mere nuisances that law-abiding people should have to tolerate.

As I have noted before, every crime has a range of punishment which generally includes a minimum and a maximum. If Anon thinks that premeditated murder should be punished by a day in jail, I have to respectfully disagree (as would the majority of voters). And I can assure you that most defense attorneys would vigorously oppose a sentencing regime in which a pick pocket could be sentenced to life in prison. Both sides want sentencing ranges and the opposition to mandatory minimum tends to be a way to paint with a broad brush rather than identifying specific offenses that have sentencing ranges that are out of line with what the public wants.

Of course, lower sentencing ranges with quick parole eligibility will result in fewer people in custody. The question is do you really want that person (a rapist or murderer or other violent offender) living next to you after serving only six months in prison. If you are not willing to accept that person as a neighbor, why are you forcing the poor and minorities to have to deal with him as a neighbor. If the goal is to reduce incarceration, the solution is simple -- abolish criminal law. But, if the goal is to protect the public, that takes a little more nuance. My own experience is that most legislatures (at least at the state level where they can't borrow money to operate prisons) tend to want high terms with quick parole eligibility, but that requires performing a scam on the public with sentence lengths being pure fiction. I have always thought that it would be better to reduce the sentencing range but increase the percent that needs to be served before becoming eligible. I don't think that parole boards are great at determining who has reformed enough to be safe after release and would rather have the real sentence determined by the trial court with everybody knowing up front how long the offender will have to serve on the sentence.

Posted by: tmm | Sep 9, 2022 1:50:48 PM

tmm --

"I don't think that parole boards are great at determining who has reformed enough to be safe after release and would rather have the real sentence determined by the trial court with everybody knowing up front how long the offender will have to serve on the sentence."

As if on cue: https://ringsideatthereckoning.substack.com/p/underincarceration-and-early-release

Posted by: Bill Otis | Sep 9, 2022 4:12:49 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB