Sentencing Law and Policy

Huge thanks to Prof Bibas for his Machinery (and seeking feedback on guesting)

I am so very grateful  pleased that Professor Stephanos Bibas served as such a dynamic guest-blogger to discuss sentencing issues raised by his terrific new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  I will in this post link below to my introduction and then to all seven of Stephanos's substantive posts:

• Professor Bibas guest-blogging on "The Machinery of Criminal Justice" 
• Colonial-Era Mercy
• Reintegrative Punishment
• Hiding Punishment Behind Prison Walls
• The Decline of Mercy
• From Idle Imprisonment to Work
• Military Service, Education, Treatment
• Collateral Consequences and Reentry

I hope that readers enjoyed this series of posts as much as I did.  I also hope folks will take a moment to add thanks for Stephanos's efforts via the comments and that folks will let me know if I should try to make a habit of soliciting folks to guest-blog about a recent sentencing project or to develop a series of posts around a particular topic.

The Machinery of Criminal Justice #7: Collateral Consequences and Reentry

[Stephanos Bibas, guest-blogging]

In my last guest-blog post about my new book, The Machinery of Criminal Justice, I advocated requiring military service as a punishment for able-bodied convicts without serious violent tendencies. Today, in my final guest-blog post, I'll make a pitch for reducing collateral consequences and facilitating prisoners' reentry into society.

 Making inmates quit drugs, learn, and work can better prepare them to reenter society. But even after they have supposedly paid their debts to society and victims, our laws are remarkably unwilling to give them a second chance. Ex-cons face a web of laws and prejudices. Some exclude them from the polity symbolically, by forbidding them to vote, serve on juries, or hold public office.

Other laws harm them more tangibly by limiting where they can live and how they can work. After conviction, inmates are often shipped to distant prisons at the other end of the state, impeding family visits and straining or breaking family bonds. Even after they are released from prison, sex offenders and others are often forbidden to live within a thousand feet or so of schools, day-care centers, playgrounds, churches, and hospitals. In many urban areas, these residency restrictions rule out most of the city, in effect exiling or banishing ex-cons entirely. Likewise, licensing laws limit felons' employment not only as police or schoolteachers, but also as embalmers or septic-tank cleaners.

 The net is quite broad: sex offenders include not only child molesters, but also flashers, public urinators, or teenage lovers. And the effects are often perverse: Ex-cons may not be able to live with their families and neighbors, who might keep an eye on them. Instead, they may have to crowd into the same motels on the wrong side of the tracks and build new criminal networks. Likewise, when we deny felons the right to work in the profession for which they have trained, we may be consigning them to unemployment or crime.

There is little evidence that these laws make us safer. Predators on the prowl can easily travel a mile or two to commit their crimes. On the contrary, residency restrictions probably make us less safe, by clustering ex-cons and preventing them from reintegrating into their families. Thus, even one prosecutors' group (the Iowa County Attorneys' Association) has vocally opposed a residency law as ineffective and distracting from the core mission of preventing crime.

The point of punishment is not to ostracize wrongdoers into a permanent, embittered underclass, but to exact retribution and prepare them to return to the fold. Shame, embarrassment, even modest degradation are fitting so long as they are temporary, so wrongdoers can repudiate their wrongs and be seen to suffer enough to discharge their debts to society and victims. Only a small fraction of predators are hardened and dangerous enough to require permanent confinement or execution; most will return someday.

The left and the right ought to be able to unite behind a combination of restorative punishment followed by forgiveness. Indeed, one prominent group associated with the religious right has already come out against many collateral consequences on just this ground. The Prison Fellowship, founded by Chuck Colson, draws on Biblical language of forgiveness to support a dramatic narrowing of collateral consequences. Governments, they argue, should abolish all restrictions that are not related to the crime of conviction and not needed to protect the public. Though a powerful political ratchet keeps toughening collateral conseuqneces, conservative groups such as the Prison Fellowship can give politicians cover for ameliorating them.

Now, forgiving does not require forgetting. One can legitimately worry about the sincerity of a wrongdoer's remorse or a sincerely repentant wrongdoer's ability to resist future temptations. It is one thing to restore a drug dealer's right to work as a bartender or plumber; it is another to license him as a pharmacist with access to prescription narcotics. Restoring rights requires difficult judgment calls about how severe the wrongdoer's crimes were, how trustworthy he has become, and how sensitive the right in question is. But we should not be so afraid that we refuse to take any chances at all.

Finally, public-private partnerships can promote successful reentry. Public reentry programs remain woefully inadequate; many inmates are released from prison with no support other than a bus ticket and a few dollars. In response, some private groups such as Prison Fellowship's InnerChange Freedom Initiative run reentry programs. Volunteers, often from local church congregations, mentor inmates and help to arrange for housing and jobs upon release.

Contact with mentors and congregations, empirical studies suggest, are crucial in holding ex-cons accountable and keeping them on a lawful path. The Establishment Clause issues with offering religious programming are manageable, so long as prisons are open to secular alternatives, state dollars don't directly fund specifically religious activities, and religious programs receive no better facilities or perquisites.

Governments should try harder, but public reentry programs are woefully underfunded and unprepared to help the masses of released inmates. As long as there is no religious coercion, we should welcome all manner of private assistance to bring inmates home and give them the mentoring, accountability, and community reintegration they need.

Well, thank you all for having me guest-blog here for the past two weeks. I certainly can't match Doug Berman's speed or volume, but I hope you've enjoyed hearing about some different historical and contemporary angles on punishment and corrections, and hope you'll consider taking a look at the book, which covers much more.

Cheers,

Stephanos Bibas

The Machinery of Criminal Justice #6: Military Service, Education, Treatment

[Stephanos Bibas, guest-blogging]

In my last guest-blog post about my new book, I suggested making prison more pro-social by requiring able-bodied convicts to work. In today's post, I'll extend the idea, first by suggesting military service for convicts without serious violent tendencies or major disabilities.

Throughout history, many societies have sentenced convicts to military service, offering them a concrete way to work off their debts and earn freedom. Currently, however, most of the American military services forbid enlistment as an alternative to criminal prosecution or as a form of punishment. The rigors of military service are vivid and easy to visualize: think of boot camps, with bugles at dawn, shouting drill sergeants, and strenuous calisthenics. The public sees military service as rigorous, demanding labor. Yet these rigors would be productive and prosocial, inculcating work habits and discipline that wrongdoers often lack.

Now, readers from both sides of the political spectrum will doubtless object. Those on the left may complain that military service would put defendants in harm's way and degrade them. Those on the right may fear that using military service would demean the honorable service of law-abiding men and women who choose to serve their country. And military leaders might well resist the change, both for reasons of honor and for concerns about administering unruly convicts.

But a properly crafted program could allay all three sets of concerns. To satisfy those on the right, prisoners would be compelled to join, not free to choose. They would come in at lower ranks and lower wages than ordinary enlistees. Garnishment and restitution would further reduce their take-home pay, and GI Bill benefits would not vest for some time. They could wear different uniforms and enjoy fewer privileges, by for example being confined to base. They would have to endure the lowliest of jobs, even cleaning latrines, and suffer push-ups and other punishments for the smallest infractions. In other words, prisoners would not start out equal.

On the other hand, those on the left might note that the military has one of the best records of racial equality and meritocratic advancement in America. Integrating minority prisoners into the military, full of minority officers, would be far less vulnerable to charges of racism than exiling them to prisons. Integrating prisoners into barracks would also reduce the crmiminogenic clumping and self-segregation that prisons breed. Any harms faced would be prosocial, in the service of their country and as payment of their debts to society, offsetting the harms they threatened or caused to others.

Any humbling would be productive and temporary. Inmates could prove themselves and in time earn promotions and restoration to full equality, including equal rank, pay, and benefits. After a time, their families could come to live with them on military bases, helping to reintegrate them. Convicts would learn productive, marketable skills, and employers view military service as a valuable credential, paving the way for reentry and future employment.

Military leaders might note that military service in lieu of criminal punishment has a long history and has hardly dishonored the law-abiding soldiers who served alongside wrongdoers. At least if one screens out problem candidates, the disciplinary problems have historically been manageable and may have been improved by the structure, rigor, and sense of purpose in military life.

Nevertheless, the military almost certainly will resist being asked to take on a social purpose in addition to fighting wars and defending against attacks. Moreover, the current all-volunteer ethos of the American military may conflict with effectively drafting convicts. If military opposition proves insurmountable, the military could at least repeal its bans and selectively admit convicts who are most compatible with military life. Or one could experiment with creating a civilian analogue to the military, something like the Civilian Conservation Corps, with uniforms, ranks, strict discipline, and a mission, to build character and skills.

That's all for now. In my next post, I'll discuss other possible measures to facilitate reentry.

Stephanos Bibas, guest-blogging

The Machinery of Criminal Justice #5: From Idle Imprisonment to Work

[Stephanos Bibas, guest-blogging]

In my previous posts about my new book, The Machinery of Criminal Justice, I've sketched out a few of the ways in which punishment has changed in recent centuries and how modern punishment has become mechanistic, insulated, and hidden. In my last few posts, I'll propose a few reforms to make punishment more visibly pro-social, by encouraging work, accountability, reform, and reintegration. Today I'll focus on prison labor.

When we convict defendants of moderately serious crimes, we usually imprison them. American prisons, however, are deeply flawed. Prison severs inmates from their responsibilities, hides their punishment, and does little to train or reform them. Victims and the public do not see wrongdoers being held accountable, paying their debts to society and victims, and learning disciplined work habits. Instead, they visualize lives of idleness, funded by taxpayers. Thus, wrongdoers are unprepared to reenter society. And victims and the public, believing that wrongdoers have neither suffered enough nor learned their lessons, are loath to welcome them back.

The vast majority of prison inmates spend their days in idleness, with endless television and little labor. The minority of prisoners who do some work in a prison laundry, cafeteria, or license-plate shop rarely cultivate skills that are in demand in the outside world. Even prisoners who are able to work earn far less than the minimum wage, not enough to support a family or repay victims.

Nor is life inside most prisons structured to teach good habits such as self-discipline or productivity. On the contrary, prison encourages listless dependence on institutional routine, setting prisoners up for failure upon release. Healthy habits, such as the orderly work envisioned by prison reformers, broke down long ago.

Perhaps the most troubling aspect of imprisonment is its hiddenness. It is out of sight behind high prison walls and thus out of mind. It is too easy for the public to forget about it, to overlook the sporadic prison stabbings and rapes, or simply to discount the terrible soul-destroying, idle monotony.

Because the punishments are invisible and idle, the public never sees justice done. Voters may clamor for higher sentences to express outrage at crimes. But, because they do not see and appreciate the punishment, they have less sense of how much is enough and when inmates have paid their debts to society and to victims. Sunlight is the best disinfectant in a democracy, but prisons are shrouded in gloom.

Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.

To make their work pro-social and accountable, inmates should have to use their wages to pay at least a portion of their moral and monetary debts. Perhaps a quarter of their wages could go to the government to defray the costs of investigation, conviction, and imprisonment. Perhaps a quarter could go to victims to make restitution and pay for medical care. Perhaps a quarter could go to inmates' families, requiring inmates to support their spouses and children. And the remaining quarter might go to inmates themselves, to encourage their efforts. Though these earnings might never fully repay the state or victims of serious crimes, even partial repayment would be materially and symbolically important.

Certainly there are practical obstacles. Most prisoners have few skills and many have disciplinary problems, so their unskilled labor is not especially valuable. Many law-abiding businesses and workers will fear that competition will undercut their wages and cost jobs. The political and practical hurdles are substantial enough to make this proposal a long-term hope rather than a realistic short-term goal.

That's all for now. Next I'll discuss possible military service, educational and vocational training, and drug treatment.

Stephanos Bibas, guest-blogging

The Machinery of Criminal Justice #4: The Decline of Mercy

[Stephanos Bibas, guest-blogging]

In one of last week's posts on my new book, The Machinery of Criminal Justice, I noted that colonial criminal justice left room for mercy. Today I'll contrast how justice over the past two centuries has grown increasingly mechanistic and squeezed mercy out of the system.

Colonial justice embraced mercy as unfettered sovereign grace and individualized moral assessment. But to Enlightenment minds and scientists, mercy was arbitrary. Rational criminal justice, they thought, demanded equal, predictable deterrence, and mercy undercut deterrence.

Sustained criticism of exective clemency gradually restricted its use, and states gradually regulated pardons and commutations, making hearings more formal, closed to the public, and even ex parte. The clemency power, like jury nullification, came to seem lawless and unpredictable. The administrative ideal of equality across cases seemed to conflict with individualized justice and compassionate mercy. Thus, both executive clemency and jury nullification dwindled.

Another limit on mercy was the trend from indeterminate or unstructured sentences to structured sentencing guidelines. Reformers decried the dangers of arbitrariness, bias, and disparity in sentencing judges' unfettered discretion. Thus, the federal and more than a third of state sentencing systems enacted guidelines and mandatory minimum penalties to cabin harshness and mercy. The main discount available under the federal guidelines that could have related to mercy is an acceptance-of-responsibility discount. In practice, it has little to do with remorse or repentance and everything to do with whether a defendant pleads guilty.

Back in the colonial era, penalties were fixed and so nominally even less flexible than they are today. In practice, however, the rule-bound system was far more flexible than it seemed. Jurors frequently acquitted or convicted defendants of lesser offenses, and judges procured clemency for sympathetic defendants. Jurors knew the sentencing consequences of their decisions; indeed, judges advised them to take sentences into account in deciding whether to convict and for which crimes.

Today, however, jurors usually do not know the penalties, and judges instruct them to disregard sentencing in reaching their verdicts. Jurors cannot serve as the conscience of the community when they do not know what punishments they are authorizing (except in capital cases, where jurors must at least find the defendant death-eligible).

The one substantial source of leniency left is prosecutorial discretion. Prosecutors can decline to charge, drop charges, sign cooperation agreements, and recommend mercy in various other ways. Particularly sympathetic defendants may receive mercy as a result. More often, however, prosecutors use these tools as plea-bargaining chips, rewarding guilty pleas and punishing protracted litigation irrespective of the usual grounds for mercy.

This discretion hardly corresponds to the colonial model of transparent, accountable, individual moral evaluation. Unlike executives and juries, prosecutors retain discretion in part because their decisions are hidden from criticism and in part because they are supposedly making expert decisions about ranking priorities. Far from serving substantive justice and mercy, the discretion that remains in the system drives the plea-bargaining machinery.

So, that's all for now on the descriptive account of the historical changes from the colonial through the modern eras. In my last few guest posts this week, I'll offer several suggestions about how to make our punishments more transparent, pro-social, and reintegrative.

Stephanos Bibas, guest-blogging

The Machinery of Criminal Justice #3: Hiding Punishment Behind Prison Walls

[Stephanos Bibas, guest-blogging]

In my last two guest-blog posts on my new book, The Machinery of Criminal Justice, I described a couple of the key features of colonial-era punishments: the room they left for showing mercy and for reintegrating defendants after they were punished. Now I'll start to describe a couple of key changes that happened in the nineteenth century with the shift to imprisonment as the dominant punishment. In this post I'll focus on how prison hid punishment from public view.

An ideological change led to the great prison experiment. Reformers no longer saw the roots of crime in weakness of free will or in the devil's temptations. Rather, they blamed wrongdoer's families, associates, and vice-filled cities for dragging wrongdoers down into crime. The solution seemed to be to remove them from their criminogenic environments and to instill new, law-abiding habits and discipline.

After a few failed experiments with hard labor in public or having the public come into prison to watch prisoners work, a newer vision took hold, starting in Philadelphia and New York. The Pennsylvania system kept each inmate in solitary confinement, separate from one another and in complete silence. If each man was kept in silence, with only a Bible as his companion, optimistic reformers believed that his inner light or reason would convict his conscience and lead him to repent and reform.

New York's Auburn prison was less austere, as inmates worked together in silence each day but slept alone at night. Both the Pennsylvania solitary system and the New York silent system involved at least some isolation, as well as almost military structure and discipline. Both had as their central aims to reform wrongdoers through structure, and in some cases through work.

These reformers were far too optimistic about human nature. Penitentiaries did not breed penitence but crime. Solitary confinement without work drove some inmates insane or to suicide and did not reform them. True solitary confinement also proved too costly and difficult. Crime kept rising, leading to double-bunking and more cells. Once prisoners talked and bunked together, prison became a school for crime, providing criminal networks and contacts.

Though prison had failed, few people could stomach going back to bloodier punishments, and there was no obvious alternative. Thus, prison has remained our default punishment for the last two centuries. Inertia triumphed. Prison bred everything from abusive guards to gang violence to rape, but these brutalities were out of sight and mind.

One of the biggest barriers to reentry was the prisons bred idleness, not job skills and responsibilities. Though at first work had been central to prison administrators' ambitions to reform inmates, prison labor dwindled between 1870 and 1940. The fatal blow was not humanitarian but economic, as labor unions and small businesses opposed potential competition and got Congress to outlaw interstate transportation or sale of prison-made goods, choking the market for prison labor.

Today, prisoners can work for private firms only at prevailing local wage rates. That requirement, on top of the added security costs in prison, makes prison labor uneconomical for private firms. Prisoners can instead produce goods for state governments' internal use, but that internal market is too small to keep most prisoners busy. As a result, only about 1/9 of state prisoners and 1/6 of federal prisoners work in an industry or farm. Far more waste their days in mind-numbing idleness, watching television or killing time.

The Machinery of Criminal Justice #2: Reintegrative Punishment

[By Stephanos Bibas]

So, after the excitement of the twenty-first-century Supreme Court decisions today, I'm going to flash back to guest-blogging about my new book, The Machinery of Criminal Justice. In particular, I'll return to the story I was describing about what punishments looked like in the colonial era. Today my focus will be on how punishments were much better at reintegrating convicted defendants into the community.

DISCLAIMER: Right now I am engaging in historical description. I am not recommending going back to the practices described below; my mission is simply to contrast the public, communal, reintegrative aspect of colonial punishment with modern punishments. I will not be making normative recommendations until later in this series of posts. SO please don't assume that I am advocating whipping or corporal punishments.

In the colonies, punishment was public, shameful, and even painful, but it was most often temporary. The point was to make the wrongdoer remorseful and get him to make amends, so the victim and community would forgive him and welcome him back into the community. Punishment let wrongdoers pay their material and moral debts to victims and society, wipe their slates clean, and return to the community as equals. It did not create a durable underclass of ex-cons, as our prisons do today.

Today, imprisonment has a near-monopoly on punishment (at least for moderately serious crimes). But in the colonies, imprisonment was not a common sanction. The dominant punishments were fines, corporal punishments, and shaming punishments. Fines were probably the most common punishment. Others included sitting bent over in the stocks or standing in the pillory. Other common punishments included whipping, wearing a letter advertising one's crime, or mock executions (having wrongdoers stand on scaffolds with nooses around their necks for a time). More severe punishments included branding, nailing and cutting off ears, and banishment; these brutal punishments were rare and reserved for repeat or permanently dangerous wrongdoers.

While many of these punishments were downright painful, only branding and mutilation were permanently disfiguring. What burned more than the transient physical pain was the humiliation of public shaming, particularly in small, tightly knit communities, as Nathaniel Hawthorne describes in The Scarlet Letter.

Punishments were extremely visible. Until the nineteenth century, they took place outdoors, typically in or near the town square. OFten there was a procession to the scaffold. Executions in America were not "macabre spectacles" but somber, dramatic rituals. The same was true of noncapital punishments.

These punishment rituals educated viewers about the horrors of crime, drunkenness, and debauchery and reinforced communal moral teachings. Ministers came to preach about the temptations and sins that lurked in each of our breasts and the dangers of giving in to those temptations. The point was not to ostracize and demonize wrongdoers, but to recognize one's own sins too. Everyone needed to repent and seek forgiveness. Condemned criminals were expected to play the same tune.

Those who attended were witnesses to the final act of the morality play, literally seeing justice done. But they were also participants in doing justice, manifesting their disapproval and reinforcing social solidarity by denouncing the transcression and vindicating the victim.

This morality play had a negative side, denouncing the crime. But it also had a positive side, offering forgiveness and redemption to the criminal. Most crime resulted from weakness of will and character, as some fell prey to temptations that assail each of us. The point was to teach a swift, memorable lesson and lead errant brethren to submit, repent, and make amends.

Once wrongdoers did so, the morality play could conclude with forgiving and welcoming them back into the fold. Community members had seen wrongdoers pay their debts to society. Having seen justice done, they were more ready to forgive. (As I mentioned previously, actual executions were rare, and even in those cases there was forgiveness and symbolic reintegration.)

Colonial convicts paid their debts to society and victims, not only symbolically, but also concretely, through restitution, fines, and extra damage. When on occasion wrongdoers were confined, they were put in workhouses and made to labor, to hold them publicly accountable.

Empirical evidence from both Middlesex County, Massachusetts and the Quaker colonies of Pennsylvania and western New Jersey confirms that colonial wrongdoers were reintegrated. They frequently went on to hold town offices, militia offices, and church offices. In sum, by suffering their punishments, wrongdoers paid their debts to society and victims. After that, colonists stood read to welcome them back as members of society in good standing.

Forgiving wrongdoers was particularly important because, then as now, most crimes involved family members, friends, and neighbors. Most people had to go back to living among those whom they had wronged. Besides, a small society could hardly afford to kill, imprison, or exile more than a tiny fraction of its members. Everyone was valuable, too valuable to execute or lock away for years at great expense. Most wrongdoers returned from punishment to society, and remorse, apology, and forgiveness paved the way for their reentry.

That's all for now. In the next few days I'll try to sketch out how punishment changed beginning in the nineteenth century.

Stephanos Bibas, guest-blogging

SCOTUS recognizes ineffective-assistance claims in Lafler and Frye!

[by Stephanos Bibas]

As Doug is off romping at LegoLand, I'll have to do my best impression of how he would react to the Supreme Court's rulings this morning in Lafler and Frye: Wowza! Oh boy! Court Fryes prosecutors, gives defendants the last Lafler.

Okay, I guess Doug's style is inimitable and I shouldn't pretend to imitate it. After the arguments in both cases last fall, I and most other observers were pessimistic, predicting that the difficulty of specifying a remedy would deter the Court from recognizing the right. Interestingly, Justice Alito (in dissent) is the only one who appears to have been swayed by that specific concern.

As one could have predicted from Justice Scalia's dissent in Padilla, he argues that the Sixth Amendment's sole goal is to protect the accuracy of verdicts of guilt at trial, so in his view the Sixth Amendment right to counsel has nothing to do with plea bargaining, which would essentially be a matter of executive grace like a pardon. He criticized the majority for constitutionalizing a new "boutique" field of plea-bargaining law. The use of "boutique" is particularly ironic given that plea bargaining has spread like kudzu to take over almost all of American criminal justice. Justice Scalia laments that plea bargaining is a necessary evil and should not be protected as a positive good. That complaint might have more force if plea bargaining were not already so prevalent and if he were willing to be a thorough-going originalist and ban all plea bargaining.

The big surprise is that Justice Kennedy, despite multiple, skeptical questions at oral argument, soundly rejected that approach. He grounded his analysis on the basic fact that today, plea bargaining resolves 97% of federal cases and 94% of state ones. It is not a "boutique" corner of criminal justice; it is criminal justice, and (as I've argued elsewhere) it makes little sense to write rules for 5% of cases while ignoring the possibly perverse effects on the other 95%.

Another crucial area of disagreement concerned sentencing. Justice Scalia views the job of the Sixth Amendment as ensuring that a defendant gets an accurate determination of guilt from a jury. Sentencing doesn't factor into that equation, except to the extent that a jury decides to convict of greater or lesser charges (in ignorance of the penalties it is supposedly authorizing). In recognizing that a heavier post-trial sentence is a cognizable injury, Justice Kennedy's opinion in Lafler quotes my recent California Law Review article to analogize sentences to car prices--only an ill-informed consumer pays full sticker price and suffers harm in doing so, as the going rate is usually a bargain well below the sticker price. Prosecutors implicitly agree that the lesser figure is enough punishment, so the extra post-trial punishment is effectively a penalty for being rash enough to go to trial. (I set aside for now cases in which there is a real chance of acquittal.)

One last surprise: These opinions are fully consistent with Justice Kennedy's vote in Padilla v. Kentucky, recognizing that ineffective assistance of counsel protects a noncitizen defendant's right to accurate information about deportation before he pleads guilty. But they appear in tension with his opinion summarily reversing the Ninth Circuit in Premo v. Moore about a year ago. It is particularly surprising that he viewed the right of ineffective assistance at plea bargaining as so well-established that it could survive deferential review under AEDPA in Lafler. Justice Kennedy's pragmatic understanding of the world of criminal justice today trumps Justice Scalia's eighteenth-century focus on jury trials.

In that vein, the most powerful challenge to the majority came not from Justice Scalia, but from Justice Alito, who noted at oral argument and in his brief opinion that crafting remedies for broken bargains is extremely hard, because neither rescission nor specific performance may fit many cases. In response, the majority suggested that courts could balance factors and retain the post-trial sentence, the offered plea sentence, or something in between. We may have to move to a more flexible remedial model, akin to awarding damages, and away from traditional all-or-nothing remedies. Justice Alito is right to worry that it is unclear how this will work out. But Justice Kennedy is right that we haven't seen a flood of ineffective-assistance claims succeed since Hill v. Lockhart, and skeptical judges are likely to disbelieve defendants who claim ineffectiveness only after they have lost at trial.

Stephanos Bibas, guest-blogging

[Full disclosure: I'm a former law clerk to Justice Kennedy, as well as author of Regulating the Plea Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117 (2011), which the majority quoted in Lafler.]

Miller and Jackson: The Court Struggles to Frame the Issue

On reading the transcripts in the two juve LWOP cases that the Supreme Court heard today, Miller and Jackson, I'm struck by how confused the Justices are about how to frame the issues. The advocates certainly didn't seem to give the Court the help it was looking for.

Arguing for petitioners, Bryan Stevenson proposed a rule that seemed a bald policy proposal rather than one rooted in any legal authority: a flat ban on life without parole for defendants who were under 15 at the time of the crime, and a ban on automatic or mandatory life without parole for those between the ages of 15 and 18. He tried to rely on several states' having set thresholds of 15 or older for life without parole but had a hard time establishing a benchmark or national consensus, given that 39 states authorize life without parole for at least some juveniles for at least some crimes.

The Court seemed to have no clearer ideas about how to frame the issue. Justice Scalia repeatedly referred to the jury as a safeguard in authorizing the penalty, even though, as Justice Kennedy pointed out, juries cannot be told of the penalty, so the idea that they are authorizing the penalty is a fiction. If anything, Justice Scalia's passion for jury checks upon the government (in the Apprendi line of cases) ought to cut the other way here, where prosecutors' charging decisions trigger mandatory sentences while leaving juries in the dark.

In keeping with his formalism, Justice Scalia (as well as Justice Alito) made some fair points about the dangers of slippery slopes and distinguishing sentences of life from 60 years, 50 years, et cetera. I was surprised that neither he nor anyone else reached back to the common law's benchmarks for youths, in which those under 7 are conclusively incapable of crimes and those under 14 are rebuttably presumed incapable, according to Blackstone. That might roughly track the line Stevenson was trying to draw, except that it would erect only a presumption rather than a flat ban.

Justice Kennedy complained about the false dichotomy proposed by petitioners: that mandatory life without parole was either categorically forbidden or categorically permissible. That framing is in part attributable to Justice Kennedy's prior ruling in Graham, which rejected the Chief Justice's case-by-case approach to categorically forbid life without parole for juveniles who do not kill. I don't see the Court repudiating Graham, but neither do I think the Court will simply extend those precedents.

Justice Sotomayor, interestingly, kept emphasizing the Enmund / Tison line of capital cases limiting which minor actors in a murder can receive the death penalty. The signal seems to be that all the death penalty doctrines, which were previously cabined by the death-is-different line, are now fair game for argument in this area.

In that vein, it struck me that no one did nearly enough with the Woodson / Lockett / Eddings line of death-penalty cases, which require that the trier of fact have some discretion to mitigate penalties based on the particulars of individual cases. From the tenor of the argument, it seemed that many Justices were looking for a safety valve, a way to allow individualization for the least bad juvenile accomplices rather than for a flat ban. Some of the Justices' comments indicated that they recognized that Miller's crime was more heinous than Jackson's and might be looking for ways to differentiate the two.

If the Justices wanted to regulate such decisions, there are subtler ways to do so than extending Graham's ban. They could require that juries be informed of the penalty and affirmatively authorize the sentence, by extending either Simmons v. South Carolina or Apprendi to inform juries and require them to affirmatively authorize the penalty. That could harken back to the colonial tradition (discussed in my last post) of allowing juries flexibility to show mercy. Or the Court could forbid using life without parole as a plea-bargaining chip, so that juvenile defendants don't wind up with the longest sentence simply because they are reckless in choosing to go to trial.

As with Florence v. Burlington County earlier this term, the Court granted certiorari to address what seemed an excess of the criminal justice system, only to discover that trying to fix the problem would entangle the Court in a thicket of arbitrary line-drawing. Perhaps the difficulty of the exercise will scare them off, or perhaps they will embrace Justice Sotomayor's suggestion that the category of life without parole be whittled down further to those who personally kill, intend to kill, or attempt to kill and are not simply lookouts or getaway drivers. Predictions here are too hazardous--the actual outcome is anyone's guess.

Stephanos Bibas

The Machinery of Criminal Justice #1: Colonial-Era Mercy

Hello all. I'm Stephanos Bibas, and I'd like to thank Doug Berman for inviting me to guest-blog about my new book The Machinery of Criminal Justice, just published by Oxford University Press and available here.

(Alas, posts will continue to show Doug's name rather than my own.) Though I can't match Doug's speed and quantity of blogging, if time permits I may throw in a few other posts as well.

In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers and ever-longer punishments hidden behind prison walls;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater transparency, public involvement, and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. This week, I'll focus specifically on punishments and how we might make punishment more visibly satisfying and less permanent, to better re-integrate ex-cons into society after they complete their sentences.

Today, I'd like to start by sketching out a couple of distinctive features of colonial American punishments that set them apart from our modern punishments. In this post I'll focus on the room left for mercy, and in the next post I'll explore how colonial justice was more open to reintegrating and forgiving convicts.

When we look back at colonial-era punishments, we think of them as promiscuously bloody, far too quick to execute. But while there were many more capital crimes than today, colonial America was much less bloody than England, both on paper and even moreso in practice (with the important exception of slave justice). Even though they were often capital crimes, burglaries, robberies, and thefts very rarely resulted in hangings. Before the Revolution, Pennsylvania convicted fewer than two people per year of capital offenses and executed only about one per year.

Though crimes carried fixed penalties, colonial justice was more lenient in practice because criminal procedure left plenty of room for mercy. One avenue was "pious perjury," in which juries convicted sympathetic defendants of lesser, noncapital offenses, often at the prompting of judges. Judges also interpreted rules loosely to allow sympathetic first offenders to avoid the death penalty. Likewise, juries took convicts' branded thumbs (marks of a first conviction) into account, factoring prior criminal records in deciding whether to convict of the latest offense. No rules of character evidence precluded common-sense inferences about whether a thief was likely to steal again or deserved mercy if he had.

Finally, executive clemency frequently softened sentences, on the recommendations of juries and judges. One of the most important grounds for pardon was the convict's character, including his upbringing, employment, family support, sobriety, honesty, and trustworthiness. While this could introduce some class bias, most pardons occurred without intervention by anyone but a judges, so plenty of poor and powerless people received mercy. Today we exclude much of this evidence as suspect, but it did cast light on the wrongdoer's broader blameworthiness, dangerousness, and prospects for reform. The emphasis was not on formal equality but on fully textured evaluation of everything known about this particular person.

Perhaps the most interesting factor in clemency decisions was the role of remorse. Then as now, one of the most powerful grounds for mercy was a convict's apparent remorse and change of heart. Thus, the colonists left plenty of time between sentence and execution for repentance. Of course, convicts often feigned repentance to postpone or evade the gallows, but then as now, officials saw through much of this fakery.

That's all for the moment. In my next post on the book, I'll discuss how colonial punishment sought not to exile wrongdoers but to reintegrate them into the community. After that, I'll move to how things changed over the past two centuries.

Stephanos Bibas

Professor Bibas guest-blogging on "The Machinery of Criminal Justice"

Especially because I am heading out on a Spring Break trip that will soon lessen my (daytime) blogging opportunities, I am very pleased to be able to welcome Professor Stephanos Bibas as a guest-blogger to discuss sentencing issues raised by his terrific new book my new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  (Though I have not yet had a chance to read the entire book, I feel confident already describing the book as terrific based on the introduction available here via SSRN and based on the guest-blogging Stephanos has already done recently in this series of posts at The Volokh Conspiracy.)

For those interested in the broad array of topics that Stephanos takes on in this book (and everyone should be), I highly encourage whetting your appetite by checking out the posts already up at Volokh (or at least this provocative first one in the series).  Here is a key theme from the book mentioned set forth in that post: "without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine.  There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads.  What I want you to see, however, is the price we have paid to purchase more and more efficiency."

Stephanos reports he will be covering a lot of different ground in this blog space than he did at Volokh.  As he put it in an e-mail to me, he plans to cover different aspects of the book likely to be of even more interest to sentencing fans, "especially the shift from temporary punishments to prison, the frustration that causes, and various reforms to punishments (work / military service, collateral consequences, reentry)."  I am very happy to be lending this space for this great use and very excited to see what Stephanos has to say. 

(I hope and expect to do still do some additional blogging while on the road over the next few days, but I cannot predict how much or how often, especially because I also have a fantasy baseball draft for which to prepare.)