Sunday, February 17, 2019

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

February 17, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Saturday, February 16, 2019

WWJD?: Interesting comments as Wyoming senate rejects effort to repeal the state's dormant death penalty

HutchingsLS05I mentioned in this post a few weeks ago that the Wyoming House of Representatives had voted to repeal the state's death penalty.  This past week the legislative repeal effort died, as reported in this local article headlined "Wyoming Senate defeats death penalty repeal bill."  And a notable quote from a particular senator concerning her reasons for voting against repeal has garnered some extra attention.  Here are some particulars:

The Wyoming Senate defeated a bill Thursday that would have repealed the state’s death penalty, ending the most successful legislative attempt to do away with capital punishment in recent memory. Having passed the House by a safe margin, the bill was swiftly voted down by the Wyoming Senate on its first reading. The final vote was 12-18.

“The vote was different than I expected to see from talking with people beforehand,” said the bill’s sponsor in the Senate, Brian Boner, R-Converse. “There’s a lot of different factors and, at the end of the day, everyone has to make their best determination based on the information they have.”

The death penalty repeal had passed out of the Senate Judiciary Committee on Wednesday by a unanimous vote. Proponents of the bill argued that it would save the state money and create a more humane justice system, an argument that had gained substantial traffic in the House of Representatives....

In the Senate — which has trended more conservative than the House this session — the bill had garnered several unlikely allies. Sen. Bill Landen, a reluctant sponsor of the bill, said that after years of budget cuts and eliminating line item after line item, he could no longer go home and feel good explaining the myriad cuts he’s made to the state budget while defending annual expenses like the death penalty, which costs the state roughly $1 million a year. “Regardless of my personal thoughts — my religion doesn’t believe in the right to kill people — that’s not enough for me,” he said.

Opponents of the bill, meanwhile, argued retaining the death penalty would allow the justice system to offer closure to victims of the most heinous crimes, and could be used as a tool to coerce confessions from the state’s worst perpetrators....

Several senators had other reasons for voting against the bill.  Sen. Anthony Bouchard, R-Cheyenne, said that while the death penalty could be used as an effective tool, it was also a means to keep the state’s justice system from turning into the type seen in other states. He then noted that states like California — in some cases — have allowed inmates to undergo gender reassignment surgery. “I think we’re becoming a lot like other states, and we have something to defend,” he said.  California, however, has not repealed the death penalty.

Sen. Lynn Hutchings, R-Cheyenne, argued that without the death penalty, Jesus Christ would not have been able to die to absolve the sins of mankind, and therefore capital punishment should be maintained. “The greatest man who ever lived died via the death penalty for you and me,” she said. “I’m grateful to him for our future hope because of this. Governments were instituted to execute justice. If it wasn’t for Jesus dying via the death penalty, we would all have no hope.”

Wyoming has not executed a prisoner since 1992. According to Wyoming Department of Corrections Director Bob Lampert, the average death row inmate costs the agency 30 percent more to incarcerate than a general population prisoner, with an average stay of 17 years.

I find it more than a bit amusing that Senator Bouchard seemed to think that voting to keep an effectively dormant costly capital punishment system on the books in Wyoming would help keep the state from becoming more like California, where voters have repeatedly voted to keep an effectively dormant costly capital punishment system on the books.  But, perhaps unsurprisingly, the comment generating the most attention has been Senator Hutchings' suggestion that we can thank (and should preserve) the death penalty for giving us all hope through Jesus Christ.

I am disinclined to make too many jokes about these comments at the risk of being sacrilegious, but I cannot help imagining a new ad campaign for capital punishment: "The death penalty: hope for you and me."  I also cannot help but note that Senator Hutchings has recently garnered negative attention from some other statements on a distinct issue.

February 16, 2019 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 14, 2019

"Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism"

The title of this post is the title of this new paper by Craig Lerner now available via SSRN. Here is its abstract:

How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents?  This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence.  In this legal context the dilemma is infused with a moral dimension.  Many punishment practices common in 1791 are widely considered barbaric today.  When confronted with the choice between the Eighth Amendment’s original meaning and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

In an essay published soon after joining the Supreme Court, Justice Scalia outlined an answer to this question.  He anticipated that his Eighth Amendment opinions would be framed as arguments in the alternative — first, the Constitution, properly understood, did not foreclose a punishment; and, in the alternative, even if nonorginalist precedents were followed for the sake of argument, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.”  Almost all of his Eighth Amendment opinions proved to be of this character. 

As demonstrated in this Article, Justice Scalia’s hopeful expectation that he could achieve orginalist results through such a strategy was disappointed.  One problem is that the strategy presumes that there has been no meaningful “evolution in social attitudes” with respect to punishment since 1791.  The deeper problem is that it is not enough for the community’s “social attitudes” to remain durable.  The relevant question is whether the moral sentiments of the legal elites who ascertain these “social attitudes” remain durable.  In one of his final Eighth Amendment opinions, Justice Scalia conceded the defeat of sake-of-argument originalism.  He intimated a willingness to pursue a more heroic originalist agenda, potentially displacing mountains of nonoriginalist precedent.  This Article highlights the tension an originalist judge faces, more than two centuries after the Constitution’s ratification, between a principled adherence to original meaning, which can appear revolutionary, and a humbler originalism, which can appear opportunistic.

February 14, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 12, 2019

"The case for capping all prison sentences at 20 years"

The title of this post is the title of this very lengthy new piece by German Lopez at Vox.  I recommend the piece in full, and here are excerpts from the first part of the article:

America puts more people in jail and prison than any other country in the world.  Although the country has managed to slightly reduce its prison population in recent years, mass incarceration remains a fact of the US criminal justice system.

It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years.  It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe....

Looking at the length of our prison sentences is one approach to reverse mass incarceration.  Empirical research has consistently found that locking up people for very long periods of time does little to nothing to combat crime, and may actually lead to more crime as people spend more time in prison — missing big life opportunities for legitimate careers, and being incarcerated with others who have ties to the criminal world.

There’s also good reason to believe that 20 years is a good cutoff for a maximum.  Studies have found that people almost always age out of crime, particularly by their late 30s and 40s.  If a person is locked up for a robbery or murder at 21, there’s a very good chance that he won’t commit that same crime when he gets out at 41.

Other countries show this can work. European nations tend to have shorter prison sentences than the US, and certainly fewer people in prison, along with roughly equal or lower violent crime rates.  Norway in particular caps the great majority of prison sentences at 21 years — and its violent crime and reoffending rates are lower than the US’s.  (The cap does have some exceptions, as I’ll explain later.)

A cap on prison sentences wouldn’t on its own end mass incarceration.  But at least tens of thousands of people in prison would benefit now — if the change were applied retroactively — and untold numbers more would benefit in the future if it were adopted by states and the federal government.

I’m not naive; I know there’s a very, very low chance that this policy will actually be enacted. And I know there are some difficult questions we need to confront if such a policy were ever put in place.  But I think pushing for something like this is a good idea anyway.  It forces a conversation about what prisons are for: Are they for keeping the public safe? Rehabilitating inmates?  Purely for revenge?  If our answer as a society is the first two, but not the latter, then a cap is something we should consider.

By beginning these kinds of conversations, we can try to get at the root cultural and social forces that enabled and encouraged mass incarceration to begin with.  Only by doing that can we start to really unravel a criminal justice system that’s turned into one of the world’s most punitive.

February 12, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Monday, February 11, 2019

Making sure we do not lose sight of the "American epidemic of overly long prison sentences"

Late last week, Judge Morris Hoffman penned this notable Wall Street Journal essay headlined "A Judge on the Injustice of America’s Extreme Prison Sentences: The duty to punish criminals comes with an obligation not to punish them more than they deserve." I recommend the piece in full, and here are excerpts:

Many people have celebrated Congress’s recent passage of the First Step Act, which, among other things, retroactively reduced penalties for some federal drug offenses.  But it did very little to address the American epidemic of overly long prison sentences.  Today, we lead the Western world in average length of prison sentences, at 63 months. According to the Justice Policy Institute, Canada’s average is four months, Finland’s 10, Germany’s 12 and even rugged, individualistic Australia’s is just 36.

These numbers are even more striking considering that the modern prison is an American invention and the average sentence started out at a few months, not years.  The Quakers invented prisons in the late 1700s as a more humane alternative to death or banishment, then the punishments for virtually all serious crimes.  But the penitentiary wasn’t intended to be a criminal warehouse.  Criminals were expected to work, pray and think about their crimes — to be penitent about them — in a kind of moral rehabilitation.

Virtually every new American state that adopted this form of punishment soon passed laws requiring confinement to include hard labor, but for short durations.  A 1785 New York statute was typical: It limited all nonhomicide prison sentences to six months.  Alexis de Tocqueville, whose visits to America began with a tour of U.S. prisons in 1831, wrote, “In no country is criminal justice administered with more mildness than in the United States.”  But over the next 150 years, America went from mildest punisher to harshest.  The reasons for this shift are complicated, but they include a dash of progressive naiveté, a bit of blind faith in the power of deterrence and large dollops of political neglect.....

[T]the relationship between longer sentences and falling crime rates is complex and nonlinear.  At some point, crime rates become unresponsive to increased punishment. If we sentenced aggravated robbers to 70 years, then increased that to 80, not even the most committed believer in deterrence would expect those additional 10 years to further reduce robberies.  The enormous leverage of prosecutors in plea bargaining is undoubtedly a factor in the explosion of sentence lengths.  But the real problem is the sentence ranges created by legislatures, not the particular sentences within those ranges imposed by judges or driven by plea bargains.

Don’t get me wrong. I’m not one of those apologists who thinks that criminal law is fundamentally immoral or that a bad environment excuses bad actions. I am what we in the business call a “retributivist.” I don’t punish people primarily to cure them or to deter others. I punish them mainly because those who intentionally harm others deserve to be punished, in no small part to earn their way back into the social fold.

But if retribution offers a moral justification for punishment, it also imposes limits. W e have a duty to punish wrongdoers, but that duty comes with the obligation not to punish criminals more than they deserve. Much of our criminal-justice system has lost that moral grounding, and our use of prisons has become extreme.  We dishonor victims of crimes that merit severe punishment when we sentence less serious crimes just as harshly.  What do I tell the surviving relatives of a victim of second-degree murder when they see her killer sentenced to less time than someone who robbed a crowded restaurant?...

It won’t be easy. No one gets elected by calling for shorter prison sentences.  Critics will warn that releasing prisoners earlier is unsafe, and in some cases it would be.  But as a policy matter, there is simply no evidence that, say, a 70-year sentence for aggravated robbery does more than a 30-year one to deter other potential robbers.  Moreover, violent crime rates decrease rapidly as criminals age out of their 20s.  Releasing a middle-aged prisoner earlier does pose more risk, of course, than keeping him behind bars, but that marginal danger will be very small indeed when we are comparing 30- and 70-year sentences....

As state and federal legislators ponder their next moves after the First Step Act, they should consider lowering historically extreme sentences for some offenses, including violent ones.  It would not only be sensible public policy but would also help return our criminal law to its moral roots.

February 11, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 07, 2019

Updated versions of great reads from the "Square One Project" on criminal justice policy and reform

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy. In that post, I noted some early draft of interesting papers from the project, and yesterday I got an email pointing me to this page with links to these now finalized papers:

Bruce Western, The Challenge of Criminal Justice Reform

After three decades of growth in the U.S. incarceration rate, we have entered a period of criminal justice reform.  However, efforts to reverse mass incarceration need to address the social conditions of poverty, racial inequality, and violence in which punitive criminal justice policy has expanded.  Efforts that aim only to reduce prison populations, or neglect the harsh socioeconomic conditions in poor communities of color, will fail to sustainably reduce the burdens of over-imprisonment.  A new, socially-integrative, vision of community health and economic flourishing is the best way to respond to the problem of violence in contexts of poverty and racial injustice.

Arthur Rizer, A Call for New Criminal Justice Values

The U.S. criminal justice system expresses our nation’s values, for better or worse.  For most of the early and middle 20th century, rehabilitation guided criminal justice policies, but in the 1970s and 1980s, notions of retribution, deterrence, and incapacitation emerged as replacements and signaled a dramatic shift in criminal justice policy.  Now, as we enter an era of criminal justice reform, it is time for a new set of values.  Parsimony in criminal punishment, which seeks the least coercive response, can undo the damage of overreaching incarceration.  Parsimony in punishment serves the more fundamental values of liberty and limited government, which embody a distinctively American commitment to human freedom.  While our history has clearly disappointed the values of parsimony, liberty, and limited government, the oncoming era of criminal justice reform opens the door to new and exciting possibilities.

February 7, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, February 06, 2019

"Neuroscience and Punishment: From Theory to Practice"

The title of this post is the title of this notable new paper appearing in the journal Neuroethics and authored by Allan McCay and Jeanette Kennett.  Here is its abstract:

In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment.  According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems.  Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience.

In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice.  Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert.  It is thus more consistent with the predictive claims of Morse than of Greene and Cohen.  We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment.  Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. 

February 6, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Monday, February 04, 2019

"18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner'"

The title of this post is the title of this notable new (and very timely) article authored by Erica Zunkel now available in the Notre Dame Journal of International & Comparative Law.  Here is its abstract:

The vast majority of federal criminal defendants are sentenced to prison, and non-incarceration sentences have become vanishingly small.  During the sentencing process, federal district court judges are required to consider what sentence will provide the defendant with necessary rehabilitation and treatment in the most effective manner pursuant to 18 U.S.C. § 3553(a)(2)(d).  Courts regularly undervalue, ignore, or even violate this statutory command.  Some courts seem to believe that the Bureau of Prisons can provide adequate rehabilitation and treatment and do not explain how this squares with what the statute requires.  Other courts barely engage with the issue.  Only a minority of courts take the statutory command seriously. 

This is problematic because evidence shows that the Bureau of Prisons is ill-equipped to provide defendants with the most effective rehabilitation and treatment, particularly medical care and mental health care.  This Article concludes that the courts should take § 3553(a)(2)(D)’s mandate much more seriously in sentencing federal criminal defendants. Likewise, defense attorneys should engage in vigorous advocacy at sentencing to ensure that courts understand the Bureau of Prisons’ severe limitations in providing effective, let alone adequate, rehabilitation and treatment.

February 4, 2019 in Booker in district courts, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Highlighting how much punishment comes with the misdemeanor process

97804650938091LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

February 4, 2019 in Collateral consequences, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Monday, January 28, 2019

"Are Collateral Consequences Deserved?"

The question in the title of this post is the title of this notable new paper authored by Brian Murray now available via SSRN. Here is its abstract:

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release.  Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification.  Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures.  This label avoids having to address existing constitutional and legal constraints on punishment.  This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation.  Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system.  Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility.  The result is extra punishment run amok and in desperate need of constraints.

This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved.  Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order.  Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes.  Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

January 28, 2019 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, January 26, 2019

"Limiting Retributivism and Individual Prevention"

The title of this post is the title of this notable new book chapter authored by Christopher Slobogin now available via SSRN.  Here is its abstract:

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals.  This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.”  A preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation).

The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise.  If done properly, it should also significantly reduce prison populations.

January 26, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, January 20, 2019

"Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests"

The title of this post is the title of this important new article authored by Joseph Kennedy, Isaac Unah and Kasi Wahlers now available via SSRN. Here is its abstract:

Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish.  But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that?  This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs.  Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest.  Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012.  The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.

This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs.  Offenders of color are by and large not more serious offenders in terms of quantity.  They just possess and sell drugs that are the most frequent target of arrest.  Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.”  Racial disparities might vanish or reverse if we were to make as many meth/amphetamine and heroin arrests as crack cocaine arrests.

After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons.  Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest.  A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.

January 20, 2019 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 19, 2019

"Positive Sanctions versus Imprisonment"

The title of this post is the title of this notable new article authored by Murat Mungan.  Here is its abstract:

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime.  Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. 

The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies.  The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth.  Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes.

The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature.  When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.

January 19, 2019 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 16, 2019

"Mens Rea Reform and Its Discontents"

The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

January 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 13, 2019

"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract:

Background

As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the extent to which these laws are associated with decreased drug use.  This study aims to identify changes in cocaine use associated with mandatory minimum sentencing policies by examining differential sentences for powder and crack cocaine set by the Anti-Drug Abuse Act (ADAA) (100:1) and the Fair Sentencing Act (FSA), which reduced the disparate sentencing to 18:1.

Methods

Using data from National Survey on Drug Use and Health, we examined past-year cocaine use before and after implementation of the ADAA (1985–1990, N = 21,296) and FSA (2009–2013, N = 130,574). We used weighted logistic regressions and Z-tests across models to identify differential change in use between crack and powder cocaine.  Prescription drug misuse, or use outside prescribed indication or dose, was modeled as a negative control to identify underlying drug trends not related to sentencing policies.

Results

Despite harsher ADAA penalties for crack compared to powder cocaine, there was no decrease in crack use following implementation of sentencing policies (odds ratio (OR): 0.72, p = 0.13), although both powder cocaine use and misuse of prescription drugs (the negative control) decreased (OR: 0.59, p < 0.01; OR: 0.42, p < 0.01 respectively).  Furthermore, there was no change in crack use following the FSA, but powder cocaine use decreased, despite no changes to powder cocaine sentences (OR: 0.81, p = 0.02), suggesting that drug use is driven by factors not associated with sentencing policy.

Conclusions

Despite harsher penalties for crack versus powder cocaine, crack use declined less than powder cocaine and even less than drugs not included in sentencing policies.  These findings suggest that mandatory minimum sentencing may not be an effective method of deterring cocaine use.

January 13, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 09, 2019

"The Accuracy, Equity, and Jurisprudence of Criminal Risk Assessment"

The title of this post is the title of this notable and timely new paper on SSRN authored by Sharad Goel, Ravi Shroff, Jennifer Skeem and Christopher Slobogin.  Here is its abstract:

Jurisdictions across the country, including the federal government through its recently enacted First Step Act, have begun using statistical algorithms (also called “instruments”) to help determine an arrestee’s or an offender’s risk of reoffending.  These risk assessment instruments (RAIs) might be used at a number of points in the criminal process, including at the front-end by judges to impose a sentence after conviction, at the back-end by parole boards to make decisions about prison release, or in between these two points by correctional authorities determining the optimal security and service arrangements for an offender.  At the pretrial stage, RAIs might come into play at the time of the bail or pretrial detention determination by a judge, which usually takes place shortly after arrest.  The increased use of RAIs in the criminal justice system has given rise to several criticisms.  RAIs are said to be no more accurate than clinical assessments, racially biased, lacking in transparency and, because of their quantitative nature, dehumanizing.  This chapter critically examines a number of these concerns. It also highlights how the law has, and should, respond to these issues.

January 9, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 08, 2019

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

January 8, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, January 05, 2019

"Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment"

The title of this post is the title of this paper recently posted to SSRN authored by Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt. Here is its abstract:

This paper presents the first controlled economic experiment to study celerity, i.e. the effectiveness of swiftness of punishment in reducing illicit behavior.  We consider two dimensions: timing of punishment and timing of the resolution of uncertainty regarding the punishment.  We find a surprising u-shaped relation between deterrence and the delays of punishment and uncertainty resolution.  Institutions that either reveal detection and impose punishment immediately or maintain uncertainty about the state of detection and impose punishment sufficiently late are equally effective at deterring illicit behavior.  Our results yield strong implications for the design of institutional policies to mitigate misconduct and reduce recidivism.

January 5, 2019 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 02, 2019

Noting the notable "new crop of reform-minded prosecutors"

Though I do not expect a new wave of progressive prosecutors to radically change American criminal justice system, I do hope they can and will be important contributor to whole new conceptions of how to approach crime and punishment in the USA.  This new AP piece talks about some of the notable new folks taking office this year, and here are excerpts:

To get elected as a district attorney, sounding tough on crime used to be the most effective campaign strategy. But in recent years, district attorneys have been winning elections by sounding big on reform.

Next month, at least eight new reform-minded prosecutors will take office in cities around the country after winning their local elections by promising to be more compassionate toward drug addicts and more evenhanded in the treatment of minorities. Some won their races against long odds and deeply entrenched tough-on-crime attitudes.

In Chesterfield County, Virginia, a Democratic defense attorney who promised to eliminate cash bonds for nonviolent offenders won a traditionally conservative district held by a Republican for 30 years.

In Massachusetts, a lawyer who pledged to stop prosecuting a list of more than a dozen nonviolent crimes became the first African-American woman to win the district attorney’s office in Suffolk County, a district that includes Boston.

And in Dallas County, Texas, former Judge John Creuzot won after promising to reduce incarceration rates by 15 percent to 20 percent and to treat drug crimes as a public health issue. “Justice is HEART work” was part of his campaign slogan.

For decades, that kind of mantra by someone running for district attorney would have been seen as soft on crime and a turnoff for many voters. But a shift began in some communities several years ago when candidates began tapping into public frustration over high incarceration rates, disparate treatment of minorities, and the decades-old war on drugs....

This new crop of prosecuting attorneys is facing resistance to proposals for sweeping reforms, mainly from police and prosecutors in their own offices who are accustomed to decades-old policies of locking up defendants as long as possible....

Rachael Rollins, who won the District Attorney’s seat in Boston, raised the ire of everyone from police to retail store owners when she promised to stop prosecuting crimes such as shoplifting, resisting arrest, larceny under $250, drug possession and trespassing. She pledged to dismiss the cases or require offenders to do community service or complete education programs. “Accountability does not necessarily have to equal incarceration,” Rollins said. “There are many different tools we can use to hold people accountable.”

Larry Krasner, a civil rights attorney and public defender in Philadelphia, won a longshot bid for the District Attorney’s office in 2017. During his first year in office, Krasner has let go about 30 assistant prosecutors — 10 percent of the 300 lawyers in his office — and made it mandatory that he personally has to approve any plea deal that calls for more than 15 to 30 years in prison.

One of the challenges he’s faced and the newly elected DAs will likely face is an institutionalized belief that prosecutors should always seek the most serious charge and longest sentence possible. “I think resistance comes in many forms,” Krasner said. “There’s definitely a resistance that comes from the court system itself.”

Many of the new prosecutors have pledged to treat drug cases less like crimes and more like a public health problem. Scott Miles, a longtime defense attorney, won the Commonwealth’s Attorney job in Chesterfield County, just south of Richmond, Virginia, after promising to reduce felony drug offenses to misdemeanors in simple possession cases. Miles promised to “replace our outdated war-on-drugs approach to addiction.”

Kevin Carroll, president of the Chesterfield Fraternal Order of Police, said he is concerned that Miles will go too easy on drug offenders who often commit other crimes to support their habit. “If you’re not going to get in trouble for it, what’s the fear?” he said. “The truth of the matter is, unfortunately, for a lot of the people who are addicted to drugs, their ability to understand the difference between right and wrong is compromised. The fact is they’ll do what they need to do to get the drugs, and if they have to steal, they’ll steal.”

Lucy Lang, executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said the new batch of reform-minded prosecutors represents a shift in the public’s attitude toward the criminal justice system. “It’s a little hard to say whether this reflects a massive sea change,” Lang said. “But I do think that this reflects an increase in awareness on the public’s part of the civil rights crisis we have found ourselves in as a result of overpolicing and mass incarceration over the past 50 years.”

January 2, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, December 30, 2018

Highlighting continued work (and optimism) on alternatives to incarceration

I have had the great honor and pleasure for many years now of working with folks at the Aleph Institute, a national nonprofit that works on various criminal justice reform and recidivism reduction efforts. Hanna Liebman Dershowitz, who is director of special projects for the alternative sentencing division of the Aleph Institute, has this new New York Law Journal piece headlined "Our Country Grapples With Deepest Challenges Around Sentencing," discussing work on alternatives to incarceration and an event on the topic in the works for summer 2019.  Here is an excerpt:

The nonprofit I work with, the Aleph Institute, harbors a vision we call “Rewriting the Sentence,” wherein the cultural and political shift that has already taken hold in this country produces a complete reordering of our punishment priorities.  Once this shift is complete, we would view incarceration and other separation from community only as an option among many to be used sparingly, only when needed.

At present, we are such an outlying world incarcerator that we rank with the most heartless regimes on the planet.  It always bears repeating that we are not 5% of the world population and yet are responsible for almost a quarter of the world’s imprisoned population.  Across history, incarceration has not always dominated the punishment landscape — indeed, in Biblical law there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.

We at Aleph think there are often legal and humanitarian reasons for the avoidance of custodial methods of correction at every stage of our system — from bail reform and law enforcement assisted diversion upfront to diversion programs, specialty courts and sentencing advocacy at the disposition stage to clemency, reentry support and compassionate release toward the back.

A system that uses evidence-based tools at each stage can deliver the optimal levels of supervision and services to allow each person to thrive and stay out of trouble.  Ideally — and I truly get that all of this sounds idealistic — we can use freed-up incarceration resources to support healthy communities, understanding that equity and thriving neighborhoods are the best prevention tools for crime.

What Aleph has learned from delivering care and support to thousands of individuals and families in prisons and jails all over the country for decades is that helping people function better is superior to an outmoded and misguided approach that inexorably leads to negative results, especially for the children left behind.

Here’s why I am not idealistic, but actually a pragmatist. If we don’t envision how we want the system to work, we will continue to incarcerate people none of us ever intended to incarcerate and to not know who we are incarcerating in a meaningful way.....

Why do I think I will see a true culture change in my lifetime on alternatives to incarceration too? Because we are already seeing the seeds of the change, to wit: in a recent meeting with the chief of alternatives for a major metropolitan district attorney, I was told that in recent years incoming prosecutors ask whether there are alternatives they can offer to defendants. In a decade, perhaps they will expect them.

So policy wonks and idealists alike, please stay tuned as we seek to rewrite a legacy of sentencing myopia. Aleph is convening criminal justice stakeholders next June at Columbia Law School for the Rewriting the Sentence 2019 Summit, and we will announce significant new initiatives thereafter. For more information, please visit askssummit.com.

December 30, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 28, 2018

"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again"

The title of this post is the title of this new paper authored by Michael Tonry no available via SSRN. Here is its abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders.  Forty years ago, two-thirds of people predicted to be violent were not.  For every two “true positives,” there were four “false positives.”  Contemporary technology is little better: at best, three false positives for every two true positives.  The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. 

All prediction instruments use ethically unjustifiable information.  Most include variables such as youth and gender that are as unjust as race or eye color would be.  No one can justly be blamed for being blue-eyed, young, male, or dark-skinned.  All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders.  All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

December 28, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Monday, December 24, 2018

"Fifty Years of American Sentencing Reform — Nine Lessons"

The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is its abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Tuesday, December 18, 2018

Convicted poacher sentenced to watch Bambi (really) ... and imagining other crime and Disney movie pairings

Bambi-860x726A couple of helpful colleagues have already made sure I did not miss this local story of a Missouri sentencing.  The press account is headlined "'Bambi' as punishment?  Sentence in SW Missouri poaching case includes mandated viewings," and here are the details:

Four members of a southwest Missouri family have been caught in a multi-year poaching case where authorities say hundreds of deer were killed illegally. “The deer were trophy bucks taken illegally, mostly at night, for their heads, leaving the bodies of the deer to waste," said Lawrence County Prosecuting Attorney Don Trotter.

Conservation agents are calling it one of Missouri's largest cases of deer poaching. The case was so egregious that Lawrence County Judge Robert George ordered a special addition to the jail time one of the poachers received.

Court records show the defendant "is to view the Walt Disney movie Bambi, with the first viewing being on or before December 23, 2018, and at least one such viewing each month thereafter, during Defendants incarceration in the Lawrence County Jail."

The southwest Missouri case involves David Berry Sr. of Springfield, David Berry Jr. of Brookline, and Kyle Berry of Everton. The trio were involved in a multi-year investigation by state, federal and Canadian law enforcement agencies and conservation officers involving suspects in Kansas, Missouri, Nebraska and Canada. David Berry Jr. is the defendant who was ordered to watch Bambi....

On Thursday, Dec. 13, David Berry Jr. received a 120-day sentence in Barton County Circuit Court for a felony firearms probation violation. On Dec. 6, he received a one-year jail sentence in Lawrence County Associate Court after pleading guilty to taking wildlife illegally on Oct. 11. The 120-day sentence Berry Jr. received in Barton County Circuit Court will be served in addition to the one-year sentence he received in Lawrence County.

These convictions were made with information obtained from Operation Game Thief, a hotline sponsored by the Missouri Department of Conservation and the Conservation Federation of Missouri. “It is unknown how many deer the main group of suspects has taken illegally over the past several years,” Lawrence County Conservation Agent Andy Barnes said. “It would be safe to say that several hundred deer were taken illegally.”

Prior to the July 2016 interviews, David Berry Sr. and Eric Berry, 20, Everton, were convicted of taking gamefish by hand in Dade County. During the 2017 firearms deer season, while awaiting his court appearance for violations from the 2016 investigation, Eric Berry and an accomplice were caught spotlighting in Lawrence County. To date, this group of poachers has paid $151,000 in bonds and $51,000 in fines and court costs and collectively served 33 days in jail.

David Berry Sr. and David Berry Jr. had their hunting, fishing and trapping privileges revoked for life by the Missouri Conservation Commission. Eric Berry and Kyle Berry had hunting and fishing privileges revoked for 18 years and 8 years, respectively. Jerimiah Cline, of Republic, who took wildlife illegally and assisted the Berrys, had hunting privileges revoked for five years....

Why take just the deer heads and leave the rest to rot? "In situations like this, with serial poachers who have no regard for the animals, rules of fair chase, or aren’t bothered by the fact that they’re stealing from others, it’s all about greed and ego," said Randy Doman, MDC Protection Division Chief. "Taking just the heads is their version of obtaining a 'trophy' and leaving the carcass behind is merely an afterthought. While there are some cases where poachers go after the antlers for profit, with this bunch it was more about the thrill of the kill itself."

The report that some of these defendants had previously gotten in trouble for "taking gamefish by hand" has me thinking (only half-jokingly) that they should have been ordered to watch Disney's Little Mermaid. And, of course, Disney's Lion King should be a must-watch for that infamous guy who went hunting illegally for Cecil the Lion.  

Especially when we all could use an extra bit of levity in our lives, I have in the title of this post sought to encourage everyone to come up with clever crime and Disney movie pairings.   Would it be so wrong to suggest that Michael Cohen should have been ordered to watch Disney's Robin Hood?  Or that anyone convicted of conducting illegal experiments has to watch Disney's Lilo & Stitch?  (I know that last one is really a stretch, but I wanted to suggest I will no judge silly efforts to spotlight a lesser-known Disney movie in this parlor game).

So, dear readers, what crime and Disney movie sentencing would you find fitting and amusing?

December 18, 2018 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, December 17, 2018

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Sunday, December 16, 2018

Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel's extended opinion "concurring specially." This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts....  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context....

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing.... But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information....

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (1)

"Justice at any cost? The impact of cost–benefit salience on criminal punishment judgments"

The title of this post is the title of this interesting article recently published in the journal Behavioral Sciences & the Law and authored by Eyal Aharoni, Heather Kleider‐Offutt, Sarah Brosnan and Julia Watzek.  Here is its abstract, along with a couple of paragraph's from the paper's discussion section:

This study investigated the effect of cost–benefit salience on simulated criminal punishment judgments.  In two vignette‐based survey experiments, we sought to identify how the salience of decision costs influences laypeople's punishment judgments.  In both experiments (N1 = 109; N2 = 398), undergraduate participants made sentencing judgments with and without explicit information about the direct, material costs of incarceration.  Using a within‐subjects design, Experiment 1 revealed that increasing the salience of incarceration costs mitigated punishments.  However, when costs were not made salient, punishments were no lower than those made when the costs were externalized (i.e., paid by a third party).  Experiment 2 showed the same pattern using a between‐subjects design.

We conclude that, when laypeople formulate sentencing attitudes without exposure to the costs of the punishment, they are prone to discount those costs, behaving as if punishment is societally cost‐free.  However, when cost information is salient, they utilize it, suggesting the operation of a genuine, albeit labile, punishment preference.  We discuss the implications of these findings for psychological theories of decision making and for sentencing policy, including the degree of transparency about the relevant costs of incarceration during the decision process....

One might wonder whether these results offer any insights into the sentencing judgments of real trial court judges.  Importantly, this study was not designed to generalize to judicial populations and, therefore, is agnostic to the potential role of legal expertise in cost discounting.  However, to the degree that our results capture a general property of human reasoning, they provide justification to separately test judges in future extensions of this work.  Presently in the USA, judges are not typically required or advised to consider sentencing costs in their punishment decisions, but this norm is beginning to be challenged, with some jurisdictions now requiring prosecutors to disclose sentencing cost information to judges (Ewing, 2018).  Presumably judges are well‐versed in such cost information, but the question implied by the new policy and raised by this study is whether recruiting transient attention to this information might influence punishment attitudes.

Research suggests that experts, including judges, are not immune to heuristic reasoning.  Experts have demonstrated susceptibility to many of the same heuristic processes that shape lay reasoning, such as anchoring, base rate neglect, and opportunity cost neglect (Bennett, 2014; Northcraft & Neale, 1987; Vera‐Muñoz, 1998; West et al., 2012; Wong, Aharoni, Aliev, & DuBois, 2015).  Thus, it would not be especially surprising if punishment recommendations by professional judges are also affected by cues that increase the saliency of the costs of incarceration.  If attention to cost information affects judicial punishments, this would confer great power to the external, situational cues that draw our attention.  Such cues might include explicit prompts, for example, about the costs of incarcerating versus releasing a defendant, or the other allowable uses of the available funds.  How best to communicate risk and benefit information to fact finders (e.g., probationary presentencing reports? appellate review?) is the subject of a growing body of scholarship (Chanenson, 2005).  Efforts to understand judicial decision making must necessarily consider the role of communication strategies within existing legal policy and practice.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 10, 2018

"Class v. United States: Bargained Justice and a System of Efficiencies"

The title of this post is the title of this notable new paper authored by Lucian Dervan now available via SSRN. Here is its abstract:

In 2018, the United States Supreme Court ruled in Class v. United States that a defendant does not inherently waive his or her right to appeal constitutional claims simply by entering an unconditional plea of guilty. Rather, the Court determined such waivers must be express.  While the issue decided in Class was relatively straightforward, the case stands more importantly as another pillar in the growing body of modern plea-bargaining jurisprudence.  In particular, Class is of note because the facts of the case and the discussions surrounding the appeal raise fundamental questions regarding the operation of the plea-bargaining machine, the psychology of defendant decision-making, and the voluntariness of plea bargaining given our growing understanding of the phenomenon of factually innocent defendants falsely pleading guilty.

This article begins with an examination of Class, including the incentives that led the defendant to plead guilty despite his belief that the statute of conviction infringed his constitutional rights.  The article then examines the shadowy rise of plea bargaining during the 19th and 20th centuries and the recent focus on plea bargaining by the Supreme Court since its 2010 decision in Padilla v. Kentucky.  This analysis of recent plea-bargaining case law will illustrate that fundamental issues are beginning to rise to the surface regarding defendant decision-making and voluntariness in the plea context, including the reliability of admissions of guilt in return for plea bargains and the phenomenon of false pleas.  The article, therefore, next examines recent psychological research on these topics, including research demonstrating that factually innocent individuals will falsely confess in return for the benefits of a bargain and research finding that pretrial detention is a driver of false pleas.

Finally, the piece considers the ramifications of growing evidence that plea bargaining has a voluntariness and reliability problem.  Along with considering ways to address these concerns, the article proposes that these revelations will inevitably lead us to face a broader question.  What does it mean if we have adopted a criminal justice system that embraces efficiency at the expense of accuracy?

December 10, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, December 08, 2018

"Bias In, Bias Out"

The title of this post is the title of this recent article authored by Sandra Mayson that I just came across on SSRN. Here is its abstract:

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime.  As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology.  The deep problem is the nature of prediction itself.  All prediction looks to the past to make guesses about future events.  In a racially stratified world, any method of prediction will project the inequalities of the past into the future.  This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it.  What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology.  Algorithms shed new light on an old problem.

Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk.  The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion — in which case they cannot justify state coercion.  To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible.  Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

December 8, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Wednesday, December 05, 2018

Sentencing Project launches campaign to "End Life Imprisonment" with new book and other resources

Meaning_of_life_finalThe folks at The Sentencing Project this week officially kicked off what they are calling here a "Campaign to End Life Imprisonment." The website for the campaign has a facts, figures and stories about life imprisonment, and this four-page fact sheet has lots of data and graphs and includes these particulars:

While people of color are over-represented in prisons and jails; this disparity is even more evident among those sentenced to life imprisonment, where one of every five African American prisoners is serving a life sentence.

Over 6,000 women are serving life or virtual life sentences. The number of women serving life sentences has risen at a faster rate than for men in recent years. Between 2008 and 2016, women lifers increased by 20%, compared to a 15% increase for men.

Juveniles serve life sentences at alarming rates as well. In fact, the U.S. is unique in the world in its use of life imprisonment without parole for crimes committed by teenagers.

In addition to the more than 2,000 people serving life without the possibility of parole, there are more than 7,000 juveniles serving life with parole and another 2,000 serving “virtual life” prison terms of 50 years or more.

In conjunction with this launch, the New Press has published this new book authored by Marc Mauer and Ashley Nellis, with contributions by Kerry Myers, titled "The Meaning of Life: The Case for Abolishing Life Sentences." Here is how the publisher's website describes the book:

Most Western democracies have few or no people serving life sentences, yet here in the United States more than 200,000 people are sentenced to such prison terms.

Marc Mauer and Ashley Nellis of The Sentencing Project argue that there is no practical or moral justification for a sentence longer than twenty years.  Harsher sentences have been shown to have little effect on crime rates, since people “age out” of crime — meaning that we’re spending a fortune on geriatric care for older prisoners who pose little threat to public safety.  Extreme punishment for serious crime also has an inflationary effect on sentences across the spectrum, helping to account for severe mandatory minimums and other harsh punishments.

A thoughtful and stirring call to action, The Meaning of Life also features moving profiles of a half dozen people affected by life sentences, written by former “lifer” and award-winning writer Kerry Myers.  The book will tie in to a campaign spearheaded by The Sentencing Project and offers a much-needed road map to a more humane criminal justice system.

December 5, 2018 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, December 04, 2018

"What the Feds Can Do to Rein in Local Mercenary Criminal Justice"

The title of this post is the title of this new article authored by Wayne Logan now available via SSRN.  Here is its abstract:

Although physical and psychological harms caused by local police are the most common bases for federal intervention and reform efforts, this Article focuses on the financial harms local police can cause.  As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system.  The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals).  Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.  This Article surveys the adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many, quite distinct obstacles that federal reform efforts face; and the several possible avenues for reform and their likelihood of success.

December 4, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, December 03, 2018

"21 Principles for the 21st Century Prosecutor"

The title of this post is the title of this notable new report from the folks at Fair and Just Prosecution, Brennan Center for Justice, Emily Bazelon, and The Justice Collaborative.  Here is its introduction:

Prosecutors are charged with addressing violations of criminal law and promoting public safety. In carrying out these responsibilities, they must also bear in mind their role as ministers of justice and consider the rights, needs, and interests of all members of their community — including victims and individuals who are charged with criminal conduct.

Prosecutors wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed Along the way, they often control decisions about plea bargains and whether mandatory minimum sentences will be triggered, and thus greatly impact whether (and for how long) defendants remain in jail and prison.

Over the last four decades, the total incarcerated population in the United States has quintupled, to 2.2 million, or nearly 1 out of 100 adults. About 10.6 million people cycle in and out of jail each year.  While the causes are complex, it’s clear that punitive policies have contributed to the incarceration build-up.  These policies have included the war on drugs, over-policing of poor and minority communities, and harsh directives from legislators, like mandatory-minimum sentencing laws.  Putting so many people behind bars imposes great costs and burdens on them, their families, and our country.

In recent years, the role of prosecutors has received increasing attention.  Given their powers, prosecutors are well positioned to make changes that can roll back over-incarceration.  They can use their discretion to improve the overall fairness and efficacy of the criminal justice system and champion priorities that improve the safety and well-being of our communities.

Fairness is paramount It helps achieve the mission of public safety by building trust, which in turn aids police and prosecutors in solving crime The 21 principles below offer practical steps prosecutors can take to transform their offices, and collectively, their profession.

The principles include examples of innovative endeavors by prosecutors around the nation, not necessarily as endorsements, but as illustrations of new approaches.  We recognize that prosecution is local, and some of these recommendations and examples won’t be suited to all jurisdictions.  We nonetheless hope that these ideas generate conversation, creative thinking, and change.

The central aspiration of these principles is at once simple and profound: that prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.

December 3, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, November 24, 2018

What might the Founders have to say about modern federal sentencing debates?

HamiltonI had the great fortune last night to (finally!) get to see the musical Hamilton (in Chicago).  Reflecting on the play and the history of the founding of the United States, I could not resist wondering aloud here about how the historic figures of Founding era might have viewed the federal sentencing controversies today.

Because I am not a constitutional historian, I cannot provide a definitive account of what all the Framers said about crime and punishment.  But I can highlight the work here of Professor John Bessler highlighting the impact and import of Italian thinker Cesare Beccaria's book On Crimes and Punishments on their thinking:

Beccaria’s book shaped American history.  George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.”  At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words.   And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

One way in which Beccaria influenced America’s Founding Fathers is by shaping their views on cruelty, the concept embedded in the U.S. Constitution’s Eighth Amendment.  James Wilson — a signer of the Declaration of Independence and the U.S. Constitution — regularly cited Beccaria’s work and called “cruel” punishments “dastardly and contemptible.” And in the 1820s, Madison spoke of his attraction to “penitentiary discipline” as a substitute for “the cruel inflictions so disgraceful to penal codes.”  After receiving an anti-death penalty pamphlet that quoted Beccaria, Madison wrote to a Kentucky physician: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”...

One of Beccaria’s core principles — embraced by American revolutionaries such as John Adams, Thomas Jefferson, James Wilson and William Bradford — was that any punishment which is not “absolutely necessary” is “cruel” and “tyrannical.”

I can also here note a few classics directly from the pen of Framers, such as Alexander Hamilton in Federalist No. 74 defending a broad and unfettered pardon power vested in the President:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.  As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

And Thomas Jefferson starts his "Bill for Proportioning Crimes and Punishments" with an accounting of the need and value of properly proportioned punishments:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

I am inclined to read all these sources and resources as evidence that the Founders would have been quite supportive of the FIRST STEP Act and of modern US Presidents using their clemency powers often and on behalf of a lot more than turkeys.

November 24, 2018 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, November 22, 2018

So very thankful this year that so very many voices on the political right are actively advocating for criminal justice reforms

As regular readers know, I have long thought and advocated that all sorts of conservatives could and should robustly embrace all sorts of criminal justice reform given avowed commitments to personal liberty, small government, human dignity and the rule of law.  Almost exactly a decade ago in this 2008 Harvard Law & Policy Online article, published right after Prez Obama was elected to his first term, I urged progressives to start "aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration."  I further suggested:

Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

The kinds of coalitions I was hoping to see started to emerge (albeit too slowly for my taste) during the Obama Administration, and now they appear to be on full display as discussion of federal reforms finds expression in the debate over the FIRST STEP Act.  And so today I find myself especially thankful that it is now so much easier to find right-leaning organization and voices calling for the passage of federal reforms rather than resisting such reform.  Here, for example, is just a quick round up of just some recent voices on the political right actively advocating for the FIRST STEP Act:

From Politico, "Religious right to start pressure campaign around criminal justice reform"

From ALEC Action, "Members of the U.S. Senate: Please Support the FIRST STEP Act (S.3649)"

From John-Michael Seibler & Joe Luppino-Esposito at The Heritage Foundation, "How This Criminal Justice Reform Bill Could Make Our Neighborhoods Safer"

Via local NPR, "Kelley Paul Presses McConnell To Move Criminal Justice Reform Forward"

From Michelle Malkin in the National Review, "It’s Time to Pass the First Step Act: It's pro-cop, pro-borders, and tough on injustice."

From Pastor Paula White-Cain in the Washington Examiner, "Prison reform bill represents what’s beautiful about America"

Relatedly, Senator Charles Grassley has this notable new posting titled "Diverse Group of Organizations Endorse Bipartisan First Step Act" that highlights "a letter to Majority and Minority leaders in both the Senate and House of Representatives, [in which] 42 organizations, including faith-based groups and conservative think tanks, called on Congress to pass the comprehensive criminal justice reform package before the end of the year."

November 22, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, November 15, 2018

"The Time Frame Challenge to Retributivism"

The title of this post is the title of this notable new paper by Adam Kolber now available via SSRN.  Here is its abstract:

Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve.  There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view).  Both options are unappealing. 

The whole life view may be superior on theoretical grounds but is hopelessly impractical.  The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality.  Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

November 15, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Tuesday, November 13, 2018

Senator Mike Lee makes the "conservative case for criminal justice reform"

Utah Senator Mike Lee has this new opinion piece at Fox News headlined "A conservative case for criminal justice reform." Here are excerpts:

“Government’s first duty,” President Reagan said in 1981 and President Trump recently tweeted, “is to protect the people, not run their lives.”  The safety of law-abiding citizens has always been a core principle of conservatism.  And it is why we need to take this opportunity to pass real criminal-justice reform now.

Although violent crime rose during the final two years of President Obama’s time in office, it decreased during the first year of Trump’s presidency.  We need to keep that momentum going. And criminal justice reform can help us do that in two ways.

First, commonsense sentencing reform can increase trust in the criminal-justice system, thus making it easier for law enforcement personnel to police communities.  Right now, federal mandatory-minimum sentences for many drug offenses can lead to outcomes that strike many people as unfair, and thus undermine the public’s faith in our justice system....

When the public sees judges handing out unfair punishments, it undermines trust in the entire justice system.  This makes it harder for police to do their job.  As Ronald Reagan explained when he was Governor of California, “[w]ithout respect for the law, the best laws cannot be effective.  Without respect for law enforcement, laws cannot be carried out.  We must have respect, not only for the law, but also for the many who dedicate their lives to the protection of society through enforcement of the law.”  Fairer sentencing laws will increase respect for police, especially in many communities where such respect is currently lacking.

Second, excessive prison sentences break apart families and weaken communities -- the building blocks of American civil society.  Incarceration is tough on any marriage.  Few can survive the loss of marital love and financial strain that happens when a spouse is behind bars.  And the longer the sentence, the more likely a marriage will end in divorce.  One 2011 study found that each additional year behind bars increases the likelihood of divorce by 32 percent.  This has real costs for the families -- and especially the children -- of offenders.

Incarceration is an essential law enforcement tool that protects communities and keeps families safe.  But it also inflicts costs on communities and families, and at some point the negative impact of incarceration on marriage and family can become too stark to ignore.  And for non-violent offenders, especially those with no prior criminal history, excessive sentences often do far more harm than good.

We now have a rare opportunity to pass criminal justice reform that will help restore trust in law enforcement and protect American families.  In May of this year, the House of Representatives passed the First Step Act, which includes some much-needed prison reform measures that would reduce recidivism.  Unfortunately, it did not include any reforms to address manifestly unjust sentences for non-violent offenders.

The Senate now has a chance to add some of those much-needed prison reform measures into the bill.  We won’t get everything we want, but we have an incredible opportunity to reach a compromise that includes meaningful, commonsense reforms to our nation’s mandatory-minimum drug sentencing laws.

It is unlikely we will get another opportunity to enact meaningful reform anytime soon.  President Obama failed to accomplish criminal-justice reform during his eight years in office.  But President Trump and the Republican Congress can get the job done now.  It would be another big step toward making America great again.

November 13, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, November 09, 2018

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

November 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (3)

Thursday, November 08, 2018

"The Death Penalty as Incapacitation"

The title of this post is the title of this new paper available via SSRN authored by Marah Stith McLeod.  Here is its abstract:

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence.  The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary.  The view on the ground could not be more different.  Hundreds of executions have been premised on the need to protect society from dangerous offenders.  Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary.  Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair.  It concludes by highlighting several of the most promising reforms.

November 8, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 25, 2018

"How ‘End Mass Incarceration’ Became a Slogan for D.A. Candidates"

The title of this post is the title of this notable new New York Times article. Here is how the lengthy piece gets started:

The Dallas County district attorney, Faith Johnson, often reminds voters that she recently won a rare murder conviction against a white police officer who shot into a car full of teenagers, killing a black 15-year-old boy. “They couldn’t get that conviction in New York. They couldn’t get it in California. They couldn’t get it in Ohio,” Ms. Johnson, a Republican running to remain in office in November, told the mostly black crowd at a recent candidate forum at the African American Museum. “We got it here in Dallas County.”

But then her Democratic opponent took the microphone and pledged to be even tougher on the police. And he promised that if elected, he would reduce the number of Dallas County residents who end up behind bars. “In the first 90 days, I’m going to give you a plan to end mass incarceration,” said John Creuzot, a former judge who hopes to unseat Ms. Johnson in November.

In the past, candidates running to be district attorney — if they were challenged at all — touted their toughness on crime. But now district attorneys’ races have become more competitive, attracting large donations and challengers running on pledges to transform the criminal justice system.

The focus on local races comes as overhaul efforts have stalled on the federal level. Attorney General Jeff Sessions has vowed to aggressively prosecute nonviolent drug crimes, and President Trump has praised policing tactics such as stop-and-frisk.

The push to rethink criminal justice practices has been embraced by liberals and some conservatives, and polls show a majority of voters favor reducing the number of nonviolent drug offenders who are sent to prison. But disagreement remains about exactly how to revamp district attorney offices, which handle most criminal cases in the country.

In Jefferson County, Ala., the Democratic district attorney candidate, Danny Carr, has floated the idea of treating the possession of small amounts of marijuana more like a traffic violation. In San Antonio, Joe Gonzales, also a Democrat, has pledged to rehabilitate more nonviolent offenders, rather than locking them up.

Others are proposing more aggressive measures. Rachael Rollins in Boston, who has no Republican challenger in November, released a list of low-level crimes, such as disturbing the peace, that she would decline to prosecute altogether.

October 25, 2018 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Supermajoritarian Criminal Justice"

The title of this post is the title of this new paper authored by Aliza Cover now available via SSRN. Here is its abstract:

Democracy is often equated with majority rule.  But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian.  The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian — historically, unanimous — approval of a jury drawn from the community.  And criminal law theorists’ expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. 

Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian, at best.  Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support.  By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.

October 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 18, 2018

Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought

This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:

By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.

As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”

Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.

Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”

The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.

UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."

October 18, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, October 17, 2018

"Evidence-Informed Criminal Justice"

The title of this post is the title of this notable new paper by Brandon Garrett now available via SSRN. Here is its abstract:

The American criminal justice system is at a turning point.  For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion.  Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches.  That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health.  Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods.  Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials.  Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control.  Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors.  Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights.

Today, criminal justice actors are embracing more data-driven approaches.  This raises new opportunities and challenges.  A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community.  Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice.  This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.

October 17, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 12, 2018

Highlighting how constitutional problems with death penalty also apply to drug prohibitions

Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner."  The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:

The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs.  Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”

If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.  Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too.  For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....

Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses.  Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans.  That’s in spite of the fact that rates of consumption are roughly equal among both groups...

The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly.  When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”

The parallel here couldn’t be more clear.  If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition.  A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years.  Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.

Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.  While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. 

The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”  For all intents and purposes, drug prohibition too has failed to achieve similar goals.  Decades of drug war have not appreciably deterred consumption.  From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.  The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...

A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote.  “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”  Now swap “death penalty” with “drug prohibition” in that last quote.  Fits like a glove.

Prior related post:

October 12, 2018 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, October 07, 2018

"Robot Criminals"

I just noticed this recent paper on SSRN that had a title too good not to blog.  The paper is authored by Ying Hu, and here is its abstract:

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions.  If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability.  The former is not rendered redundant by the latter.  It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action.  Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots.  Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.

The article does not discuss sentencing until its very end, but this paragraph covers robot punishment possibilities:

Assuming we can punish robots, a new question naturally follows: how should a robot be punished? In this regard, a range of measures might be taken to secure that the robot commit fewer offenses in the future. These include:

  a. physically destroying the robot (the robot equivalent of a “death sentence”);

  b. destroying or re-write the moral algorithms of the robot (the robot equivalent of a “hospital order”);

  c. preventing the robot from being put to use (the robot equivalent of a “prison sentence”); and/or

  d. ordering fines to be paid out of the insurance fund (the robot equivalent of a “fine”).

In addition, the unlawful incident can be used to design a training module to teach other smart robots the correct course of action in that scenario.

October 7, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 04, 2018

"The Cure for America's Opioid Crisis? End the War on Drugs"

The title of this post is the title of this new paper now available via SSRN and authored by Christine Minhee and Steve Calandrillo.  Here is its abstract:

The War on Drugs.  What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined.  With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma.  To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.

This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates.  We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health.  We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.

October 4, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1

For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program  taking place today. 

Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights.  (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.)  Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists. 

In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. 

 Prior related posts:

October 4, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, October 03, 2018

Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"

As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years.  But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again.  Here is an excerpt that leads me to this view:

Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons.  Our goal is to reduce crime, just as President Trump directed us to do.  Our goal is to make every community safer — especially the most vulnerable....

Our prosecutors in Utah are running up the score against the criminals.  They charged 29 percent more defendants in 2017 than they did in 2014.  That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....

In 2018, the Department of Justice prosecuted more violent criminals than in any year on record.  At the same time, we charged the highest number of federal firearm defendants in history.  Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.

This past year we broke our own record — and it wasn’t even close.  Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year.  That’s 20 percent more violent crime defendants than we charged in fiscal 2016.

We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016.  We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.

Here’s what the critics don’t understand: we are going after violent felons.  We are targeting the most dangerous people in the most violent areas who have guns....

Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish.  And so we are going to keep up this pace.  We are going to keep supporting Utah’s state and local police.  We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.

October 3, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, October 02, 2018

New "Square One Project" already producing terrific paper on re-imagining criminal justice policy

Square-One-logo-300x300This posting from the Laura and John Arnold Foundation (LJAF) describes a notable new criminal justice reform effort that formally launched a few weeks ago:

The Square One Project, a three-year initiative to rethink justice policies from top to bottom, launched [on September 20] at D.C.’s National Press Club.  Square One brings together a diverse cross-section of academics, policymakers, and community organizers to re-examine traditional responses to crime and envision a new paradigm that can address systemic inequalities such as poverty and racial discrimination.  The Columbia University Justice Lab, John D. and Catherine T. MacArthur Foundation, and Laura and John Arnold Foundation (LJAF) support the project.

Square One seeks to reform a criminal justice system in urgent need of change . Over the last four decades, the number of people in America’s prisons and jails has increased 500 percent.  Prisons are overcrowded, states struggle to fund basic services, and racial inequities inherent in the system have devastated communities. “The project asks: If we set aside the traditional response to crime, and ask first whether other responses might be more effective — if we begin at ‘square one’ — how would criminal justice policy be different?” said Kelli Rhee, President and CEO of LJAF.

The initiative consists of three core components: an executive session focusing on justice policy; roundtables in cities across the country; and a comprehensive community engagement and communications strategy. In the executive session, about 30 leading experts, practitioners, and scholars will meet twice a year to develop and refine proposals. “This format will test and push participants to challenge their own thinking and consider new options,” said Bruce Western, co-director of the Columbia University Justice Lab. “These frank, off-the-record discussions will ultimately yield fresh discourse and new research among academics, policymakers, practitioners, and communities.”

Roundtable sessions will invite broader engagement with community members and a variety of stakeholder groups, tackling a single, complex policy challenge. The first Square One roundtable is scheduled for Oct. 11-13 in Durham, N.C., in partnership with North Carolina Central University.  The discussions, held at the NCCU School of Law, will be live-streamed.

As shown in this page at Square One's website, the executive session part of the project is already producing some very interesting papers by some very interesting people:

Though I am not sure if additional papers will be emerging from the Square One executive sessions or the roundtables, I am sure folks interested in thinking deeply about the present and future of criminal justice policies and practices in the United States should be watching what this project continued to produce.

October 2, 2018 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 01, 2018

Previewing SCOTUS consideration of capital competency (and making a case for abolition)

The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases."  Her post starts this way:

It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.

Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”

 Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial.  After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.

Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty."  Here are excerpts:

The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols.  As the mills have ground on, life has ground Madison, 68, down to wreckage.  After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....

The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.”  For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry.  Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment.  Deterrence is another.  But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial.  Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....

Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.”  That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.

Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.

UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."

October 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, September 28, 2018

"Incapacitating Criminal Corporations"

The title of this post is the title of this new paper authored by William Robert Thomas now available via SSRN.  Here is its abstract:

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having an actual “body to kick” — and, by extension, a body to throw into prison — is not one of them. The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

In this Article, I argue that incapacitation both can and should serve as a justification for punishing criminal corporations.  Descriptively, I interrogate how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons.  Excavating a richer conceptual framework for incapacitation from our practices of individual punishment, I demonstrate that sanctions we already impose in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating our understanding of penal incapacitation provides reason to think that we have similar and perhaps stronger reasons for incapacitating corporate persons than we do individuals.

Prescriptively, I leverage this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment.  Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable, alternative.  This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed, but dubiously effective, compliance and internal governance reforms.  Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.

September 28, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)