Wednesday, February 01, 2023

"Criminal Proof: Fixed or Flexible?"

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

Should we use the same standard of proof to adjudicate guilt for murder and petty theft?  Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law.  This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes.  I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds.  The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments.  This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society.

February 1, 2023 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Saturday, January 28, 2023

Effective look at the many ugly realities of probation

The March 2023 issue of Reason magazine has this terrific article about probation systems authored by C.J. Ciaramella and Lauren Krisai. This lengthy piece is worth a full read, and its full title notes its basic themes: "U.S. Probation System Has Become a Quagmire: What was originally intended as an alternative to incarceration has become a system for mass state control." Here are excepts from the start and first part of the piece:

Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge.  Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.  And 40 years on probation.

Probation terms vary by state.  They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar.  For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms.  For the privilege of being subjected to all this, there are also fees owed to the state — all to live on the edge of a life-destroying prison sentence....

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives.  And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control.  Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight.  As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

And here is part of a section of the article about just some of the restrictions probationers face:

When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer.  According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."

In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car.  New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."  It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking....

Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers.... In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says....  Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.

And here is part of the discussion of probation's contribution to incarceration:

Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.

Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.

For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations.  According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider....  The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.  Kansas also has a high admission to prison rate for probation violations — 44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.

January 28, 2023 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (6)

Sunday, January 22, 2023

Warranted or unwarranted disparity?: noting different punishments for disrupting different government branches

This lengthy new NBC News piece shines a spotlight on the notable, but arguably justified, disparity between how disruptive protesters at Congress and at the Supreme Court are punished.  The full headline for the piece highlights its essentials: "Protesting against Congress may get you a $50 fine. Disrupting the Supreme Court is a different story. Protesters disrupting oral arguments can face at least a night in jail and a criminal conviction."  Here are some excerpts:

When Emily Paterson was arrested for protesting abortion law changes during a Supreme Court hearing in November, she spent the night in jail and now has a criminal conviction on her record. Across the street, Jack Murphy met a different fate when she did something similar in the Senate chamber three years earlier: She paid a $50 fine and was released a few hours later.

Such is the differing nature of punishment for nonviolent protesters during official proceedings in Washington, with the Supreme Court, which has its own police department, viewed as being tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.

It’s a sore point for Mark Goldstone, a lawyer who regularly represents Washington protesters. Supreme Court protesters are treated “more harshly” in a couple of different ways, he said, referring only to those participating in nonviolent protests and not violent attacks like the Jan. 6 assault on the Capitol. On Capitol grounds, the police “process you and release you,” Goldstone said, while at the Supreme Court, “you are going to spend the night in jail" and likely face prosecution....

Those familiar with Washington protests point to some possible reasons protesters are treated differently.  One is that the Capitol Police has a lot more protesters to deal with, sometimes needing to process hundreds of people quickly.  In contrast, although protests outside the Supreme Court building are common, it is relatively unusual for people to disrupt court proceedings inside the courtroom.

There are also inherent differences between the two institutions.  Congress is where democratically elected representatives meet and a place where members of the public have a right to express their views.  The high court, meanwhile, is not directly accountable to the people and likes to see itself as nonpolitical.  As such, there may be a desire to crack down on protesters to help maintain that image.  The respective police departments have different legal powers too, which could affect how they resolve cases.

As I see it, protesters who disrupt SCOTUS oral arguments are generally likely to be a lot more disruptive to the functioning of SCOTUS, and be more harmful and disrepectful to the lawyers who have prepared for months for 30 minutes of time to represent their clients before the Justice, than protesters in Congress.  Of course, as the events of January 6, 2021 should remind us, some protesters can be very disruptive of the work on Congress.  But the practicalities of the functioning of different branches, not some notion of political "image," seems to me to make the disparity here more warranted than unwarranted.  But perhaps others have distinct views.

January 22, 2023 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, January 05, 2023

Quite a remarkable account of one January 6 rioter's sentencing story

The Washington Post has this very lengthy piece telling a remarkable story about the life and history of one of the January 6 rioters and where his sentencing fit in.  The piece is fully titled "Prison or mercy? A Jan. 6 rioter weighs his sins and confronts his fate. Eight years before he stormed the Capitol, Jake Peart acted with ‘unfathomable’ grace. A judge must decide if it matters." The long piece is worth the time, and here is part of its start:

Nearly 18 months had passed since he stormed the U.S. Capitol and sought to halt the inauguration of a duly elected president. Now the time had come for the federal government to pass judgment on Jake Peart.

The sentencing hearing was taking place via video, a necessity given the sheer number of defendants — more than 950 and counting — who, like Peart, had been charged with crimes related to the riot.

Alone in his living room and free from custody as he awaited sentencing, Peart listened as a federal prosecutor summarized his offense: The 47-year-old real estate agent, husband and father of five had blown past police officers being “attacked violently,” the blaring of alarms and the smell of tear gas emanating from the seat of American democracy. Once inside the Capitol, he had banged on a broken piece of furniture, yelling, “This is our house!”...

Peart was one of thousands of American citizens who on Jan. 6, 2021, sought to overturn the 2020 election on behalf of an angry and defeated President Donald Trump. Collectively, the mob’s actions were “egregious, outrageous, dangerous,” the judge told Peart, calling them “a direct attack on the rule of law and democracy as we know it.”

But each of the insurrectionists in the Capitol that day was also an individual. And so before the judge delivered his decision, he described a letter in Peart’s case file from a woman who in 2013 was driving home drunk from a bar when she struck and killed Peart’s 28-year-old sister. “A truly remarkable letter,” the judge called it.

In it, Andrea Milholm Jung described how the “mercy and love” that Peart had shown her after the accident and while she was in prison had helped her to find redemption. “Put yourself in Mr. Peart’s shoes and ask yourself if you would do the same,” she wrote to the judge. “It is a question I ask myself every single day.”

Peart sat quietly in his leather chair, his Bible at his side, awaiting his fate. From his window he could see the soaring peaks of southern Utah’s red-rock desert mountains.

The entire hearing had lasted a little more than an hour and now boiled down to just a few difficult questions: Was Peart truly repentant? Did he grasp the severity of his crime? Did he deserve prison or mercy?

January 5, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (12)

Wednesday, January 04, 2023

"Death Penalty Abolition, the Right to Life, and Necessity"

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

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life.  Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm.  Can capital punishment be necessary in this sense — and thus justified defensive killing?  If so, the right-to-life argument would have to admit certain exceptions where executions are justified.  Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world.  A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat.  ONI precludes executions for reasons of future dangerousness.  By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

January 4, 2023 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Tuesday, December 27, 2022

Federal judge sentences Michigan man who plotted to kidnap Gov to 16 years despite feds seeking LWOP ... and thereafter give other leader 235 months

As reported in this NBC News piece, headlined "Man sentenced to 16 years for plotting to kidnap Michigan Gov. Gretchen Whitmer," a high-profile case reached a sentencing outcome this morning in Michigan federal court. Here are some of the notable details:

A federal judge on Tuesday sentenced a man to 16 years in prison for his role in a plot to kidnap Michigan Gov. Gretchen Whitmer — opting against the prosecution's bid for life behind bars.

Adam Fox, 39, was convicted in August of conspiracy to commit kidnapping and to use a weapon of mass destruction to attack Whitmer, who had drawn the ire of far-right groups for her efforts to curb the spread of Covid-19 in 2020. Jurors in April failed to come to verdicts against Fox and co-defendant Barry Croft, forcing a judge to declare a mistrial before a second trial proved decisive.

U.S. District Judge Robert Jonker questioned whether Fox was a true "natural leader" of the plot, worthy of a life sentence.  "I don't think life is needed to achieve the important public deterrent factors," Jonker said in Grand Rapids, explaining the 192-month sentence.

While a terrorism enhancement set up Fox for a possible life term, Jonker said that harshest sentence isn’t automatic and that he had to carefully consider other factors.  Jonker said he leaned heavily on a 2018-19 Northern California case where U.S. District Judge Charles Breyer, brother of retired U.S. Supreme Court Justice Stephen Breyer, sentenced ISIS sympathizer Amer Alhaggagi to 188 months in prison, more than 15 years short of the 33 years sought by prosecutors.

“You have to calibrate, as judges, the overall seriousness of wrongdoing and the overall seriousness of the defendant’s history," Jonker said. “I see nothing in the record ... nothing that makes me think he’s (Fox) a natural leader and nothing that makes me think he’s the kind of person that anybody involved in this group was naturally going to follow.”

Assistant U.S. Attorney Nils Kessler had said Fox was out to spark an all-out war and needed to be put away for life. “They wanted a second Civil War or a revolution,” Kessler told the court on Tuesday.  "They wanted to ruin everything for everybody."  Kessler warned that Fox will still be a dangerous man when he someday walks free. “The problem is this defendant, he’s going to go into jail and probably emerge more radicalized than when he went in and will remain a danger to the public, your honor," the prosecutor said.

The plot was hatched in response to Whitmer's actions during the start of the pandemic in 2020 when she ordered various lockdowns aimed at curbing the spread of Covid. Far-right groups blasted Whitmer, and then-President Donald Trump appeared to back that opposition in an all-caps tweet.

Defense attorney Christopher Gibbons argued on Tuesday that a life sentence would have been too much.  "That overstates the reality of the conduct that has been alleged and that was actually accomplished by Adam Fox in summer of 2020," Gibbons said.

Based on various press reports, I surmise a terrorism enhancement under the federal sentencing guidelines led to a guildeine-recommended sentencing of life, which is turn served as a key basis for federal prosecutors to advocate for an LWOP term. But it seems Judge Jonker concluded that a 16-year prison term would be "sufficient but not greater than necessary" to serve the purposes set forth by Congress in 18 USC 3553(a)(2).

UPDATE:  On Wednesday (Dec. 28), another kidnapping plot leader was sentenced by the same judge as detailed in this Fox News account:

The other co-leader convicted of conspiracy charges in the foiled plot to kidnap Michigan Gov. Gretchen Whitmer in 2020 was sentenced Wednesday to nearly 20 years in prison.

Barry Croft Jr., who prosecutors recommended a life sentence, learned of his punishment a day after key ally Adam Fox was sentenced to 16 years. Croft was sentenced to 19 years and seven months.

Fox, 39, and Croft, 47, were convicted on two counts of conspiracy at a trial in August. Croft also was found guilty of possessing an unregistered explosive.  The conspirators were furious over tough COVID-19 restrictions that Whitmer and officials in other states had put in place during the early months of the pandemic, as well as perceived threats to gun ownership.

Croft, a Delaware trucker, regularly wore a tri-cornered hat common during the American Revolution and had tattoos on his arms symbolizing resistance -- "Expect Us" -- as he traveled to Ohio, Wisconsin and Michigan to meet with like-minded extremists, according to the Associated Press. "Although he may not have had hierarchical control over all the other participants, he coordinated and pushed the implementation of the conspiracy from its inception to its final stages," Assistant U.S. Attorney Nils Kessler said in a court filing....

"The abduction of the governor was only meant to be the beginning of Croft’s reign of terror," Kessler said. "He called for riots, ‘torching’ government officials in their sleep and setting off a ‘domino’ effect of violence across the country."

A key piece of evidence showed Croft, Fox and others traveled to see Whitmer's vacation home in northern Michigan, with undercover agents and informants inside the cabal. At one point, Croft told allies, "I don’t like seeing anybody get killed either. But you don’t make an omelet without breaking a few eggs, you know what I mean?"

Croft's attorney tried to soften his client's role. In a court filing, Joshua Blanchard said the Bear, Delaware, man did not actually have authority over others and often frustrated them because he "just kept talking." Croft was smoking 2 ounces of marijuana per week, Blanchard said. "Simply put, to the extent that the jury determined he was a participant, as they necessarily did, he was a participant to a lesser degree than others," Blanchard insisted.

Two men who pleaded guilty and testified against Fox and Croft received substantial breaks; Ty Garbin is already free after a 2 1/2-year prison term, while Kaleb Franks was given a four-year sentence.

In state court, three men recently were given lengthy sentences for assisting Fox earlier in the summer of 2020. Five more are awaiting trial in Antrim County, where Whitmer’s vacation home is located.

December 27, 2022 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Sunday, December 04, 2022

"A Fiduciary Theory of Progressive Prosecution"

The title of this post is the title of this new article authored by Rebecca Roiphe and Bruce Green. Here is its abstract:

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions.  They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case.  This article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors.  Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role.  As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations.  This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public.  We conclude by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role.

December 4, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, December 02, 2022

"It is Time to Reform Federal Supervised Release"

The title of this post is the title of this notable new commentary at the ACS Expert Forum authored by Aliza Hochman and Jacob Schuman. I recommend the piece in full, and here are excerpts (with links from the original):

This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive.  As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole.  Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment.  If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years.  Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment.  The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive.  Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s....  In approximately one-third of cases, the government ultimately revokes the defendant’s supervised releasesending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.”  Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration.  We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment.  These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release.  First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant....  Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety....  Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests....

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services....

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release.  The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization.  The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress.  We commend this bipartisan political effort to make federal community supervision more effective and more just.

December 2, 2022 in Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, November 29, 2022

"Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency"

The title of this post is the title of this new article authored by Edward Rubin and Malcolm Feeley and available via SSRN. Here is its abstract:

Our so-called criminal justice system is in fact a disorganized mélange of poorly supervised police departments, over-aggressive prosecutors, under-funded public defenders, chaotic criminal courts and overcrowded, under-controlled prisons and jails.  Many valid criticisms have been levelled against its particular components and the racist, classist and vindictive attitudes that motivate it.  This article identifies a more basic cause of the system’s failure and recommends a more comprehensive solution.  The various institutions that we use to deal with the problem of criminal activity are atavisms, holdovers from the pre-modern era when crime control was the defining feature of government (together with foreign affairs) rather than one element of a wide-ranging system of public administration. As a result, these institutions are frozen into outdated, balkanized and reactive formats that fail to achieve the system’s basic goal of crime prevention.

For considerably more than a century, our society has addressed other social issues such as education, public health, employment conditions, consumer safety and environmental degradation by creating administrative agencies with comprehensive responsibility and at least an expectation that they will develop a coherent strategy.  The same should be the case in criminal justice.  An integrated, hierarchically organized agency in each state would be able to plan general approaches, manage resources and coordinate functions, all essential tasks that are currently ignored or underdeveloped.  In addition, it would have the capacity to train staff, supervise their performance, punish misconduct, and develop new patterns of behavior that would detach criminal justice institutions from their pre-modern, militaristic origins.  An orderly administrative system of this sort is almost certainly the only way to alter the deeply ingrained patterns of behavior that continue to produce so much abuse and oppression in all our criminal justice institutions.  While constitutional law protections should not be diminished, the criminal trial, now utilized by only a few percent of all defendants, should not serve as the organizing principle of the system, but rather as a means for dealing with the most recalcitrant individuals, as it does in other areas of administration such as securities law and environmental protection.

November 29, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, November 21, 2022

"Punishment Externalities and the Prison Tax"

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

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation.  Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.  But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state.  These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment.  This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities.  The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions.  This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

November 21, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, November 14, 2022

"The Inherent Problem with Mass Incarceration"

The title of this post is the title of this new essay authored by Raff Donelson now available via SSRN.  Here is its abstract:

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration.  This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs.  Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically.  This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes.  On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

November 14, 2022 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, November 01, 2022

"Ohio's Not So Uncommon Punishment: Hold Your Sign in Shame"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jon Michael Hilsheimer, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

Some first-year criminal law courses briefly discuss alternative punishments under the header of “scarlet letter” or “shaming” punishments.  Beyond a brief discussion in class and a case or two in the casebook, students are left without a clear picture of how frequently judges engage with these forms of alternative sentencing.  This paper provides an overview of shaming punishments in Ohio.  While it may not account for all instances of shaming punishments that have been administered, or a complete list of the judges that engage with the practice, this paper shows that the practice is not an infrequent occurrence in Ohio.  After providing a brief overview of the landscape of these punishments, this paper surveys how appellate level courts in other jurisdictions have handled challenges to shaming penalties.  The piece then concludes by applying the majority approach using Ohio’s statutory code and posits that there are insufficient statutory grounds for the current practice.

November 1, 2022 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, October 26, 2022

"The Efficiency Mindset and Mass Incarceration"

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

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort.  As such, it makes sense that lawyers and judges see efficiency, especially in the form of plea bargaining, as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system.  But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration.

To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset.  Legal culture change in criminal courts is unlikely to be driven by legislation, court action, or lawyers and judges themselves.  Instead, this Essay suggests other sources of power that may break the efficiency mindset.  By examining these sources of power — both inside and outside of the legal culture — the Essay hopes to offer some ideas for how legal actors might start to, or be forced to, re-envision their role in mass incarceration.

October 26, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 13, 2022

"A Nat-Con Case for Criminal Justice Reform"

The title of this post is the title of this new essay authored by Marc A. Levin at Law & Liberty. I recommend the full piece, and here is just a taste from the start and closing of the piece:

From the halls of Mar-a-Lago to the streets of Chicago, all Americans have a stake in the fair application of criminal law by a system they can trust. Indeed, there cannot be a policy area in which a principled approach is more important than in criminal justice, where lives and liberties are at stake.  So how do the principles of the emergent national conservatism movement apply to criminal justice policy?  Can they inform a center-right approach to public safety that draws on the overlap between national conservatism’s Christian worldview and universal truths?

A July 2022 manifesto entitled “National Conservatism: A Statement of Principles” crystallizes the tenets of this movement that seeks to address many Americans’ apprehension about the coarsening of our culture and erosion of our national identity.  These concerns naturally implicate the criminal justice system, which becomes the last backstop when society’s norms and institutions from the family to the education system prove inadequate, leaving the law as the only remaining form of social control, weak as it often is....

[N]either conservatives of any stripe nor anyone else should back policies that are inconsistent with public safety. However, within that universe, the principles of the manifesto are consistent with four factors for evaluating criminal justice policies: 1) Are they deeply rooted in our best traditions and in alignment with our founding principles of liberty?; 2) Do they protect and strengthen families?; 3) Do they address not just individual culpability but also drivers of criminal activity, including family breakdown, exposure to trauma, addiction, mental health, and the neighborhood environment; and 4) Do they nurture and sustain the public’s confidence in the rule of law as an expression of our shared morality?

Those policies that check these boxes can lead to a stronger, fairer, safer, and more unified nation, an objective that both national conservatives and all Americans can embrace.

October 13, 2022 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, October 12, 2022

Severe federal drug sentence in a sad, high-profile case with so many stories within

I sometimes say to students (and on this blog) that certain cases could alone provide a robust foundation for teaching about so many different aspects of sentencing theory, policy and practice. Upon reading this Washington Post account of the high-profile federal sentencing of Eric Kay for providing the drugs that led to the death of Tyler Skaggs, I am yet again struck by how many notable issues and stories are sometimes tucked within a single sentencing. Here are some of the details:

Eric Kay, the former communications director for the Los Angeles Angels, was sentenced Tuesday to 22 years in prison after being convicted in February of providing the drugs that caused the 2019 death of pitcher Tyler Skaggs.  District Judge Terry Means said he went above the minimum 20 years Kay faced because of remarks he made in prison.   Prosecutors played a tape of a prison phone conversation in which Kay, whose calls were monitored and recorded, said of Skaggs: “I hope people realize what a piece of s--- he is. … Well, he’s dead, so f--- him.”

Means said he had been dreading sentencing Kay, 48, who was convicted of drug distribution resulting in death, because he felt mandatory minimums were “excessive.”  But the judge said the prison conversations showed a “refusal to accept responsibility and even be remorseful for something you caused.”

In his own remarks, Kay apologized for having “spewed vitriol” about Skaggs, prosecutors and the jury, in that and other prison correspondence. “I wanted to blame Tyler for all of this,” Kay said, calling his words “so wrong and foul.”

The emotional sentencing hearing spelled a bleak end to this phase of a legal saga that began when Skaggs, 27, was found dead in a Southlake, Tex., hotel room July 1, 2019, with oxycodone and fentanyl in his system. Kay has indicated he will appeal his conviction.  Kay, like Skaggs, was a user of illicit opioids.  During Kay’s trial in February, witnesses including several Major League Baseball players said he shared black market pain pills with them, though the government has not suggested he did so for profit.

Federal prosecutor Erinn Martin stated that Kay was in Skaggs’s hotel room when he choked on his own vomit — a contention based on key card evidence — and that he didn’t try to save the pitcher because “he freaked out and decided to save himself and his job” or because he was incapacitated himself. Martin said Tuesday that Kay knew the drugs he gave Skaggs were “likely or potentially counterfeit” and could contain fentanyl.

Kay, who did not take the stand in his own defense during the trial, did not directly address the government’s version of events Tuesday but expressed remorse for his actions, blaming his addiction.  “I will spend the rest of my days in repair,” said Kay, who wore an orange jumpsuit and was in arm and leg shackles, during remarks in which he sometimes sobbed.

Skaggs’s family members said Kay was responsible for the pitcher’s death in their own remarks in court Tuesday. “Eric Kay knew that the drugs he was giving to my son and other players [were] laced with fentanyl,” said Skaggs’s mother, Debbie, adding that “a strict sentence … has the power to dissuade people from providing lethal drugs to others.” ...  “I know no matter how much time Eric Kay gets it won’t bring back Tyler,” Skaggs’s father, Darrell, said in a statement read in court by Tyler’s aunt. “But the longer he is incarcerated, the safer everyone is.”

Kay, who was raised upper-middle class in Southern California and educated at Pepperdine University before rising to earn a six-figure salary with the Angels, had no previous criminal record.  But Martin, the prosecutor, said Kay’s prison correspondence was evidence that he hadn’t learned his lesson.  In emails and phone calls, Kay referred to the “trash-ass Skaggs family,” derided the jurors as “rednecks” with missing teeth and referred to a federal prosecutor’s “horrible makeup.” Martin also noted that Kay was allegedly caught with suboxone while in jail. “That kind of person reoffends,” Martin said. “Eric Kay isn’t going to stop.”

Kay’s attorney, Cody Cofer, said his client’s jailhouse remarks reflected the resentment of a man coming to terms with being separated from his family for two decades. “The notion that he is likely to reoffend is just not supported,” Cofer said.

Means said Kay should be incarcerated near his home of California, where he has three sons, the youngest of whom is 12. Kay’s middle child, 20-year-old Carter, said during the sentencing hearing that his father “wouldn’t do something bad willingly” and urged the judge to be lenient. “My little brother needs him most,” Carter Kay said. “I haven’t seen him smile in a while.”...

Since Kay’s trial, one of his attorneys, Reagan Wynn, has been suspended from practicing law after a Texas bar panel found he “failed to explain” to another client the facts of his criminal case. In a May hearing in Kay’s case, his other attorney at the time, Michael Molfetta, appeared to blame Wynn for having left Kay without representation during a meeting with probation officials before his sentencing....

Molfetta also has since left the case. In an interview with The Washington Post, Sandy Kay said her son had received a poor legal defense. “Tyler Skaggs was an adult male who willfully chose to engage in dangerous behavior that ended in his death,” Sandra Kay said. “And to hold someone else accountable for that is a great injustice.”

October 12, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, October 07, 2022

"Retributivism"

The title of this post is the title of this new book chapter by Mitchell Berman which I just came across via SSRN. Here is its abstract:

Retributivism is a family of theories that purport to justify criminal punishment by reference to a wrongdoer’s negative desert.  Individual members of the family differ from one another on many issues, including what it is that wrongdoers deserve and what is the character and force of the fact that they deserve it.  This chapter lays out one retributive theory and sketches defenses of that theory against prominent anti-retributivist objections, including objections grounded in determinism.  According to the theory this chapter dubs 'prospect retributivism', culpable wrongdoers deserve to experience their wrongdoing as personally costly to them, and the state assumes a pro tanto duty to cause wrongdoers to experience those costs in virtue of barring retaliation by victims and their surrogates.

October 7, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, October 05, 2022

"Expanded Criminal Defense Lawyering"

The title of this post is the title of this new article recently posted online and due to be published in the January 2023 issues of the Annual Review of Criminology. The article is authored by Ronald Wright and Jenny Roberts, and here is its abstract:

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work.  Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers.  Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints.  Over the decades, however, theoretical understandings of the defense attorney's work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act.  Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

October 5, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, September 26, 2022

Another look at Oregon's drug decriminalization efforts now a few years in

A have done periodic posts (some linked below) over the last couple of years based on press accounts of Oregon's drug decriminalization efforts after state residents in Fall 2020 passed Measure 110 to makes possession of small amounts of various illicit drugs punishable by only a civil citation.  This new AP article, headlined "After rocky start, hopes up in Oregon drug decriminalization," provides the latest "updates from the front."  Here are excerpts:

Two years after Oregon residents voted to decriminalize hard drugs and dedicate hundreds of millions of dollars to treatment, few people have requested the services and the state has been slow to channel the funds.

When voters passed the state’s pioneering Drug Addiction Treatment and Recovery Act in 2020, the emphasis was on treatment as much as on decriminalizing possession of personal-use amounts of heroin, cocaine, methamphetamine and other drugs.

But Oregon still has among the highest addiction rates in the country. Fatal overdoses have increased almost 20% over the previous year, with over a thousand dead. Over half of addiction treatment programs in the state lack capacity to meet demand because they don’t have enough staffing and funding, according to testimony before lawmakers.

Supporters want more states to follow Oregon’s lead, saying decriminalization reduces the stigma of addiction and keeps people who use drugs from going to jail and being saddled with criminal records. How Oregon is faring will almost certainly be taken into account if another state considers decriminalizing.

Steve Allen, behavioral health director of the Oregon Health Authority, acknowledged the rocky start, even as he announced a “true milestone” has been reached, with more than $302 million being sent to facilities to help people get off drugs, or at least use them more safely. “The road to get here has not been easy. Oregon is the first state to try such a bold and transformative approach,” Allen told a state Senate committee Wednesday.

One expert, though, told the lawmakers the effort is doomed unless people with addictions are nudged into treatment. “If there is no formal or informal pressure on addicted people to seek treatment and recovery and thereby stop using drugs, we should expect continuing high rates of drug use, addiction and attendant harm,” said Keith Humphreys, an addiction researcher and professor at Stanford University and former senior adviser in the White House Office of National Drug Control Policy.

Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment, the health authority said. A total of 60% received “harm reduction” like syringe exchanges and overdose medications. An additional 15% got help with housing needs, and 12% obtained peer support....

Under the law, people receive a citation, with the maximum $100 fine waived if they call a hotline for a health assessment.  But most of the more than 3,100 tickets issued so far have been ignored, Oregon Public Broadcasting reported. Few people have dialed the hotline.

Tera Hurst, executive director of Oregon Health Justice Recovery Alliance, which is focused on implementing Measure 110, said coerced treatment is ineffective. Hurst said it’s important to focus on “just building a system of care to make sure that people who need access can get access.”  Allen called the outlay of million of dollars — which come from taxes on Oregon’s legal marijuana industry — a “pivotal moment.”...

Centro Latino Americano, a nonprofit serving Latino immigrant families, plans to use its $4.5 million share to move treatment services to a bigger space and hire more staff, said manager Basilio Sandoval.  “Measure 110 makes it possible for us to provide this service free of charge,” Sandoval said. “This allows us to reach people we could not serve previously because of a lack of insurance.”

Scott Winkels, lobbyist for the League of Oregon Cities, said residents are running out of patience.  “People are going to need to see progress,” Winkels said.  “If you’re living in a community where you’re finding needles, how many times do you need to see a needle in a park before you lose your cool?”

Some prior related posts:

September 26, 2022 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10)

Wednesday, September 21, 2022

"Is Criminal Law Unlawful?"

The title of this post is the title of this notable new article authored by Paul Gowder and available via SSRN. Here is its abstract:

A legal theorist reading contemporary criminal justice scholarship is confronted with a troubling sense of dissonance. Foundational to modern accounts of the concept of law are rules, and the chief modality of law’s operation in ordinary peoples’ lives is said to be in enforcing those (primary) rules.  Normative theories by philosophers of law typically deploy this rule- oriented character as a key virtue of legal systems, whether in Fullerian theories of the moral value of law itself in terms of their facilitation of autonomous self-application of rules, or in theories of the rule of law according to which one of the key criteria of good legal systems is that they only coerce individuals pursuant to rules.

Yet criminal justice scholars have known for decades that rule-enforcement is at best incidental to vast swathes of criminal justice.  Even before the advent of “broken windows” policing, a large portion of police work was focused on coercively organizing public space, with minimal regard to the rules of substantive law.  Scholars of misdemeanor adjudication — the judicial destination of the arrests that result from this mode of policing — have described a process in which the ultimate disposition of defendants is unconnected to any serious effort to determine whether some law has been violated.  This lawlessness of criminal justice is exacerbated by, and itself exacerbates, America’s underlying system of race and class hierarchy.  In short, instead of a system of law enforcement, American criminal justice is a key exemplar of what critical race scholars have called “structural racism,” in which individual and organizational incentives reproduce racially unjust outcomes even in the absence of individual racial malice.

Legal philosophers must reconcile their theories with reality by confronting the fact that a sector of American “law” with immense practical significance does not, in fact, constitute an application of law (for conceptual theorists) or the rule of law (for normative theorists) at all.

In this context, some lessons may be drawn from an analogous juridical context.  A handful of scholars have suggested that the system of criminal justice is more administrative than legal.  Moreover, advocates and scholars have long articulated severe critiques of the federal administrative state on rule of law grounds.  Thus, the discourse around the administrative state can serve as a model for how legal theorists should confront the criminal justice state.

While some scholars appear to have supposed that the notion of legality simply does not apply to the administrative state, others have propounded radical challenges to that state which have reflected a willingness to sacrifice other important interests in the pursuit of legal fidelity.  Results such as the recent Supreme Court decision in West Virginia v. E.P.A. have suggested that even the pursuit of existential policy goals like combatting climate change must give way to the concept of legality underneath challenges to the administrative state.  If such challenges are any model to follow, then rule of law advocates and scholars must at least consider similar radical challenges to the criminal justice system, such as police abolition, to be on the table.

September 21, 2022 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 10, 2022

"Irrational Collateral Sanctions"

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

In the modern era, a criminal sentence is rarely truly over just because someone has served their time.  Instead, both legal and social barriers continue to haunt most people who have been convicted of crimes for years.  These barriers often persist long past the point of making good sense.

While social barriers like stigma are not always easy for lawyers and lawmakers to address, legal barriers like so-called “collateral sanctions” (also known as “collateral consequences”) are their bread-and-butter.  In Part I of this Essay, I tell an anonymized client story that illustrates many of the existing efforts to blunt the effects of collateral sanctions in Ohio.  In Part II, I discuss in more depth both the problem of collateral sanctions and both the challenges and opportunities posed by existing remedial efforts.  In Part III, I discuss the opportunity for rational-basis challenges to irrational collateral sanctions when other remedial opportunities are unavailing. 

September 10, 2022 in Collateral consequences, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, September 07, 2022

"Policing Mass Incarceration"

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

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

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

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

September 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6)

Friday, September 02, 2022

"The Miseducation of Carceral Reform"

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

Public education looms large in criminal law reform.  As states debate what to invest in — other than criminal law enforcement — to provide safety and security to the public, public schools have emerged as a popular answer.  Today, legislatures move money from prisons to public education, arguing that this reinvestment can address the root causes of mass incarceration.  This Article analyzes this reinvestment trend from the perspective of public schools.  It takes seriously the possibility that diverting money from incarceration to public education can help address the root causes of mass incarceration and it argues that realizing this possibility requires a more expansive approach to reinvestment than is demonstrated in current legal reforms.  This expansive approach to reinvestment situates the provision of education within a constellation of interconnected needs, increases power over diverted funds for those who have historically been excluded from educational decisions, and confronts the underlying race, class, and gender resentments used to justify asymmetrical spending on incarceration and public education.  By analyzing reinvestment approaches to carceral reform from the perspective of public schools, this Article underscores the contested nature of the reinvestment movement.  It maps both the restrictive and transformative directions carceral reinvestment can take, and it points to several promising efforts that make use of a more transformative approach to reconfigure the relationship between public welfare and the carceral state.

September 2, 2022 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, August 27, 2022

"The Injustice of Under-Policing in America"

The title of this post is the title of this new paper authored by Christopher Lewis and Adaner Usmani and published in the American Journal of Law and Equality. Here is part of its introduction:

Since 2014, viral images of Black people being killed at the hands of the police — Michael Brown, Eric Garner, Breonna Taylor, and many, many others  — have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.  Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. And others have called for abolishing the police altogether.  It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans — especially poor, Black people.  This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.

The American criminal legal system is unjust and inefficient.  But, as we argue in this essay, over-policing is not the problem.  In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations . In this country, roughly three people are incarcerated per police officer employed.  The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate.  We argue that the United States has it backward.  Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world.  We call this the “First World Balance.”

We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration.  This essay offers a preliminary sketch of some of the arguments in the book.  In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor.  One of us is a social scientist, and the other is a philosopher and legal scholar.  Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct — but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.  Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound.  In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.

August 27, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 22, 2022

"Legal Fiction: Reading Lolita as a Sentencing Memorandum"

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

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief.  The story emerges from the law.  This Article proposes inverting that focus so that we identify the law within a narrative.  Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum.  That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se.

In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative.  The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant.  This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy.  The notion of law without sympathy thus rings hollow.  Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice.  Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

August 22, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, August 17, 2022

"Countermajoritarian Criminal Law"

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

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year.  All too often, culpability is a minimal or nonexistent aspect of this phenomenon.  Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions.  Recent scholarship has criticized not only the scope and impact of these laws, but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.”  While some critics argue that criminal law often fails to live up to supermajoritarian ideals, this Article identifies instances in which criminal law is resistant to the will of the community, and can remain in place even if a majority of the community seeks to legalize or decriminalize certain conduct.  These instances include vetoes of decriminalization and legalization efforts, criminal provisions in federal and state constitutions, and local crimes enacted by officials who are voted into office by a tiny subset of the community.

Having identified the phenomenon of countermajoritarian criminal laws, this Article discusses how these laws may be addressed — and considers a range of potential reforms and their impact on countermajoritarian criminal laws. Countermajoritarian criminal laws should be a focal point in calls for criminal justice reform.  Addressing these laws provides a basis for arguments regarding criminal law’s larger problem of democratic illegitimacy, and helps add a level of criticism on top of existing critiques of criminal law’s broad, discriminatory, and oppressive impacts on communities. 

August 17, 2022 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

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

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

August 10, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 09, 2022

"Is the Principle of Desert Unprincipled in Practice?"

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

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

August 9, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

"Rethinking the Civil-Criminal Distinction"

The title of this post is the title of this book chapter authored by Lauren Sudeall and now available via SSRN. Here is its abstract:

In the legal world, we operate on the premise that our civil and criminal justice systems are distinct.  As a result of this siloed approach, courts, court rules, procedural protections, legal services, and legal communications typically turn or focus exclusively on one side of this divide or the other.  Yet individuals’ lived experiences do not always fall cleanly along those lines — they may experience sanctions differently than the law has categorized them or encounter one situation that gives rise to civil and criminal legal issues.  Today, civil sanctions are increasingly punitive, while fines and incarceration are no longer distinctly criminal consequences.  These realities undermine historical rationales for the civil-criminal divide and make the justifications for that divide increasingly incoherent.

The civil-criminal divide presents more than a conceptual or theoretical problem.  The rigid line between civil and criminal legal issues prevents us from addressing all facets of an individual’s situation in a single court system. Instead, we require that people have multiple interactions with civil and criminal court systems, which can drain both their time and their resources.  It becomes harder for them to address or protect against civil consequences arising from a criminal charge or conviction.  By failing to inform people engaged with one sphere of the system about legal problems in the other sphere, we lose critical opportunities for intervention and education — particularly among populations in need of assistance.  Because people do not silo their problems into criminal and civil categories, they face additional barriers to obtaining assistance: people go to the wrong legal systems and find courts and legal providers who may be ill-equipped to redirect them.  The resulting frustration and the inability to find the help they need may give some people a cramped view of the law’s potential to address their problems.

In this chapter, I explain how the civil-criminal distinction influences our understanding of the legal system and explore the problems it creates for litigants and those assisting them.  In doing so, I employ a broad definition of “evidence-based” reform.  In my view, evidence relevant to criminal justice reform consists not only of quantitative data, such as the likelihood of recidivism and incarceration rates, but also of qualitative and even perceptual data, which shed light on how the system works (or doesn’t) and how and why quantitative data are generated.  In the context of this chapter, I focus specifically on how the civil-criminal distinction fails to align with — and may even exacerbate — the lived experience of many system-impacted individuals, demonstrable primarily through qualitative data.  I encourage readers to question the civil-criminal distinction and to ask: What would happen if we didn’t view the two as distinct?  To what degree are the differences between civil and criminal justice a function of the separation we have chosen to create rather than any inherent distinction? And is the civil-criminal divide born more from a need to organize the courts and service providers than it is to resolve problems most effectively for litigants?  I conclude that a merged vision of civil and criminal justice may better align with the understanding and experiences of system-impacted individuals and may better equip the legal system to respond to their problems.

In this chapter I call on systemic actors and service providers to minimize the different treatment of civil and criminal issues and to collaborate to the greatest extent possible, wherever the civil-criminal distinction creates barriers to justice for individuals or inefficiencies for courts.  Even if doctrinal divisions persist, policy makers can engage in practical applications of this idea, rethinking how to structure the resolution of legal issues, provide legal services, and disseminate legal education to individuals and communities.  

August 9, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Wednesday, August 03, 2022

"Punishment as Communication"

The title of this post is title of this new book chapter authored by R.A. Duff and now available via SSRN.  Here is its abstract:

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity.  In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process.  That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him.  The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation.

Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion — inextricably interwoven with the moral message that is the core of the communication.  A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

August 3, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, August 02, 2022

Notable review of research on public safety and criminal justice reform from Arnold Ventures

This new webpage at Arnold Ventures explores in thoughtful ways the important question that it is title of the webpage: "What Does the Research Say About Public Safety and Criminal Justice Reform?".  Here is an explanation of the effort (with emphasis in the original) along with the links to the research papers most focused on reform of the back-end of the criminal justice system:

As a philanthropy dedicated to improving lives by driving sustainable change to the justice system, the spike in homicides and the resulting political pushback by some against criminal justice reform led Arnold Ventures to reflect on the relationship between community safety and justice reform. Arnold Ventures’ programmatic work, from policing to pretrial justice to corrections, is built on the idea that reform and safety are not opposite ends of a spectrum, but can operate in tandem. 

That is why we turned to the experts to help us understand what the evidence says about the relationship between community safety, the justice system, and reform. We collaborated with eight scholars who have deep substantive and methodological expertise in their respective issue areas, and asked that they write discussion papers looking at the state of research around specific aspects of the criminal justice system. These papers each respond to two broad prompts. 

First, how does a particular aspect of the justice system advance or undermine community safety? 

Second, what is your summary or assessment of the evidence, and are there remaining research questions that need to be answered? 

The following six papers are the scholars’ independent and thoughtful reviews of the available evidence in response to those prompts:...

[Other papers looked at community-based, policing and pre-trial reforms...]

  • Dr. Jennifer Doleac (Texas A&M University) and Dr. Michael LaForest (Penn State University) discuss the limited empirical evidence of the effect of community supervision (probation and parole) policy and practice on community safety despite the scale of its use as a sanction for criminal behavior and alternative to incarceration. 
    Read the paper: Community Supervision & Public Safety
  • Dr. Daniel Nagin (Carnegie Mellon University) discusses how the current incarceration practices in the United States, particularly multi-decade sentences, are an inefficient use of public resources and are not shown by evidence to have a deterrent effect on crime. 
    Read the paper: Incarceration & Public Safety
  • Dr. Megan Denver and Ms. Abigail Ballou (Northeastern University) discuss how widespread post-conviction sanctions, restrictions, and disqualifications for individuals with criminal records and histories of justice system involvement can interact and accumulate in ways that are counterproductive to safety. 
    Read the paper: Collateral Consequences & Public Safety

These papers make a significant contribution to the public conversation as individual products, but they can also be read together as concluding: The evidence suggests there are real public safety benefits associated with the functions of the justice system.  At the same time, some of the current practices remain inefficient, produce serious harms, and operate in ways that are counterproductive to community safety.

August 2, 2022 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, August 01, 2022

"Sex Exceptionalism in Criminal Law"

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

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

August 1, 2022 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, July 21, 2022

Spotlighting legal fight over revocation of CARES Act releases to home confinement

USA Today has this lengthy article discussing the revocation of home confinement for hundreds of persons released under the CARES Act. The piece is headlined "They were released from prison because of COVID. Their freedom didn't last long." Here are excerpts:

[Eva] Cardoza and two other women are at the center of federal lawsuits saying that people released from prison because of COVID-19 are now being sent back over minor infractions, such as not picking up a call from staffers overseeing their home confinement. The lawsuits come as the Bureau of Prisons is facing scrutiny for re-incarcerating people in home confinement over minor offenses, even as the agency has increasingly relied on the program to help reduce recidivism and prison populations....

During the pandemic, Cardoza was one of more than 43,000 people nationwide who were released from prison to home confinement during the COVID-19 pandemic. The BOP website said around 50,000 people incarcerated at its facilities had recovered from coronavirus and around 300 had died.

The massive CARES ACT granted then-Attorney General Bill Barr the option to broaden the use of the home confinement program, which had previously only been allowed to be used at the very end of a person's sentence. Barr opted to allow thousands of people to receive home confinement much earlier, shaving off years from a person's sentence in some cases....

Last year, more than 3,000 people were released to CARES ACT home confinement, according to a records request put in by the Prison Policy Initiative, a nonpartisan public think tank.

Those who were released to home confinement were told they must follow specific rules. They have to keep re-entry professionals — specialists who are often working for companies contracted by the BOP — updated on their whereabouts. They often wear electronic monitoring and receive special permission to visit stores or other locations. They can go to work or school. But if someone on home confinement was found to have an infraction, such as missing a check-in or a failed drug test, they could be returned to prison.

The Bureau of Prisons told USA TODAY that 407 people had their home confinement revoked. Of those, 212 were returned due to misconduct in violation of program rules, such as alcohol use and drug use; 69 were returned after an escape, such as an unauthorized absence from custody; and 11 were for new criminal conduct and other violations.

The Bureau of Prison's Inmate Discipline Program requires several steps before returning a person in home confinement to prison, including a disciplinary hearing, written notice of the allegations and the ability to present evidence. The BOP told USA TODAY its Administrative Remedy Program allows people to have "any issue related to their incarceration formally reviewed by high-level" officials.

But lawyers involved in the lawsuits said their clients did not have hearings, written notice or the ability to present evidence. They said their pleas for review were ignored and noted that the cumbersome, months-long process can lead to collateral damage, such as a child going back into foster care while the parent is in prison.

July 21, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, July 07, 2022

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

July 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 06, 2022

"Revenue Over Public Safety: How Perverse Financial Incentives Warp the Criminal Justice System"

The title of this post is the title of this big new report from the Brennan Center for Justice.  Here is how the report's introduction gets started:

Bipartisan efforts to change the criminal justice system have gained momentum around the country in recent years. Nearly all 50 states, many counties, and the federal government have sought to reduce imprisonment and mitigate its harms. A remarkable wave of legislation has shortened custodial sentences and widened eligibility for sentences served in the community.  States and localities have also invested in rehabilitation and reentry services.

Yet the impact of these efforts has been relatively modest.  While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels remain extraordinarily high.  Nearly 1.2 million people are serving sentences in state and federal prisons, and 10.3 million are admitted to local jails every year.  Mass incarceration — a term now entrenched in the popular lexicon — is proving remarkably resistant to well-intentioned reforms.

One explanation can be found in the infrastructure erected to support the United States’ reliance on imprisonment as the country’s primary crime control policy.  Mass incarceration did not result simply from increased policing and harsher criminal penalties.  Economic and financial incentives established by local, state, and federal agencies also played a role.  Police, prosecutors, and corrections agencies competed for these benefits by escalating their enforcement practices.  Law enforcement came to depend on these funding sources, particularly as declining tax receipts and intergovernmental transfers left them grasping to fill budget holes.  These incentives are a persistent structural driver of punitive enforcement and mass incarceration.

The perverse financial incentives of direct federal funding programs for incarceration are relatively easy to identify.  So too are laws passed by Congress that encourage more punitive policies.  This report focuses instead on an interlocking set of economic incentives that are more deeply entrenched and difficult to unravel.  These incentive structures raise the risk that officials will chase revenue rather than pursue public safety and justice, giving law enforcement agencies a stake in perpetuating mass incarceration.  This report catalogs some of the most corrosive practices.

July 6, 2022 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, June 16, 2022

"Letting Offenders Choose Their Punishment?"

The title of this post is the title of this new paper now available via SSRN and authored by Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi. Here is its abstract:

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options.  We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes.  We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. 

Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare.  We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions.  After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

June 16, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, June 11, 2022

"The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics"

The title of this post is the title of this new essay by Thomas Ward Frampton just published in the Harvard Law Review.  Here is its abstract:

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse.  But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a “spectral force haunting abolitionist thought . . . as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.”  This Essay offers two main contributions: it (1) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of “the dangerous few,” highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning “the dangerous few.”

June 11, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, May 31, 2022

"Sounds of Silence: A Thematic Analysis of Victim Impact Statements"

The title of this post is the title of this new paper now available via SSRN and authored by Tali Gal and Ruthy Lowenstein Lowenstein lazar.  Here is its abstract:

Victim Impact Statement (VIS) is a legal document which crime victims submit to court as part of the sentencing stage, informing the court about the harms they have suffered.  VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing.  At the same time, their use raises concern about defendants’ due process rights. 
The Article argues that VIS make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims.  Using a thematic analysis of 25 VISs which were submitted to Israeli criminal courts by victims of sexual, physical and property offenses as well as by relatives of homicide victims, the Article identifies four types of functions that VISs play for the victims who submit them.  VISs were used to portray the offense as a life-changing event; to describe the hardships of the criminal justice process; to transform the victim into 'more than just a name’; and to deliver a message or request.  By bringing this content to the courtroom, the statements expanded the legal discourse and created an integrated therapeutic-legal discourse, which was accepted and formally acknowledged by the justice system.  The openness of the legal system to accept and acknowledge exogenous content that is not required by law, even if indirectly, suggests a need to rethink the social function of the court for victims and communities.  It is possible that the courts may be more inclusive of and more attentive to non-legal narratives, emotional expression, and interpersonal connectedness than it is generally believed.

May 31, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 29, 2022

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

May 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Friday, May 27, 2022

Helping to spread a federal sentencing "message" for a "corruption superspreader"

I always find it is interesting when judges in relatively low-profile cases talk about "sending a message" at sentencing, and I suppose I should try to make a habit of helping judges spread the messages they hope to be sending.  To that end, here I will flag this recent sentencing story out of Chicago headlined "‘You were a corruption superspreader’: Judge sentences ex-state Rep. Luis Arroyo to 57 months in prison in bribery case involving sweepstakes machine bill."  Here are excerpts:

Saying he needed to send a message on the cost of public corruption, a federal judge on Wednesday sentenced former state Rep. Luis Arroyo to nearly five years in federal prison for trying to bribe a state senator to help with legislation expanding the shadowy world of sweepstakes gambling machines.

Rejecting a defense plea for probation, U.S. District Judge Steven Seeger railed against Arroyo’s “dirty” conduct, saying in a lengthy speech that he sold out an already corruption-weary public and committed a “frontal assault on the very idea of representative government.”

“You were a corruption superspreader,” Seeger said near the end of a nearly four-hour hearing at the Dirksen U.S. Courthouse.  “The public did not get what they deserved.  They voted for an honest representative, and what they got was a corrupt politician.”

Arroyo’s lawyers had maintained that a prison sentence for the longtime Chicago Democrat would do nothing to stop the state’s seemingly intractable corruption problem and would be akin to “draining Lake Michigan with a spoon.”

But the judge took particular umbrage with attempts to downplay what Arroyo did, and at one point asked defense attorney Michael Gillespie specifically about the spoon comment.  “What does that mean?” the judge asked.  ”What am I supposed to do with that?”  As Gillespie fumbled for an answer, Seeger interrupted in a stern voice: “Maybe judges need a bigger spoon.”

Arroyo, 67, entered a blind guilty plea in November to one count of honest services fraud, a move that came without an agreement with prosecutors on what sentencing recommendations should be made to the judge.  The 57-month term imposed by Seeger was above the four years in prison recommended by prosecutors on Wednesday....

Arroyo resigned his seat shortly after he was arrested in 2019 on the bribery charges. A superseding indictment later added new wire and mail fraud charges against Arroyo and also charged James T. Weiss with bribery, wire fraud, mail fraud and lying to the FBI....

The case centers on the largely uncharted world of sweepstakes machines, sometimes called “gray machines,” for which Arroyo was moonlighting as a lobbyist.  The machines allow customers to put in money, receive a coupon to redeem for merchandise online and then play electronic games like slot machines.... According to the 15-page indictment, Weiss paid bribes to Arroyo beginning in November 2018 in exchange for Arroyo’s promotion of legislation beneficial to Weiss’ company, Collage LLC, which specialized in the sweepstakes machines....

In his remarks, Seeger said it was clear that Arroyo was a devoted family man and “a pillar of his community,” but chastised him repeatedly for trying to downplay the severity of his corrupt acts. The judge also noted that while there was no evidence of any other crimes committed in the wiretapped conversations, Arroyo certainly knew the language of corruption and seemed to be “in familiar territory.”

“I need to make sure that the message gets out that public corruption isn’t worth it,” Seeger said. “For whatever reason, that message isn’t getting through.”

May 27, 2022 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 18, 2022

"Criminal Law Exceptionalism"

The title of this post is the title of this new article on SSRN authored by Benjamin Levin.  Here is its abstract:

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded.  In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy.  Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions.  Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned.  Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn.  But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance — issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.  What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning — and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

May 18, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, May 01, 2022

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

May 1, 2022 in Clemency and Pardons, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Abolishing the Evidence-Based Paradigm"

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

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform.  This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration.  It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing.  The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics — lead the way and purports to have no agenda beyond identifying effective, efficient reforms.

This Article challenges the paradigm’s core claims.  It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter.  In other words, the evidence-based paradigm is political, and it does have an agenda.  And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens — rather than challenges — the existing system.

The Article argues that, if left unchallenged, the evidence-based paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity.  Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.

May 1, 2022 in Data on sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Thursday, April 28, 2022

"Criminal Acts and Basic Moral Equality"

The title of this post is the title of this new paper on SSRN authored by John Humbach.  Here is its abstract:

Modern criminal justice presupposes that persons are not morally equal.  On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds.  Yet, there is scant logical or empirical basis for the law’s supposition that offenders are morally inferior.  The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them.  But this reasoning rests on the assumption that a person’s mental states, such as intentions, can cause physical effects (bodily movements)— a factual assumption that is at odds with the evidence of neuroscience and whose only empirical support rests on a fallacious logical inference (post hoc ergo propter hoc).  There is, in fact, no evidence that mental states like intentions have anything to do with causing the bodily movements that constitute behavior.  Nonetheless, the mental-cause basis for moral responsibility, though it rests on a false factual inference, has enormous implications for criminal justice policy.

While society must obviously protect itself from dangerous people, it does not have to torment them.  The imperative to punish, a dominant theme of criminal justice policy, is not supported by evidence or logic, and it violates basic moral equality.

April 28, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, April 27, 2022

"Modern Sentencing Mitigation"

The title of this post is the title of this notable new article authored by John B. Meixner Jr. now available in the Northwestern University Law Review. Here is its abstract:

Sentencing has become the most important part of a criminal case.  Over the past century, criminal trials have given way almost entirely to pleas.  Once a case is charged, it almost always ends up at sentencing.  And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions.  Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence.  It is surprising, then, that relatively little scholarship in criminal law focuses on mitigation at sentencing.  Fundamental questions have not been explored: Do the Sentencing Guidelines — which largely limit the relevance of mitigating evidence — make mitigation unimportant?  Does the extent or type of mitigation offered have any relationship with the sentence imposed?

This Article fills that gap by examining a previously unexplored data set: sentencing memoranda filed by defense attorneys in federal felony cases.  By systematically parsing categories of mitigating evidence and quantitatively coding the evidence, I show that mitigation is a central predictor of sentencing outcomes and that judges approach mitigation in a modern way: rather than adhering to the strict, offense-centric structure that has dominated sentencing since the advent of the Sentencing Guidelines in the 1980s, judges individualize sentences in ways that consider the personal characteristics of each defendant, beyond what the Guidelines anticipate.  And particular types of mitigation, such as science-based arguments about mental and physical health, appear especially persuasive.

The results have significant implications for criminal justice policy: while my data show that mitigation is critical to judges’ sentencing decisions, both the Guidelines and procedural rules minimize mitigation, failing to encourage both defense attorneys and prosecutors to investigate and consider it.  I suggest reforms to make sentencing more equitable, such as requiring the investigation and presentation of mitigation to constitute effective assistance of counsel, easing the barriers to obtaining relevant information on mental and physical health mitigation, and encouraging prosecutors to consider mitigation in charging decisions and sentencing recommendations.

April 27, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, April 23, 2022

"The End of Liberty"

The title of this post is the title of this recent piece authored by Adam Kolber and just posted to SSRN.  Here is its abstract:

Theorists treat liberty as a great equalizer.  We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal.  To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment.  Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness.  In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time.  Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for.  Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal.

April 23, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, April 20, 2022

"Punitive Restoration"

The title of this post is the title of this new book chapter authored by Thom Brooks.  Here is its abstract:

Restorative justice is highly promising as an effective approach to better support victims, reduce reoffending, and lower costs.  The challenge it faces is a dual hurdle of limited applicability and lack of public confidence.  The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence.  This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive element.  Its goal is to win support for greater use of restorative practices and a less punitive criminal justice system overall.

April 20, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, April 17, 2022

"Entitlement to Punishment"

The title of this post is the title of this paper recently posted to SSRN and authored by Kyron Huigens. Here is its abstract:

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification.  It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism.  The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights.  It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation.  We impose punishment when an offender initiates an ordered sequence of rights- power, claim, duty, power, liability-by means of committing a crime.  This sequence ends with the offender's holding both a claim to be punished and a liability for punishment.  This pair of legal relations is not a right to punishment, because it is more than a claim with a corresponding duty.  To hold this claim and this liability to punishment in tandem, as cognate legal relations, is better described by the more comprehensive term "entitlement." Neither desert nor good consequences is part of this account of how and why we punish.  It is enough to say that an offender is entitled to punishment.

Entitlement to punishment is a more accurate and honest description of the reason we punish than either desert or good consequences is.  The belief that legal punishment is imposed because and only when it is deserved obscures the extent to which legal punishment is a consequence of moral luck.  The word "entitlement" better describes the situation of a person who has entangled himself in criminal law's stringent rules as a consequence of his limited power to overcome unpredictable outcomes, his circumstances, the influences on his character, or his personal history.

Finally, entitlement to punishment reflects the moral salience of criminal law.  Entitlement to punishment conveys respect for the rationality of criminal offenders and their capacity for self-determination-particularly when criminal law is cast as a choosing system and as part of a conception of positive liberty centered in autonomy.

April 17, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, April 14, 2022

"New Originalism: Arizona's Founding Progressives on Extreme Punishment"

The title of this post is the title of this interesting new article now available via SSRN authored by John Mills and Aliya Sternstein. Here is its abstract:

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike.  Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions.  Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds.  Arizona was founded in 1912 as a progressive project and the founding generation — from the convenors of the 1910 constitutional convention and the courts to the people themselves — held and acted on progressive views of punishment.  They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime.  Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

April 14, 2022 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)