Thursday, February 22, 2024

"Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Criminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment.  Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable.  This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations.

Decriminalization can occur through a variety of mechanisms.  Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support.  State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct.

The Article identifies four common motivations for such decriminalizations.  First, the decriminalization may come from an anti-justice motivation, where the decriminalizer believes that crime ought to be dealt with as a medical, mental health, or social services issue, rather than through the justice system.  Second, the decriminalization may be motivated by a desire to reduce the sanctions that would otherwise be imposed upon a group seen as “oppressed.” Third, many decriminalizers see themselves as having superior moral judgment about what should and should not be seen as criminally condemnable.  Finally, some decriminalizers believe that their locale, rather than the larger jurisdiction, ought to have criminalization-decriminalization power even though the state or federal constitution allocates that authority otherwise.  Decriminalizers may be motivated by any one or combination of these motivations.

After reviewing the societal benefits that are claimed to follow from the various justifications for decriminalizing what the community sees as condemnable, the Article examines the societal costs, including the loss of deterrence from the announced policy, the loss of incapacitation of repeat offenders, the reduction in the criminal law’s moral credibility by refusing to treat as criminal conduct that the community sees as criminally condemnable, and the reduction in the criminal justice system’s legitimacy when ideological bias is seen as influencing prosecution decisions.  Perhaps the most unfortunate societal cost is that the resulting increases in crime are disproportionately borne by vulnerable minority communities, even though many decriminalizers claim to be motivated by a desire to help those same communities.

On the other hand, the societal costs of such decriminalizations also apply in reverse situations of over-criminalization.  To avoid those societal costs, the criminal law must enlarge its current justification and excuse defenses, as well as mitigations, to reflect the greater breadth that empirical research shows that ordinary community members would support, which in many instances provides defenses even broader than the common modern formulations taken from the Model Penal Code.  However, that expansion of defenses ought not extend to ideologically driven excuses like “rotten social background,” as some have advocated, usually for the same motivations that drive improper decriminalizations.

This same societal cost-benefit analysis also means that just as criminally condemnable conduct should not be decriminalized, conduct that is no longer criminally condemnable should be decriminalized if the criminal law is to maintain its moral credibility and legitimacy.  For example, adultery ought to be officially decriminalized where it remains an offense, and, of more immediate relevance, private marijuana use ought to be decriminalized as soon as community views have shifted to the point that it is no longer seen as criminally condemnable, a shift that has already occurred in much of the country.

Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

February 22, 2024 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, February 20, 2024

"The role of character-based personal mitigation in sentencing judgments"

The title of this post is the title of this new article authored by Ian Belton and Mandeep Dhami recently published in the latest issue of the Journal of Empirical Legal Studies.  Here is its abstract:

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior.  We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors.  Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect.  The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault.  In addition, some mitigating factors appear to be underweighted when they occur together.  We consider the implications of these findings for sentencing policy and practice.

February 20, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, February 19, 2024

"Rethinking Children, Crime and Culpability"

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

In the early twenty-first century, the United States Supreme Court developed a rich body of case law that recognized the constitutionally significant differences between children and adults.  The core of this case law, often referred to as the Miller trilogy, banned capital punishment for juvenile crimes and significantly limited instances when states can impose life without parole on minors.  By leveraging the logic and science of the Miller trilogy, lower courts and state actors have implemented juvenile justice reforms on issues ranging from legal representation and transfer laws to conditions of confinement and parole practices.  This Article makes a novel and important argument that flows from the Miller trilogy but that has been under-theorized to date.  Specifically, in this Paper I argue that all of the ways in which children are different according to the Court -- their immaturity, their impulsivity and their inability to remove themselves from criminogenic environments -- are relevant to a criminal conviction just as much as they are relevant to punishment. 

The Paper proceeds in four Parts.  Part I discusses Miller’s legacy and its already vast implications nationwide. Parts II and III are the heart of the Paper, where I set forth my central claim: that Miller’s legacy demands nothing short of a wholesale reconsideration of substantive criminal law as applied to children.  Part II articulates the first principles of this theory in the context of the state’s burden to prove the elements of a crime, while Part III theorizes how defendants may leverage the defining features of youth when mounting affirmative defenses.  Part IV addresses likely conceptual and implementation-related concerns, and by way of Conclusion, I suggest that rethinking children’s culpability, rather than tinkering with their sentences, may be the most important and lasting legacy of the Miller trilogy.

February 19, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

Friday, February 16, 2024

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Tuesday, February 13, 2024

"Principles of Prosecutor Lenience"

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

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback.  In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.”  There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts.  Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police.  Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

This Symposium Essay offers a skeletal framework for evaluating prosecutor lenience. It defines prosecutorial lenience and proposes three principles to guide its exercise: prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.  It then applies the principles in common prosecutorial lenience scenarios, like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. Interestingly, the analysis reveals that, in some circumstances, the principles conflict.  Perhaps most significantly, insisting on the first two principles can jeopardize the third.  This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

February 13, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, February 06, 2024

"The Limited Moral Relevance of Pleas and Verdicts"

The title of this post is the title of this book chapter recently posted to SSRN and authored by Adam J. Kolber.  Here is its abstract:

Pleas and verdicts dramatically affect our moral assessments of defendants even when they add no new information about underlying evidence.  People often perceive defendants differently just prior to a verdict relative to just after, even when they know the underlying facts as well as jurors do.  We seem to give pleas and verdicts moral significance that outstrips their epistemic significance.

In this chapter, I argue that pleas and verdicts have less moral significance than we often ascribe to them.  While we sometimes give conviction a kind of magical significance, pleas and verdicts usually only provide modest morally-relevant information at least to those closely following a case.  Though some communicative theories of punishment ascribe special non-instrumental symbolic meaning to conviction, what I call the “radical indeterminacy of punishment severity” undermines the ability of pleas and convictions to accurately communicate amounts of condemnation.

February 6, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 31, 2024

New stories suggesting that new west-coast legal approaches failing in face of scourge of fentanyl

A couple of notable press pieces this morning highlight data and developments indicating that the harms of the fentanyl crisis are growing in two notable jurisdictions that have been pursuing less punitive approaches to drug policy.  First, news from Oregon:

"In downtown Portland’s fentanyl crisis, Oregon leaders declare emergency"  Snippets:

Multnomah County, the city of Portland and the state of Oregon are embarking on a 90-day experiment to address downtown Portland’s fentanyl crisis. Tuesday, the three governments jointly declared a fentanyl emergency, directing their agencies to work alongside each other on programs that connect people addicted to the synthetic opioid with treatment programs and to crack down on drug sales....

The declaration comes years after fentanyl rooted itself in the region, spurring deaths, addiction and violent crime. According to Multnomah County, the number of overdose fatalities involving fentanyl increased 533% between 2018 and 2022 in the county. The region has also experienced a serious shortage of substance use treatment providers and recovery centers — despite the 2020 passage of a ballot measure meant to fund new drug treatment programs across Oregon. Measure 110 also decriminalized small amounts of illicit drugs, an aspect that state lawmakers are aiming to renegotiate in this year’s legislative session, which begins next week....

Max Williams, the former state lawmaker who also previously led the Oregon Corrections Department, issued a statement saying the emergency was a good start. “But a permanent fix to Measure 110 is necessary,” he said, citing the 2020 drug decriminalization measure. Williams, with the Coalition to Fix & Improve Measure 110, which is considering a ballot measure this fall, said the state “needs to recriminalize possession of fentanyl and other hard drugs as a Class A misdemeanor to help save lives and rescue communities.”

Second, the New York Times has this lengthy new piece exploring reasons why San Francisco has not been able to replicate the success that Portugal has seen with less punitive drug policies. This piece's full headline reads: "Can San Francisco Solve Its Drug Crisis? Five Things to Consider. A comparison with Portugal’s approach to decriminalization shows why many liberal cities have struggled to match its success."  I highly recommend this piece in full, and here is its start:

San Francisco is in the middle of a drug crisis.  Overdose deaths reached a record high last year, topping 800.  Public drug use is widespread in some neighborhoods.  How did San Francisco get to this point? In part, it follows the national story: The rise of fentanyl, a synthetic opioid, and a destabilizing pandemic caused a spike in addiction and overdose deaths.

But San Francisco’s drug crisis has outpaced the country’s. In 2014, the city’s overdose death rate was roughly in line with the national average. As of last year, its rate was more than double the national average, and San Francisco was No. 4 for overdose deaths among U.S. counties with more than 500,000 people. The country’s overdose crisis worsened over the past decade as fentanyl spread, but San Francisco’s worsened much more quickly.

Local policy changes are partly to blame, some experts say. In 2014, California voters passed Prop 47, reducing drug possession to a misdemeanor from a felony.  Different parts of the state have interpreted the change differently.  In San Francisco, law enforcement has responded by scaling back efforts against drugs, de-emphasizing incarceration and effectively allowing public drug use.

Those who support at least partial decriminalization often cite the experience of Portugal, which decriminalized all drugs more than two decades ago and then saw a decline in drug-related problems.  In 2019, the San Francisco district attorney at the time, George Gascón, even visited Portugal to learn more.  But while San Francisco and other liberal cities have embraced some aspects of Portugal’s decriminalization laws, they have struggled to replicate Portugal’s success.

The comparison with Portugal is not perfect. For one, fentanyl has not taken over Portuguese drug markets, and has a relatively small presence in Europe as a whole.  Still, the comparison gives a way to think about the challenges that San Francisco and other cities have faced.  Those challenges can be broken down into five parts, each touching on a different aspect of drug policy.

January 31, 2024 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (8)

Thursday, January 18, 2024

"'Mass Incarceration' Myths and Facts: Aiming Reform at the Real Problems"

The title of this post is the title of this notable new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing.  To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended.  This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices.  A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s.  This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more.  While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s — a fact in direct conflict with the mass incarceration narrative.  Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.

Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice.  While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad.  It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.

While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally.  For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.

This Article is not pro-incarceration.  It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary.  The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions.  The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment — a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.

Part I of the Article describes the mass incarceration myths that have become so broadly accepted.  Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative.  Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness.

January 18, 2024 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (9)

Wednesday, January 17, 2024

"Redistributing Justice"

The title of this post is the title of this new article now available via SSRN authored by Benjamin Levin and Kate Levine. Here is its abstract:

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system.  Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state.  Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas — often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment — the hope that the criminal system can be used to redistribute power and privilege.  We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination.  It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment.  Instead, we argue that they reflect a vision of criminal law as a tool of redistribution — a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law.  We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine.  Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, though, our criminal system would remain objectionable.  The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane even if the identity of the defendants or the politics associated with the institutions shifted.

January 17, 2024 in Elections and sentencing issues in political debates, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, January 15, 2024

Inspired by sermon on love, hate and the "highway of history" on this MLK Day

On MLK days in recent years, I have made a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King (which always delivers), and I now also explore Stanford University's awesome collection of MLK Papers.  In previous years (in posts linked below), I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But today, what caught my attention was Dr. King's sermon titled simply "Loving Your Enemies," which he delivered at Dexter Avenue Baptist Church in November 1957.  I recommend the full sermon, and here are some excerpts:  

I think the first reason that we should love our enemies, and I think this was at the very center of Jesus’ thinking, is this: that hate for hate only intensifies the existence of hate and evil in the universe.  If I hit you and you hit me and I hit you back and you hit me back and go on, you see, that goes on ad infinitum.  It just never ends.  Somewhere somebody must have a little sense, and that’s the strong person.  The strong person is the person who can cut off the chain of hate, the chain of evil.  And that is the tragedy of hate, that it doesn’t cut it off.  It only intensifies the existence of hate and evil in the universe.  Somebody must have religion enough and morality enough to cut it off and inject within the very structure of the universe that strong and powerful element of love....

And if somebody doesn’t have sense enough to turn on the dim and beautiful and powerful lights of love in this world, the whole of our civilization will be plunged into the abyss of destruction.  And we will all end up destroyed because nobody had any sense on the highway of history.  Somewhere somebody must have some sense.  Men must see that force begets force, hate begets hate, toughness begets toughness.  And it is all a descending spiral, ultimately ending in destruction for all and everybody.  Somebody must have sense enough and morality enough to cut off the chain of hate and the chain of evil in the universe.  And you do that by love....

There is a power in love that our world has not discovered yet.  Jesus discovered it centuries ago.  Mahatma Gandhi of India discovered it a few years ago, but most men and most women never discover it.  For they believe in hitting for hitting; they believe in an eye for an eye and a tooth for a tooth; they believe in hating for hating; but Jesus comes to us and says, “This isn’t the way.”

Also a helpful reader made another reading recommendation for this day, this new opinion piece from the Washington Post by Colbert King, headlined "To bend toward justice, the arc of history has to bend toward family, too."  An excerpt:

“The family, that is, the group consisting of mother, father and child, still remains the main educational agency of mankind,” King said. Those words can’t top the majesty and call to action of King’s “I Have a Dream” oration, or match the moral teachings of his “Letter from Birmingham Jail.” But they go to the heart of what’s missing in the lives of the many who are not free to join in this weekend’s festivities [because they are incarcerated].

A few links to a few recent MLK Day posts:

January 15, 2024 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10)

Wednesday, December 13, 2023

"Democratizing the Eighth Amendment"

The title of this post is the title of this new article recently posted to SSRN and authored by Erin Braatz. Here is its abstract:

The concept of evolving standards of decency has long been an important component of the Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  Yet the Court’s recent decisions problematically conceive of standards of decency as something static and capable of precise measurement.  This Article proposes a theoretically robust and empirically grounded account of evolving standards of decency, drawing on scholarship in the fields of history, sociology, and anthropology. This literature reveals that rather than constituting a static state, standards of decency develop through a process dependent upon interpersonal interactions.  While the Supreme Court’s earliest invocations of the concept of evolving standards of decency relied upon arguments similar to those found in this literature, the Court has lost sight of the concept’s dynamic nature.

Applying this account of standards of decency to the history of penal reform in the United States, this Article contends that the extreme privatization and isolation of penal practices beginning in the mid-twentieth century prevents the public from evaluating whether prison practices in the United States violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  It also stymies the process through which standards of decency might evolve.  The development of penal practices outside of the public eye thereby contributes to the Supreme Court’s struggle to apply the concept of evolving standards of decency to imprisonment cases.  In contrast, recent reform movements, such as prison abolitionism, community control, and democratic criminal justice all rely implicitly on some version of a process-oriented notion of standards of decency.  In varying ways, they reflect a belief that building and facilitating robust interpersonal relationships will lead to a radical reimagining of how individuals can and should be treated in response to harms they may have caused.  Rather than rely on the Supreme Court to ensure that punishments in the twenty-first century are not cruel and unusual, this Article concludes that we must democratize the Eighth Amendment by adopting public policy choices that enable public engagement with penal spaces and the development of the interpersonal relationships through which standards of decency can be engaged.

December 13, 2023 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, December 06, 2023

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

December 6, 2023 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 29, 2023

"The Imperialism of Desert"

The title of this post is the title of this new paper authored by Ofer Malcai and Re'em Segev ow available via SSRN. Here is its abstract:

What is the relation between desert and other values such as equality, priority for the worse off, and utility?  According to the common view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all.  However, another view holds that while desert is a basic value, other values are merely derived from it.  This controversy is relevant, for instance, to allocative decisions and criminal punishment, where we need to know if other values should be balanced against desert.  Yet, despite its theoretical significance and practical importance, this topic is underexplored.  Aiming to fill this gap, we consider the arguments for and against the competing views.

November 29, 2023 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 09, 2023

The Sentencing Project releases new report on “System Reforms to Reduce Youth Incarceration”

The Sentencing Project this morning has released this new report titled "System Reforms to Reduce Youth Incarceration: Why We Must Explore Every Option Before Removing Any Young Person from Home." Here is the start of the 25-page report's executive summary:

Well designed alternative-to-incarceration programs, such as those highlighted in Effective Alternatives to Youth Incarceration: What Works With Youth Who Pose Serious Risks to Public Safety, are critically important for reducing overreliance on incarceration.  But support for good programs is not the only or even the most important ingredient for minimizing youth incarceration.

To reduce overreliance on youth incarceration, alternative-to-incarceration programs must be supported by youth justice systems that heed adolescent development research, make timely and evidence-informed decisions about how delinquency cases are handled, and institutionalize youth only as a last resort when they pose an immediate threat to public safety.  In addition, systems must make concerted, determined efforts to reduce the longstanding biases which have perpetuated the American youth justice system’s glaring racial and ethnic disparities in confinement.

This report will highlight state and local laws, policies and practices that have maximized the effective use of alternative-to-incarceration programs and minimized the unnecessary incarceration of youth who can be safely supervised and supported at home.

November 9, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, November 05, 2023

"Justice by Algorithm: The Limits of AI in Criminal Sentencing"

The title of this post is the title of this new article authored by Isaac Taylor just published online for the journal Criminal Justice Ethics. Here is its abstract:

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector.  This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions.  It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed.  The act of condemnation is a valuable element of criminal sentencing, and using algorithms in sentencing — even in an advisory role  — threatens to undermine this value.  The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status.  This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions.  While this principle does not rule out the use of algorithms, it does require limits on how they are constructed.

November 5, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, October 31, 2023

"Juvenile Crime and Anticipated Punishment"

The title of this post is the title of this notable new article authored by Ashna Arora just published in the November issue of American Economic Journal: Economic Policy.  Here is its abstract:

Can sanctions deter juvenile crime?  Research indicates that they may not, as offending barely decreases when individuals cross the age of criminal majority and begin to face harsher sanctions.  Several models of criminal behavior predict, however, that these small reactions close to the threshold may mask larger behavioral responses among individuals below the age threshold.  Policy variation between 2007–2015 in the United States is used to show evidence consistent with these predictions — juvenile crime increases when the age of majority is increased.  This increase is driven by younger age groups and is considerably larger than discontinuity estimates at the threshold.

October 31, 2023 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, October 29, 2023

"Original Understanding, Punishment, and Collateral Consequences"

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

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences?  This Article begins to tackle that question.  For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment.  Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose.  A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not.  Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine.  Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive.  Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes.  The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist.  Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment.  By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”.  If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence.  In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government.  These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.

October 29, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Monday, October 23, 2023

"Non-State Punishment"

The title of this post is the title of this new article now on SSRN and authored by Colleen Murphy and Lesley Wexler.  Here is its abstract:

How should we think about the Jewish community’s punishment of Jewish kapos, councilmembers, and police officers after the Holocaust?  Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup?  In the American context, the invocation of ‘cancel culture’ or ‘wokeness’ reflects concern about the defensibility of non-state practices of accountability.  Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors.

Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands.  Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration.  However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.

To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment.  This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment.  The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise.  The first dimensions is the type of justice punishment promotes (ordinary justice or transitional justice).  The second dimension is the agent meting out punishment (state actors or non-state actors).  Each category of punishment faces distinct questions of standing and justifiability.

Our conceptual map makes four contributions.  First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment.  Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice.  Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’  For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment.  As we discuss, some push back on so called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment is in fact occurring.  Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment.  Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth telling.

October 23, 2023 in Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Monday, October 16, 2023

Making the case against "mass supervision"

41hG5jF+RfLIn recent weeks, a number of new press pieces have discussed Vincent Schiraldi's notable new book titled "Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom."  (I have linked to some of those piece below.)  Today, I see that the author has this new opinion piece in the Washington Post under the headline "Parole and probation don’t work. Let’s think of a new approach." Here are excerpts:

There are nearly 4 million people in the United States on parole and probation — about twice as many as are incarcerated in our prisons and jails. These individuals are not quite free in the way that the rest of us take for granted. Their homes can be searched without a warrant; they can be incarcerated without representation and held without bail; they do not have the right to remain silent; and they can be convicted of, and imprisoned for, noncriminal acts based on evidence that does not need to be proved beyond a reasonable doubt.

Probation (a front-end sentence intended as an alternative to incarceration) and parole (early release from prison for good behavior) have been around since the 1800s. Both originated as alternatives to what was a new but increasingly brutal penitentiary system and were intended to rehabilitate people in the community. They are unsuccessful on both counts.

In the 1970s, rehabilitation became a dirty word in criminal justice, and the system took a sharply punitive turn, setting the country on a march toward mass incarceration and mass supervision. Probation and parole pivoted to a “trail ’em, nail ’em, and jail ’em” approach. This ushered in a mushrooming of hard-to-meet supervision conditions and imprisonment for noncriminal supervision violations. From 1980 to 2008, there was a fivefold increase in the number of people under community supervision — topping 5 million at the peak — alongside a similar expansion in prison populations. Nearly 1 in 4 people entering state prisons are incarcerated for a technical violation of their supervision, not a new offense, costing taxpayers $2.8 billion annually....

Mass supervision has managed to make us less free and no safer, all at great cost. As policymakers look to reform their supervision systems, they should consider reducing — or, for some groups, eliminating — probation and parole supervision, replacing them with services offered by nonprofit and volunteer groups, and carefully studying the outcomes.

A number of states have downsized supervision, saved money and improved public safety. In Missouri, policymakers reduced probation terms by 30 days for every 30 days of compliance while under supervision. In the first three years, 36,000 people were able to reduce their terms by 14 months, the number under supervision dropped by 18 percent, and reconviction rates for those released early were the same as for those discharged from supervision before the policy went into effect. If less supervision has better outcomes at lower cost, it’s plausible that no supervision — and investing the resulting savings in community supports such as housing, employment, and drug and mental health services — might yield even better ones.

After nearly two centuries, probation and parole have failed to prove their worth. Let’s carefully experiment with, and assiduously study, the alternatives instead.

A couple recent press pieces about this book:

From NPR, "Almost 4 million people are on probation or parole. Here's why that matters."

From Slate, "The Largest Form of Criminal Punishment in the United States Is Not Prison. It’s Still Awful."

October 16, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Saturday, October 14, 2023

"Two Kinds of Desert"

The title of this post is the title of this new paper authored by David Brink available via SSRN. Here is its abstract:

The concept of desert figures centrally in our reactive attitudes and practices in both morality and law.  A philosophical tradition that includes Butler, Price, Kant, and Ross focuses on aretaic desert, which claims that people deserve rewards and sanctions commensurate with their overall aggregate levels of virtue and vice.  By contrast, accountability desert assesses the praise or blame agents deserve for particular actions.  An important special case of accountability desert is retributive desert, which insists that culpable wrongdoing is the desert basis of blame and punishment.

These desert contexts display both unity and diversity.  On the one hand, these different desert contexts are all regulated by a conception of moral agency and responsibility that is grounded in a conception of accountability in which responsible agents are conceived as reasons-responsive agents who have the fair opportunity to exercise their normative capacities.  Desert is a matter of fitting responses, positive or negative, to conduct for which the agent is accountable.  On the other hand, there are also important differences between aretaic and accountability desert concerning the focus, scope, and valence of desert.  Crucially, whereas accountability desert has an atomic focus on individual actions, aretaic desert has a holistic focus on aggregate virtue and vice.

If so, one cannot assume that what is true of aretaic desert is true of accountability desert, and vice versa.  A case in point is the critique of retributive conceptions of punishment that appeals to assumptions about aretaic desert.  The problems that would result from combining retributivism with aggregate lifetime desert are not a good reason to reject retributive conceptions of blame and punishment, which operate with an accountability focus on atomic desert.

This defense of the retributive focus on accountability desert is compatible with a wide-ranging conception of the factors that are potentially relevant to sentencing and sanctions. On the one hand, we can sensibly deny the relevance of aretaic desert to sentencing and sanctions, insisting that aggravating and mitigating factors must be specified in relation to the particular wrong for which the agent is accountable.  On the other hand, even if we conceded the legitimacy of appealing to aretaic desert at decisions about sentencing and sanctions, it would not be part of the retributivist desert basis for proportionate punishment, which is accountability desert.  Rather, it would stand as a factor external to retributive desert.

October 14, 2023 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, October 05, 2023

"The Dissociative Theory of Punishment"

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

The American public has complex views on criminal punishment.  They are driven primarily by retributive motivations.  But they have other justice considerations, such as restoration and rehabilitation, that can be activated in different ways.  Laypersons are also motivated to psychologically distance and dissociate from those they perceive to be criminal “others” and to see punishment itself as a kind of dissociation, embodied by the prison form.  The psychological processes that produce these beliefs lead to an insistence on prison as a necessary criminal justice outcome, despite reservations about its effectiveness and concerns about the state of mass incarceration and punitive penal policy more generally.

This Article builds on the psychology of punishment literature to offer a deeper understanding of the dissociative theory of punishment and how it produces the belief in the necessity of prison.  Drawing on original, qualitative focus group data and analysis, this Article identifies the specific psychological mechanisms that motivate dissociation, explains the role of the belief in retributive justice as part of this process, and offers nuanced insights into the contours of the dissociative theory and the way people psychologically reason about criminal punishment.

October 5, 2023 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, September 20, 2023

"Toward a More Comprehensive Plea Bargaining Regulatory Regime"

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

America’s plea-bargaining system is famously informal.  While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law.  Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured — upwards of 95% by most estimates — this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process.  There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial.  The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice.  The Article identifies several reforms that might be taken.  These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions.  The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences.  This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial.  Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice.  It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

September 20, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (14)

Saturday, September 16, 2023

"Forbidden Purposes"

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

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons.  For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and to remove them from public space.  These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions.  But, supposing the extraordinary evidence could be adduced, what difference would it make in a court of law?

While most can agree that officials act wrongly if motivated by these concerns, it is less clear whether such officials act illegally.  Does constitutional law disclose any legal ground for opposing action taken for these nefarious purposes? This Essay outlines a strategy that courts might adopt for finding that some governmental purposes are, constitutionally speaking, forbidden purposes.  Purpose-based arguments for invalidating government action are not entirely new.  Rational basis review, familiar from the Equal Protection and Substantive Due Process contexts, sometimes requires courts to determine whether governmental action advances legitimate purposes.  However, such scrutiny lacks general elucidation, and few have endeavored to elaborate how this would work specifically in the criminal sphere.  This Article is a first attempt to develop a method for distinguishing the legitimate from the forbidden purposes in criminal law and beyond.

On the proposed framework, courts would consider the constitutive rules of liberal legal systems, that is, those rules that both define and govern liberal legal systems.  The set of constitutive rules will limit the state’s pursuit of certain aims, and those foreclosed options are, on the proposed framework, forbidden purposes under rationality review.

September 16, 2023 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, September 12, 2023

"Intellectual Disability, Categorical Mitigation, and Punishment"

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

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others — more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences.  None of which is justified under the theories of punishment.  These disparate outcomes stem from initial failures to identify that a person has intellectual disability and then misunderstandings and biases about intellectual disability.  This Article examines and analyzes how the criminal legal system treats individuals with intellectual disability, the reasons for these inequitable and negative experiences, and the theories of punishment justifying their sentences.  Drawing on this foundational analysis, this Article proposes that jurisdictions adopt a categorical rule that intellectual disability is always mitigating; and that courts, in their sentencing orders, must articulate the degree to which they find intellectual disability mitigating and why.  This rule, though, is not the ultimate goal but rather is the tool for effectuating broader change in the criminal legal system.

This Article expands upon the analysis articulated in Atkins v. Virginia, which relied on both the practical realities facing individuals with intellectual disability in the criminal legal system and the theories of punishment to categorically exempt individuals with intellectual disability from the death penalty.  By applying this same approach to non-death penalty cases involving individuals with intellectual disability, it becomes clear that a categorical rule is again necessary.  After describing the proposed categorical rule, this Article describes how the rule is situated within broader conversations about disability justice and abolition, as well as the greater implications for change in the criminal legal system — including increased identification, greater understanding across system actors, and more appropriate sentences.

September 12, 2023 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, September 11, 2023

New PPI briefing argues housing "is one of our best tools for ending mass incarceration"

Brian Nam-Sonenstein writing for the Prison Policy Initiative has this new briefing developing the case for the claim that ending homelessness can help reduce incarceration.  The briefing has this full title: "Seeking shelter from mass incarceration: Fighting criminalization with Housing First; Providing unconditional housing with embedded services can reduce chronic homelessness, reduce incarceration, and improve quality of life – especially for people experiencing substance use disorder and mental illness."  And here is how the briefing gets started (with links from the original): 

Housing is one of our best tools for ending mass incarceration. It does more than put a roof over people’s heads; housing gives people the space and stability necessary to receive care, escape crises, and improve their quality of life. For this reason, giving people housing can help interrupt a major pathway to prison created by the criminalization of mental illness, substance use disorder, and homelessness.

For this briefing, we examined over 50 studies and reports, covering decades of research on housing, health, and incarceration, to pull together the best evidence that ending housing insecurity is foundational to reducing jail and prison populations. Building on our work detailing how jails are (mis)used to manage medical and economic problems and homelessness among formerly incarcerated people, we show that taking care of this most basic need can have significant positive downstream effects for public health and safety.

September 11, 2023 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (7)

Wednesday, September 06, 2023

Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans

Via email, I learned today of an exciting and impactful new report from the Council on Criminal Justice’s Veterans Justice Commission. Here are all the details and links via the text of the email:

CCJ’s Veterans Justice Commission today released a policy roadmap that encourages states and the federal government to expand alternatives to prosecution and incarceration for justice-involved veterans.
The policy framework outlines alternative sentencing options that not only recognize veterans’ service, but also that their criminal behavior may have been influenced by that service.  The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices used in problem-solving courts and community supervision.  The Commission also encouraged jurisdictions to pass laws enabling veterans whose cases are processed through such options to file for record expungement.
“We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve — despite the fact that their criminal justice involvement is often due, at least in part, to their willingness to fight for their country,” Commission Chair and former U.S. Defense Secretary Chuck Hagel said.  “As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.”
Based on the policy framework, the American Legislative Exchange Council (ALEC) in August adopted as model policy the Veterans Justice Act.  This version of the framework will be shared with state legislatures as a blueprint for action on the issue.

The policy framework reflects an initial set of recommendations released by the Commission in March.  Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year. In addition to Hagel, Commission members include former Defense Secretary and White House Chief of Staff Leon Panetta, a former Sergeant Major of the Marine Corps, the chief justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

Prior related posts:

September 6, 2023 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, September 04, 2023

Guest post: "A plea for juries — at sentencing"

6a00d83451574769e202788010ea87200d-320wiI am very pleased to have the opportunity to publish this guest post from Marah Stith McLeod, who is a Associate Professor at Notre Dame Law School and the authors of a number of great sentencing articles.  I am grateful to be able to platform here a brief account of her latest article, "A Democratic Restraint on Incarceration" (which I first flagged in this post):

Several recent postings on this blog have focused on the value of juries as organs of democratic self-governance. Americans retain an abiding trust in juries as legitimate decisionmakers — far higher than the trust they place in judges, prosecutors, and defense attorneys. Serving on a jury, moreover, tends to increase the jurors’ understanding of, and trust in, the criminal justice system, and tends to make jurors afterward more likely to participate in civic life. 

We have in recent years witnessed significant challenges to American democratic institutions and a loss of confidence in the competence and ethics of our elected leaders.  In a recent guest essay in the New York Times, Wharton organizational psychologist Adam Grant argued that if we want more effective and ethical leaders, we should choose them not by election but by sortition — by random selection from a pool of candidates.  Grant proposes a system in which laypeople who pass a civics test can join the candidate pool.

We should take Grant’s proposal seriously.  Fortunately, as Grant observes, “we already use a version of a lottery to select jurors,” and criminal juries have historically played crucial roles in promoting a just and flourishing civil society. Justice Sonia Sotomayor recently described juries as “democratic institutions called upon to represent the community as ‘a bulwark between the State and the accused.’”  When it comes to reforming our criminal justice system, juries may be exactly the kind of democratic institution we need most.

Juries’ current role as finders of fact, however, is not enough.  Juries also should have the power to limit penalties — especially the decision to strip a defendant of his liberty and suspend his civic existence.  Elected politicians may be voted out of office if they vote to reduce criminal penalties, and judges have powerful incentives to maintain a trial penalty in order to induce future defendants to plead guilty.  The jury is free of these punitive incentives.  And legislatures may find it much easier to allow juries to impose constraints on punishment, because juries enjoy unusual levels of public trust and make only case-specific decisions.

In A Democratic Restraint on Incarceration, I argue that trial juries should be empowered to set an absolute maximum amount of incarceration based on what a defendant deserves, and the trial court’s sentencing discretion should be capped at that amount.  Sentencing courts could sentence below jury-set maximum desert, but never above it. Legislatures should grant juries case-specific authority to depart even below mandatory minimums in order to avoid undeserved excesses.

A skeptic might doubt juries can make a real difference in a criminal system dominated by plea deals. But the effects of a new jury power to constrain post-trial penalties would reverberate across pleaded cases as well, for prosecutors could no longer credibly threaten defendants with post-trial prison terms that no jury would deem to be deserved. Defendants would gain a valuable bargaining chip, and prosecutors would lose an unjust tool, correcting — if only slightly — the imbalance of power in plea negotiation.

The unique trust the public places in juries makes them ideal institutions to restrain carceral excesses.  Rather than waiting for our elected officials to repeal or mitigate unjust penalties, we should let juries take the lead.

September 4, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (16)

Friday, September 01, 2023

Register for "Rewriting the Sentence II Summit" in DC in October

I am pleased and honored to be committed to speak at this big sentencing conference scheduled to take place in Washington DC next month. Here is how the conference is described on on this registration page:

The Rewriting the Sentence II Summit, presented by the Center for Justice and Human Dignity, is the long-awaited sequel to the acclaimed Rewriting the Sentence summit of 2019, hosted by The Aleph Institute at Columbia University Law School.  The Summit will continue to raise awareness and promote the expanded use of alternatives to incarceration, with a special focus on how trauma impacts the criminal legal system.

Please join us at this two-day, dedicated peer-to-peer learning forum where judges, prosecutors, correctional leaders, and other legal system decision-makers will convene to confront the complex challenges of incarceration and its harmful consequences and encourage meaningful change by fostering the adoption of alternative sentencing programs and a more effective approach to safety and justice.

The Summit will feature a stellar lineup of speakers, sessions, interactive roundtables, and discussions, and will be well-attended by a diverse representation of judicial, prosecutorial, pretrial, probation, and other legal officials from federal, state and local jurisdictions.

This gathering will act as a space for meaningful exchanges between leaders and practitioners already steeped in the alternatives-to-imprisonment landscape, for those curious to engage further on ATI implementation, and for those open to learning about what ATI programs are currently in use.  We hope to galvanize individuals departing from this Summit to become change-agents for these alternatives in their respective jurisdictions and communities.

The Summit will include a virtual interactive session with currently incarcerated people and provide expert insights on issues such as trauma-informed care, behavioral science, and implicit bias.

September 1, 2023 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, August 31, 2023

Spotlighting poor record of new Illinois medical release law

I have followed the stories of "compassionate release" a lot more closely since the passage of the federal First Step Act in 2018 dramatically increased the number of federal prisoners able to make a court motion, and prevail on a court motion, for a sentence reduction.  But it is very hard to keep up with the 50+ other jurisdictions that run prison systems in the US that have their own rules and practices for releasing prisoners on various grounds.  Consequently, it is very interesting and helpful to see local groups and media focus on these issues at the state level, and today brings this notable new report from from Injustice Watch and WBEZ about development in Illinois.  The piece is headlined "Dying and disabled Illinois prisoners kept behind bars, despite new medical release law," and it demands a read in full for anyone concerned about these issues.  Here is how the extended article gets started:

Phillip Merritt’s dementia is so advanced he’s lost the ability to speak. But with the help of his cellmates at Western Illinois Correctional Center, the 71-year-old still manages to get on the phone with his brother every few weeks. “He has to have someone call me, and then I don’t know what to say to him because he can’t understand anything, so I’ll just talk,” said Merritt’s brother, Michael Merritt, in an interview. “All he can say are two words. … I mean, he’s just gone.”

Merritt’s deteriorating condition makes him a prime candidate to get out of prison under the Joe Coleman Medical Release Act, a pivotal criminal justice reform bill touted by Gov. JB Pritzker and Illinois Democrats as an effective way to alleviate the state’s decrepit prison health care system, reduce the “staggering” costs of caring for ailing people in prison, and reunite families with frail loved ones.

Under the act — named after a decorated Army veteran who died of prostate cancer while incarcerated — Illinois prisoners can request early release if they’re terminally ill and expected to die within 18 months or if they’re medically incapacitated and need help with more than one activity of daily living, such as eating or using the bathroom.

But a year-and-a-half since the Coleman Act went into effect, an investigation by Injustice Watch and WBEZ found far fewer prisoners have been released under the law than expected, as the medical release process has become mired in the charged politics of criminal justice reform in the post-George Floyd era. Behind the lower-than-expected numbers is the Prisoner Review Board, a state body appointed by Pritzker and confirmed by the Illinois Senate with final say on medical release requests.

As of mid-August, the board had denied nearly two-thirds of medical release requests from dying and disabled prisoners who met the medical criteria to get out of prison under the Coleman Act — including Merritt. “I couldn’t believe it,” his brother said. “How could they deny him? He can’t even talk!”

More than half of the 94 denied applicants were older than age 60, and half had spent at least 15 years behind bars, according to an analysis of state prison data. At least two died in prison, including an 81-year-old who had been incarcerated for more than three decades and was scheduled to be released in 2025. Another man died five days before the board denied his request.

Meanwhile, the Prisoner Review Board has only granted 52 medical releases — a rate of fewer than three releases per month on average since board members began voting on those requests, records show. Advocates say the board is undermining the Coleman Act and forcing ill-equipped prison staff to care for dying and disabled prisoners, even those with families practically begging to take them off their hands.

August 31, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 26, 2023

Interesting Seventh Circuit discussion of rehabilitation considerations as part of imposition of prison term

A dozen years ago, the Supreme Court issued an important little opinion in Tapia v. US, 564 U.S. 319, 332 (2011), which held that federal sentencing statutes preclude "sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation."  As explained in this post from back in 2011, I helped prepare an amicus brief in Tapia making arguments that did not prevail, driven by a concern that a broad ruling in Tapia might in other cases dissuade sentencing judges from being candid about their interests in helping defendants get needed treatment or from giving appropriate thought to sentencing advocacy that sounded in rehabilitative terminology.  I give that backdrop to explain why I found interesting, encouraging and blog worthy a Seventh Circuit panel opinion from this past week in US v. Long, No. 22-2275 (7th Cir. Aug. 22, 2023) (available here), which starts this way:

This case presents another variation on the challenges posed for sentencing judges by instructions from Congress and the Supreme Court about the required, permissible, and prohibited roles of rehabilitation in sentencing.

Appellant Delvarez Long is serving an above-guideline prison term for possessing a firearm after being convicted of a felony. He argues on appeal that the district court plainly erred by imposing a prison term in part to rehabilitate him, contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United States, 564 U.S. 319 (2011).  We affirm.  Rehabilitation is an important consideration in most sentences.  Tapia permits a judge to discuss rehabilitation so long as she does not make rehabilitation a primary consideration in deciding whether to impose a prison sentence or how long it should be.  Our review of this record does not show a plain error under Tapia

The final two paragraphs of the thoughtful Long opinion highlights why I was worried about how Tapia might disrupt sound sentencing practices while seeking to make sure that it does not:

Section 3582(a) and Tapia put district courts in a difficult position.  Courts must ignore rehabilitation as a goal when imposing or lengthening a prison sentence, even though they must consider rehabilitation at the same hearing, when deciding about supervised release and appropriate conditions. See 18 U.S.C. § 3583(c).  As we said in Shaw, Tapia forces courts to demonstrate “their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.” 39 F.4th at 459.  We ordinarily want a judge to engage with a defendant’s individual history and challenges rather than to apply the Sentencing Guidelines mechanically.  In that engagement, though, Tapia can cast a shadow over thoughtful comments that address a defendant’s unique circumstances or encourage a defendant to take advantage of rehabilitative programs while incarcerated.

We therefore reaffirm the thrust of Shaw: to show a Tapia error, a defendant must show that the district court focused exclusively or disproportionately on rehabilitation in deciding whether to impose a prison term or how long a term should be.  References to rehabilitative programs in prison in passing or when describing opportunities available while serving a sentence selected for permissible reasons will not lead us to find error, let alone plain error.  At the same time, it might be helpful for a sentencing court to include a candid and explicit disclaimer to the effect that rehabilitation goals did not affect whether a prison term was imposed or how long it would be.

August 26, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, August 24, 2023

Call for Papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on March 28-29, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio.  The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.


For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

August 24, 2023 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, August 14, 2023

Interesting new resource sorting through complicated realities of "drug decriminalization"

I just came across this notable report titled "Decriminalizing Drug Possession In The US: Emerging Models & Recommendations For Policy Design And Implementation."   This document, which was produced by multiple public health scholars and was funded by Johns Hopkins Bloomberg School of Public Health, seeks to unpack and assess different approaches to drug decriminalization.  Here is its executive summary:

Amid calls to address substance use as a public health issue, jurisdictions nationwide are rethinking the paradigm of criminalization for possession of drugs other than cannabis.  While decriminalization of all drugs through official legislation (de jure) has only been enacted in Oregon, many localities are leveraging prosecutorial discretion to de facto decriminalize simple drug possession.  However, the different policy provisions and implementation experiences of de facto strategies have not yet been systematically captured.  Through key informant interviews (N=22), we describe and contrast emerging models of de facto drug decriminalization (specifically, the use of prosecutorial discretion to depenalize and/or decriminalize the possession of drugs other than cannabis) in 14 jurisdictions nationally. 

Systematic thematic analysis revealed four distinct implementation models of de facto drug decriminalization: expanded diversion, substance-specific declination, case-by-case declination, and unconditional declination. Challenges and opportunities for implementation of de facto decriminalization included data availability and quality, addressing past and non-drug charges, and stakeholder and public engagement.  Key recommendations include tailoring policies to the local context, seeking multisectoral collaboration early in implementation, establishing research and evaluation partnerships, and explicitly adopting measures to improve outcomes for racial/ethnic minority and low-income communities disproportionately affected by drug enforcement.  The use of these strategies can help reduce exposure to and disparities in the carceral system, even in the absence of formal legislation.

UPDATE: Intriguingly, less than an hour after putting up this post, I saw an intriguing new headline and story on Fox News, "Vivek Ramaswamy breaks with GOP on decriminalization of hard drugs: 'I'm in that direction'."

August 14, 2023 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (14)

Sunday, August 13, 2023

"140 Characters of Justice? The Promise and Perils of Using Social Media to Reveal Lay Punishment Perspectives"

The title of this post is the title of this new paper now available via SSRN authored by Itay Ravid and Rotem Dror. Here is its abstract:

For centuries now, penal theorists have engaged in heated debates about two questions at the heart of criminal legal systems: how can we justify the State’s power to punish individuals, and how can we determine what is the proper level of punishment.  To answer these questions, moral philosophers advanced conversations about several theories, which predominantly held in philosophical silos.  Over the years, calls to better understand community views regarding justifications of punishment and adopting penal law and policies that align with these views got traction, culminating in Paul Robinson’s “Empirical Desert” theory.  Despite its intuitive appeal, there have been criticism of this approach, both questioning its core hypotheses and expressing concerns about its perceived immorality.

At the same time, advancement in social-science methodology provided research tools to empirically deepen our understanding of lay people’s attitudes regarding punishment, mostly through surveys and experimental research designs.  One domain, however, remained untouched by those calling to assess lay intuitions of justice: social media. Such oversight is puzzling in light of social media’s potential to reveal public perceptions without scientific intervention.

This Article bridges this gap and engages with two main questions.  First, a methodological question: whether social media discourse can be used to reflect laypeople’s attitudes about criminal culpability and punishment, and second, a normative question: should it be used for these purposes.

To answer these questions, the Article first explores current scholarship about the promises and challenges of using social media data to study social perceptions.  The Article moves beyond theory, however, and utilizes recent technological developments in the field of Artificial Intelligence (“AI”) and Law and Natural Language Processing (“NLP”) to also explore empirically the potential promise of social media discourse in assessing community views on justice and punishment.

While the findings offer some support for the potentiality of using social media to assess laypeople’s attitudes regarding punishment, they also expose the complex challenges of utilizing such data, particularly for penal law and policy design.  First, due to a host of methodological challenges, and second, due to normative challenges, particularly social media’s polarizing nature and the ambiguity around whose voice is amplified through these platforms.

August 13, 2023 in Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, August 10, 2023

"A Democratic Restraint on Incarceration"

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

The sentencing model proposed in this Article employs the democratic voice of the jury to restrain individual injustice and mass incarceration by having the jury establish the maximum term that an individual defendant deserves and by confining judicial sentencing discretion within that upper bound.

Undeserved punishment violates a bedrock principle of justice, yet criminal defendants are often imprisoned without assurance that their deprivation of liberty and exclusion from society is deserved.  Legislatures are under powerful pressures to authorize and even mandate carceral penalties that may exceed individual culpability; prosecutors have strong cost incentives to threaten undeserved penalties in order to induce guilty pleas, and to pursue them if defendants refuse to plead guilty; and judges face like institutional pressures to sentence defendants more harshly if they insist on trial.

In a liberal democracy, the people should share responsibility for ensuring that prison sentences imposed in their name are deserved and therefore morally just.  Moreover, lay juries, who can speak for the community, are better suited to this moral task than judicial insiders or outside experts.

Juries, therefore, should decide the maximum amount of incarceration, if any, that the defendant deserves. Constrained by this jury-set maximum, the sentencing court would then select a final penalty based on statutory sentencing goals, including the utilitarian aims of deterrence, incapacitation, and rehabilitation.  No prison term could be imposed that the jury had deemed undeserved.  Even legislatively-mandated minimums should be subject to jury override in order to avoid unjust incarceration.

This proposal would operationalize a widely endorsed sentencing paradigm often called “limiting retributivism.” Blending lay normative sense and judicial expertise, this hybrid model would enable juries to perceive and prevent carceral excesses.  It would also diminish plea-bargaining injustice, for prosecutors could no longer induce guilty pleas by threatening penalties that no reasonable jury would deem deserved.

August 10, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, August 03, 2023

Sentencing Project releases "Ending Mass Incarceration: Safety Beyond Sentencing"

The Sentencing Project released this new ten-page report titled "Ending Mass Incarceration: Safety Beyond Sentencing."  Here is how it gets started

After 50 years of mass incarceration, the United States faces a reckoning.  While crime is far below its peak in the early 1990s, the country continues to struggle with an unacceptable amount of gun violence.  Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high. A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime.

This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

Implement community safety solutions – Community-based interventions such as violence interruption programs and changes to the built environment are a promising approach to decreasing violence without incarceration.

Transform crisis response – Shifting responses to people in crisis away from police toward trained community-based responders has the potential to reduce police shootings, improve safety, and decrease incarceration.

Reduce unnecessary justice involvement - Ending unnecessary police contact and court involvement by decriminalizing and diverting many offenses can improve safety.

End the drug war – Shifting away from criminalizing people who use drugs toward public health solutions can improve public health and safety.

Strengthen opportunities for youth – Interventions like summer employment opportunities and training youth in effective decision-making skills are a promising means of reducing criminal legal involvement.

August 3, 2023 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, August 01, 2023

Big new report examines developing "hybrid justice systems" for offenders between 18 and 25

I tend to looks at the development of juvenile justice systems as a kind of sentencing innovation as jurisdictions decided the purposes and processes of punishment should be different for juvenile offenders.  In turn, I also think sentencing concerns are a big part of the development of new "hybrid justice systems" developed for young (or emerging) adults, though I have not followed these developments all those closely.  But we can all catch up on these trends through this huge new report emerging from Columbia University titled "Time for Change: A National Scan and Analysis of Hybrid Justice Systems for Emerging Adults." 

The full report, authored by Selen Siringil Perker and Lael E. H. Chester, is "the first in the nation to systematically document the existence of an emerging adult jurisdiction — hybrid systems (also known as 'youthful offender laws') that create a distinct path for emerging adults (ages 18-25) by lessening some of the harm imposed by the adult system and extending some of the rehabilitative opportunities of the juvenile system to support the healthy transition to adulthood."  The extended foreword and executive summary can be found at this link, and here is an excerpt:

Our national scan revealed seven jurisdictions that have hybrid systems for emerging adults: Alabama, District of Columbia, Florida, Michigan, New York, South Carolina, and Vermont.  After conducting the scan, we analyzed the key provisions of each of these hybrid statutes, reviewed the existing, publicly available (but scarce) data on system-involved emerging adults, and conducted virtual and in-person interviews with key stakeholders to better understand the practical application of the law and the experience of emerging adults in these jurisdictions.  Combining the information gleaned from our research with the existing body of research on emerging adults’ developmental needs and the adult criminal legal system’s effect on young people, we offer key elements of a model hybrid statute to serve as a resource for states that wish to adopt or expand hybrid systems.

Hybrid statutes vary greatly by the degree of protections they offer and present themselves on a wide spectrum between the adult criminal legal systems and juvenile justice systems.  This versatile nature of hybrid systems makes them an important tool in the toolbox of policymakers that seek to transform justice responses to emerging adults. Hybrid systems are associated with enhanced public safety as indicated in some studies by lower recidivism rates of impacted youth for weapon and violent offenses.  Through record protection measures, hybrid systems reduce collateral effects of a criminal record, increase employment and community engagement opportunities for youth, and can meaningfully curb incarceration.  A study of gun violence in Chicago, for example, showed that employment is the most important preventative factor to keep emerging adults from carrying guns.

August 1, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, July 26, 2023

"Terror and Tenderness in Criminal Law"

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

The criminal legal system is at a crossroads.  Calls for abolition are met with calls for modest adjustments or maintenance of the status quo.  What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices.  Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care.  In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration — a promise of tenderness.

This Article argues that the current wave of reforms deploys discretionary relief in a manner that provokes unwarranted optimism while masking the state’s power to invoke terror through policing, prosecution, and punishment.  An emotional sleight of hand, discretionary relief — sometimes cast as leniency — entrenches the excessiveness of criminal legal systems in at least three ways.  First, discretionary leniency is merely a continuation of a pattern of strategic mercy documented in English law as early as the thirteenth century when pardons were issued to those sentenced to death in order to assuage public outcry over excessive punitiveness.  Second, reforms that rely on discretionary leniency reinforce well-worn beliefs about merit — who merits punishment and who merits mercy.  This liberal conceptualization of meritocracy shifts responsibility for the harshness of criminal legal practices onto the shoulders of defendants, a phenomenon that masks racial and other disparities in criminal systems.  Third, discretionary-based reforms do not change substantive law or procedure.  Instead, they rely on the leadership qualities of the discretionary decision-maker.  This further entrenches the neoliberal tenet that reforming unjust or inequitable institutions can be accomplished by simply finding the right person for the job.  This reliance on good people making good decisions truncates discussion of more sweeping changes that would place structural and legal limits on the state’s power to police, prosecute, and punish.

July 26, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, July 21, 2023

"Pitfalls of Progressive Prosecution"

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

So-called progressive prosecutors have come under attack, in part, due to two pitfalls associated with the progressive prosecution movement.  First, in styling themselves as substantively different than other prosecutors, progressive prosecutors may have obscured the extent to which they are relying on otherwise well-worn and well-accepted prosecutorial tools.  Second, in arguing that the root-causes of crime are best addressed through means other than criminal prosecutions, prosecutors have portrayed themselves as unable to take action when crime rates increase.  This article identifies the national political "brand" of progressive prosecution, discusses the two features of that brand that leave prosecutors particularly vulnerable to political attack, and offers suggestions for how to tweak the progressive prosecutor brand to better avoid these pitfalls.

July 21, 2023 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 10, 2023

Double issue of Federal Sentencing Reporter devoted to "Frankel at 50" now online

Regular readers likely recall some of my posts from earlier this year discussing the event in New York City this past April titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."    As mentioned in a prior post, though this event was only in-person, we also solicited a big set of article for a "Frankel at 50" special double issue of the Federal Sentencing Reporter.  I am now pleased to report that this special double issue has now been published, and I am so proud of what can be found inside.

This new "Frankel at 50" FSR issue has more than a dozen original articles from many judges and leading academics and advocates, a handful of great past FSR pieces from leading federal judges that very much merited reprinting in this collection, and also a set of archival materials that capture the voice of Judge Marvin Frankel in various ways.  Professor Steve Chanenson and I authored an introduction to the collection, titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order," and here is its abstract:

Fifty years ago, Judge Marvin E. Frankel published a slim volume that has had an outsized and enduring impact on the criminal justice system in the United States and around the globe.  In Criminal Sentences: Law without Order, Frankel captured the public’s imagination and the legal establishment’s attention in a way that is scarcely comprehensible in today’s world full of copious (but typically unheeded) criminal justice scholarship and policy advocacy.  Judge Frankel’s work serves as a kind of a sentencing Rorschach Test for those involved in sentencing discussions and debates past and present. Because the book is so rich, and because the text is both a reflection of its times and still timeless, people can — and do — see lots of different things in Criminal Sentences: Law without Order.  This essay, stemming from an April 2023 conference commemorating the book’s golden anniversary, explores the role that Frankel and his book had in shaping modern sentencing discourse and what lessons they offer for the future.

Check it all out.

July 10, 2023 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 26, 2023

Spotlighting the development of prosecutor-led resentencing movement

Law360 has this notable and lengthy new article, headlined "Minnesota Joins Prosecutor-Led Resentencing Law Movement," highlighting an interesting and important trend in enabling prosecutors to have a role in what might be called "right-sizing" sentences.  I recommend the piece in full, and here are excerpts: 

The prosecutor-led resentencing law enacted by California in 2018 was the first of its kind in the nation.  It was aimed at providing relief to youth who had been charged as adults, aging prisoners who are no longer deemed a threat to public safety, and individuals whose sentences are far out of line with more recently adopted sentencing laws and guidelines.

Similar laws were later passed in Washington, Oregon, Illinois and Louisiana in recent years.  While prisoners have only limited avenues to challenge their sentences or to seek release, prosecutor-led resentencing laws give prosecutors new discretion to identify people they no longer believe need to be in prison, and to file motions in court recommending them for a resentencing hearing.

Judges can then resentence the prisoners to a shorter term or to "time-served," in which case they are released. In making resentencing decisions, courts can consider the age of prisoners when they committed their offenses, their rehabilitation efforts, and whether they pose a risk to others if released.

Last month, Minnesota became the latest state to allow prosecutor-led resentencing. A provision in an omnibus bill signed by Gov. Tim Walz, a Democrat, on May 19 gives prosecutors the authority to defendants deemed safe for release.  Minnesota Sen. Ron Latz, a Democrat who sponsored the legislation, said the measure gave prosecutors discretion to reevaluate sentences that may be considered too harsh by today's sentencing standards, or that might simply have been the product of overzealous judges or prosecutors. "It's another tool in the toolbox to seek justice in particular cases where the prosecuting authority thinks that justice will be served by a shorter sentence," he told Law360.

The law's enactment adds momentum to a nationwide movement that seeks to bolster the role of prosecutors in reducing incarceration and curbing what advocates say are excessive prison sentences.

Supporters of the resentencing movement say some incarcerated people can be safely released and that prosecutors are uniquely positioned to initiate the process to get them out of prison. "The justice system, and the role of the prosecutor, oftentimes feels like an assembly line," said John J. Choi, the district attorney of Ramsey County, Minnesota, which includes St. Paul.  "I think the prosecutor's role should not just end once we've finished processing a case. We should always be thinking about ensuring that there is justice for those who are rehabilitated [and] who have done everything that we have asked them to do."

Like the one enacted in Minnesota, prosecutor-led resentencing laws do not compel district attorneys to reconsider people's sentences; they only provide the authority to do so.  But elected officials who oppose the laws argue the resentencing process leaves victims of crimes powerless.  They also say that giving prosecutors the power to seek resentencing leaves them facing political pressure to use it.

California Assemblymember Tom Lackey, a Republican who once served as a California Highway Patrol officer, said he voted against the prosecutor-led resentencing bill because he deemed it unfair to victims.  "This bill and the energy behind it, and those associated with it, tip the scale of justice against victims of violent crime," he said.  "The victim is totally ignored in this decision-making process.  They are not included in this discussion on how that resentencing may impact them."

But Michael A. Hestrin, the conservative district attorney of Riverside County, California, who used the prosecutor-led process to resentence Smith, said his office always engages with victims of crimes, considering their input when making decisions on resentencing.  Ultimately, however, prosecutors should be trusted in their decisions....

More than 350 people have been released in California since the law passed, according to an estimate by For The People, a nonprofit advocating for prosecutor-initiated resentencing laws nationwide that spearheaded the efforts to get the law passed in the Golden State.

With proper funding and the participation of all 58 county prosecutor's offices, the group believes some 26,000 people could be released in California.  Nationally, the prosecutor-led process led to the resentencing of more than 450 people.  Hillary Blout, a former prosecutor at the San Francisco District Attorney's Office who founded For The People and conceptualized, drafted and secured the passage of the first prosecutor-initiated resentencing law in 2018, said the breakthrough in California has inspired prosecutors elsewhere to advocate for similar policies.

For The People's national policy manager, May Lim, said the organization assisted legislators in analyzing prison population data to help them understand the potential effects of prosecutor-initiated resentencing in the state.  They focused on prisoners' ages — comparing them to how old they were when they committed their offenses — as well as the length of their sentences and how much time they had already served....

For The People also told stakeholders that part of the process of a prosecutor seeking resentencing involves engaging with victims of crimes to get their input.  Most of the time, Blout said that victims are supportive of releasing perpetrators early through resentencing after learning that they have turned their lives around while in custody. "Some victims say, 'I didn't even know this person was still incarcerated'," she said.

June 26, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, June 07, 2023

"Plea Bargaining Abolitionism: A History"

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

How does a tragedy on the scale of mass incarceration happen?  Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more.  On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered.  It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor.  Plea bargaining enabled mass incarceration.  If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.

Except that they — we — were warned.  In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining.  While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.

Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process.  Perhaps predictably, the broader legal profession didn’t heed the warning.  When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them.  And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.

June 7, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (9)

Thursday, June 01, 2023

"Fighting Crime Requires More Police and Less Prosecution"

The title of this post is the headline of this notable new Bloomberg opinion piece by Justin Fox than is built around an interview with Jennifer Doleac (WaPo reprint here).  Here is the set up to the Q&A in the article:

The nationwide jump in shootings and homicides early in the pandemic and the rise in other crimes that followed in some places have made crime a hot topic again in the US.  It has been a prominent one for academic research for a while, with economists in particular flocking to the field as a testing ground for research strategies that aim to sift causes from data. To get a sense of how recent findings fit with the national discussion on crime, I talked to Jennifer Doleac, an economist at Texas A&M University who not only studies crime but hosts a podcast on new research, Probable Causation, and has organized the Criminal Justice Expert Panel, which sums up expert opinion on crime questions.  This summer, Doleac, who has also written a few columns for Bloomberg Opinion, will become executive vice president of criminal justice at Arnold Ventures, a leading funder of crime research.  Following is a much-abridged transcript of our conversation and a list of research papers referred to in it.

I highly recommend the full piece, but here are snippets of likely interest to sentencing fans:

JD: [Research shows] first-time offenders are sort of at a fork in the road.  We can either hope it’s enough of a wake-up call that they’ve been arrested and had to come into court, and they’ll change course on their own, or we can pull them into the system.  I’ve become a big proponent of erring toward leniency in those sorts of situations.

There’s been other work to suggest similar things with nonviolent felony defendants. There’s a whole bunch of work on pretrial detention and the fact that locking people up pretrial has a really detrimental, causal effect on their future trajectories.  They’re more likely to plead guilty in that initial case but also more likely to re-offend in the future....

The main thing I try to point out to policymakers is we don’t have to fully understand why we are here to come up with ideas of what to do about it.  We can have ideas about what to do about violent crime that don’t require us solving this problem that we might never solve.

JF:  What are some top candidates?

JD: Putting more police on the streets reduces homicide, reduces violent crime.  There’s plenty of research on that. There are also plenty of discussions now about the potential social costs of over-policing, so it’s reasonable to have conversations about whether that is the route you want to go.  Also, it’s really hard to recruit police right now.

We know that increasing the probability of getting caught for crimes has a big deterrent effect in a way that potentially locking people up for 20 years on the back end does not.  No one is looking that far ahead.  Putting cameras everywhere, adding more people to DNA databases will increase the probability that you get caught if you offend.  We have lots of good evidence that would deter crime....

Leniency toward first-time offenders in the long run is probably a good investment.  Another thing is increasing access to mental health care.  There’s this amazing paper using data from South Carolina showing that when we kick kids off Medicaid at age 19, when it becomes much harder to stay on Medicaid, you just see all the kids get kicked off and then in the other graph you see everyone immediately locked up.  It’s these kids who were using Medicaid to get mental health treatment, they’re the ones that are now at very high risk of being locked up.

June 1, 2023 in Data on sentencing, National and State Crime Data, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Wednesday, May 31, 2023

New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones.  But it's hard to do.  It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....

[The death penalty] is so unfairly administered.  There's neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That's why it's called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I'm not saying “You're all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty.  I want to do something, if I'm going to do this, that really explains what I've seen.  And that's what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I've seen over a couple of decades.  And by the way, it's going to get awful expensive.  Why reconsider it?  Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

May 31, 2023 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (30)

Tuesday, May 30, 2023

"Restorative Justice as a Democratic Practice"

The title of this post is the title of this new article recently posted to SSRN authored by Daniel McConkie.  Here is its abstract:

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens.  Unfortunately, the state-centered, professionalized system sidelines citizens at every stage, failing to give them voice and power.  Instead, the system should be consistent with criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings.  That form of citizenship is essential to democracy, or rule by the people.

Restorative justice, especially where it is centered in community courts, is an ideal reform to strengthen criminal justice citizenship, and therefore democracy itself.  Restorative justice seeks to address and repair crime’s harms through a deliberative process that fosters mutual understanding and acceptance of responsibility; involves the stakeholders of crime directly in the process; posits a smaller role for the state; and promotes the rehabilitation and reintegration of wrongdoers into civil society.  Restorative justice strengthens democracy by fostering each of the three key aspects of criminal justice citizenship.  First, restorative justice can provide many opportunities for lay participation and collective civic action to address not only individual crimes but also broader issues in a community. Second, restorative justice processes foster deliberation.  They give voice to the key stakeholders and encourage dialogue, understanding, collaboration and creativity in repairing harms.  Third, restorative justice strengthens membership, which refers to citizens’ belonging to a community as civic equals.  It does so by inviting key stakeholders, broadly defined, to play a role in seeking to repair the harms of crime.  This promotes a shared commitment to the social order and accountability to others.

In order to realize the benefits of restorative justice as a democratic practice, reformers should continue to promote grassroots community court experiments that involve as many stakeholders as possible.  These experiments can help to reduce the size of the carceral state.

May 30, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, May 25, 2023

Justice Gorsuch (joined by Justice Jackson) talks up Excessive Fines Clause after SCOTUS majority finds tax forfeiture is a taking

A civil case on the Supreme Court's docket that I have been watching as the Term winds down is Tyler v. Hennepin County, Minnesota, which presented these issues: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.  The Supreme Court this morning handed down a unanimous opinion in Tyler, and the opinion for the Court, authored by Chief Justice Roberts, concludes this way:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U.S., at 49.  A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed.  The taxpayer must render unto Caesar what is Caesar’s, but no more.

Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

But while the Court as a whole dodged the Eighth Amendment's Excessive Fines Clause, a concurring opinion by Justice Gorsuch (joined by Justice Jackson) had lots to say on the topic.  Here are a few passages from a short concurrence:

Given its Takings Clause holding, the Court understandably declines to pass on the question whether the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s claim under the Eighth Amendment’s Excessive Fines Clause. Ante, at 14.  But even a cursory review of the District Court’s excessive-fines analysis — which the Eighth Circuit adopted as “well-reasoned,” 26 F. 4th 789, 794 (2022) — reveals that it too contains mistakes future lower courts should not be quick to emulate.

First, the District Court concluded that the Minnesota tax-forfeiture scheme is not punitive because “its primary purpose” is “remedial” — aimed, in other words, at “compensat[ing] the government for lost revenues due to the nonpayment of taxes.” 505 F. Supp. 3d 879, 896 (Minn. 2020).  That primary-purpose test finds no support in our law. Because “sanctions frequently serve more than one purpose,” this Court has said that the Excessive Fines Clause applies to any statutory scheme that “serv[es] in part to punish.” Austin v. United States, 509 U.S. 602, 610 (1993) (emphasis added).  It matters not whether the scheme has a remedial purpose, even a predominantly remedial purpose.  So long as the law “cannot fairly be said solely to serve a remedial purpose,” the Excessive Fines Clause applies.  Ibid. (emphasis added; internal quotation marks omitted)....

Second, the District Court asserted that the Minnesota tax-forfeiture scheme cannot “be punitive because it actually confers a windfall on the delinquent taxpayer when the value of the property that is forfeited is less than the amount of taxes owed.” 505 F. Supp. 3d, at 896.  That observation may be factually true, but it is legally irrelevant.  Some prisoners better themselves behind bars; some addicts credit court-ordered rehabilitation with saving their lives.  But punishment remains punishment all the same....

Third, the District Court appears to have inferred that the Minnesota scheme is not “punitive” because it does not turn on the “culpability” of the individual property owner.  505 F. Supp. 3d, at 897.  But while a focus on “culpability” can sometimes make a provision “look more like punishment,” this Court has never endorsed the converse view.  Austin, 509 U.S., at 619.  Even without emphasizing culpability, this Court has said a statutory scheme may still be punitive where it serves another “goal of punishment,” such as “[d]eterrence.”  United States v. Bajakajian, 524 U.S. 321, 329 (1998).  And the District Court expressly approved the Minnesota tax-forfeiture scheme in this case in large part because “‘the ultimate possibility of loss of property serves as a deterrent to those taxpayers considering tax delinquency.’” 505 F. Supp. 3d, at 899 (emphasis added).  Economic penalties imposed to deter willful noncompliance with the law are fines by any other name.  And the Constitution has something to say about them: They cannot be excessive.

May 25, 2023 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 08, 2023

Should every state have a dedicated commission to receive complaints about prosecutors?

The question in the title of this post was my first reaction to the news of a commission just created in Georgia.  This AP piece, headlined "Georgia enacts law letting panel punish, oust prosecutors," provides these details:

Gov. Brian Kemp signed a bill into law Friday creating a new commission empowered to discipline and remove wayward prosecutors, saying it will curb “far-left prosecutors” who are “making our communities less safe.”

Kemp made the remarks at the Chatham County Sheriff's Office in Savannah, where he signed the measure establishing the Prosecuting Attorneys Qualifications Commission, which will launch July 1 and start accepting complaints Oct. 1....

The efforts continue anti-crime campaigns that Republicans ran nationwide last year, accusing Democrats of coddling criminals and improperly refusing to prosecute whole categories of crimes, including marijuana possession.

Georgia Democrats strenuously opposed the measure, saying the Republican legislative majority was seeking another way to impose its will on Democratic voters at the local level....

Crucially, the Georgia law mandates that a prosecutor must consider every case for which probable cause exists and can’t exclude categories of cases from prosecution. Experts have said that considering every case individually is unrealistic, because prosecutors turn down many more cases than they charge. However, it’s unclear if the new law will change prosecutors’ behavior or just lead them to avoid talking publicly about charging decisions.

The eight-member commission will include six current or former prosecutors and two other lawyers. It will oversee DAs and solicitors general — elected prosecutors who handle lower-level crimes in some counties....

The law was born from frustrations involving a white Republican prosecutor in suburban Atlanta who was indicted for bribery related to sexual harassment claims. He lingered in office until he pleaded guilty to unprofessional conduct and resigned in 2022.

Some Democrats were interested in similar measures for a time because of Jackie Johnson, a coastal Georgia DA who was charged with hindering the police investigation into the 2020 killing of Ahmaud Arbery. Democratic interest cooled after voters ousted Johnson.

The rules could also target prosecutors who declared before Roe v. Wade was overturned in 2022 that they wouldn't prosecute abortion-related offenses. Seven current Georgia DAs fit that description.

Though the AP piece leans into the political dynamics driving some debates over prosecutorial behaviors, this official press release from Gov Kemp notes that the new Georgia Commission can and will be policing local prosecutors on various fronts:

Governor Brian P. Kemp, accompanied by First Lady Marty Kemp, members of the General Assembly, district attorneys and solicitors-general, and other local and state leaders, signed Senate Bill 92 today, establishing the Prosecuting Attorneys Qualifications Commission (PAQC). The PAQC will serve as a valuable oversight mechanism for district attorneys and solicitors-general across Georgia, ensuring these officials fulfill their constitutional and statutory duties....

The bill establishes the following grounds for the removal or involuntary retirement of a district attorney or solicitor-general from office:

  • Mental or physical incapacity that interferes with the performance of duties that is likely permanent;
  • Willful misconduct in office;
  • Willful and persistent failure to carry out statutory duties;
  • Conviction of a crime involving moral turpitude;
  • Conduct prejudicial to the administration of justice which brings the office into disrepute; or
  • Knowingly authorizing or permitting an assistant district attorney or assistant solicitor-general to commit any of the aforementioned acts.

To parrot this press release, I sincerely think it would be a great idea to have a "valuable oversight mechanism for district attorneys" in every state (and for federal prosecutors, too).  I have often heard from persons who sincerely believe they have witnessed a prosecutor engage in "willful misconduct" or "conduct prejudicial to the administration of justice which brings the office into disrepute"; so creating a central commission (comprised mostly of former and current prosecutors) to hear complaints about, and conduct any needed investigations of, the work of prosecutors makes a lot of sense to me. Of course, like many government entitles, if unduly politicized or problematically ideological, this commission could possibly do more harm than good.  But, given the general lack of transparency and accountability for prosecutorial actions and practices, I am inclined to be hopeful about this new PAQC.

May 8, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, May 07, 2023

"Evidence Rules for Decarceration"

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

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials.  Second, the system is too punitive and must be reformed.  One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution.  And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration.

While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial.  This Essay examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state.  It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals — without regard for the truth, fairness, or justice of the outcome.  In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.”

May 7, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Sunday, April 30, 2023

"Against the Recidivist Premium"

The title of this post is the title of this paper authored by Guha Krishnamurthi recently posted to SSRN.  Here is its abstract:

The American penal system is broken.  The state of mass incarceration is wreaking havoc on individuals, families, and communities. And these effects are unequally levied upon and borne by communities of color and the poor.  This state of affairs is morally odious and intolerable.  One main component of mass incarceration is the deployment of the “recidivist premium” — that is, the imposition of additional punishment on repeat offenders compared to first time offenders who commit the same offense.  This Article contends that, in light of our reasons for punishment, the recidivist premium is unjustified and indeed harmful.  As a result, I argue that, on our current state of information, we should abolish our penal system’s deployment of the recidivist premium.

This Article sets forth the comprehensive case against the use of the recidivist premium.  First, I show that the recidivist premium does not accord with our retributive theories of desert.  Then, I explain that, on our best empirical evidence, the recidivist premium does not further the principal consequentialist benefits of punishment, namely deterrence and incapacitation.  Finally, I show that the recidivist premium does not advance the desiderata of sentencing design, including consistency, calculability, predictability, and efficiency.

To live up to our ideals of equality and human dignity, we must restore the rights of those convicted of crimes when they reenter society and treat them as full members of their polity.  Any differential treatment must be specially and rigorously justified.  The recidivist premium does not satisfy that demanding standard, and thus it should not stand.

April 30, 2023 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (11)

Sunday, April 09, 2023

Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules

The highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission last week (basics here) concerns a major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" (discussed here).  But the most consequential amendment might prove to be new provisions altering how criminal history will impact guideline calculations.  USSC Chair Reeves discussed in his statement at last week's hearing (just some of) the particulars:

[W]e have proposed addressing two discrete ways in which the sentencing guidelines punish people for having a “criminal history.”  The first proposal aimed to reduce or eliminate the use of “status points,” which are sentencing enhancements given to people who committed a crime while on parole or probation.  As we heard from many commenters, status points often amount to a form of “double penalty.”...  Moreover, Commission research strongly suggests that status points’ ability to predict recidivism -- a core justification for their use -- may be extremely weak.

In light of all this, the Commission’s final policy eliminates status points in the vast majority of criminal cases. For a limited category of defendants with extensive criminal histories, we are cutting the effect of status points in half, reflecting the idea that this tool may sometimes achieve other goals beyond predicting recidivism.

The second “criminal history” proposal we issued sought to fulfill a core directive Congress gave the Commission at its inception.  That directive says that, in general, “a first offender who has not been convicted of a crime of violence or an otherwise serious offense” should not be incarcerated.  The Commission’s proposal sought to define who met this standard and what the consequences for meeting this standard should be.

Ultimately, we decided to answer both questions broadly.  Our final policy provides a larger reduction in sentence for a larger category of people than the status quo.  While we agreed to limit this reduction in a limited set of circumstances, we also agreed to give judges discretion to expand non-carceral options to more people.

These two items concerning "status points" and "zero-point-offenders" are the big ticket criminal history matters, though the Commission also adds to its examples of overrepresented criminal history cases involving criminal history points resulting from marijuana possession convictions. 

As detailed here, the Commission has officially sought comment on whether it should make the key parts of its new criminal history amendment "available for retroactive application."  The Commission states that a "retroactivity impact analysis will be made available to the public as soon as practicable."  I suspect that analysis will show these criminal histpry changes could impact many thousands, perhaps tens of thousands, of federal prisoners.  This June 2022 report from the Commission detailed that "over one-third of federal offenders (37.5%) received two 'status points' under §4A1.1(d) as part of their criminal history scores."  And this 2022 USSC Quick Facts accounting of federal prisoners noted that almost 30% "have little or no prior criminal history."  Though not all these populations would clearly benefit from retroactive application of the new criminal history rules, a sizeable number likely would.   

Retroactivity dynamics aside, it appears from Table 23 in the USSC's latest annual data on criminal history scores that over 60% of federal defendants sentences in fiscal year 2022 had either had zero criminal history points (33.9%) or received status points (26.7%).  In other words, the data suggest that more future federal defendants will be impacted by these criminal history amendments than won't be.  In short, these are relatively small criminal history changes sure to have a relatively big impact.

April 9, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (19)

Wednesday, March 29, 2023

Tenth Circuit deepens split over considering retribution in revocation of federal supervised release

In this post a few weeks ago, I flagged a recent Congressional Research Service document which fully detailed a jurisprudential divide among the circuits over justifications for supervised release revocation.  As that document detailed: 

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

Notably, yesterday a Tenth Circuit panel jumped into the action and agreed with the minority of other circuit via US v. Booker, No. 22-7000 (10th Cir. March 28, 2023) (available here). Here is how the 17-page opinion in Booker gets started:

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum.  For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution.  See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error.  Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution.  Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker’s twenty-four-month sentence.

Because of the plain error issue, this new Booker case would likely not make a good vehicle for SCOTUS to resolve this deep circuit divide over supervised release decision-making. (And, as a silly aside, I certainly would not be keen to have another major "Booker" sentencing ruling.)  But, given US Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts.  SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

March 29, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)