Monday, December 28, 2020

"Algorithmic Decision-Making When Humans Disagree About Ends"

The title of this post is the title of this notable new paper authored by Kiel Brennan-Marquez and Vincent Chiao available via SSRN.  Here is its abstract:

Which interpretive tasks should be delegated to machines? This question has become a focal point of “tech governance” debates; one familiar answer is that machines are capable, in principle, of implementing tasks whose ends are uncontroversial, but machine delegation is inappropriate for tasks that elude human consensus.  After all, if even (human) experts cannot agree about the nature of a task, what hope is there for machines?

Here, we turn this position around.  In fact, when humans disagree about the nature of a task, that should be prima facie grounds for machine-delegation, not against it. The reason comes back to a fairness concern: affected parties should be able to predict the outcomes of particular cases.  Indeterminate decision-making environments — those in which human disagree about ends — are inherently unpredictable in the sense that, for any given case, the distribution of likely outcomes will depend on a specific decision-maker’s view of the relevant end. This injects an irreducible — and, we argue, intolerable — dynamic of randomization into the decision-making process from the perspective of non-repeat players.  To the extent machine decisions aggregate across disparate views of a task’s relevant ends, they promise improvement, as such, on this specific dimension of predictability; whatever the other virtues and drawbacks of machine decision-making, this gain should be recognized and factored into governance.

The essay has two halves. In the first, we elaborate the formal point, drawing a distinction between determinacy and certainty as epistemic properties and fashioning a taxonomy of decision-types.  In the second half, we bring the formal point alive through the case study of criminal sentencing.

December 28, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 21, 2020

"Equality in Multi-Door Criminal Justice"

The title of this post is the title of this notable essay authored by Richard Bierschbach now available via SSRN. Here is its abstract:

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex.  This essay, written for a symposium on multi-door criminal justice, explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. 

Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders.  But we need not view that as fatal to multi-door criminal justice.  Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals.  At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones.  The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal — or unequal in more palatable ways — than what we have now.

December 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, December 19, 2020

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Thursday, December 17, 2020

"Expanding the Reach of Progressive Prosecution"

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

"Progressive Prosecutors" are flourishing in jurisdictions across the country.  The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be.  This Essay explores this theme by discussing, first, the rise of progressive prosecution and, second, how this movement’s initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor’s role.  It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals.

Even as progressive prosecution remains an ongoing source of reform in liberal jurisdictions, it is important to consider the movement’s impact outside of those jurisdictions. Nonprogressive prosecutors and the voters who elect them are also open to reform.  But they are not likely to embrace the “progressive” label or its accompanying rhetoric.  The key to the overall success of progressive prosecution in the long run may be to invite these prosecutors in and offer them an alternative frame for prosecutor-driven reform.  A new unifying norm of prosecutorial behavior, better suited to the modern era, could turn out to be the most important legacy of progressive prosecution.

December 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 14, 2020

"Experience to Action: Reshaping Criminal Justice After COVID-19"

Final-Report-Banner-WebsiteI have noted repeatedly (most recently here) the great work being done by a special commission created by the Council on Criminal Justice (CCJ) titled the "National Commission on COVID-19 and Criminal Justice."  This commission today released this important new report with the title that I used for the title of this post.  Here is part of the report's executive summary:

This report, Experience to Action: Reshaping Criminal Justice After COVID-19, provides criminal justice policymakers and practitioners with a priority agenda to prepare the nation’s criminal justice system for future public health crises.

Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields.  Launched at the end of July, the Commission received multiple reports and extensive testimony from leading national and local experts.  Key findings include:

  • Crime: Property crime and drug offense rates fell from 2019 to 2020, but violent crime increased significantly. In particular, homicide rates increased by 42% during the summer months (June to August) in a sample of more than 20 medium to large cities, and by 34% in the fall (September to October).

  • Prisons: Prison populations have been reduced by about 5% nationally. On average, the COVID-19 mortality rate within prisons (61.8 deaths per 100,000 people in prison) was double the mortality rate for the general population, after adjusting for the gender, age, and race/ethnicity of those incarcerated.  There are also substantial differences among states in the rate of prison infections and deaths.

  • Jails: Jail populations fell by 31% in the early weeks of the pandemic but have been slowly climbing toward prior levels since May. During the pandemic, the rates at which people have been rebooked on new charges 30, 60, and 180 days after release remain below pre-pandemic rates. Unfortunately, data regarding COVID-related infections and deaths in jails is scarce.

  • Racial and Ethnic Disparities: The COVID-19 pandemic may have exacerbated some racial and ethnic disparities in the criminal justice system.  As jail populations began to fall in March at the onset of the pandemic, there were increases in the proportion of people who were Black, who were booked on felony charges, who were male, and who were 25 or younger.  These changes in the population composition persisted even as jail populations began to rise again in early May.

  • Substance Use and Mental Health Disorders: More than 40 states have reported increases in opioid-related fatalities since the onset of the pandemic.  Mandatory lockdowns, restrictions on movement, social distancing guidelines, orders limiting access to facilities for nonessential workers, and the absence of in-person treatment have created gaps in the system's ability to identify and monitor the needs and legal requirements of people with substance abuse and mental health disorders, and to intervene when they are in distress.

  • Budgets: State and local governments face daunting budget deficits that will worsen as the pandemic wears on, and unemployment levels remain high.  Because criminal justice operations (law enforcement, courts, and corrections) are funded more heavily by state and local governments than most other government functions, revenue shortfalls will disproportionately damage the criminal justice system without effective policy interventions....

The report’s findings and recommendations identify weaknesses in the nation’s criminal justice response to the pandemic and provide concrete suggestions for how to build a stronger, fairer, and more resilient system.

As detailed here, there is a webinar to discuss this report is scheduled for midday tomorrow.

December 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, December 13, 2020

"Transforming the Progressive Prosecutor Movement"

The title of this post is the title of this notable paper newly posted to SSRN and authored by Darcy Covert. Here is its abstract:

It is a near universally accepted principle that prosecutors are the most powerful actors in the criminal system.  In response, a new movement has emerged: Its proponents argue that, by electing progressive district attorneys, we can use the power of prosecutors to end mass incarceration and restore fairness to the criminal system without changing a single law.  They propose to accomplish these goals primarily by declining to prosecute certain low-level crimes, expanding diversion programs, and replacing hardline assistants with reform-minded outsiders.  Academics, activists, presidential candidates, and even a Supreme Court Justice have endorsed this movement as the key to change.

With little sustained scrutiny of this development, this Article takes this movement’s objectives as they are and asks whether, as currently framed, it is likely to achieve them.  The conclusion is simple: no.  This movement acknowledges the “breathtaking” power that prosecutors yield, then asks its candidates to use that power for good and trusts them to do so.

This Article offers a more efficacious prescription: if you are a prosecutor truly committed to transforming the criminal system, relinquish your power.  Do not trade the rhetorical appeal of being tough on violent crime for political capital to spend on lenience for low-level offenders.  Advocate for the reallocation of funds from prosecutors’ offices — rather than the expansion of diversion programs — to social services to keep the mentally ill, substance addicted, and poor out of the criminal system.  Rather than hoping to prevent wrongful convictions and over-punitiveness by changing who works in your office, lobby for a stronger indigent defense system and more external limits on prosecutorial power.  To combat racial inequities in the criminal system, support efforts to strengthen defendants’ equal protection rights, instead of simply publishing statistics.  Through these shifts, we can harness this moment when criminal justice reform tops the national agenda to implement truly transformative change.

December 13, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, December 09, 2020

"Invisible Prisons"

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

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration.  While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty.  Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing.  This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory.  The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions.  Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions.  As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.

Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice.  To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing.

December 9, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 07, 2020

"Police Prosecutions and Punitive Instincts"

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

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

December 7, 2020 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Friday, December 04, 2020

"Unpunishable Criminals"

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

Criminal law strives to do justice. It aims to give wrongdoers the punishment they deserve and the punishment that will. But sometimes justice is out of reach.  Many criminals will never face punishment because circumstance or the law itself immunizes them from sanction.

This Article is the first to conceptualize the large and varied set of what it calls “unpunishable criminals.”  They include recipients of presidential pardons, deceased criminals, diplomats, fugitives, and those whose crimes occurred long ago, among several others.  Does criminal law’s inability to punish these criminals mean that it must wash its hands of them and their victims entirely?

Presently, the answer seems to be “yes.”  But this Article argues that criminal law can do better—it should permit the prosecution of unpunishable criminals.  Trial is an independent source of value. It uncovers truth, allows victims to tell their own stories, and condemns wrongdoing.  With appropriate procedural safeguards, prosecution can advance these values even when punishment cannot follow.

December 4, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, November 22, 2020

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

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

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

November 22, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 19, 2020

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 15, 2020

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, November 13, 2020

"Redeeming Justice"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Lopez, Terrell Carter and Kempis Songster.  Here is its abstract:

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison.  According to the United States Supreme Court, this sentence represented a determination that they were irredeemable.  This article will interrogate the legal determination that there are some human beings who are incapable of redemption.  In doing so, the article grapples with a basic, yet weighty question.  Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity.  Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.

Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system.  One that elevates humanity, not deprives it.  One that creates opportunities for healing and human development, not denies it.  As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption.  Rather, the law should restore hope that change is always possible.

November 13, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, November 05, 2020

"The Compassionate Computer: Algorithms, Sentencing, and Mercy"

The title of this post is the title of this notable new article by Netanel Dagan now available on SSRN. Here is its abstract:

Sentencing scholarship largely neglects the possibility of applying algorithms to mercy.  This ‎doesn’t come as a surprise: Is there any greater contradiction than between algorithmic decision-‎making and the compassionate, human and interpersonal nature of mercy?   Such polarity brings ‎some theorists and policy makers to reject algorithm-based sentencing altogether. 

In this chapter, ‎we offer a preliminary attempt at integrating mercy within algorithmic sentencing.  First, we ‎distinguish between two main concepts of mercy — justice and pure — and different types of ‎algorithms — deductive and inductive.  Second, we argue: (a) As long as justice mercy can be ‎reduced to a proportionality-related calculus (e.g., extra harsh suffering) it can be introduced ‎through a deductive algorithm; (b) Pure mercy, being unpredictable, and deviating from justice, ‎can be incorporated mainly through an inductive algorithm.  This is true, at least to some extent, ‎even for theories that permit deviation from equality when exercising mercy.‎

November 5, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, November 04, 2020

"Retributivism and Over-Punishment"

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

I argue that a retributive penal philosophy should not be blamed for contributing to our present epidemic of mass incarceration and tendency to over-punish.  My paper has three parts.  In the first, I make a number of conceptual points about retributivism that reveal it to have the resources to combat our current crisis.  In the second part, I construct desert-based arguments for decriminalizing some offenses that have led too many persons to be punished.  In the third part, I suggest that desert favors an expansion in the scope and number of defenses that have the potential to retard the severity of punishment.  If my arguments are sound, retributivism should be regarded as part of the solution to our predicament rather than its cause.

November 4, 2020 in Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (0)

Friday, October 30, 2020

"Criminal Justice Citizenship"

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

The American criminal justice system is fundamentally democratic and should reflect an ideal of citizenship that is equal, participatory, and deliberative.  Unfortunately, the outcomes of criminal cases are now almost always determined by professionals (prosecutors, defense attorneys, and judges) instead of by juries.  This overly bureaucratized system of adjudication silences the voice of the people.  A better system would strengthen “criminal justice citizenship,” which refers to the right of the citizenry to participate, directly and indirectly, in the criminal justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are membership, participation, and deliberation. Membership refers to who can participate and whether they can participate on an equal basis.  Where the justice system adheres to this principle, people enjoy a greater sense of belonging, solidarity, and trust in government.  Participation refers to public participation in democratic processes, such as jury service.  Deliberation refers to structured dialogues between lay persons that affect governmental decisions.  Institutions and procedures must be designed to give the people an important role in government, but the nature and extent of that role should be limited by other considerations, such as procedural accuracy and preventing racial discrimination.

This theory of criminal justice citizenship has important applications to jury trials.  Regarding membership, providing broad and equal opportunities for jury service is necessary for democratic legitimacy and fair and effective deliberations. Regarding deliberation, jury trials need to be more transparent; the prevailing procedures of jury deliberations need to be modified; and unanimous verdicts must be required to protect the voice of potentially marginalized jurors.  Regarding participation, jury trials are so rare that it will be necessary to improve criminal justice citizenship by democratically reforming other aspects of the criminal justice system, such as plea bargaining.  The overarching principle is that the people need a more significant role in criminal adjudication, not only because popular participation is good for defendants, but also because it strengthens American democracy.

October 30, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

"How Criminal Law Lost Its Mind"

The title of this post is the great title of this new Boston Review commentary by Michael Serota focused on the need for mens rea refrom.  Here is an excerpt:

In our era of mass incarceration, most would say that we need fewer criminal convictions and less punishment.  But exactly what conduct are we prepared to decriminalize, and which sentences are we ready to shorten?  These are hard questions in part because low-level, non-violent offenders account for only a small percentage of the total number of incarcerated people; the vast majority of people in prison are there for serious offenses, including homicide, assault, and drug trafficking.  But it’s also true that our most serious offenses are being applied in overly broad ways that conflict with our moral intuitions about guilt.  To commit a crime, after all, is not just to do a bad thing.  Conduct becomes criminal only when it is accompanied by a blameworthy state of mind. Or at least that’s the idea behind the legal principle of mens rea (Latin for “guilty mind”).

All too often, this principle is ignored by our criminal justice system — both in who it convicts of crimes and in the length of sentences it hands out.  That should change. Good intentions may not be enough to shield someone who stumbles into harm’s way from civil liability, but they should keep individuals outside the reach of the criminal justice system. And even for those who act with a guilty mind, the criminal justice system should recognize important moral gradations between culpable mental states.  Reforming our criminal codes in these ways won’t rid our system of all its problems, but doing so is an important part of a just vision for change.

October 28, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Monday, October 26, 2020

"Populist Prosecutorial Nullification"

The title of this post is the title of this notable paper authored by Kerrel Murray and available via SSRN.  I flagged this paper in a long list when it first showed up earlier this year.  But with so much voting going on these days, I thought it now especially timely to note the paper again and reprint its abstract:

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt.  Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it.  Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws.  Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework.  To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges.  In so doing, it finds that local elections make all the difference.  There may well be something suspect about unilateral prosecutorial negation of democratically enacted law.  Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification.  It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement.  These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail.  Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification.  Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

October 26, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, October 08, 2020

"Decarceration and Default Mental States"

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

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation.  I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform.  Therefore, I suggest an alternative frame through which to view mens rea reform efforts — a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.  To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses.  The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements.  Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable — problems of structure, rather than scope.

Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics.  I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights — these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment.  Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement.  Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.

October 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Wednesday, October 07, 2020

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.  

October 7, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, October 03, 2020

"#MeToo and Mass Incarceration"

The title of this post is the title of this new piece on SSRN authored by Aya Gruber.  Here is its abstract:

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020).  The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities.  Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough.  This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned.  History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities.

This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built.  The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform.  I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

October 3, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 26, 2020

"The Perils of 'Old' and 'New' in Sentencing Reform"

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

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states.  While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy.  This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea.  It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond.  It then examines debates about two conceptual issues — selective incapacitation and equality — to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting.

Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration.  It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states.  It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

September 26, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (0)

Wednesday, September 23, 2020

"The Unified Theory of Punishment"

The title of this post is the title of this new revised book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

Most of the history of the philosophy of punishment is about our making choice of which theory to support and defend against all the rest.  Over time, there have been several attempts aiming to bring two or more theories together in new hybrid formulations.  This penal pluralism can be too quickly dismissed as conceptually contradictory.  At face value, there is a clear and undeniable clash between, say, supporting retributivism and consequentialist views like deterrence or rehabilitation.

For example, the punishments that retributivism might support as ‘deserved’ may lack or run counter to what might cause some desired effect.  Traditionally, the way this clash has been handled most frequently — as seen in Chapter 5 — is to say the justification for deciding who to punish is governed by one goal (e.g., typically retributivist desert) and the amount of punishment distributed to any deserving person is determined by a second, different goal (e.g., usually deterrence).  In giving each goal a different space, they avoid confrontation.  However, what this formula gains in practicability it loses in showing any theoretical coherence.  As we have seen, if desert is so important to justify punishment, why is it irrelevant to setting its amount?  And what necessary connection exists between them holding the two together as one integrated theory? For these reasons, critics have claimed that hybrid theories are unstable at best and incoherent at worst.  Given the way most are formulated, it is easy to agree — but yet it would be a serious mistake to write off the possibility and plausibility of hybrid theories if they might overcome those concerns.

This newly rewritten chapter for this second edition introduces and defends a new hybrid theory: the unified theory of punishment.  Instead of taking a side between retributivist and other positions, the unified theory is an attempt to show how multiple penal goals can be brought together coherently in a single framework, or what might be called a ‘grand unifying theory’ of punishment succeeding where others have failed.  I will argue that not only is the unified theory possible, but that it is most compelling and best able to address the complexity of criminal cases and deliver multiple benefits in a measure and evidenced way, providing a new way of expanding restorative practices as well.

The structure of this chapter is as follows.  First, it begins examining penal pluralism as found in sentencing guidelines, but lacking any framework for how different penal purposes can be coherently applied in any consistent way.  Second, I will provide an overview of philosophers starting primarily with Hegel who first attempted to create a new unified theory.  Thirdly, I will next formulate my own model for how a unified theory might work.  Key to this model is our ability to evidence whether its overarching aim — of protecting and maintaining rights — is fulfilled in a significant change in my thinking.  The chapter then considers several possible objections.

September 23, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, September 22, 2020

"Virtual Reality: Prospective Catalyst for Restorative Justice"

The title of this post is the title of this new article now on SSRN authored by Kate Bloch. Here is its abstract:

A 2018 U.S. Department of Justice report assessing data from 30 states found that 83% of individuals released from state prisons in 2005 were rearrested within nine years.  When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention.  In countries around the world, restorative justice has been emerging as a promising candidate.  It generally involves an interactive process in which stakeholders identify and grapple with harms caused by the crime. 

But many environments lack the resources to invoke its benefits.  While restorative justice takes various forms, the crux of each variant involves perspective taking — seeing the harm and its consequences through the eyes of those who experienced it.  Cognitive science research suggests that the emerging technology of virtual reality provides an innovative and often especially compelling approach to perspective taking.  Embodying an avatar offers the opportunity to experience the world as another and could make virtual perspective-taking encounters a valuable introduction for subsequent in-person encounters or offer a perspective-taking opportunity when in-person encounters are not practical or prudent.  This analysis explores how virtual reality could become a catalyst for restorative justice.

September 22, 2020 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

Monday, September 21, 2020

"Wage Theft Criminalization"

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

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace.  The phrase invokes a certain moral clarity: theft is wrong.  The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished.  Harshly.  Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes to reach wage theft.

In this Article, I examine the drive to criminalize wage theft.  In the literature on workers’ rights, “wage theft” has been accepted uncritically as a distinct problem.  But the literature fails to grapple with what makes wage theft clearly distinguishable from other abusive practices endemic to capitalism.  For scholars concerned about worker power and economic inequality, does classifying one class of conduct “wage theft” actually serve to legitimate the other injustices of the labor market?

Further, the literature on wage theft has failed to reckon with the stakes of using criminal law and incarceration as the tools to remedy workplace violations.  Absent from the discourse on wage theft is any engagement with one of the most vital contemporary movements to confront structural inequality: the fight to end mass incarceration.  Despite insistence from proponents of wage theft criminalization that their focus is on society’s most marginalized, particularly poor people of color, these advocates have turned to a criminal system that is widely viewed as inimical to the interests of those same marginalized populations.  Moreover, in calling for criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and constructed a hyper-policed population.  By resituating wage theft within the literature on mass incarceration, I examine the limitations of using criminalization to redress economic injustices.  I frame pro-criminalization arguments within the growing literature and activist discourse on decarceration and abolition, examining why criminalization of wage theft is and might be particularly problematic.

September 21, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, September 16, 2020

"Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps"

The title of this post is the title of this notable new report from the Alliance for Safety and Justice.  Here is how the report's Executive Summary gets started:

Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps is a first-of-its-kind national study of Americans’ unmet safety needs and public safety policy preferences.  In a moment of unprecedented change — and growing consensus on the need for new approaches to public safety — this report aims to fill critical gaps in information, to help point decision-makers toward a new set of safety solutions that can better serve vulnerable Americans, improve public safety and stop the cycle of crime.

Despite dramatic increases in safety and justice spending over the last several decades, few of those expenditures are informed by the needs of Americans lacking safety or consistently aligned with Americans’ policy preferences.  As concerns about spending and criminal justice grow, there’s never been a more important time to ask some fundamental questions about safety.  What are the gaps in safety that people impacted by crime, violence and criminal justice experience?  What are the priority safety investments that matter the most to Americans of all walks of life?

In June of 2020, over 4,000 Americans were surveyed about their experiences with safety and attitudes about safety policy.  In particular, the survey engaged with people vulnerable to the cycle of crime, including crime victims, people experiencing mental health or substance abuse challenges, and those living with past convictions, as well as voters of all backgrounds, regardless of experience.

As the report details, there is remarkable alignment between gaps in safety that vulnerable people face and the public safety policy preferences that most all Americans support  — policy preferences that would address those very gaps.  Broad consensus exists at the neighborhood level and across different demographics: public safety policies and investments should prioritize violence prevention, recovery, mental health, reentry and the most effective strategies to stop the cycle of crime, more than incarceration.  It’s time for federal, state and local expenditures to match these urgently needed and popularly supported priorities.  It’s time for Shared Safety.

September 16, 2020 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, September 13, 2020

"Revisiting Hate Crimes Enhancements in the Shadow of Mass Incarceration"

The title of this post is the title of this new paper authored by Shirin Sinnar and Beth A. Colgan.  Here is its abstract:

Although civil rights advocates have largely supported hate crimes laws over the last four decades, growing concern over mass incarceration is now leading some to question the focus on enhancing prison sentences.  This Essay explores two alternatives to the traditional sentence enhancement model that might retain the expressive message of hate crimes laws — to convey society’s particular condemnation of crimes of bias — while relying less heavily on police and prisons: the reformation of victim compensation programs to help victims and targeted communities and the application of restorative justice processes to hate crimes.  Each of these alternatives presents complications, but both offer sufficient potential to justify further exploration.

September 13, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 11, 2020

"Have Problem Solving Courts Changed the Practice of Law?"

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

Drug courts started thirty years ago in the United States.  The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach.  Has this happened?  Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law?  Have these courts actually been a “monumental change?”  The simple answer is no.  These courts have changed how some defendants are treated some of the time.  But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small.  And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration.  Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts.  This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works.  Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.

September 11, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, September 10, 2020

"Punishment, Rewards and the (Relative) Importance of Desert"

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

Philosophers and legal theorists have long been interested in the idea of desert.  In this work I intend to demonstrate that the importance of desert is, at times, overrated, leading thinkers to adopt rather extreme positions.  I believe that the concept of desert is important in some cases, but desert is by no means central to our thinking of punishment and reward, nor should it be.  Even though the concept of desert is generally addressed in matters regarding retribution, I will argue that this concept should not be the basis upon which we build our constructs of punishment and reward.  Rather, we should consider the impact that luck has on our lives.  If we do so, those considerations would change our perception of the concept of desert.

September 10, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, September 02, 2020

Notable exploration of criminal justice structures for "emerging adults"

This morning I received an email altering me to a big new report on an interesting modern topic that is focused on a population and a region especially near to me heart.  Here is the text of the email, which provides a link to the nearly 100-page report and a useful overview of its coverage:

Today, Juvenile Law Center released “Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region,” a report on criminal justice reforms for young people between the ages of 18 and 24.  The report, funded by a grant from the Joyce Foundation, cites new research which shows that these “emerging adults” share many of the same characteristics as teens in the juvenile justice system, yet they are treated very differently.  Emerging adults also represent a disproportionate share of the justice-involved population, accounting for a third of all criminal arrests nationwide.  They also experience the worst racial disparities in incarceration and arrest rates of any age group.

“Racism permeates our criminal justice system at every stage and available data suggests racial and ethnic disparities are worst for those in the emerging adult population,” said Katrina L. Goodjoint, Staff Attorney at Juvenile Law Center and co-author of the report. “In Illinois, 9.4 Black emerging adults are arrested per every white emerging adult. Eliminating mass incarceration and reducing racial disparities necessarily require reforming the justice system’s punitive treatment of emerging adults.”

Juvenile Law Center’s report highlights the need for a new, developmentally appropriate approach to criminal justice involvement for this population.  The report includes research showing that many areas of the law — from new federal tobacco regulations to extended access to health insurance under the Affordable Care Act — already recognize and make accommodations for the developmental characteristics of emerging adulthood.  Justice systems around the country have also begun to do the same.  The report describes some of the new initiatives targeted at this population, including:

  • raising the age of juvenile court jurisdiction
  • youthful offender statutes
  • diversion programs, young adult courts, and other specialized criminal justice programs for emerging adults
  • modifications to mandatory sentences and other harsh penalties
  • expungement of records
  • expanded access to supports and services outside the criminal justice system.

“People do not magically transform from children to adults on their 18th birthdays,” said Karen U. Lindell, Senior Attorney at Juvenile Law Center and one of the report’s authors. “Other areas of the law have long recognized that fact — limiting young adults’ abilities to engage in risky activities, like drinking or purchasing firearms, and offering them additional support, like greater health insurance coverage and special education services.  Yet the criminal justice system is just beginning to acknowledge the distinctive needs and characteristics of emerging adults.”

The report released today focuses on the laws and policies affecting emerging adults in six Great Lakes region states: Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. For each of these states, the report provides a comprehensive overview of the current legal landscape for emerging adults, including available data on justice-involved emerging adults, relevant criminal and juvenile justice statutes, existing criminal justice programs, and other systems serving emerging adults in the state.  By providing an in-depth analysis of the current legal landscape, this report lays the foundation for meaningful criminal justice reform for emerging adults — both in the Great Lakes region and throughout the country.

September 2, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, August 31, 2020

"What We Got Wrong in the War on Drugs"

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

The War on Drugs is effectively over.  Drugs won.  This essay addresses some of the mistakes we made in that futile effort.  Allowing racism to motivate action and impede reform was a primary error.  So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. 

In whole, we largely addressed the narcotics trade as a moral failing rather than a market — and never got around to recognizing the size and shape of that market or to using market forces to control it.  Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

August 31, 2020 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Sunday, August 30, 2020

"The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law"

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

A growing trend in philosophical commentary about penal justice is what I loosely call criminal law skepticism.  The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems.  Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. 

I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane.  No single argument can refute them all.  Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective.  I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary.  No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.

August 30, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Friday, August 21, 2020

Justice or injustice?: Golden State Killer gets LWOP for at least 13 murders and dozens of rapes after deal to avoid death penalty

As reported in this NBC News piece, a "former police officer known as the Golden State Killer for his crime spree across California in the 1970s and '80s was sentenced Friday to consecutive life sentences without the possibility of parole."  Here is more about the crimes and punishment:

Joseph DeAngelo, 74, who had eluded authorities for decades, pleaded guilty in June to 13 counts of first-degree murder and 13 rape-related charges in a deal that spared him the death penalty.  He also publicly admitted to dozens more sexual assaults for which the statute of limitations had expired. Sacramento County Superior Court Judge Michael Bowman said Friday in a rare sentencing statement that DeAngelo would "meet his death confined behind the walls of state penitentiary."

"The court is not saying DeAngelo does not deserve to have the death penalty imposed," Bowman said, but given the age of the defendant and victims, a life sentence made more sense. Bowman said he hopes "survivors will find some resolution" after DeAngelo is permanently placed behind bars.

DeAngelo on Friday made a short statement in court addressing victims and their families. "I’ve listened to all your statements. Each one of them. And I’m truly sorry to everyone I’ve hurt. Thank you your honor," he said.

Prosecutors said DeAngelo admitted to harming 87 victims in 53 separate crimes spanning 11 California counties. As part of the plea agreement, he was required to register as a sex offender and pay restitution to the victims or their families, as well as any fees or fines. Assistant Chief Deputy District Attorney Thien Ho has said the scope of DeAngelo's crime spree is "simply staggering, encompassing 13 known murders and almost 50 rapes between 1975 and 1986."

DeAngelo's crime spree started while he was working as a police officer in Exeter, a northern California community in the San Joaquin Valley near the foothills of the Sierra Nevada. Over the years, his crimes morphed from stalking properties to serial rape and murder. DeAngelo went on to marry and raise his own family, escaping investigators' efforts to find him for decades, before he was arrested in Sacramento County in 2018. It is believed to be the first high-profile case to have been cracked with genetic genealogy. Authorities said they used "discarded DNA" to confirm that DeAngelo was the man generations of authorities and citizen sleuths had searched for....

Some of DeAngelo's victims are in their 80s and 90s. Some are dead. But those who were willing and able spent the week addressing DeAngelo in court in anticipation of his sentencing. Phyllis Henneman said she was 22 years old and "young and carefree" when her life changed forever in June 1976. She was home alone with her sister while their dad was out of town when DeAngelo attacked.

"Joseph DeAngelo, henceforth called 'the devil incarnate,' broke into my home, blindfolded me, tied me up, threatened my life with a knife and raped me," she said, describing DeAngelo's modus operandi, which also included tying up partners and spending hours in homes, leaving his victims wondering what terror would come next. "Life as I knew it irrevocably changed that day," she said in the statement read by her sister, Karen Veilleux. But DeAngelo's arrest and upcoming sentencing meant "his victims and their families are now free."

A recent HBO documentary, "I'll Be Gone in the Dark," detailed the gruesome attacks and the desperate effort to find the killer, even as the years wore on. The documentary is based on crime writer Michelle McNamara's book of the same name, in which she recounted her own obsessive effort to uncover the identity of the Golden State Killer and conviction that genetic genealogy would help her do it. McNamara, the wife of comedian Patton Oswalt, died in 2016, two years before DeAngelo's arrest. Bowman on Friday thanked McNamara by name, along with law enforcement, other citizen detectives and DeAngelo's victims for their "dogged persistence" in their quest to bring him to justice.

August 21, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Friday, August 14, 2020

Republican Georgia legislator looking to use fiscal argument to bolster death penalty abolition

In this post around the start of the pandemic, I wondered aloud "Might COVID-19 ultimately bring an end to the death penalty in the United States?".  One point I made in that post was that, amidst economic difficulties, the death penalty might seem an even more problematic use of limited government time and resources.  As I put it in that post: "I think there will be very strong arguments that this punishment is a kind of 'legal luxury' that we really cannot and ought not invest resources in while we try to rebuild after COVID-19."  

I returned to that post this morning upon seeing this new local press piece from Georgia headlined "Georgia GOP lawmaker makes budget argument to abolish death penalty."  Here are excerpts:

A Georgia Republican says he thinks the state House of Representatives is just a dozen votes shy of advancing a bill that would abolish the death penalty. Rep. Brett Harrell of Snellville said Thursday that he thinks highlighting the cost of capital punishment may help win over the support needed, at least in the one chamber.  Harrell, who chairs the influential House Ways and Means Committee, said he intends to push for the funding needed to pay for an analysis of how much Georgia spends to execute people.

“I think this conservative concerns about the death penalty focus is important and to focus on those fiscal costs will be important to us to gain those last few votes necessary to move the issue forward in Georgia,” he said.

The Gwinnett County lawmaker took part in a virtual discussion Thursday that was organized by Conservatives Concerned about the Death Penalty, a national group that argues capital punishment is inconsistent with conservative principles.  He appeared along with two Republicans from Ohio and Wyoming. Hannah Cox, the group’s senior national manager, called the death penalty a “failed big government program that fails to measure up to our values of limiting government, adhering to fiscal responsibility and protecting the sanctity of human life.”  She said most of the costs stem from the intensive trials required for a capital murder case – and not, as most assume, the lengthy appellate process.

She said the squeeze on state budgets due to the COVID-19 pandemic has brought renewed scrutiny to the cost.  Georgia just recently cut 10% from its budget, partly because of declining revenues due to the viral outbreak.

Harrell sponsored a bipartisan bill last year that would have ended the death penalty in Georgia, requiring instead life in prison without parole for those sitting on death row.  The bill never cleared a committee.  Georgia is among the 25 states that have the death penalty.

Now, he’s sharpening his fiscal line of attack, calling the death penalty an “incredibly expensive proposition.” He pointed to an example in the 1990s that left local officials jailed for a day in Lincoln County when they refused to foot the bill for a second capital murder trial after the courts overturned a death sentence. At the time, the case had already cost the rural county about $100,000; the county’s entire budget was $2.2 million.

“Evidence suggests – study after study – that it is not an actual deterrent to crime and we have alternatives, such as life without parole,” Harrell said. “As someone who is fiscally conservative and prefers a small government consistent with efficient implementation of government, the death penalty fails on all those measures.”

He also noted that Georgia has exonerated six people since the death penalty was reinstated in 1976. “Someone who is also a social conservative and someone who is pro-life should also see the death penalty as very problematic in that the likelihood is very great that innocent have been executed as well,” Harrell said.

Because many of my criticisms of many aspects of the criminal justice system are situated in the concern that it does not involve "efficient implementation of government," I am always drawn to these kinds of arguments.  And, as mentioned before, I think the misused resources arguments against the death penalty are especially strong during a time of national crisis when monies would seem better spent seeking to help those in need rather than in trying to secure and preserve a death sentence that likely never will be carried out.

August 14, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, August 08, 2020

"Beyond Unreasonable"

The title of this post is the title of this notable new paper authored by John Inazu and now posted to SSRN. Here is its abstract:

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude “beyond a reasonable doubt;” claims of self-defense succeed or fail on reasonableness determinations.  But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear.  Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale — we might say they are beyond unreasonable.  Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same.  These distinctions raise vexing questions: what is it that makes us feel differently about these activities?  Mere unfamiliarity?  Moral condemnation?  Relative utility?  Or something else altogether?  Moreover, who exactly is the “we” forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable — the reasonableness lines.  Part I examines the general characteristics of these lines.  Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports.  The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

August 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, August 02, 2020

"Criminal Deterrence: A Review of the Missing Literature"

The title of this post is the title of this notable new paper authored by Alex Raskolnikov and recently posted to SSRN.  Here is its abstract:

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself.  By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent.  These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment).  I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program.  The empirical analysis of environmental and tax compliance are two stark examples.  Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain.  These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.

Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result.  First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses.  Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression — not supported by the available evidence — that street crime is a great social problem while white-collar crime is a minor one.  Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study.  This creates an impression — also unjustified — that thirteen million or so misdemeanor charges a year — and countless millions of stops, frisks, and interrogations that lead to no charges — all heavily skewed by race and class — are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies.  This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system.  This creates an impression — almost surely false — that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income.  By disregarding this variation, the literature may be reinforcing it. 

For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reforms.

August 2, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (1)

Friday, July 31, 2020

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

"The Prisoner and the Polity"

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

All punishment comes to an end.  Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison.  Though it is tempting to think of the “end” in concrete, factual terms — for example, as the moment when the prisoner is released — this concept also has normative dimensions.  Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society.  Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community.  The “practices of incarceration” — including the prison environment and prison programs — are thus critically important because they can either facilitate or impede a prisoner’s reentry into society.  However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny.

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return.  Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates.  The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return.

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly.  Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society.  This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm — what might be termed “punishment-plus.”  The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups.

Finally, the Article recommends institutional design changes to mitigate “us-versus-them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison.  These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity.

July 31, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Tuesday, July 28, 2020

At resentencing, Senator Rand Paul's attacker gets additional 13 months (eight to be served in federal prison, six in home confinement)

This local article, headline "KY man who tackled U.S. Sen. Rand Paul sentenced to another 13 months confinement," provides some details from a high-profile resentencing that took place yesterday and included a number of interesting elements:

The neighbor who lost his temper and attacked Republican U.S. Sen. Rand Paul in 2017, breaking six of his ribs, has been sentenced to an additional 13 months confinement.  A federal judge initially sentenced Rene Boucher to 30 days in jail for the November 2017 attack, along with 100 hours of community service and a $10,000 fine.

During a video hearing Monday, U.S. District Judge Matthew F. Leitman handed down the new sentence against Boucher — eight months in prison and six months on home confinement.  However, Leitman gave Boucher credit for the 30 days he already served, so he will have seven more months behind bars.

Prosecutors had appealed the initial sentence for Boucher, arguing it was unreasonably light, and won the right to try to get a longer sentence.  That led to Monday’s hearing.  The new sentence for Boucher still wasn’t as long as the government wanted.  Assistant U.S. Attorney Brad Shepard objected to the sentence, which could lead to yet another appeal by the government for stiffer sentence for Boucher.

The attack made national news because of Paul’s position, but prosecutors have acknowledged it had nothing to do with politics.  Rather, Boucher, who lived next door to Paul in a gated community in Bowling Green, attacked Paul because he got angry over Paul stacking limbs and other yard waste near their shared property line, according to the court record....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.  Under advisory guidelines, Boucher faced a potential sentence of 21 to 27 months. Federal judges can impost sentences below those guidelines.

In handing down a lower sentence, U.S. District Judge Marianne O. Battani cited Boucher’s military service, his involvement in his church and her belief that the attack was out of character for Boucher.  However, the U.S. 6th Circuit Court of Appeals ruled that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

Shepard renewed a call for a 21-month sentence for Boucher because of the severity of Paul’s injuries.  The punishment also should to be tough enough deter similar attacks, Shepard said.  “The court I think needs to send the message . . . that we cannot continue as a society to resort to violence,” Shepard said.

Paul and his wife, Kelly, submitted written statements about the attack the first time Boucher was sentenced, but spoke in person during the video hearing Monday.  Paul said he’d never had cross words with Boucher and so had no idea he was unhappy before Boucher blindsided him.  Paul described the intense pain and his struggles to breathe after the attack, as well as the history of physical problems since, including bouts with pneumonia, night sweats and fever; coughing up blood; surgery to remove part of his scarred lung; and still more surgery to drain infected fluid.  Paul said his lung capacity will likely be reduced the rest of his life, and he has chronic pain.  “I don’t know what a night without pain is like, or a day without pain,” Paul said....

Boucher’s attorney, Matthew J. Baker, said Boucher is “profoundly sorry” for the attack, but argued against any additional time for Boucher, a physician.  Baker said Boucher’s initial sentence was appropriate, and that he had faced additional punishment by way of a judgment of more than $600,000 in a state civil lawsuit Paul filed against him over the attack.  That judgment included $375,000 in punitive damages, which by definition are to punish a defendant....

Lietman said it was heartbreaking to hear Paul and his wife describe the fallout from the attack. But the judge said he was choosing a sentence below the guideline range for several reasons, including Boucher’s long record of work with his church, his eight years as a U.S. Army doctor, the fact that the attack was out of character, and the damage to his reputation from the crime.  Leitman said $375,000 punitive damage award in state court also figured into his decision. “That’s a lot of punishment,” he said.

Leitman did not set a date for Boucher to begin the sentence.

I would be surprised if the feds go through with another appeal, and I would be even more surprised if they would prevail on a second appeal.  The Sixth Circuit panel opinion reversing the initial 30-day sentence made much of the original "dramatic downward variance" from a guideline minimum of 21 months, and Judge Lietman seems to have addressed some of the panel's chief concerns when imposing a longer sentence closer to the bottom of the advisory range.  And Judge Lietman's reliance on the civil punishment from the sizable punitive damage award would seem to be a distinctive additional factor supporting the reasonableness of a sentence below the guideline range.

Prior related posts:

July 28, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, July 24, 2020

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, July 19, 2020

Perspectives from A to Z on how to reform incarceration nation

Though there is still plenty more to say about how the coronavirus is continuing to course through our nation's jails and prisons, I was pleased to see this week a number of new commentaries discussing prison and criminal justice reform more generally.  Notably, this round-up of pieces include works from sources that start with A and that start with Z, so here is a collection of pieces that all seem worth a midsummer read from A to Z:

From America: The Jesuit Review, "Religious ideals shaped the broken U.S. prison system. Can they also fix it?"

From Fast Company, "Here’s How We Get to a World Where We Don’t Need Prisons at All"

From The Morning Call, "We need justice system that values people"

From Salon, "Abolishing the whole prison-industrial complex"

From the Washington Times, "Keeping families together must be a priority for the criminal justice system"

From ZDNet, "Can technologists help end mass incarceration?: Data-driven approaches to criminal justice often backfire. Here's one way to do it right."

July 19, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 17, 2020

"A Vision for the Modern Prosecutor"

The title of this post is the title of this intriguing new five-page document produced by the Executive Session of the Institute for Innovation in Prosecution at John Jay College. Here is the piece's introduction and some key elements:

In the wake of unprecedented and overdue attention on the criminal legal system and its role in our Nation’s legacy of racial injustice, as elected prosecutors and members of the Institute for Innovation in Prosecution’s Executive Session on the Role of the Prosecutor, we believe that it is possible to describe and call for an emerging vision for the role of a modern prosecutor.  In doing so, we find it necessary to contrast this vision with a description of the traditional ways that prosecutors have carried out their responsibilities.  In this paper we describe this contrast between traditional practice and a vision of the future by comparing their conceptions of justice, modes of operation, culture, accountability, and metrics. In making these contrasts, we celebrate the power and potential of the current wave of prosecutorial reform that we are witnessing around the country. We have high hopes that this movement will support the broader re-examination of our society’s response to crime and aspiration for justice.

Conceptions of Justice

Traditionally: Prosecutors have defined their role principally as part of a larger criminal justice system that operates with a primary focus on case processing....

We believe the future of prosecution requires that: Prosecutors explicitly set aside this notion of the criminal justice system as a case processing apparatus.... 

 

Modes of Operation

Traditionally: Prosecutors have been largely reactive....

We believe the future of prosecution requires that: Prosecutors no longer regard themselves as recipients of other actors’ cases or as limited by existing system options with respect to dispositions of those cases....

 

Culture

Traditionally: Prosecutors have been acculturated to consider themselves to be the “us,” and the “good guys,” in an “us vs. them” and “good vs. bad” world....

We believe the future of prosecution requires that: Prosecutors recognize the complexity of the people with whom they engage and of the matters to which they attend....

 

Accountability and Metrics

Traditionally: Prosecutors have relied on internal, narrow, and often ill-defined standards for judging their performance....

We believe the future of prosecution requires that: Prosecutors develop broad, explicit and transparent standards and expectations for their actions and outcomes....

Prosecutors must make violence and violence prevention a top priority.

July 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, July 15, 2020

"Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit"

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

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment.  Sentencing has long been unfair to minority defendants, African Americans in particular, though the guidelines have in part mitigated racial disparities.  Still the injustices perpetuated through federal sentencing have reinforced larger racial biases and contributed to ongoing racial stereotyping.

Empirical research and today’s technology can help both decrease race-based differentials and bring about shorter and more rehabilitation-focused sentencing, as long as we have the will to follow their lead.  Ultimately, we need to bring compassion, mercy, and Menschlichkeit to sentencing. Criminal defendants are not the “other” but “of us.”  Those values need to be part of our legal experience and of legal education lest law become merely an exercise in logic or ideology.

July 15, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, June 26, 2020

"How to have less crime with less punishment"

The title of this post is the headline of this new Hill commentary authored by Benjamin van Rooij and Adam Fine.  Here are excerpts:

For too long, America has been under the illusion that punishment is an effective medicine against crime.  This has led to the largest prison population in the world, a system of mass incarceration that has destroyed families and neighborhoods caught in circles of arrests, imprisonment, probation, and legal discrimination.  And with very little to show for it. It did not help win the War on Drugs or prevent the current opioid epidemic, nor did it play a significant role in the crime declines in cities like New York.  The criminal justice system does not even help to prevent crime through incapacitation, by locking offenders out of society, as this, in the most positive estimate, reduces crime by only 0.4 percent.

So, the idea that we can only get law and order through punishment is simply flawed. Surely, there should not be impunity, and punishment is definitely part of any law and order mix. But, it should just not be its chief focus. There are much better ways to prevent crime....

If we simply make crime harder, we need less police and less punishment.  There is a clear road ahead here. If you want to reduce homicide and many forms of gang violence, and many suicides while you’re at it, just ban guns, or at least severely restrict access to them.  Just consider how none of America’s top-ten mass shootings occurred during the federal ban on assault rifles.  And this has the added advantage that we deescalate police work, as cops have less reason to be afraid and less reason to act like soldiers in war zones.

Next, we can ensure that people do not have to resort to crime in the first place.  We clearly know that when there is less poverty, there is less crime, and when people get to finish their education, again, less crime. So let’s fight crime by fighting poverty and investing in education.  And for those who do resort to crime, we can turn to our next layer of defense: treatment.  Perhaps the most surprising thing we learned when we looked through decades of research was that rehabilitation programs that provide cognitive therapy, aggression training and substance abuse treatment actually work very well.  They are shown to reduce crime between 18-60 percent.

Finally, we can also have less crime if more people think the law is legitimate.  In fact, the way we perceive the criminal justice system is directly related to our willingness to engage in crime.  If people feel that the legal system treats them with respect, that it listens to their concerns, and that it acts impartially and neutrally, they will be less likely to commit a crime.  We must make our legal system fair and just because in doing so, we not only end the racism and brutality that have existed for so long, but we also fight crime.

This is just the tip of the iceberg: there are many insights about how to reduce crime based on scientific evidence. Yet most of these are ignored in our politics and in our public media.  Why do we rely on scientists to fight the coronavirus, but fail to heed their findings when addressing crime and public safety?

We have simply fooled ourselves in believing that punishment and tough-on-crime are the keys.  We have given in to our punishment reflex. It’s time to overcome our gut feelings, follow the evidence, and build a criminal justice system that starts to deliver the justice and safety it so direly owes us all.

June 26, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (3)

Tuesday, June 23, 2020

Senators Durbin and Grassley introduce new bill to make modest, but still important, reforms to federal elderly home release and compassionate release

As reported in this new press release, "U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced new, bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons. "  The release provides some notable contextual data and well some details of the bill's particulars:

Sadly, more than 80 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs. 

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  In 2019, 1,735 requests for release were initiated by or on behalf of prisoners, of which 1,501 were denied by wardens and 226 of which were forwarded to the BOP Director.  Of these 226, BOP approved only 55 and denied 171.  Since March of this year, only about 500 inmates have been granted compassionate release in the midst of the pandemic, nearly all of them by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“At the end of 2018, Congress came together to pass one of the most important criminal justice reform laws in a generation.  Now we have an obligation to ensure that this law is properly implemented,” Durbin said.  “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.  I’m hopeful that this commonsense, bipartisan legislation will pass swiftly through the House and Senate and will be signed into law.”

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote);
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

The following organizations support the COVID-19 Safer Detention Act:  Aleph Institute, Americans for Tax Reform and Digital Liberty, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, FreedomWorks, Justice Action Network, National Association of Criminal Defense Lawyers (NACDL), Right on Crime, Sentencing Project, Taking Action For Good, Texas Public Policy Foundation (TPPF), and Tzedek Association.

A section-by-section of the legislation is available here.

Bill text is available here.

I have placed in bold the provisions of this new bill that strike me as particularly noteworthy and that could prove most consequential. In short form, this bill would seem to authorize (though not require) judges to move most persons over the age of 60 from federal prison into home confinement as soon as they approach serving about half of their initially imposed prison sentence.  Sound like a great idea to me, and it also sounds like another version of another kind of "parole light" proposal of the sort I discussed a few years ago in this article

June 23, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, June 17, 2020

"Restorative Justice From Prosecutors' Perspective"

The title of this post is the title of this new article now available via SSRN and authored by Lara Bazelon and Bruce Green. Here is its abstract:

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well.  In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes.  Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use.

A handful of newly elected “progressive prosecutors” have expressed interest in applying restorative justice processes in these and other kinds of felony cases involving adult defendants.  But conventional prosecutors generally remain uninterested in or hostile to restorative justice, even though most accept problem-solving courts and other alternatives to prosecution and incarceration.  This Article explores why mainstream U.S. prosecutors are disposed against restorative justice and suggest how their concerns might best be addressed by restorative justice proponents.

June 17, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, June 11, 2020

"The Corrective Justice Theory of Punishment"

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

The American penal system is racist, degrading, and inefficient.  Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction.  The question — central to determining the degree to which punishment is justified — is why society’s need for general deterrence is an offender’s problem.  Why is it his responsibility to scare off would-be future offenders?  His past offense does not magically render him accountable for the actions of total strangers.  Existing theories of criminal justice are unable to answer this question.

This Article fills the lacuna — justifying state punishment, but, more importantly, establishing its moral limits — with the help of tort law principles.  It argues that deterrent punishment can be justified as a means of rectifying an offender’s contribution to “criminality” — not merely the perceived, but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm.  By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of “corrective justice” in the language of tort theorists.  He can fulfill this duty by decreasing the threat of crime in the future.  In this way, deterrent punishment does not merely sacrifice him to limit the problem of future crime, for which he has no personal responsibility.  Rather, it forces him to fulfill his own duty of repair.

This novel theory — the corrective justice theory of punishment — entails three sentencing principles.  First, punishment must in fact deter crime and must be the most efficient means of doing so.  Second, however efficient it may be, punishment must not harm an offender more than is required to repair his criminality contribution.  Third, even if it is both efficient and reparative, punishment must not harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so.  The Article demonstrates how these three principles, in combination, demand a radical reduction in American sentencing scales.  The Article thus concludes that the corrective justice view presents stable moral ground for the decarceral movement in America.

June 11, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (0)