Tuesday, June 04, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, May 18, 2019

Rounding up some interesting criminal justice reads

Frequently, when I come across interesting criminal justice news pieces or commentary while working on other matters, I will email the link to myself with the hope I will find time later to blog about the item.  This week seemed to lead to an especially large number of these items in my in-box, and so I will blogging about them all through this round up.   

A few of these pieces are news accounts of notable court rulings, but most are commentary.  And everyone on of these pieces could justify its own post, which is my way of saying folks should check them all out.  So, in no particular order:

By Seth Mayer, "What Criminal Justice Reformers Can Learn from the Green New Deal"

By Adureh Onyekwere and Ames Grawert, "Welcome To The Age Of Bipartisan Criminal Justice Reform"

By Kara Gotsch, "Criminal justice includes food security — we can't ban the social safety net"

By John Pfaff, "Five myths about prisons"

By David Nathan, Joycelyn Elders and Bryon Adinoff, "21st Century Reefer Madness"

By Andrew Wolfson, "A prosecutor ridiculed a couple's patron saint. So a court reversed their drug convictions."

By John Ellement, "SJC orders release of Wayne Chapman, convicted child rapist"

By Tamara Gilkes Borr, "How the War on Drugs Kept Black Men Out of College"

By Doyle Murphy, "St. Louis’ Justice System Grapples Daily with an Impossible Question: What Punishment Fits the Crime?"

May 18, 2019 in Recommended reading, Who Sentences | Permalink | Comments (2)

Thursday, May 16, 2019

Brennan Center releases great new collection of essays titled "Ending Mass Incarceration: Ideas from Today's Leaders"

Back in late April 2015, roughly 18 months before a big election, the Brennan Center for Justice released this fascinating publication (running 164 pages) titled "Solutions: American Leaders Speak Out on Criminal Justice."  That 2015 publication had nearly two dozen leaders, mostly prominent political figures with big histories and/or plans, discussing a variety of criminal justice reform topics from a variety of perspectives.  In my original post about this great 2015 collection, I expressed concern that former Prez Bill Clinton was tasked with authoring the forward and that former Prez George Bush was not a contributor to the collection.  Others noted, quite rightly and tellingly, that Hillary Clinton's essay in this collection was filled "with platitudes and self-aggrandizing references" within a "shallow discussion" that was "especially embarrassing compared to Ted Cruz's."  I also noted here that the seven GOP political leaders included in the collection had set forth an array of reform priorities and proposals that made me optimistic for potential future bipartisan reforms.

Fast forward four years, and the Brennan Center for Justice is at it again.  Specifically, this morning it just released a 2019 version of timely criminal justice essays, this time under the title "Ending Mass Incarceration: Ideas from Today’s Leaders."  Interestingly, this new must-read collection is a bit shorter (only 112 pages), and it feels a lot more titled toward the left.  Specifically, as noted above, the 2015 collection had essays from seven prominent GOP politicians as well as two additional essays from past or present leaders of right-leaning advocacy groups (not to mention tough-on-crime Democrats like both Clintons and then-VP Joe Biden).  The new collection of essays, though it does include pieces by Jared Kushner, Mark Holden and Holly Harris, fails to have any essays from any elected Republicans or would-be presidential aspirants other than those running for the Democratic nomination.  Given that then-VP Joe Biden appeared in the last volume, I would have liked to now see an essay by current VP Mike Pence on these topics.  Notably, interesting Dem voices like Cory Booker and Kamala Harris got a chance to do repeat performances in this latest volume, but interesting GOP folks like Rand Paul and Rick Perry do not.  And many folks running for Prez on the Dem side are included, but we do not hear from folks like William Weld or John Kasich or any other distinctive right leaning voices.

I would not be surprised if the Brennan Center tried to get more GOP voices involved and ultimately had their requests for contributions denied.  So my goal here is not to fault the efforts in putting together this still very important volume.  I just think it important and significant (and perhaps telling) that the essays here do not appear nearly as bipartisan as they did back in 2015.  But that reality makes this collection no less significant, and I am looking forward to finding time soon to read (and perhaps blog about) all these essays here.

Prior related posts about 2015 volume:

UPDATE: I now see that the New York Times has this good article about this new publication under the bad headline "Left and Right Agree on Criminal Justice: They Were Both Wrong Before." (It is a bad headline because the "Right" is not really fully captured in this collection.)  Here are excerpts from the Times piece:

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences.  Eight called for eliminating cash bail.  Seven called for alternatives to prison for nonviolent crimes....

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere.  In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P.  This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether.  Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses.  Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

May 16, 2019 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, May 13, 2019

Recent Harvard Law Review issue covers prison abolition

I managed to miss that the Development in the Law section of the April issue of the Harvard Law Review examined prison abolition from multiple angles.  Here are titles and links to the articles:

May 13, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, May 09, 2019

"Unusual State Capital Punishments"

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

This article argues that many of the states that retain the death penalty currently violate their own constitutions because their use of the death penalty is unusual.  Specifically, the death penalty in some states, particularly when assessed in an intra-state manner examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment.  As a result, this article explores the twenty-six capital states that proscribe unusual punishments and categorizes them based on the likelihood that their utilization of the death penalty violates their state constitution.

Part I of the article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases.  In Part II, the article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law.  Part III then examines the states that have unusual proscriptions in their state constitutions, and categorizes the states based on the likelihood that their use of the death penalty violates their state constitution.  Finally, in Part IV, the article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move.

May 9, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Thursday, April 25, 2019

"The High Stakes of Low-Level Criminal Justice"

The title of this post is the title of this notable book review authored by Alexandra Natapoff (who has, as noted here, her own book on this important topic). Here is the review's abstract:

The low-level misdemeanor process is a powerful socio-legal institution that both regulates and generates inequality.  At the same time, misdemeanor legal processing often ignores many foundational criminal justice values such as due process, evidence, and even individual guilt.  These features are linked: the erosion of the rule of law is one of the concrete mechanisms enabling the misdemeanor system to take aim at the disadvantaged, rather than at the merely guilty. 
In the book Misdemeanorland, Issa Kohler-Hausmann describes the inegalitarian workings of the misdemeanor legal process in New York City and how it operates as a system of managerial social control over the disadvantaged even when it stops short of convicting and incarcerating them.  This Review summarizes the book’s key contributions to the burgeoning scholarly discourse on misdemeanors and then extends its insights about New York to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.

Prior related post:

April 25, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, April 14, 2019

Lots of good diverse weekend criminal justice reads

I have already spent a very large number of hours this weekend watching sports (congrats Tiger and Let's Go Jackets), and I still have lots more sports (deGrom and Alonso are on my fantasy team) and a series premier still to watch tonight.  But amidst all the nice distractions (and finally some nice weekend weather in central Ohio), I was able to catch up with some notable recent criminal justice commentary from an array of notably diverse sources.  Each of these linked pieces merit their own blog post, but a busy weekend requires just this round-up:

April 14, 2019 in Data on sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, February 28, 2019

Terrific new Yale Law Journal collection: "Critical Voices on Criminal Justice: Essays from Directly Affected Authors,"

The Yale Law Journal has this terrific new collection of papers under the banner "Critical Voices on Criminal Justice: Essays from Directly Affected Authors." Here is how the collection is introduced and titles with links:

People who have experienced incarceration have unique insights into the criminal system—insights that are often missing from legal scholarship and criminal justice policy. This Collection begins to bridge that gap.

Reginald Dwayne Betts, "What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence"

Tarra Simmons, "Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations"

Andrea James, "Ending the Incarceration of Women and Girls"

Shon Hopwood, "The Effort to Reform the Federal Criminal Justice System"

February 28, 2019 in Recommended reading | Permalink | Comments (1)

Thursday, November 15, 2018

"The Time Frame Challenge to Retributivism"

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

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

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

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

Wednesday, October 17, 2018

Lots of interesting recent reform commentary on lots of different topics

I am in the midst of one of those weeks in which I have too little time to follow the criminal justice news, let alone effectively blog about highlights. Consequently, I am going to start "hump day" today with a (too) quick round up of some interesting commentary I have seen from interesting folks on interesting topics.  In alphabetical order by author:

By Erwin Chemerinsky, "The death penalty is now unconstitutional in Washington state. California should be next"

By Seth Ferranti "How Men in Prison Reacted to Brett Kavanaugh's Confirmation"

By Newt Gingrich and Van Jones, "[Ohio] Issue 1 tackles opioid epidemic, puts politics aside"

By Kevin Ring, "I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end."

 By Sally Yates, "Don't let Trump's use of celebrities distract you from his criminal-justice failures"

By Steve Zeidman, "Let more juvie felons out: Raise the Age is only a first step"

October 17, 2018 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, October 03, 2018

A publisher's request for submissions from formerly and currently incarcerated individuals

This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:

The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations.  They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.

Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry.  Essays should contain elements of the author’s personal story in service of illuminating the suggested reform.  Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.

The top 12-20 essays will be published in the finished book, and the authors will receive $500 each.  Authors of the top 50 essays that were not selected for publication will also receive $50 each.  Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP.  The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.

The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law.  However, essays will be selected based on the following:

I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.

II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.

III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.

IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.

October 3, 2018 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, September 21, 2018

So much great content and commentary at "The Appeal"

I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level."  The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:

"The Incalculable Costs Of Mass Incarceration" by John Pfaff

"Texas D.A. Who Sent Woman To Prison For Five Years For Voting Made Her Own Election Mistake" by Steven Yoder

Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith

"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing

"In New York, Most Parolees Can Now Vote — But Many County Websites Say They Can’t" by Emma Whitford

"A New Power For Prosecutors Is On The Horizon — Reducing Harsh Sentences" by Kyle Barry 

September 21, 2018 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, August 28, 2018

"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"

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

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments.  This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform.  In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.

The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction.  In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

August 28, 2018 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, August 27, 2018

Lots of notable pieces in August 2018 issue of Criminology & Public Policy

I just saw the contents of the August 2018 issue of the journal Criminology & Public Policy, and now I have at least half-dozen new pieces to add to my reading list. The issue has collections of pieces on timely topics such as "Risk Assessment And Juvenile Justice" and "Victim Compensation And White -Collar Crime" and "Downsizing Our Prisons And Jails" and "Prison Length Of Stay And Recidivism." Here are just a few of the article on these topics that seem worth checking out:

August 27, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, August 09, 2018

The Modern Eighth Amendment

The title of this post was the name for one of yesterday's panels at the Southeastern Association of Law Schools ("SEALS") Conference. Organized by Will Berry (Ole Miss) and Meghan Ryan (SMU), the panel addressed the history of the Eighth Amendment, Eighth Amendment doctrine and its future. Panelists (myself included) covered everything from the original meaning of "cruel and unusual" to the Court's problematic use of the "evolving standards of decency" doctrine and the future of the death penalty and JLWOP.

There really was something for everyone (well, everyone interested in Eighth Amendment issues)!

Corinna Lain (Richmond) provides a full summary here.

August 9, 2018 in Guest blogging by Professor Cara Drinan, Recommended reading, Science | Permalink | Comments (4)

Monday, July 02, 2018

Rich new issues of Federal Sentencing Reporter covers "Managing Collateral Consequences in the Information Age"

The fine folks over at the Collateral Consequences Resource Center reminded me through this new post that the big new double issue of the Federal Sentencing Reporter is right now fully available on-line here thanks to the fine folks at the University of California Press. Here is how the CCRC folks summarize the issue's coverage:

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials. The issue’s Table of Contents shows the breadth and variety of topics covered.  An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in records management in state legislatures in recent years. She also describes each of the papers.

This special double issue of FSR contains so much interesting an diverse material, I recommend readers check out the TOC and Introductory essay to decide which articles they want to read first.

This issue includes the final version of of my recent paper titled "Leveraging Marijuana Reform to Enhance Expungement Practices."  Another piece focused on particular types of offenders is authored by Nora Demleitner under the title "Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing."  But the bulk of the of the materials in the issue covers individual state reforms in states that are not often at noticed to be at the forefront of criminal justice reforms efforts.  Specifically, a set of pieces look at Indiana's new expungement laws, and other piece look closely at other states including Nevada, North Carolina and Tennessee.

July 2, 2018 in Collateral consequences, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

"The Institutional Design of Punishment"

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

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment.  Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions?  These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates.  This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field.  In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands.  Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.

July 2, 2018 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)

Tuesday, June 26, 2018

Terrific new Boston University Law Review symposium on "Misdemeanor Machinery"

BULR-headerI recently received in this mail a hard-copy version of the May 2018 issue of the Boston University Law Review devoted entirely to examining misdemeanors in the US criminal justice system. The full title of the symposium, which had a live component late last year, was "Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System," and the article all looks terrific.  This Editors' Foreword sets the tone:

Misdemeanor courts across the nation churn through millions of cases each year. Misdemeanors are understudied by scholars and underreported by the media. While these cases may be less significant than felonies in the eyes of the public, they have far-reaching consequences in the lives of individual defendants.  Collateral consequences often far outstrip criminal sanctions and affect defendants’ housing, employment, education, and status in the United States.  As Professor Malcolm M. Feeley aptly put it, “the process is the punishment.”

Periodically, attention is drawn to the misdemeanor courts. This tends to occur in times of discontent and unrest.  Historically, reform efforts have largely been short-lived or entirely unsuccessful.  But in the wake of public attention to misdemeanor practices in Ferguson, Missouri, the time is ripe for reform.

A dedicated group of scholars met at Boston University School of Law to explore the misdemeanor machinery on November 3-4, 2017.  The conference featured both scholars and practitioners seeking to define “misdemeanor,” empirically analyze the misdemeanor system in the United States, explore the ramifications of misdemeanor charges, identify ethical concerns, and propose meaningful reform.  The pieces in this Symposium Issue represent each of these perspectives and offer thoughtful next steps for research and reform.

And here are links to all the pieces:

How To Think About Criminal Court Reform by Malcom Feeley

The Scale of Misdemeanor Justice by Megan Stevenson and Sandra Mayson

The Innocence Movement and Misdemeanors by Jenny Roberts

The History of Misdemeanor Bail by Shima Baughman

The Prosecutor’s Client Problem by Irene Joe

Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes To Protect Privacy and the Presumption of Innocence by Jenn Borchetta

Proportionality and Other Misdemeanor Myths by Eisha Jain

Toward Misdemeanor Justice: Lessons from New York City by Greg Berman and Julian Adler

Errors in Misdemeanor Adjudication by Samuel Gross

June 26, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1)

Thursday, June 14, 2018

"The New Dynamics of Mass Incarceration"

Download (15)The title of this post is the title of this notable new publication from The Vera Institute of Justice.   Here is much of its introduction:

After decades of continuous growth, the United States’ prison population began to plateau in the new millennium as the nation entered an era of criminal justice reform aimed at lowering the footprint of incarceration.  This seemed to herald the beginning of the end for mass incarceration.  Since 2007, when the country hit a peak of nearly 800 people in prison per 100,000 working age adults — over 1.6 million people total — overall prison incarceration has declined by about 1 percent on average each year.  The new downward trajectory of incarceration in the United States has paralleled a reckoning with the mounting costs of confinement and a growing awareness that incarceration in America was — in the words of a 2014 National Research Council report — “historically unprecedented and internationally unique,” and did not have the promised impact on public safety. (See “A brief history of mass incarceration: From unified growth to an era of reform” at page 8.)

Legislative and policy reforms have not brought a swift reversal of mass incarceration, however.  Even prison population trends — long used as convenient barometer of criminal justice reform’s progress — show that unwinding the nation’s overreliance on incarceration will be a longterm endeavor.  At the current pace, it will be 149 years until U.S. prison incarceration rates are as low as they were in 1970. (See Figure 1 at page 6.)

At the same time, while aggregated national prison population data indicates slow decline, it cannot be the sole indicator used to measure the progress made in the nation’s recent efforts to reduce incarceration.  Prison populations are slow to change after the implementation of most policy or practice changes, and thus provide an inadequate metric by which to measure and adjust the immediate impact of reforms — or regressive legislation.  Furthermore, a reliance on aggregate prison data fails to acknowledge or measure the tremendous variation in incarceration trends from state to state and within states, and ignores a significant locus of incarceration: local jails — county- or municipally-run facilities that primarily hold people arrested but not yet convicted of a crime.  For example, while much of the country is locking fewer people in jails and prisons, Kentucky is doing the opposite. If jails and prisons continue to grow in Kentucky as they have since 2000, everyone in the state will be incarcerated in 113 years. A comprehensive look at disparately reported metrics for the nation’s 50 state prison systems and 2,872 local jail jurisdictions is necessary to more accurately account for the headway made thus far in reversing mass incarceration.

To accomplish this goal, this report proposes a wider set of metrics by which to analyze incarceration trends to supplement the old standard of state prison population: 1) prison admissions; 2) jail admissions, 3) pretrial jail populations and 4) sentenced jail populations.  When considered together, this combination of metrics better captures the complexity of contemporary incarceration trends at the state and local level, makes the patterns that underlie national statistics discernable, and provides a starting point for deeper investigation into the particular context of individual counties’ justice systems....

As this report will discuss, studying all the moving parts of the incarceration system reveals a more messy truth: that there is no single way to characterize the current state of mass incarceration. A single trend of unified growth across states and counties, and in both prison and jail incarceration, characterized mass incarceration’s rise. But that has fragmented into four distinct incarceration trends, depending on how and where incarceration is measured:

  • some jurisdictions have seen meaningful overall declines in both prison and jail incarceration; 
  • others have seen stagnation at high incarceration rates; 
  • still others have seen shifts between prisons and jails in place of real reductions to the footprint of incarceration; and 
  • some have seen unchecked growth.
Ultimately, unwinding mass incarceration will require the particular alchemy of data-driven policy and political will, sustained by pressure from grassroots advocates and litigation. But only by acknowledging the realities in thousands of jurisdictions across the country can researchers, policymakers, and the public identify where reform is still only a promise and target attention and resources to drive change. Without understanding how local jail populations and county-level prison admissions have evolved over time, it will be difficult to have a real sense of how state and local systems are interacting, which problems to solve, or if progress is being made at all.

This new Mother Jones article about this new Vera report sums up its takeway via its extended headline: "The Era of Mass Incarceration Isn’t Over. This New Report Shows Why. 'Mass incarceration has a different face.'"

June 14, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, May 30, 2018

Two great new judicious commentaries on the federal sentencing guidelines

A helpful reader made sure I did not miss this latest issue of the Hofstra Law Review, which starts with a Colloquim on the topic "Thirty Years Later: A Look Back at the Original U.S. Sentencing Guidelines."  The issue contains  two notable articles authored by two notable jurists.  Here are links to the pieces and their opening paragraphs:

"The Original U.S. Sentencing Guidelines and Suggestions for a Fairer Future" by Stephen G. Breyer

Thank you very much. It is terribly nice for me to be here at Hofstra.  Thirty years ago, as the original Sentencing Guidelines were going into effect, I spoke here to highlight some of the key compromises we as Commissioners reached in writing them.  Ten years later, in 1998, I revisited the Guidelines at the Roman L. Hruska Institute in Nebraska to discuss their history and to offer my recommendations for discussion following a decade of their application. I am here today to commemorate the history of the original Sentencing Guidelines, and to again offer my suggestions to Congress, the Department of Justice, and to the current United States Sentencing Commission.  While much has changed since the Guidelines were considered in those speeches, my suggestions remain the same.

"The Federal Sentencing Guidelines: A Good Idea Badly Implemented" by Jon O. Newman

The best way to mark the thirtieth anniversary of the Federal Sentencing Guidelines is to candidly admit that they are a classic example of a good idea badly implemented.  I propose to consider how the good idea originated, how the first Federal Sentencing Commission implemented it, how the Supreme Court has dealt with the Sentencing Guidelines, what is good about the Guidelines, what are the principal defects of the Guidelines, and the most important step that can now be taken to improve the Guidelines and realize the expectations of those of us who favored sentencing guidelines.

May 30, 2018 in Federal Sentencing Guidelines, Recommended reading | Permalink | Comments (0)

Tuesday, May 29, 2018

"In Justice Today" has now become "The Appeal"

In this post about one year ago I noted the creation of "In Justice Today" a new publication of the Fair Punishment Project at Harvard Law School. The publication had an introductory post that suggested that "the local elected prosecutor" was to be a particular focal point of the new publication's reporting.  Now, via email, I have been told of this (small?) transition:

Dear friends,

I am thrilled to be unveiling the Justice Collaborative’s newly renamed, revamped, and relaunched criminal justice publication: The Appeal. The Appeal, which steps in where In Justice Today leaves off, is a daily news source of original reporting focusing on local criminal justice systems — the most significant drivers of mass incarceration.

In creating The Appeal, we wanted something that was rigorous and hard-hitting, and engaging to the average reader.  We are putting a human face on the practices of local criminal justice systems.  Today, Professor Angela J. Davis outlines the importance of prosecutors, and Raven Rakia and Ashoka Jegroo explore the history of the push to close Rikers Island.  Please check them out and let us know what you think!

It’s my sincerest hope that you enjoy our brand new publication and find it useful in your own work. We will continue digging deep in counties across the U.S. to shed light on the most undercovered parts of the system. 

Too much criminal justice reporting relies on politicians, prosecutors, and law enforcement officials as the arbiters of the truth. We aim to be the journalistic watchdog that changes that.

If you have any feedback on our new look—or just want to draw our attention to something you’d like to see in The Appeal — please drop us a line!

Sincerely,
Sarah Leonard, Executive Editor The Appeal

I sense that local criminal justice systems rather than just local elected prosecutors are now more clearly the focal point of this re-branded effort.  But it seems also that the Fair Punishment Project at Harvard Law School is no longer the main sponsor of this publication, though its new ABOUT page is somewhat opaque.

Whatever the backstory particulars, I always found a lot of interest and value at "In Justice Today" and I presume I will likewise find much of interest and value at "The Appeal."

May 29, 2018 in On blogging, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, May 19, 2018

"Federalism and Constitutional Criminal Law"

The title of this post is the title of this new paper authored by Brenner Fissell now available via SSRN.  As the title itself suggests, Eighth Amendment jurisprudence is among the area of Supreme Court decision-making discussed in this paper. Here is the abstract:

A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial.  The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?”

This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its restraint, this Article argues that federalism is not a universally effective argument against the imposition of these types of constitutional limits.  Instead, different variants of “federalism” vary in their strength when used to resist different types of constitutional rules, and often the federalism-based argument is unjustified.

May 19, 2018 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, April 28, 2018

"Punishment and Human Dignity: Sentencing Principles for Twenty-First Century America"

The title of this post is the title of this paper by Michael Tonry recently posted to SSRN.  Here is its abstract:

A new conception of justice in punishment is needed that is premised on respect for offenders’ human dignity. It needs to acknowledge retributive and utilitarian values and incorporate independently important values of fairness and equal treatment.  Punishment principles, policies, and practices lined up nicely in mid-twentieth century America. Utilitarian principles implied a primary goal of crime prevention through rehabilitation and avoidance of unnecessary suffering by offenders.  Judges and parole boards were empowered to tailor decisions to fit offenders’ circumstances and interests.  Corrections officials sought to address rehabilitative needs and facilitate achievement of successful, law-abiding lives.  The system often did not work as it should, but its ideals, aspirations, and aims were clear.  In our time, there are no commonly shared principles, sentencing laws and practices are unprecedentedly rigid and severe, judges and parole boards often lack authority to make sensible or just decisions, corrections officials are expected simultaneously to act as police officers, actuaries, and social workers, and injustice is ubiquitous.

April 28, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

Friday, March 23, 2018

Brennen Center releases new report: "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators"

The Brennan Center today released this notable new report titled, "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators." Here is its executive summary reprinted here:

This report sets forth an affirmative agenda to end mass incarceration in America.  The task requires efforts from both federal and state lawmakers.

Today, criminal justice reform stands on a knife’s edge.  After decades of rising incarceration and ever more obvious consequences, a powerful bipartisan movement has emerged. It recognizes that harsh prison policies are not needed to keep our country safe.

Now that extraordinary bipartisan consensus is challenged by the Trump administration, through inflammatory rhetoric and unwise action.  Only an affirmative move to continue reform can keep the progress going.

The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. About 2.1 million people are incarcerated in this country, the vast majority in state and local facilities.  Mass incarceration contributes significantly to the poverty rate. It is inequitable, placing a disproportionate burden on communities of color. It is wildly expensive, in some cases costing more to keep an 18-year-old in prison than it would to send him to Harvard.  Our criminal justice system costs $270 billion annually, yet does not produce commensurate public safety benefits.

Research conclusively shows that high levels of imprisonment are simply not necessary to protect communities.  About four out of every ten prisoners are incarcerated with little public safety justification.  In fact, 27 states have reduced both imprisonment and crime in the last decade.  A group of over 200 police chiefs, prosecutors, and sheriffs has formed, whose founding principles state: “We do not believe that public safety is served by a return to tactics that are overly punitive without strong purpose . . . we cannot incarcerate our way to safety.”

In cities, states, and at the federal level, Republicans and Democrats have joined this effort.  They recognize that today’s public safety challenges demand new and innovative politics rooted in science and based on what works. The opioid epidemic, mass shootings, and cyber-crime all require modern responses that do not repeat mistakes of the past.

Crime is no longer a wedge issue, and voters desire reform.  A 2017 poll from the Charles Koch Institute reveals that 81 percent of Trump voters consider criminal justice reform important.  Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters.

But the politician with the loudest megaphone has chosen a different, destructive approach.  Donald Trump, and his Attorney General Jeff Sessions, falsely insist there is a national crime wave, portraying a country besieged by crime, drugs, and terrorism — “American carnage,” as he called it in his inaugural address.

But, crime in the United States remains at historic lows.  While violent crime and murder did increase in 2015 and 2016, new data show crime and violence declining again in 2017. The national murder rate is approximately half of what it was at its 1991 peak.  Those who seek to use fear of crime for electoral gain are not just wrong on the statistics; they are also wrong on the politics.

Now, to continue the progress that has been made, it is up to candidates running for office to boldly advance policy solutions backed by facts, not fear.  This report offers reforms that would keep crime low, while significantly reducing incarceration.  Most solutions can be enacted through federal or state legislation.  While most of the prison population is under control of state officials, federal policy matters too.  The federal government’s prison population is larger than that of any state.  Further, Washington defines the national political conversation on criminal justice reform.  And although states vary somewhat in their approach to criminal justice, they struggle with similar challenges. The state solutions in this report are broadly written as “models” that can be adapted.

Steps to take include:

• Eliminating Financial Incentives for Incarceration

• Enacting Sentencing Reform

• Passing Sensible Marijuana Reform

• Improving Law Enforcement

• Responding to the Opioid Crisis

• Reducing Female Incarceration

March 23, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Friday, March 02, 2018

"The State of Justice Reform 2017"

Download (11)The title of this post is the name of this terrific new resource created by the Vera Institute of Justice. The resource is packed with lots and lots of notable content and links, and here is how it is explained on its "About" page: 

Like many justice reform organizations, Vera is often asked, “What are the latest and most interesting developments in the field?” This question has grown more common as more and more people confront the need to improve the nation’s broken justice system and want to help.

We endeavor in this report to provide the beginning of an answer, limiting our scope (mostly) to 2017, the first year of a new administration — one pushing a “law and order” platform — and covering most, but not all, areas of justice reform.

Vera’s task was to determine which of the thousands of changes to policy, practice, and legislation should be covered in this annual recap.  To discern what should be included, we first asked Vera’s own internal experts to weigh in and identify what they felt was most important to cover in their subject areas. “Importance” was defined by the following criteria:

  • the potential impact of a reform;
  • the degree of change from past practice or norms; and/or
  • the degree to which the field or the media is looking to a reform as a promising or leading practice to improve systems.

Using this definition, “importance” can be positive or negative, supportive or hostile to reform. The report thus focuses on both the best and the worst of 2017.

After hearing from Vera’s own experts, we reached outward, crowdsourcing suggestions from Vera’s Facebook and Twitter followings.  Vera also invited 30 external experts to review drafts of specific sections, who are gratefully acknowledged under “Contributors.”  Finally, Vera is issuing this as a digital report to allow for ongoing feedback and contributions, with the hope that this dialogue will add even more to the collective knowledge base about the year that was.

All parts of this terrific resource are worth checking out, and these parts should be of particular interest to sentencing fans:

The State of Jails: Reformers Look to Jails as a Key to Ending Mass Incarceration

The State of Youth Justice: As Youth Incarceration Drops, Racial Disparities Persist

The State of Sentencing & Decriminalization: While Federal Sentencing Reform Efforts Look Bleak, States Push Ahead

The State of Prisons: States Take on Prison Reform

The State of Reentry: For Those Rejoining Society, a Multitude of Obstacles Persist

March 2, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 08, 2018

"Mass Incarceration and Its Discontents"

The title of this post is the title of this notable new review essay authored by Katherine Beckett now appearing in Contemporary Sociology.  Here is how the essay gets started:

The contours of mass incarceration are, by now, broadly familiar.  The U.S. incarceration rate began an unprecedented ascent in the 1970s.  This trend continued through 2007, when 760 of every 100,000 U.S. residents — nearly 1 in 100 adults — lived behind bars, five million others were on probation or parole, more than ten million were booked into jail, and nearly one in three U.S. residents had a criminal record (Kaeble and Glaze 2016, Table 4; PEW Center on the States 2008; Sabol 2014; Subramanian et al. 2016).  The scale of confinement now sharply differentiates the United States from comparable countries, where incarceration rates range from a low of 45 per 100,000 residents in Japan to 145 in England and Wales (Walmsley 2015).  By 2015, the U.S. incarceration rate had fallen to 670 per 100,000 residents, a drop of nearly 12 percent (Kaeble and Glaze 2016). Still, the United States remains the world’s leading jailer (Wagner and Walsh 2016).

The emergence of mass incarceration in the United States has spawned a tremendous amount of social scientific research.  A number of studies analyze its proximate causes and show that shifts in policy and practice (rather than rising crime rates) were the primary driver of penal expansion.  Other studies analyze the consequences of mass incarceration, documenting, for example, its disparate and adverse impact on people, families, and communities of color.  Some assess how penal expansion affects not only the incarcerated, but also those who are stopped, frisked, arrested, fined, and surveilled — even in the absence of incarceration or conviction.  And a substantial body of research shows that penal expansion has had far-reaching sociological effects that tend to enhance — and mask — racial and socio-economic inequalities.

Although the decline in incarceration since 2007 has been modest, it has nonetheless triggered much discussion regarding the need for, and prospects of, reform.  Yet researchers are debating more than the likelihood that meaningful change will occur; they also offer competing understandings of the problems that require attention and the solutions that should be enacted.  The books reviewed here — Hard Bargains: The Coercive Power of Drug Laws in Federal Court, by Mona Lynch; Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, by John F. Pfaff; and Sentencing Fragments: Penal Reform in America, 1975–2025, by Michael Tonry — speak to these pressing questions and offer surprisingly different ideas about what needs to be done to reverse mass incarceration and improve the quality of justice produced in American courts.  In particular, and in contrast to the arguments of Lynch and Tonry, Pfaff makes the case that time served has not increased and therefore that efforts to enact comprehensive sentencing reform are misguided and would have little impact.  In my view, this provocative claim is inconsistent with the best available evidence, much of which is brought to life in Mona Lynch’s Hard Bargains.

February 8, 2018 in Data on sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (12)

Thursday, February 01, 2018

Lots of interesting news, notes and commentary as the calendar turns

This time of year always seems busy and dynamic on various fronts, and one manifestation of this reality is my in-box getting way too full of way too many interesting sentencing-related items to blog about at length.  So, to cover lots of ground too quickly, here is a list of links (in no particular order) to pieces that have caught my eye this week:

From Newt Gingrich and Pat Nolan at Fox News here, "Opioid deaths are a health crisis -- Treatment, not jail, is the cure"

From the Collateral Consequences Resource Center here, "Michigan sex offender registration law held unconstitutional"

From Emily Nagisa Keehn and J. Wesley Boyd at The Conversation here, "How mass incarceration harms U.S. health, in 5 charts"

From John Gramlich at Pew Research Center here, "5 facts about crime in the U.S."

From Laura Bogart at The Week here, "Why our true crime obsession is bad for society"

From the Oregon Council on Civil Rights here, "Youth and Measure 11 in Oregon: Impacts of Mandatory Minimums"

From Michelle Phelps at The Crime Report here, "The Lesson of Meek Mill: A Probation System ‘Set Up to Fail’"

From Colin Miller at Evidence Prof Blog here, "Cyntoia Brown & the "51-To-Life" Project: Final Report"

February 1, 2018 in Recommended reading | Permalink | Comments (3)

Sunday, January 28, 2018

Lots of interesting pieces in inaugural volume of Annual Review of Criminology

I just saw the first issue of the Annual Review of Criminology here, and so many of the impressive articles are now at the top of my ever-growing "to read" list.  These pieces (among many in the big issue) are likely to be of particular interest to sentencing fans:

January 28, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, January 23, 2018

"The 'New' District Court Activism in Criminal Justice Reform"

The title of this post is the title of this interesting new paper authored by Jessica Roth now available via SSRN. Here is the paper's abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals.  It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.”  This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other.

To that end, the Article focuses on a cohort of deeply respected federal district judges — many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York — who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system.  These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch.  This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

January 23, 2018 in Recommended reading, Who Sentences | Permalink | Comments (1)

Sunday, January 21, 2018

"Sentencing in Time"

The title of this post is the title of this recent publication authored by Linda Ross Meyer via the Amherst College Press. Here is how the work is described:

Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison?  How do we relate a quantitative measure of time — months and years — to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act?  Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time — chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time).

In Sentencing in Time, Meyer asks whether — in overlooking the irreconcilability of these two modes of thinking about time — we are failing to accomplish the ends we believe the criminal justice system is designed to serve.  Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful — and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.

January 21, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (8)

Wednesday, January 10, 2018

A not-quite random collection of notable recent sentencing pieces

This week, though only half done, has been full of links to reports or commentaries or other items that seemed blogworthy but that I have not yet found time to blog about.  Particularly because I likely will be off-line much of the rest of this week, I figured I could make up for lost time with a big round-up.  So here goes, in no particular order:

January 10, 2018 in Recap posts, Recommended reading | Permalink | Comments (3)

Friday, January 05, 2018

"Prosecutors and Democracy: A Cross-National Study"

9781316638149The title of this post is the title of this recently published book by Máximo Langer and David Sklansky. Here is how the publisher describes the book's contents:

Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government.  Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics.  The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe.  Contrasting those strategies allows an assessment of their relative strengths -- and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.

January 5, 2018 in Recommended reading, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Friday, December 15, 2017

Call for Papers associated with the Innocence Network Conference

I am always happy to use this forum to relay calls for papers and/or conferences announcements, and here is a two-fer that I received this afternoon:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2018 Innocence Network Conference in Memphis, Tennessee on March 23-24.

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction.  International papers are welcome but must be submitted in English.  Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: innocencescholarship @ gmail.com by January 16, 2018. Paper proposals must be no more than 600 words.  Completed drafts must be submitted to the Committee by March 17, 2018.

The Innocence Scholarship Committee is arranging for publication for those papers accepted for Conference presentations in a symposium edition of the Northeastern Law Review.

The Innocence Scholarship Committee is composed of the following Members: Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law; Dr. Glinda Cooper, Innocence Project; and Ms. Vanessa Meterko, Innocence Project.

December 15, 2017 in Offense Characteristics, Recommended reading | Permalink | Comments (1)

Wednesday, December 13, 2017

"Rethinking the Boundaries of 'Criminal Justice'"

The title of this post is the title of this new essay/book review authored by Benjamin Levin and now available via SSRN. Here is the abstract:

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. Specifically, I trace two themes in the book: (1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and (2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding of what constitutes the “criminal justice system,” it is difficult to agree on the proper targets of critique or to determine what legal, social, and political problems are properly the province of “criminal justice thinking.” And, deciding which voices to accept and privilege in these discussions in turn shapes the face of the reform movement and the types of proposals and critiques that are treated as legitimate.

December 13, 2017 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, November 12, 2017

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Friday, November 10, 2017

"Is It Time for Criminologists to Step Outside the Ivory Tower?"

The question in the title of this post is the headline of this commentary by LawProf Erik Luna from over at the Crime Report that provides some background and perspective on the extraordinary recent academic work, discussed here, that Erik helped create and curate. Here are excerpts:

[C]riminal justice reform presents an issue — perhaps the only issue today — on which the left and the right can unite. And, as it turns out, the academic world may be able to help, as demonstrated by a newly released report from a distinguished group of criminal justice scholars....

Recent years have witnessed otherwise strange bedfellows bunking together to improve our criminal justice system. On what other topic do groups like the ACLU and the NAACP join hands with organizations such as Americans for Tax Reform and the Charles Koch Institute?

In our nation’s capital, Republicans and Democrats came together to correct grotesque disparities between crack and powder cocaine sentencing, for instance, and pending bills would address such issues as America’s broken bail process, ruthless mandatory penalties, and recidivism by former inmates. In truth, the most remarkable bipartisan action is occurring outside of the Beltway, where states such as Texas (yes, Texas) are leading the way in top-to-bottom criminal justice reforms.

Although advocates may have different motivations — political, social, economic, religious — they agree that something needs to be done about criminal justice in America....

Despite [broad] reasons to support criminal justice reform, the movement still faces a daunting task. In particular, a gap in knowledge exists among government actors and the general public. Many officials and most ordinary people tend to be unaware of the character and quantity of crime, the scope of criminal law, the rules of criminal procedure, the reality of pretrial and trial proceedings, the nature of sentencing schemes and their severity, and the lasting consequences of conviction and incarceration.

This lack of appreciation is hardly surprising given the sheer breadth and complexity of American criminal justice. What is needed is a means to help people grasp the system’s workings and its many, interrelated problems, so Americans and their representatives can have a full and thoughtful discussion of possible solutions.

This is where academics have a role to play. After all, their work is fundamentally all about reform. Criminal justice scholars spend most of their time studying, critically analyzing, and writing at length about crime, punishment, and processes, with an eye toward providing greater understanding of the criminal justice system and proposing changes to that system.

Traditionally, however, academic authors have written to themselves—that is, to other criminal justice scholars — not to the public or even to policymakers, professionals, or policy analysts interested in criminal justice.  As a result, academic scholarship is inaccessible in the sense that it is dense, filled with jargon, and, as a general rule, painful to read and unfriendly to normal human beings.  Oftentimes scholarly works are physically inaccessible as well, published by academic presses and journals and buried in libraries or hidden behind paywalls.

In an attempt to bridge the gap between scholarship on the books and legal reform on the ground, a loose-knit group of well over 100 scholars has issued a four-volume report titled Reforming Criminal Justice, which takes on some of the most pressing issues in criminal justice today.

Broken down into individual chapters, each authored by a top scholar in the relevant field, the report covers dozens of topics within the areas of criminalization, policing, pretrial and trial processes, sentencing, incarceration, and release. The goal of each chapter is to increase both professional and public understanding of the subject matter, to facilitate an appreciation of the relevant scholarly literature and the need for reform, and to offer potential solutions.

Today, the United States is unique among Western nations in terms of the scale and punitiveness of its criminal justice system. Academics can’t directly change this: We’re teachers and scholars, not elected officials or other policymakers. But, as the report hopes to show, the academic world can enlighten the public and their representatives and help guide reform efforts through the insights of those whose lifework is the study of criminal justice.

Prior related post:

November 10, 2017 in Recommended reading, Who Sentences | Permalink | Comments (3)

Sunday, November 05, 2017

In praise of an extraordinary new resource, "Reforming Criminal Justice" 

This press release reports on the recent culmination of an extraordinary academic project:

In an effort to inform criminal justice reform, the Sandra Day O’Connor College of Law at Arizona State University published a major new report titled Reforming Criminal Justice. The culmination of a yearlong collaboration, the four-volume publication involved 120 of the nation’s foremost academics to discuss specific topics within the reform movement. The report was made possible with support from the Charles Koch Foundation....

Erik Luna, ASU Law Amelia D. Lewis professor of constitutional and criminal law, directs the project. “The goal of this report is to connect academics with those responsible for criminal justice policy,” said Luna. “In recent years, academics have not effectively participated in and contributed to the conversation. This is a way for them not only to be a part of the discussion, but also to impact real-world policy.”

The coalition of scholars, known as the Academy for Justice, was inspired by a bipartisan summit in 2015, which brought together prominent figures in the reform movement to discuss the problems of criminal justice and to propose real, meaningful, lasting solutions. Following the 2015 summit, Professor Luna spearheaded an effort to integrate the expertise of the nation’s leading academics into the criminal justice reform movement.  That effort ultimately led to the idea of creating an unprecedented report with perspectives from criminal justice experts from colleges and universities such as Berkeley, Chicago, Columbia, Georgetown, Harvard, NYU, Penn, Stanford, Vanderbilt, and Virginia.  The scholars gathered at ASU Law’s Beus Center for Law and Society in February 2017, to share ideas, review and provide feedback on each other’s work, and ensure the highest quality content and issue development....

The report provides both detailed analysis and specific policy proposals, a resource of unrivaled breadth and depth in the reform movement.  The 57 separate contributions cover a wide range of specific topics within criminal justice: from criminalization and policing to adjudication and incarceration.  To maintain and increase its momentum, policymakers, thought leaders, and community members must encourage a broader and deeper understanding of the problems and forge thoughtful solutions to these difficult issues. This is where academics have an important role to play.

The report is being distributed to policymakers, criminal justice officials, think tanks, non-profit organizations, and community activists, but will also be freely available to the public through a dedicated website, academyforjustice.org

I had the honor and privilege of contributing a chapter to this extraordinary project, which is available here and is titled simply "Sentencing Guidelines."  Sentencing fans will especially want to check out all of Volume 4  on "Punishment, Incarceration, and Release" for chapters on topics ranging from traditional theories of punishment to risk assessment at sentencing to fines and fees to sex offender registration and many more. Indeed, all criminal justice fans should check out all the volumes because there is so much extraordinary work to be found therein.

November 5, 2017 in Recommended reading | Permalink | Comments (1)

Wednesday, October 18, 2017

Special issue of Federal Probation looks at "30 Years with Federal Sentencing Guidelines"

The latest issue of the journal Federal Probation, which is published by the Administrative Office of the U.S. Courts, features a special section looking at "30 Years with Federal Sentencing Guidelines."  As revealed by the contents reprinted below, I had the honor of contributing a short article to this issue and that authorship puts me in some notable company:

Federal Sentencing Policy: Role of the Judicial Conference of the United States and the Administrative Office of the U.S. Courts by Hon. Ricardo S. Martinez

The Integral Role of Federal Probation Officers in the Guidelines System by Hon. William H. Pryor Jr.

Reflecting on Parole’s Abolition in the Federal Sentencing System by Douglas A. Berman

Five Questions for the Next Thirty Years of Federal Sentencing by Steven L. Chanenson

State Sentencing Guidelines: A Garden Full of Variety by Kelly Lyn Mitchell

Brief summaries of these pieces are available at this link, but I urge everyone to download the full issue here.

October 18, 2017 in Federal Sentencing Guidelines, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, October 17, 2017

Lots of criminal justice coverage at start of new Harvard Law Review Blog

Logo_DesktopVia email, I learned of an old institution of legal scholarship trying its hand at a new(?) medium. Here is the explanation via the email text:

We are excited to announce the launch of the Harvard Law Review Blog.

The Harvard Law Review published its first issue more than 130 years ago with the hope that it could “enlarge our field” and be “serviceable to the profession” through thoughtful and relevant legal analysis.  Our Blog continues this effort.  By fostering legal inquiry and argument that is fast-paced and timely, the Blog will strive to complement the long-form, in-depth analysis that has filled our pages for over a century.

Like our print edition and the Forum, the Blog will bring together the scholars, practitioners, and leaders who are on the forefront of today’s biggest legal issues — who are pushing for a deeper understanding of the law. In keeping with our tradition as a generalist publication, our contributors will explore a range of topics, from Chevron deference and civil rights to international trade and immigration law.

In 1887, the editors of the Law Review’s first issue wrote, “It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received.” Today, we launch the Harvard Law Review Blog in the same spirit.

Notably, a number of the initial posts up on the HLR Blog have a criminal justice focus:

October 17, 2017 in On blogging, Recommended reading | Permalink | Comments (2)

Tuesday, October 10, 2017

"The Idea of 'the Criminal Justice System'"

The title of this post is the title of this interesting-looking new paper authored by Sara Mayeux now available via SSRN. Here is the abstract:

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s.  This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science.

The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.”  Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations.  For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

October 10, 2017 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, October 03, 2017

"What’s Behind the Decline in the Death Penalty?"

The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."  Here is how the Q&A gets set up, along with the concluding Qs and As:

There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....

If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts?  What happens if there is a return to the murder rates of the 1980s?

The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline.  If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches.  But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime.  We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences.  Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences."  How do you resolve that tension?  What do you think opponents of long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report.  I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out.  For decades, he filed habeas petitions himself and wrote letters.  After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America.  We have replaced the death penalty with the “other death penalty.”  Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory.  To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.

October 3, 2017 in Death Penalty Reforms, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (4)

Thursday, August 31, 2017

Thoughtful account of what to think about risk assessment tools

This new commentary at The Crime Report authored by Megan Stevenson, headlined simply "Is Crime Predictable?," provides an effectively measured discussion of the use of risk assessment tools in criminal justice decision-making. Here is how it starts and ends:

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.

Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety. Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.

Which side is right? It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented. Risk assessments are tools — no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.

They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense....

We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.

Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.

UPDATE: I am pleased to see that this commentary has now been given a more fitting headline over at The Crime Report: "Risk Assessment: The Devil’s in the Details"

August 31, 2017 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (4)

Sunday, June 18, 2017

"Days of Future Past: A Plea for More Useful and More Local Legal Scholarship"

The title of this post is the title of this notable new paper now available on SSRN and authored Frank Bowman.  Though not directly about sentencing, Frank's history as a fantastic sentencing scholar and reform advocate surely helped shape his perspective on the issues he discusses (and also surely helped me and this blog get a shout-out in footnote 81).  Here is article's abstract:

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship - a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.

June 18, 2017 in Recommended reading | Permalink | Comments (1)

Sunday, June 11, 2017

"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"

The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed.  Here is description via the book's Amazon page:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book.  The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost.  And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion.  The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention.  This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.

June 11, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, May 03, 2017

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"

The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

May 3, 2017 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Saturday, April 29, 2017

Illinois Law Review creates big online symposium to mark Prez Trump's first 100 Days

Via email I learned of an impressive and well-timed project completed by the Illinois Law Review: publication of this online symposium on President Trump's First 100 Days with 31(!) folks analyzing various aspects of the activities of the new Administration. Sadly, there is no commentary in the collection focused specifically on sentencing and punishment issues, but here is just a handful of the pieces that are connected in various ways to various issues covered on this blog:

April 29, 2017 in Recommended reading, Who Sentences | Permalink | Comments (2)

Sunday, March 12, 2017

"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"

The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:

Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform."  The book concludes that police, legislators, and judges are not to blame for Mass Incarceration.  Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”

Locked In’s data-driven thesis aligns neatly with the academic consensus.  If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration.  The only problem is that it probably isn’t right.  While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data.  With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators.  This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration.  It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny.  When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

March 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Friday, March 10, 2017

"Why Prison?: An Economic Critique"

The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:

This Article argues that we should not imprison people who commit crimes.  This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system.  Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.

Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses.  It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs.  The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently.  It concludes that there exist economically superior alternatives to prison available right now.  The alternatives are practicable.  They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.

This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.  Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective.  But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns.  That question is outside the ambit of this paper.  The alternative system can also be criticized on practicability grounds.  But upon close investigation, such criticisms lose much of their force.

March 10, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (10)

Monday, March 06, 2017

"Rationing Criminal Justice"

The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas.  Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities.  Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions.  Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.

Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps.  As these tools highlight, scarcity often works not as a bug but as a design feature.  Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture.  But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 6, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)