Saturday, November 26, 2022

Rounding up some criminal justice news and notes over holiday week

One easy way to catch up on a number of criminal justice stories and commentaries is to do a round-up of headlines and links. So here goes:

From the AP, "Judge denies 19-year-old's ask to attend father's execution"

From the Arizona Republic, "States under scrutiny for recent lethal injection failures"

From the Atlantic, "The Crime Spike Is No Mystery: By zooming out and looking at the big picture, the question of what causes violence becomes quite answerable."

From Ball and Strikes, "The Supreme Court Is On Another Execution Spree"

From Law Dork, "Failures of capital punishment: Alabama, Missouri, and Oklahoma"

From Rolling Stone, "‘Digitized Love’: How Prison Mail Bans Harm Incarcerated People"

From The Conversation, "The criminal justice system is retraumatizing victims of violent crime"

From the New Republic, "The Supreme Court’s New Second Amendment Test Is Off to a Wild Start"

From the New York Times, "The Search for Beauty in a Prison Cell"

From the Wall Street Journal, "The U.S. Knows How to Reduce Crime: Evidence-based strategies like ‘focused deterrence’ don’t conform to partisan slogans, but they have been shown to work"

November 26, 2022 in Recommended reading | Permalink | Comments (0)

Saturday, November 19, 2022

Lots and lots more terrific new Inquest essays

Amid a very busy semester, I have not been able to keep up with the steady stream of great pieces regularly posted at Inquest.  Inquest, "a decarceral brainstorm," keeps churning out lots and lots of must-read essays, and I am hoping the coming holiday season provides me more time to read (or re-read) all the great content.  Here are just some of the recent pieces sentencing fans may want to check out:

By Cecilia Bruni & Destiny Fullwood-Singh, "Serial Injustices: Millions rallied behind Adnan Syed, whom the system gave a second look. Many others serving extreme sentences deserve a second look, too."

By Abraham Santiago & Norman Gaines, "A Passport to the Future: Restoring Pell grants for incarcerated students is long overdue. But without meaningful infrastructure, true freedom will remain elusive."

By Cristian Farias, "Revoking Probation: After years of working in the system, a reformer and believer in government gives up on probation and parole."

By J.D. King & Andrea Roth, "Anything But Petty: Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system."

By Ashley Kilmer & Sami Abdel-Salam, "Pretty and Punitive: For all its aesthetically pleasing attributes, Norway’s Halden Prison is still a prison for the men who must endure it."

By Tomas Keen & Atif Rafay, "Decarcerating from Within: A path for imprisoned writers to offer reasoned analysis on policies affecting the carceral state."

November 19, 2022 in Recommended reading | Permalink | Comments (0)

Monday, November 14, 2022

"The Inherent Problem with Mass Incarceration"

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

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

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

Monday, October 24, 2022

Another plug for a podcast for all sentencing fans (and especially defense attorneys)

In this post some months ago, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I thought to put in another plug for his efforts because the latest episode, "A Richer Measurement of Justice: The Novel Lolita Read as a Sentencing Memorandum," starts with a plug for this blog.  In addition, here are just some of many recent episodes sentencing fans ought to enjoy:

Your Voice Matters: Priorities for the Newly Minted Federal Sentencing Guidelines Commission

Prison Consultants and the Myth of the Fixer: How to Separate Substance from Snake Oil

A View From the Bench: Sentencing Expert Alan Ellis Discusses His Interviews with 40+ Judges About What Matters at Sentencing

Presumed Punishable: Antiracism at Sentencing

Draco: Alive & Thriving: Historical and Constitutional Roots of Modern Sentencing

October 24, 2022 in Recommended reading | Permalink | Comments (0)

Friday, August 12, 2022

Rounding up some sentencing news and notes for the week that was

Because I was on the road for much of this week, I was unable to blog about all the crime and sentencing stories and commentaries that caught my eye.  (Then again, much of the world was understandably much more concerned with a particular high-profile search than about any sentencing news this week.)  Making up for lost time, here are a few recent items worth finding the time to check out:

From the ABA Journal, "ABA provides 10 principles for ending mass incarceration and lengthy prison sentences"

From Bolts, "Michigan Supreme Court Restricts 'Cruel' Treatment of Youth in Run of Major Decisions"

From the Death Penalty Information Center, "American Psychological Association Overwhelmingly Votes to Adopt Resolution Opposing Death Penalty for Adolescents Aged 18 – 20"

From FiveThirtyEight, "How Democrats And Republicans Think Differently About Crime And Gun Violence"

From Fox News, "I spent time in prison for robbing a bank. Here’s how we prevent ex-cons from going back to jail"

From Fox News, "Former Trump adviser Ja'Ron Smith launches public safety coalition to reduce violent crime"

From The Hill, "Securing public safety without mass incarceration or deepening racial injustice"

From Inquest, "Federal Time: Congress' rush to respond to recent mass shootings repeats historic mistakes that fueled mass incarceration"

From the Phoenix New Times, "Clemency Denied for South Phoenix Man Serving 16-Year Pot Sentence"

From The Sentencing Project, "Repurposing Correctional Facilities to Strengthen Communities"

August 12, 2022 in Recommended reading | Permalink | Comments (0)

Wednesday, August 10, 2022

Visiting "The Visiting Room Project"

This week brought the launch of "The Visiting Room Project," a great new oral history project and website.  This new Guardian article provides an overview under the headline "An extraordinary story of forgiveness: from life without parole to finding grace; A new project gives a voice to people serving life sentences in Louisiana – and brought together two men whose lives collided in tragedy." Here is how the site itself describes the project at this link:

The Visiting Room Project is a digital experience that invites the public to sit face-to-face with people serving life without the possibility of parole to hear them tell their stories, in their own words.  More than five years in the making, the site is the only collection of its kind, containing over 100 filmed interviews with people currently serving life without parole.  The interviews were filmed at Angola, the Louisiana State Penitentiary, which is, in many ways, the epicenter of life without parole sentences worldwide.  As of 2022, more than 55,000 Americans are living in prisons serving life without parole, their lives largely hidden from public view.

Marcus Kondkar and Calvin Duncan created The Visiting Room Project.  Marcus is chair of the sociology department at Loyola University New Orleans, where he researches incarceration and sentencing patterns.  Calvin is an expert in post-conviction law. After being wrongfully convicted and sentenced to life without parole, he served 28½ years in Louisiana prisons before winning his freedom in 2011.  Originally, Marcus and Calvin gathered information on life sentences for an academic audience, but, due to their shared belief that the public needs to hear directly from people who had served decades in prison, their collaboration became The Visiting Room Project, documenting stories of growth behind prison walls.  Arthur Carter, who has served more than 30 years of a life sentence, captured the meaning of The Visiting Room Project during his interview, stating, “If I have to die here, I appreciate this opportunity to be able to let my voice be heard.”

This is a living project that didn’t conclude when the last interview was filmed. Instead, the project team and the men who were interviewed together created The Visiting Room Collaborative to share and document the continuing impact of these life stories.  The Visiting Room Collaborative has two missions.  First, to ensure that the participants’ loved ones and communities have access to their interviews.  Secondly, to create opportunities for public audiences to engage with the project material through exhibits, screenings, and collaborations with artists.  As The Visiting Room Project continues to evolve, this site will be updated with new information.

August 10, 2022 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, August 09, 2022

"Is the Principle of Desert Unprincipled in Practice?"

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

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

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

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

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

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

Monday, July 25, 2022

Reviewing another round of great new Inquest essays

I have been making a habit of spotlighting some of the many great pieces regularly posted at Inquest (see recent prior posts here and here and here).  Inquest, "a decarceral brainstorm," keeps churning out lots of new must-read essays, and I continue to struggle to keep up with all the great content.  Here are some recent pieces worth checking out:

By Erin Collins, "The Evidence-Based Trap: Data-driven approaches to reform can reinforce aspects of a system that’s rotten to the core."

By Dan Berger, "Changing Everything: Beyond electing progressive prosecutors, decarceration requires an ambitious, multifaceted struggle at all levels of governance."

By Nebil Husayn, "Juneteenth and Black Liberation: Our government's history of oppression compels us to free those Black revolutionaries aging in our prisons."

By Jessica T. Simes & Jaquelyn L. Jahn, "Policing Health: The impact of Medicaid expansion suggests that keeping people healthy also keeps them from the reach of the criminal legal system."

July 25, 2022 in Recommended reading, Who Sentences | Permalink | Comments (1)

Tuesday, July 05, 2022

New podcast for all sentencing fans (and especially defense attorneys)

41NnUAbdjHLI am pleased to be able to post about a great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, who I have had the pleasure to work with on a few matters.  Doug Passon created "Set for Sentencing" earlier this year and already has a lot of terrific content posted at this archive. Here are titles/links of episodes to date:

Senators Sell Sentencing Snake Oil at KBJ Confirmation Hearing

Keep Fighting the Good Fight on Compassionate Release!

Disrupting the Dehumanizing Sentencing Process

David Rudolf: American Injustice, The Staircase & Defending Empathy

Telling the Story of Prison at Sentencing

Narrative is Everything at Sentencing!

YouTube Bonus Episode: Sedition Edition!

Understanding Autism at Sentencing

The Devil You Know: The “Funny Math” of the Guidelines, Proposed Fixes, and Lessons Learned From Capital Defense

As these podcast titles suggest, the discussions of sentencing in these episodes tend to come from a defense/defense attorney perspective.  But Doug Passon, whose interests and expertise extend far beyond legal doctrine, brings on an array of guests who are not all lawyers but all have lots of interesting insights for those who are.  I had the honor and the pleasure of taping one of these "Set for Sentencing" episodes a number of weeks ago, and that episode was just posted here (the "Devil You Know" segment).

July 5, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, June 22, 2022

Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

I am pleased to be able to spotlight here a call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

June 22, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Sunday, June 19, 2022

More highlights from lots of great new Inquest essays

I flagged a number of great pieces from Inquest in a number of prior posts (recent examples here and here).  Inquest, "a decarceral brainstorm," keeps churning out great new must-read essays, and I am not sure how anyone can keep up with all the great content.  Here are just a few of the recent pieces worth checking out with an emphasis on sentencing and corrections topics:

By Alan Dettlaff, "End Carceral Social Work: To stay true to their professed values, social workers must wholly disavow and remove themselves from systems of harm."

By Lynne Haney, "Making Men Pay: For incarcerated fathers, child-support and related debt create their own feedback loops of disadvantage and punishment."

By Brad Haywood, "Busting the Myth: Many progressive prosecutors promised bold change. In Virginia and elsewhere, reformers are realizing that they’re still actors in the same machinery of injustice."

By Aziz Huq, "After the Backlash: Understanding the democratic appeal of retrenchment and reaction to movements for racial justice has never been more urgent." 

June 19, 2022 in Recommended reading | Permalink | Comments (1)

Thursday, June 16, 2022

New issue of Brooklyn Law Review examines "The Role of the 'Victim' in the Criminal Legal System"

I just recently came across online the latest issue of the Brooklyn Law Review, and it is now high on my summer reading list. The abstract of the Foreword to the issue, penned by Kate Mogulescu, provides this context:

On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system.  Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process?  Where does the issue of victimization emerge, how is it received and what should the system’s response be?  Who gets a voice?  And when?  Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy?  The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion and interrogate the way the legal system recognizes, or fails to recognize, those who have experienced harm.

And here is a list of all the articles in this issue:

Giving Meaning to the Apostrophe in Victim[’]s Rights by Margaret Garvin

Should Victims’ Views Influence Prosecutors’ Decisions? by Bruce A. Green and Brandon P. Ruben

Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence by Tamara Rice Lave

Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination by Katharine L. Manning

Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses by Anna Roberts

What Are Victim Impact Statements For? by Susan A. Bandes

Parole, Victim Impact Evidence, and Race by Alexis Karteron

Rotten Social Background and Mass Incarceration: Who Is a Victim? by Steven Zeidman

The Victim/Offender Overlap and Criminal System Reform by Cynthia Godsoe

June 16, 2022 in Procedure and Proof at Sentencing, Recommended reading, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, June 14, 2022

Latest issue of FSR examines "Federal Community Supervision"

M_fsr.2022.34.5.coverThe June 2022 issues of the Federal Sentencing Reporter, which is now available online here, seeks to shine a bright light on the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  As an editor FSR, I can say all the editors were deeply grateful for LawProf Jacob Schuman’s extraordinary efforts and expertise in envisioning and shepherding this issue from start to finish.  This terrific issue includes a dozen original articles, and Prof Schuman's introductory essay, titled "One Nation under Supervision," sets the tone at the outset this way: 

This Special Issue of Federal Sentencing Reporter asks whether the federal criminal justice system can reconcile the dueling purposes of community supervision: public safety and rehabilitation.  While the federal government is neither as vast nor as powerful as the Almighty, it does supervise over 100,000 people serving terms of probation, parole, and supervised release.  Combined with the approximately 25,000 federal criminal defendants on pretrial release and diversion, the total population under federal supervision equals the number of people in federal jails and prisons.  While U.S. Probation and Pretrial Services offers an array of transitional services, and nearly a quarter of the defendants under federal supervision receive judiciary-funded drug treatment, judges also revoke supervision in approximately a third of all cases, imposing an average eleven-month prison sentence and accounting for 15% to 20% of all federal sentencings.  A term of supervision offers help and support, yet the threat of revocation imposes a significant liability, offering a mixed blessing for federal criminal defendants.

The last time FSR dedicated an Issue to federal community supervision was in 1994.  Almost thirty years later, the population under federal supervision has nearly tripled.  At the same time, innovative reentry courts and other approaches to supervision have sprung up in federal districts across the country.  In 2019, the Supreme Court struck down for the first time a provision of the supervised release statute as violating the jury right, splitting 4-1-4 on the reasoning and revealing deep divisions among the justices about the law of community supervision.  The time is ripe to reflect on these developments and chart the future of community supervision in the federal criminal justice system.

Here is a list of the terrific articles and authors in this great new FSR issue

One Nation Under Supervision by Jacob Schuman

“Breach of Trust” and U.S. v. Haymond by Fiona Doherty

The Reconstruction of Federal Reentry by Scott Anders, Jay Whetzel

The Burden of Criminal Justice Debt in Federal Community Supervision by Laura I Appleman

Rethinking Supervised Release Discovery with an Eye Toward Real “Fundamental Fairness” by Alison K. Guernsey

A Tale of Two Districts: Supervised Release in the District of Arizona and the Northern District of California by Elisse Larouche, Jon M. Sands, August Sommerfeld

Reenvisioning Success: How a Federal Reentry Court Promotes Desistance and Improves Quality of Life by Maya Sosnov, Leslie Kramer

The Judicial Role in Supervision and Reentry by Jacob Schuman

What’s Missing? The Absence of Probation in Federal Sentencing Reform by Cecelia Klingele

Reducing the Federal Prison Population: The Role of Pretrial Community Supervision by Christine S. Scott-Hayward, Connie Ireland

COVID-19 Vaccination as a Condition of Federal Community Supervision by Nila Bala

Building a Fair and Just Federal Community Supervision System: Lessons Learned from State and Local Reform Efforts by Miriam Krinsky, Monica Fuhrmann

June 14, 2022 in Procedure and Proof at Sentencing, Recommended reading, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, May 08, 2022

Another month of highlights from among lots of new Inquest essays

I flagged a number of great pieces from Inquest in this post last month.  But Inquest, "a decarceral brainstorm," keeps churning out great new must-read essays every week. As I have said before, I am not sure how anyone can keep up with all the great content.  But I am sure I will keep spotlighting recent pieces worth checking out with an emphasis on sentencing and corrections topics:

By Jenny Rogers, "The Poverty of Access: Librarians have a responsibility to everyone in their communities — including those who are incarcerated"

By Piper French, "A Future for Susanville: This prison town is about to lose its livelihood. Its survival presents a test for abolition"

By Mon Mohapatra, "Unwell in a Cell: co-opting the language of mental health and treatment, jail expansion is taking root in several localities. But these are cages all the same."

By Leo Beletsky, Emma Rock & Sunyou Kang, "Drug-Induced Panic: Overdose mortalities and related harms require a public health response, not more criminalization and incarceration"

By Sara Mayeux, "And a Public Defender for All: We can celebrate the ascent of Ketanji Brown Jackson, while acknowledging that indigent defense remains woefully inadequate in this time of crisis"

May 8, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, April 30, 2022

Rounding up some recent commentary for weekend reading

I saw an interesting array of notable commentary at the tail end of this past week, and here is a round up for those with some time this weekend to catch up on some reading:

From The American Conservative, "More People Should Get Jury Duty"

From The Atlantic, "Why California Wants to Recall Its Most Progressive Prosecutors"

From Forbes, "Second Chance Month Brought Needed Attention To Justice-Impacted Individuals. Now The Real Work Begins."

From The Hill, "Democrats cannot blow their marijuana midterm opportunity"

From The Philadelphia Citizen, "Ideas We Should Steal: More Public Defense Spending"

From Slate, "A Federal Appeals Court Just Devastated the Power of Judges to Reject Bad Plea Deals"

From USA Today, "One of us was a prisoner. The other was a guard. It's clear to both of us we need reform"

From USA Today, "Progressive prosecutors are fixing a broken system. Backlash against them is misguided."

From The Week, "This is not the major criminal justice reform Biden promised"

April 30, 2022 in Recommended reading | Permalink | Comments (0)

Thursday, April 28, 2022

New timely issue of the Federal Sentencing Reporter explores proposals for structural reform

I am very pleased to now be able to spotlight the latest greatest issue of the Federal Sentencing Reporter, which I helped bring together.  This issues includes many great new articles on an array of federal sentencing topics, and the discussion of two notable federal bills proposing structural changes make the issues especially timely.  My Editor's Observations at the front of the issue is titled "Might Structural Changes Be the Next Step for Federal Sentencing Reform?," and here is an excerpt:

This Issue of the Federal Sentencing Reporter shines a spotlight and provides context for two recent federal bills with a particular focus on criminal justice structure.  One, the Sentencing Commission Improvements Act, is relatively modest: consisting of just a few paragraphs, it provides for ‘‘a Federal Public or Community Defender designated by the Defender Services Advisory Group [to become an] ex officio, nonvoting member’’ of the U.S. Sentencing Commission.  The other bill is anything but modest: the Fair and Independent Experts in Clemency Act, or FIX Clemency Act, would create an ‘‘independent board to be known as the ‘U.S. Clemency Board,’’’ primarily tasked with reviewing and making recommendations to the president concerning clemency.  In addition to reprinting both of these bills and press releases from the members of Congress who introduced them, this Issue includes a series of original commentary discussing more broadly this particular moment in federal criminal justice reform.

Because they are full of substantive and rich insights, the original Articles in this Issue should be read in full and cannot be readily summarized here. However, having reviewed these Articles and the bills that partly inspired them, I am eager to introduce this Issue with a few musings about what I consider the important and unique symbolism that would necessarily accompany these proposed structural changes to the federal sentencing system.  Even with a change as modest as the Sentencing Commission Improvements Act, and especially with a change as notable as the FIX Clemency Act, Congress could send an important (and long overdue) message: that we need to alter the structures that have contributed to massive growth in the federal prison population.

April 28, 2022 in Clemency and Pardons, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, April 05, 2022

Brennan Center concludes is terrific essay series titled "Punitive Excess"

In this post last year, I was pleased to spotlight a new essay series unveiled by the Brennan Center for Justice, titled "Punitive Excess."  Today, I received an email noting that the series in concluding in an exciting way (links from the original):

Today the Brennan Center for Justice at NYU Law published the final essay plus a new video (90-second version here) in its Punitive Excess series.  The video includes voices from the essay collection, each showing a different way that the American legal system takes punishment to the extreme. Asia Johnson and Shon Hopwood speak from personal experience with being behind bars. In the last essay for the series, criminal justice experts Jeremy Travis and Bruce Western propose an “honest reckoning” with the harms of punitive excess as the path to a “new vision of justice that promotes community well-being, not oppression, and celebrates democracy, not racial domination.”...

The series will be published as a book by Columbia University Press. Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program, co-edited the series with Daniel Okrent.

April 5, 2022 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Sunday, April 03, 2022

Another round of highlights from among many great new Inquest essays

It has now been a few months since my last blog posting highlighting piece from Inquest, "a decarceral brainstorm," but that is not a reflection of that site lacking lots of new must-read essays.  Indeed, there is so much new and important content, I am not sure how anyone can keep up.  For now, here I will spotlight a handful of the many recent pieces worth checking out (with, of course, an emphasis on sentencing and corrections topics):

From Piper Kerman, "Burn the Spot: Writing about people you encounter in prison carries special responsibilities."

From Matthew Caldwell, "The End of Public Defenders: One path to ending mass incarceration is ending our modern conception of public defense. And being transparent about our work is one way to start."

From Caits Meissner, "Finishing Sentences: Writing about the harms of the penal system from within it is a form of freedom-fighting. It is not without risks — and many rewards."

From Ariel Nelson & Stephen Raher, "Captive Consumers: How government agencies and private companies trap and profit off incarcerated people and their loved ones."

April 3, 2022 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, March 05, 2022

New Federal Sentencing Reporter double issue explores "Financial Sanctions in Sentencing and Corrections"

I am very pleased to now be able to spotlight the newest Federal Sentencing Reporter issue, which is actually a special double issue devoted to the topic "Financial Sanctions in Sentencing and Corrections: Critical Issues, Innovations, and Opportunities." This amazing issue has nearly two dozen article authored by more than three dozen leading academics and researchers. 

Professors Jordan Hyatt and Nathan Link deserve worlds of credit for putting this amazing issue together, and their "Editors’ Observations"  which introduces the issue is titled "The Cost of Financial Sanctions in Sentencing and Corrections: Avenues for Research, Policy, and Practice." Here is its abstract:  

Financial and monetary obligations, a class of sanctions that includes fines, restitution, and a range of fees, are increasingly recognized as playing a significant role in the operation of the justice system, the lives of the people against whom they are levied, and their communities.  While some financial sanctions play a role in the tailoring of a punishment to the particular individual and the offenses they have been convicted of, others lack this grounding in ideology and serve a more pragmatic- and potentially revenue-driven-goal.  These observations reflect on the current state of research and policy regarding financial sanctions and seek to identify meaningful gaps in the current knowledge base as a foundation for future inquiry.

I highly recommend the full double issue.

March 5, 2022 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

Saturday, February 12, 2022

A super round-up of some super reads on Super Bowl weekend

As a big sports fan, I always enjoy the pomp and circumstance around Super Bowl.  Sometimes the game even lives up to all the excitement.  And since this is the first time in three decades I have a nearby team to root for (Who Dey), I may focus on bowling more than blogging this weekend.  But before focusing on snacks and spreads of all kinds, I thought I would catch up after a busy week by rounding up a super array of interesting pieces I saw this past week:

From The Brennan Center, "Countering Excessive Punishment with Chances for Redemption: A personal story shows the full costs of an unfair system and demonstrates how it can be improved."

From CNN, "Iraq War vet who punched police officers is 100th US Capitol rioter to be sentenced"

From The Herald-Star, "The end of the road for Ohio’s death penalty"

From The Hill, "The nation should model Utah's 'Clean Slate' on criminal records"

Also from The Hill, "On crime, Democrats should follow Eric Adams"

From Inquest: "Mass Disenfranchisement: The scourge of plea bargaining is robbing millions of a different, and just as fundamental, kind of liberty." 

Also from Inquest, "The Ties That Bind: Imprisonment violently separates us from those we love most — even those we come to love on the inside."

From the Los Angeles Times, "Why efforts to scale back California’s ‘three strikes’ law for juveniles are failing"

From the Marshall Project, "Prosecutors Who Want to Curb Mass Incarceration Hit a Roadblock: Tough-on-Crime Lawmakers; In an age-old battle over local control, some legislators seek to wrest power from prosecutors who aim to curb mass incarceration"

From Mother Jones, "A Notorious Prison Tech Giant Is Poised to Cash In on Pell Grants for Incarcerated People"

From Pennlive.com, "Most deaths in Pa. jails went unreported despite rules: ‘It is appalling’"

From Politico, "Frequent Prison Lockdowns Backfire. I Know From Experience. Biden has an opportunity to change prison culture for the better, if he takes it."

From WTVS Tampa Bay, "Florida leads US with most exonerations from the death penalty: 30 people have been exonerated from the death penalty in Florida since it was reinstated in 1976"

February 12, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, February 09, 2022

Welcome to Bolts, a new digital publication with a focus on criminal justice at local political level

I am very pleased to learn that a great looking new publication, Bolts, is now up and running.  Here is an excerpt from the "About Us" page:

Bolts is a digital publication that covers the nuts and bolts of power and political change, from the local up. We report on the places, people, and politics that shape public policy but are dangerously overlooked. We tell stories that highlight the real world stakes of local elections, obscure institutions, and the grassroots movements that are targeting them.

We focus on two areas where local governments play a key role: criminal justice and voting rights.

When it comes to practices that balloon prisons or weaken democracy, decisions are often made by an opaque ecosystem of institutions and officials. Our journalism shines a spotlight on the levers of power that influence democracy and mass incarceration—think of your local judges, county clerks, or prosecutors—and the political battles around them.

Daniel Nichanian, who I believe is playing a key role in this new publication as its founder and editor-in-chief, spotlighted for me these early Bolts criminal justice pieces:

"In 2022, Intense Clashes Between Criminal Justice Reformers and Tough-On-Crime Foes: Eight big election questions that will shape the future of criminal punishment and mass incarceration"

"Which Counties Elect Their Prosecutors and Sheriffs in 2022?"

"Vacancies and Zombie Commissioners Leave Opening for Parole Reform in New York"

February 9, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, February 02, 2022

Rounding up some good midweek reads

A busy week amid weather warnings means not enough blog time and too much to read.  So, making up for lost time, here is a round-up of some of what I have been reading:

From the ABA Journal, "Inmate's life sentence spurs him to push for felony murder reform"

From The American Prospect, "Michelle Childs’s Punitive Criminal Justice Rulings Were Repeatedly Overturned"

From The Atlantic, "The Other Speed Trap: America’s traffic laws hurt the poor, and don’t really deter anyone. But what if traffic fines scaled with income?"

From CNN, "We need to understand America's spike in murders"

From MarketWatch, "Tough-on-crime laws and mass incarceration waste tax dollars and don’t make us any safer"

From Slate, "9-Year-Olds Are Being Forced to Register as Sex Offenders. That Might Finally Change."

From Stat, "Despite Biden’s big promises and a far better understanding of the virus, Covid-19 is still raging through the nation’s prisons"

From The Washington Post, "Biden’s Supreme Court nominee should be a criminal defense lawyer"

February 2, 2022 in Recommended reading | Permalink | Comments (8)

Saturday, January 29, 2022

Lots of good long criminal justice reads for a wintery weekend

Here in central Ohio on the last Saturday in January 2022, the temperatures are stuck in the teens and so the snow from days ago remains where it is.  Meanwhile, I see that lots of folks on the east coast are getting lots of new snow this weekend.  So, whether stuck inside by the weather or just eager for some good criminal justice readers, I am pleased here to round-up just some recent criminal justice pieces worth some time:

From AL.com, "Police in this tiny Alabama town suck drivers into legal ‘black hole’"

From the AP, "Illinois Change in ‘Felony Murder Rule' Left Some Behind"

From Grid, "A year after Biden’s executive order on private prisons, business is still booming: GEO Group, one of the largest private prison companies, detailed its 'strategy' for getting around the order in a previously confidential document filed with the SEC."

From Inquest, "No More Compromisers: The Supreme Court doesn’t need another Stephen Breyer, but someone who can openly confront the immorality of our criminal legal system."

From The Marshall Project, "Who’s Electing Judges in the Cleveland Area? Not Those Ensnared in the System: In Cuyahoga County, voting patterns have resulted in mostly White judges deciding the fate of mostly Black criminal defendants."

From the Wall Street Journal, "The Once and Future Drug War: During the 50 years the U.S. has battled the narcotics trade, illegal drugs have become more available and potent. But that’s no reason to give up. Governments must adapt and find answers beyond law enforcement"

From The Washington Post, "They were sentenced to life in prison. Who should decide if they get a second chance?: The long shadow of ‘truth in sentencing’ politics in Maryland, where the vast majority of lifers are Black."

January 29, 2022 in Recommended reading | Permalink | Comments (0)

Monday, January 17, 2022

Latest issue of Dædalus explores "Reimagining Justice: The Challenges of Violence & Punitive Excess"

Wi22_Cover_ForWebThe Winter 2022 issue of the journal Dædalus has a series of essay on the topic of "Reimagining Justice: The Challenges of Violence & Punitive Excess."  Here is the issue's introduction from this issue page and a listing of the article titles and authors:

America has the highest incarceration rate in the world. Criminal justice policies of punitive excess and unequal protection under the law have sustained racial exclusion and added to the harsh conditions of poverty.  The Winter 2022 issue demands that we imagine a different kind of public safety that relies not on police and prisons, but on a rich community life that has eliminated racism and poverty.  Many of the solutions will lie beyond the boundaries of the criminal justice system and public policy, yet much of the work is already being done in communities around the country. And these efforts share, as the essays in this issue suggest, a common commitment to the values of healing, reconciliation, and human dignity.

Violence, Criminalization & Punitive Excess by Bruce Western and Sukyi McMahon

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

Public Health Approaches to Reducing Community Gun Violence by Daniel W. Webster

Seeing Guns to See Urban Violence: Racial Inequality & Neighborhood Context by David M. Hureau

Developmental & Ecological Perspective on the Intergenerational Transmission of Trauma & Violence by Micere Keels

The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies by Beth E. Richie

Faces of the Aftermath of Visible & Invisible Violence & Loss: Radical Resiliency of Justice & Healing by Barbara L. Jones

The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America by Khalil Gibran Muhammad

Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón

Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts by Nicole Gonzalez Van Cleve

Recognition, Repair & the Reconstruction of “Square One” by Geoff K. Ward

Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity by Jonathan Simon

All of these articles (along with abstracts) can be accessed at this webpage.

January 17, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, January 16, 2022

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

January 16, 2022 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, January 11, 2022

New paper explores "Reimagining Judging" in the US "after a decades long love affair with prison"

Retired US District Judge Nancy Gertner, who is now teaches at Harvard Law School, has this great new 44-page report titled "Reimagining Judging" released as part of the the Square One Project's Executive Session on the Future of Justice Policy.  This press release and this executive summary provides an overview of the report, but my post title draws on this passage from the report that helps frame how Judge Gertner approaches this critical project:

Countless papers have been written about the perils of unstructured discretion — discrimination and bias chief among them (Frankel 1973).  But I want to raise another issue: The unique problem of giving judges discretion in sentencing at this moment in time, after a decades long love affair with prison.  How can judges who have been schooled in the extraordinarily punitive system that produced mass incarceration for the past thirty years suddenly operate in a system that — one hopes — will reflect wholly different premises?  How can a judicial system based on one set of assumptions suddenly enact or apply a wholly different approach?  These are precisely the same questions we have asked of police, correctional officers, and prosecutors in a changed criminal legal system.  Is change possible in juvenile correctional facilities that reflected hard-nosed punishment, too often accompanied by physical and sexual abuse scandals?  Is change possible with police schooled to be warriors, not guardians?  Although surprising at first blush, assuming that law-following judges will enforce such institutional changes — much like with these other actors — is not enough.

In this paper, I touch first on judicial resistance to recent modest criminal law reforms, one example of what I have described elsewhere as the phenomenon of “the habits of mass incarceration” (Gertner 2020).  Then I sketch out — very briefly — the factors that make judges resistant to change: constraints that apparently limit a judge’s horizons, cognitive influences that they ignore, and political pressures that are unexamined.  Finally, I propose a way to effect change — a very preliminary suggestion.

Several caveats: I am generalizing from my experiences from 17 years in the federal system.  This is not an empirical paper.  Not all judges fit these descriptions.  Nor is this paper about what needs to be changed in the broader criminal legal system; others are dealing with those profound and overarching questions.  Finally, the message here is not that judicial change is impossible, only that it is difficult.  Any “reimagining project” must take judicial impediments to change into account; this paper considers how to revamp the criminal legal system through the lens of those who must apply that system’s rules.

January 11, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Sunday, January 09, 2022

Rounding up some notable Sunday criminal justice reads

In recent days, I have seen an assortment of interesting criminal justice pieces on an assortment of topics.  Here is a round up, with full headlines to provide a big of a preview:

From The Atlantic, "Justice Reformers Need to Update Their Priors: As a long decline in murder rates reverses, proponents of draconian law enforcement shouldn’t be allowed to monopolize the discussion."

From The Guardian, "The racist 1890 law that’s still blocking thousands of Black Americans from voting"

From The Marshall Project, "The Criminal Justice Issue Nobody Talks About: Brain Injuries; I know firsthand what it’s like to navigate the criminal justice system with a brain injury caused by domestic violence. I also live with the fact that an injury like mine can turn a victim into a perpetrator." 

From The New Republic, "Most January 6 Defendants Are Getting Light Sentences—and That’s OK; Judges have been relatively merciful in punishing the first tranche of Capitol rioters, with good reason."

From Time, "The Crisis at the D.C. Jail Began Decades Before Jan. 6 Defendants Started Raising Concerns"

From Undark, "The Public Health Case for Decarcerating America’s Prison System: The pandemic has illustrated all too clearly how unsafe conditions in prisons boomerang back on the general population."

January 9, 2022 in Recommended reading | Permalink | Comments (0)

Friday, January 07, 2022

Some more highlights from among many great new Inquest pieces

It has been a month since my last blog posting about Inquest, "a decarceral brainstorm," which means I am behind in flagging its latest must-read essays.  I will have to be content to just flag here with flagging a handful of the many newer pieces worth checking out:

By Kanav Kathuria, "The Invisible Violence of Carceral Food: There’s no such thing as a ‘humane’ eating environment in a penal system that inherently produces so much illness and death."

By Hannah Riley, "Too Little, Too Late: The bureaucracy in charge of parole in Georgia hasn’t kept up with the reality that the state’s prison system is a hotbed of death and despair."

By Sandhya Kajeepeta, "Community Spread: People in counties with higher jail populations are getting sicker and dying younger. The data shows that mass incarceration is playing a role."

By Hernandez Stroud, "Building Bridges: There’s a direct link between the penal system and community wellbeing. Here’s why, and how, I decided to teach that connection to a group of public-health students."

January 7, 2022 in Recommended reading | Permalink | Comments (0)

Sunday, December 26, 2021

Catching up on some criminal justice holiday commentary

A bit of a holiday blogging slow down, as well as having a pile of exams to grade, means I will need to be content here to catch up for lost time with a round-up post here. So here goes, mostly with commentary pieces along with a few notable news items:

By Carissa Byrne Hessick, "The Constitutional Right We Have Bargained Away: Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right."

By Rory Fleming, "The Lack of Prosecutor Accountability Behind Trucker’s 110-Year Sentence"

By Tony Messinger, "The Conservative Case For Prison Reform"

By Walter Pavlo, "Operation 'Varsity Blues' Goes Out With Perfect Prosecution Record And A Reflection Of How The System Works"

By Austin Sarat, "How 2021 Changed the Death Penalty"

By Kenneth Starr, "To uphold the rule of law, US Supreme Court must act in Texas death penalty case"

 

From The Hill, "Report finds groups working with incarcerated women passed over for funding by feminist organizations"

From The Marshall Project, "Omicron Has Arrived. Many Prisons and Jails Are Not Ready."

From NBC News, "States make headway on criminal justice reform after Congress falls short"

December 26, 2021 in Recommended reading | Permalink | Comments (9)

Wednesday, December 15, 2021

Prison Policy Initiative publishes report on "Winnable criminal justice reforms in 2022"

Naila Awan has authored this new report for the Prison Policy Initiative under the title "Winnable criminal justice reforms in 2022."  Here is its introduction and then links to the eight categories of reform ideas:

This year, we’ve expanded our annual guide on state legislative reforms that we think are ripe for victory. While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  And for the first time, we have added some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other advocates and state legislators.

December 15, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, December 07, 2021

Hard to keep up with all the great new Inquest pieces

Regular readers recall lots of prior blogging about Inquest, "a decarceral brainstorm," which continues to publish lots of must-read essays and other great materials.  I am behind in reading and blogging about all new great new reads from the site, so I will have to be content to just flag here just a few of the many newer pieces worth checking out:

From Christopher Blackwell & Jessica Sandoval, "Seeing the Light: We can't end mass incarceration without first ending solitary confinement once and for all."

From Jessica T. Simes, "Vulnerable Places: Entire communities are singularly exposed to punishment. Understanding how is key to combating mass incarceration."

From Tewkunzi Green, "Surviving Everywhere: Clemency gave me a chance to tell my truth — a truth the criminal legal system made invisible."

From Rachael Bedard & Zachary Rosner, "Treating Unfreedom: Practicing correctional medicine is fundamentally an exercise in harm reduction. And it’s no match for liberty itself."

December 7, 2021 in Recommended reading | Permalink | Comments (0)

Sunday, November 28, 2021

New issue of Contexts explores transforming the criminal justice system

The Fall 2021 issue of the journal Contexts includes a collections of article resulting from a conference examining how different elements of the American criminal justice system might be transformed.  Here is a selection from the editors' introduction along with links to a few pieces that might be of particular interest to sentencing fans:

One of the most striking developments in modern American history is the rise of mass incarceration. While more and more people have been put behind bars worldwide, sadly, America leads the way.  In this issue, we contribute to the ongoing discussion on mass incarceration and its impacts with a series of articles drawn from a recent conference jointly held by the Brookings Institution and the American Enterprise Institute.  This collection of articles will address different elements of the American criminal justice system and ask, is there a way forward?...

The articles from this conference ask a wide range of questions that demand good answers. First, how can we disentangle policing from other social services and public safety more broadly?  Second, how can we help imprisoned people transition from jails to the broader society?  Third, how can we use recent Alisha Kirchoff research on desistance, for example, to understand how people can safely become part of the wider community?

Features

Reimagining Pretrial & Sentencing by Pamela K. Lattimore, Cassia Spohn, Matthew Demichele

Changing Prisons to Help People Change by Christy Visher, John M. Eason

Fostering Desistance by Shawn Bushway, Christopher Uggen

Rethinking Prisoner Reentry by Annelies Goger, David J. Harding, Howard Henderson

November 28, 2021 in Recommended reading | Permalink | Comments (0)

Tuesday, November 23, 2021

Lots of timely new content and commentary at The Crime Report

I am hopeful (though nor especially optimistic) that I will get a chance to catch up on some reading during the coming holiday weekend.  To that end, I just realized I am behind on flagging a lot of great new content at The Crime Report, and here is just a sample of what is worth catching up on at that site: 

"The Danger of a Return to Crime Alarmism" by James Austin, Todd Clear, Richard Rosenfeld, and Joel Wallman

"Can We Build an ‘Infrastructure’ for Violence Prevention?" by Greg Berman

"America Can Afford Decent Corrections Systems. Why Aren’t We Getting Them?" by Rory Fleming

"Rethinking the ‘Sex Offender’ Label" by Derek Logue

"North Carolina’s ‘Geriatric Death Row’" by TCR Staff

November 23, 2021 in Recommended reading | Permalink | Comments (0)

Tuesday, November 16, 2021

Another quartet of must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Since my last posting a few months ago, the series has added four awesome new essays, and here are links to the latest quartet:

Prior related posts:

November 16, 2021 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, November 03, 2021

First published papers from "Understanding Drug Sentencing" now available in latest issue of Federal Sentencing Reporter

A little over a year ago, I highlighted this call for papers relating to the "Understanding Drug Sentencing and its Contributions to Mass Punishment" event that I took place last month.  The original plan was to publish papers just in the Spring 2022 symposium edition of the Ohio State Journal of Criminal Law.  A set of longer pieces will be appearing in that volume, but response to the call was so great that we arranged for the Federal Sentencing Reporter to also serve as a home for these works.  And I am quite pleased to see that the latest FSR issue is now available here online this with great line up of pieces: 

"Sentencing Drug Offenders Justly While Reducing Mass Incarceration" by Hon. Lynn Adelman

"Supporting Responsive Federal Drug Sentencing Through Education in the Workshop on Science-Informed Decision Making" by Hon. Nancy Gertner, Dr. Judith Edersheim, Dr. Robert Kinscherff & Cassandra Snyder

"Sentencing Federal Drug Offenders: Evidence of Judicial Activism" by Melissa Hamilton

"Crack 2.0: Federal Methamphetamine Sentencing Policy, the Crack/Meth Sentencing Disparity, and the Meth/Meth-Mixture Ratio — Why Drug Type, Quantity, and Purity Remain 'Incredibly Poor Proxies' for Sentencing Culpability Under 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1." by Lex A. Coleman

"Why Are Federal Meth Sentences Getting Longer?" by Jake J. Smith

"Sentencing to Drug Court: Tailoring the Program to the Participant Through Judicial Education and Oversight" by Lizett Martinez Schreiber

"Public Support for Using “Second Chance” Mechanisms to Reconsider Long-Term Prison Sentences for Drug Crimes" by Colleen M. Berryessa

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat" by Sarah Brady Siff

November 3, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

Saturday, October 23, 2021

Still more great Inquest pieces, including a timely commentary on reproductive justice

I continue to hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so  blogworthy.  Here are some new great new reads from the site since the last time I blogged about it, concluding with an excerpt focused on the intersection of incarceration and reproductive rights:

From James M. Binnall, "Carceral Wisdom: Like the value they bring to the classroom, people who have experienced the harms of the penal system have much knowledge to bring to our nation’s jury trials."

From Felix Sitthivong, "Divide and Conquer: For those of us on the inside who believe in prison abolition by any means necessary, prison closures really mean prison closures. The state and some of my fellow prisoners don’t like that."

From Inez Bordeaux, "Radicalized at the Workhouse: The criminal legal system almost took my life from me. The anger that came after now fuels my life’s work."

From Angel Parker, "The True Jailers of Rikers: As demands grow louder for decarcerating and shutting down New York City’s deadly jail complex, judges and prosecutors have escaped accountability. But they’re the ones driving the crisis."

"Saying Their Names: How public defenders in New York City organized to speak up for those who have died on Rikers — and to keep others from going there."

From Crystal Hayes, Carolyn Sufrin & Jamila Perritt, "Where Choice Ends: Unless and until mass incarceration is ended, Roe v. Wade, and reproductive freedom writ large, will never be safe." An excerpt:

Mass incarceration is a system that wields enormous control and power over people’s lives and violates every single tenet of reproductive justice.  Reproductive justice, a theory first coined in 1994 by 12 Black women, maintains that all people, especially communities that have been historically excluded and marginalized — Indigenous women, Black women, trans people, and other women of color — should have access to the material resources necessary to fully realize the range of reproductive, sexual health care, and technologies available to them, unencumbered by any barriers.

Reproductive justice includes four main tenets holding that everyone has a human right to decide if and when they will have a child and the conditions under which they will give birth; to decide if they will not have a child and their options for preventing or ending a pregnancy; to parent the children they already have with the necessary social supports in safe environments and healthy communities, and without fear of violence from individuals or the government; and to possess bodily autonomy free from all forms of reproductive oppression.  Black women who pioneered reproductive justice were seeking a broader way to understand and frame the need to access reproductive health care.  Their efforts included a racial analysis, and critique, of the idea that all women have access to the same resources to make healthy decisions about their own bodies and fertility — while assailing the flawed assumption that all women who choose to have children get to do so and even parent their own children.

For people in prison and jail, all these tenets are beyond reach.  Once incarcerated, people are stripped of bodily autonomy and the freedom and capacity to make healthy decisions over their own bodies in nearly all respects, including reproductive health.  In these environments, it is well documented that abortion access is heavily curtailed and in some cases non-existent, despite legal precedent that incarcerated people retain their right to abortion.  Protecting abortion care and access, contraception, and other sexual health care as part of a holistic approach to reproductive health care, for people in Texas and beyond, demands that we go beyond pushing the courts and political actors to protect Roe v Wade.  Protecting Roe is woefully insufficient in a society where any person is denied basic reproductive healthcare, including those who are incarcerated.  We must protect Roe while also ensuring it is a reality for incarcerated people. To do so, fighting to end mass incarceration altogether is critical.

October 23, 2021 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, October 19, 2021

Recordings of "Understanding Drug Sentencing" symposium’s panels now available

Regular readers surely recall various prior posts promoting the terrific conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which took place earlier this month on October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."   I am now pleased to be able to report that Recordings for six of the Understanding Drug Sentencing symposium’s panels are now available on the event site here. You can also find recordings via the DEPC playlist on YouTube here.

October 19, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, October 17, 2021

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

Download (20)This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 
Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 
This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

October 17, 2021 in Prisons and prisoners, Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Thursday, October 14, 2021

Latest issue of SMU Law Review focused on criminal justice reforms

I just had a chance to notice and note here that the Summer 2021 issue of the SMU Law Review has a great bunch of articles on a great array of criminal justice topics.  Here are all the pieces in the issue, all of which are relatively short and many of which relate to sentencing issues in various ways:

Reforming State Bail Reform by Shima Baughman, Lauren Boone, and Nathan Jackson

Power and Procedure in Texas Bail-Setting by Amanda Woog and Nathan Fennell

The Reform Blindspot by Irene Oritseweyinmi Joe, Shelly Richter, and Dayja Tillman

October 14, 2021 in Recommended reading | Permalink | Comments (0)

Tuesday, October 12, 2021

Rounding up some recent notable criminal justice commentary

With limited time and lots going on, a round-up of links allows me to highlight quickly some interesting recent criminal justice commentary:

From Balls and Strikes, by Josie Duffy Rice, "The Supreme Court Can't Deliver Justice for William Wooden: The Court’s preoccupation with the precise definition of “occasion” obscures a multitude of deeper failures of the criminal legal system." 

From Balls and Strikes, by Jordan Paul, "How Courts Robbed Juries of a Powerful Tool for Doing Justice: Jury nullification is a pre-colonial tool that allows jurors to send a message to the state that certain criminal prosecutions are unacceptable. But for centuries, courts have been working out to hollow that right."

From The Marshall Project, "When Mom Is In Prison — And When She Comes Home: 'Oh, Mother of Mine,' a short documentary and photography project by Anna Rawls, explores the generational impact of incarcerating mothers."

From National Review, by Kevin Williamson, "Criminal-Justice-System Error"

From Reason, by Ira Stoll, "The Varsity Blues Trial Is a Reminder of Our Corrupt Criminal Justice System: Plead guilty and get "punishments ranging from probation to nine months in prison." Insist on a trial and face decades in prison."

From The Oklahoman, by Archbishop Paul S. Coakley, "Oklahoma's rush to execute harms culture of life"

From Slate, by John Pfaff, "Why Our Fixation on the Murder Rate Is Killing Us"

October 12, 2021 in Recommended reading | Permalink | Comments (3)

Wednesday, September 22, 2021

Still more great essays at Inquest, including an especially disheartening book review

It has been a couple of weeks since I blogged about Inquest, which is "a forum for advancing bold ideas to end mass incarceration in the United States."  Though regular readers may tire of my promotion of the must-read essays on the site, I am not tired of spotlighting  these recently added pieces:

From Jessica González-Rojas, "Decarcerate Rikers Now: Nothing short of setting people free from the jail complex, and keeping others from going there, will prevent the death and hopelessness now ravaging it." 

From Shima Baradaran Baughman, Christopher T. Robertson & Megan S. Wright, "Cracking the Black Box: One way to keep prosecutors accountable and check their carceral impulses is by shedding some light on their vast discretion to charge crimes. Here’s a start." 

From Angel Harris, "A Judge on a Mission: Here's how a former public defender elected to judicial office in New Orleans works to chip away at mass incarceration." 

The newest posting is a book review by Daniel Harawa of Carissa Byrne Hessick's new book assailing plea practices.  The review make the dispiriting point that trials may be so biased against people of color that harmful plea practices may be the best we can hope for.   I recommend this piece in full, which is titled "Trials Without Justice: Plea bargaining may be a bad deal overall. But for many Black and Brown defendants, is the alternative any better?".  Here is a short excerpt:

Hessick’s portrayal of a plea system that’s out of control is compelling.  The solution that Hessick identifies — more trials — is important, but also raises additional questions and concerns that should not be ignored.  As Hessick explains, the problems with plea bargaining cut across racial lines, yet Black and Brown defendants have another question they must consider before standing on their trial rights — a question that white defendants can usually breeze past: How will their race affect trial?  Hessick acknowledges early on that because the book is “about the criminal justice system, it is inevitably a book about race.”  And as she shows, you cannot consider why someone may accept a guilty plea without thinking about why they would not risk trial . But there is an uncomfortable truth underlying the book: Black and Brown defendants may plead guilty because they think (or know) that they will not get a fair trial because of their race.  Just as the other coercion points that Hessick describes may push a defendant to plead guilty, so too may a defendant’s race.  The decision to go to trial can look very different for Black and Brown people than it does for white people.

September 22, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, September 14, 2021

Yet more must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Here is the latest trio:

Prior related posts:

September 14, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, September 09, 2021

Rounding up another round of terrific new essays at Inquest

It has been a couple of weeks since I blogged about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States." But while I have been busy on other fronts, the site continues to churn out must-read essays and so I must do another post to spotlight these additional recently added pieces:

From David Alan Sklansky, "An American Invention: In the struggle to end mass incarceration, one must understand how the criminalization of violence is largely a modern creation."

From Marlon Peterson, "A Disruptive Innovation: Dismantling the machine that is mass incarceration requires all of us to think outside the box."

From Katherine Beckett, Forrest Stuart & Monica Bell, "From Crisis to Care: For alternative responses to policing to work and reduce the footprint of the criminal legal system, they must work in concert and holistically to address both immediate and longer-term social needs."

From Kristin Henning, "Fear of the Black Child: American society and its criminal legal system simply won’t let Black kids be kids."

September 9, 2021 in Recommended reading | Permalink | Comments (0)

Sunday, August 29, 2021

Spotlighting yet another great array of essays at new Inquest website

I will again risk sounding like a broken record by blogging another time about the great new website Inquest, "a forum for advancing bold ideas to end mass incarceration in the United States."  Though I have previously highlighted over a dozen great essays posted in the first few weeks of the site, I must do another post to spotlight these additional new must-read pieces recently added:

From Renaldo Hudson, "Learning and Liberation: It’s no surprise we don’t want to give people a second chance, because too often we’re overwhelmed with being unforgiving."

From Schuyler Daum, "Maxed Out: Long a reflection of the American carceral system’s worst excesses, the supermax prison serves no just purpose and must cease to exist."

From Jane Bambauer, Sandra Mayson, Andrea Roth & Megan T. Stevenson, "Choosing Freedom: Would you rather have your wallet stolen on the street or spend two weeks in jail? How people answer this question can shed light on whether our detention policies make sense." By

"When You Hear Me, You Hear Us: Incarcerated as children, four gifted poets share their art, their experiences, and themselves."

August 29, 2021 in Recommended reading | Permalink | Comments (0)

Monday, August 23, 2021

Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

August 23, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, August 13, 2021

"Restorative Retributivism"

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

The current criminal justice moment is ripe for discussion of first principles.  What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration.  One theory recently put forth — reconstructivism — purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system.  It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts.  In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good.  Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories.  It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.

This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment.  While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological.  In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism.  Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism.  Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations.  This distinction has implications for how each theory might critique modern criminal law and punishment.  For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration — skeptically, and the modern approach to punishment — both in theory and its carceral form — as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing.  This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good.  It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization.  In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

August 13, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, August 12, 2021

Another round of terrific essays at new Inquest website

I am at risk of sounding like a broken record here as I keep blogging about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  But even though I have already flagged nearly a dozen of the great essays that were at the site before this week, I still feel compelled to add this post to spotlight these three more must-reads added this week:

From Charles Fried, "A Failure of the Imagination: Like torture and the death penalty, mass incarceration is life-destroying. And indefensible."

From Darcy Covert & A.J. Wang, "A Most Carceral Friend: The Justice Department’s top Supreme Court lawyer is far more committed to helping prosecutors win convictions and keep people locked up than to 'doing justice'."

From Colin Doyle, "The Feature Is the Bug: For all the criticism they get, algorithms can be unlikely allies in exposing deep, structural injustices that entrench mass incarceration."

August 12, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, August 11, 2021

Part 3 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20282e1172fad200b-320wiIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the third and final post of this set (following the first and second).

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In two previous blogs about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I described its thesis that risk assessment instruments (RAIs) can reduce incarceration in a cost-effective manner, and the “jurisprudence of risk” it advances that aims to ensure accurate and fair instruments that, among other things, avoid racially disparate outcomes.  To take full advantage of risk assessment’s potential for curbing incarceration and rationalizing sentencing, however, we must also rethink our current punishment regime, which is another goal of the book.

In the past 50 years, a large number of states have moved away from indeterminate sentences controlled by parole boards toward determinate sentencing, which shifts power to prosecutors who can now essentially dictate the sentence received after trial through the charging decision.  Most of the states that have not adopted determinate sentencing have effectively gone in the same direction by significantly circumscribing the authority of parole boards to make release decisions.  These changes were understandable, given the dispositional disparities that occurred with indeterminate sentencing, the checkered history of parole boards, and the difficulty of assessing risk and rehabilitative potential.

With the advent of more accurate and objective predictive algorithms, however, indeterminate sentencing should be given a second chance. More specifically, while judges should still impose a sentence range that is determined by desert, risk-needs algorithms should be instrumental in determining whether offenders who are imprisoned stay there beyond the minimum term of that sentence.  Sentencing would no longer be based on convoluted front-end calculations which attempt to divine the precise culpability of the offender, tempered or enhanced by the prosecutor’s or the judge’s speculative intuitions about deterrence, risk or rehabilitative goals.  Rather, after the judge imposes the retributively-defined sentence range based on the charge of conviction, offenders would serve the minimum sentence (which for misdemeanors and lower level felonies may not involve prison), and only be subject to prolonged restraint if they are determined to be high risk via a validated RAI.  In this form of limiting retributivism, desert would set the range of the sentence, risk its nature and duration.

With this type of sentencing system, not only will the arbitrariness of the old parole-driven scheme be reduced, but the power structure within the criminal justice system will be profitably re-oriented.  Today, the plea bargaining process allows prosecutors to threaten draconian sentences that bludgeon defendants, even innocent ones, into accepting convictions without trial.  If, instead, post-trial dispositions within the sentence range depend on a parole board’s determination of risks and needs, the ultimate disposition after a trial will be unknowable, and prosecutorial bargaining power inevitably would be reduced. Defendants can turn down prosecutorial offers with virtual impunity if they are considered low risk.  And even high risk defendants might want to roll the dice with the parole board. Innocent people would be much less likely to plead guilty, and guilty people would be much less likely to acquiesce to harshly punitive bargains.  The prosecutor’s main leverage will come from offers of reduced charges or alternatives to prison, because with parole boards controlling release, threats to recommend the maximum sentence to the judge will be meaningless.

These proposals may appear to be radical. But in fact they merely reinstate a version of the sentencing regimes that existed in much of this country before the middle of the twentieth century, when dispositions were more flexible and plea bargaining and guilty pleas were less dominant.  At the same time, a key difference in these proposals, and the primary reason rejuvenating indeterminate sentencing is justifiable, is the reliance on risk assessment algorithms.  Without them, judges and parole boards are simply guessing about dangerousness, and their default judgment — absent heroic efforts to resist public pressure and normal human risk-averseness — will be to find that offenders pose a high risk of reoffending.  With them — and assuming their results are treated as presumptive — judges who refuse to imprison an offender and parole boards that make a release decision can point to known base rates (which, in the case of violent crime, are very low) and can blame the algorithm if things go awry.

The overarching hypothesis of this book is this: Whether implemented prior to trial in lieu of the bail system, or post-conviction in lieu of unstructured predictive decision-making, just algorithms can be a central component of any effort to reduce the human and financial cost of incarceration, without sacrificing public safety.  That hypothesis may be wrong, but it is worth a fair test.  Because when developed and used in a manner consistent with a coherent jurisprudence of risk, algorithms could be the single most potent mechanism we have for bringing about real reform of the American criminal justice system.

I want to thank Doug Berman again for letting me describe my book on his Sentencing Law & Policy Blog.

August 11, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, August 10, 2021

Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

August 10, 2021 in Recommended reading | Permalink | Comments (0)