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 (0)

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 (0)

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)

Sunday, August 08, 2021

Part 2 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20224df387165200bIn 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 second of the set.

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In a previous blog post on my new book Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I made the case for using risk assessments instruments (RAIs) in the pretrial and post-conviction process as a means of reducing incarceration through providing more accurate and cost-effective assessments of the risk of reoffending.  But not all risk assessment instruments are created equal.  Although algorithms, on average, are superior to unstructured judgment when it comes to prediction, many are seriously defective in a number of respects.  A major goal of my book is to provide a set of principles meant to govern the development of these instruments and to guide judges and other criminal justice actors in determining which measures to use and for what purposes.  Influenced by insights gleaned from the algorithms themselves, it advances, in short, a much-needed “jurisprudence of risk” analogous to the jurisprudence of criminal liability that has long governed the definition of crimes and the scope of punishment.

The first part of the book’s title points to one important aspect of this jurisprudence.  If the recommendations in this book are followed, the usual approach taken by legal decision-makers — which is to treat the algorithmic forecast as simply one factor relevant to risk assessment — would generally be impermissible.  “Adjusting” the results of a well-validated RAI, based on instincts and experience, defeats the purpose of using an RAI, especially when the decision-makers’ intuition about risk is based on factors that have already been considered in the tool.  Incorporating human judgment into the risk assessment will usually make matters worse when the RAI meets the basic requirements outlined in this book.  This notion is one meaning — the literal one — of “Just Algorithms.”

The second meaning of that title is even more important.  Properly cabined, predictive algorithms can be just.  Numerous writers have argued to the contrary, pointing in particular to racial disparities among those who are identified as high risk.  But even if such disparities do exist, they do not necessarily make risk algorithms unjust.  This book takes the position that the fairest approach to evaluating risk is to treat people who are of equal risk equally.  The primary goal of an RAI should be to identify accurately those who are high risk and those who are low risk, regardless of color, even if that means that a greater percentage of people of color are identified as high risk.  At the same time, it must be recognized that assessments of risk may be inaccurate if the influence of racialized policing and prosecutorial practices on the validity of assessment instruments is not taken into account.

Another, related complaint about predictive algorithms — one that has special salience at sentencing and other post-conviction settings — is that punishment should never be based on conduct that has not yet occurred, both given the uncertainty of prediction and its insult to human dignity and autonomy.  The point this book makes on this score is, again, a comparative one.  The primary competitor to sentencing that considers risk is a purely retributive system — one that relies solely on backward-looking assessments of criminal conduct and the mental states that accompany it.  But such a system is rife with speculative claims about just desert, and can be remarkably inattentive to the impact of mitigating human foibles.  Properly regulated algorithmic risk assessments, in contrast, can differentiate high and low risk offenders at least as reliably as judges and juries can calibrate culpability, and can do so without abandoning condemnation based on blame, especially if sentences ranges are still based on retributive principles.  The needs part of theassessment can also facilitate the identification of autonomy-affirming and dignity-enhancing treatment programs that help offenders help themselves.

To realize the full potential of RAIs in the sentencing setting, however, the current fixation on determinate sentencing needs to be rethought.  That is the subject of my third and final blog, soon to come.

Prior related post:

August 8, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, August 06, 2021

Rounding up some recent reads as another summer week winds down

I am already getting that summer-winding-down feeling, and so I am trying to savor every week of my favorite season.  Part of summer savoring means not always finding time to blog about every notable story and commentary I see, and here are just a few from this week that seemed worth flagging:

From BuzzFeed News, "The Biden Administration Is Rejecting 'The War On Drugs' And Turning To 'Harm Reduction'"

From The Conversation, "Pandemic pushed defendants to plead guilty more often, including innocent people pleading to crimes they didn’t commit"

From The Crime Report, "Cops on the Campaign Trail: A New Force in US Politics?"

From Reason, "The Government Says These Missouri Men Are Innocent. It Won't Release Them From Prison."

From the New York Times, "If You Paid Your Debt to Society, You Should Be Allowed to Work"

From the Washington Post, "If Biden abolishes the federal death penalty, he’ll have more support than you think"

August 6, 2021 in Recommended reading | Permalink | Comments (2)

Thursday, August 05, 2021

Prof Slobogin discussing Just Algorithms in guest posts

6a00d83451574769e20224df387165200bIn this recent post, I flagged a notable new forthcoming book authored by Christopher Slobogin.  I asked Prof Slobogin if he might be interested in sharing some key ideas from this important book in a set of guest posts. He kindly agrees, and here is the first of the set.

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Doug has graciously invited me to blog about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press). There follows the first of three excerpts extracted from the Preface (the next two coming soon):

Virtually every state has authorized the use of algorithms that purport to determine the recidivism risk posed by people who have been charged or convicted of crime. Commonly called risk assessment instruments, or RAIs, these algorithms help judges figure out whether individuals who have been arrested should be released pending trial and whether a convicted offender should receive prison time or an enhanced sentence; they assist parole boards in determining whether to release a prisoner; and they aid correctional officials in deciding how offenders should be handled in prison.  Most of these algorithms consist of from five to 15 risk factors associated with criminal history, age, and diagnosis, although an increasing number incorporate other demographic traits and psychological factors as well. Each of these risk factors correlates with a certain number of points that are usually added to compute a person’s risk score; the higher the score, the higher the risk.  Some tools may also aim at identifying needs, such as substance abuse treatment and vocational training, thought to be relevant to rehabilitative interventions that might reduce recidivism. This book will provide examples of a number of these instruments so that the reader can get a sense of their diversity and nuances.

One purpose of this book is to explain how risk algorithms might improve the criminal justice system.  If developed and used properly, RAIs can become a major tool of reform. They can help reduce the use of pretrial detention and prison and the length of prison sentences, without appreciably increasing, and perhaps even decreasing, the peril to the public (goals that are particularly pressing as COVID-19 ravages our penal facilities).  They can mitigate the excessively punitive bail and sentencing regimes that currently exist in most states. They can allocate correctional resources more efficiently and consistently.  And they can provide the springboard for evidence-based rehabilitative programs aimed at reducing recidivism. More broadly, by making criminal justice decision-making more transparent, these tools could force long overdue reexamination of the purposes of the criminal justice system and of the outcomes it should be trying to achieve.

Despite their potential advantages, the risk algorithms used in the criminal justice system today are highly controversial.  A common claim is that they are not good at what they purport to do, which is to identify who will offend and who will not, who will be responsive to rehabilitative efforts and who will not be.  But the tools are also maligned as racially biased, dehumanizing, and, for good measure, antithetical to the foundational principles of criminal justice.  A sampling of recent article and book titles makes the point: “Impoverished Algorithms: Misguided Governments, Flawed Technologies, and Social Control,” “Risk as a Proxy for Race: The Dangers of Risk Assessment,” “Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor.” In 2019, over 110 civil rights groups signed a statement calling for an end to pretrial risk assessment instruments.  That same year 27 Ivy League and MIT academics stated that “technical problems” with risk assessment instruments “cannot be resolved.”  And in 2020 another group of 2323 scholars from a wide range of disciplines “demanded” that Springer publishing company, one of the largest purveyors of healthcare and behavioral science books and journals, “issue a statement condemning the use of criminal justice statistics to predict criminality” because of their unscientific nature.

A second purpose of this book is to explore these claims.  All of them have some basis in fact.  But they can easily be overblown.  And if the impact of these criticisms is to prevent the criminal justice system from using algorithms, a potentially valuable means of reform will be lost.  A key argument in favor of algorithms is comparative in nature.  While algorithms can be associated with a number of problems, alternative predictive techniques may well be much worse in each of these respects.  Unstructured decision-making by judges, parole officers, and mental health professionals is notoriously bad, biased and reflexive, and often relies on stereotypes and generalizations that ignore the goals of the system. Algorithms can do better, at least if subject to certain constraints. .

In blogs to come I describe these constraints, and how RAIs can be integrated into the criminal justice system.

August 5, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, August 04, 2021

Still more great new content at great new Inquest website

blogged here last week about the launch of the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  I have flagged here and here the first eight great essays at the site, and now I see these two more must reads:

From Nancy Gertner, "Unfinished Business: Reckoning with the lives of all the men I sent to prison is a necessary, though not sufficient, step to reckon with the untold harm of mass incarceration."

From Kay Whitlock & Nancy A. Heitzeg, "Unraveling Carceral Reach: The work of addressing harm without more prisons, police, and punitiveness is daunting. But it can be done. And it’s happening now."

UPDATE: Since my posting, once more notable commentary went up at Inquest:

From Kenithia Alston & Emanuel Powell, "The Other Gun Violence: Shifting the narrative and policies on gun violence to include killings by police may spare many families from the pain of losing loved ones.

August 4, 2021 in Recommended reading | Permalink | Comments (0)

Tuesday, August 03, 2021

Rounding up just some notable Crime Report coverage and commentary

I have previously praised The Crime Report for its coverage and commentary on a range of criminal justice stories, and I try to make sure I check out this great resource regularly.  But today I got via email a weekly review of Crime Report pieces, and I realized I had missed a lot of important recent work.  These stories, in particular, seemed worth flagging for sentencing fans:

August 3, 2021 in Recommended reading | Permalink | Comments (0)

Sunday, August 01, 2021

Great new pieces in Akron Law Review's criminal justice reform issue

In the production of this recent post discussing a plea bargaining article by an Ohio Supreme Court Justice, I discovered that the current issue of the Akron Law Review is all about criminal justice reform with a set of articles all on topics that ought to be of interest to sentencing fans.  Here are the main articles from this issue:

"Sentencing by Ambush: An Insider's Perspective on Plea Bargaining Reform" by Justice Michael P. Donnelly

"The Continuing and Unlawful Exclusion of Qualified Ex-Offenders from Jury Service in Ohio" by Jordan Berman

"Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated" by James R. Acker and Brian W. Stull

August 1, 2021 in Recommended reading | Permalink | Comments (0)

Friday, July 30, 2021

Lots and lots more great new content at great new Inquest website

I blogged here earlier this week about the launch of the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  This week the site already has so much great and important new content, I am already falling behind in trying to keep up with this new forum.  Valuably, I have this blog space to note (and then later return to) all the significant new content filling this new site:

"Incarceration by Another Name: Jurisdictions are selling electronic monitoring as an alternative to imprisonment. It’s anything but." By James Kilgore, Emmett Sanders & Kate Weisburd

"The Keeper and the Kept: The carceral system dehumanizes not just the people we condemn, but also its massive workforce." By Kaia Stern

"Carceral Democrats: There is empirical evidence that Democratic governors will outspend and out-incarcerate Republicans if their reelection depends on it. That’s entirely avoidable."  By Anna Gunderson

"Immigration Imprisonment Is a Choice: Quickly, legally, and unilaterally, the Biden administration could easily free tens of thousands trapped in ICE detention. Whether it wants to is another story."  By César Cuauhtémoc García Hernández

July 30, 2021 in Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, July 27, 2021

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

July 27, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Technocorrections, Who Sentences | Permalink | Comments (0)

Monday, July 26, 2021

Excited for the launch of Inquest, "a forum for advancing bold decarceral ideas"

E676CJ9WQAEKg4PI was pleased to receive via email this morning the first official announcement of Inquest, which as explained here "is published by the Institute to End Mass Incarceration [but] not the voice of the Institute."   Here are excerpts from the Inquest mission page:

Inquest is a forum for advancing bold ideas to end mass incarceration in the United States. Here, you will find original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that mass incarceration is an epic injustice that can and must urgently end.

Our authors include leading and new voices across fields, from activism and community organizing, to law and policy, to academia, journalism, and public health. Drawing on their lived experience and their accumulated wisdom, they come here to share ideas, narratives, and analyses that boldly explore the causes and consequences of mass incarceration and that provoke rigorous discussion — all aimed at driving thoughtful action....

Rather, our mission is to create a space where the voices of those doing the thinking and the work — the people closest to the problem, including those directly impacted by mass incarceration — can come together to share ideas and be heard as they pursue bold solutions.

And here is some of the text from the introductory email that I received along with links to the first set of materials and essays on the site:

We are so excited to share this new publication and its core mission with you.  Our opening slate of original, thought-provoking essays is below.  We hope you will take a look today and come back often. Inquest is a forum for advancing bold ideas to end mass incarceration.  The publication features original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that our system of mass incarceration can and must urgently end....

Read a welcome note from our founding editors and visit Inquest to check out our opening slate of essays, all linked below:

Joel Castón, the first incarcerated person ever elected to public office in Washington, D.C., shares his story and vision with Inquest.

Tomas Keen, incarcerated in Washington State, highlights the problems with a prison closure plan.

"To get to real justice, we have to stop depending on the department bearing that name." — Rachel Barkow & Mark Osler

Maneka Sinha on forensics: "[M]any of the reforms proposed to date . . . serve to shore up the legitimacy of the field in the same ways that conventional reform proposals do in the policing context."

All these essays look great, and I am very excited to keep up with both Inquest and the new Institute to End Mass Incarceration.

July 26, 2021 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, July 18, 2021

Catching up on notable mid-summer stories and commentary

The middle of July continues to bring many criminal justice stories and commentaries worth a read, and so here is a round up of links to catch up:

From CNN, "How crime stats lie — and what you need to know to understand them"

From The Crime Report, "Dream Corps Launches Campaign to Close Federal Prisons"

From The Marshall Project, "Inside The Nation's Overdose Crisis in Prisons and Jails"

From The Marshall Project, "Everyone on Death Row Gets a Lawyer. Not Everyone Gets a Kim Kardashian."

From NJ.com, "N.J. has dismissed 88K weed cases under new marijuana law"

From Politico, "4 wealthy donors fuel overhaul of California's criminal justice system"

From the New York Times, "A Pause in Federal Executions, but Uncertainty About What’s Next"

From the Washington Post, "Mass incarceration is bad law enforcement policy. It's bad for the economy, too."

July 18, 2021 in Recommended reading | Permalink | Comments (0)

Monday, July 12, 2021

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

July 12, 2021 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, July 11, 2021

Lots more notable weekend reading

Before the long holiday weekend, I flagged in this post (too) many stories and commentaries worth a read.  A subsequent work week and weekend, though shorter, still produced another long list of pieces criminal justice fans might want to check out:

From The Hill, "Biden under pressure to pick new breed of federal prosecutors"

From National Review, "Prison Reform Takes Center Stage at CPAC"

From the New York Times, "How Should We Do Drugs Now?"

From the New York Times, "The Real Toll From Prison Covid Cases May Be Higher Than Reported"

From Reason, "He Sold $20 Worth of Drugs. Prosecutors Want Him in Jail for Almost 10 Years—and More if He Refuses the Plea Deal."

From Slate, "It’s Time for a New Crime Bill"

From Slate, "Joe Biden Is Doing Nothing to Prevent Another Federal Execution Spree"

From The Trace, "Illinois Has a Program to Compensate Victims of Violent Crimes. Few Applicants Receive Funds."

July 11, 2021 in Recommended reading | Permalink | Comments (0)

Friday, July 02, 2021

Lots of recommended reading for a long weekend

A busy week has meant a lot of interesting stories and commentaries have piled up on my "to read" list.  Fortunately, I have a long weekend to catch up.  Here is a (only partial) list of pieces that seem worth checking out:

From the Albuquerque Journal, "It makes humane, fiscal sense to release nonviolent inmates"

From Business Insider, "4,000 Americans were sent home from prison during COVID. They repaired their lives, but now could be forced back to prison because of a ridiculous technicality."

From the Christian Science Monitor, "How race shaped the South’s punitive approach to justice"

From The Crime Report, "Time to End Crack-Cocaine Disparity Once and For All: Police Group"

From The Marshall Project, "Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say"

From The Marshall Project, "Lost Opportunity, Lost Lives: During the pandemic, prison officials could have prevented sickness and death by releasing those who were most vulnerable to coronavirus and least likely to reoffend — older incarcerated people."

From Newsweek, "The End of Mass Incarceration Is Within Reach"

From New York, "Progressives Don’t Need to Downplay Rising Homicides"

From the New York Times Magazine, "I Write About the Law. But Could I Really Help Free a Prisoner?"

From Politico, "Can Journalism Wean Itself Off the Cheap Clicks of Bad Crime Coverage?"

From the Texas Observer, "A Wrongful Execution in Texas Points to the Fallibility of the Death Penalty"

From the Washington Post, "What’s striking about Biden’s crime plan? It actually focuses on reducing crime."

From The Washington Times, "Building off the First Step Act"

July 2, 2021 in Recommended reading | Permalink | Comments (0)

Monday, June 07, 2021

Three more great new essays in Brennan Center's "Punitive Excess" series

highlighted here last month a new essay series assembled by the Brennan Center for Justice titled "Punitive Excess."  I am pleased to see that a essays continue to be added to the series on a regular basis, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

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

Tuesday, May 25, 2021

Latest Federal Sentencing Reporter issue explores data and sentencing from many perspectives

M_fsr.2021.33.4.coverI am so very pleased to report on that the latest issue of the Federal Sentencing Reporter is now available online here.  This issue is titled "Making Sense of Sentencing Data" and it has a number of terrific articles from an array of authors examining sentencing data issues from a number of perspectives.  I highly encourage everyone to check out the full issue, and here is a list of the original articles in this FSR issue:

Deciphering Data by Steven L. Chanenson & Douglas A. Berman

Mapping The Modern Sentencing Data Landscape From the Bird’s Eye: The Sixth Circuit’s Efforts to Breathe Life into Substantive Reasonableness Review by Xiao Wang

Harnessing the Power of Data: The Role of Sentencing Commissions in the Information Age by Mark H. Bergstrom, Brett A. Miller & Jordan T. Zvonkovich

The Ohio Data Story in Three Part: The Setup, the Confrontation, and the Resolution by Sara Andrews

The Relationship of Judicial and Prosecutorial Elections to the Availability of Sentencing Data in the United States by Niki Hotchkiss

Anticipating the Judicial Response to Ohio’s Proposed Statewide Sentencing Database by Scott A. Anderson

Here Come the Judges: A Judicial Response to Anticipated Concerns over a Statewide Criminal Sentencing Database—Aligning Algorithmic Risk Assessments with Criminal Justice Values by Justice Michael P. Donnelly, Judge Gene A. Zmuda & Judge Pierre H. Bergeron

Under a Microscope? Show Them the Data by Judge Jeffrey L. Reed

Overview of State Sentencing Commissions’ Drug Data Reporting Practices by Benjamin L. Chanenson

Why and How We Need to Fill Criminal Justice Data Gaps by Arthur Rizer & Dan King

Good Data, Good Law by John Tilley, Serena Chang & Richard J. Peay

Using Data to Achieve Justice Reform by Ashley Nellis

Seeking Racial Justice Through Data in 2021 and Beyond by Melba V. Pearson

COVID-19 Vaccine Refusal and Related Factors: Preliminary Findings from a System-Wide Survey of Correctional Staff by Jordan M. Hyatt, Valerio Baćak & Erin M. Kerrison

Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads by Mugambi Jouet

May 25, 2021 in Data on sentencing, Recommended reading | Permalink | Comments (0)

Sunday, May 23, 2021

More notable new essays in Brennan Center's "Punitive Excess" series

I highlighted here last month a new essay series assembled by the Brennan Center for Justice, titled "Punitive Excess," in which "writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm."  The first three essays in the series were linked in this prior post, and now I see that these three additional essays have been added to the series:

May 23, 2021 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Friday, May 21, 2021

"Population-Based Sentencing"

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

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses.  How have courts responded to this trend?  Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques.  First, the courts have expanded individual procedural rights into sentencing where they once did not apply.  Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants.  These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract.  While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration.  However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward.

May 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, May 20, 2021

Rounding up a lot of interesting new news and commentary

Many days it often seems like there is just too much notable news coverage and good commentary on sentencing matters for me to keep up.  Today was one of those days, and so I will catch up with a round-up of headlines and links:

From Brittany K. Barnett via USA Today, "Release people incarcerated under draconian marijuana laws"

From the Christian Science Monitor, "What Supreme Court’s jettisoning of precedent may mean for future"

From Daniel Nichanian at The Appeal, "Wins for Larry Krasner and New Allies Signal Reformers' Growing Reach"

From the Desert News, "Sen. Mike Lee and Orrin Hatch: Botching criminal justice reform comes at a steep cost"

From NorthJersey.com, "NJ allows non-violent drug offenders to apply for new sentences"

From NPR, "Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison"

From Udi Ofer at The Hill, "President Biden can prevent over 4,000 people from being sent back to prison"

From WSB-TV (Georgia), "Some local judges offering sentence reductions to offenders who get vaccinated"

May 20, 2021 in Recommended reading | Permalink | Comments (0)

Tuesday, May 18, 2021

"The Feminist Script for Punishment"

The title of this post is the title of this new article/book review by I. India Thusi now available via SSRN.  Here is its abstract:

In her new book, The Feminist War on Crime, Professor Aya Gruber provides a critique of feminists, who have sought political vindication through a governance of punishment. Professor Elizabeth Bernstein coined the term “carceral feminism” to describe the feminist commitment to “a law and order agenda and . . . a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”  While feminist movements have expanded the opportunities available to women and girls, too often their means for achieving these accomplishments have been paved on a path of the privileges of feminist elites.  These privileges are immune from the pressures of multiple forms of subordination that form the interstitial web of inequality that many other women encounter.  These other women are also Other women, in that they are often outsiders in American society, not just because they are women, but also because they are women of color, poor, immigrant, less educated, disabled, and/or queer.  The positionality of these Other women is important because they often have personal experiences that make engagement with the state apparatus for punishment undesirable.  Black feminists advanced the concerns of the Other women through their activism for state responses that address the systemic, material conditions that make women vulnerable to violence, rather than through engagement with the technologies of punishment.  Other women have experienced state violence, either through the inherited trauma that runs in their blood from the violence against their ancestors, or through their daily experiences of everyday subordination within their communities. White, elite feminists have often missed their perspectives.  Or, at times, they have outright demeaned their perspectives. Either way, the path to gender equality has had an unsettling entanglement with carcerality. And the logics of punishment and imprisonment have informed feminist demands for reforms. This feminist fascination with the carceral is the subject of Gruber’s book.

Gruber’s historical analysis of the entanglement between feminism and incarceration illustrates that the feminist rage against the patriarchy has at times transformed into retributivist impulses to punish, which contradict feminist values and exacerbate social injustice. Gruber recounts several examples of feminist campaigns that advanced a feminist script for punishment.  Many of these campaigns were motivated by the laudable aim of eradicating violence against women and improving women’s ability to lead safe and healthy lives.  The various feminist campaigns for more punishment occurred in different decades and had various leaders. But they all share a common script about punishment.  They developed similar story lines about women.  They painted victims and villains that look remarkably similar through the decades.  They subscribe to the same dominant story about the role of the criminal law as a sword against perpetrators.  While the individual characters in the script vary and are not always identical, many of the elements that advance their pleas for additional punishment are remarkably similar.  These stories follow the same script: a feminist script for punishment.

May 18, 2021 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (1)

Sunday, May 16, 2021

More details on "Justice Counts," a notable (and needed) criminal justice data collection effort

Justice-Counts-Powerpoint2-scaled-500x500-c-defaultI flagged in this post a few weeks ago the great online panel event hosted by the Drug Enforcement and Policy Center, in collaboration with National Association of Sentencing Commissions, titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  I am pleased to be able to now report that the video and transcript of this event are now available at this DEPC webpage, and the discussion has me quite excited for the Justice Counts data collection efforts that, as this website explains, aspires to provide "public, aggregate criminal justice data, which will provide policymakers in every state with timely information about their criminal justice systems, existing gaps in data collection, and opportunities to do better." 

Helpfully, the folks at ASU Crime and Justice News covered this event and provided an effective written summary of the discussion at this link.  Here are excerpts of this accounting of efforts to account for justice:

Criminal justice policy makers long have been plagued by a lack of good data on how the justice system operates, from arrests to imprisonments. In an effort to fill many of the gaps, the Council of State Governments Justice Center (CSG) has launched a project called Justice Counts that will provide state-by-state numbers on important parts of the justice process.  A website under development for the last year is expected in June to begin displaying numbers from state corrections systems, including counts of prisoners and people on probation and parole. 

In the past, such national data has been available on a consistent basis from the U.S. Bureau of Justice Statistics, which collects it from the states but often publishes it a year or more later, making it immediately out of date....  The new corrections data to be published should be timely after a year in which there have been more shifts than usual in prison and jail populations during the coronavirus pandemic, with many states and localities freeing inmates in advance of their expected release dates.

CSG staffers gave a preview of the new site on Tuesday to a webinar sponsored by the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center at The Ohio State University. 

All states were asked to provide data to the central site. It is not yet available on a uniform basis because states compile it at different intervals, whether daily, weekly or monthly.

As of now, CSG has current prison population data from 36 states and numbers on various aspects of corrections, such as the number of state prisoners sent by courts or behind bars because they violated parole conditions, from varying numbers of states, ranging from seven in one category to 19 in another.  Eventually, the website will feature metrics such as the cost of corrections systems and whether they are achieving their goals.

Some recent related posts:

May 16, 2021 in Data on sentencing, Detailed sentencing data, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, May 13, 2021

New UCLA Law Review special issue examines "Jailhouse Lawyering"

I was pleased to see this notable new UCLA Law Review special issue devoted to "Jailhouse Lawyering."  The issue's introduction is available at this link and here is the end of its overview:

In this series, authors with experience as jailhouse lawyers and journalists behind bars write about the legal issues and systems affecting incarcerated persons today.  They share stories shaped by litigation and legal research.  They make arguments rooted in both their lived experiences and an extensive knowledge of the law.  Each of these authors — and countless others — is a testament to the power and tradition of jailhouse lawyering.  We are proud to feature their work here and look forward to the day when they are acknowledged and respected for their immeasurable contributions to the field.

Here are the articles in this great-looking special issue:

Barriers to Jailhouse Lawyering by Rahsaan "New York" Thomas 

Broken Systems: Function by Design by Phal Sok 

Applying for Compassionate Release as a Pro Se Litigant by Lynn Reece

Insurgent Knowledge: Battling CDCR From Inside the System. The Story of the Essential Collaboration Between Jailhouse Lawyers and Appointed Counsel & Lessons for Resentencing Today by Stephen Liebb & Gina Cassar

Bound by Law, Freed by Solidarity: Navigating California Prisons and Universities as a Jailhouse Lawyer by Michael Saavedra

What You Didn’t Know About Adelanto Immigration Detention Center by Anna Solodovnikova

Challenging Gladiator Fights in the CDCR by Kevin McCarthy

To Act Like a Democracy by Juan Moreno Haines

Jailhouse Lawyering From the Beginning by Kevin D. Sawyer

Making Bricks Without Straw: Legal Training for Female Jailhouse Lawyers in the Louisiana Penal System by Robin Bunley

An Old Lawyer Learns New Tricks: A Memoir by James C. Bottomley

May 13, 2021 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, May 08, 2021

"Encouraging Desistance from Crime"

The title of this post is the title of this extended literature review authored by Jennifer Doleac and now available via SSRN discussing lots of empirical research that may not be familiar, but should be of great interest, to lawyers and advocates.  Here is its abstract:

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities.  There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison.  This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

May 8, 2021 in Collateral consequences, Detailed sentencing data, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Friday, April 30, 2021

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Sunday, April 25, 2021

"A Primer on Risk Assessment for Legal Decisionmakers"

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

This primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use.  It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly.  This primer does not take a position on whether RAIs should be integrated into the criminal process.  Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use.

April 25, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, April 16, 2021

Lots and lots more good reads from The Appeal

I said here earlier this month that "just about every week, The Appeal has too much great new criminal justice content for me to keep up with."  This week serves as another example, so I will again try to make up for limited time with this round-up of links to highlight some of notable recent Apppeal-ing content:

By Maura Ewing, "Philadelphia D.A. Race Could Ramp Up The War On Drugs. Larry Krasner has been dropping drug possession charges at a growing pace. But his challenger in the May 18 primary wants to send these cases to drug court."

By Piper French, "Oregon’s Tough-On-Crime D.A. Association Faces A Reckoning. Three district attorneys are speaking out against Oregon’s “one-strike-you’re-out” law and breaking ranks with a prosecutors‘ lobby that has long pushed for harsh policies."

By Nikki Trautman Baszynski, "Prosecutors Should Stop Seeking the Death Penalty.  A growing number of Americans oppose the death penalty, but prosecutors — even some who call themselves “progressive”—continue to seek it. All prosecutors should stop pursuing and protecting capital convictions."

By Nikki Trautman Baszynski, "States Should Follow New York’s Lead On Restricting Solitary Confinement. Prisons and jails routinely use prolonged solitary confinement—holding someone in a cell for more than 22 hours a day with no meaningful human contact. New York just passed the HALT Act to limit this inhumane practice, and others states should do the same."

By Elizabeth Weill-Greenberg, "‘It Tears Families Apart’: Lawmakers Nationwide Are Moving to End Mandatory Sentencing. Repealing state and federal mandatory minimums will help address the mass incarceration crisis, advocates hope."

By Elizabeth Weill-Greenberg, "Maryland Bans Sentencing Children To Life Without Parole. The bill gives hundreds of people an opportunity to petition for earlier release."

April 16, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, April 13, 2021

Brennan Center launches notable new essay series titled "Punitive Excess"

I was very pleased to receive a few emails this morning alerting me to a new essay series unveiled today by the Brennan Center for Justice, titled "Punitive Excess." Here is how L.B. Eisen, the Director of the Brennan Center Justice Program, describes this notable new series of essays:

America’s criminal legal system is unduly harsh.  Experts explain how we got here and solutions that will benefit everyone.

America can’t shrink its reliance on mass incarceration until we confront our approach to punishment.  These essays by renowned experts in a variety of fields focus on our deep-rooted impulse to punish people in ways that are far beyond what could be considered proportionate.  Together, they illustrate how necessary it is to rein in the punitive excess of the criminal legal system, which is inexorably entwined with the legacy of slavery. T hey also highlight how we have marginalized poor communities and people of color through criminalization and punishment.

Addressing a range of issues — from policing to prosecution to incarceration to life after prison — the writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm. The essays explore whether, when, and how we could have made different decisions that would have changed the way these systems of punishment and social control evolved.

Looking ahead, they also ask how we can learn from this failed experiment with mass incarceration and prioritize human dignity over human misery.  We hope this series will spur increased discussion on these vital topics.

And here are the first set of essays in the series:

April 13, 2021 in Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Friday, April 09, 2021

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Tuesday, April 06, 2021

Just a week's worth of good reads from The Appeal

Just about every week, The Appeal has too much great new criminal justice content for me to keep up with. So, as I often like to do, I will try to make up for limited time with a round-up of links that here merely highlight some of this notable recent content:

By Elizabeth Weill-Greenberg, "Unless Biden Acts, Thousands Could Go Back To Federal Prison: A Department Of Justice Memo From January Could Have A Devastating Effect On Many Federal Prisoners Who Have Been Released On Home Confinement."

By Veronica Riccobene, "Cuomo Concedes On Two Big Wins For Criminal Justice Reform: The Embattled New York Governor, Who Advocates Describe As A Longtime Impediment To Reform, Signed Bills To Legalize Marijuana And Considerably Restrict Solitary Confinement In The State."

By Molly Greene, "States Should Abolish “Felony Murder” Laws: A Person Who Didn’t Commit Murder Shouldn’t Be Charged With It—But Felony Murder Laws Allow Prosecutors To Do Just That. States Should Repeal These Draconian And Unjust Laws."

By Elizabeth Weill-Greenberg, "D.A.s Are Asking Biden To End The Death Penalty. But Some Are Still Wielding It Themselves: Prosecutors Who Have Championed Criminal Justice Reforms Are Still Seeking Death Sentences, Opposing Appeals, And, In Some Cases, Have Even Petitioned For Execution Dates."

April 6, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, March 31, 2021

Rounding up some (not-qute) mid-week reads

I have seen a lot of blog-worthy stories in recent days, not all of which are from this week, but all of which are worth checking out:

From CNN, "Baltimore will no longer prosecute drug possession, prostitution and other low-level offenses"

From The Hill, "Biden urges leniency for harsh crack sentences fueled by his crime bill"

From NBC News, "Texas woman sentenced to five years for trying to vote gets new appeal"

From NPR, "When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased"

From Reason, "They Served Their Sentences. Now They Want To Know When They Can Go Home. Programs that keep sex offenders indefinitely confined face new challenges."

From USA Today, "Orrin Hatch: Resolving hardships for children, families key to criminal justice reform"

March 31, 2021 in Recommended reading | Permalink | Comments (1)

Saturday, March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Friday, March 26, 2021

"The New York State Trial Penalty: The Constitutional Right to Trial Under Attack"

NYS_Trial_PenaltyThe title of this post is the title of this big new report released today by NYSACDL and NACDL which, according to this press release, is "the first-ever report on the decades-long impact of the trial penalty in New York State."  Here is some background and an overview from the press release:

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

  • 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
  • The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
  • The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

  1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
  2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
  3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

March 26, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (5)

Wednesday, March 24, 2021

"What is Public Safety?"

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

For literally hundreds of years, political leaders and thinkers have deemed public safety the first duty of government.  But they have defined public safety largely in terms of the “protection” function — protecting individuals from violent harm to person or property, from third parties, but also from natural elements.  As the first duty, the protection function is privileged.  Witness today how we valorize police and other first responders, defer to their decisions without sufficient scrutiny, and even immunize their mistakes.

Yet, is protection really all there is to public safety?  For most people, being safe depends on much more: food, clean water and air, housing, a basic income and the means to obtain it, meaning education and a job.  It might include health care, health insurance to obtain it, or the freedom from discrimination.

This Article argues that if individual safety includes some or all of these additional elements, then public safety — the government’s obligation to ensure people are safe — should be understood far more capaciously than the protection function.  At its analytic core, it shows that there is nothing particularly different about the protection function that justifies treating it as government’s first job, while the other vital functions of government are relegated to second-class status.  And it explores the many reasons that despite the fact that protection is not special, we nonetheless neglect all the other elements of individual safety.

Today, many argue that funding needs to be reallocated from policing to the other needs that challenged communities face.  This Article provides a theoretical basis for those claims, establishing that we over-privilege the protection function, and under-support much else government should be doing.  It demonstrates the very tangible harms people face because we definite public safety narrowly.  On the one hand, people starve, go without shelter, die from air and water that is not clean, from the travails of living in poverty, and from the lack of health care.  On the other hand, people are harmed at the hands of the police, because we do not scrutinize the protection function sufficiently to change this, we need to think more broadly about what safety — and public safety — means.

March 24, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Sunday, March 21, 2021

New law journal issue covers "Progressive Prosecution: Perspectives from Activism, Academia, and Practice"

I recently saw that the new "Special Issue" of the Stanford Journal of Civil Rights & Civil Liberties is dedicated to the topic of "Progressive Prosecution: Perspectives from Activism, Academia, and Practice." Here are links to the four great-looking article is the issue:

Neighborhood Accountability Boards: A Case Study on the Promise and Limitations of Prosecutor-Led Reform by Kate Brubacher Murphy

Beyond Reform: Four Virtues of a Transformational Prosecutor by Taylor Pendergrass and Somil Trivedi

Beyond Non-Violent Offenses: Criminal Justice Reform and Intimate Partner Violence in the Age of Progressive Prosecution by Margo Lindauer and Emily Postman

A Public Defender Definition of Progressive Prosecution by Avanindar Singh and Sajid Khan

March 21, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, March 12, 2021

Wonderful new Federal Sentencing Reporter issue explores "Weinstein on Sentencing"

M_fsr.2021.33.3.coverI am so very pleased to report on the publication of the latest issue of the Federal Sentening Reporter.  This issue is titled "Weinstein on Sentencing" and it celebrates the many contributions to federal sentencing law, policy and practice by legendary EDNY Judge Jack Weinstein.

FSR was quite fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great new issue.  They did a wonderful job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words." 

I highly encourage everyone to check out this full FSR issue, and here is a list of the original articles:

Guest Editors’ Observations: Judge Weinstein's Contributions to Sentencing Law by Carolin E. Guentert & Ryan H. Gerber

Weinstein on Sentencing by Kate Stith

Jack B. Weinstein Up Close by John Gleeson

Jack Weinstein: Reimagining the Role of the District Court Judge by Jessica A. Roth

Serving a Rehabilitative Goal: Assessing Judge Jack B. Weinstein’s Supervised Release Jurisprudence by Christine S. Scott-Hayward

A Judge’s Attempt at Sentencing Consistency After Booker: Judge Jack B. Weinstein’s Guidelines for Sentencing by Carolin E. Guentert & Ryan H. Gerber

Hanging Up the Robe by Thomas Ward Frampton

Sentencing with Love, Not Hate by Deirdre D. von Dornum

March 12, 2021 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

Tuesday, March 09, 2021

"Procedure's Racism"

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

Criminal procedure is systemically racist and classist.  This Article argues that comparing criminal procedure to civil procedure on a broad scale provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law.  Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure.  One might expect to see greater procedural protections before criminal defendants are deprived of their liberty than for civil defendants before they are deprived of their money.  But the reality cuts decidedly the other way.  Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between the civil and criminal systems instead track differences in race and class between defendants in the two systems.  Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation.  Civil defendants, by contrast, cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial — a trial that comes in scant few cases.  Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period.

The primary focus of this Article is demonstrating that procedure disparities between civil and criminal systems largely track race and class.  But it also briefly compares changes in available punishment.  In criminal law, pathological politics largely create a one-way upward ratchet whereby criminal law continues to afford prosecutors ever-greater power and discretion to pursue ever greater sentences.  In tort law, by contrast, most state legislatures have limited plaintiff’s lawyers’ discretion through reforms such as caps on noneconomic damages or limits on punitive damages.  So too is the Supreme Court’s role in regulating substantive fairness in these two systems widely disparate.  In criminal law, the Supreme Court upheld a life sentence for a defendant convicted of $88 check theft.  By contrast, the Supreme Court struck down a $2 million punitive damages award against a multinational corporate defendant as unfair.  This Article offers the big-picture analysis of how comparing civil and criminal systems in the U.S. reveals systemic racism and classism.

March 9, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Sunday, March 07, 2021

"Natural Punishment"

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

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.”  This Article seeks to explore cases like that, cases of “natural punishment.”  Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her.  The Article proposes that US courts follow their peers and recognize natural punishment as genuine punishment for legal, specifically constitutional, purposes.  Were US courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction, if a natural punishment has occurred or foreseeably will occur.  A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States.  The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment, by distinguishing it from nearby notions and dispelling any association with supernatural ideas, and, second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings.

As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served.  The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial.  The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence.  Surprisingly, seeing the time in detention as an instance of natural punishment resolves the Mystery.

March 7, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)