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Punishment

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Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh Oct 2019

Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh

Christopher Salvatore

Virtual life sentences are sentences with a term of years that exceed an individual’s natural life expectancy. This exploratory study is one of the first to collect data that establish the existence, prevalence, and scope of virtual life sentences in state prisons in the United States. Initial data reveal that more than 31,000 people in 26 states are serving virtual life sentences for violent and nonviolent offenses, and suggest racial disparities in the distribution of these sentences. This study also presents potential policy implications and suggestions for future research.


The Supreme Court's Backwards Proportionaility Jurisprudence: Conparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz Sep 2019

The Supreme Court's Backwards Proportionaility Jurisprudence: Conparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz Sep 2019

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


Benign Neglect* Of Racism In The Criminal Justice System, Angela J. Davis Sep 2019

Benign Neglect* Of Racism In The Criminal Justice System, Angela J. Davis

Angela J. Davis

A Review of Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America


"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody Jul 2019

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

Karen Woody

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity ...


Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois Apr 2019

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Owen Jones

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary people will ...


Intuitions Of Punishment, Owen D. Jones, Robert Kurzban Apr 2019

Intuitions Of Punishment, Owen D. Jones, Robert Kurzban

Owen Jones

Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of ...


Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh Dec 2018

Virtual Life Sentences: An Exploratory Study, Jessica S. Henry, Christopher Salvatore, Bai-Eyse Pugh

Jessica S. Henry

Virtual life sentences are sentences with a term of years that exceed an individual’s natural life expectancy. This exploratory study is one of the first to collect data that establish the existence, prevalence, and scope of virtual life sentences in state prisons in the United States. Initial data reveal that more than 31,000 people in 26 states are serving virtual life sentences for violent and nonviolent offenses, and suggest racial disparities in the distribution of these sentences. This study also presents potential policy implications and suggestions for future research.


Hypocrisy And Corruption: How Disparities In Power Shape The Evolution Of Social Control, Omar T. Eldakar, J. Oliver Kammeyer, Nikhil Nagabandi, Andrew C. Gallup Jun 2018

Hypocrisy And Corruption: How Disparities In Power Shape The Evolution Of Social Control, Omar T. Eldakar, J. Oliver Kammeyer, Nikhil Nagabandi, Andrew C. Gallup

Omar Tonsi Eldakar

Altruism presents an evolutionary paradox, as altruistic individuals are good for the group yet vulnerable to exploitation by selfish individuals. One mechanism that can effectively curtail selfishness within groups is punishment. Here, we show in an evolutionary game-theoretical model that punishment can effectively evolve and maintain high levels of altruism in the population, yet not all punishment strategies were equally virtuous. Unlike typical models of social evolution, we explicitly altered the extent to which individuals vary in their power over others, such that powerful individuals can more readily punish and escape the punishment of others. Two primary findings emerged. Under ...


Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller Nov 2017

Citizenship And Severity: Recent Immigration Reforms And The New Penology, Teresa A. Miller

Teresa A. Miller

Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198''0s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for ...


Punishing Without Free Will, Luis E. Chiesa Nov 2017

Punishing Without Free Will, Luis E. Chiesa

Luis Chiesa

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and ...


Fortifying The Self-Defense Justification Of Punishment, Zac Cogley Sep 2017

Fortifying The Self-Defense Justification Of Punishment, Zac Cogley

Zac Cogley

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the self-defense justification, Warren Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense ...


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


When Hawks Give Rise To Doves: The Evolution Of Enforcement Strategies, Omar Tonsi Eldakar, W. W. Driscoll, A. C. Gallup Oct 2016

When Hawks Give Rise To Doves: The Evolution Of Enforcement Strategies, Omar Tonsi Eldakar, W. W. Driscoll, A. C. Gallup

Omar Tonsi Eldakar

The question of how altruism can evolve despite its local disadvantage to selfishness has produced a wealth of theoretical and empirical research capturing the attention of scientists across disciplines for decades. One feature that has remained consistent through this outpouring of knowledge has been that researchers have looked to the altruists themselves for mechanisms by which altruism can curtail selfishness. An alternative perspective may be that just as altruists want to limit selfishness in the population, so may the selfish individuals themselves. These alternative perspectives have been most evident in the fairly recent development of enforcement strategies. Punishment can effectively ...


Emotions And Actions Associated With Altruistic Helping And Punishment, Omar Tonsi Eldakar, David Sloan Wilson, Rick O'Gorman Oct 2016

Emotions And Actions Associated With Altruistic Helping And Punishment, Omar Tonsi Eldakar, David Sloan Wilson, Rick O'Gorman

Omar Tonsi Eldakar

Evolutionary altruism (defined in terms of fitness effects) exists in the context of punishment in addition to helping. We examine the proximate psychological mechanisms that motivate altruistic helping and punishment, including the effects of genetic relatedness, potential for future interactions, and individual differences in propensity to help and punish. A cheater who is a genetic relative provokes a stronger emotional reaction than a cheater who is a stranger, but the behavioral response is modulated to avoid making the transgression public in the case of cheating relatives. Numerous behavioral differences are not accompanied by emotional differences, suggesting that other psychological mechanisms ...


Selfishness As Second-Order Altruism, Omar Tonsi Eldakar, David Sloan Wilson Oct 2016

Selfishness As Second-Order Altruism, Omar Tonsi Eldakar, David Sloan Wilson

Omar Tonsi Eldakar

Selfishness is seldom considered a group-beneficial strategy. In the typical evolutionary formulation, altruism benefits the group, selfishness undermines altruism, and the purpose of the model is to identify mechanisms, such as kinship or reciprocity, that enable altruism to evolve. Recent models have explored punishment as an important mechanism favoring the evolution of altruism, but punishment can be costly to the punisher, making it a form of second-order altruism. This model identifies a strategy called “selfish punisher” that involves behaving selfishly in first-order interactions and altruistically in second-order interactions by punishing other selfish individuals. Selfish punishers cause selfishness to be a ...


"Newspaper Notes, A Continuation: Crime And Punishment." Chronicles Of Smith County, Texas 28 No. 1 (Summer, 1989): 35-53., Vicki Betts Sep 2016

"Newspaper Notes, A Continuation: Crime And Punishment." Chronicles Of Smith County, Texas 28 No. 1 (Summer, 1989): 35-53., Vicki Betts

Vicki Betts

No abstract provided.


Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead Aug 2016

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over ...


Punitive Compensation, Cortney E. Lollar Jul 2016

Punitive Compensation, Cortney E. Lollar

Cortney Lollar

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution's traditional aim of disgorging a defendant's ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider "restitution," this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim's losses ...


Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham Nov 2015

Taking The Punishment Out Of The Process: From Substantive Criminal Justice Through Procedural Justice To Restorative Justice, Brenda Sims Blackwell, Clark D. Cunningham

Clark D. Cunningham

If the punishment is taken out of the process, and the processes of criminal justice become effective at restoration--and if rigorous empirical research might show that a restorative process costs less money and produces greater public safety--that would be a result everyone would embrace.


Dividing Crime, Multiplying Punishments, John F. Stinneford Nov 2015

Dividing Crime, Multiplying Punishments, John F. Stinneford

John F. Stinneford

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and ...


Sentencing And The Salience Of Pain And Hope, Benjamin Berger Sep 2015

Sentencing And The Salience Of Pain And Hope, Benjamin Berger

Benjamin L. Berger

What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of ...


Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger Sep 2015

Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger

Benjamin L. Berger

Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law ...


Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito Aug 2015

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.


Seeing Crime And Punishment Through A Sociological Lens: Constributions, Practices, And The Future, Calvin Morrill, John Hagan, Bernard E. Harcourt, Tracey Meares Jul 2015

Seeing Crime And Punishment Through A Sociological Lens: Constributions, Practices, And The Future, Calvin Morrill, John Hagan, Bernard E. Harcourt, Tracey Meares

Calvin Morrill

No abstract provided.


The Multiple Middlegrounds Between Civil And Criminal Law, Franklin E. Zimring May 2015

The Multiple Middlegrounds Between Civil And Criminal Law, Franklin E. Zimring

Franklin E. Zimring

No abstract provided.


Dangerousness And Criminal Justice, Franklin E. Zimring, Gordon Hawkins May 2015

Dangerousness And Criminal Justice, Franklin E. Zimring, Gordon Hawkins

Franklin E. Zimring

No abstract provided.


Sanctioning Corporations, Meir Dan-Cohen Mar 2015

Sanctioning Corporations, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.


Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise Feb 2015

Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise

Michael Heise

Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant ...


What Is Criminal Restitution?, Cortney E. Lollar Jan 2015

What Is Criminal Restitution?, Cortney E. Lollar

Cortney Lollar

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a ...