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The Effects Of Holistic Defense On Criminal Justice Outcomes, James Anderson, Maya Buenaventura, Paul Heaton

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“Second Looks, Second Chances”: Collaborating With Lifers Inc. On A Video About Commutation Of Lwop Sentences, Regina Austin

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In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of …

Judicious Imprisonment, Gregory Jay Hall

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Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

Mental Disorder And Criminal Justice, Stephen J. Morse

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This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

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

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

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Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

Collateral Consequences And The Preventive State, Sandra G. Mayson

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Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should …

Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson

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Using stories from the utopian non-punishment hippie communes of the late 1960's, the essay challenges today’s anti-punishment movement by demonstrating that the benefits of cooperative action are available only with the adoption of a system for punishing violations of core rules. Rather than being an evil system anathema to right-thinking people, punishment is the lynchpin of the cooperative action that has created human success.

This is Chapter 3 from the general audience book Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law. Chapter 4 of the book is also available on SSRN at http://papers.ssrn.com/abstract=2416484).

Flawed Coalitions And The Politics Of Crime, David Jaros

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Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of federal sentencing practice and usher in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative sentencing reformers. The guideline regime established by the Sentencing Reform Act ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s former liberal supporters.

Researchers have shown that a particular cognitive bias — cultural cognition — can explain why intense partisan …

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

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This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

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President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

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Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

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The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

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This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

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This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham

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Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

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How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

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Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the …

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

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In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

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Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Sentencing Decisions: Matching The Decisionmaker To The Decision Nature, Paul H. Robinson, Barbara A. Spellman

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The present sentencing debate focuses on which decisionmaker is best suited to make the sentencing decision. Competing positions in this debate typically view the sentencing decision as monolithic, preferring one decisionmaker over all the others. A monolithic view of the decision unnecessarily invites poor decisionmaking. The sentencing decision is properly viewed as a series of distinct decisions, each of which can best be performed by a decisionmaker with certain qualities. This Essay demonstrates how a system of optimal decisionmaking might be constructed -by sorting out the different attributes called for by the distinct aspects of the sentencing decision and matching …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

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The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

A Sentencing System For The 21st Century?, Paul H. Robinson

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The Sentencing Reform Act of 1984 created the United States Sentencing Commission and directed it to devise sentencing guidelines for the federal criminal justice system. The Commission recently fulfilled this mandate, promulgating a final set of rules, which took effect November 1. Commissioner Robinson, in filing the lone dissent to these guidelines, argued that they neither meet the expectations of the Act nor provide a comprehensive and workable system. In this Article, Commissioner Robinson discusses the necessary components of a modern, principled, and workable system. He first identifies an ideal system by describing its primary goals and by offering the …

Dissenting View Of Commissioner Paul H. Robinson To The Proposed Sentencing Guidelines For United State Courts, Paul H. Robinson

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I believe the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, contains two main directives. First, the Commission's guidelines must provide a rational and principled sentencing system that will further the purposes of just punishment and crime control. Second, the guidelines must reduce unwarranted disparity among sentences for similar offenders who commit similar offenses. The Act provides that this is to be achieved through the Commission's promulgation of a comprehensive sentencing system that will bind all federal judges. I opposed the Commission's Preliminary Draft of September, 1986, because I saw it as lacking both guiding principles …