Law Commons^™

A (Partial And Principled) Defense Of Sentences Of Life Imprisonment, Mirko Bagaric, Jennifer Svilar

Cleveland State Law Review

There has been more than a five-fold increase in the number of life sentences in the United States over the past four decades. One in seven prisoners in the United States is serving a life (or virtual) life sentence. This amounts to over 200,000 prisoners. The increase has occurred against the backdrop of near universal condemnation by scholars and public policy advocates – many of whom are now advocating for the abolition of life sentences. Arguments that life sentences are not an effective deterrent or means of protecting the community have some merit. Yet, we argue that in a limited …

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

All Faculty Scholarship

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive …

Mental Disorder And Criminal Justice, Stephen J. Morse

All Faculty Scholarship

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

All Faculty Scholarship

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

All Faculty Scholarship

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. …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

All Faculty Scholarship

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock

Journal of Law and Policy

This article examines federal sentencing reform and embraces the principle of uncertainty in this process. In order to properly reapportion federal criminal sentencing laws, reformers must account for the impracticality of determining appropriate incarceration lengths at sentencing. Thus, this article proposes an alternative federal sentencing model that includes a sentencing effectiveness assessment tool to help lawmakers implement rational sentences that appropriately punish offenders, prepare them to successfully reenter society, and reduce recidivism rates. Modern sentencing reform should adopt constant review and evaluation of sentencing to measure effectiveness and ensure that appropriate sentences are implemented to avoid the pitfalls of an …

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself—in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the wrongdoer.

This …

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

All Faculty Scholarship

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.

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

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

All Faculty Scholarship

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).

Commentary: Reflections On Remorse, Stephen J. Morse

All Faculty Scholarship

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson

All Faculty Scholarship

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …

Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman

Michigan Law Review

Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …

The Machinery Of Criminal Justice, Stephanos Bibas

All Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

All Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

All Faculty Scholarship

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

Lost In Translation?: An Essay On Law And Neuroscience, Stephen J. Morse

All Faculty Scholarship

The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging [fMRI] has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This essay, a contribution to, Law and Neuroscience (M. Freeman, Ed. 2011), will attempt to put such claims in perspective and to consider how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice and theory, but such contributions will be few and modest for the …

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

All Faculty Scholarship

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 …

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical …

Invasions Of Conscience And Faked Apologies, Stephanos Bibas

All Faculty Scholarship

This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive. The essay by Jeffrie Murphy to which this comment responds, as well as other authors' comments on …

Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson

All Faculty Scholarship

The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …

Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii

Faculty Publications

To understand Fear of Judging and the debate over the Federal Sentencing Guidelines requires some familiarity with the sentencing reform movement that led to the adoption of the Federal Sentencing Guidelines in 1987, as well as at least a rudimentary grasp of the structure of the Guidelines themselves. For those readers who require an introduction to both subjects, the next section of this Article attempts to provide one. Those already familiar with the Guidelines and their history can skip to Section III, where the discussion of Fear of Judging begins in earnest.

Legality And Discretion In The Distribution Of Criminal Sanctions, Paul H. Robinson

All Faculty Scholarship

The judicial system now responds to criminal conduct in two rather divergent steps. A judge or jury first determines if a defendant should be held liable for a criminal offense. If so, then the judge or jury goes on to choose a penalty. Precise rules, designed to ensure fairness and predictability, govern the first stage, liability assignment. In the second stage, sentencing, however, judges and juries exercise broad discretion in meting out sanctions. In this Article, Professor Robinson argues that both liability assignment and sentencing are part of a single process of punishing criminal behavior and should be made more …

Punishment: Desert And Crime Control, Ernest Van Den Haag

Michigan Law Review

A Review of Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals by Andrew von Hirsch