Law Commons^™

A Guide To Knowing Your Rights With The Police And Getting Out Of Jail: Booklet 2, Thomas Harvey, Michael-John Voss, John Mcannar

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ArchCity Defenders created a self-advocating guide for people to use if they have an encounter with the police, jail or the courts.

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is?), Chad Flanders

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A common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.

It is thus surprising that the Court and those scholars who push this objection have …

A Guide To Knowing Your Rights With The Police And Getting Out Of Jail: Booklet 1, Thomas Harvey, Michael-John Voss, John Mcannar

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ArchCity Defenders created a self-advocating guide for people to use if they have an encounter with the police, jail or the courts.

Close The Workhouse: A Plan To Close The Workhouse & Promote A New Vision For St. Louis, Close The Workhouse Campaign [In Collaboration With], Thomas Harvey, John Mcannar, Michael-John Voss, Action St. Louis, Bail Project

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The City of St. Louis condemns hundreds of mostly poor and Black people to suffer in unspeakably hellish and inhumane conditions at the "Workhouse," officially known as the Medium Security Institution. Over 95% of people at the Workhouse are awaiting trial and remain incarcerated due to their inability to afford unusually high and unconstitutional cash bonds. They face horrific conditions in the jail, including extreme heat and cold, abysmal medical care, rats and cockroach infestations, and mold. The City of St. Louis spends over $16 million every year operating this facility with little public benefit. The arrest-and-incarcerate approach to public …

How Much Certainty Do We Need To Punish? A Reply To Kolber, Chad Flanders

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Scene: Outside Brooklyn Law School, mid-morning. CHADF, a law professor, reads something on his phone while waiting for an Uber. He is holding a cup of coffee in his other hand. KOLBERT, also a law professor, is walking quickly, deep into editing his latest law review article, mostly oblivious to the outside world. KOLBERT collides with CHADF, causing him to spill coffee all over his shirt.

Punishment, Liberalism, And Public Reason, Chad Flanders

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The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

Public Wrongs And Public Reason, Chad Flanders

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The distinction between crimes that involve wrongs in themselves and crimes that are wrong because the law makes them so has long puzzled theorists. This essay argues that the distinction, while getting at something real, is based on a mistake. That mistake is made both by those who see moral wrongness as a necessary condition for criminality and by those who believe merely making something illegal is sufficient to make it criminal. Neither is correct. Rather, what makes something a criminal wrong is that it involves a violation of a law that has been justified in terms of “public reason.”

Time, Death, And Retribution, Chad Flanders

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The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree …

Pardons And The Theory Of The 'Second Best', Chad Flanders

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This paper explains and defends a “second-best” theory of pardons. Pardons are “second-best” in two ways. First, pardons are second-best because they represent, in part, a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as, ideally, it should. Pardons, in the non-ideal world we live in, are sometimes necessary.

But pardons are also “second-best” in another way, because they can represent deviations from certain …

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. …

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 …

Cost And Sentencing: Some Pragmatic And Institutional Doubts, Chad Flanders

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In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) …

'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 …

Retribution And Reform, Chad Flanders

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What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

A Prisoner's Constitutional Right To Medical Information: Doctrinally Flawed And A Threat To State Informed Consent Law, Robert Gatter

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White v. Napoleon and its progeny recognize a substantive due process right to receive the disclosure of medical treatment information. While each case involves a prisoner receiving treatment while in custody, the constitutional right described in those cases is not limited to prisoners. Instead, the right is described as belonging to all individuals. Consequently, this line of cases is poised to interfere with the disclosure standards that operate in state informed consent law in the many instances where state action exists. This Article argues that the substantive due process right recognized in White should be overturned. The right is based …

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders

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In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. …

Accrediting The Accreditors: A New Paradigm For Correctional Oversight, Lynn S. Branham

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Correctional accreditation processes can be revamped to bring more transparency and accountability into the operation of correctional facilities and to help ensure that they comport with sound correctional practices, legal requirements, and basic human-rights precepts. Becoming accredited is now largely optional, and correctional accreditation processes are fee-based. Consequently, correctional accrediting entities are vulnerable to pressures to water down accreditation standards and make accreditation procedures more lax. The federal government should therefore adopt two requirements. First, prisons, jails, and other correctional facilities should have to be accredited by a certified accrediting entity in order to be eligible to receive federal funds. …

'The Devil Is In The Details': A Continued Dissection Of The Constitutionality Of Faith-Based Prison Units, Lynn S. Branham

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Faith-based prison units can afford prisoners who choose to be housed in them the concentrated and sustained spiritual nourishment that they believe they need to grow spiritually or in other ways. But critics claim that these units abridge the Establishment Clause. This Article debunks two of the arguments most frequently asserted against the constitutionality of faith-based units. The first is that prisoners cannot exercise a "true private choice" in the "inherently coercive" environment of a prison to live in such a unit. But court decisions confirm that confinement does not abnegate the voluntariness of other decisions made by prisoners, such …

Shame And The Meanings Of Punishment, Chad Flanders

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Debates over shaming punishments have raged over the past few years, with people like Dan Kahan and Eric Posner for them, while James Whitman and Martha Nussbaum have entered the fray strongly against them. This Essay argues that both sides in the shaming punishment debate have it only party right. Those who favor shaming sanctions are correct that we should (all else being equal) favor those punishments which are expressive rather than those that involve some form of hard treatment. And those who reject shaming sanctions are correct that such sanctions involve forms of humiliation and denials of dignity that …