Law Enforcement and Corrections Commons^™

A Punishment That Harms Everyone And Benefits No One: An Analysis Of The Use Of Solitary Confinement Under Common Sociological Theories Of Punishment, Allison Lampert

Et Cetera

In the United States, experts estimate that nearly 100,000 incarcerated individuals are held in solitary confinement. While individuals can be held in solitary confinement for a variety of reasons, many are placed in lockdown because they have untreated mental illnesses, have committed some sort of minor disciplinary infraction, are need of protection, or for unpopular personal beliefs. In other words, solitary confinement is used as a broad catch-all to a wide range of low-level and nonviolent misbehaviors. This note argues that solitary confinement is an unjustifiable mode of punishment as analyzed under two commonly cited sociological theories of punishment: retributivism …

The Co-Optation Of Restorative Justice And Its Consequences For An Abolitionist Future, Alicia Virani

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Faculty Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Michigan Law Review

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon.

Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski

Michigan Law Review

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

The Changing Role Of The American Prosecutor, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The following is a November 2019 presentation to the Louisiana District Attorneys Association, Fall Meeting of Elected District Attorneys ("DA'). The invited presentation was part of an agenda that included remarks from the Governor of Louisiana and the Chief Justice of the Louisiana Supreme Court. The opinions expressed are solely those of the author. These remarks have been edited for clarity and brevity. Some discussion specific to Louisiana, as well as the speaker introduction, and exchanges with the audience during and after the talk are excluded. A short postscript follows the remarks.

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

From The Legal Literature: Disentangling Prison And Punishment, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

No abstract provided.

Guilt By Alt-Association: A Review Of Enhanced Punishment For Suspected Gang Members, Rebecca J. Marston

University of Michigan Journal of Law Reform

This essay, written in reaction to the University of Michigan Journal of Law Reform’s 2018 Symposium entitled “Alt-Association: The Role of Law in Combating Extremism” (the Symposium), does not dispute the seriousness of gang-related violence. Rather, it examines ways in which current strategies for combating gang-related crimes are ineffective or problematic and suggests possible reforms. Part One of this essay will describe current methods used in labeling, tracking, and prosecuting gang members, which result in a cycle of enhanced punishment. Part Two will evaluate these practices and reflect on whether enhanced punishment is the best way to reduce gang-related violence, …

Technologically Distorted Conceptions Of Punishment, Jessica M. Eaglin

Articles by Maurer Faculty

Much recent work in academic literature and policy discussions suggests that the proliferation of actuarial — meaning statistical — assessments of a defendant’s recidivism risk in state sentencing structures is problematic. Yet scholars and policymakers focus on changes in technology over time while ignoring the effects of these tools on society. This Article shifts the focus away from technology to society in order to reframe debates. It asserts that sentencing technologies subtly change key social concepts that shape punishment and society. These same conceptual transformations preserve problematic features of the sociohistorical phenomenon of mass incarceration. By connecting technological interventions and …

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …

Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti

Faculty Scholarship

When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). …

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

Solitary Troubles, Alexander A. Reinert

Articles

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

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. …

A Principled Approach To Separating The Fusion Between Nursing Homes And Prisons, Mirko Bagaric, Marissa Florio, Brienna Bagaric

Pepperdine Law Review

Elderly people are a far lower risk to community safety than other individuals. Despite this, elderly prisoners are filling prisons at an increasing rate. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades—far more than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently from other offenders. The key reason for this is that elderly offenders reoffend at about half the rate of other released prisoners, but the cost of incarcerating the elderly—due to their more pressing health needs—is more than double. …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

University of Richmond Law Review

This article discusses the impact that the incorporation of migration enforcement has had on the criminal justice system and the way in which it has exacerbated pre-existing problems within it. Part I discusses the drastic expansion of the criminal justice system over the last forty years and the fiscal and moral costs it has had. Part II discusses how crimmigration has impacted the criminal justice system, its laws, policies, and practices during the last thirty years. Part III discusses the rise of the Smart on Crime movement and the goals of the criminal justice reform efforts to combat its detrimental …

Virginia Executioner To Wear A Cloak: Diversion From The Real Controversy, Paul G. Gill

University of Richmond Law Review

No abstract provided.

Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.

Punishment, Liberalism, And Public Reason, Chad Flanders

All Faculty Scholarship

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 …

Progressive Alternatives To Imprisonment In An Increasingly Punitive (And Self-Defeating) Society, Sandeep Gopalan, Mirko Bagaric

Seattle University Law Review

Criminal sanctions are a necessary and appropriate response to crime. But extremism, especially when coupled with a slavish and unthinking adherence to traditional practices, nearly always produces unfortunate consequences. Such is the case with the rapid growth in prison numbers in the United States over the past two decades. The prime purpose of imprisonment is to punish serious offenders and to prevent them from reoffending during the period of detention. The overuse of imprisonment has resulted in the violation of the most cardinal moral prohibition associated with imprisonment: punishing the innocent. The runaway cost of the prison budget has resulted …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Complicated Economics Of Prison Reform, John F. Pfaff

Michigan Law Review

Two recent books on prison growth directly address the relationship between penal change and economic conditions: Hadar Aviram’s Cheap on Crime and Marie Gottschalk’s Caught. Aviram’s is the more optimistic of the two accounts, arguing that there is at least some potential in an economic-based reform effort. Gottschalk, on the other hand, fears not only that economic-based efforts could fail to lead to significant reforms, but that they could actually make prison life worse for inmates if states cut funding and support without cutting populations. Both books make many provocative points, but both also suffer from some surprising omissions. …