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Full-Text Articles in Social and Behavioral Sciences
Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas
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. …
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
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This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly different …
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
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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 …
"Not Just A Common Criminal": The Case For Sentencing Mitigation Videos, Regina Austin
"Not Just A Common Criminal": The Case For Sentencing Mitigation Videos, Regina Austin
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Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing. This article provides a complete analysis of the constituent elements of …
Exacerbating Injustice, Stephanos Bibas
Exacerbating Injustice, Stephanos Bibas
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This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This …
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
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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 …