Criminology Commons^™

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 …

Is Executive Function The Universal Acid?, Stephen J. Morse

All Faculty Scholarship

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our …

In Fear We Trust: Anxious Political Rhetoric & The Politics Of Punishment, 1960s-80s, Stella Michelle Frank

Senior Projects Spring 2019

Senior Project submitted to The Division of Social Studies of Bard College.

African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle

Department of Justice Studies Faculty Scholarship and Creative Works

Understandings of punishment within the criminological enterprise have failed to capture the nuances associated with experiencing punishment. Moreover, mainstream academic discourses are inherently anachronistic in their conclusions on punishment, thus leaving significant gaps to be filled. One such gap is that of racialized history. This article attempts to make sense of punishment discourses (past and present) by situating them in their proper context. We argue that punishment, in particular for Blacks, is ideological and longstanding. Moreover, we posit that the prolonged punishment of Blacks is hyper manifested in contemporary society via neoliberal logic that has increasingly disabled race as a …

How Should Justice Policy Treat Young Offenders?, B J. Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner

All Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

Local Immigration Enforcement Entrepreneurship In The Punishment Marketplace, Daniel L. Stageman

Dissertations, Theses, and Capstone Projects

The contemporary neoliberal economic order plays a significant role in American social organization and policy-making. Most importantly, neoliberal ideology drives the creation and imposition of markets in public goods and services and the valorization of free market ideology in cultural life. The neoliberal ‘project of inequality’ is in turn delimited and upheld by an authoritarian system of punishment built around mass incarceration, surveillance, and an unprecedented level of social control directed at the lowest strata of American society – a group that includes both the urban underclass, and unauthorized immigrants.

This study lays out the theory of the punishment marketplace …

Punishing Property Offenders: Does Moral Correction Work?, Sharona Aharony-Goldenberg, Yael Wilchek-Aviad

Touro Law Review

No abstract provided.

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 …

Rituals Upon Celluloid: The Need For Crime And Punishment In Contemporary Film, J C. Oleson

Cleveland State Law Review

Most members of the public lack first-hand experience with the criminal justice system; nevertheless, they believe that they possess phenomenological knowledge about it. In large part, the public’s understandings of crime and punishment are derived from television and film, which provide modern audiences with a vision of institutions that are normally occluded from view. While public rituals of punishment used to take place on the scaffold, equivalent moral narratives about crime and punishment now occur on film because modern punishment is imposed outside of the public gaze. Yet because crime films distort what they depict, the public’s view of crime …

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).

Discounting And Criminals' Implied Risk Preferences, Murat C. Mungan, Jonathan Klick

All Faculty Scholarship

It is commonly assumed that potential offenders are more responsive to increases in the certainty than increases in the severity of punishment. An important implication of this assumption within the Beckerian law enforcement model is that criminals are risk-seeking. This note adds to existing literature by showing that offenders who discount future monetary benefits can be more responsive to the certainty rather than the severity of punishment, even when they are risk averse, and even when their disutility from imprisonment rises proportionally (or more than proportionally) with the length of the sentence.

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

E. Lea Johnston

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

Forfeiture Of Illegal Gains, Attempts And Implied Risk Preferences, Jonathan Klick, Murat C. Mungan

All Faculty Scholarship

In the law enforcement literature there is a presumption—supported by some experimental and econometric evidence—that criminals are more responsive to increases in the certainty than the severity of punishment. Under a general set of assumptions, this implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains and the possibility of unsuccessful attempts are considered. Therefore, when drawing inferences concerning offenders’ attitudes toward risk based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited and whether …

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

All Faculty Scholarship

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

Testing Orthodox Utilitarian And Extrajudical Determinants Of Incarceration In The U.S. At The State-Level, 1980-2005, Pavel V. Vasiliev

UNLV Theses, Dissertations, Professional Papers, and Capstones

This project is a theory-driven secondary data analysis of state-level incarceration trends in the U.S. between 1980 and 2005. I replicate and advance Smith's (2004) study of the relationship between the socioeconomic, demographic, political, electoral, and criminal justice factors and incarceration rates at the state level. The purpose of this project is to determine the empirical validity of the major explanations of the incarceration trends in the U.S. I advance Smith's (2004) study using important novel elements. First, I extend the scrutinized historic period by a decade by compiling time-series data for 1980-2005. Second, I employ a more sophisticated analytic …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

UF Law Faculty Publications

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

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.

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

All Faculty Scholarship

Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, …

Restoration But Also More Justice, Stephanos Bibas

All Faculty Scholarship

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …

Testing Lay Intuitions Of Justice: How And Why?, Paul H. Robinson

All Faculty Scholarship

When John Darley and I wrote Justice, Liability, and Blame: Community Views and the Criminal Law, our goal was not to provide the definitive account of lay intuitions of justice but rather to stimulate interest in what we saw as an important but long-term project that would require the work of many people. Having this American Association of Law Schools program is itself something toward that end and for that we thank Christopher Slobogin and Cheryl Hanna. In this brief introduction to the Symposium, let me set the stage by doing four things. Part I of this Article summarizes the …

A Meaner, More Punitive Nation, Bruce Berner

Law Faculty Publications

No abstract provided.