Toward a Pragmatic Normative Framework for Criminalization, Part 3

In this post, I will begin an exploration of the implications of deterrence aims for criminalization.  By criminalization, I mean the decisions about what conduct to make criminal under what circumstances, and what level of punishment to associate with different crimes.  As I discussed in the previous post in this series, I believe the overarching objective that should animate criminalization decisions should be the enhancement of social trust.  Building trust is a difficult, but critical, objective for a diverse, individualistic society like ours, in which economic and social vitality depend on regular interactions between strangers and near-strangers.  Acute, pervasive fears of victimization in such interactions would cause a social breakdown.

One way that the criminal-justice system builds trust is through the deterrence mechanism — that is, threats of hard treatment for those who harm the persons or property of others.  Let’s call these kinds of injury “primary harms.”

The essential challenge arising from the deployment of deterrent threats is this: punishment itself necessarily includes or gives rise to primary harms, and there is no reason to view state-imposed harm as intrinsically less serious than other types of harm.   (more…)

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Toward a Pragmatic Normative Framework for Criminalization, Part 2

At bottom, our criminal-justice system exists to provide citizens with a sense of security in their day-to-day lives.  In this regard, our criminal-justice system serves the same end as our national-security system. There is, however, a fundamental difference between these systems: while the national-security system focuses on external threats posed by groups who do not belong to our political community, the criminal-justice system focuses on internal threats we pose to one another — there is no clear line distinguishing those whom the system protects from those whom the system protects against.  From this central dilemma arises all of the marvelous and maddening complexity of criminal law.

This observation also explains why criminal justice is so deeply, unavoidably political.  In principle, the system must protect all citizens equally, but social conflict is a pervasive and inevitable feature of life in a nation as large and diverse as ours.  In such a world as that, the system will rarely, if ever, be able to enhance the sense of security of one group without diminishing the security of others.  The system must choose sides, and such decisions are inherently political.

The system focuses on protecting, most obviously, the physical security of our persons and property.  Somewhat less obviously, but perhaps no less importantly, the system is also asked to safeguard certain sorts of psychic security: the individual’s sense of self-respect, of status in society, and of order and predictability in social relationships.   (more…)

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Toward a Pragmatic Normative Framework for Criminalization, Part 1

What conduct should be made criminal, and how should the severity of different crimes be graded?  Consider a few scenarios:

  • A college student grows marijuana in a small garden behind his house.  He and his housemates consume the entirety of the crop.
  • An author writes disturbing fictional stories of child molestation, which he posts on his public blog.  A grown victim of childhood sexual assault comes across one of the stories and reads it, causing intense psychological trauma.
  • A careless (but sober) driver drifts over the centerline of a two-lane highway, colliding with an oncoming vehicle and killing the other driver.
  • A woman hires a hit man to kill her husband, who is having an affair.  Shortly thereafter, she thinks better of it, and cancels the hit.  No one is physically harmed.
  • After being mugged, a woman purchases a handgun for self-protection.  One night, as she is walking alone in a high-crime neighborhood, a panhandler approaches her and asks for money.  She immediately pulls out her gun and kills the panhandler.
  • A man in his home hears a woman outside screaming that she is being raped.  He does not go to his window, call the police, or do anything else to help.
  • A man has a history of becoming violent after drinking.  He has several convictions for disorderly conduct and assault, mostly in connection with barroom fights.  He enters a bar and begins drinking.

Which of these scenarios should be treated as crimes?  Among those, which is most severe and deserving of the greatest punishment?  Which is least severe?

It seems self-evident that such questions ought to be answered by reference to the basic purpose or purposes of criminal punishment. The alternative seems an ad hoc, unpredictable, arbitrary criminal-justice system that often operates at cross-purposes with itself.

Criminal law courses, in any event, traditionally proceed on the assumption that purposes do matter to criminalization, in both a descriptive and normative sense.  Four purposes are conventionally identified: deterrence, incapacitation, rehabilitation, and retribution.

However, I’ve long had the nagging sense that conversations around these purposes — in courtrooms no less than classrooms — are chronically superficial and unproductive.   (more…)

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Barrock Lecture Explores Collision Between Criminal Law and Neuroscience

“Be of good cheer; everything is going to be all right.”  With these words last week, Stephen Morse sought to reassure his audience at Marquette Law School that advances in neuroscience will not ultimately upset traditional understandings of criminal responsibility.  Morse, a professor at the University of Pennsylvania, was in town to deliver Marquette’s annual Barrock Lecture on Criminal Law.  A podcast of Morse’s engaging presentation is here.

Neuroscience is increasingly giving us the ability to understand — and even, in the form of colorful MRI images, to see — some of the specific biological processes in the brain that produce thought and action.  This suggests the possibility of “my brain made me do it” defenses, especially in cases involving defendants who have demonstrable neurological abnormalities.  If a particular aspect of a defendant’s brain can be identified as a “but for” cause of his criminal behavior, then should not that provide an excuse?

Morse argues that this defense proves too much.   (more…)

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New Research on Violence

The new issue of Criminology features several interesting papers relating to violence and its control.  This has been a hot topic here in Milwaukee over the past few months.  Perhaps some of the emerging policy proposals would benefit from the new research:

First, an unusual controlled experiment in St. Louis provides support for “hot spots” policing, especially when officers proactively engage with citizens in the high-crime neighborhoods.  Researchers working with the St. Louis Metropolitan Police Department randomly assigned hot spots for firearm violence to one of three conditions: (1) a control group; (2) an enhanced visibility group in which officers were directed to patrol slowly through the targeted areas, but to refrain from self-initiated activity unless a crime was in progress; and (3) an enhanced activity group in which officers were directed both to increase patrols and to increase self-initiated activities, which might include arrests, pedestrian stops, vehicle checks, and so forth.

(more…)

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Good Time in Wisconsin: Why and How

In a couple of recent posts (here and here), I have discussed the possibility of Wisconsin reinstituting “good time.”  I have developed the argument for good time at much greater depth in a new article that is now available on SSRN.  Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress. This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

Entitled “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release,” the article is forthcoming in the Marquette Law Review.

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“Good Time” in Washington: A Model for Wisconsin?

In my previous post, I argued that Wisconsin should consider reinstituting “good time” for prisoners, that is, credits toward accelerated release that can be earned based on good behavior.  An established program that Wisconsin might emulate is Washington’s.

Washington has long been regarded as a national leader in criminal justice.  Indeed, Wisconsin has previously borrowed from other Washington innovations, such as its “three strikes and you are out” law and its civil commitment program for sexually violent offenders.  Washington’s good-time law takes a balanced, moderate approach.  It is neither among the most generous nor the most stringent in the nation.

Notably, Washington’s recidivism rate has been consistently lower than both the national average and Wisconsin’s.  Although many factors contribute to a state’s recidivism rate, some research suggests that the incentives established by a well-designed good-time program may help to reduce repeat offending.

With the rules set forth here, the Washington program works like this:

(more…)

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Why No “Good Time” in Wisconsin?

Unlike most other states, Wisconsin does not recognize prisoners’ good behavior with credits toward accelerated release.  Wisconsin had such a “good time” program for well over a century, but eliminated it as part of the policy changes in the 1980s and 1990s that collectively left the state unusually — perhaps even uniquely — inflexible in its terms of imprisonment.  I’ve been researching the history of good time in Wisconsin in connection with a forthcoming law review article.

Wisconsin adopted its first good time law in 1860, which placed it among the first states to embrace this new device for improving prison discipline.  Twenty years later, in 1880, the Legislature expanded good time and restructured the program in the form it would retain for about a century.  In the first year of imprisonment, an inmate could earn one month’s credit for good behavior; in the second, two months; in the third, three; and so forth.  Credits maxed out at six months per year.   A model prisoner with a ten-year term, for instance, might earn enough credits to knock off two years or more from the time served.

In Wisconsin and elsewhere, good time has had a distinct history, structure, and purpose from parole.   (more…)

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“With Friends Like These . . .”: New Critiques of Graham and Miller

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade.  Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder.  I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller.  Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another).  Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   (more…)

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Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”

(more…)

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