The Encyclopedia of Criminology and Criminal Justice has finally come out in print, and with it my two entries on restitution and sentencing commissions. A copy of “Restitution” is here, and a copy of “Sentencing Commissions” here.
The criminal-justice system exists to minimize the extent to which individuals perform certain acts. There are many different tools available for society to discourage disfavored behaviors, some of which involve the use of law and legal institutions. One such law-based tool is the criminal sanction. It is not the only one. There are also various forms of civil and administrative liability, as well as subsidies and other types of incentives—behavior modification mechanisms can include both carrots and sticks. Among the sticks, the criminal sanction is normally regarded as the most forceful tool available, as well as the tool most worrisome for its tendency to produce devastating collateral damage.
It is sometimes said that the criminal-justice system exists to do other things like reinforce or clarify important moral norms; build social cohesion; identify, incapacitate, and treat individuals with dangerously antisocial tendencies; right the moral balance when it has been upset; vindicate (or perhaps more ambitiously bringing healing to) victims; or simply do justice. Each such formulation has a certain amount of truth to it, but each presents considerable danger if it is viewed in isolation as THE overriding purpose of the criminal-justice system.
One important danger is this: in a liberal, democratic society, it is imperative that the equal worth of all individuals be respected, and that there be a wide scope of individual autonomy, particularly in such matters as conscience, private moral choice, lifestyle, and political dissent. (more…)
When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element. These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances. The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”
The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC. This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery. The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional. However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.
I’ve never read the work of the Victorian judge and legal scholar James Fitzjames Stephen, but I am familiar with his famous statement that “it is morally right to hate criminals.” Richard Posner contextualizes this statement with some interesting commentary about Stephen in a new essay in the Ohio State Journal of Criminal Law.
As Posner reads Stephen’s work (principally, his three-volume history of English criminal law), Stephen was not really a moralist, but a utilitarian who saw practical value (for him, the same thing as moral rightness) in harnessing the public thirst for vengeance against wrongdoers. Posner puts it this way: (more…)
A large body of experimental research has sought to determine whether punishment is motivated more by instrumental considerations (deterrence, incapacitation, etc.) or by retributive urges. The various studies, although limited in important ways, have generally pointed to retribution as the primary factor in driving penal decisions in response to hypothetical fact patterns.
Add to this body of research an interesting new study Eyal Aharoni and Alan Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,” 18 Psych., Pub. Pol’y & L. 599 (2012).
Aharoni and Fridlund presented subjects with various versions of a hypothetical homicide case and then asked how much the killer should be made to suffer and what sentence should be imposed. (more…)
Earlier this week, I posted on the classic question of whether certainty in punishment is more important than severity. By some coincidence, when I then received the latest issue of Criminology, I found a fascinating new article that explores another dimension of the certainty problem.
The terminology is a little awkward here, but the authors are interested in what they call the “ambiguity” surrounding the risk of punishment. The basic idea is this: two different people contemplating a crime might both reach the same estimate of the risk of getting caught, but one might have much more confidence in his estimate than the other. The less confident criminal perceives the same level of risk, but a higher level of ambiguity. What effect, if any, does such ambiguity have on deterrence? That is the question that Thomas A. Loughran and his coauthors consider in “On Ambiguity in Perceptions of Risk: Implications for Criminal Decision Making and Deterrence,” 49 Criminology 1029 (2011).
Some criminologists have theorized that ambiguity might have an independent deterrent effect apart from the actual risk of getting caught. (1031) If so, then one potential implication is that police can maximize their effectiveness by being unpredictable.
For at least two and a half centuries, since the time of Cesare Beccaria, criminologists have recognized that the effectiveness of punishment depends more on its swiftness and certainty than on its severity. Yet, in the United States today, our criminal-justice system has it exactly backwards, relying on what Mark Kleiman and Kelsey Hollander justifiably call “a system of randomly Draconian punishments.” In an insightful new article, Kleiman and Hollander describe in clear, simple terms the systemic reforms that ought to be adopted in order to implement the basic principle that certainty matters more than severity. See “Reducing Crime by Shrinking the Prison Headcount,” 9 Ohio St. J. Crim. L. 89 (2011). They even have an actual, working model of this system to demonstrate its effectiveness: Honolulu’s Project HOPE, which, using a system of summary sanctioning, has achieved dramatic reductions in recidvism among probationers. Klieman and Hollander argue that the HOPE model can and should be expanded to a number of other populations, including parolees.
I find much that is appealing in Kleiman and Hollander’s reform program. But I also think there is something important that is missing in their analysis. As I’ve pointed out in my criticisms of the “evidence-based decision making” movement, there are real dangers when we think about criminal justice purely in terms of the efficient management of social risk. The most fundamental problem with this model is that it assumes that we are capable of treating the people we label as “dangerous” in a restrained, carefully cost-benefit-justified way, when experience teaches that this sort of marking tends to unleash powerful emotional responses like disgust and vindictiveness. James Whitman has written eloquently, and I think persuasively, of these important tendencies.
Indeed, we should ask why it is that the certainty-based approach of Kleiman and Hollander is not the norm. After all, the central premises of their model date back to Beccaria.
I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.” Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison. It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated. No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.
The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates. Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation. Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.
In the paper, I argue that good time can thought of and justified in a different light. In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime. If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.
My article “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing” is now out in print at 48 Am. Crim. L. Rev. 1247. The article is on-line here. The abstract is as follows:
Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.Yet, sentencing remained indeterminate in most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.
In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory.
Bob Weisberg’s just-delivered Barrock Lecture, “Reality-Challenged Theories of Punishment,” can be viewed here. After reviewing the extraordinary data on the mass incarceration phenomenon in America, Bob considers the implications for each of the traditional purposes of punishment (retribution, incapacitation, general deterrence, specific deterrence, and rehabilitation). I think he is spot-on that the theorists advocating for each of these different approaches have not adequately come to grips with the realities of mass incarceration. Punishment theorists frequently bemoan their marginalization in the policymaking realm. Perhaps they could make their work seem more relevant outside the academy if they took better account of the scale of contemporary incarceration and its particular impact on certain social groups.