Certainty v. Severity of Punishment: The Need for Mechanisms of Restraint

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.

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Why Following the Rules Should Get You Out of Prison Early

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.

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My Defense of Parole Now Out in Print

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.

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Weisberg on Mass Incarceration and Purposes of Punishment

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.

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Weisberg on Restorative Justice: The Dangers of “Community”

I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit.  I enjoyed his thoughtful, if ultimately somewhat equivocal, reflections on restorative justice at 2003 Utah L. Rev. 343.  In a sense, his comments here pick up where his critique of Dan Kahan leaves off (see this post).  He is concerned that Kahan’s proposals to build and enforce community norms through the criminal-justice system may, in practice, become a vehicle for the sort of harsh populism that has so dominated our politics of crime and punishment.  Similarly, his critique of restorative justice focuses on the sloppy and potentially dangerous ways that RJ proponents invoke the idea of “community” as a basis for criminal-justice reform.

Those who have spent some time reading the RJ literature will immediately recognize the centrality of community to the RJ rhetoric.  The term carries many positive connotations, and is often used by RJ proponents to suggest a fundamentally different level of social organization than the “state” or other politically defined groupings.  (more…)

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Weisberg v. Kahan

In anticipation of next week’s visit by Robert Weisberg, I reread one of his articles that made a big impression on me when it first appeared a few years ago: “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” 93 J. Crim. L. & Criminology 467 (2003).  This is basically an extended — perhaps even a little too extended, at 125 pages — critique of the scholarship of Dan Kahan.  Kahan has had a huge influence on many other criminal law scholars (I’ll include myself among those influenced), so Weisberg is taking on a worthy adversary.  And, on the whole, I think his criticisms hit the mark.

(Kahan himself, I should note, delivered a fascinating lecture at Marquette Law School not so long ago.)

In order to appreciate the significance of Kahan’s agenda, it is helpful to think about it (as Weisberg does) as a response to the law and economics movement.

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“Reality-Challenged Theories of Punishment”: Weisberg Lecture on Oct. 6

I’m looking forward to Robert Weisberg’s talk here next week.  He is delivering this year’s George and Margaret Barrock Lecture on Criminal Law.  I think we can expect a pungent critique of retributive theories of punishment.  Here is the description:

The theme of “American exceptionalism” has found perverse corroboration in the size of the prison population, according to Weisberg. At the same time, discourse about the “purposes of punishment” is thriving, with a recent revival of highly abstract theorizing about the nature and legitimacy of retribution, he says. In this lecture, Weisberg will describe the disconnection and recommend ways of overcoming it, stressing that the abstract theorizing must be more sensitive to what punishment means and what effects it has in modern America.

The lecture will be at 12:15 on October 6.  For more information and to register, see the lecture website.

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Is Desert-Based Punishment the Best Way to Control Crime?

I’ve noted a few times (e.g., here) Paul Robinson’s much-discussed theory of “empirical desert.”  Briefly, Robinson has attempted to provide a utilitarian justification for desert-based punishment.  His view is that criminal law and sentencing should track popular beliefs regarding the relative blameworthiness of different categories of crime.  When the criminal-justice system does not conform to widely shared beliefs regarding just punishment, the system’s legitimacy is diminished.  This is important because the system’s legitimacy is, more than anything else, what leads people to feel a sense of obligation to obey the law.  Thus, the desert-based approach (as opposed, for instance, to one built around competing theories like efficient deterrence or selective incapacitation) is the one that is most likely to lead to the best crime-control results.

I think Robinson’s theory offers a useful way to establish some common ground among utilitarians and retributivists, although I also think that Robinson has somewhat oversold the potential for empirical desert to provide clear answers to the really tough questions in criminal-justice policy.

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Does Mens Rea Matter?

In a new article in Psychology, Public Policy, and Law, N.J. Schweitzer and coauthors report on a set of experiments intended to show whether neuroimage evidence has a greater impact on jurors than other types of evidence of psychological or neurological dysfunction.  The answer is basically no — jurors do not give greater weight to expert testimony when it is accompanied by fancy brain scans.

What I find more interesting and provocative about the article, though, is what it seems to reveal about how little mens rea matters in decisions about guilt and sentencing.

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More on the New Brain Science

Here’s a post-script to my comments a few days ago on David Eagleman’s argument that criminal law must be fundamentally rethought in light of the science undermining the concept of free will.  As I noted, pharmacology is one of the cornerstones of Eagleman’s case against free will: we’ve discovered in the past fifty years that a growing array of psychological pathologies can be effectively treated with medications that act on the brain’s production and use of neurotransmitters.  That’s the conventional wisdom, anyway.  It turns out, though, that the pharmacological evidence may not be nearly so strong as Eagleman claims. 

I’ve just read this fascinating review by Marcia Angell of three new books on the American mental illness epidemic (NY Rev. of Books, June 23, 2011, at 20).  The most compelling evidence on the weakness of the “chemical imbalance” theory of mental illness comes from Irving Kirsch’s The Emperor’s New Drugs: Exploding the Antidepressant Myth.  Kirsch used FOIA to obtain otherwise-confidential FDA reviews of placebo-controlled clinincal trials of antidepressants.  Here’s what he found.

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