Archive for the ‘Politics of Crime and Punishment’ Category

Riding the Punitive Roller Coaster

Monday, May 20th, 2013

Public support for punitive criminal-justice policies has risen and fallen repeatedly since 1951, Mark Ramirez demonstrates in an extensive new analysis of historical polling data.  Although some commentators characterize the punitive attitudes of Americans as a constant, Ramirez shows that the strength of these attitudes has varied over time.

Measuring public punitiveness has proven difficult.  Simply asking people whether they are punitive seems unlikely to produce helpful results, given the uncertainty and abstraction of the term.  On the other hand, asking about support for any specific criminal-justice policy might or might nor produce answers that are reflective of more general attitudes.  Intuitively, for instance, support for the death penalty would seem a good indicator that a person would also support a range of other policies that are typically characterized as punitive, such as three-strikes laws, but it is hard to rule out the possibility that the death penalty is a unique issue in the minds of many Americans; support may be due, say, to religious beliefs or particular feelings regarding the crime of murder, rather than more general attitudes toward crime and criminals.

Ramirez attempted to overcome this difficulty by aggregating survey responses to several different criminal-justice policy questions.  He identified 24 different survey questions that were asked by national pollsters at least twice between 1951 and 2006.  Many of the questions related to the death penalty, but others touched on three-strikes laws, drug enforcement, law-enforcement spending, imprisonment, and sentencing more generally.  Although the levels of support for different punitive policies varied, they tended to move in unison over time, suggesting that there really is some shifting, underlying attitude that drives support for all of the different policies.

Based on the survey data, Ramirez compiled a year-by-year punitiveness index.

(more…)

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Overcoming the Pathologies of Hypermasculinity in Prison

Monday, April 15th, 2013

Sharon Dolovich is one of my favorite writers on prisons.  I’ve especially appreciated her work on the K6G unit of the L.A. County Jail.  This is a segregated unit reserved for gay men and transgender women.  Her latest article on K6G explores the relatively positive experience of inmates in the unit so as to illuminate the core pathologies of life elsewhere in the Jail, and by extension in most male penal institutions across the country.

As Dolovich sees things, hypermasculinity is the defining characteristic of life in the general inmate population.  Here’s how she describes life in the GP units:   (more…)

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Posner on Stephen: Punishment, Hatred, Struggle, and Power

Monday, March 18th, 2013

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…)

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People Want Criminals to Suffer, Even If It Is “Useless”

Sunday, January 27th, 2013

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…)

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Lessons From Sixteen Years of the PLRA and AEDPA

Monday, January 7th, 2013

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

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Incarceration and Collateral Damage: Prof. Traci Burch to Speak at Marquette on Nov. 29

Thursday, November 15th, 2012

We live in an era of unprecedented mass incarceration. Since the mid-1970′s, America’s imprisonment rate has quintupled, reaching heights otherwise unknown in the western world. We embarked on this incarceration binge with little understanding of what impact it would have on families and communities. The past fifteen years, however, have witnessed a great outpouring of research and writing on the collateral effects of imprisonment. Those who work in the criminal-justice system should be – and I think increasingly are – knowledgeable about the real impact that their work has on the lives of the many human beings who are connected to each incarcerated person.

Practitioners (and students) who would like to learn more about this important issue will have a wonderful opportunity to do so in two weeks, when Professor Traci Burch of Northwestern University comes to Marquette Law School to speak on the “The Collateral Consequences of Incarceration.” Here is the description:

Dr. Burch will discuss the effects of mass incarceration on families and communities on Thursday, November 29th. This talk is based in part on her forthcoming book, Punishment and Participation: How Criminal Convictions Threaten American Democracy (University of Chicago Press). Dr. Burch will discuss how criminal justice policies shape disease, crime, domestic partner relationships, children and voting participation in low-income communities.

This event is co-sponsored by Marquette’s Department of Political Science, Law School, Klinger College of Arts and Sciences, Office of the Vice Provost for Research, Department of Social and Cultural Sciences, and Institute for Urban Life.

The talk will begin at 5:15, with an informal reception and light refreshments to follow. Additional information and a link to register for the talk are here.

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From 80 Years Ago, A Plea to Depoliticize the Bench

Monday, September 10th, 2012

I continue my review of the Wickersham Commission reports from 1931.  Interestingly — and I think correctly — the report on criminal procedure asserts that the quality of the rules of criminal procedure is less important than the quality of the personnel working in the criminal-justice system.  (Coincidentally, we touched on this point last week in my Crime and Punishment in American History course, when I asked students whether they thought any procedural reforms would have prevented the horrific miscarriages of justice at the Salem witch trials.)

Given its focus on personnel, the report’s leading recommendation is perhaps not a surprise, even though it would still be a very timely recommendation today:

Above all there is need of a change of attitude both in the legal profession and in the public as to the mode of choice, tenure, and personnel of the bench. . . . [E]ven where judges are appointed for life, appointments are too much in politics.  Something more than a change of selection is called for.  The public must be thoroughly convinced of the need for removing the administration of justice from politics and of insisting that appointments be made on the ground of conspicuous fitness alone, so that no appointing power will think of choosing a judge or magistrate on any other basis.  (45-46)

I am not a fan of an elected judiciary, but I also like the report’s implicit caution that appointment systems are not intrinsically superior.  It is hard to say, for instance, that the current federal system for appointment of judges is a depoliticized one.

Can the public be “thoroughly convinced” that “fitness” should be the sole criterion, in lieu of politics?  A major difficulty, of course — then and now — is that the line between “fitness” and “politics” can be very uncertain in practice.  If a judicial candidate, for instance, takes a hard line against the Fourth Amendment exclusionary rule because it sometimes lets guilty defendants walk free, is the candidate demonstrating fitness or politicization?  I imagine there would be strongly held opinions on both sides of the question.

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Your Constitutional Rights Are Much Weaker Than You Think They Are — So What?

Wednesday, August 22nd, 2012

Michael Cicchini has an entertaining (in a dark, ironic sort of way) new book.  The title pretty clearly indicates Cicchini’s perspective: Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.  The heart of the book is a survey of our basic constitutional rights, one chapter per right.  A central theme in this survey is that the courts have interpreted the familiar Fourth, Fifth, and Sixth Amendment rights such that they are, as Cicchini puts it, “soft law” — “vague, malleable, and subject to a tremendous amount of discretion under a facts-and-circumstances type of analysis.”  (11)  In his view, this approach to constitutional rights stacks the deck in favor of police and prosecutors and against defendants.  The soft formulation “allows the police to create the facts and circumstances necessary to circumvent — or, more accurately, destroy — constitutional rights.”  (15)  Prosecutors and judges, Cicchini observes, may do the same.

The result is a set of constitutional rights that are probably much less protective of defendants than many laypeople realize.  Cicchini identifies the major absurdities and unexpected gaps in the law.  I don’t know if Cicchini is an admirer of the late Christopher Hitchens, but his excellent blog features a quote from Hitchens, and Cicchini seems to take a similar delight in skewering hypocrisy and intellectual laziness.  Although the book is intended for a general audience, Cicchini’s acerbic prose makes it a good read even for someone who is already familiar with the legal issues he discusses.

But, aside from entertainment value, what is the point of demonstrating that the courts are, to put it charitably, inconsistent in their support of defendants’ rights?   (more…)

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Is Wisconsin Ready for Another Sentencing Commission?

Monday, July 23rd, 2012

Wisconsin has already had two sentencing commissions, now both defunct.  Is it time to think about a third?  Sentencing commissions have proven their worth over the long haul in a number of other states, including Minnesota, North Carolina, and Virginia.  A successful sentencing commission promulgates guidelines that channel judicial sentencing discretion and reduce sentencing disparities, collects and analyzes sentencing data in order to support evidence-based decision making, and provides information and recommendations to the legislature than can help to blunt some of the political system’s tendencies to excessive harshness.  Although it is certainly not cost-free, a good commission may ultimately save the state far more than is required to fund its operations.

With these considerations in mind, the latest edition of the Marquette University Law School Poll asked respondents their views of commissions and of judicial sentencing discretion.  (For my earlier posts on the Poll, see here and here.)  The results indicate that there is substantial support for a commission, but that Wisconsinites also appreciate what their locally elected judges bring to the table as sentencers.   (more…)

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For Punishment, Do Costs Count?

Friday, July 20th, 2012

In my previous post, I discussed some of the fascinating results from the recent Marquette University Law School Poll, in which about 700 Wisconsin residents were asked various questions about crime and punishment.  In this post, I’ll consider what the Poll results have to say about a crucial question for sentencing policy and politics: do costs matter, or are the interests served by punishment of such overriding social importance that expense is no object at sentencing?

This question is related to another question I raised in the previous post: is punishment valued more in instrumental or symbolic terms?  If people look to punishment primarily as a way to decrease crime and increase public safety (the instrumental approach), then costs seem to have a natural place in the equation.  As much as we value our safety, there are always limits to what we are willing to spend to protect ourselves.    Few of us hire body guards, or purchase bulletproof vests, or build panic rooms in our homes — the small reductions in risk that we would enjoy simply do not seem worth the cost and inconvenience, and there seems nothing odd about thinking of risk in these sorts of cost-benefit terms.  But if punishment is instead viewed in symbolic terms — as making a statement about who we are as a people and what our deepest moral values are — then cost considerations seem out of place.  It would make us uncomfortable to say, “X is the right thing to do, but I’m not going to do it because it is too expensive.”

The Poll did not ask the big philosophical question about costs directly, but several questions seem to get at it indirectly.  The answers suggest some real ambivalence and division in public attitudes.

(more…)

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