Thoughts on the Holder Address: Two Cheers for the New Paradigm

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   (more…)

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Marquette Conference to Consider Healing for Family Members of Homicide Victims

I’m looking forward to the upcoming conference here, “The Death Penalty Versus Life Without Parole: Comparing the Healing Impact on Victims’ Families and the Community.”  The conference was inspired by a fascinating empirical study comparing the long-run experiences of family members of homicide victims in Texas, which has the death penalty, and Minnesota, which does not.  Authored by Marilyn Peterson Armour and Mark S. Umbreit and forthcoming in the Marquette Law Review, the article concludes that the Minnesota family members achieved a higher level of physical, psychological, and behavioral health.

The conference kicks off with a keynote address by Armour herself at 4:30 on February 21.  The following day will include several panels providing a diverse set of first-hand perspectives on the impact of homicide, capital punishment, and the criminal process on family members, lawyers, judges, and many others.  Additional information about the conference is available here.

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California Answers Some of the Graham/Miller Questions, Sort Of

As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles.  In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide.  These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.

Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero.  I think Caballero got things right, as far as it went, but the case left much open for future litigation.  (more…)

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Who Are the Juvenile Lifers? New Report Paints a (Mostly) Grim Picture

The Sentencing Project has a new report on prisoners sentenced to life without parole for crimes committed while they were under the age of 18.  Entitled “The Lives of Juvenile Lifers,” the report presents the results from a national survey of more than 1,500 JLWOP inmates.  The report is very timely in light of the Supreme Court’s two pending JLWOP cases — perhaps the new information will help to convince the justices that JLWOP does indeed constitute cruel and unusual punishment, even for homicide crimes.  In any event, here are some of the highlights.

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“A Fair-Minded Society Should Revisit Life Sentences”

The New York Times has a nice editorial today criticizing overuse of life without parole.  The editorial endorses the ALI’s position that LWOP should be restricted to cases in which it is the sole alternative to the death penalty.  The Times also supports the ALI’s view that life sentences should be revisited after 15 years (which is what is done already in Germany).

There are parallels to this reasoning in an article that I am working on right now that presents a new argument for good time (credits toward early release earned by virtue of good conduct in prison).  I contend that good conduct in prison can be thought of as a way that an offender atones for his crimes, and that atonement ought to be recognized and rewarded by the criminal-justice system:

A failure to recognize atonement would itself communicate unsuitable messages about the offender and the community. Communicative punishment is premised on the moral agency of the offender—the offender’s capacity to listen to and be swayed by the community’s censure. But to discount indications that the offender has already recognized the need for atonement seems contrary to this premise. As Radzik puts it, “Not to recognize and nurture moral progress is to deny moral agency.” She worries, moreover, that an inability to respond favorably to atonement reflects a view about the indestructability of wrongdoing that is corrosive of social trust and cooperation. Carried to an extreme, an unrelenting severity in punishment may produce even more anxiety and prove even more socially immobilizing than a persistent and unwarranted lenience in punishment.

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Life Sentences in Germany

The American penal system is plagued by a lack of coherent purposes and clear institutional accountability.  If we were interested in a model for how to do things better, Germany might be a good candidate.  I’m no expert on the German system, but I’ve just read with great interest a new paper on the way that Germany manages its life sentences.  The paper, authored by Dirk van Zyl Smit and entitled “Release From Life Imprisonment: A Comparative Note on the Role of Pre-Release Decision Making in England and Germany,” appears as a chapter in Fervet Opus: Liber Amicorum Anton van Kalmthout (Marc Groenhuijsen et al. eds., 2010).

Although the paper particularly focuses on a fascinating 2009 decision by the Federal Constitutional Court, it also provides some useful background information on the the legal framework for life sentences in Germany.  Here are some features that stand out for me.   (more…)

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The Beginning of the End for Life Without Parole?

That question is the title of a new paper I’ve just uploaded to SSRN. Here is the abstract:

This essay introduces a new issue of the Federal Sentencing Reporter that is devoted to different aspects of the sentence of life without parole. An important question raised by many of the articles is whether LWOP, after two decades of explosive growth, is entering a period of decline. For instance, the Supreme Court declared LWOP unconstitutional for most juvenile offenders in May 2010, possibly inaugurating an era of more meaningful constitutional limitations on very long sentences. Additionally, many cash-strapped states have been developing new early-release programs in order to reduce corrections budgets, some of which hold out hope even for LWOP inmates. This essay considers the likelihood that these and other recent developments will contribute to a decline in LWOP. In the end, none of the developments portend dramatic changes, at least regarding LWOP for adult offenders, although it is possible that LWOP will undergo a period of slow, long-term decline, much as has occurred with the death penalty. After laying out this perspective, the essay then considers whether the United States ought to welcome such a period of decline.

The LWOP issue of FSR, which I edited, has just come out in print.   (more…)

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State Legislatures Continue to Grapple With Corrections Budgets

I’ve just read the National Conference of State Legislatures’ new E-Bulletin on developments in sentencing and corrections policy. The dominant theme continues to be fiscal pressures and the need to rein in corrections spending.  States across the country are emphasizing community-based alternatives to imprisonment and enhanced services and release opportunities for inmates.  Here are some highlights from the first half of 2010:   (more…)

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