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

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

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

Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990’s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

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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.

Weisberg on the MPC: Sentencing

I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit.  He reflects on the Model Penal Code: Sentencing Draft in his essay “Tragedy, Skepticism, Empirics, and the MPCS,” 61 Fla. L. Rev. 797 (2009).  He is particularly interested here in the views of the MPCS on empirical social science as a basis for making sentencing policy.  He finds in the MPCS evidence of what he calls “tragic skepticism” about empirical proof in legal reform, which has both negative and positive dimensions: “(1) a sober recognition of the limited human knowledge about the effects of our laws that is offset (2) by a sensible, chastened, realistic commitment to a spirit of reasonable experimentation in an unknowable world.” (797)  Weisberg seems quite sympathetic to this stance (as, by the way, am I).

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Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More

Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography.  Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.

In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought.  Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.

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Sentencing Judge May Not Lengthen Prison Term in Order to Promote Rehabilitation

Earlier today, the United State Supreme Court ruled that federal judges may not impose or lengthen a defendant’s sentence in order to promote rehabilitation.  In Tapia v. United States (No. 10-5400), the district judge apparently selected a sentence at the very top of the recommended guidelines range in order to give Tapia time to complete the Bureau of Prison’s Residential Drug Abuse Program (a/k/a the 500 Hour Drug Program).  The Supreme Court rejected this reasoning as a straightforward matter of statutory interpretation; 18 U.S.C. § 3582(a) intructs sentencing judges to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

The Court’s decision seems pretty clearly correct as a matter of law, but what about policy — should Congress repeal that language from § 3582(a)?  Part of the Sentencing Reform Act of 1984, this language reflected two criticisms of the rehabilitative paradigm in criminal law: (1) the pragmatic objection that prison-based rehabilitative programming did not work, and (2) the ethical objection that defendants should not be sentenced in excess of their just deserts in order to achieve the coerced delivery of social services.  The first objection has less force today than it did in the 1980’s, as good studies now document at least modest levels of success by some prison-based programs in reducing recidivism.  However, the second objection remains no less important today than it was three decades ago.  On the other hand, desert is hardly a precise concept in practice; there may be enough play in the joints to permit some consideration of rehabilitative programming at sentencing without exceeding desert-based constraints.  If so, § 3582(a) may be more limiting than is necessary.

Seventh Circuit Vacates Sentence Based on Parsimony Clause

According to the so-called parsimony clause of 18 U.S.C. § 3553(a), federal sentences must be “sufficient, but not greater than necessary, to comply with” the sentencing purposes set forth in § 3553(a)(2).  In general, appellate courts have been less than vigorous in enforcing this mandate.  No doubt, this has much to do with the open-ended nature of the (a)(2) purposes (deterrence, incapacitation, retribution, and the like) — it’s hard to say precisely in any given case what is sufficient or necessary to advance these purposes.  You can sympathize with appellate judges who want to avoid what seems an intellectual quagmire.

But even if the parsimony clause cannot be (or won’t be) effectively enforced as a substantive matter, appellate courts may nonetheless do some good by ensuring that sentencing judges pay attention to the clause as a procedural matter.

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.   Continue reading “SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program”

The Dead End of Deterrence

The Sentencing Project has a new report out that summarizes research on the effectiveness of criminal punishment as a deterrent.  It’s nothing pathbreaking, but it does offer a nice, succinct statement of the evidence against robust deterrence effects.  Here’s the conclusion:

Existing evidence does not support any significant public safety benefit of the practice of increasing the severity of sentences by imposing longer prison terms. In fact, research findings imply that increasingly lengthy prison terms are counterproductive. Overall, the evidence indicates that the deterrent effect of lengthy prison sentences would not be substantially diminished if punishments were reduced from their current levels. Thus, policies such as California’s Three Strikes law or mandatory minimums that increase imprisonment not only burden state budgets, but also fail to enhance public safety. As a result, such policies are not justifiable based on their ability to deter.

Based upon the existing evidence, both crime and imprisonment can be simultaneously reduced if policy-makers reconsider their overreliance on severity-based policies such as long prison sentences. Instead, an evidence-based approach would entail increasing the certainty of punishment by improving the likelihood that criminal behavior would be detected. Such an approach would also free up resources devoted to incarceration and allow for increased initiatives of prevention and treatment.

I’ll offer four reactions of my own.

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