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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U.S. Probation Population Continues to Drop: What’s Happening in Minnesota?

The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010.  Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision.  The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980’s and 1990’s.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults.  This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision.  (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”)  The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010.  Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation?  The report provides no definitive answers, but some clues are apparent.

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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.

Which Parolees Are the Biggest Risks? The Answer May Surprise You

There is a natural tendency to believe that the offenders who have committed the most serious crimes are the most dangerous.  We assume that the commission of a heinous crime reveals intrinsic character flaws that will inevitably manifest themselves in future offenses.  But is this true?  Empirical research casts doubt on the assumption.  For instance, the well-known study by the Bureau of Justice Statistics on recidivism among prisoners released in 1994 found lower rearrest rates among violent offenders than property offenders (61.7 percent versus 73.8 percent), with homicide offenders having the lowest rearrest rates among all of the categories studied (40.7 percent).

A new study of parole violations by Ryken Grattet, Jeffrey Lin, and Joan Petersilia reaches a similar conclusion.  Their dataset included the records of more than 250,000 parolees in California in 2003 and 2004.  Here is what they found regarding the effect of offense category:

The commitment offense variables indicate that parolees who had last been incarcerated for property offenses pose the greatest risk to violate, followed by parolees committed for drug (the omitted category), violent, and sexual offenses. Parolees committed to prison for violent offenses have a 19.1 percent lower hazard of violation than drug offenders, and parolees committed for sexual offenses have a one-third lower risk than drug offenders.  Individuals with greater numbers of prior violent convictions also have a lower hazard of violation. For each additional violent conviction, a parolee has a 2.0 percent lower hazard of violation. The number of serious convictions also lowers the hazard of violation by 3.4 percent per prior serious offense. . . .

[P]olicy makers and the public, who often assume that the seriousness of a parolee’s past behavior is positively correlated with risk, might be surprised to learn that markers of the seriousness of the offender’s criminal history actually lower the risk of violation. In other words, the type of crime a parolee has been convicted of is indeed predictive of future bad behavior; however, it is drug and property—so-called low-level offenders—that pose heightened risks of violations.  (385-87)

What is new and particularly helpful about this study is that it attempted to hold supervision intensity constant. 

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Not Motivated to Do Your Homework? Back to Prison for Six Months!

The Seventh Circuit’s opinion last week in United States v. Musso (No. 11-1153) provides a disquieting glimpse of the Orwellian world of supervised release for the sex offender.  Musso served a three-year sentence for possession of child pornography, then began a period of supervised release subject to a special condition requiring him to “participate in an approved sexual offender treatment program” and to “abide by all rules, requirements, and conditions of the treatment program.”  Musso was later found to have violated various of these “rules, requirements, and conditions,” resulting in the revocation of his release and a new six-month term of incarceration.  Here are the horrible things Musso did while he was out:

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Rethinking Indeterminate Sentencing

My new article, “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing,” is now available here on SSRN.  The article grew out of my interest in the revival of early-release opportunities that has occurred over the course of the past decade.  This revival has the effect of making sentencing less determinate in many jurisdictions — it is not as clear at the time the judge pronounces the sentence exactly how long the defendant will spend in prison.  It is commonly assumed that indeterminate sentencing is incompatible with retributive approaches to punishment, particularly to the extent that the amount of incarceration is made to depend on considerations other than the gravity of the crime (for instance, on the defendant’s performance while in prison).

My purpose in the article is suggest one way that indeterminate sentencing may be reconceptualized so that it fits tolerably well with at least one version of retributivism.  In essence, an indeterminate sentence is seen as a way to permit limited extensions of incarceration as a retributive response to persistent, willful violations of prison rules.  Were this approach adopted, however, it would probably require a rethinking not only of the way that parole is administered, but also the way that prisons are run.  If prisons are, in practice, little more than warehouses — places of intense exclusion that aim to provide no more than the bare necessities for physical existence — then it is not clear there is a morally satisfactory basis for retributive responses to prison rule-breaking.

The article is forthcoming in the American Criminal Law Review.  The abstract appears after the jump.

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California Parole May Be Broken, But Federal Courts Cannot Fix It

By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.”  According to the California Supreme Court, the statute requires that there be “some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.”  As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case. 

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point.

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The Quiet Comeback of Early Release

Parole seems to be making a comeback.  Although it was a universal feature of the American criminal justice system as recently as forty years ago, parole fell into precipitous decline over the final three decades of the twentieth century.  By 2000, fifteen states and the federal government had abolished parole altogether, while twenty additional states had formally restricted its availability. Since 2000, however, many states have enhanced release opportunities for prison inmates (although some still resist the “parole” label for their new programs).

For an article I am working on, I have been collecting information about the states in the latter category.  I count twenty-eight.  What I have so far appears in a table after the jump.   Continue reading “The Quiet Comeback of Early Release”

Risk Assessment and Racial Disparity

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.”

I’ve heard variations on this argument before, but Harcourt’s new paper adds some interesting historical dimensions to the analysis.  For instance, as a “cautionary tale,” he discusses the turn to risk-based institutionalization in the 1970’s, which resulted in a dramatic increase in racial disparities in mental hospitals.  “[T]he proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978 . . . .”

Harcourt also describes the explicit use of race as a predictor of dangerousness in parole decisions between the 1930’s and 1970’s — a shocking practice to contemporary ears.  Although criminal history may correlate closely with race, it does not seem nearly so pernicious to rely on criminal history as to rely expressly on race.  Nonetheless, I share Harcourt’s sense that progressives are apt to be disappointed by risk-based early release initiatives.  Simply quantifying risk more precisely still leaves unanswered the critical ethical question of why we should want to release anyone who poses any degree of risk, no matter how small.

Cross posted at Marquette Law Faculty Blog.