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:
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.
As I indicated in an earlier post, I’ve been collecting information on new legislation around the country that expands early-release opportunities for prison inmates. By my count, we are now up to at least 36 states with such legislation in the past decade. My table, now updated to include 2010 legislation, appears after the jump.
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.
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”
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.