Jonathan Simon has a new post on his blog reacting to the Arizona shootings and the recent wave of police killings elsewhere. There is a lot to chew on, but I would particularly emphasize this point:
[T]his is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime. Keep in mind that unlike prison systems which have expanded enormously since the 1970s, police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005).
It is unfortunate that, as we have allocated dramatically increasing resources to the war on crime for the past forty years, those new resources have gone more to prisons than to police. From a deterrence standpoint, certainty of punishment is more important than severity. Plus, as Jonathan points out, police are a much more flexible social resource than prisons — they can do a lot more for a community than just apprehend and detain criminals.
I’ve already noted here Jonathan Simon’s upcoming lecture at Marquette on punishment for murder. Jonathan tells me that the lecture will build on his 2009 Hood Lecture at Oxford, which he has shared with me. The Hood paper is a provocative work, in which Jonathan makes the case that homicide law and public fear of lethal violence have played an important role in the American phenomenon of mass incarceration. He is playing here a bit against conventional wisdom, which would emphasize the war on drugs as the main driving force in the prison population explosion of the past generation.
Continue reading “Fear of Violence and the Penal Severity Revolution”
In anticipation of Jonathan Simon’s visit next week, I’m spending some time reviewing a few of his many publications. I’ve just finished a short book chapter of his that nicely pulls together several of the most important themes in his recent work: “From the New Deal to the Crime Deal,” After the War on Crime 48 (Frampton et al., eds. 2008). The basic thesis is that crime control replaced FDR’s New Deal ideology as the central organizing principle of American political and social life in about the late 1960’s.
For Simon, the concept of risk — and particularly the shifting ways that American society responds to risk — is the key to understanding the politics and law of crime and punishment.
Continue reading “New Deal/Crime Deal”
I’ve just read a very insightful and thought-provoking new paper on mandatory minimums by two of my favorite authors on federal sentencing, Erik Luna and Paul Cassell. The paper is Mandatory Minimalism, 32 Cardozo L. Rev. 1 (2010). Focusing on the federal system, they nicely lay out the arguments against mandatory minimums and discuss the political and psychological dynamics that contribute to the persistence of mandatory minimums in the face not only of nearly uniform expert opinion, but also of vocal, bipartisan opposition from many judicial and political leaders. As they indicate, the fact that Congress took until last August finally to soften a little bit the system of mandatory minimums for crack offenses does not reflect well on Congress’s ability to correct its past sentencing excesses.
But Luna and Cassell have not given up on legislative reform.
Continue reading “A “Gentle Nudge” on Mandatory Minimums”
Yes, argues Keith Swisher in a new article entitled “Pro-Prosecution Judges: ‘Tough on Crime,’ Soft on Strategy, Ripe for Disqualification.” His answer is based on both the due-process analysis suggested by Caperton v. A.T. Massey Coal Co. and the rules of judicial ethics. Along the way, he provides a summary of the troubling empirical research indicating that judges grow more pro-prosecution as they approach election time. He also presents several examples of tough-on-crime claims made by judicial candidates across the nation (including claims made by Chief Justice Abrahamson and Justice Gableman of our own Wisconsin Supreme Court). Here are a few of the most disturbing from other states:
Continue reading “Should Tough-on-Crime Judges Recuse Themselves From Criminal Cases?”
Dhammika Dharmapala, Nuno Garoupa, and Joanna Shepherd have a new article on the political dynamics of sentencing reform. Appearing at 62 Fla. L. Rev. 1037, their article uses econometric analysis of forty years of data from all fifty states in order to determine the role of interbranch political rivalry in driving the abolition of parole and the adoption of sentencing guidelines. In essence, their hypothesis is that sentencing reform emerges from the desire of legislatures to exert control over sentencing outcomes in states in which the executive branch is controlled by the other party and/or the judiciary is elected and hence not accountable to the legislature. Or, to put it more crudely, sentencing reform is a power grab by legislatures that don’t trust the other branches of government.
In testing this hypothesis, here are the authors’ conclusions:
Continue reading “The Political Economy of Sentencing Reform”
I’ve just finished rereading Sophocles’ great tragedy Oedipus Rex for the first time since I was a college freshman. I’ve been slowly working my way through the Greek tragedies this year as part of my effort to understand better what the ancient Athenians — our forebears in so many important ways — felt about law, democracy, crime, and punishment. What strikes me particularly about Oedipus this time around is the extent to which the action of the play is impelled by the community’s need to find and punish a criminal.
Continue reading “Oedipus Rex: A Parable of Crime and Punishment”
In this New York Times column, Matt Bai reports on new focus-group research that connects the current anti-incumbent political atmosphere to broader, deep-seated social anxieties regarding a perceived breakdown in civil society. Here is a taste:
The focus group that met here in New Jersey on Monday included a bartender, a lawyer and a school bus driver. The dominant theme of the discussion, in which jobs and taxes came up only in passing, seemed to be the larger breakdown of civil society — the disappearance of common courtesy, the relentless stream of data from digital devices, the proliferation of lawsuits and the insidious influence of media on their children.
These comments remind me of a fascinating paper I read a few years ago that attempted to ascertain why California voters had supported that state’s infamously draconian Three Strikes Law. Continue reading “Perceived Social Disorder and the Politics of Punishment”