In the Spotlight: Correctional Employees’ Viewpoints on External Oversight

Melanie K. Worsley*

Volume 47.2

* Melanie K. Worsley, J.D., Associate Professor and Chair of the Criminal Justice and Legal Studies Department at Washburn University in Topeka, Kansas. Correspondence concerning this article should be addressed to Melanie Worsley, Washburn University, 1700 SW College Ave, Benton 201A, Topeka, Kansas 66621. Email: melanie.worsley@washburn.edu.

Introduction

The oversight field has increasingly recognized that there are parallels between oversight of police and correctional oversight. In her comprehensive Annotated Bibliography on Independent Prison Oversight, Michele Deitch, a leading scholar in correctional oversight, noted these parallels and included articles relating to police oversight in the annotated bibliography.[1] Similarly, the National Association of Civilian Oversight of Law Enforcement (NACOLE) recently expanded its approach to oversight when it began offering a corrections track at its annual conference and included corrections panels at the 2020 Academic Symposium co-hosted by the University of Texas School of Law and the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs. Academics should continue to expand on this recognition that there are clear overlaps between correctional oversight and oversight of police, including examining whether research in each field can be cross-applied. One such area is research that has been conducted regarding stakeholder perspectives of external oversight.

Researchers studying police oversight have recognized the importance of stakeholder buy-in to oversight. More specifically, academics studying police oversight have used social scientific approaches to examine stakeholders’ perspectives regarding procedural justice and legitimate authority as it applies to the police oversight process. In the correctional oversight literature, there has been discussion of the value of stakeholder buy-in to the oversight process, but there is little social scientific research regarding stakeholder perspectives of correctional oversight.[2] This paper takes a social scientific approach to examine whether police oversight research regarding stakeholder perspectives on procedural justice and legitimate authority are useful for better understanding correctional oversight.

In order to determine whether this cross-application is appropriate, 38 employees at a midwestern jail were interviewed to learn more about their thoughts regarding correctional oversight, their role in the criminal justice system, and issues they face as correctional employees. The correctional employees interviewed included line staff, supervisors, and administrators. During the semi-structured interviews, employees’ discussion of oversight included raising concerns regarding procedural justice and legitimate authority, affirming that police oversight research regarding these issues is relevant to the correctional oversight field. 

Beyond demonstrating that correctional employees’ perspectives on procedural justice should be further studied, these interviews provide insight into correctional employees’ views of correctional oversight in general, including the perceived benefits and drawbacks of external monitoring. Understanding their ideas regarding the benefits and drawbacks of oversight as well as the current stresses experienced by corrections employees can help jurisdictions identify shared points of agreement, such as ways in which oversight can help correctional employees, as well as critical areas that must be addressed, such as chronic understaffing in facilities. Better understanding as to why correctional employees may be resistant to or push back against oversight is also useful for jurisdictions looking for ways to garner increased buy-in from this key stakeholder group. Altogether, seeking input from the very people being monitored by the oversight system can only serve to help jurisdictions implement more effective and sustainable external oversight models and practices.


[1]See Michele Deitch, Annotated Bibliography on Independent Prison Oversight, 30 Pace L. Rev. 1687, 1687–­­1753 (2010).

[2]See Melanie K. Worsley & Amy Memmer, Transparency Behind Bars: A History of Kansas Jail Inspections, Current Practices, and Possible Reform, 1 J. of Crim. Just. & L. 71 (2018).

Community Advisory Boards: What Works and What Doesn’t (Lessons From a National Study)

Julian Clark* & Barry Friedman**

Volume 47.2

* Policing Fellow, The Policing Project, New York University School of Law. The Policing Project was assisted by the law firm of Latham & Watkins and received generous support from the Charles Koch Foundation. We would especially like to thank Michael Wilt, from the Charles Koch Foundation; former Policing Project Senior Program Manager Brian Chen; as well as Mike Faris, BJ Trach, Bob Simms, Meredith Monroe, Sushma Raju, John Steinbach, Jeffrey Bashara and others from Latham & Watkins LLP, who worked pro bono to help research, conduct interviews, and visit CABs across the country. We are grateful for the partnership and benefited from it.

** Jacob D. Fuchsberg Professor of Law and Faculty Director, Policing Project, New York University School of Law.

Abstract

Community Advisory Boards (“CABs”) are one of the most common forms of police-community engagement bodies in the country. Both progressive  leaders of policing agencies and proponents of civilian oversight frequently cite a range of potential benefits of CABs to both police and the communities they serve.  As a result, CABs continue to grow across the country. This interest in CABs has continued with insufficient study and evaluation of whether CABs actually play any meaningful oversight or community-engagement role. In order to assess this, the Policing Project conducted an in-depth, national study of CABs.

The study revealed that in practice, many community advisory boards suffer from a number of deficiencies—some quite serious—that often inhibit their ability to achieve their intended purpose. Too often CABs are a result of pro forma efforts by policing agencies to signal a commitment to working with the public—without really working with the public. This Article presents the lessons learned from the study, and offers practical guidance on establishing and operating effective CABs.

But Who Oversees the Overseers?: The Status of Prison and Jail Oversight in the United States

Michele Deitch*

Volume 47.2

* Distinguished Senior Lecturer at the University of Texas, with a joint appointment in the Lyndon B. Johnson School of Public Affairs and School of Law. B.A., Amherst; M.Sc. Oxford; J.D., Harvard. I am grateful to the Lyndon B. Johnson School of Public Affairs at the University of Texas for supporting my research on correctional oversight with a Policy Research Institute (PRI) funding award for 2019–2020.

I could not have conducted this project and written this article without the tireless assistance of two incredible researchers: Rachel Gandy (M.P.Aff. and M.S.S.W., Univ. of Texas, 2016), who went above and beyond her role as a student in my course to help prepare an early version of this article; and Lucy Litt (J.D. candidate, Harvard Law School, expected 2022), who volunteered her time over two years to help gather information from oversight practitioners. Their dedication to this project and to the goal of improved correctional oversight is both admirable and deeply appreciated.

This article had its roots in a project-based course I taught at the LBJ School in 2015–2016, where a team of my graduate students in public policy identified then-current prison and jail oversight models and conducted research about these organizations. Following the course, Rachel Gandy and Lucy Litt significantly added to that body of research, which allowed for a deeper analysis of the material. In a different project-based course I taught in 2019–2020, a team of my graduate students updated all the prior research on oversight bodies, conducted in-depth analyses of jail oversight mechanisms and jail standards, and assessed recent developments in this arena; some of their analyses are incorporated into this article. I am grateful to all of my students for their hard work and extensive research, which made this article possible, and the following LBJ students deserve special acknowledgment for their efforts: Mariel Dempster, Julia Durnan, Shahd Elbushra, Rachel Gandy, Kat Gross, Kelly Hogue (Texas Law), Bethany Offer, and Kaitlyn Wallace.

I am grateful, as always, to my dear friend, colleague, and collaborator on all things related to correctional oversight, Prof. Michael Mushlin of the Elisabeth Haub School of Law at Pace University. His thoughtful reading of this article and encyclopedic knowledge of prisoners’ rights law provided very helpful insights and challenged some of my assumptions.

Additionally, I would like to thank all the oversight practitioners and experts around the country who contributed to our research efforts by sharing information and insights. We hope we accurately captured and interpreted the information you provided; any errors in this piece are ours alone. Also, in a project of this scale, we no doubt have inadvertent mistakes and omissions, plus circumstances may have changed

since our research was conducted. I would be grateful if readers could bring the need for corrections or new developments to my attention so I can maintain as accurate and comprehensive a database as possible going forward. I may be reached at: Michele.Deitch@austin.utexas.edu.

Finally, I would like to thank the National Association for Civilian Oversight of Law Enforcement (NACOLE), which partnered with the UT School of Law and the LBJ School to present an academic symposium focused on oversight issues at UT Law in March 2020. I appreciated having the opportunity to present this paper at the symposium. And I enjoyed co-chairing the event with a group of wonderful colleagues: UT Law Professor Jennifer Laurin, and NACOLE representatives Cathleen Beltz, Florence Finkle, and Cameron McElhiney.

Introduction

Criminal justice reform has become a refuge for bipartisanship in an era of tense political rivalries. Despite widespread polarization on other issues, Democrats and Republicans tend to agree on one fundamental truth—high incarceration rates in the United States create unnecessary human and fiscal costs for all communities. As a result, criminal justice reform movements have developed at local, state, and federal levels of government. These efforts have largely focused on de-incarceration initiatives, such as changes to bail and sentencing policies, that aim to divert people away from the justice system and toward community services, treatment, and productive citizenship. Even as government leaders attempt to depopulate the nation’s correctional facilities, however, 2.3 million people remain incarcerated, while many more cycle in and out of jails almost 11 million times each year. Moreover, as a nation, the United States claims the highest incarceration rate in the world, locking up its citizens at a rate of 698 per 100,000. 

These troubling figures raise several important questions that are often overlooked:

  •   What do conditions of confinement in the United States actually look like, and how are people treated behind bars?
  •   What is being done to ensure that these conditions and the treatment of prisoners are humane?
  •   How can we make our prisons and jails more transparent? 

Over the last several years, the public has started to discover some answers to the first of these questions through extensive media coverage of problems in prisons and jails. For example, in June 2015, two men convicted of murder escaped the Clinton Correctional Facility in upstate New York. In the weeks following the escape, investigators found evidence of staff malfeasance and, most troublingly, a violent “campaign of retribution” perpetrated by prison guards against Clinton inmates who had no links to the escapees’ actions. On Rikers Island, New York City’s massive jail complex, the culture of violence and inability to remediate poor conditions despite federal court involvement led to the Mayor’s and City Council’s decision in 2019 to plan for closure of the complex in 2026, a substantial reduction in the number of people incarcerated, and the redesign of smaller borough-based facilities. More recently, billionaire Jeffrey Epstein’s suicide in a Manhattan federal jail led to a national outcry and increased public attention to the problem of jail suicide and inadequate staff supervision.

Farther south, atrocious conditions and a series of murders of incarcerated people in Mississippi’s Parchman Prison became national headline news in 2019, resulting in a decision by the governor to close part of this infamous prison facility. Alabama’s prisons, too, generated widespread news coverage for their excessive levels of violence, brutality, overcrowding, and unsanitary conditions, culminating in an investigation by the U.S. Department of Justice. Reporters in Florida uncovered widespread sexual abuse, corruption, and medical neglect inside Lowell Correctional Institution, the nation’s largest women’s prison, and another journalistic exposé revealed enormous problems with Florida’s prison work programs.  

In Texas, the death of motorist Sandra Bland in a rural county jail in 2015 dominated the national headlines and revealed insufficient mental health screenings and treatment, suicide precautions, and safety procedures in county jails. Also, a Pulitzer Prize-winning series of articles and editorials in a small-town newspaper over a two-year period in 2018 and 2019 exposed appalling levels of medical neglect underlying deaths in custody in Texas county jails, as well as “excessive force, failures to identify or treat severe mental illness or suicidal tendencies, disregarding prisoners’ pleas, excessive delays in treatment, and a culture of indifference to human suffering.” The editorials also called for stronger jail oversight. And it’s not just jails in Texas that have demanded the public’s attention. Media outlets and advocates have raised a steady stream of concerns about Texas prisons, including substantiated reports about officers falsifying disciplinary reports against incarcerated people and sharp rises in suicide rates. Another in-depth investigative article shone a harsh light on the Texas prison system’s use of long-term solitary confinement. Also, a high-profile lawsuit challenged the lack of air conditioning in a Texas geriatric prison and the resultant deaths of medically vulnerable people from the extreme heat. Ongoing twists and turns in the case, including a settlement and threatened contempt rulings, ensured that this issue remained a major news story for more than a year. 

Investigators in Kentucky similarly discovered poor conditions of confinement within the state’s jail system, where several preventable deaths of incarcerated individuals met with scant follow-up investigations and lax disciplinary actions. Additionally, jails in the Pacific Northwest have recently experienced a disturbing rise in the number of deaths in custody. Arizona’s prison cells have been revealed to have faulty locks that have contributed to violence and murders over the years, leading to descriptions of prison management in that state as a “colossal failure.” Moreover, a weeks-long national prison labor strike in 2018 generated massive media coverage and highlighted inhumane conditions in prisons across the country, including what the strike organizers called “modern day slavery” where people in custody receive little to no pay for dehumanizing work. And a national investigation of deaths in jail custody by the news organization Reuters brought public attention to the fact that there were over 7500 deaths in local jails over an 11-year period, including almost 5000 deaths of people in pre-trial status, and that a veil of secrecy hides many of these deaths from the public.

The list of horrifying stories could go on indefinitely: the media has never been more proactive in identifying, investigating, and reporting on prison and jail issues, thanks to the dogged attention of investigative reporters who specialize in this area and the establishment of news outlets, such as The Marshall Project, that focus on criminal justice coverage. At the same time, though, we have scant information from those jurisdictions where the media has been less attentive. 

Beyond these high-profile examples of local reporting about deeply troubling conditions of confinement, the ongoing COVID-19 crisis has also turned a bright national spotlight on what is happening behind bars, as the public has become aware of the crowded and unhygienic conditions in prisons and jails and the potential for catastrophic loss of life from the spread of the coronavirus in these facilities. Rikers Island in New York City and the Cook County Jail in Chicago, as of early April 2020, were epicenters for the COVID-19 crisis in the United States, with vastly higher rates of transmission and confirmed cases than their surrounding communities. And in early September 2020, 44 of the top 50 hotspots for coronavirus in the United States were in prisons and jails. More and more, the public is coming to understand that what happens in these closed institutions matters—and that conditions of confinement affect both public safety and public health.

While these significant problems continue to garner public outcry, correctional success stories have also started to take shape across the country. Of particular note, Colorado’s former prison chief, Rick Raemisch, ended the use of long-term solitary confinement in the state’s prisons, persuaded that the practice contravened the goal of public safety since it was so harmful to people suffering under such extreme conditions. Raemisch’s successor, Dean Williams, has emphasized the importance of rehabilitation, preparation for re-entry, work with community partners, the dismantling of solitary confinement cells, and respect for human dignity. Williams previously served as the Corrections Commissioner in Alaska, where he also tried to implement numerous reforms. 

Notably, a number of U.S. corrections officials have toured European prisons famous for their humane approach to incarceration, and they have returned home with ideas for how to implement changes in their facilities. For example, Connecticut’s former Corrections Commissioner Scott Semple implemented an experimental prison program for young men between ages eighteen and twenty-five called the TRUE Program, which has generated acclaim for its rehabilitative programming and “radically different environment” that allows for mentoring by older residents and a much more relaxed dynamic between staff and residents. The program has curbed violence inside the facility, and to date, has shown excellent results when it comes to re-arrests following release. A similarly progressive program for young women in custody in Connecticut—the WORTH program—uses therapy, mentoring, and classes to transform the prison experience and reduce the recidivism rate.

North Dakota’s former prison leader, Leann Bertsch, also experimented with changes she put in place following her visit to Norway’s prisons. To the extent possible, life inside the North Dakota prisons is being redesigned to more closely mirror life on the outside. Among the changes are a requirement that staff engage in conversation and activities with residents, opportunities for residents to cook and do their own laundry, rooms that look like college dorms, and reductions in the use of solitary confinement. As one news story put it, “an air of normality is pervasive and intentional.”

A new women’s jail in San Diego, Las Colinas, has been praised for its innovative approach to meeting the unique needs of women in custody. Similarly, Travis County, Texas is planning for a reimagined jail for women that is trauma-informed, rehabilitative, and designed and operated with women in mind. As with the problems in correctional facilities discussed above, the list of positive innovations goes on and on as well.

Unfortunately, even as public interest in correctional issues rises, along with media coverage of both scandalous conditions and welcome improvements, the number of oversight agencies equipped to monitor conditions of confinement, prevent problems, and spread awareness of best practices has not grown at a similar pace. In 2010, I published research demonstrating that external oversight over prisons and jails was a rarity in the United States. Ten years later, this article reveals a similar conclusion—despite the extraordinary concerns surrounding conditions of confinement and the treatment of people in custody, relatively few jurisdictions have established independent agencies tasked with scrutinizing these institutions and addressing the problems they find. However, there have also been significant signs of change over the last decade: the national landscape for independent correctional oversight is improving, with greater awareness of this issue, more calls for the creation of oversight mechanisms, more concrete efforts to establish these entities, and the successful implementation of several new oversight bodies.  

This article builds on my 2010 report to highlight those recent developments and to assess the current state of correctional oversight in the United States. Part I describes the concept of correctional oversight and explains its goals to improve transparency and increase accountability within prisons and jails. It goes on to outline the benefits of oversight that can accrue to diverse stakeholders, including incarcerated persons, correctional administrators, policymakers, judges, the media, and the public at large. This section also discusses the prevalence of independent oversight bodies in other countries, and how the lack of such oversight makes the United States an anomaly on the world stage. 

In Part II, I discuss America’s historical reliance on court oversight as a way to address problematic institutional conditions and how this has inhibited the development of preventive oversight mechanisms. But as litigation has become a less reliable tool for prison reformers, and as the drawbacks of court oversight have become more obvious, advocates have begun to emphasize the need for preventing harm through routine inspections of facilities rather than waiting until conditions hit rock bottom to get involved in reform efforts. 

Part III examines the growing interest in correctional oversight and discusses recent calls for the development of independent oversight mechanisms in this country. Since 2006, there has been a series of notable highlights in the nascent oversight movement, and this section sets forth a chronology of those key events.

Part IV describes a multi-year research project conducted at the Lyndon B. Johnson School of Public Affairs at the University of Texas to find, interview, and catalog all external prison and jail oversight bodies that currently exist for adult correctional facilities around the nation. This part of the article presents and analyzes the key findings about these various oversight bodies. In this section, I also highlight those jurisdictions that have established oversight bodies since 2010, to show the shifting landscape of correctional oversight in the United States. This section of the article also includes charts with lists of various prison and jail oversight bodies at the state and local levels.

Finally, Part V concludes with an overall assessment of the status of correctional oversight in the United States. That assessment mixes optimism and excitement about the future of oversight with a dose of realism about the challenges ahead and a recognition that we continue to trail our peer nations when it comes to belief in the critical importance of independent oversight. But still we must push on in our efforts to promote transparency and accountability in all places of confinement.

Prosecutorial Disassociation

By Tyler Yeargain*

Volume 47.1

*Associate Director, Yale Center for Environmental Law and Policy. This Article would not have been possible without the staff members of prosecutors’ associations, as well as elected prosecutors, who took the time to answer my questions and point me in the right direction. Furthermore, I would like to thank Daniel Nichanian (@taniel on Twitter) for his incredible work in reporting on prosecutorial elections for The Appeal. The portion of this Article that covers the shift in these elections—especially as they relate to prosecutors’ associations—would not have been possible without his dedicated reporting and attention to detail.

Introduction


Progressive prosecutors are on the rise. Buoyed by dramatic changes in public opinion toward criminal justice reform, ambitious primary challengers, and air support from big political donors, they’ve defeated entrenched, punitive prosecutors in counties and districts across the county and have largely delivered on their campaign promises. But winning is only half the battle—once in office, they continue to face opposition from police unions, other government actors, and even dissent within their own offices.


This Article focuses on a new, and yet tragically underdiscussed, challenge that progressive prosecutors face: prosecutors’ associations. These associations, which function as a hybrid professional organization–quasigovernment entity, play a large role in the development of criminal justice policy. They lobby the legislature, are statutorily endowed with policymaking authority, exert influence in judicial and referenda elections, file amicus briefs, and provide training and other forms of administrative support to prosecutors’ offices. In other words, prosecutors’ associations matter.


Given the history of how prosecutors’ associations affect criminal justice policy, it is perhaps unsurprising that so many progressive, decarceral prosecutors—or progressive, decarceral candidates in prosecutorial elections—are skeptical about serving as active members of their state associations. Despite this skepticism, only a few elected prosecutors, most prominently Philadelphia District Attorney Larry Krasner, have actually quit these associations.


Others, including a bipartisan alliance of progressive prosecutors in California, some recently elected prosecutors in Virginia, and several unsuccessful candidates in Pennsylvania, have suggested an alternative way forward: forming their own progressive prosecutors’ associations as a counterprogramming effort. As conceptualized, these counter-associations would do the exact same things that the existing associations do, but with a thumb on the scale on the opposite side—for decarceral policies instead of tough-on-crime ones. Given the new nature of these proposals, they’ve generated little academic or activist discussion, which this Article attempts to remedy.


It begins in Part I with relevant background information about prosecutors’ associations. It briefly recounts their organizational histories, though given the paucity of historical records kept by the associations and their relative anonymity, this effort is necessarily limited. It then addresses the statutory framework in which prosecutors’ associations operate, by discussing the relationships between private and public prosecutors’ associations and the state-sanctioned policymaking authority that both associations have.


Part II then considers the external, policymaking role that prosecutors’ associations enjoy in their state governments. It considers how this role operates in three ways—lobbying, electioneering, and participation in litigation. It reviews the strategies and ideological positions of the associations and the results of their efforts.


Part III then explores the rise of progressive prosecutors. It recounts briefly, given the already well-trodden ground in academic literature, how this rise occurred and how candidates have been successful (or not). It then discusses a newer, less-discussed trend: progressive prosecutor candidates pledging to withdraw from prosecutors’ associations and to form new ones.


Part IV builds on the changes suggested by progressive prosecutors in Part III and conceptualizes several different options that these prosecutors may have—remain, start counterpart associations, create a nationwide association, or some combination thereof and applies historical analogies and some social psychological research to consider how each option may turn out.

Board to Death: De Facto Juvenile Life Without Parole

By Amelia Courtney Hritz*

Volume 47.1

*This article was made possible through the Robert B. Kent Public Interest Law Fellowship, hosted by the Cornell Juvenile Justice Clinic and Justice 360. John Blume was instrumental in the development of this study and thought of the title. I am grateful to Lynn Johnson of the Cornell Statistical Consulting Unit for her statistical expertise. Special thanks to Caisa Royer, Stephen Ceci, and Valerie Hans for feedback on earlier drafts of this article. I am also thankful for feedback provided at the Law and Society Association Conference and Cornell Law School. I thank Christine Brittain, Hannah Bollinger, Michelle Morris, and Yangji Sherpa for their excellent research assistance.

Abstract

In Miller v. Alabama, the Supreme Court held that sentencing a juvenile to life without parole absent a finding that the youth was incorrigible violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court contemplated that states could remedy a Miller violation by offering parole hearings to juveniles serving life sentences, but did not address the fact that many states rarely grant parole to juveniles serving life sentences and afford them few due process rights at their parole hearings. This means that juveniles sentenced to life with parole are likely to die in prison regardless of the evidence of their rehabilitation. Moreover, juvenile offenders sentenced to life with parole before Miller may not have had the opportunity to present evidence of their youth as a mitigation factor at sentencing (or during parole hearings), unlike juveniles who have been sentenced to life without parole after Miller. In order to investigate the difference between life with and life without parole, this article examines the parole system for individuals sentenced to life in South Carolina, a state that still gives the parole board complete discretion in their decision-making. Although South Carolina, like most states, has not reformed its parole procedures in response to Miller the state claims that juvenile offenders who appear before its parole boards are receiving a meaningful opportunity to obtain release. The article presents an analysis of over a decade of parole decisions involving 100 juvenile offenders and considers whether the state’s process is affording juveniles that meaningful opportunity. The results indicate that very few juveniles are paroled, and most are denied parole based solely on factors relating to the crime. In addition, there is no evidence that the juvenile parole grants have increased since Miller. The article concludes by discussing the implications for the future of Miller.

All Things Considered: The Effect on Tribal Sovereignty of Using Tribal Court Convictions in United States Sentencing Guideline Calculations

By Neil Fulton*

Volume 46.2

*Neil Fulton is the 14th Dean of University of South Dakota School of Law. He is a graduate of Yale University and the University of Minnesota School of Law. Prior to becoming Dean, he was Federal Public Defender for North and South Dakota. He worked regularly with sentencing issues from Indian Country and was a member of the United States Sentencing Commission’s ad hoc and standing Tribal Issues Advisory Groups. The author wishes to thank his friends in the FPD community for their work and for helpful comments on initial drafts of this article.

Introduction

Criminal justice in the United States is a balancing act between local and national enforcement, policies, and priorities. The common refrain “don’t make a federal case out of it” is perhaps nowhere as palpable a consideration as in criminal prosecutions. Elevating a case into the courts of the United States is a serious consideration for the Department of Justice.[1] In addition to front-end decisions about investigation and prosecution of offenses, the federal and local criminal justice systems are deeply intertwined through the consideration of prior convictions in determining federal sentences.[2] Which local convictions are given weight in federal sentencing and under what circumstances are central questions[3]

Both of these questions are common and complicated in the relationship between the United States and Indian tribes. Indians are subject to federal court jurisdiction for a broad swath of crimes that would typically be left to state courts when committed by non-Indians.[4] Under the separate sovereigns doctrine, Indians may be prosecuted in tribal court and federal court for the same conduct.[5] Tribal court convictions are not automatically included in the calculation of criminal history for federal sentencing as are prior federal or state court convictions.[6]

A fundamental question in federal criminal sentencing is what convictions are counted to determine criminal history based on their type, age, court of origin, and other factors.[7] A fundamental question in federal Indian law is what level of tribal government sovereignty is recognized and accommodated.[8] This article explores the intersection of those questions. It does so in light of a recent reevaluation by the United States Sentencing Commission (U.S.S.C) of how tribal court convictions are factored into criminal history calculations in federal sentencing. It seeks to explore different visions of “sovereignty” attributed to tribal governments by scholars and how those visions are effectively or ineffectively advanced by federal sentencing policy.

Part I of this article briefly traces the development of the relationship between the governments of the United States and Indian tribes. Part II traces the history of the United States Sentencing Guidelines. In particular, it reviews the history of the debate regarding how to consider tribal court convictions in calculating criminal history scores for federal sentences and the work of the ad hoc Tribal Issues Advisory Group (“TIAG”) appointed by U.S.S.C. in 2016 to consider sentencing issues relating to Indians and Indian Country. Part III considers how tribal sovereignty relates to federal sentencing policy. That section identifies and assesses competing views of tribal sovereignty and how those views relate to the consideration of tribal court judgments in federal sentencing. Part IV considers how the policy proposals recommended by TIAG and considered by the U.S.S.C. advance or fail to advance these visions of tribal sovereignty. Part V proposes a different vision of what tribal sovereignty can be in the context of federal sentencing and assesses whether the TIAG proposals effectively advance this vision of sovereignty. Lastly, it briefly discusses if this view of sovereignty is normatively superior.

It is an important caveat at the outset that this article includes both broad and highly specific considerations. Considering how tribal and federal courts interact and view their respective judgments goes to the heart of the right of tribes to self-determination and self-governance. In that sense, the article puts on the table the most fundamental questions of federal Indian law. However, these issues are assessed through the very specific lens of how prior convictions from tribal courts are, or are not, considered by federal courts in imposing sentences in criminal cases. In that sense, the article deals with a very discrete question.

But we must begin at the beginning. The current state of affairs is, inevitably, a product of history. The future requires some understanding of that history and, to a degree, a struggle against it.


     [1]   See e.g., U. S. Dep’t of Justice, Justice Manual, 9-2.030 (addressing general provisions for authorizing federal prosecution), 9-2.031 (“Petite Policy”) (addressing considerations for dual federal prosecution of crimes prosecuted in state courts).

     [2]   U.S.S.G. § 4A1.1. Criminal history points are assigned to prior convictions. A higher criminal history score results in a higher Sentencing Guideline range.

     [3]   U.S.S.G. § 4A1.2.

     [4]   See e.g., 18 U.S.C. §§1152, 1153.

     [5]   See United States v. Wheeler, 435 U.S. 313, 329-30 (1978); United States v. Lara, 541 U.S. 193, 208-10 (2004). In both of these cases, a significant question was whether the authority of the Indian tribal government to prosecute was inherent or delegated federal power. What powers a government possesses and who, if anyone, may limit those powers are key aspects of sovereignty. This question of “what is sovereignty” runs throughout the background of this paper.

     [6]   See U.S.S.G. § 4A1.2(i).

     [7]   See supra note 3.

     [8]   See e.g., Montana v. United States, 450 U.S. 544, 565–66 (1997) (outlining the scope of tribal adjudicatory and regulatory jurisdiction).

The Constitutional Basis For Requiring Continuing Immunity For Witnesses Immunized Before The Grand Jury

By Reetu Sinha*

Volume 46.2

*J.D. Candidate 2020, The University of Texas School of Law. The author is currently Managing Editor of the American Journal of Criminal Law; she played no part in the consideration of this article for publication.

Introduction

In United States v. Salerno, seven defendants were indicted on various RICO charges.[1]  One of the central issues in the case was interference with unions at a particular construction firm. In the course of the grand jury investigation to obtain these indictments, AUSAs from the Southern District of New York called two owners of the firm to talk with them about the defendants’ involvement and any illegal activity they or their firm might have been involved with. Both owners testified before the grand jury under a grant of immunity. However, the testimony, despite being elicited by the prosecution, was exculpatory in nature for the defendants. When it came time for trial, the defendants attempted to call the two owners to give the exculpatory evidence on their behalf. However, the prosecution did not extend the owners’ immunity to trial. And so, when called, both witnesses invoked their Fifth Amendment right against self-incrimination and refused to testify. Defendants attempted to introduce the grand jury testimony, but the Supreme Court ultimately held that the testimony did not meet a hearsay exception to render it admissible.

However, the issue that was not raised and therefore not addressed by the Supreme Court was the constitutionality of the prosecution’s decision not to extend the witnesses‘ immunity through trial or otherwise allow the defendants to introduce testimony the witnesses gave before the grand jury.[2] The Second Circuit itself, before the case went up to the Supreme Court on certiorari, considered the Brady implications of Salerno, noting that the practice of withholding exculpatory evidence from the defendant “was not true to the letter or spirit of Brady.”[3] The court did not give a thorough analysis of the Fifth Amendment issues at play because of the doctrine of constitutional avoidance.[4] But it did conclude that denying the defendants access to exculpatory power that was within the government’s possession would be “nothing more than a semantic somersault.”[5] Before being reversed by the Supreme Court, the Second Circuit utilized a hearsay analysis to avoid reaching the constitutional claims.[6] The case was remanded to the Second Circuit to comply with the Supreme Court’s opinion, and went through a series of opinions, but the Constitutional questions were not revisited.[7]

When the Supreme Court struck down the Second Circuit’s alternate basis for allowing the defendant to utilize grand jury testimony, all that was left were the constitutional arguments. [8]The doctrine of constitutional avoidance was embraced partly as a method to avoid broad judicial overreach into areas that are better addressed through democratic processes and public discussion.[9] The most influential articulation of the doctrine is in Justice Brandeis’s concurrence in Ashwinder v. Tennessee Valley Authority, where he lays out seven rules the Court has used to avoid answering constitutional questions.[10] The most applicable of the seven rules to this case is the Last Resort Rule, or the rule that “[t]he Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”[11] When there is an alternative basis for the Court to grant relief, then it should rely on that ground.[12] However, when that ground has been removed as a basis for the Court to grant relief, then it has no alternative to rely on to avoid the constitutional issues.[13] Therefore, the defendants were entitled to have their constitutional claims addressed. So, the question must be answered: do defendants’ constitutional rights to compulsory process, confrontation, and due process entitle them to either continued immunity for witnesses already immunized by the police or access to grand jury testimony? Yes, they do.


     [1]   United States v. Salerno, 505 U.S. 317, 317–20 (1992).

     [2]   See Salerno, 505 U.S. at 317–20; see also United States v. Salerno, 937 F.2d 797, 807–08 (2nd Cir. 1991) rev’d, 505 U.S. 317 (1992).

     [3]   Salerno, 937 F.2d at 807 (2nd Cir. before Supreme Court). 

     [4]   Id. (“However, we rest our decision on our interpretation and application of Fed. R. Evid. 804(b)(1), and not Brady v. Maryland, keeping in mind the time-honored rule that we should not reach constitutional issues unless absolutely necessary.”).

     [5]   Id.

     [6]   Id.

     [7]   See United States v. DiNapoli, 8 F.3d 909 (2nd Cir. 1993).

     [8]   See Salerno, 937 F.2d at 808 (2nc Cir. before Supreme Court). 

     [9]   See Andrew Nolan, The Doctrine of Constitutional Avoidance: A Legal Overview, Congressional Research Service, 8 (2014).

     [10]  Id. at 8–10.

     [11]  Id. at 10 (citing Ashwander v. TVA, 297 U.S. 288, 345–48 (1936) (Brandeis, J., concurring)).

     [12]  Id. at 16 (citing Bond v. United States 572 U.S. 844 (2014)).

     [13]  See id.

Prior Convictions as Moral Opportunities

By Benjamin Ewing*

Volume 46.2

*Assistant Professor, Queen’s University Faculty of Law. Earlier versions of this paper were presented at USC Gould School of Law, Princeton University, the University of Alabama School of Law, Queen’s University Faculty of Law, Yale Law School, Duke Law School, the conference on “Overcriminalization and Indigent Legal Care” at Georgia State University, and the Mid-Atlantic Junior Faculty Forum at the University of Richmond School of Law. For useful comments and fruitful exchanges in those and other contexts, I am particularly grateful to Matt Adler, Michael Adler, Scott Altman, Emad Atiq, Ian Ayres, Jack Balkin, Kate Bartlett, Sara Sun Beale, Charles Beitz, Stuart Benjamin, Jamie Boyle, Curt Bradley, Sam Buell, Guy-Uriel Charles, Walter Dellinger, Deborah DeMott, Mihailis Diamantis, Charles Ewing, Kim Ferzan, John de Figueiredo, Chad Flanders, Lisa Griffin, Ben Grunwald, Paul Haagen, Sharon Harris-Ewing, Eisha Jain, Greg Keating, Alex Kirshner, Doug Kysar, Robert Leider, Marin Levy, Stephen Macedo, Jesse McCarthy, Erin Miller, Philip Pettit, Jed Purdy, Jonathan Quong, Barak Richman, Stephen Sachs, Richard Schmalbeck, Steven Schwarcz, Neil Siegel, Tim Stoll, Tom Tyler, Gary Watson, Ernest Young, my assistant at Duke, Sue Hinson, and my advanced criminal law students at Duke in the spring of 2017. Finally, many thanks to Tori Easton Clark, Rebecca Yung, and the editorial staff of the American Journal of Criminal Law for their work preparing this article for publication.

Abstract

This paper presents a novel theory of why recidivists appear to have a weaker moral complaint about punishment than first-timers: we implicitly assume that crime and punishment give people valuable “moral” opportunities to reflect upon the sources of their fallibility as agents and take steps to guard against them. This helps to secure them against succumbing to crime, thereby diminishing the reasonableness of their objection to future punishment. Though compelling in theory, this line of thought is problematic in practice because ex-offenders’ opportunities to avoid reoffending are arguably worsened by criminogenic prison conditions and collateral consequences of conviction to a greater extent than they are improved by the moral opportunities inherent in crime and punishment for it. The moral link between ex-offenders’ opportunities and recidivist “premiums” implies we should bolster the former or scale back the latter.

Introduction

Our response to a crime depends on its perpetrator’s history of offending. We see this in both the administration and the content of criminal law: in exercises of discretion by police,[1] prosecutors,[2] and judges;[3] in laws that single out first-time offenders for special solicitude;[4] in sentencing guidelines that accord significant weight to criminal history in the sentencing recommendations they generate;[5] and in three-strikes laws and similar “habitual offender” statutes dictating exceptionally harsh punishments for serious crimes by offenders with multiple serious past convictions.[6] What could justify such systematic lenience toward first-time offenders and harshness toward recidivists?[7]

Responding to crimes of recidivism with increasing harshness may help us to attain a lower crime rate for any given level of punishment and to avoid punishment that is useless or nearly so (a particularly attractive goal for those who see punishment as a necessary evil that must be justified by instrumental goods it produces).[8] Yet a practice of punishing equally culpable offenders differently based on their race, sex, age, associations, education, employment, or family status—among other variables[9]—might also help us to achieve those valuable ends.[10] And lay intuitions and legal practices accord greater and more systematic significance to criminal history,[11] implying that past convictions are a sturdier basis for differential punishment than other offender characteristics that might be used to estimate an offender’s future dangerousness and otherwise predict the usefulness of punishing him. That suggests the moral justification for treating prior convictions as aggravating does not lie exclusively in the significance of minimizing crime and avoiding useless punishment.[12]

Perhaps recidivists have often had greater legal or moral knowledge, acted with more defiance or premeditation, or shown worse character than first-timers.[13] But treating crimes as necessarily more culpable simply in virtue of being acts of recidivism would require us to adopt a conspicuously broad conception of criminal culpability. And that in turn would cut against the grain of criminal law’s vaunted narrow focus on bad acts rather than bad people—which is reflected in the minimal and occasional roles it accords idiosyncratic differences in (a) offenders’ legal or moral knowledge,[14] (b) exceptionally repugnant, unexpressed motives with which they happen to have committed their crimes,[15] and (c) their free floating bad character over and above the inadequate regard for other people that each of their crimes has itself manifested.[16]

The limits of crime control and the awkwardness of moral culpability as explanations of our treatment of recidivists may not seem troublesome for those inclined toward functionalist explanation and instrumentalist justification.[17] Yet to ground our relative lenience toward first-timers and harshness toward recidivists in a mishmash of prudential generalizations and inchoate sentiments is unsatisfying. Our practice of scaling sanctions to wrongdoers’ prior transgressions is pervasive, intuitive, and consequential and, as such, appears to reflect a coherent and foundational moral ideal.

Tailoring our response to wrongdoing to its perpetrator’s history of offending is pervasive in that it is entrenched across not only the criminal justice systems of the United States and other countries, but also the sanction schemes enforcing the rules of a broad range of public and private institutions across history and around the world.[18] Its pervasiveness reflects and reinforces its intuitive moral appeal, which has been confirmed by surveys of public opinion and of offenders themselves.[19]

Our tendency to take prior wrongs to license enhanced responses to subsequent ones is also enormously consequential. Contrary to popular belief, there is evidence that most felons—perhaps two-thirds—are not reimprisoned after their initial release.[20] But this evidence is consistent with the idea—for which there is also empirical support—that at any given time most felony defendants have prior felony arrests (and very often convictions). A Bureau of Justice Statistics report on felony defendants in the 75 most populated counties in the United States found that in 2009 roughly 62 percent of felony defendants had a prior felony arrest (more than one, in more than 8 in 10 instances) and 43 percent had a prior felonyconviction (more than one, in about 7 of 10 instances).[21] Moreover, the impact of scaling punishment to criminal history is a function not only of the frequency of recidivism but also the magnitude of recidivist sentencing enhancements—which is often substantial. Prior convictions are accorded a place and weight in sentencing that appears unrivaled by any other aggravating or mitigating factors and is sometimes on the same order of magnitude as the seriousness of one’s present offense itself.[22]

Given how pervasive, intuitive, and consequential it is—and how intimately connected our treatment of recidivists is to mass incarceration—the practice of scaling sanctions to an offender’s history of transgressions is woefully undertheorized.[23] Moreover, leading critics of mass incarceration have recently stressed that we cannot hope to end it if we push only for fewer and more lenient punishments for non-serious offenders—particularly non-violent offenders.[24] A similar point can and should be made about recidivists. We succumb to wishful thinking if we suppose that we could undo mass incarceration merely by keeping more first-time offenders out of prison.

The problem, however, is that it is easy to muster sympathy for the plight of “good people” who have made mistakes and difficult to rethink our harshness toward people who commit crimes of violence, people who are seemingly incorrigible recidivists, and especially people who commit multiple violent crimes. Is it possible to make effective use of the special sympathy most people have for first-time offenders without perversely hardening our deep-seated commitment to increasing harshness toward successive acts of recidivism?[25] The most extreme ways of scaling punishment to criminal history—such as California’s three-strikes law prior to a recent reform[26]—have engendered substantial public criticism.[27] But legal theorists who reject the idea of scaling punishment to criminal history altogether are at risk of missing the full force of first-timers’ claims to special sympathy and failing to critique the so-called recidivist “premium”[28] in a way that can speak to the vast majority of people whose support for it is deep and intuitive.[29]

This paper takes seriously the intuitive appeal of scaling punishment to criminal history. And it uses that appeal to mount an internal critique of the practices of scaling punishment to criminal history that we find in the criminal justice systems of America. Unfortunately, there are good reasons to believe those practices fail to do justice to the importance people attribute to second chances, on the one hand, and learning one’s lesson, on the other.

In Part II of the paper, I offer a brief account of why scaling punishment to criminal history might be useful for controlling crime but also why this cannot, alone, fully explain or justify our attitudes and practices toward first-timers and recidivists. The problem is that there are many different distinguishing characteristics of an offender besides his criminal history that likely increase the marginal usefulness of punishing him for controlling crime. Nor can we convincingly fill the gap by arguing that a recidivist’s past crimes somehow necessarily make his present ones more morally culpable in a way that licenses greater state condemnation and punishment. Rather than stretch our conception of criminal culpability and conclude that the state is warranted in condemning and punishing recidivists for non-criminal personal failings over and above their crimes themselves, we do better to start anew: in search of a third determinant of justified punishment beyond crime control and moral culpability.

Part III fills the void by presenting a novel theory of the deep-seated intuition that a wrongdoer has a weaker complaint about a harsh response if she has already transgressed before. The idea behind this theory of “prior convictions as moral opportunities” is that we implicitly view a wrongful act and a process of accountability for it as valuable “moral” opportunities that help us to guard against the external and internal sources of our fallibility as moral agents. Hence, we suppose that repeat offenders have had better opportunities to avoid their second crimes than their first and thus less complaint about punishment for them. This explains well why harsher punishments for subsequent offenses can seem both intuitive in theory and suspect in practice. For whereas some practices of accountability do more than others to buttress the moral opportunities inherent in them, others—including American criminal punishment—impose countervailing constraints on ex-offenders’ opportunities that arguably make it more difficult and costly for them to reform.

In Part IV, I venture from theory to practice and back. First, I consider implications of the theory for such concrete questions of law and policy as whether, why, and how recidivist premiums should depend on (1) the presence of an intervening conviction, (2) the kind of crimes a defendant has committed, (3) the elapsed time between crimes, and (4) the number of previous convictions a defendant has accrued. Second, I discuss reasons for thinking that in America ex-offenders may have poorer opportunities to avoid reoffending than they had to avoid their initial crimes. And I contend that if we are to persist in scaling punishment to criminal history, fairness requires that we take steps to ensure that the moral opportunities arising from prior convictions are not outweighed in significance by criminogenic prison conditions and collateral consequences of a criminal record.  Finally, I suggest that the theory of prior convictions as moral opportunities points to a novel and attractively minimalist conception of the rehabilitative ideal. Rather than see rehabilitation as an affirmative aim that justifies punishing people, or some people more than others, we might instead conclude that securing rehabilitative opportunities for ex-offenders is a moral precondition we must satisfy to be warranted in punishing them more harshly the next time around.


     [1]   Police officers may and often do, for instance, respond to low-level crimes, such as misdemeanors, with warnings or other forms of “non-enforcement.” See, e.g., Michael K. Brown, Working the Street: Police Discretion and the Dilemmas of Reform 182–220 (1981). Warnings are by nature a less attractive option for repeat offenders.

     [2]   See, e.g., Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 261–66 (1980).

     [3]   For instance, although the advisory sentencing ranges of the federal sentencing guidelines are themselves determined by the intersection of a defendant’s offense level and criminal history category, the guidelines manual also authorizes judges to depart upward from a guideline range “[i]f reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history . . . .” United States Sentencing Commission, Guidelines Manual § 4A1.3(a)(1) p.s. (Nov. 2016).

     [4]   See, e.g., Wash. Rev. Code § 9.94A.650(2) (2018) (“In sentencing a first-time offender [defined in the previous subsection to exclude those who have committed a “violent offense,” “sex offense,” or certain drug or alcohol related offenses] the court may waive the imposition of a sentence within the standard sentence range and impose a sentence which may include up to ninety days of confinement . . . .”); Nora V. Demleitner, Douglas A. Berman, Marc L. Miller & Ronald F. Wright, Sentencing Law and Policy: Cases, Statutes, and Guidelines 361 (2d ed. 2007) (“As the statute from Washington highlights, this tendency to cut first-time offenders a break has been codified in many structured sentencing systems.”).

     [5]   See, e.g., USSG Ch.4; Minn. Sentencing Guidelines and Commentary § 2.B (2018).

     [6]   “[B]etween 1993 and 1995, 24 States and the Federal Government enacted new laws using the ‘three strikes’ moniker . . . .” John Clark, James Austin & D. Alan Henry, National Institute of Justice, “Three Strikes and You’re Out”: A Review of State Legislation 1 (1997). Clark et al. found that “violent felonies such as murder, rape, robbery, arson, aggravated assault, and carjacking [we]re typically included as strike offenses,” though several states’ provisions have swept more broadly, including certain drug offenses, for instance. Id. at 7.

     [7]   In the most obvious and central case, a person sentenced as a “recidivist” or someone with a “criminal history” is someone who committed a crime and was convicted of it before he committed his present offense. However, as Richard Frase has emphasized:

[S]ome recidivist enhancements require an intervening conviction between the ‘prior’ and current offences . . . . [O]ther recidivist enhancements apply with or without an intervening conviction. For example, under the federal, Kansas, Minnesota and Washington guidelines, criminal history is calculated as of the date of sentencing, not the date on which the offence being sentenced . . . was committed . . . .

Richard S. Frase, Prior-conviction Sentencing Enhancements: Rationales and Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality Goals, in Previous Convictions at Sentencing: Theoretical and Applied Perspectives 117, 119 (Julian V. Roberts & Andrew von Hirsch eds., 2010). When speaking of criminal history and recidivism, unless I indicate otherwise, I have in mind principally—but not exclusively—cases in which a defendant committed a prior crime, and was convicted of it, before the present offense for which his sentencing is at issue.

     [8]   See infra Part II.A.

     [9]   For an empirical overview of the usefulness of a long list of variables as predictors of recidivism, see J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1347–68 (2011).

     [10]  Recognizing that many factors beyond prior convictions might be used to estimate more precisely an offender’s risk of reoffending, one prominent commentator has argued that criminal history-based sentencing enhancements are a covert way of “punishing dangerousness” that obscures the tradeoff between punishment of the deserving and incapacitation of the dangerous. See Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429 (2001).

     [11]  See generally Julian V. Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives (2008).

     [12]  One might argue that a defendant’s criminal history is simply a predictor of dangerousness that is especially salient, familiar, and strong. However, reviewing evidence on potential predictors of recidivism, Oleson suggests that criminal history is high on the list but not clearly an outlier with greater predictive value than such factors as a defendant’s “criminal companions,” “criminogenic needs,” “antisocial personality,” or race. See Oleson, supra note 9, at 1347–68. Criminal history differs, of course, from many other actuarial factors in the degree to which it was once under a defendant’s control through choice. But to appeal to that difference is to give up the game of trying to show that the reasons for favoring criminal history over other predictive offender characteristics in sentencing are merely administrative and epistemic—not moral.

     [13]  See infra Part II.B.

     [14]  In unusual cases in which the moral or legal wrongfulness of a crime would otherwise be far from obvious, the law sometimes requires that to commit it, a defendant needs to have acted in willful violation of the law, or with “consciousness of wrongdoing.” See Samuel W. Buell & Lisa Kern Griffin, On the Mental State of Consciousness of Wrongdoing, 75 Law & Contemp. Probs. 133 (2012).

     [15]  Although criminal guilt does not generally presuppose that an accused acted with any particular motive, there are offences for which some ulterior aim is required, and motive is arguably relevant in a range of direct and indirect ways to various forms of partial exculpation, as well as aggravation and mitigation. See generally Carissa Byrne Hessick, Motive’s Role in Criminal Punishment, 80 S. Cal. L. Rev. 89 (2006) (arguing that motive plays more of a role in the criminal law than is often supposed and should play an even greater one).

     [16]  Despite the criminal law’s famed resistance to punishing mere bad character, evidence of character may have some impact at sentencing, particularly in the capital context, in which mitigation inquiries are most protected and expansive. See generally Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (holding that a capital sentencer generally must be allowed to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”) (emphasis added) and 18 U.S.C. § 3592(a)(8) (2012) (specifying that facts about a defendant’s character are among the potential grounds for mitigation in a capital case).

     [17]  Scaling punishment to criminal history may achieve a range of potential penal ends—and perhaps even constitute the subject of an overlapping consensus (in Rawls’s sense), or an incompletely theorized agreement (in Cass Sunstein’s sense), among reasonable citizens whose shared commitment is supported by a range of diverse, non-foundational arguments. See John Rawls, Political Liberalism 133–72 (expanded ed. 2005); Cass R. Sunstein, Incompletely Theorized Agreement, 108 Harv. L. Rev. 1733 (1995).

     [18]  See Roberts, supra note 11, at 2–7.

     [19]  See id. at 137–84.

     [20]  One must be careful about the “recidivism rate” for several reasons. First, when recidivism is defined to include rearrests without convictions, or to focus on reincarceration but even for parole violations, it is much more prevalent than the kind of recidivism about which I am concerned—namely, recidivism as rearrest, conviction, and sentencing for a new offense. See Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 101–04 (2015). Second, as John Pfaff has observed, frequently cited data on recidivism compiled by the Bureau of Justice Statistics capture recidivism rates of prisoners released in particular years, which are likely to be much higher than the recidivism rate of all felons ever released from prison. Pfaff notes that a more recent study tracking specific individuals reimprisoned over 13 years “found that only about one-third of all people admitted to prison at any point ended up returning at any later time—not one-half as the BJS reports suggested.” See John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform 66–68 (2017) (quoting 67). Cf. Patrick A. Langan & David J. Levin, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 (2002), and Matthew R. Durose, Alexia D. Cooper & Howard N. Snyder, Bureau of Justice Statistics, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014), with William Rhodes et al., Following Incarceration, Most Released Offenders Never Return to Prison, 62 Crim. & Delinquency 1003 (2016). As Marie Gottschalk notes, “Pew’s findings [from data on prisoners released in 2004 and 1999] were comparable to those of the 2002 Bureau of Justice Statistics recidivism report and of studies of recidivism rates in other developed countries.” Gottschalk, supra note 20, at 102 (citing Pew Center on the States, States of Recidivism: The Revolving Door of America’s Prisons (2011) and Amanda Petteruti & Jason Fenster, Justice Policy Institute, Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations 41–42 (2011)).

     [21]  Brian A. Reaves, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties 2009—Statistical Tables 11, 13 (2013).

     [22]  For example, the federal sentencing range for a defendant with an offense level of 14 (out of a possible 43) would be as low as 15–21 months of imprisonment if he were in the lowest criminal history category and as high as 37–46 months if he were in the highest criminal history category. A defendant with an offense level of 28 could face a sentencing range of anywhere from 78–97 months to 140–175 months, depending on his criminal history category. See USSG § 5A.

     [23]  Two collections of essays on the moral foundations of recidivist punishment have been published in recent years, and their tone is tentative and exploratory. See Recidivist Punishments: The Philosopher’s View (Claudio Tamburrini & Jesper Ryberg eds., 2012); Previous Convictions at Sentencing, supra note 7.

     [24]  See especially Pfaff, supra note 20;Gottschalk, supra note 20, at 165–95; James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 45–52 (2012).

     [25]  Reforms focused on non-serious offenders may redound to the detriment of their “serious” counterparts when scaled-back punishment for the “non-serious” is paired and sold with ramped-up punishment for the “serious.” See, e.g.,Gottschalk, supra note 20, at 167–68.

     [26]  A recent ballot measure brought California in line with the standard practice of restricting third strikes to a narrow set of “serious” offenses.  See generally J. Richard Couzens & Tricia A. Bigelow, The Amendment of the Three Strikes Sentencing Law 5 (May 2017), http://www.courts.ca.gov/documents/Three-Strikes-Amendment-Couzens-Bigelow.pdf.

     [27]  See, e.g., Matt Taibbi, Cruel and Unusual Punishment: The Shame of Three-Strikes Laws, Rolling Stone,March 27, 2013, available at http://www.rollingstone.com/politics/news/cruel-and-unusual-punishment-the-shame-of-three-strikes-laws-20130327.

     [28]  Use of the term “recidivist premium” is ubiquitous in discussions of sentencing enhancements based on criminal history and dates back at least as far as to George P. Fletcher, The Recidivist Premium, 1 Crim. Just. Ethics 54 (1982).

     [29]  Cf. Frase, Prior-conviction Sentencing Enhancements, supra note 7, at 120 (“Strict theories, rejecting repeat-offender enhancements or positing reduced desert only for offenders with little or no criminal history, would invalidate so much of current sentencing practice that they are likely to be ignored by policymakers and courts.”).

Crime Fantasies

By John Felipe Acevedo*

Volume 46.2

*Visiting Lecturer of Law, University of Alabama School of Law. J.D., University of Southern California Gould School of Law and Ph.D., The University of Chicago. I would like to thank Richard Delgado, Jean Stefancic, Jenny Carroll, Ron Krotoszynski, Al Brophy, Eve Hanan, Ben Levin, and Anna Roberts for comments on various aspects of the project; Richard Helmholz for his guidance on earlier work exploring the criminal law of colonial Massachusetts; the members of the Junior Faculty Workshop at the University of Alabama School of Law; the participants of CrimFest!; and the faculty at Duquesne School of Law for their comments. As always, I thank Deepa Das Acevedo for her comments, corrections, and inspiration. All errors remain mine alone.

Introduction

Throughout American history the public has been gripped by fantasies of criminal activity. These crime fantasies manifest in two distinct but related typologies: witch-hunts and crime panics. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that exacerbate deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. President Trump’s relentless focus on undocumented immigration can be seen as a partially successful attempt to create a crime panic, while, perhaps surprisingly, the investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations and highlights areas for future reform.

The President and First Lady, who hated being a political wife, were barely speaking anymore. An “aide, joked that his duties included briefing [The President] on how to kiss his wife.”[1] The President was himself “increasingly moody, exuberant at one moment, depressed the next, alternately optimistic and pessimistic, especially in his nocturnal phone calls.”[2] Longtime friends who had no direct involvement in the core of the Special Prosecutor’s case were being ensnared in the investigation.[3] His closest aides, even his White House counsel, were talking with the Special Prosecutor and trying to cut deals.[4] The President and his allies called the investigation a “purge” and a “witch-hunt.”[5] “He wondered aloud . . . whether it was worth it to stick things out and fight and then vowed he would never be driven from office.”[6] President Nixon would not finish his term in office.

The Watergate scandal transfixed the nation.[7] Two of the primary investigators, Bob Woodward and Carl Bernstein, would write a bestselling book even before all of the trials had ended.[8] Whether it involves high-profile defendants or specific types of criminal activity, social theorists have attributed this fixation as arising from both fear[9] and voyeuristic tendencies.[10] Watching crime shows—true-crime shows in particular—allows the audience to experience fear in a controlled and safe environment.[11] Similarly, crime entertainment allows the public to indulge in voyeuristic fantasies similar to viewing pornography from the comfort of their homes.[12]

But when the public’s fantasization of crime begins to influence the criminal justice system, it creates profound issues of unfairness.[13] This article shows that there are two distinct types of crime fantasies: witch-hunts and crime panics. Witch-hunts create new crimes by penalizing people because of their beliefs, while crime panics involve the overzealous prosecution of a particular type of crime. These two types of related, but distinct, crime fantasies ought to be kept separate for the sake of conceptual clarity and to enable tailored criminal justice reform.

In true witch-hunts new laws are passed to target a disfavored ideological group. The type of ideology involved is not significant—as Part II will show, both religious and political ideologies have been the focus of witch-hunts over the course of American history. Instead, the defining feature of a witch-hunt is that the criminal system is deployed to target a group of persons because of the group’s beliefs. In other words, witch-hunts reflect a breakdown of substantive due process or equal protection through the passing of unfair laws designed to target the disfavored group. Paradigmatic American examples include the targeting of Quakers by the colonists in the Massachusetts Bay colony and the Red Scares of the twentieth century.

In contrast, crime panics focus on an existing type of criminal activity but with a zeal that exacerbates weak points in the criminal law system. Crime panics produce unjust trials, overly harsh punishments (including the passing of new punishments for existing crimes), and, at their worst, wrongful convictions.[14] Consequently, they exacerbate either existing flaws in criminal procedure or a breakdown in procedural due process. Unlike witch-hunts, crime panics are unrelated to ideological position, although they may rely on stereotypes of particular groups and thus disproportionately affect protected classes.[15] Crime panics are exemplified by the Salem Witchcraft trials and the Satanic Panic of the late twentieth century, among numerous others.

As discussed above, both witch-hunts and crime panics contain an element of fantasy in them. This fantasy can be seen in witch-hunts in the disproportionate and unjust fear of a group of persons because of their beliefs. Similarly, crime panics are based on a disproportionate fixation on a type of criminal activity. Nevertheless, a distinction needs to be drawn between the types of crime fantasies—to more accurately understand landmark events in American criminal law and, more importantly, to enact criminal justice reform. Witch-hunts—although more odious, given their intentional targeting of specific groups—are easier to identify and cure. Religious minorities are now largely (if not always satisfactorily) protected under the First Amendment.[16] Similarly, the Red Scares have abated and have not risen again. To be sure, there is great room for improvement.[17] But true witch-hunts are increasingly unlikely to occur in American society.[18] In contrast, crime panics are far more difficult to resolve as they criminalize behavior that society wants criminalized but introduce or rely on processes that undermine individual rights.[19]

Additionally, although both witch-hunts and crime panics can appear to target individuals solely on the basis of suspect classifications—particularly race and national origin—this is not a required or even dominant feature of either phenomenon.[20] Indeed, some events that would seem to be either a crime panic or a witch-hunt precisely because they turn on suspect classifications (such as the internment of Japanese during World War II) do not fit well into either category because no ideology is implicated and no criminal activity triggered state action.[21] The interplay of race with  witch-hunts and crime panics will be discussed in Section I(c) and Section II(d).

Part I explores two paradigmatic incidents of witch-hunting: the seventeenth-century persecution of Quakers in the Massachusetts Bay colony and the Red Scares of the twentieth century. Part II examines the Salem witchcraft trials and the Satanic Panic of the 1980s and 90s and shows why they are exemplary crime panics. This part also explains why the investigation by Special Prosecutor Robert Mueller is neither a witch-hunt nor a crime panic despite considerable political rhetoric to the contrary. As this broad cross-section of American history demonstrates, the distinction between witch-hunts and crime panics is both deep seated and wide ranging. Finally, Part IV articulates why the distinction between the two types of crime fantasies, witch-hunts and crime panics, matters—they exacerbate different weaknesses in the American criminal system and demand different solutions—and suggests some possible reforms to the criminal law. When we haphazardly lump these events under one descriptive term, we hamper our ability to engage targeted and effective criminal law reform.


     [1]   Bob Woodward & Carl Bernstein, The Final Days 165 (1976) (The authors attribute the comment to Lieutenant Colonel Jack Brennan).

     [2]   Id. at 104.

     [3]   Lawrence Mayer, Rebozo Blasts Hill Unit Staff, Wash. Post, May 21, 1974, at A7 (Rebozo was not involved with any aspect of the Watergate break-in or cover-up, but was ensnared in the investigation for his role in campaign finance irregularities associated with Nixon’s re-election).

     [4]   John Dean, The Nixon Defense: What He Knew and When He Knew It 363 (2014).

     [5]   See, e.g., Mayer, supra note 3, at A7 (Rebozo called the congressional investigation a witch-hunt); see also, e.g., Aldo Beckman, Nixon Complains Probe has become a Purge, Chi. Trib., April 21, 1974, at 6; see also, e.g., William Safire, Why the President should not Step Down, Chi. Trib., November 7, 1973 (arguing that investigation was a miscarriage of justice that harmed the country).

     [6]   Woodward & Bernstein, supra note 1, at 104.

     [7]   See e.g., Christopher Lehmann-Haupt: Books of the Times: Story of an Unfinished Story, N.Y. Times, May 14, 1974, at 35 (noting that All the President’s Men was published at the same time as three editions of the White House transcripts, which distracted readers from their book).

     [8]   See generally Carl Bernstein and Bob Woodward, All the President’s Men (1974); see also Best Sellers, N.Y. Times, Dec. 29, 1974, at 25 (noting that at the end of 1974, Woodward & Bernstein’s book had been on the New York Times’ Best Sellers list for 31 weeks); see also Doris Kearns, A Whodunit Without an Ending, N.Y. Times, June 9, 1974, at 7-1 (discussing that Woodward and Bernstein published their book before the end of the trials, making it feel unfinished).

     [9]   See Thomas H. Pauly, The Criminal as Culture, 9 Am. Lit. Hist. 776, 776–77 (1997) (stating that criminals represent fear of the other, which can lead to scapegoating of unpopular groups for the ills of society. But, under social pressures, such as the Great Depression, the public can see criminals as heroic and the system as corrupt); see also Scott Bonn, Why we are Drawn to True Crime Shows, Time Mag., Jan. 8, 2016 (discussing his own research into the subject and concluding that the fixation on crime, and especially murders, is a form of spectacle-gazing that is made powerful as it triggers fear in an exciting and controlled way; viewers do not actually face the killer directly).

     [10]  Slavoj Zizek, Looking Awry, 50 Oct. 30, 35–39 (1989) (discussing crime movies, such as Manhunter, as being equivalent to pornography as both involve a voyeuristic tendency).

     [11]  Bonn, supra note 9.

     [12]  Zizek, supra note 10, at 35–39 (noting that while crime movies involve us taking on the Lacanian gaze of the other, pornography inverts this paradigm by turning the gaze back onto the pornography viewer who is the target of the arousal seen on film and thus the true object of the film rather than the pornography actors).

     [13]  See Lisa A. Kort-Butler & Kelly J. Sittner Hartshorn, Watching the Detectives: Crime Programming, Fear of Crime, and Attitudes about the Criminal Justice System, 52 Soc. Q. 36, 51–53 (2011) (describing a correlation between the types of programming that people watch and their fear of crime and attitudes toward how to deal with crime; the more police shows watched the higher the fear in crime and harsher attitudes toward criminals); see also Mark Fishman, Crime Waves as Ideology, 25 Soc. Probs. 531, 531, 534–36 (1978) (proposing that crime waves are media constructions based on the way actual crimes are presented to the public to make it appear that a crime wave is occurring).

     [14]  See, e.g., John Hagan, Who are the Criminals?: The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan 157–61 (2010) (describing the passage of the Anti-Drug Abuse Act of 1986 as linked to the media focus on the death of a star college basketball player as well as the subsequent failure of the desperate sentencing between powder and crack cocaine to significantly reduce crime).

     [15]  See Bernard Schissel, Blaming Children: Youth Crime, Moral Panics and the Politics of Hate 82–85 (1997) (finding that aboriginal youth are more closely watched by the police as are males over females and those youths living in urban centers, which leads to a disparity in their arrest rates); see, e.g., Grace Palladino, Teenagers: An American History 81–85 (1996) (discussing the juvenile delinquency panic of the 1940s, which linked comic books and science fiction movies to a rise in juvenile crime and gangs).

     [16]  See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down on First Amendment grounds the prohibition of ritual sacrifice of animals when it was passed by the city to target Santeria practitioners).

     [17]  Although political dissidents in American democracy have been unfairly targeted, individuals like Upton Sinclair were arrested for such absurd things as reading the Constitution in public. Upton Sinclair, The Autobiography of Upton Sinclair 228 (1962).

     [18]  But see Erwin Chemerinsky, The Case Against the Supreme Court 77–82 (2014) (describing the detentions of American citizens as enemy combatants on U.S. soil in contravention of the Constitution).

     [19]  See generally, e.g., Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three (2002) (telling the story of three teens convicted for murder on dubious evidence in large part because they were seen as Satan worshipers by the police, district attorney, and jury).

     [20]  Schissel, supra note 15, at 82–85; see also Palladino, supra note 15, at 81–85.

     [21]  Korematsu v. United States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S.Ct. 2392 (2018) (noting Korematsu’s only crime was not leaving the evacuation zone; he had no connection to the Japanese government).

Law and Loss: Notes on the Legal Construction of Pain

By Meredith Martin Rountree*

Volume 41.2

*Visiting Assistant Professor, Northwestern University School of Law; Ph.D., University of Texas at Austin; J.D., Georgetown University Law Center; A.B., Yale College.

Abstract

Empirical research into the effects of mass incarceration reveals that the pains of contemporary imprisonment extend far beyond the prison walls.  This paper surveys how mass incarceration disrupts individuals’ lives in wide-ranging ways, exacerbating existing social disadvantages, alienating individuals from their families and neighbors, and further segmenting the communities to which these individuals belong.  While these effects are profound, court processes and social dynamics contribute to making these effects substantially invisible to most Americans.  The toll of mass incarceration is almost as invisible as it is potent, building as it does on existing structures of disadvantage.  By contrast, the visibility the law accords victim survivors in death penalty cases exacts its own cost.  The American death penalty system combines with broader social dynamics to create a sociological ambivalence for victim survivors—an environment both offering and constraining opportunities to mourn.  This paper suggests further empirical research is needed concerning the role the law plays in shaping an individual’s experience in reconciling the multiple demands of grief, mourning, and legal participation, as well as how the individual survivor’s social resources may influence his or her use of the law.  In both cases, however, we see how the law shapes loss, both on its own and in conjunction with other social processes, such as stigma and disadvantage.